alleged co-conspirators in that indictment. charles burnham, defense attorney for co-conspirator number 2 from the recent indictment. this is a person who has been confirmed and identified as john eastman, the lawyer, who advised donald trump, who spoke at the january 6th rally there next to rudy giuliani, and was a key architect of much of what the president and his aides were trying to push heading into the january 6th certification. charles, first of all, thank you very much for making the time and joining me tonight. >> thank you for having me. >> absolutely. we put aside some time for this. i want to start with a couple of quick things and then get into the case. but first and foremost, donald trump lost the 2020 election. you accept that fact? >> well, look. there is a large portion of the country that has issues with the 2020 election. there are still discussion about things that went on. >> a large portion of the country believes in goats or horoscopes. i'm asking do you accept the results of the election that donald trump lost? >> i'm here as an attorney representing a client. >> i don't see it moving. it's a very easy question. if you can answer it. i've got over questions. >> well, my personal opinions are neither here nor there. they're no better than anybody else's. but i would like the opportunity to address the latest news and anything your viewers would be interested in. >> we'll definitely get to that. i want to get to a couple of these straight forward premise questions. >> that was december 14th, 2020. do you accept that as the valid final step that the electoral college took? >> i'm here as an attorney representing the client. my opinions are no better than yours or anybody else's. i think really the point i'd like to make if there is one takeaway here on behalf of my client, dr. eastman, his main focus throughout his activities in 2020 was focusing specifically on illegalities in the election. >> right. >> which is a related concept to fraud. >> his view of the underlying issues. we will get to that. but i want to lay down the basics. some of these people can or can't answer. was it wrong for the trump fans and now convicted seditionists to storm the capitol and attack police on january 6th? >> oh, my gosh, certainly. criminal activity at the united states capitol or anywhere else is wrong that should be an obvious fact. we can get by that quickly. sure. >> okay. and turning to your dealing with the special counsel, and then we'll get into the case, what was your last contact on behalf of your client with smith's office? what if anything can you tell us than? >> very little. we've had some contact with the special counsel office over the months and going before that, even before the special counsel was appointed with the prosecutors that are working, but we have not engaged in any sort of major substantive way with special counsel. we've had cordial relationship. i can call them. they can call me. i know some of those gentlemen before they were at the special counsel. i've gotten to know others now. it's been very respectful. >> okay. and that's interesting in and of itself. have you received in any way either a target letter or any other communications from the office that would make you think that they are going to go forward and potentially indict your client, who is co-conspirator 2? >> no charge letter, nothing like that. and we very much hold out hope and maybe even an expectation that he will not be indicted. our position has always been that he committed no crimes and that a full and fulsome examination of the facts will lead any reasonable observatory that conclusion, including special counsel, we hope. >> understood. you're saying today he commit nod crimes. >> sure. >> and if he were charged, he would be legally presumed innocent. and yet someone at times who has had a different view of what you've said is john eastman. he took the position after jan 6, and i'm going to go in reverse, starting with what was circulating after the actual insurrection and go deeper into it, and you'll get time. interestingly, we have a secret email this sort of leaked where he says to giuliani i've decided i should be on the pardon list, if that's still in the works. so my question for you, which crimes do you hi he was worried about being indicted for? >> oh, sure, who can even start? you remember the atmosphere in that time period after january 6th. the media speculation, the accusations going back and forth about all sorts of things. any reasonable person under those circumstances, whether they were innocent or guilty. and particularly someone innocent, as john eastman was, would only prudently take that step if it was available to them. nothing surprise:00 that at all. >> you see that as kind of standard? everybody wants a pardon. not everyone, as you know, indeed the vast majority didn't seek pardons. it would seem, especially since he is a lawyer that he thought he had criminal exposure. >> oh, noted a all, not at all. this sort of reminds me back when, you know, you had commentary when he availed himself of his fifth amendment protections say anybody that does that is guilty that was 100% wrong. and the implication respectfully that anyone would seek a pardon is just as wrong. >> i'll let you respond. but the supreme court ruled, as you well know, that the acceptance of a pardon, if you seek one, then you presumably want to seek it is itself tantamount to being guilty, that you are accepting the process and the conviction, but you're accepting that reprieve from the executive. so someone seeking a pardon, which again for my viewers to know is unusual. most people leave government without doing so suggest some exposure. i take your point that he has a fifth amendment right. he exercised it. again, to reasonably exercise it is to think that there will be a potential criminal proceeding or something that you don't want to start of self-report. >> well, i think it's important to look at that one-sentence quote that you displayed and the context that dr. eastman's behavior and public posture ever since january 6th, he's appeared on multiple public forum. he has debated liberal law professors on podcasts, absolutely nothing that isn't known about his legal theories. some people agree with them. some people very much doan don't. but he has done his best to educate the role and we've helped him as much as his attorneys about everything that happened from his perspective. and all of it, all of it is completely, completely inconsistent with any consciousness of guilt, let alone criminal activity. and i think the pardoned email you show is very much not inconsistent with any of that. >> okay. dive in then to the night of the 6th. i kind of want to know from when things went down. >> sure. >> reasonable people might debate or differ about what they thought might happen on the 6th or what their intentions are. then the night of the 6th, you have donald trump himself asking people quite late, but eventually to go home. you had that terrible carnage, something you earlier in the broadcast referred to that it would be easy to condemn. and yet secretly late into that night, the 11th hour will show eastman was still pushing a pence lawyer advocating that he seek a further delay of the certification saying consider one more relatively minor violation and adjourn for ten days, this was concerning the plot to stop the certification that day, after the violence and now convicted sedition is what stopped it that day. how do you explain that? and if you end up in a courtroom, how do you explain that as anything other than mr. eastman as dismissed charges allege being part of the group of people who exploited the violence? >> i don't think it's exploiting the violence at all. you have to look at in the context of everything dr. eastman did leading up to that point. he was always starting to right up to the election, the great champion of state legislative authority in the presidential election process. i think that was the really valuable contribution he brought to the debate. that's a neglected area of the law. they don't teach it that much in law school. he did a very good job of explaining that to the public and other interested parties. >> let me pin you on this. it was violence that stopped the certification that day. you don't dispute that? >> well, violence that dr. eastman had no part of. >> okay. >> and any suggestion to the contrary is without any evidentiary basis. the indictment doesn't charge, they no one is suggesting that i'm just saying in terms of order of operations, the violence is what stopped it. and then they reconvened. mitch mcconnell, republican leaders on the floor saying this was an insurrection. it was stopped by the violence, and now they're trying to finish it up. and his response that night was to say let's continue to stop and delay. in other words, to be on the side of further stopping it, having that then caused by the violence. do you see how that could be a problem for him in this case? >> no, no, not at all. not at all. as i said, his goal throughout this process was to have a full and fair hearing through the certification constituent with the constitution of the relevant issues involved in the election. it was regrettable to make an understatement that it was interrupted as it was. and if dr. eastman was here today, he'd say the same thing. that very much interrupted everything he wanted to see happening, just as it did the other side. >> and again, i want folks to understand that and everyone is entitled to their defense, and he is not charged yet. but you're making the argument that whatever he advocated for, however some of those objectives overlapped with the seditionists, he was not advocating violence, and he was not using violence. the case says something different. the government alleges that both donald trump and the co-conspirators exploited the violence. whether whether or not it was caused, they exploited it. he is one of the very few people on record after the violence responding that way. not saying oh, that was terrible, not let's take a breath, not enough. rather continuing on as others did that day to try to stop it. you mentioned remarks i want to play for viewers, the first time we're hearing this on "the beat" one of the ways he has recently tried to defend this is saying he was actually trying to stop a coup because joe biden stole the election. that's his claim. take a look. >> the narrative is eastman and trump tried to initiate a coup, trying to stop an illegal election is not a coup, but trying to thwart a coup. >> that's his description. so my question for you, he almost seems to be raising the bar on himself. do you have to prove that this election that joe biden won at the supreme court affirmed that they never took any of the channels is itself a coup? is that your defense if he is charged? >> i wouldn't have to prove anything if he was charged, and now he is not charged. but i think our position would be at this the election in certain important states was conducted contrary to the manner so forth by the legislature and its statutes. that's important, and that requirement was recently reaffirmed even after the election by the supreme court of the united states, in moore against harper. and i think that's what dr. eastman is referring to there. >> well, he is definitely referring to more than that if he is claiming that this lawful election is a coup. are you saying that you kind of wish he didn't say that? >> no, no, no. i think if he had another 30 seconds to explain, and maybe he even did in the rest of that interview. what he is referring to there is states like georgia and pennsylvania and others where there were good faith rationally based arguments that individuals such as vice president pence himself and his chief counsel agreed with. they didn't dispute this part, where the elections were conducted, again, contrary to where the constitution places the authority for setting up the manner which is the state legislature. it's a technical point. >> good faith is also an issue. separate from whatever happened with jack smith, mr. eastman is also facing a proceedings to potentially disbar him, that the new filing today was asking for more time. good faith is also in debate under the evidence. look, for example, at a pretty big mistake or lie that your client told. in october, he writes down the constitution does not, not say the vice president makes this determination on his own. then by december, as a lot of other things weren't working out among these plots, he writes the constitution assigns this power to the vice president as the ultimate arbiter. how it is good faith if he reverses himself and gives this advice up in way that, of course, said part of the plot to overthrow the election? >> well, there is two reasons there. we know exactly where that is coming from. we weren't surprised to see that in the indictment. first is, first point is as a lawyer, dr. eastman's responsibility is to make the best argument he can on behalf of his client, which may or may not be consistent with his personal view of what the best view of the law. you're a lawyer. you understand that as well. if there is a nonfrivolous argument he can make that for his client, in this case donald trump. he is duty-bound to make it. second -- >> i'll let you found. he is also duty bound not to commit malpractice or mislead the court as an officer of the court. >> sure. and he absolutely did none of those things. i do want to give a second point. it's only natural, and any practicing lawyer would understand this, when you're representing a client, particularly in an uncharted area of the law as this very much is, you brainstorm, you do research, you talk to other people, and eventually perhaps your mind changes on a question where at the beginning you had a different opinion. this is utterly mundane involved in the day to day law. >> i'm giving you plenty of time and these are important issues and it's important for everyone to hear the other sides of this. but it's not mundane. you cannot claim that when you take a position that is completely without precedent and extreme that advocates overthrowing a democracy, in his case other positions he also took where he said he knew the sprott would 9-0 reject him, and that includes three trump appointees among others, it's not mundane to say the correct version of the law in october and reverse yourself with the coup version. i don't think, again, for viewers my time is to give you time, but that's not mundane. it's quite extreme and what it suggests is the opposite of your defense. it suggests bad faith. it suggests that your client was knowingly lying, abusing his role and power as a lawyer and officer of the court, and that seems to create this tension, i'll let you respond with mr. lauro. i want to play a little bit of john lauro. this is trump's defense lawyer who is now saying all they did is follow your guy. your guy is co-conspirator 2. and all he did is reverse himself, which is at least according to the justice department looks like bad faith. i'll let you respond toe all of that. take a listen to mr. lauro. >> what he is being indicted for ultimately is following legal advice from an esteemed scholar, john eastman. >> charles? >> yeah, you brought up a number of points there. i'll try to get to as many as i can. the first i'd like to start is i'm glad you brought up precedent. because the one thing you've never heard in any of the discussions about john eastman in the past two years is what he did is wrong because it violates the supreme court decision in smith versus jones. there is no smith versus jones. there is no smith, there is no jones. these are issues of first impression, right? no court has ever considered this. so what dr. eastman did is exactly what he is retained to do. he is a constitutional law professor. he looked at precedent. he looked at history. he looked at the historical examples, presented the various options and presented at the end what he thought was the best option consistent with his client's interest in the law. >> that's not quite true, sir. he may have done that at times. i can't speak to everything he ever did. but the problem for you is in this indictment, which has all this evidence, and we've seen other portions from the congressional probe, he didn't just do that. when you say matter of first impression, it's not as if this is some new novel thing like an artificial intelligence, you know, quandary for the supreme court. these are matters that quite to the contrary what you're claiming tonight have been so thoroughly litigated that there is no daylight. there is no question that politicians can't just declare themselves automatically reelected. that's not even in the bounds of what the supreme court bothers to rule on. so tonight you sound like you're trying to say this is a virtue. it's actually a great problem for your case and for what he did, why he might be disbarred, because he knew that at the time. that's what some of the emails show. and second, the supreme court, i'm going to show two things. one, the supreme court rejected all of the 2020 litigation. again, i mention the composition of the court. 20 plus cases, they didn't take that. then when you look at what your client knew at the time, eastman advocated, quote, the vice president unilaterally reject the electors, but privately acknowledged he hoped to prevent judicial review of the proposal he knew, he understood it would be unanimously rejected by the supreme court. so that is different than the way you're putting it tonight, because it suggests bad faith, as i showed, a change from the actual precedent or understood law to the opposite because donald trump wanted it and lost all the other avenues, and then him saying in writing i know i'll get overruled. so we don't want to go to court because i know i'd lose 9-0. >> there is two points there. i can do this quickly. you have to absolutely distinguish between the election litigation on the one hand and the vice presidential presiding over the certification on the other. yes, the first category, there is all sorts of cases where you could read about that. the second category absolutely not. >> there are none. only there is historical examples, law review articles, that sorts of thing. the second question i wanted to get to, what was it? >> let's finish on the vp and then we'll finish on that. and i actually went over on time with you, which is fine. i'm running over. >> thank you for that. >> when he says okay, his final view the vice president is the ultimate arbiter of this, and i read that, does that mean mr. east weather map and you think that will be the case for vice president harris for 2024? >> well, he recommended the vice president to send the matter back to the states, and if there was evidence to justify vice president harris taking that action of illegality, then i think certainly he would say that would be her authority to do that. he's never said the constitution one thing for republicans, another thing for democrats. that's never been his position. and there is no basis for that, certainly. >> so you and mr. eastman are saying if vice president harris wants to go any which way or overrule an election, which is what he was asking for. it was a blowout. you lost in several states, that vice president harris has that power right now? >> well, dr. eastman was always clear if the vice president or the state legislature, whoever was convinced there was illegality or fraud, then they can take these actions. he was always ultra careful. he did this before the georgia legislature. he did this with other legislators. that was always his position. the decision-makers are the vice president and the state legislatures, and they have to satisfy themselves. we're talking three state legislatures would have to do this. and only then can they take these certain actions that arguably were available to them. and that includes vice president certainly. >> the only problem with that is the founders and the supreme court thought this other group would decide the election, not either of the categories you just mentioned of politicians. they thought the voters would decide our elections. so it's a very different thing to say the politicians should end that and create a dictatorship or whatever that would be papered over with. but again, we've given you about 18 minutes here. i think people now have a deeper understanding of what arguments you're making on behalf of mr. eastman, who has not been charged, and as well that basically, you told us as well about some of the contacts with the office. you say no target later. you say some contact. and all of that newsworthy. so charles burnham, attorney for john eastman, i appreciate you making time tonight. >> thanks very much for having me. >> yes, sir. coming up, we have a special report we're working on. any other night it might have been first. but we had the big news with the interview. how donald trump is waiving his right to silence is backfiing coming up, neal katyal is here on what we just heard. his response and further analysis. neal katyal is here with opening arguments in 60 seconds. steroid free allergy relief that starts working in 30 minutes, while other allergy sprays take hours. with astepro's unbeatably fast allergy relief you can astepro and go! salonpas lidocaine flex. a super thin, flexible patch with maximum otc strength lidocaine that contours to the body to relieve pain right where it hurts. and did we mention, it really, really sticks? salonpas, it's good medicine. diabetes can serve up a lot of questions, like, "what is your glucose?" and "can you have more carbs?" before you decide... with the freestyle libre 2 system know your glucose level and where it's headed. no fingersticks needed. manage your diabetes with more confidence. and lower your a1c. the number one doctor prescribed cgm. freestyle libre 2. try it for free at freestylelibre.us which crimes do you think he was worried about being indicted for? >> oh, sure, i mean, who can even start? you remember the atmosphere in that time period after january 6th, the media speculation, the accusations going back and forth about all sorts of things. >> we just heard from charles burnham, one of the lawyers for trump co-conspirator 2 john eastman. we're back with analyst neal katyal. first, neal, your response to some of what we heard there. >> so i don't have any problem with mr. burnham, ari. the guy couldn't answer who even won the 20 tent election which seems a little bizarre, but okay, i guess. he's got a tough job to do. he is trying to do it. notably john burn -- so weak as to almost laughable. coup plotter is not a description for a lawyer. and if mr. burnham wants to call john eastman's efforts here advising a client or representing a client, then thing is only one word to describe that, which is malpractice, because there is a good reason john eastman is being called a co-conspirator and not a constitutional scholar. if eastman were just writing law review articles or as mr. burnham said debating some law professors on podcasts, that would be one thing. but instead, what he did is actively pressure the vice president and state legislatures to go through with the hare-brained scheme that as you pointed out even he thought was illegal. you don't go seeking a pardon if you thought what you were doing was kosher. >> yeah. i was curious for you to give us context. i gave him time, and he should get time. people can hear all the claims and arguments. that's how cases work. but i also point out to viewers that i'm curious to get your expertise, that part of the defense of mr. eastman now seems to be arguing things which are quite extreme, or never even made to it the court are in essence somehow unresolved or open questions. and so i'm curious if you could walk us through that, and you're quite a good guest forring this having been tapped by obama to deal with many supreme court cases. what does it mean to you if mr. eastman's basic defense is oh, i thought of things that never reached the court. so who knows? maybe they would work. >> yeah, it's really a terrible defense. and what you heard is well, there wasn't a square court case, which is wrong, as i'll explain in a moment, but he was just a champion of state legislatures, and that's what he is doing. most people who plot coups don't say the word coup. it's shrouded with language like what you just heard. and when he says oh, mr. eastman just wanted to send the matter back to the states and he was champion of state legislatures, what he really means is take the election away from you and me. that's the matter in which all americans voted and those votes were certified by secretaries of state in all the cases. and 62 different courts had signed off on that. and what did mr. burnham just cite as authority for eastman's position? he said well, the supreme court decision on moore versus harper just reaffirmed eastman's theories. i can tell you about that one, because i argued that case. >> go for it. >> and mr. eastman lost it, as bad a loss as you could possibly have. six justices, including the chief justice, justice kavanaugh, amy coney barrett all said this was preposterous. what this really is to send the matter back to states legislature idea was just a basic claim to throw out the popular vote and replace it with your own state legislatures. that's undemocratic every day of every week. this was a coup. >> exactly. and sort of showing you put aside all the verbiage and the argument that may be bad faith. and everything pushes towards overthrowing the election. so you can call it delay, but if you're delaying past the 20, if you're trying to physically stop the president-elect from going into office, the word "delay" is a giant lie. that's the eastman side of it. the other big news tonight, which if we didn't have that interview we'd good b going to you on, jack smith took donald trump's words on friday arguing for a strong protective order. we have a special report coming up later about some of this. but your response to that clash, which really i guess as we mention, rachel and i were talking about this when the news first broke, we're going to see the evidence clash right away in the case on the new trump filing on that today. you're analysis on all of that. >> trump was warned on thursday by the judge don't go intimidating witnesses. and like he couldn't even make it 24 hours without this horrendous tweet. whether or not it's a direct contempt of court, which i personally think it is, but, you know, that could be debated, and i suspect should be debated in front of the court. it is horrendous behavior for anyone to do this. and, you know, my worry is that he is going to continue it. because it's just a microcosm of his behavior of the 2020 election, which is blow off the rules, do whatever he wants, and he is doing the same thing with the solemn court process and now attacking the judge in the process. so i do hope that the judge holds a hearing on this. this is not free speech. this is an attempt to squelch witnesses and the truth from coming out, because the one thing donald trump is afraid of is the truth coming out in a court of law. >> all really striking. neal katyal on a big news tonight, thank you. for more of neal's insight, as always, go to msnbc.com/opening arguments. that's our neal katyal page here. you can see this and other recent segments we've done. coming up, i turn to the breakdown, i promise. this is one of our "the beat" special reports. we've been working on it for you. donald trump waiving his right to silence and how that is boomeranging on him. our special report next. when you shop wayfair, you get big deals for your home - every day. so big, we'll have you saying... am i a big deal? 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ask your rheumatologist for rinvoq. and take back what's yours. learn how abbvie could help you save. bridgett is here. she has no clue that i'm here. she has no clue who's in the helmet. are you ready? -i'm ready! alright. xfinity rewards creates experiences big and small, and once-in-a-lifetime. welcome back. there is just a lot of news tonight. a brand-new filing in the coup conspiracy case. trump's lawyers arguing any order limiting his speech should be narrow. the friday night filing argued for a broad limit on what trump can saying, including his dire warning that he would be coming after people. another example where trump's words could boomerang on him. he has chosen not to exercise his right to silence, which brings us to a special report right now about one of the rights that criminal differents always have, and pretty much everyone knows about from the news to, well, every criminal procedure show like "law & order." >> you're under arrest. you have the right to remain silence. you give up that right, anything you say can and will be used against you in a court of law. >> walter white you have the right to remain silent. >> you have the right to remain silent. >> you have the right to remain silent. >> i choose to waive that right. >> do you even know the miranda rights? >> yes. you have the right to remain silent. >> the one part we all know, right? well, traditionally people think of police telling a suspect about that right. under low, though, it doesn't have to be an officer. it's any government representative. that's why it was a judge who just told trump about his right to remain silent because he wasn't scooped up in a random police arrest. he was compelled to show up by appointment. you might have seen it reported in realtime last week, rachel quoting the magistrate telling defendant trump about his rights, starting with the right to remain silent. >> then the judge, per our reporters inside, quote, as i mentioned, mr. trump, you do have certain rights during this proceeding. she is listing them. you have the right to remain silent. anything you do say to a law enforcement officer can be used against you in this proceeding or in any future proceeding. do you understand that, sir? yes, he said. >> do you understand that? trump told about the right at arraignment. and as a public person, as a suspect, and now as a defendant trump, of course hasn't exercised his right very much. lawyers advise clients to stay silent in public because even if you have accurate things to say about, say, your conduct or a looming case, even previewing the defenses for the other side is a bad idea. it would be like a coach giving out plays before the game. and another reason is speaking can also box in the defense team. so sometimes good lawyering, like i was just discussing with neal katyal might involve more than one option. and you don't always want to commit to one of them in advance or have to take it back. now we turn to several types of statements trump has made which could actually be pivotal to whether or not he is convicted or even imprisoned in this coup case. first is how he talks about potentially illegal conduct in realtime while he is doing it. so any person on a large campaign, a large administration could have announced the plans about january 6th in a new idea to bring people to washington, but it was trump himself who did it. he cited voter fraud materials and summoned supporters to d.c. on january 6th in that now infamous tweet, which is cited as criminal evidence you see on your screen. prosecutors saying it adds to the evidence and also that trump urged his supporters, cultivating a widespread anger and resentment. on the day of january 6th, they also quote trump to show that he, quote, made knowingly false statements and directed the crowd in front of them to go to the capitol, not just to take a walk or for from the protest. they have every right to protest outside the capitol, but rather as a conspiracy of, quote, criminal means to obstruct the certification. and then you have trump, of course, speaking that day. >> we're going walk down, and i'll be with there with you. we're going walk down. we're going walk down anyone you want, but i think right here. we're going walk down to the capitol. >> this is an important point that didn't get fully absorbed last week. this will take time. but jack smith is not repeating what the house democrats did in impeachment in saying trump incited the entire insurrection. nor does he need to prove that. he is taking a narrower path saying what i just showed you along with other things trump just said shows that he was on board in advance, conspiring to obstruct the proceeding, which relates to my lead-off guest tonight, who is talking about their goal of the delay or obstruct the proceedings with different means. trump famously avoids creating evidence of records or writing in emails, but the talk again has still come to haunt him. it gets taken down in nonetheless, in notes, other people's emails. the indictment also says trump asked for, quote, an update for what was going on with the elector plan and directed an aide to put out a statement on the electors. again, this is chatty trump. some people would be a little more careful if they were, you know, aware of what they were asking for. but he got caught. the witnesses here clearly told prosecutors he was talking about the plans as he went. now, in the secret documents case, you have a similar echo. same category. trump in realtime talking about his own crime. for example, he says something in this meeting that has haunted later attempts to claim he didn't know what he was doing. honest mistake. listen as he confesses. and at this point, he could no longer declassified his pilfered classified documents. >> which is done by the mill texas, given to me. i think we can probably, right? >> i don't know. we'll have to see. we'll have to try to -- >> declassify. if see, as president i could declassified it, now i can't. but this is classified. isn't that interesting? >> confession from words. there is another category where trump will keep talking after something has gone down. sometimes he is making false claims with prosecutors notice. this is of course against legal advice. but consider that he just lied about january 6th. about the insurrectionist now convicted seditionists. he claimed they were peaceful people. that there was a lovefest between the capitol police and the people who walked down to the capitol. and then, he didn't need to do, this but he waived his right to remain silent and talked about giving power back to pardon some of the very people convicted, some now listed as co-conspirators who staged the insurrection. >> we will treat those people from january 6th fairly. and if it requires pardons, we will give them pardons. >> and i'm financially supporting people that are incredible. i will look very, very favorably about full pardons. >> do you have any regrets about your actions on january 6th? >> i said walk peacefully and patriotically. >> so that's just some of that. and there is a final category. and this is where he has really gotten into trouble. donald trump not just talking, waiving the right to remain silent, but trying to talk and advocate as his own lawyer. this is where he thinks he is doing things that are helping the case. a judge recently admonished him for the way that he called this rape trial a, quote, made up scam online. his lawyer joe tacopina acknowledged the difficulty of even restraining trump, telling the judge, i'll do the best i can do, your honor. that's all i can say. after trump lost that defamation case related to the rape trial, he went on tv the next day and talked about the person who just beat him in court, carroll, the plaintiff is a whack job and saying the claims were made up. which pretty bad lawyering caused carroll to legally be able to pursue even more damages. another case now scheduled for next year. now, some of these cases are civil, meaning they're important, but they may not affect whether he can ever get back in the white house. criminal ones, though, could do that. and trump has sort of brainstormed, made up and lied about things that only a lawyer would be able to say, trying to offer his legal defense. >> you're the president of the united states, you can declassify just by saying it's declassified. even by thinking about it. all of my documents fell under what is known as the presidential records act, which is not at all a criminal act. in one case, you have the presidential records act. i'm allowed to do whatever. but in the other case, it's free speech. >> this is a free speech killing indictment, killing free speech. that's what it is. >> trump also has this habit of going after prosecutors, like when he posted this picture swinging a baseball bat against the d.a., which he thinks is some sort of lawyering or intimidation. in fact, just like the case we're covering tonight, it got folded into how a judge is considering the rules for him. and trump has been very clear about his perceived payback plan. >> i will direct a completely overhaul doj to investigate every radical d.a. and he in, he for her illegal racist and reverse enforcement of the law. >> now he has the right to remain silent. he also has the right to speak. but this is stuff that has severely complicated, undercut, or caused him even to lose some of these cases. the difference now tonight if you're saying okay, ari, but what's different? this is a big one. that's why trump's lawyers are so nervous. that's why other lawyers in the maga firmament are emerging. everybody understands this case go to trial before the election, he could be convicted. if the supreme court doesn't intervene, he could be physically incarcerated, which makes it hard to run for office, among other things. but he just won't keep quiet. even if his lawyers know that when he talks, he gets himself in trouble, legal trouble. which brings us to the world of sports, and a moment that has echoed as a kind of global meme, a postgame remark by chelsea soccer coach jose mourinho, exercising his silence. >> i prefer not to speak. if i speak, i am in big trouble, in big trouble. i don't want to be in big trouble. >> very big trouble. that's someone who might know their own weakness, that they have thoughts, they know what they want to say, but saying them will get them in trouble. that's a type of self-awareness that this defendant, donald trump doesn't have. and that soccer moment was actually referenced by the british artist stormsy, bringing it into the world of this big question about when you speak and how soccer sometimes is a good guide for life. take a look. >> they love toe talk about the old days, annie are you okay? i prefer not to speak, like i'm jose. >> i prefer not to -- not to speak. if i speak, i am in big trouble. >> sometimes speaking can get you in the largest trouble of all. next we turner broadcasting to one of our experts, the head of the criminal decision who knows all about using words in court, when we come back. feel darkest before dawn. with caplyta, there's a chance to let in the lyte. caplyta is proven to deliver significant relief across bipolar depression. unlike some medicines that only treat bipolar i, caplyta treats both bipolar i and ii depression. and in clinical trials, movement disorders and weight gain were not common. call your doctor about sudden mood changes, behaviors, or suicidal thoughts. antidepressants may increase these risks in young adults. elderly dementia patients have increased risk of death or stroke. report fever, confusion, stiff or uncontrollable muscle movements which may be life threatening or permanent. these aren't all the serious side effects. caplyta can help you let in the lyte. ask your doctor about caplyta. find savings and support at caplyta.com. ♪ i have type 2 diabetes, ♪ ♪ but i manage it well. ♪ ♪ it's a little pill with a big story to tell. ♪ ♪ i take once-daily jardiance, ♪ ♪ at each day's staaart. ♪ ♪ as time went on it was easy to seee ♪ ♪ i'm lowering my a1c. ♪ jardiance works 24/7 in your body to flush out some sugar! and for adults with type 2 diabetes and known heart disease, jardiance can lower the risk of cardiovascular death, too. jardiance may cause serious side effects including ketoacidosis that may be fatal, dehydration, that can lead to sudden worsening of kidney function, and genital yeast or urinary tract infections. a rare, life-threatening bacterial infection in the skin of the perineum could occur. stop taking jardiance and call your doctor right away if you have symptoms of this infection, ketoacidosis, or an allergic reaction, and don't take it if you're on dialysis. taking jardiance with a sulfonylurea or insulin may cause low blood sugar. ♪ jardiance is really swell, ♪ ♪ the little pill with a big story to tell. ♪ when moderate to severe ulcerative colitis takes you off course. put it in check with rinvoq, a once-daily pill. when i wanted to see results fast, rinvoq delivered rapid symptom relief and helped leave bathroom urgency behind. check. when uc tried to slow me down... i got lasting, steroid-free remission with rinvoq. check. and when uc caused damage rinvoq came through by visibly repairing my colon lining. check. rapid symptom relief... lasting steroid-free remission... ...and the chance to visibly repair the colon lining. check, check, and check. rinvoq can lower your ability to fight infections, including tb. serious infections and blood clots, some fatal; cancers, including lymphoma and skin cancer; death, heart attack, stroke, and tears in the stomach or intestines occurred. people 50 and older with at least 1 heart disease risk factor have higher risks. don't take if allergic to rinvoq as serious reactions can occur. tell your doctor if you are or may become pregnant. put uc in check and keep it there with rinvoq. ask your gastroenterologist about rinvoq and learn how abbvie can help you save. 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(no way!) start today at godaddy.com. we're back with the doj's head of the criminal decision, leslie caldwell. thanks for coming back. >> thanks for having me, ari. >> appreciate it. we went through some of the history in more than one case. you don't have to exercise your right. so donald trump can clearly maintain a right to silence on certain issues or speak. he has chosen to speak repeatedly. i was curious. your legal analysis of how that is actually playing out in court. because we've seen smith in the indictment last week and his friday filing really use donald trump's words to get where apparently doj wants to go. to . >> yes, and that's consistent with what we have seen throughout this case. where for example, in the documents case in florida, trump was quoted extensively showing that he had a strong understanding of what classified material meant, and why it had to be protected, et cetera. he's just continuing to say things that if they're useful to the government or the government's theory will definitely -- he'll be hearing them again in the courtroom. >> what portion of these charges which you have now had time to absorb do you think draw on the evidence from trump's words? obviously, you need more than that, and they have that, but you have dealt and overseen many cases. it did seem to be a pretty good chunk or a big part of the story that smith tells. >> yeah, i think it's a part of the story that's pretty well laid out in both of the cases jack smith has brought. not only is trump himself quoted and some of his written tweets, et cetera, are quoted, but his conversations with others and emails that others wrote that mentioned things that he said are quoted. and to the extent he continues to say things that are useful to the government, they will definitely use those. the other thing he's got to be much more careful about than he's been is it's not free speech to be in contempt of court. it's not free speech to threaten people. so far, he's been a little bit vague in what exactly he's doing and threatening, but those would cross the line and would not be protected by the first amendment. so he's got to -- i'm sure his lawyers are trying to rein him in, but good luck with that. >> good luck, and that's sort of what we showed in the setup to bringing you on, is mr. tacopina who has been on this program and others, you know, with diplomatic language, they have all but said in more than one forum, we're trying, we have a challenging client. and that doesn't mean he's guilty or not, as you said, he may say things that complicate the case and the process may find that he went over the line and threatened someone in the way that's indictable, but they all but said that. they're also saying tonight, and i mentioned a new filing, that the protective order which is kind of a subset issue, like before we get to the trial, how you deal with the evidence, really tramples what they call the first amendment rights of someone who is also a public figure and candidates. they say, quote, in a trial about first amendment rights, government, that's jack smith, seeks to restrict first amendment rights. worse, it does so against its administrations, that's bringing up jack smith -- he's part of garland doj which is part of the biden administration, primary political opponent during an election season. my question to you in fairness to them is, you know, claiming that you have a first amendment right to rob a bank or stage a coup because the words were involved in the plot is out of bounds, zero, it goes nowhere. but claiming the protective order should be narrow because as a candidate you might want to discuss aspects of this including the last election, that seems at least a debatable point. i was curious your assessment of what they're doing there and its validity. >> i think the first premise of what you just showed on the screen is that this is a case about first amendment rights. that's not true. it's not about first amendment rights. it's about conspiracy to obstruct justice, conspiracy to overthrow the election. it's not a first amendment case. so to couch it that way is trying to have people look at it a certain way which isn't supported really by the theory or the evidence. protective orders are often used in criminal cases. they're subject to negotiation between the parties and ultimately the decision will come down through the judge, deciding what terms the protective order should have. it's not at all unusual for there to be a protective order, particularly in a high-profile case such as this one. >> i appreciate the way you split the issues. as you say, they're trying to do a lot in that paragraph. before i let you go, did you want to weigh in on whether a defendant like mr. trump or others would be better served by the soccer coach's advice, prefer not to speak, or just to let it rip? do you have any counsel there? >> so i think from a pure criminal defense perspective it's generally not a good idea for the defendant to be speaking, an indicted defendant to speak publicly or otherwise about his case. trump, though, is trying to do two different things here. one is he's trying to talk about his case but what he's really trying to do is run for re-election. i think he must feel that he needs to get his message out in a way that he perceives his supporters will approve of. so i think that's really what he's focusing on more than the case itself. >> understood. doj veteran leslie caldwell, thank you again. we'll be right back. ♪♪ when you have chronic kidney disease... there are places you'd like to be. like here. and here. not so much here. if you have chronic kidney disease, farxiga can help you keep living life. ♪ farxiga ♪ and farxiga reduces the risk of kidney failure, which can lead to dialysis. farxiga can cause serious side effects including dehydration, urinary tract or genital yeast infections in women and men, and low blood sugar. ketoacidosis is a serious side effect that may lead to death. a rare life-threatening bacterial infection in the skin of the perineum could occur. stop taking farxiga and call your doctor right away if you have symptoms of this bacterial infection, an allergic reaction, or ketoacidosis. farxiga can help you keep living life. ask your doctor for farxiga for chronic kidney disease. if you can't afford your medication, astrazeneca may be able to help. ♪ farxiga ♪ when migraine strikes, you're faced with a choice. ride it out with the tradeoffs of treating? 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>> well, he recommended the vice president to send the matter back to the states. if there was evidence to justify vice president harris taking that action, i think certainly he would say that would be her authority to do that. >> the lawyer arguing there that this was not partisan or political and they kept using the word delay or investigate for what as we discussed with neat caught yawl was to obstruct the election of president biden. we'll have lot more thant in the days ahead. "the reidout" with joy reid starts now. tonight on "the reidout" -- >> he said the president asked him to violate the constitution, which is another way of saying he asked me to break the law. >> he never said -- no, that's wrong. that's wrong. a technical violation of the constitution is not violation of criminal law. that's just plain wrong. >> oh, yes. trump's alleged crimes are just, you know, technical violations of the constitution. nothing to get all worked up about. that's the best trump's lawyers can do, and tonight, we're