that someone pointed out online. they compared corrections to that of not sees -- the knots epoque burning campaigns in the 30s and 40s. she didn't respond to that criticism. but that's the fear is it's really an example of things we have seen during acts of genocide. >> jo yurcaba, a very strong conversation we're having. what we should have for hoffman. thanks for a time. that will get it from a on this addition of alex witt reports. i'll see you again tomorrow at one pm eastern. up next we have the ari melber inspection trump on trial. so tomorrow. ♪ ♪ ♪ welcome to this special addition of the beat,

with ari melber. we talk about history, we talk about precedents, and the unprecedented. but we are going to show you, in our special tonight that we've been working on, exactly why we have just lived through a truly historic week. and that is not a comment on politics, or media, criticism or media speculation. i can tell you as a point of fact, the supreme court ruling this week, and the d.c. circuit ruling this week, will be taught in law schools, and in books about american history, for many decades to come. right now in those cases, the supreme court is basically grappling with these key issues involving citizen defendant, and candidate trump, which could shape not only this year's election, but legal and political boundaries and history as we know it. >> it's on this monumental day, judicial history. >> a legal case that could rock the race for the white house. >> donald trump is now at the center of a u.s. supreme court battle. considering whether the leading

candidate for the republican presidential nomination should be banned from running again. >> it seems like there were at least seven votes against colorado. >> he is very much lashing back at a lot of the building wave of all these different legal cases. >> and that d.c. appeals court that had taken up this issue of presidential immunity. the court has denied trump's argument. >> if you read through the 57- page court order, you won't find a single sentence that favors or even slightly sympathizes with donald trump's argument. >> this is a big win for special counsel jack smith. and clearly, a setback for former president donald trump. >> the intent to him peel this decision to the u.s. supreme court. >> which is the legal equivalent of, then you want to speak to your manager. >> we know former president trump and his legal team, they are trying to do anything they can to delay. >> it's a landmark decision. >> i felt pride, that the law

still means something in this country. >> the law meant a lot across this week. these are precedents that matter a tremendous amount. and as you saw in that oh wow, we lived through that, but a lot happened, moments that we just showed you, even on fox, even out in the culture, and many other ways you could measure with a lot of other things happening in the country, from super bowl to the grammys, this thing, these cases matter. colorado had basically anti trump activists and other legal experts arguing that he should be struck from the ballot, basically potentially preventing him ever being elected, if he is caught booted off several states ballots. we have more on that big case that ended the week coming up later this hour. but we begin with what actually is probably, best we can tell, the most significant set of legal developments this week. which was trump's criminal trial, which is now back on, for those many plots to overthrow the election results, culminating in january 6th. a federal appeals court, that

is the highest thing other than the supreme court, green- lighting the case again. and this is the jack smith trial. this is the multi prompt effort that we have been documenting, in the ways that donald from has tried to overturn the 2020 election. you can see in the upper left, starting all the way in early november 2020, lawsuits which were allowed, and -- that is since been indicted. the state plots, the congress, bought the pence plot, on, and on. and the court has now set this precedent for holding someone accountable, even if they used to be president. rejecting what were those farfetched arguments that got so much attention. donald trump basically saying he should have permanent immunity, and his lawyers saying that means if a president commits murder of american citizens and abuses power, and is out of office afterwards, even that isn't prosecutable. well, what happened this week, then we sent my mention it's a precedent, is no former president has ever got in this much legal trouble, and indicted. so this week, a appeals court at that, knocked out those really bananas arguments by trump's lawyers, and made this

precedent, that for this case, former president trump has become citizen trump, that he will be prosecuted like anyone else if the system deems that the just process. it also dealt with that, bonkers immunity claim, and said that if trump were right about that, it would collapse our system of separated powers, placing the president beyond the reason of all three branches. and telling him, no you are wrong. but donald trump has announced that through his campaign and his, lawyers they will fight this all the way to the supreme court. and as you can imagine with that other case i just mentioned, this court has to decide in both of these cases, whether first to get involved, they already took that colorado case. and if they do get involved, what to do. but right now, it is jack smith won, donald trump zero, with a bit brand-new precedents saying no one, including the former president, is above the law. i told you this is a special we are putting together, and boy do we have special guests to lead us off. andrew weissmann is the former prosecutor in the mueller probe, former fbi general

counsel with experts on all of these issues. and -- senior editor and legal correspondent for slate. welcome to both of you. andrew, i want to go big picture, which is why i just showed here on the beat our producers and journalist put together that mash. and it is broader than just legal junkies reacting to these cases. some americans of course feeling a little fatigue, and hard to keep track of it all. but starting with the d.c. circuit ruling, what does it tell you that it took the alleged criminal of donald trump to get this ruling? and what does it say for american law and accountability? >> i love that you are pulling the lens back, and thinking about the fatigue also that people could feel. because sometimes i really think that what happens is we get inured to the day today. and, focus on small bore, without understanding that the process itself is, in many ways, the story.

and i keep on wondering yes, we want to see criminal accountability, meaning there will be a verdict one way or the other, that the public is entitled to. but what i think, if we were to think three, four, ten years, you are saying it is of historical relevance, i think people will look back on this claim of immunity that you are focusing on, as the story. this isn't trump's lawyers saying it, this is trump saying it. the leading candidate in the republican party saying that i should be, the way i view the presidency, and the role of the president, is outside of the bounds of the other branches of government. that i literally could kill somebody as president, and get away with it. that that is an appropriate

function for a president of the united states. i think that is the picture. i mean, that is, regardless of what would happen in a criminal case, that is where we are in this country. that, in many ways, this is the medium is the message by what we are experiencing in the course of the litigations. that -- i think we tend to forget -- we are so focused on loop when will it happen before the election. but you stop to think about what you think about somebody who is saying he was running for president, and not just running, but succeeding so far and running for president. i think that is really the story. >> yeah, i appreciate you putting it that way, the substance of that andrew. if this wasn't such a big news week, i would pull mr. mcluhan right out here on screen, and have him say you know nothing of my work, and how you became

a professor of film, or in this case perhaps law, is beyond him. but we don't have time for that kind of any hall high jinx, we just don't. -- same question to you as we review what i think again, i understand the skepticism, people say oh the news, guy the news anchor already is telling me it is historic again. but best we can understand in this d.c. circuit ruling, on accountability this week, will be taught for decades to come. >> ari, i think i would probably pick up exactly where andrew just left off, which is every other institution has had its crack, right. we had an impeachment, we had a massive investigation and report. we've seen a bunch of criminal cases filed, a bunch of civil cases filed. this, in some sense, is an historic week, because this is when it all lands at the doorstep of the supreme court, and of the d.c. circuit.

in some sense, if we believe that institutions held in the last election, and that they are holding now, this is the moment where we get to kind of ponder that, as lawyers and people who watch the courts. and i think maybe my cota to that story is, this country is so obsessed with the arc of trials, right. trials are, if you are a country that thinks about rule of law, if you are a country that thinks about accountability, in any meaningful way, then this is an historic moment where we are seeing the output of what a system of rule of law looks like. what does this come, to what does this mean? and i think that, and it goes to andrew's point about time, we are doing this under like a shot clock, right. we are obsessed with how many convictions we can get, can we

get him knocked off the ballot. and we are doing this through this lens, this very compressed lens of, all this needs need to have before next november. and i think that that is a really enact way to look at the story of how trials work, and how the rule of law works. and, so i think we are just in this very very strange, and i agree with you, historic moment, where it is the courts turn to step in, and other institutions have done their piece. and, the anxiety around whether this can get -- in time to -- ballots, or get done in time to have a felony conviction before an election, that's a little bit ancillary. that's in anxiety we are -- and we are very frustrated about that time. but i think that we are, this is how the system works, and we are sort of standing in the midst of it, watching how it plays out. >> yeah, and to that point andrew, there are legal facts. some legal issues are debatable, and lawyers get paid in part to try to make the area

of debate wider than it might be. but there is still an obligation of truth in court, there is still perjury, there is still being an officer of the court. and i say that because donald trump's impeachment lawyer said a true thing that everyone knew to be true. which is that former presidents could be charged. take a look. >> after he's out of office, you go and arrest him. so there is no opportunity where the president of the united states can run rampant, and that january at the end of his term, and just go away scot- free. the department of justice doesn't know what to do with such people. >> andrew, that trump lawyer was referring to what is sometimes called black -- lawyer, established precedent, or of course nixon took the pardon, because otherwise he could have been charged. it was controversial for other reasons, but everyone on both sides of the debate understood yeah, of course you could be charged. the doj memo has long said you couldn't charge a sitting president by his own employees, just because of the structural complexity of that. but if you did something bad

enough, you could be impeached and then charged. all of that is known, and we have spent now months up until this week with people trying to double check, or incredulously look at the bananas, dictatorial, baseless argument that no, you get lifetime immunity, we just never heard about it before. and with that immunity comes the license to kill, which fun as it may be in a 007 fantasy film, andrew, because no one really gets hurt, cause it's just a story, we don't want to live in a country with a president who has a license to kill other americans. and how would campaigns go if you took out the other side? so speak to us, again from this little bit of a bigger altitude for our special tonight, about why this ruling matters, and why trump's own lawyers were admitting the obvious, and we decide to spend a while looking at, through the looking glass, these lies as if this was a close debate? >> well, i would note that that statement that you just played was one of the things that was relied on by the d.c. circuit,

in saying you might be saying this now, but that is not what you said before. in a normal case that would lead to a waiver. meaning if you took a contrary position and people relied on it, you don't get to change your mind later, with no cost to it. i mean, i think just to go back to the point that -- and i are talking about in terms of big picture, not looking at the end result, but the process. i do think that this, and the topic you are, raising feeds into that. remember donald trump saying, it's important to have immunity, because one example he gave was harry truman. otherwise, he would've not been able to make the difficult decision about whether a bomb should be dropped to what he hoped would be the end of world war ii. well, that makes no sense, for a whole host of reasons, not the least of which is that there wasn't presidential immunity, there isn't presidential immunity, and he still made that decision.

leave aside that that was also the law of war. but i mean, it is just a nonsensical argument, that this is something that structurally is needed. and what it tells you is that when donald trump says i am going to be a dictator, i am going to run as if there are no other branches that should have a hold on the presidency, and then tries to walk that back to say well, i really just meant only on day one, that's not the argument he is making in court. that is not what he is saying, how he views the presidency. he has told the court how he views the presidency, in which it is above and beyond any check by the other branches. and, you have the courts saying that is not america. so again, the process is bringing out the truth of who people are. and that could be true for any

candidate. but with donald trump, you get to see, in realtime, what he is saying he is running on. >> yeah, running over on time. but dahlia, i give you 30 seconds, and the hardest question. it is our republic in a better place after this week, or too early to tell? >> too early to tell. but i think that the system is holding so far. and i think there is a good chance, ari, that the supreme court maybe does the wrong thing on the colorado case, but the right thing on immunity. and that is the split the baby resolution that i think will be in the long run, a decent resolution. >> interesting. i want to thank you, dahlia -- for joining our special. andrew, the medium is hot, the mic is hot, and we are asking you to stick around later, for something special. so thanks to both of you. we are going to get into these other and president scotus arguments and what happens

next. but first, maggot lawmakers say mike pence's decision to support the united states constitution was wrong. why are they saying that? the answer matters. we are back in just 60 seconds. , but don't forget this season's updated covid-19 shot too. here's to getting better with age. here's to beating these two every thursday. help fuel today with boost high protein, complete nutrition you need... ...without the stuff you don't. so, here's to now. boost. an alternative to pills, voltaren is a clinically proven arthritis pain relief gel, which penetrates deep to target the source of pain with nonsteroidal anti-inflammatory medicine directly at the source.

voltaren, the joy of movement. top republicans in washington say that mike pence, who was of course credited by many people, including in fairness, some conservatives and republicans at the time, when he said the constitution governs, not donald trump's demands, and certainly not the violent threats that he faced on jan six. now, well, they are saying he got it wrong. and if they get a do-over, they would do it differently. take congresswoman stefanik. she is in house leadership, she got that post after they outstayed liz cheney for standing up to the constitution. here is what she said. >> i would not have done what mike pence did. i don't think that was the right approach. i specifically stand by what i said on the house floor. and, i stand by my statement, which was that --

>> so you would have rejected the. >> there was unconstitutional overreach in states like pennsylvania. >> we need to make sure the election is constitutionally legal. it was not -- >> fact check, false. well, you heard me say republicans have every right to discuss and debate, and raise the issues they have with that election, indeed we have a top republican link official coming up later this program, and this special. that is different from saying that a sitting member of the outgoing administration should abuse power, and use -- fraud, that was the fraud, it's been indicted. elaine -- to try to override the actual rightful, lawfully submitted state electors. now, what she said itself is not criminal, because she is voicing her opinion. but if she did what she says she wanted to, if she abuse that power in office, she might become a coconspirator to that election fraud plot, if they try it again. watch the plans, because they are being discussed out in the open. or, take senator vance, who said he would have taken a different tack than pence.

>> if i had been vice president, i would have told the states like pennsylvania, georgia, and so many others, that we need to have multiple slates of electors, and i think the u.s. congress should've thought overt from there. that is the legitimate way to deal with an election that a lot of folks, including the, thing had a lot of problems in 2020. i think that is what we should have done. >> if you were watching that clip say online, on tiktok, or even on tv briefly, you might see someone in a suit, using their words, talking about multiple slates of electors, it sounds almost normal, even boring to some people. what he is doing, because he a skilled communicator, i'll give him that, is using that language to cover up for something that actually is currently and indicted, criminal conspiracy plot. the pressure campaign in the indictment of course, discusses all of this. jack smith indicted the underlying behavior, and the electors that were being falsely submitted to pence.

so it's notable, when you take all of this together, that vance and stefanik are also being floated, very seriously, as potential vp picks for donald trump. meaning a running, mate who if elected, would have pence's spot and, be in a position to do that for whatever donald trump wanted, whether that was a quote on quote illegal third turn, or just a quote on quote stealing of the race for a different republican. how seriously should we take all of this, as part of the vp stakes right now? let me bring in someone who has served as a special counsel to -- and former special prosecutor john flannery. welcome sir. >> good to be with you. >> good to have you. as i mentioned, politicians included especially members of congress, in the speech -- can say many things. even if we might find them completely objectionable, horrific, some things they say. but what they are talking about is conduct that if they did it right, they could be running mates, they could be vice presidents. now they are saying we would take what has been indicted as fraudulent electors, and use

that to overthrow the election. is that them floating, essentially, a criminal plot? >> well, it's a coup to, i suppose, if the circumstances are similar to what happened in the first effort at a coup that failed, the insurrection. and trump lost, and biden won, we could be in the same place, if we didn't prepare for it. and you asked what should we do? and in anticipation, i think we have to take it seriously. you have two people, and there are others, saying that in order to be vp, they are prepared to commit the crime that pence would not commit. and keep in mind, that you and i have been over, this but i think this is even closer to home, in article 14 section three, they took an oath. and you just heard them talk about how they did what they did that, and they are prepared to do it again, i suppose. and, they should be barred from appearing. and i think that if we get into this problem with coup to, and people are wondering about how to deal with it, we can't be

arresting them on the floor of the house or something when it goes off the rails, assuming say there is a republican control of the house, and republican control of the senate. and so what we have to do is anticipate that, and i think the way we anticipated is if we are put on notice that they are going to violate their oath, and try to overthrow the government, in a new and refined way, in their mind, and they present this clearly. and present danger to our democracy, i think we have to deal with it. and i think we have to deal with these two people, we make a mistake too often of laughing this off. and we did nothing with the senators and the members of congress when this arose, to investigate them and to crack down on them. and so now -- >> and -- yeah and senator vance, is pretending to be a sort of normal, establishment figure. he is obviously an autocratic extremist. if he is publicly actually saying, if you look at what he is saying, yes, the electoral fraud, the indicted crimes should be the fruits of overturning the election.

so, that's two crimes for one, john, because the electoral fraud is what creates the lie, the pretext. and then the overturning of the election is the second big crime, big kahuna. but he is doing it in a way, i am emphasizing this tonight, because you might see him if donald trump gets the nomination, he is one of the people you might see on the running mate stage. and he will go to wall street, and sit with the bankers, and he will say he's a smart guy, he is an ivy league guy, and he wrote a book. and you, know he is saying it is more complicated than, that because he knows how to do it. he is not selling this, i would know, to the most rabbit, proud boy militia -- he is trying to sell it to the rest of the elites, which is dangerous in a different way. stefanik is a whole evolution, so you know that she is basically completely changed her positions. and now, she is selling trump's license to kill stuff, which andrew and i were discussing earlier, take a look. >> of course, the president has presidential immunity. you can't handcuff a sitting president of the united states for future presidents to go after the. it would not allow them to do their job in their official

capacity. so that was a wrongheaded decision, i expect the supreme court will overturn that as well. >> john? >> astonishing! and, it doubles down on exactly the category we were discussion, which is that we have people in congress that are the enemy of the people, in a very real sense of democracy, and of the constitution. and of the notion that we don't have kings, you're not even supposed to accept favors from nations like great britain, that might confer honors of -- . and so, she is overthrowing the position that republicans have had until, i don't know, the last 20, years ten years. and, she is taking on the notion, we can't win elections in a democratic way, so we have to just seize it and take it. and she is transparent in her purpose. and for her to say that the supreme court, and i hate to say this, but the supreme court has no trust in america, in the sense that you can't believe that they are not going to take a hack choice, because they got there the way they did.

and i think they are intimidating the other three justices, as to how they handle, for example, barring trump from being on the ballot. and so, america is in a situation in which we have got ourselves in this by not dealing with the problems, as they arose, one by one. >> i'm only smiling, why am i smiling? well there's probably layers to it, one is how much i like looking up to you, because you're john flannery, you're one of our treasured counselors. i'm smiling because, we don't yet have the evidence to know if you are right about that, and you may or may not be, we just don't know yet, so we are watching that case. i'm smiling on that. >> are you questioning my credibility? [laughter] >> not your credibility counselor. [laughter] just that you are laying it out like, what we will see, and so we will follow that evidence, i should say, because we have been covering that case as well. but we value your views, and we don't have all -- so john, i hope you are having a great weekend, and thank you for joining us. >> thank you for allowing me to join you, i enjoyed it, thank you >> yes sir.

john flannery. as mentioned, we have a lot coming, up including someone who knows that ken starr era of special prosecutors. we've been hearing a lot about them this week. well, this person knows it inside and out, and we're going to have that as a very special interview before the hour is done. plus, the supreme court, confronting the violent part of the shameful, violent, criminal insurrection. who said that? donald trump's own lawyer, caught not so much on tape, but under oath, admitting on behalf of his client for the supreme court, that it was shameful violence. stay with us. it was shameful violence. stay with us. nutrients for immune health. and ensure complete with 30 gram. (♪♪) are you tired of clean clothes that just don't smell clean? downy unstopables in-wash scent boostersgram. keep your laundry smelling fresh waaaay longer than detergent alone. if you want laundry to smell fresh for weeks, make sure you have downy unstopables in-wash scent boosters. hold up. if asthma isn't treating you right... you might be treating it wrong. and i know, you've been going through it.

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during this big week for law and justice in america, the supreme court also heard the trump ballot pancakes, over whether a state could ban trump as an insurrectionist. the stakes are high, and here is how it played out. >> the supreme court heard arguments about whether colorado can ban republican front runner donald trump from the ballot, with the justices sounding skeptical. >> there is clearly, i think, five votes, if not nine votes, that are going to reverse this case. >> i think that the advocates for disqualification probably expected a cold reception. but this was perfectly glacial. >> justice from across the ideological spectrum, for better or worse, saying this really should be up to colorado. >> everybody's eyebrows shot up to their hairline today, center-left justice elena kagan said this. >> i think that the question that you have to confront is

why a single state should decide who gets to be president of the united states. >> the court largely avoided discussion of whether january 6th was an insurrection. >> it's not like it's every day that people try to overthrow the government with violence. >> there is a recent section three has been dormant for 150 years, and that's because we haven't seen anything like january 6th, since reconstruction. insurrection against the constitution is something extraordinary. >> this was a riot, it was not an insurrection. the events were shameful, criminal, violent, and all of those things, but it did not qualify as an insurrection as that term is used in section three. >> why would you allow someone to run for office if they are ineligible to hold that office? i don't know. >> they are creating their own special little off-ramp, they are building it out themselves. >> you sort of feel like the justices are like hurdling their bodies against the sides of the train, just being like, get me off of this train! >> get me off this train! the justices, appointed by both parties, including the new biden justice, all seeing skeptical of colorado taking

this big measure to ban trump from the ballot. i should mention it was inside the courtroom on thursday, it was fascinating. there is no blueprint from here, but we have a very special guest, an insider with top level doj experience on all of this, next. p level doj expe of this, next. marlo thomas: my father founded saint jude children's research hospital because he believed no child should die in the dawn of life. in 1984, a patient named stacy arrived, and it began her family's touching story that is still going on today. vicki: childhood cancer, it's just hard. stacey passed on christmas day of 1986.

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if congress has the ability to lift the vote by two thirds majority, then surely, it can't be right that one house of congress can do the exact same thing by a simple majority.

>> there certainly is some tension, justice kagan, as some commentators have pointed this out. >> then i must be right. [laughter] >> one of the few lighter moments and jokes during the oral arguments at the supreme court this week. that was justice kagan, who appointed by obama, who, like a republican appointee counterparts, was very skeptical of colorado's efforts to unilaterally ban trump from the ballot. we are joined now by a very special guest, who i previewed earlier in this special, robert ray was the former independent counselor in the clinton era. he replaced can star, and also defended donald trump during the first impeachment. we should note, he wrote an amicus brief in support of trump's position in this new supreme court case. welcome. >> thank you ari, it's always a pleasure to be with you. >> great to have you. one thing i've found all lawyers like is to be heading towards a win. i mentioned your amicus, because you said colorado was wrong. and it seems that you have eight, maybe nine votes agreeing with you, based on the

questioning. what did you think of what we heard in the oral argument? >> you know, it's always, of course, hazardous to guess, just based on oral argument, what the outcome will be. because i mean, every good lawyer knows, as you know, that there are times when the questioning doesn't necessarily reflect the outcome, or the thinking of the justice. but i think in this one, i mean i think i agree with some of what you had previewed about the case, that the supreme court is looking for an off ramp here, for practical reasons. i think elena kagan is right, that you can't have a system in which every state gets to decide the qualifications for office for the president of the united states. and i think, as others mentioned, i think she was one of them, as well as amy coney barrett. this just looks like a federal issue, where congress should step in first, and set the ground rules before you have states to decide on their own how to handle a presidential election, at least insofar as

it relates to something crucial of qualification for office. so that's what i think. i mean, there are other issues in the case. i think the off ramp here is likely to be that congress has to act first. but i don't think that is one that, is one that the supreme court newly has to create. i think it was created by a chief justice, not chief justice john roberts, but -- in the 18 60s, of abraham lincoln appointee. -- >> i'm going to jump in >> who as justice kavanaugh pointed, out knew about that era, and knew about what the purposes were of the 14th amendment. >> and as you said, that came up in the case. i'm only jumping in because before we move on from this, i'm curious what you thought of the ability of the trump lawyers to try to get the court thinking about this, as really a remedy issue, and not a politician issue. let's stipulate that there are people who strongly believe donald trump should lose or not run, and there are others who strongly believe robert menendez should lose or not

run. let's say they have strong views, but that the courts seem very concerned about backing that debate up to ballot eligibility, rather than other ways. the more traditional ways, shall we say. do you think the lawyering helped move the ball towards that? >> i do. i think that president trump's lawyers were very able on the point of not taking any position more than was necessary, in order to prevail. and so what i mean by that is, they were very. careful to sort of zero in on look, you sort of start with the notion that the 14th amendment, section three, deals with the ability of somebody to hold office, not what the qualifications are determined at the time of ballot eligibility. and i think that gives some pause and something for the supreme court to think about. i think the issue also about whether or not the president is an officer of the united states, at one time that issue was dismissed as an essential

position to take the one that we took on the amicus brief, which is that a close textual analysis of the constitution suggests that the president is not an officer of the united states. and i think the supreme court may have something to say about that as well. i know that a number of the justices, particularly the newest justice, justice jackson -- could see, some to be concerned about that issue. as was -- >> out jump in again. >> so you know -- >> i'll jump in to say fact check true. because i was in the room, i could see or. i mean, you can kind of glean a little more, because they don't have it on c-span, but she agreed she -- agreed with kavanaugh. she was really warm to that argument. and that argument by the way on, some may sound a little bit wonky. but the point is whether it's wonky, the point is in this, case you have five or more justices to go with it. so that's really interesting. now while i have, you i mentioned you supported the trump position in that case. but given your history, i am

curious, do you accept that generally understood law, that a former president can be prosecuted in america? >> well of course. i mean, i certainly had a hand in that. i certainly believe that bill clinton, once he left office, could be prosecuted, even though he would at that point be a former president. and it was the threat of that prosecution, and the commissioning of the grand jury, that enabled that resolution to be achieved, so that i could exercise my discretion and declined to prosecute him. but full well, knowing and i think he full well, knew that he was subject to prosecution, once he left office, just as richard nixon potentially was subject to prosecution until such time as president ford thereafter granted him a pardon. to answer your question already, the immunity case, and the argument for the presidents lawyers, the double jeopardy applies as a result of the second impeachment. that's obviously, i think we

all can recognize, a much heavier lift. i am not saying that they are necessarily wrong, i do think that they have an argument, i do think that is likely that either of the d.c. circuit -- and or the supreme court of the united states may have to reach that issue as well. because >> so let me slow you down. >> i do think it -- is >> your jumping, you're jumping to the alternate argument on double jeopardy issues. but before you jump ahead. because you know robert, you are smart, fast lawyer, so you keep it moving. let me remind viewers -- because it is all just happened thursday. here is kevin on issue. >> and just to be clear, under 23 83, you agree that someone could be prosecuted for insurrection by federal prosecutors. and if convicted could be, or shelby disqualified then from office? >> yes, but the only caveat i would add is that our client is arguing that he has presidential immunity. so, we would not concede that he could be prosecuted for what he did on january 6th -- >> understood. >> that was a very telling moment, robert.

and i want to remind everyone, and you alluded to it, that this is the supreme court kind of briefly touching on that other case, where jack smith is trying to put trump on trial. you mentioned that nixon knew, and he had to pardon, otherwise he could be prosecuted. clinton knew the same thing, and negotiated a deal not with ken starr, but with you, ken starr's replacement. and since this is one of our msnbc specials, we dug into the archives, and here we have that moment. >> the nation's interests have been served, and therefore i declined prosecution. >> some interesting to see it, now you decline prosecution, cause it was well understood that you could prosecute him once he left office. do you expect the supreme court to take this challenge by trump's lawyers? and if so, what would they do with it? >> well ari, it puts them in a very difficult position. because you know ordinarily in criminal cases, you don't have a right to interlocutory

appeal. you have to go through a trial first, and suffer conviction. and then you can appeal that conviction, and raise all of the issues that come up during, and including whether you had a valid motion to dismiss the indictment. this is a little different, because this is an immunity, and potentially a double jeopardy argument, which is one of the few exceptions to the general rule that interlocutory appeals in criminal cases are not permitted. so, the supreme court has got to consider that it thinks it's an important issue, whether to take the case now, and really shouldn't allow the case to go forward, unless it thinks that the argument is completely frivolous. now in the d.c. circuit, it was three to nothing, including an appointee of a republican administration. so it's not like the colorado ballot case, where the lower court of the colorado supreme court, the issue was split 4 to 3. there was unanimity in the d.c. circuit. so it will be interesting to see on monday what president trump's lawyers decide to do.

are they going to take the case first to the full court, and -- before the d.c. circuit? or are they going to petition directly to the supreme court from the supreme court's review? i don't know, and i think it is kind of a toss-up, as to whether the supreme court takes the case. and if they do take the case, i will say that it is much heavier lift than the colorado ballot case. >> yeah. >> for the people on both -- sides >> really interesting, i'm glad you could come back. and be here for the special, and get your very historically- y -- perspective. thank you robert. >> thanks, i was glad you are in the courtroom, it was good day. >> interesting, it was very interesting. yes sir, we appreciate robert ray. and before we go, we've got to bring back in our doj -- andrew weissmann. we can learn a lot from all of the people with all of the experience. i did want to get your reaction to anything you just heard. >> well, i am very interested in what is going to happen on monday. because that is the deadline by which, if donald trump does not

indicate to the d.c. circuit that he is filing for -- that is filing an appeal in the supreme court, the mandate that is the greenlight, essentially, or the football, is going to be handed off and back to judge chutkan. so the one area where i slightly disagree with mr. wray, who i greatly respect, is that i think that that means that donald trump, really by monday, is going to see the stay, in the supreme court. and, the big open issue is what the supreme court will do. my own view is that even if it wants to put its -- premature on this issue, i don't think it would be to overrule the d.c. circuit, i think it will be to affirm. it >> to embrace it? >> yeah. >> so what did you think, andrew, of hearing a trump lawyer who isn't impeachment lawyer, as well as former ten star successor, saying of

course you could prosecute a former president? >> yeah well, you know who also seems to have said exactly that? brett kavanaugh, because brett kavanaugh also, who is now on the supreme court obviously, was part of that same group of special counsel, and obviously thought that bill clinton went out of office, would be able to be prosecuted for crimes. let's just, let's just call it for what it is. the only person who is really saying that is somebody who is currently indicted, trying to figure out how -- >> exactly. i >> mean, this has failed in the district court, it has failed in the court of appeals, this supreme court if it takes, it will fail there. it is really, i mean it is a strategy that the defense counsel has, which is delay. that is really the purpose, it's not really the merits of the case. >> yeah, andrew weissmann, on more than one topic on this special historic week, thank

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it has been an historic and busy week, and i'm glad you spent some time with us on this special. if you have ideas for, me legal questions, suggestions for guests, i will tell you i engage with a lot of msnbc viewers, i -- guess we can always click connect me online and ari melber.com. you just click my name, ari melber.com. and you can email me, sent him for my email newsletter, or go to at ari melber with any

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