you're going to want to hear what she says. it is tomorrow night, 9:00 p.m. to 11:00 p.m. eastern here on msnbc. now it is time for the last word with the great lawrence o'donnell. good evening. >> good evening, rachel. of course, the breaking legal news of the night, which sounds minor, in its way, is that donald trump's lawyers have already sent a letter to judge mershon in that case saying that today's action by the united states supreme court means that that conviction has to be thrown out. i think sentencing is going to proceed and the new york courts will say take that on your appeal. what that is the latest, that is the very first legal move they have made since the supreme court ruled today. >> here we go. as far as the practical consequence of that in the new york criminal case. i think judge mershon will hear arguments from both sides as to whether the sentencing should be delayed. i don't think the sentencing, i mean, he has been convicted. you don't throw something like that out lately. i think the sentencing, even if it is delayed, will likely proceed and that if there is any substance to their request to have the verdict, the jury's verdict thrown out because of today's radical supreme court ruling i think that is something that will happen at the appeals court. but we shall see. we are waiting here for him now, essentially. >> i have everyone we could possibly think of to ask that question two tonight. lawrence tribe is going to start us off. andrew wiseman can handle that one. listen, mari is here, former clerk to justice sotomayor. of course, neil county all. experts all the way out, i just have to get out of the way. >> okay. out of your way. >> thank you, rachel. thank you. today the united states supreme court granted donald trump immunity for conduct described in exactly two paragraphs. of a 130 paragraph indictment, the rest of the indictment against donald trump still stands as of tonight. and the supreme court has ordered the trial judge in the case, tanya chutkan's, to hear testimony in the case from a very long list of potential witnesses to clarify if some of the remaining charges in the indictment might now fit into a new category crated by the supreme court today the granting criminal immunity for some presidential conduct. that could lead judge chuck and to in effect, be providing over an examination of the evidence similar to or equal to what would occur in the prosecution in the trial, the actual trial of this case. when prosecutor jack smith would be calling his prosecution witnesses to the witness stand and just cut and courtroom to testify under oath to prove to the judge that the conduct described in the rest of the indictment is in no way immune from prosecution, even with the supreme court's new definition today. unlike a >> reporter: donald trump does not have to be present for that hearing, which could last weeks. so it would no way interfere with his presidential campaign. the 6-3 decision identified two different fears on each side of that decision in the supreme court. the majority of the justices seem to fear the president living under the pressure of unreasonable criminal prosecutions, even though that has never happened in the history of the country. and the minority of the justices fear a president they now see as, in effect, sanctioned to break the law. the majority called the minorities view, quota, fear mongering on the basis of extreme hypotheticals about a future where the president feels empowered to violate federal criminal law. what the majority saw about today's ruling, this is what they fear, is quote, the more likely prospect of an executive branch that cannibalize is itself with each successive president, free to prosecute his predecessors yet unable to boldly and fearlessly carry out his duties for fear that he may be next. may i remind that no president has ever, in any sense, prosecuted his predecessor. has never happened. the majority of the court fears what has never happened. and the minority of the court fears what they have already seen happen in the trump presidency. the amy coney barrett, who joined the majority in the case disagreed with the majority on one point, and that is the excluding any kind of evidence that involves an official act by the president. she raised the question of how that would destroy bribery prosecutions. she said this, excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution to make sense of charges alleging a quid pro quo the jury must be allowed to hear about both liquid and the quote. the presidential campaign is now the campaign of a former president who abused his power as president against the current president who has not abused that power and does not want any more power. here is what president biden said tonight about the supreme court opinion. >> the presidency is the most powerful office in the world. it is an office that will not only test your judgment, perhaps even more importantly, it is an office that can test your character. because you not only face moments where you need the courage to exercise the full power of the presidency. also face moments where you need the wisdom to respect the limits of the power of the office of the presidency. this nation was founded on the principle that there are no kings in america. each, each of us is equal before the law. no one, no one is above the law. not even the president of the united states today's supreme court decision of presidential immunity, that fundamentally changed for all, for all practical purposes. today's decision almost certainly means that there are virtually no limits on what a president can do. it is a fundamentally new principal. it is a dangerous precedent, because the power of the office will no longer be constrained by the law, even including the supreme court of the united states. the only limits will be self- imposed by the president alone. this decision today has continued the court attack in recent years on a wide range of long established legal principles in our nation. from cutting voting rights and civil rights to taking away a woman's right to choose, to today's decision that undermines the rule of law of this nation. only four years ago, my predecessor sent a violent mob to the u.s. capital to stop the peaceful transfer of power. we all saw with our own eyes. we sat there and watched it happen that day. attack on the police, the ransacking of the capital. the mob literally hunting down the house speaker, nancy pelosi. gallows erected to hang the vice president, mike pence. i think it is fair to say it is one of the darkest days in the history of america. now the man who sent that mob to the u.s. capital is facing potential criminal conviction of what happened that day. the american people deserve to have an answer in the courts before the upcoming election. the public has a right to know to answer what happened on january 6th before they are asked to vote again this year. now, because of today's decision, that is highly, highly unlikely. that is a terrible disservice to the people of this nation. so now, now the american people have to do what the court should have been willing to do and will not, the american will have to render a judgment about donald trump's behavior. the american people will decide whether donald trump's assault on our democracy on january 6th makes him unfit for public office, the highest office of the land. the american people must decide if trump's embrace of violence to preserve his power is acceptable. perhaps most importantly, the american people must decide if they want to entrust the president, once again, the presidency to donald trump. now knowing he will be even more emboldened to do whatever he pleases, whatever he wants to do. you know, at the outset of our nation, there was a character, george washington, our first president, defined the presidency. he believed power was limited, not absolute. and that power always resides in the people, always. now over 200 years later, in today's supreme court decision, once again, it will depend on the character of the men and women who hold that presidency that are going to find the limits of the power of the presidency. because the law will no longer do it. i know i will respect the limits of the presidential powers i have for 3 1/2 years. but any president, including donald trump will now be free to ignore the law. i concur with justice sotomayor's dissent today. she said in every use of visual power, the president is now a king above the law with fear for our democracy, i dissent. end of quote. so should the american people dissent. i dissent. may god bless you all, may god help us preserve our democracy big thank you. >> leading offer discussion site is professor lawrence who has talked constitution law at harvard law school for 5 decades. professor, it is the summer break at law schools but i am imagining students returning to constitutional law class in the next semester and what just happened to constitutional law? >> it was rocked to its very basis. the supreme court of the united states turned the constitution upside down in a very profound sense. the most fundamental rentable in which the constitution rests is that the law abides everyone and the constitution elaborates the structure of that law. although it does contain some provisions in this so-called speech and debate clause for immunizing senators and members of the house and certainly limited circumstances. it doesn't give any immunity from ordinary criminal law to the president, the most powerful figure in our government. on the contrary, it is because he has such enormous power that he, like anyone else, must obey the criminal law. there are some people, including people of the justice department who have written rules saying that you have to wait until the president leaves office before commencing a prosecution for crimes he commits while in office. but until today, no one has seriously claimed that absolute immunity for certain official acts would apply to the president. as justice jackson pointed out in a very powerful dissent, she dissented in addition to justice sotomayor, and justice kagan joined the dissent. justice jackson, in a very powerful dissent said this whole business of drawing a line between official acts and unofficial acts and saying that if you are on the official side of the line, the president can essentially get away with murder on the unofficial side that he might be prosecuted. she points out how that gets it upside down. it is exactly when the president is using the official powers that belong uniquely to that office that we should be most worried about the president coming and autocrat or, as donald trump told us he wants to be on day one, a dictator. so the court has it backwards. it is true that the case will go back to judge chat can. she will hold hearings. some think that is kind of a silver lining because those hearings can begin soon, the nation can perhaps see much sooner than it otherwise would, if there had been a trial in the fall, the nation can see more of the evidence of what donald trump did in the fake collector scheme and in the violent mob that he riled up. but that is a pale substitute for what people are entitled to. that is a verdict, guilty or not guilty. is the president guilty of, for the first time in our history, organizing an effort to prevent the peaceful transfer of power to his successor. that, we won't have. people will be going to their voting booths and deciding whether to vote for someone who has already abused these powers as opposed to someone who the powers have been handed to him says i don't want to use them. i believe in the rule of law. making that choice without the evidence they need. >> i want to read justice brown's, ketanji brown jackson's, the conclusion of her opinion. she says the majority of my colleagues seem to have put their trust in our courts ability to prevent presidents from becoming king through case- by-case application of the indeterminate standards of their new presidential accountability paradigm. i fear that they are wrong, but for all of our sakes, i hope that they are right. in the meantime, because the risks and power the court has now assumed are intolerable, unwarranted, and plainly antithetical to constitutional norms, i dissent. dissent language doesn't get stronger than that. >> well, the language couldn't get stronger because it deserves to be strong. that language was under just three days before independence day. and several days we will celebrate the nation's survival of a revolution against kings and queens. we had a revolution so that we wouldn't have a king, and now the supreme court says that is what we are giving you. i don't think we should accept that precedent. but it seems to me that all that does is basically put the court on the ballot this november. we have to decide whether we want the kind of government that donald trump has helped us have by appointing three members to this court. because three of the members of the majority were appointed by him. and two members of the majority ought to have recused themselves, alito and thomas. that is five justices. and it is those five who ultimately decided that even the evidence of official acts couldn't be used to show what the president was up to when he used his official powers. because motive supposedly doesn't matter but motive is everything, whether a president gave a pardon in return for a bribe, depends on whether he was doing it as a corrupt matter or whether he was giving a pardon because he thought someone deserved mercy. as justice barrett pointed out, you can't really make sense of the quit without the quote. you can prove the transfer of money, you can't prove anything about the pardon that was given in exchange. the kind of thing that makes this decision so incoherent. and it makes it really dangerous that even if we get over trumpism and the maga movement, we will have to rely on the good character of future presidents, because the law will no longer serve as a source of inhibition. that is dangerous. that is a prescription for autocracy and eventually for authoritarianism and dictatorship. >> our law professor, laurence tribe, thank you very much for starting off our discussions on this historic night. >> thank you. coming up, neil cutshall, andrew weissman, and melissa mari will join us with their view of today's supreme court ruling. fairy godmother alice, and long-lasting gain scent beads. part of the irresistible scent collection from gain. did you know that if you shave, 1/3rd of what you remove is skin? 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[laughs] a home router should never be a home wrecker. oo this is a good book title. former acting u.s. solicitor general who argued over 50 cases before the united states supreme court, he is a professor at georgetown law and host of the podcast, courtside. andrew weissman, former fbi general counsel and former chief of the criminal division in the eastern district of new york, and melissa mari is joining us, she is also an nyu law professor as is andrew, they're the co-authors of the new york times the selling book, which i used tonight. the trump indictments. the historic charging documents with commentary. our msnbc legal analyst. with all of your support -- supreme court spirit, how much of this did you expect >> almost none of it. this is a decision that i think really changed our constitution. procedurally and frankly shocked. substantively, the president can do whatever he wants, including and up to sending out navy seal team 62 assassinate his political rival, is certainly not the constitution that i have ever understood. it is not the constitution of the united states. this court's decision goes way, way too far in giving the president basically carte blanche when it comes to executive powers. there are some bright lines and bright silver linings in their for example, the president roll over state legislators, and assembly of fake delegates, which i think that the court leaves possible to prosecute people like donald trump four. but in general, when it comes to presidential powers, this is not the constitution that i have ever understood it to be. procedurally. i would expected a unanimous decision or close to unanimous. that is the way the court traditionally operates in hot button cases like this. if you go back to, for example, the tapes case, which is, you know, almost unanimous against nixon and rejecting his claims of presidential privilege, which is just a week cousin of what donald trump sought here, even nixon's own appointees to the supreme court ruled against him. here by contrast you have the six republican justices and a republican appointed justices all siding with the republican nominee for the presidency, donald trump and you have three democratically appointed once siding the other way. that is not the place the court should be. it is not surprising that we have already heard from president biden about this, and i expect in the days and weeks to come, the court will become the front and center piece of the election i think biden will run against the court more than he will run against even donald trump. although the two now are locked kind of at the hip. trump and the supreme court. so this is a tremendously unfortunate ruling. as to which i was shocked. >> yeah, i think so many of us, during our lifetimes, have come to expect so much of the court because we saw the court deliver in circumstances that proved the court's integrity. the republican president, richard nixon proved the supreme court's integrity and now former republican president, donald trump, has disproved a. andrew, that, without that supreme court decision in the nixon case, we wouldn't be sitting here so stunned tonight, as we are. >> yeah, look, we talked about off air, in many ways, his decision, quietly pushes the entire logic of the nixon tapes case because you have this broad recognition by the supreme court that anything that is within a very expensive view of the court functions or the take care clause of the constitution is completely and 100% absolutely immune. and when even other official acts, there is a strong presumption when the court set out a very difficult test to allow it to go forward. let me just make sure people understand with respect to the core function when the court says it is absolutely immune, they say one of the things in that core function is the communications and the directions of the president and the department of justice. so they say that when a president order sham prosecutions. he can do that and not face any criminal repercussions. that is just to say it is to be shocked by it. i completely with neil. this is such a transformational decision. finally, that the tape that you have played of president biden is so remarkable because you have the sitting president saying i do not want that power. i should not have that power that is not how our system works. the sitting president is saying this is not part of the checks and balances that we have in this country. we are not in autocracy. it is remarkable just as an institution on historical matter that you have president biden the day of the decision saying i do not need and i should not have that power. >> >> you clerked for sotomayor. she made the point in her dissent. every president prior to donald trump, every one of them assumed that criminal law applied to them. every one of them. they were not inhibited in any way as presidents as law- abiding people are not inhibited by the fact that law applies to them. how do you think justice sotomayor has been dealing with this opinion and the length of time it took to get it out. what was going on. what can you imagine going on inside the court to take this long? >> lawrence, i have to imagine it. i think she told us a few weeks ago that she received the radcliffe metal in cambridge, massachusetts where she said that there are days where she goes back to her office and she cries. cries because this court, of which she is a member, has done something so shocking, so beyond the pale that it beliefs. this is one of those days. she chose to read her dissent from the bench and that is an unusual step that they take only when they feel that it is really necessary to impress upon the public how long -- monument to the majority's views are. she also, quite rightly, noted that this is a major hit to democracy and she noted that she did not respectfully dissented. she simply dissented it, noting the bad and sad times for democracy ahead. i wasn't entirely shocked by this decision. this is a supreme court that has had a 6-3 insert a super majority for about four years and in three of those four years it has overruled a major precedent every single year. dobbs in 2022, affirmative action cases in 2023. the chevron case this year, and now it has essentially abandoned nixon versus united states. it has not done so explicitly but this is a sub rosa overruling next him. who would have thought we would be in a position like this with the supreme court of the united states so emboldened by its mere numbers can simply run roughshod over the rule of law over existing precedent. that is what donald trump put in place and i agree with neil, i am surprised the biden administration has not taken a more strident view about this court and its role in constructing these current landscape that we live in. but this is not just about the threat that donald trump poses to democracy. this court by itself is an x essential threat to democracy. >> go ahead, quickly, we will go to a break. >> if i could speak up. the most important book in constitutional law is alexander's book. the argument of the court is that the court does its best by not doing a lot at any one time. it conserves its legitimacy. and what you have here is the opposite. elsewhere is called the yolo court which there overruling precedent after precedent after precedent because they have the nevers. what bickel predicted is the institution will collapse of the supreme court and its legitimacy. and unfortunately that is what we are now seeing and it is the court's fault, they are putting themselves in the headlights of all of these major decisions, like the ones melissa mentioned. >> this opinion does read like a mess, and the question is, how big are the holes in it? and how much can judge chet can get through those holes? we will take up that question after this break. we're back. andrew, i want part of the oral argument in this case in which justice roberts appeared to disagree with his opinion today and agree with justice barrett's dissent from this element of it involving the so-called official act. during the argument, justice roberts said if you expunge the official part from the indictment, how do you, i mean, that is like a one legged stool, right? giving somebody money is and bribery unless you get something in exchange, and if what you get in exchange is to become the ambassador to a particular country, that is official. the appointment is within the president's prerogative. and today, in this opinion, justice roberts just seems to have forgotten all that. >> yeah, so this is going to be quite important. i think at the federal level and at the state level where we have this new brief, actually this letter to the d.a. saying that there should be a hearing and evidence to be thrown out and trump is trying to sort of relitigate that. why? because the supreme court in the majority said that if there are official acts that are immune then none of that can come in as even evidence. and that is something that, as you know, chief justice roberts really took to task the justice alito comment saying that that is justice alito's view and he was like scoffing at that saying that is going to make it almost impossible to prosecute the public corruption cases, because how do you prove the quid to the quo or the quote to the quid. and yet he joins the majority. i should note that amy coney barrett, in her concurrence, dissents on that ground, and she says she would allow that evidence, you have four justices actually on that point saying that that would be, that it should be allowed. as i said, that is going to be the argument that there was official evidence evidence of official acts by the president that came into the state trial in new york. so you can expect that that is what we are going to start hearing about. the number of counter arguments that the state will make, including that that argument that is waived and that there is the minimus evidence. that opened the door to that argument. this is really sort of crazy argument. i really do not know why the chief justice flipped on that after being so strong in the oral argument. >> okay, so this court is setting this back to judge can. and basically ordering her to have hearings, evidentiary hearings were going to have to listen to witness testimony. going to have to listen to basically the prosecution case. and here is some, just some, there is an awful lot that the supreme court wants her to find out. but here's just some of what they want her to find out about january 6th, for example. whether the tweets, that speech and other communications on january 6th involve official conduct may depend on the content and context of each. note, for instance, what else was said, contemporaneous to the excerpt communications or who was involved in transmitting the electronic communications and in organizing the rally. could be relevant to the classification of each communication. this necessarily fact found analysis is best found initially by the district court. we therefore remand to the district court to determine whether this alleged conduct is official or unofficial. and so, melissa, that sounds like a full-blown trial just on january 6th alone, then this indictment also includes 42 mentions of arizona, 40 mentions of georgia, 39 mentioned of michigan and so on. new mexico, pennsylvania, wisconsin. this is a massive factual undertaking for all the rest of the indictment, which does sound like a full presentation of the prosecution's case. >> i will certainly be an opportunity for a hearing in open court and andrew has a terrific op-ed in the new york times talking about how this could serve as a kind of a public adjudication. certainly not a trial by jury but the best we can hope for, given the compressed timeline going into the election so that could be a silver lining to this. i will note, the court did the unusual step here of highlighting some of the various allegations in the indictment and providing what it called guidance as to how the lower court might resolve some of these questions. so, for example with regard to the communications with mike pence and former president trump's entreaties to mike pence to overturn the electoral college votes, the court basically said that those should be considered official actions, presumptively immunized and then it will be left to the government to meet the very high bar of that presumption of immunity. so again, the court is perhaps but a thumb on the scale here by directing how the lower court should receive some of this evidence and with regard to the way that andrew just made about the evidentiary issue. i will just note that justice alito, who, i think an argument can be made, should have been recused here, provided the crucial fifth vote for that view that any evidence or actions that were previously immunized because they were official action could not be then used as evidence to prove the crimes that were not subject to immunity. so that would not have been on the table if justice alito had not been in the majority and justice thomas had not also been forced to recuse. >> neil, judge chutkan, already took the view that everything in that indictment reads to her like a chargeable crime against a former president of the united states. she has now given the task, by the supreme court, to decide, again, are these crimes given our new framework of what to use looking at this indictment? i am not sure what prevents judge chutkan from finding all of it to be a chargeable crime other than the only item in their, that the supreme court eliminated, which is just those two paragraph 74, paragraph 77 of the indictment. >> so, you're right, lawrence. the supreme court today said the allegations about trump pressuring the justice department to try and impugn the 2020 election and its integrity, that that was somehow an official act and can't be touched by the criminal law. that is a crazy holding but nonetheless, that is what they have said. with respect to the other allegations, by pressuring vice president pence, pressuring other people, there might be some presumptive immunity, they said. that is fully within judge chutkan's control. and there is this important line in the chief's opinion, jack smith, the special counsel to really harp on what the chief justice said here. he said, quote, there may be, however, context in which the president, notwithstanding the providence of his position, speaks in an unofficial capacity, perhaps as a candidate for office or a party leader. and many of the allegations here go to that take, for example, the claim that trump pressured state legislators to have their fake elector scheme that is not something that is an official act any day of any week. the u.s. president has no control over state legislatures. it is fully within the states, it is part of our system of federalism. so those allegations in the complaint to find rather easily will survive the decision today. and i expect, as andrew protected, and his new york times piece, i suspect we will see a fair amount of evidence that the american people can listen to and hear about what donald trump did when it comes to those kinds of allegations what they want be able to here is more evidence, for sure, on the pressuring donald trump did over the justice department. because the supreme court has now declared that off-limits. >> we will squeeze in one more quick break right here. we will be right back. to quit the kibble and feed their dogs fresh food from the farmer's dog. made by vets and delivered right to your door precisely portioned for your dog's needs. it's an idea whose time has come. ♪♪ (tony hawk) skating for over 45 years has taken a toll on my body. i take qunol turmeric because it helpscome. with healthy joints and inflammation support. why qunol? it has superior absorption compared to regular turmeric. qunol. the brand i trust. upset 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multiple false claims of election fraud, which the acting attorney general and acting deputy attorney general refuted when the acting attorney general told the defendant that the justice department could not and would not change the outcome of the election, the defendant responded, quote, just say that the election was corrupt and leave the rest to me and republican congressman. and the reason the supreme court said that is a completely legal and immunized conversation is because at a certain point in the conversation, donald trump was talking about possible hiring and firing and appointment power about the justice department and that that justifies everything else that he says no matter how criminal that might sound. that is what this indictment is going to be losing as a result of this. there is another paragraph on the other page of another conversation donald trump has. but there is a bunch of other conversations right in that section of the indictment that do not involve the president, that involve the deputy attorney general, the acting attorney general, and then the other guy who donald trump, all that is happening among them, does that have to be cut out of this indictment, too? the president is not in any of those conversations. >> that is a really good question, lawrence. i actually read that part of the court's decision as sort of a unitary executive theory on steroids. the unitary executive theory which has been advanced by number of conservatives is this idea that the executive branch and the president, the president is the embodiment of the executive branch of the department of justice, for example, the attorney general, those are all appendages of the president and so the theory, as i understand it and as it is expressed in the opinion is that in the circumstances, where the president is talking to doj officials or simply directing things for the doj officials, those are official acts because the president himself is the embodiment of the doj. he alone is responsible and directs the doj. and so i think that is really significant in this case, not just for what it means for this indictment and what is ruled out as immunized but also what it means for the special counsel and all of these prosecutions going forward because essentially the court is saying if the president, if he is re-elected and becomes the president again, donald trump is the president, he can then direct the doj to drop these prosecutions and that direction is an official act and cannot be challenged, and cannot be subject to criminal prosecution. he can release the special counsel. that is a part of his official duties as president. he can remove the special counsel. all that is within the scope of his official duties. not presumptively immune but absolutely immune. i think that is a sweeping, sweeping, sweeping set of circumstances, especially with regard to the doj. >> the supreme court, the majority opinion says the president is a branch of government. >> absolutely. it is a branch of government but that doesn't mean that is a branch of government that exists exogenous to law. the idea that a president could do the kinds of stuff that you read in paragraph 74, pressuring the justice department to impugn the election and thence doll his preferred candidate for acting attorney general to do that is so dangerous. and here, lawrence, i want to remind everyone of justice jackson, not just justice congee jackson but justice robert jackson. because when the japanese internment case came up to the supreme court, he dissented, saying, look, the power of the majority is going to give here, to the president, is going to lie around like a loaded weapon for some other president to pick up and use and some horrendous way. i fear exactly that about this decision. this is not just about donald trump, this is not about joe biden or merrick garland or jack smith, this is about the most and the mental thing we have as americans, which is life under the rule of law. the idea that no person is above the law, the idea that a president can't act exogenous to law. that he is extremely by the law and what the court did today is low past and destroy that fundamental underpinning of our system. i don't think this decision is going to last. i don't think that we will have five or six justices in the future who can sign on to what is basically nonsense. it is not america, and it shouldn't survive the test of time. >> andrew wiseman, and melissa murray, thank you very much for joining us on, for the most important discussion this program has ever had about a supreme court opinion. thank you very much. we will be right back. with cabenuva, there's no pausing for daily hiv pills. for adults who are undetectable, cabenuva is the only complete, long-acting hiv treatment you can get every other month. it's two injections from a healthcare provider. just 6 times a year. don't receive cabenuva if you're allergic to its ingredients, or if you're taking 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