he was brought in to jack smith's team because he is considered one of the foremost i didn't mean law perfect ises in country and he is a familiar presence at the supreme court lectern. smith needed anyone to make thoas arguments it was going to be mike dreeben. >> was jack smith there today? >> he was at the counsel table today. >> you said some justices appeared open to this idea, the argument being made by the former president's legal team. which justices? >> there were a few, actually. two of trump's own appointees seemed more receptive to the arguments than perhaps anyone else on the court. particularly justice brett kavanaugh was very concerned about the idea of letting criminal prosecutions go forward over actions taken by the president. he continually floated this idea, this rule that would say that unless a statute specifically mentions the president, that then it can't be applied against hem. that is a slight variation on the whole question of immunity but it would get their via a different rout and would essentially mean the end of jack smith's case. neil gorsuch moated the

jack smith's point is, even if this were true, which it's not, none of it happened. >> it's really incrediblet of trouble to go through this step by step, saying, not only has trump never said that he designated any of these records as personal, he's gone to a lot of trouble to craft an argument that lets them avoid saying that. he's made this argument that any time he takes stuff out of the white house and doesn't take it to the national archives, but takes it someplace else, that means that it's automatically personal, not a presidential record. and smith really makes mincemeat of this argument, pointing out that the records, the classified documents found at mar-a-lago, our intelligence community documents created by the intelligence community, shown to trump in the course of his official work as the president of the united states. if anything is a presidential record, it's these documents. the government is dead serious here, and neil knows this better than i do. when i was the appellate chief in the northern district of alabama, neil was, for a part of that time the acting solicitor gene

and so, that is what the dilemma is for jack smith tonight. yes, he won this, you know, he won this formally, but i guarantee you, there is no one on the special counsel's office that is celebrating tonight. >> yeah, and i would even lower the bar to anyone that has spent 20 minutes reading the sp internet on the presidential records act and where it comes from and why it exists. and i just want to read smith in this filing, because he makes this point clear and then mary, ask about what his options are. you know, his office right, if the court concludes that they have carte blanche to remove any documents than any documents so removed must be treated as a personal record under the pra as an unreviewable matter of law, and that, also as a matter of law s former president is forever authorized to possess such a document regardless of how highly classified it may be and how it is stored. that would constitute a court clearly erroneous jury instruction that entails a high probability of failure a prosecution and the government must be provided wi

one is the argument that jack smith makes about the presidential records act.ne is this idea that the judge seems to be considering giving you -- that would be to the wall. the president can do x, y, z. it is not a vague law about the presidential records act. >> that is exactly right. what smith did was take both of your points and basically say in legal terms, you know, a whole bunch of stuff. it all boils down to, look, judge cannon. we've had enough already. basically saying to her, you are getting this totally wrong. you are delaying things and risking a double jeopardy acquittal. as joyce says, that we are going to mandamus you. which to say, you are so wrong, we will take this to an immediate appeal, and seeing the removal as a judge in the case. when i ran the general office, which is the office that controls all federal appeals from across the country. they will come to me and asked for that. saying, look, this judge is totally out of line. we have to file this. be patient, let the system play out. when you have a judge who is repeatedly -- the way thi

he was brought in to jack smith's team because he is considered one of the foremost i didn't mean law perfect ises in country and he is a familiar presence at the supreme court lectern. smith needed anyone to make thoas arguments it was going to be mike dreeben. >> was jack smith there today? >> he was at the counsel table today. >> you said some justices appeared open to this idea, the argument being made by the former president's legal team. which justices? >> there were a few, actually. two of trump's own appointees seemed more receptive to the arguments than perhaps anyone else on the court. particularly justice brett kavanaugh was very concerned about the idea of letting criminal prosecutions go forward over actions taken by the president. he continually floated this idea, this rule that would s that unless a statute specifically mentions the president, that then it can't be applied against hem. that is a slight variation on the whole question of immunity but it would get their via a different rout and would essentially mean the end of jack smith's case. neil gorsuch moated the p

jack smith's brief to the supreme court attacks every immunity claim donald trump makes.sident's constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them. petitioners suggest that unless a criminal statute expressly names the president, the statute does not apply. that radical suggestion, which would free the president from virtually all criminal law, even crimes such as bribery, murder, treason, and sedition, is unfounded. jack smith's brief stressed that donald trump is the only president in history who believes in presidential immunity. jack smith wrote, the framers never endorsed criminal immunity for a former president , and all presidents from the founding to the modern era have known that after leaving office, they faced potential criminal liability for official acts. the closest historical analog as president nixon's official conduct in watergate, and his acceptance of a pardon implied his and president ford's recognition that a former president was subject to prosecution. the absence of any prosecutions

this is why jack smith is concerned, although he one in the sense that the court did not dismiss chargesthink smith feels the same way, i'm worried about this going to a jury because it is confusing, complicated, technical and prosecutors always want to tell simple straightforward story and dependence want to look things up as much as i think it is a minute, it could confuse a jury in a way that would worry the prosecutor hush money case, it's all confusing to a jury. sensor for attacking canon, what you think of what they just said there? >> i agree to a large extent is a good strategy behind straightforward presentation for what i disagree with his the idea that there is a clear answer but records president is entitled to. a president can declassify classified records, no particular procedure have to go down to do that so there's a lot of problems in this case and that is the least of it. >> if smith wins, it would overturn power by the executive branch was never seen in u.s. history. thank you so much, we appreciate you. coming up, can 20 u.s. states stop the biden white house in its

i do think that you may see more rulings that go jack smith's way. pro-trump as we've seen before, but i don't know that he's going to pull the trigger as fast as things might suggest. >> jill, it's not just from helping delay the trial, judge cannon has been slow walking her decisions in this case. what's your gut on how she will rule in his latest delay motion, and is it a done deal that there's no way this trial concludes before the election? >> the answer to your first question is, it is impossible to detect predict what judge cannon will do. i really think she has acted in ways, this is not an ad hominem attack this is based on her conduct. as a result of her conduct, i think that jack smith has no choice but to either mandamus her or make a motion in limine to prevent any evidence about the presidential records act to be introduced. that would limit the evidence, because it has no relevance. the big fear is that if he doesn't do something like that, and doesn't get it decided by the 11th circuit, her opinion said it's not appropriate at the pre

jack smith was very clear about this. jack smith said, we will lose.judicing the prosecution, because you are giving the defense an opportunity to argue a law that doesn't apply here. the jury will be compelled to find former president trump not guilty. that seems to me in a series of options, this motion, the best option. judge cannon made it clear so far that she thinks in some way this defense applies. she would likely rule that that defense applies, and then jack smith could take it up on appeal. as you know, all of this is still a victory for former president trump if he can continue to delay this trial. as you pointed out, it seems very, very unlikely that we will have a trial before the november election. >> on each of these instances, instead of just asking for a brief, she's asking for hearings. that further delays. she's scheduling hearings. in many cases, some of the lawyers say that's unnecessary, the lawyers in jack smith's office. in terms of doing something with the 11th circuit, you are practicing -- you are familiar with the circuit do

remember, she is the one who asked jack smith to opine on pr she on her own sent this bizarre two different jury instructions to both sides and said comment on them please. so smith did what he was told. he commented on them and said what every lawyer believes which is the presidential records act has nothing to do with it and then she calls it unprecedented and unjust. at this point, i have certainly seen enough. my guess is the prosecution has seen enough. maybe they will check some boxes and go with the motion of limine, but one way or another, this is going to the 11th circuit. >> what about that? is one route more likely than the other? >> i completely agree with neil that asking her to do what i think she must be asked to do, namely, take this off the table, decide now that the presidential records act has nothing to do with it. though it is futile, it is important to check a box. despite the fact that you know what is going to happen. the reason it is important is that i know there are some judges on the 11th circuit who will say she has not made a clear enough error. the error she m

has the authority to bring charges at all because jack smith's office is unconstitutional. by the president, never confirmed by the senate, never properly pinted as a federal -- appointed as a federal officer. what statute exists letting the u.s. attorney general name anyone a special counsel? if. >> none. if they're not confirmed by the senate, and that's the point. remember that president obama appointed durham to, as a potential counsel to look into the cia destruction tapes case. it was barr that appointed durham to look into the russian hoax. it was the biden who appointed rob hur, the u.s. attorney for maryland, to look into the latest efforts. ball of them were -- but all of them, durham and rob hur, were nominated by presidents and cop firmed by senates. and -- confirmed by senates. and, you know, the pesky old appointments clause in the constitution still matters. so what justice thomas was referring to was in a friend to the court brief by former attorney general ed meese and michael mukasey who said, look, the appointments clause matters. you can't just pick sal

maybe they can't do that one, right, i will say jack smith's filings never disappoint. always find his filings to be very plain english and ratable and he's straight to the point. >> they are the best legal reading you could ask for. the clarity, the simplicity of concept, that is constantly being delivered and then, the huge import of it all, every time you read one, you know you are holding history in your hands. >> exactly. >>> for donald trump's entire life, before becoming a politician, he was a strong, strong supporter of abortion, verging on an enthusiast. he was the kind of guy who would say, what are we going to do about this, when a woman told him he impregnated her. he told that story in 2004. on howard stern's radio show. he said you know all the time it was like excuse me, what happened? and i said, well, what are we going to do about this? she said are you serious, it's the most beautiful day of our lives, i said, oh great. and now, donald trump's most ignored child, tiffany trump, has that story of her birth, that lives publicly with her, for her entire l

>> which is exactly what jack smith wanted. he said just make a decision. at had, we want a pretrial ruling. in fact, the rules say they're entitled to a pretrial ruling. just decide one way or the other for good. >> not halfway. >> not halfway, which is deciding pretrial does it apply. jack smith is saying who cares about that, i care about what you're going to say at trial. why? the big sort of thing people need to understand to be in the weeds for a moment, once the jury is sworn, double jeopardy attaches, meaning if the jury acquits or if the judge acquits, it's over. >> it's finito. >> especially if the judge has the power once the jury is sworn to say, you know what, i'm entering a judgment of acquittal. and it can be on a cockamamie idea like the presidential records act. so jack smith is saying that i need a decision that it doesn't apply not just pretrial, because guess what, nobody is deciding kbk about guilt or innocence pretrial. that's going to happen at the trial, so i need you to know what your view is at the trial. why is she not doing it be

it won't be something i'd be shocked if there's a mandamus, which is the big threat coming from jack smith, that some higher court is going to say, how dare you even contemplate different jury instructions and jack wants so we've got to watch to see if there's a stay, if there's an appeal, if there's mandamus but the idea that the pra is dead is, i think a premature. >> many of these things unsettled. and so we will see where they go. jim trustee really appreciate it. thank you so much. thank you. i don't >> to turn now to our cnn senior legal analyst and former assistant us attorney elie honig elie, you just heard what jim trust you said. what is your take on this so briana, i respect jim. we were colleagues at doj. i disagree on the presidential records act itself as a defense in this case for two main reasons. the first reason is the facts. there is zero evidence from donald trump, from anyone around him that he ever actually designated these records as personal and i think notably, none of his lawyers have ever represented to a court that he actually designated these documents as perso

here's pierre thomas. >> reporter: tonight, in an extraordinary filing, special counsel jack smith increasingly frustrated with the florida judge's handling of the classified documents case, urging her to move the trial along. smith bluntly telling judge aileen cannon -- who was appointed by donald trump -- that her decision to even consider trump's claim that he could just declare classified documents to be his personal papers was "fundamentally flawed." smith's unusually critical language came in response to judge cannon's suggestion that she might instruct the jury to take into account trump's claims that the classified documents were his personal property. smith writing that such a "legal premise is wrong" and "would distort the trial." and he's urging judge cannon to explain her position as soon as possible, making it clear he is ready to appeal to a higher court. critics of the judge wonder if she's delaying on purpose to help donald trump. and example of just how long some of these decisions are taking -- there was a hearing 34 days ago to discuss when the trial should begin. david, judg

cnn's evan perez has the latest so jack smith criticize former president trump's immunity argument is novel and sweeping. what else does he say in this filing? >> that's right, anderson, jack smith says that the president's the former president's claim to have this broad immunity has no basis in the constitution in certainly it doesn't have any basis in the nation's history and in the principle that no one, including precedence is above the law region, just part of what this 60 plus page filing from the special counsel also says. they say he wrote he says the president's constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them. he goes on to say, the framers never endorsed criminal immunity for a former president and all presidents from the founding two the modern era have known that after leading, leaving office, they faced potential criminal liability for official acts. now, former president trump anderson has claimed that if this prosecution is allowed to go forward, this is going to impair the presidency forever, includi

could be considered personal in jury instructions which led to a sharp rebuke from special counsel jack smith's team. he called the idea, quote, fundamentally flawed, in her ruling today cannon fires back saying that smith's demand to settle the issue of whether the documents could be considered personal once and for all is,

. >>> special counsel jack smith and donald trump have until midnight tonight to respond to an order from judge aileen cannon with their proposed jury instructions in the criminal case against donald trump for his alleged illegal retention of classified documents and his obstruction of efforts by the government to get them back. judge cannon has already said she's considering giving an instruction to jurors that is essentially donald trump's defense in the case, a president has sole authority under the presidential records act to categorize records as personal or presidential during his or her presidency. judge cannon has yet to rule on new proposed dates for the trial to begin, fueling concerns that jack smith's proposed july start might not happen. in a paperless order today, judge cannon ordered donald trump and his co-defendants in the documents case to file a speedy trial report by friday, saying, the report shall include defendants positions on all excludable time from the speedy trial. and expressly indicate any defendants current assertion or waiver of speedy trial rights, wi

neither court nor jury can make or review such a category decision they have to abide by the law but jack smithd follow the law? >> i don't understand what jack this theory is and i think that's part of what judge can was trying to get articulate, tell me what your theory is, tell me so i can understand how it goes forward and it seems schizophrenic because you have jack smith's theory and wait a second, isn't president biden is white house counsel. the opposite? don't we know that it's okay to keep this? if you designate it as your own, isn't that what bill clinton did with classified tapes? he kept in his sock drawer. reagan kept his diaries so it's a very bizarre ahistorical approach by jack smith. >> it's also reasonable doubt. he's going to have to surpass jack smith reasonable doubt standard, a big federal law traversing i'm following, the judge said the jury has to abide by the law and all of presidential records act. what you make of the double standard jack smith attacks judge cannon as judges put gag orders on trump in three cases including trump cosmic trial set to start april 5, gop

he put himself on that team to go after trump and now on the jack smith and arguing the case for jack smith today. very interesting. >> dana: we are going to have a chance at 10:00 a.m. to hear the justices and the argument. you will be inside. so you know the justices well and pay attention to a lot of this. what are you listening for today? is there anyone in particular you are expecting to weigh in heavily? >> you know i'll be keeping an eye on the chief justice. he tries to guide the court with a narrow hand in many cases, incrementally. if they find there is some scope of immunity for these particular actions where do they set the boundaries? i think listening to the questions about whether they are open to that issue of immunity and how far it might go. if we see who is trying to probe what the outer boundaries of that would be, these arguments are set for an hour but nothing else on the docket today. i expect we go well beyond that. this is a moment in history for the justices to decide. we don't know what the vote was to take up the case, who voted yes or no or who wants to he

what i meant was to just first amendment, i disagree with what jack smith is saying. i disagree with the judge's ruling. a lot of us have strong views of the supreme court in its rulings. that is fine. what is not is obviously resorting to violence and it has been completely normalized. i do think the fbi has its hands full dealing with this. and making sure just one thing i would note is the attacks on judges. the bipartisan attacks. not just words. but deeds. that is the kind of thing that has to be much more front page news and like the january 6th investigation. it needs to be something that people take seriously and call out politicians who don't say you have to stop this. >> i do want to talk about the attacks from the left. we are talking about a candidate for president. >> absolutely. >> who is directly fomenting violence against everyone in the judicial branch. in his expanded gag order. for history, about this moment, and the threats these judges are withstanding, he says this pattern of attacking family members of presiding jurors, serves no legitimate purp

and jack smith addresses this writing. the absence of any prosecutions of former president's until this case does not reflect the understanding that presidents are immune from criminal liability. and instead underscores the unprecedented nature of petitioners alleged conduct. these are essentially saying there's just hasn't been a former president like trump exactly and the fact that no other president has tried to overturn an election in which he lost doesn't mean that you get a free pass when you actually do try to overturn the i mean, the idea that donald trump is different, that this conduct is different from any other president, former president is at the heart of this case. and the idea that because trump has done something so novel and so awful that he gets away with it is something that i don't think the supreme court is really going to in commissioning your former january 6 colleague, liz cheney said, are your generous six committee colleague said recently, that is very important members of the supreme court >> re

so i want to read something else from jack smith it's filing he wrote federal criminal law applies. the president petitioner suggested unless a criminal statute expressly names the president, the statute does not apply that radical suggestion in which would free the president from virtually all criminal law, even crimes such as bribery, murder, treasonous addition, is unfounded. do you think that's enough for this report? >> i think the bras god trump claim that he is absolutely immune from all criminal charges relating to when he was president. that's never going to win that. that is not a tenable argument and i think jack smith's argument there makes it makes it pretty clear. the problem for the government, the problem for the justice department jack smith here is this idea that there may be some areas of presidential conduct that are in fact off limit and the district court has to have a hearing to decide whether this case implicates that that would delay this trial well into next year, and you you could tell in reading the government's brief that they're concerned about that the

jack smith is saying, i need a decision that it doesn't apply.rial because, no one is deciding anything about guilt or innocence pretrial. that's going to happen at the trial, i need to know what your view is at the trial. why is she not doing it? as jack smith said, with that ruling, if i disagree with it i have appellate rights. i can go to the 11th circuit. she is doing whatever she can, in my view, to prevent an appeal. >> there is without getting into all the excerpts, it's a short filing, but, she uses some very strong language, she calls jack smith's position unjust. she basically dirty harry zit and is like, go ahead, make my day if you want to go to the 11th circuit and appeal this. what do you make of that posture in the context of all of this? >> you have to remember, she has been reversed twice by the 11th circuit in scathing language. she really hasn't acquitted herself well, whether you think that it's from an experience, whether you think it's because she's partisan or both. my opinion is it's both. that she is both an experienced,

i think that gives us a little insight, but it's clear, the gloves are off, jack smith will not standfor it, and he is going to go hard and fast after making sure the rule of law applies to donald trump as it should. >> so what are smith's options now, lisa? if he would take it to this point, if he would say i'm going to essentially appeal this, right, and if she's found not to be right in this by the higher court, then is there a case to get her taken off? i mean, what happens? >> i think there is. first of all, let's go to your initial question, which is what are their options in the special counsel's office. there has to be some sort of decision to appeal in the first instance. so they're asking very clearly, make a prompt decision here because, if you decide that this presidential records act has a role in this trial, we want to get this in front of an appeals panel right away before jeopardy attaches. that's a fancy way of saying the minute the jury is seated here, we don't get a second bite at this apple. we need to appeal this now, and to your point, chris, will they also ask f

so i think what you're seeing here from jack smith and his team are a number of different concessions designed to preserve their case even if a majority of this court or a plurality of this court decide that former president are entitled to some form of presidential immunity. >> thank you for breaking that down as you did. and i also, as a nonlawyer, it struck me the emphasis, as you just reference to, as a private citizen. it really goes into that, not avenue ask, his official acts. sherilyn, i know you talked about immunity in this case so much that it is important to remind people why is that differentiation is important and also what stuck out to you in the portions of this you have been able to read? >> yeah, thanks, jen. trump has always wanted to, he wants to be teflon when it comes to the law. he does not want to apply to him and he has always had a conception of his role as the president that it somehow constitutes a lifelong immunity for accountability and for that reason, i think lisa did a great job of describing the filing today. i found this incredibly depressing and the

the whole thing that jack smith had asked her to do is resolve the legal question.al question is does the presidential records act give mr. trump a defense to the charges against him because of judge cannon's belief that if the president while president designates things as personal, that means his position of it is authorized. if you have authorized possession, that means you don't have unauthorized possession, that means you can't be guilty of retaining unauthorized retention of classified information. jack smith's point is presidential records act has nothing to do with these charges. this is the point that she is refusing to the site. the reason why that is so important is because if she leaves that to the trial and then the science this could be a defense, it could be, as you indicated, jeopardy will have attached, she could grant a motion for judgment of acquittal on her own or she could send an erroneous instruction to the jury, which would essentially be a directed verdict for mr. trump. that is what i think it is incumbent upon jack smith to use whatever av

joyce, assess the strength of jack smith's filing for us. >> so jack smith's filing i think is technicallyed all the bases. his main argument is, look, trump's not entitled to immunity. but then he tells the court if you find that perhaps there's some small area where presidents do get immunity, it's not this case. this is a case about trying to steal an election. you don't need to go any further looking at where there might be exceptions because this case is not it. >> denver, you were on the investigative team looking at what happened on january 6th. what official acts did you find in that investigation that trump was engaged in on january 6th? >> that's what was so tough about it, great to be here, by the way. there was also one or two layers between the white house and what was going on on the ground. however, we did find direct contact on text messages between the oath keepers and donald trump's people who work for donald trump. we also found phone numbers going back and forth with the planners and also one that was very questionable that came from the white house switchboard, through

next. >>> special counsel jack smith is asking the supreme court to reject donald trump's claim for immunityage brief laying out an argument that is been successful at both the district court level and before the three-judge panel at the d.c. circuit that the d.c. president does not have immunity for acts committed during his presidency. i really like this one. the president's constitutional duty to take care of the laws be faithfully executed does not entail a general right to violate them. does not reflect the understanding the presidents are immune from current liability, and instead underscores the unprecedented nature of petitioner's alleged conduct. and he argues a bedrock principle of our constitutional order is that no person is above the law, including the president. this all comes in advance of oral argument scheduled for april 25th. while the eagle issues here are not complex, this is about whether the supreme court will act swiftly enough for trump to face trial before the election or whether they will basically bail them out by delaying. and second, the jack smith and his team b

but jack smith is upset with going to trial before the election. he wants a federal conviction and why he was brought in on the case. the washington, d.c. case is going nowhere, it's up in the supreme court. what you have here, he is attacking the judge and cnn expert has to follow motion to disqualify, has to be appealed. that is going nowhere. this is nothing more than a temper tantrum and jack smith all his marbles in invested in this case. >> harris: look, having children they are all grown up now and teenagers, when they were little somebody usually had a temper tantrum when something didn't go their way or they lost something behind the couch. so what is he missing? what is jack smith really riled up about? >> harris, he is under tremendous pressure. let's be clear, i apologize. we talk about this all the time. it is politically motivated. brought in on these two cases for one purpose, get a conviction against president trump before november 2024. and that's why he is under pressure. and that's why he wants a trial. that's why he wants jury i

again, jag -- jack smith is holding a full house here.has the overwhelming weight of the authority with respect to the law. he has very strong facts. while frustrating and while tedious and while protracted, i think he stays the course. he makes his arguments, he pushes for rulings. a judge is -- i won't go as far as to say incompetence, but her uncertainty is not, again, a reason to recuse. so i don't really see a basis to kick her off the case unless and until she indicates some sort of bias that prevents her from being impartial. so being bad or slow isn't enough of a reason to get her off the case. >> and tim, what do you make of the escalating sharpness of her language? let's just study what we do know about her filings. >> yeah. i think she's frustrated. i think he's frustrated. i think that the public criticism of one has prompted sharper language from the other. you know, the pleading that was filed tuesday night was pretty sharp. it basically says you're wrong, your honor, that's rare in litigation. she fires back and calls his r

and we have new video of how it all played out >> breaking overnight signs of special counsel jack smith has had enough of the judge overseeing the mar-a-lago documents case, a scathing filing. it could be seen as a first step to try to get her removed from the case. chaos swirling around donald trump social media company, a new lawsuit against two former apprentice contestants connected the truth social. zara is out today. i'm john berman i'm going with kate baldwin, cnn news central starts right now >> let's get straight to the breaking news overnight, 75 people trapped inside the tunnels. they have now just been rescued after earthquake hits taiwan. the strongest earthquake to hit taiwan in 25 years. we're going to show you, follow this video, showing a cloud of dust. you can see just settling in as the earthquake caused a massive landslide, the epicenter of the 7.4 magnitude quake. >> it was a >> mountainous area on the east coast of the island. so far, the death toll stands at, at least nine more than 800 people also have been wounded, were staying very closely to try to attack, tra

number on your screen, or visit coventrydirect.com. >>> very, very late last night special counsel jack smith filed a scathing reluke of judge aileen cannon, the trump appointed federal judge in florida overseeing the former president's criminal prosecution over classified documents. in a filing smith excoriated cannon for entertaining a totallyimatorless claim, one that could lead to either directly a dismissal of the case or acquittal for trump. smith's frustration so palpable he suggested he'll appeal to a higher court on the matter whenever judge cannon actually makes a higher decision, which could take a while. since judge cannon has filed this case she's amassed a pile of motions all of which he's yet to rule on. more than two months ago on january 16th trump's lawyers asked cannon to hand over additional materials they believe would demonstrate the prosecution's ties to the intelligence community. judge cannon has yet to rule on that. on february 8th, that's also nearly two months ago, jack smith's team begged judge cannon to reconsider her decision to release un-redacted filings to th

on tuesday got special counsel jack smith issued a sharply worded filing wording that the, " flawed premisetructions could potentially jeopardize the government about this case. " smith also conveyed that if judge cannon does in fact rule against federal prosecutors, he is likely to appeal it to the 11th circuit, a higher court. it would not be the first time that smith has appealed one of judge cannon's ruling to the 11th circuit. every reversed her decisions on two occasions. first, after she blocked the government from accessing the documents seized from mar-a-lago . and then, when it reversed her decision to appoint a special master to oversee the review of the documents. this past thursday, judge cannon responded refusing to finalize jury instructions before the case goes to trial, which was initially scheduled for may 20th. what is a matter? it matters because once a jury is sworn in and seated, double jeopardy attaches. meaning, in the event former president trump is acquitted, the government cannot appeal, even if the judge made an error because the defendant, not -- cannot be tried

an update on how jack smith is fighting back. stay with us. jack smith is fighting back.? feel more confident with stock ratings from j.p. morgan analysts in the chase app. when you've got a decision to make... the answer is j.p. morgan wealth management. - so this is pickleball? - pickle! ah, these guys are intense. with e*trade from morgan stanley, we're ready for whatever gets served up. dude, you gotta work on your trash talk. i'd rather work on saving for retirement. or college, since you like to get schooled. that's a pretty good burn, right? a mystery! jessie loves playing detective. but the real mystery was her irritated skin. so, we switched to tide pods free & gentle. it cleans better, and doesn't leave behind irritating residues. and it's gentle on her skin. tide free & gentle is epa safer choice certified. it's got to be tide. hey everybody, w. kamau bell here. they say that america is the land of the free. but right now, people in the u.s. are seeing their freedoms taken away at an alarming rate. freedoms some of us take for granted. the right to vote. equal

so, what jack smith is saying, it is time. you have got to make a decision, you need to make a decision probably, well in advance of trials so that if you get it is wrong again, we need to take this up to the 11th circuit. >> that is an important point. the interpretation is ludicrous and immaterial to law that controls the espionage act, this is national defense information plain as day, and had it, so there you go. we asked for it back and you did not give it to us. let's talk about the new york case, harry, i want to come back to you. judge rochon doing the opposite of judge cannon in this sense, which is ruling on this sort of immunity hail mary. he basically said that he waited too long to raise the issue that was so clearly last-minute . he denied trump's motion to deny the trial start date until the "rules on this claim in the federal case in washington, d.c. all of that aims to me, april 15th, as of now, is that your understanding? >> exactly right. and it is more than that. remember, this is what he was able to levera

and so jack smith is frustrated saying that's not the law here. and why are we instruct? why are you proposing that we give an unlawful instruction to the jury? and so he's asking her to rule one way or the other because he's clearly going to he's setting this up for an appeal and i think although he doesn't say it in his motion, his frustration indicates to me that he is getting ready to ask that she be recused from this case. this is just one of a series of strange unlawful whether it's orders or decisions that she has made that is made legal analysts across the country scratch their heads because they make no sense. they don't look anything like what people are used to or what's in the law. >> and >> so she's an experienced she is not a judge who's been around for a long time and i think her inexperience is really showing because she's just doing things that have no basis in the law and play this play that out for us. if he's setting up for an appeal, if this simmering frustration is seen and you see that kind of potentially leading for him, asking for her to be recuse

it is so clear that jack smith has absolutely had it. it seems like he is trying to protect his case, here. he sees that it's in danger and right now, highly unlikely will go to trial before this election. what do you think of smith's move, and could backfire on him? >> it's a good move. he has faced the reality that as long as this case is with this judge will probably never go to trial, it definitely isn't going to trial before election day. this was, it's also easy because jack smith will never have to appear before this judge again. it's unheard of for a lawyer, particularly a prosecutor, to in writing accuse the judge of basically not knowing the law, and being fundamentally flawed in her legal premise. he's probably correct, because everyone who has reviewed the willful retention of national defense information, which 32 counts is what donald trump is charged with, everyone, any legal scholar, any legal practitioner will tell you the presidential records act has absolutely nothing to do with it. it is not a defense. that is a civil

that is part of why jack smith is referencing that. that seems to resonate, certainly with the supreme court in the section 3 case. >> you do an effective roundup. you bring us back down to planet earth. >> i am a debbie downer. >> straight talker. -- we need to be aware of things , all super important. let me ask you, lisa. there is a lot of history in here. we talked about nixon a bit. and the president that is not a precedent. he also talked about what the -- the framers supply no support -- how is that argument? you think as a saint part -- person the argument would be -- how do you think the argument will plate with the conservative justices? that this is not what the framers intended? how likely is that to be something we here? >> i agree with sherrilyn, this is a court that fantasizes history. and the absence of history was one way in which they justified what textually was unjustifiable. the provision of the constitution at issue there interpretively should have led to a different result. and yet, the court new what result they

liberty. ♪ >>> very, very late last night special counsel jack smith filed a scathing rebuke of judgeinted judge in florida overseeing the president's criminal prosecution over classified documents. in the filing, smith -- cannon for a meritless claim, one that could lead directly to either a dismissal of the case or an acquittal for trump. smith's frustration here was so palpable that it suggested he may ultimately appeal to a higher court on the matter whenever judge cannon makes an actual decision. which could take a while. since judge cannon joined this case, she has amassed a pile of motions, all of which she has yet eto rule on. it's a sort of treasure-trove of potentially controversial calls. more than two months ago on january 16th, trump's lawyers asked cannon to force prosecutors to hand over additional materials they believe would demonstrate the prosecution's ties to the intelligence community. judge cannon has yet to rule on that. on february 8th, that's also nearly two months ago, jack smith's team begged judge cannon to reconsider her decision to release unredacted fili

>> i think jack smith is -- in the first instance what jack smith wants is what jessica said. he wants the court to find there is no immunity, even for official acts, in the criminal domain. there might be some immunity at the outer perimeter of official acts where civil liability is concerned, but he would love an up or down ruling that says no immunity, even for official acts. that's where judge chutkan ruled. that's what the d.c. circuit ruled. >> but people are arguing these aren't official acts. these are outside his role as president. >> what you see on the last three pages on the brief is jack smith laying out his contingency plan. if the court finds there is some degree of official actions, that can be immune, here's my plan for how i can get this case tried and fast. >> all right, thank you so much, ladies. good to have you both. lisa rubin, jessica roth. >>> now to the growing fallout over trump's latest comments on abortion. the former president said he was proud to have ended roe v. wade, but that abortion restrictions should be left up to the states. and that's ge

january 6th case, the other case being brought by jack smith. if he does that, we all know that trump would rather have this case go to trial than the d.c. case because a conviction there is far more likely. >> i think that is right. hugo lowell of the guardian. thank you for joining us. katie fan, fantastic to have you here. you have to watch "the katie fenn show" every saturday on noon here right on msnbc especially if you want more nerdy text messages. >>> 31 people in the u.s. will have front-row tickets to a pretty impressive ticket to mother nature. the preparations for monday's a solar eclipse with the commercial from 1999 that pretty much says it all. >> good morning, children. >> good morning, miss. >> full moon. >> full moon. >> half-moon. >> hoffman. >> total eclipse. nurtec odt may help. it's the only medication that can treat a migraine when it strikes and prevent migraine attacks. treat and prevent, all in one. don't take if allergic to nurtec. allergic reactions can occur, even days after using. most common side effects were nause

could special counsel jack smith be on his way to appealing for the ruble of judge aileen cannon. his team filed a sport motion that had something of a threat, and a lot about what they worry judge cannon might be trying to do. we'll explain the fears and the threat in a moment. first, on the filing itself, prosecutors called judge cannon's request for jury instructions based on the presidential records act quote, fundamentally flowed. the pra is not at issue, his office said, and shouldn't even be included in the trial, let alone in the guidance for what the jury should deliberate on. quote, it would be pure fiction to suggest that highly classified documents created by members of the intelligence and military presented to the president of the united states during his term in office were purely private. and that trump himself didn't even raise this defense until more than a year after he left the white house. decide now and give us enough time to appeal. smith's team is pleading. after all, the presidential records act isn't even what prosecutors have charged him with violating.

but that is what special counsel jack smith asked for. he actually said the justices should expedite this case so they can make a decision by the end of the term, so that is what they are going to do. whether or not this is going to go past too long before intervention, it will happen in november, that will be up to how the court writes it. there will still be decisions left for lower courts to resolve. norah? >> norah: all right, really interesting. jan crawford, thank you. instead of being at those supreme court hearings, donald trump was in a courthouse in lower manhattan for his so-called hush money trial. that's where we find cbs's robert costa. good evening, robert. >> reporter: good evening, norah. former president donald trump isn't attacking david pecker, the former publisher of the "national enquirer," just yet, but pecker's testimony today here in lower manhattan the direct and trump, offering new details about an alleged catch and kill operation to influence the 2016 election. this morning, former president trump weighed in on

jack smith filed a scathing review of judge aileen cannon who is overseeing the criminal prosecutiontrump's classified documents. he excoriated cannon that could lead to a dismissal of the case or acquittal of trump. his frustration was so palpable, it suggested he might appeal to a higher court on the matter when ever she makes an actual decision. which could take a while. since judge cannon joined this case, she has amassed a pile of motions. all of which she has yet to rule on. it is a sort of treasure-trove of potentially controversial calls. more than two months ago on january 16th, trump's lawyers asked cannon to force prosecutors to hand over additional materials they believe would demonstrate the prosecution's ties to the intelligence community. judge cannon has yet to rule on that. on february 8th, that was two months ago, jack smith's team begged her to reconsider her decision to release unredacted filings to the public. ones that could reveal the name of prosecution witnesses. judge cannon has yet to rule on that. six weeks ago on february 22nd, trump's lawyers filed for s

jack smith has basically had it with judge cannon and the way she has handled donald trump's classified documents case. now smith is taking action to protect his prosecution. in a new filing, smith said judge cannon's legal premise was quote wrong and called trump's claim about the presidential records act a fundamentally flawed premise. the idea that he should not be charged because he had declared the documents personal. smith calls that pure fiction. he also pointed out it has been nearly six weeks since trump moved to have the case thrown out. he wants the judge to get on with it and make a ruling asap. smith has signaled he will appeal if he loses and of course trump will likely do the same if he loses, there is news in the hush money case. the judge has denied trump's attempt to delay the trial. jury selection in that case will begin right around the corner. april 15th. that is 12 days away. mark your calendar and let's get smarter with the help of our leadoff panel. lisa rubin. katherine christian joins us. she is now an msnbc legal analyst. and mark liebamich joins us. okay kath

this is the most important filing jack smith has done since the indictment itself.s very hard nose. it says we're done with this, i'm not going to follow your suggestion, and moreover, judge, you need to rule on this now. you can't just keep dithering. if you don't, there are ways to, and it's the best method we can, we've been casting about, how do we get her off the case? there are ways to get the court above you to require you to do it, maybe you haven't done anything we can glom onto yet, now we're telling you, if you don't rule here, and you leave this possibility open, we are taking you up to the 11th circuit, and asking them to get you off the case. is that plain english enough? >> that's pretty good. trump's not play ago legal game, he's playing a political game. i'm done trying to understand the legal landscape because this is -- whether we like it or not we're playing trump's game, jack smith is, aileen cannon sure as hell is. and i want to understand how a judge is entertaining an argument that trump doesn't believe, here's trump, making abundantly clear