>> what a nice surprise to see you. i knew you and i were gonna be talking later this weekend, because we have important matters to discuss, but nice to see you in real life. >> have a great show. thanks for having me. >> thanks. we'll talk to you on sunday. major breaking news of the federal criminal trial of donald trump, for his efforts to try to overturn the election results, before and on january 6th. tonight the judge, tanya chutkan, has denied two trump motions to have the government's case against him thrown out. fair warning, if you happen to be watching from mar-a-lago tonight, the ketchup might be flying. judge chutkan begins with a robust takedown of the trump claim that as a former president he is immune from criminal prosecution. here's what it says, quote, whatever immunities a sitting president may enjoy, the united states has only one chief executive at a time, and that position does not confer a life long get out of jail free pass. former presidents enjoy no special conditions on their federal criminal liability. they may be federal to federal mastication, indictment, prosecution, and punishment for any criminal acts undertaken while in office, and quote. judge chutkan goes on to explain why in america we have equal justice, quote, the public has an undisputed interest in promoting respect for the law, deterring crime, protecting itself, and rehabilitating offenders. all of those interests would be thwarted by granting former presidents absolute criminal immunity. most importantly, former presidents exposure to federal criminal liability is essential to fulfilling our constitutional promise of equal justice under the law, end quote. and, judge chutkan explain the difference between protecting a president not just from civil actions such as wrongful termination lawsuits or replacing a cabinet member, and criminal activity. quote, the rationale for immunizing and presidents controversial decisions from civil liability does not extend to sheltering his criminality. indeed, the possibility of future criminal liability might encourage the kind of sober reflection that would reinforce rather than defeat important constitutional values. if the specter of subsequent prosecution encourages the sitting president to reconsider before deciding to act with criminal intent, that is a benefit, not a defect. and quote. judge chutkan, by the way, it's a 48-page response, which is worth reading. she denied the trump claim that to prosecute him in federal court would be double jeopardy since he was already a peep impeached and acquitted by republicans in the senate after january six. she echoed the understanding mitch mcconnell had when he voted to acquit donald trump in 2021. >> president trump is still liable for everything he did while he was in office. and an ordinary citizen. unless the statue limitations veteran, still liable for everything he did while he was in office. didn't get away with anything. yet. yet. we have a criminal justice system in this country. we have civil litigation. former presidents are not immune from being accountable by either one. >> judge chutkan also ruled against trump on his first amendment motion. we're gonna get all that in a moment. judge chutkan's decision tonight on immunity follows a federal appeals court decision this morning that ruled that donald trump can be sued by capitol police officers and members of congress in civil court for his actions on january the 6th. the appeals court wrote, quote, in arguing that he is entitled to official act immunity in cases before, as president trump does not dispute that he engaged in his alleged actions up to and on january 6th in his capacity as a candidate. but he thinks that that does not matter. rather, in his view, a presidents speech on manage the public concern is of invariably unofficial function, and he was engaged in that function when he spoke at the january 6th rally and in the lead up to that day. we cannot accept that rationale. and quote. the appeals court also done by the trump argument that january six was trump executing his oath of office. president trump maintains that his actions as alleged in the complaint falls within the outer perimeter of official presidential responsibility, entirely him to an official act immunity to official act immunity is to all the claims against him. his primary argument is that his alleged actions leading up to and on january six were official presidential actions because they amounted to speech on matters of public concern. the alternative, he submits, that those actions were official because they came within his constitutional duty under the take care clause. we are on persuaded by either argument. we are on persuaded by either argument. joining us now, someone else who is on persuaded by it, democratic congressman eric swalwell of california, because he specifically is one of the plaintiffs against donald trump for january six that can now proceed as a result of today's appeals court decision. also with us, joyce vance, former united states attorney and professor at the university of alabama school of law, co-host of the podcast sisters in law, and an msnbc legal analyst. welcome to both of you. thank you for being here this evening. choice, you know i've taken two enjoying reading legal documents. this 48-page document, issued by judge chutkan, is some good reading. choices doing their star trek transformer thing. there we go. we've got you back. sorry, choice, we had a signal problem there. it's some good reading. not only is it pretty easy to read but she is very specific about why she is taking this decision she is taking, almost with an eye to the fact that anything judge tanya chutkan does or judge mcafee does or alien canada's, is going to end up possibly before the supreme court. she's laying it all out. she saying this is where the courts look at it. this is where the supreme court will look at it. this is what our law says. it's all pretty clear. >> yeah, i think that's right, a very clear opinion written with an eye to the appeal because unlike many issues that have to wait until a trial for an appeal, defendants are entitled to appeal these sorts of immunity issues for a trial takes place. this one will be off to the races pretty quickly, but judge chutkan writes forcibly and the argument is essentially this, that former presidents are not above the law. she justifies that in the context of mystery, tradition, history, tradition, in case law. donald trump isn't above the law. americans are entitled to see anyone held accountable for criminality including a former president. >> congressman, good to see you again today, i want to ask you about the other part. the civil suit. don trump tried a lot of things today in court, and, that they were all expected things. for most people they were technical legal matters. but none of them went his way, including the fact that people like you or a capitol police can sue the president in civil court based on actions that he took on and leading up to january 6th. were you expecting that decision? and what do you make of it? >> i brought the case, ali, because i wanted accountability and, this idea that nobody is above, it not even the president of the united states, and now the federal district court has said that in the court a little bit higher than them just under the supreme court has affirmed that. what it shows is that donald trump is facing this tapestry of accountability, and it's being stitched together by civil and criminal cases all over the country. and perhaps, as we go into this next election, that tapestry of accountability, where the rule of law and constitution is looking, is a security blanket for our democracy. so i do believe at the end of the day, regardless of how this case goes down in front of a jury or how the criminal cases go down, the strength of our democracy is going to be that we went through this exercise and donald trump's faithful handle rest in the hands of jurors who are his peers. it won't be trump justice, which is what he would exact on people where he as king is the judge, jury, an executioner. it will be american justice. >> by the way, there are lots of references, joyce, in tiny check-ins references to kings and how presidents are not kings and how the framers of the constitution wanted to make that very clear. in that part of her decision she also speaks to the separations of powers. i'd like to read it to you, because it's some of those things might come into play later but it's very important about the case at all trump was trying to make and why she didn't go for it. she says the fact that no longer spoken by criminalizing the conduct with which the defendant is charged also highlights the separation of powers principal that council in favor of the court retaining jurisdiction over this case. holding a former president absolutely immune with us impinge on the functions of all three branches with respect to criminal law. congress is province to make it, the executives prerogative to enforce it, and the judiciary's charge to apply it. what is the point she's making here? >> so she is making a compelling argument to the supreme court, saying we value the separation of powers, but we also value the ability to of each branch to perform its functions. and so she is telling supreme court, if you reverse my decision, you will impair essential functions of government. she has been reading the supreme courts opinions for the last term in particular, when they have been focused on the founding found fathers intent on -- history and tradition. here's american history in tradition for you. former presidents have to be held accountable like everyone else. trump can't be a moon, and it's masterfully done because she has written an argument that will be appealing to the people that will hear it on appeal. >> donald trump, congressman, felt that this could be dealt with me easily because he's been impeached by congress, that's why we play that piece of sound from mitch mcconnell, who said, on the day the don trump was not convicted in the senate, the d'entremont still holds responsibility, he still can be charged in civil court and unless the statute of limitations come out. you were in impeachment manager against donald trump. that has, judge chutkan has held today what mitch mcconnell said that. now i have it >> that doesn't leave mitch mcconnell off the hook, by the way, because he could have led the effort to convict donald trump. we prove that case. many republicans joined us and on trump would not be able to run for president today or ever hold federal office if they had connected the dots and had the courage to do that. that is side, what our case also shows or what mcconnell was referring to, we will be able to, as we do depositions in discovery, getting evidence from donald trump, we'll learn more about what happened leading up to january six and on jen you. it's what downtown did and didn't do that cause january 6th. and by the way, all of these individuals who refused to testify in congress, including what donald trump refused to provide, we will no longer be able to refuse. they won't have the privileges that they used to not come to congress because this is a private civil case and so they will be compelled to come forward, so we're going to learn a heck of a lot more about what happened leading up to january six. >> joyce, i want to ask you another thing that was brought up and that was the issue of campaigning, and i think the idea came up in i don't know which case it was, that the lawyers said, i think it's georgia, where the monogram can't be called upon to be at trial while he's busy cam plating campaigning, that will be election interference. and then they said what if he becomes president? lawyer said he can't be tried, obviously, while he's president. so that it is basically, you have this trial put off possibly till 2029? talk to me about the business of the president, former president campaigning to be president. >> right. so this is the fulton county hearing today. and ali, we heard what steve sadow, to trump's lawyer in atlanta, say allowed the things that we were afraid to hear. up until now we have all had some comfort level that the georgia case is something that trump could not tamper with if he becomes president. but what steve sadow said today was you know judge you can't trump try my client while he's a candidate for the presidency. that would be election interference. and you can try my client of his elected president because under the supremacy clause of the united states, that would be -- so you'd have to put this case off until he left the white house. now the judge, who i think is very good at holding his cards sort of close to the vest, didn't indicate whether he was buying either one of these arguments and where he might land. but now we see what the stakes are here. these cases don't go to trial before the election. >> and some of his own questions helped you get a sense of this is often a case in oral arguments of the supreme court. listen to what the judges ask. it gives you an indication of what they're thinking. i want to talk to you more about this case when we come back, joyce, so stick around. eric swalwell of california. coming up, as we were just talking about in fulton county, don trump's lawyer said, i am not misspeaking, that he might not be able to be tried for his efforts to overturn the election in georgia until 2029. amy lee copeland joins me, and joyce comes back, on the other side of the break. eak. eak. which is why downy does more to make clothes softer, fresher, and better. downy. breathe life into your laundry. hmmm... can this be more, squiggly? perfect! so now, do you have a driver's license? oh. what did you get us? with the click of a pen, you can a new volkswagen at the sign, then drive event. hurry in to lease a new 2023 all-electric 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and all on the most reliable 5g mobile network nationwide. wireless that works for you. >> all right, today don trump it's not just possible, it's happening. made his most concerted effort yet to evade accountability in fulton county, georgia. it was the first time fulton county judge scott mcafee heard directly from trump's criminal defense team, including the lead attorney, stephen sadow, who said trump can't be put on trial because he's running for president. >> can you abandon the notion of the republican nominee for president not being able to campaign for the presidency because he is, in some form or fashion, in court? the bottom line is, i don't think we should set a trial date. >> of course not. and here's where trump's ultimate goal in fulton county became clear. >> if your client does win election in 2024, could he even be tried in 2025? >> the answer to that is, i believe, that under the -- laws and his duty as president of the night in states, the trial would not take place at all until after he left his term in office. >> till after he left office? that would be 2029. just attorney fani willis's team responded to that outrageous proposition with a simple request to, quote, move forward with this business at fulton county. attorneys for multiple codefendants argued that the case should be dismissed on first amendment grounds. >> this is it. this is the first time that a prosecution of this type has been brought in this country, as far as i'm aware. the reason these lawsuits haven't been brought is because the first amendment says you can't bring them. we're going to allow the discourse, we're going to allow the statements, even if they're false, because somebody's false statement is another person's truth. >> and here is fulton county's response to that. >> we heard from the other side that this is the first time a prosecution of this type has been brought, that is unprecedented and, that may be true, but this is the first time a criminal enterprise has gotten together and try to overturn the results of election. so i don't think it's a particularly persuasive argument. this is the first time a case like this has been brought. there's going to be a first-time case under any statute or any situation, is good to be brought, it doesn't make it unconstitutional. >> the judge there, scott mcafee, has not yet ruled on the schedule of the trial or any of the issues argued today. but the timing of the trial is actually going to be remarkably important. joining us now, amy lee copeland, criminal defense attorney and former georgia federal prosecutor. joyce vance is back with us. this thing to both of you to be here. let's talk about this, amy lee. the concept of the trial in fulton county, fani willis has said she'll be ready to go around august-ish. but because of issues having to do with the appeals on the federal trial, the judge did ask, how much time we do need if this trial could go earlier? and the lawyer said about 30 days, which means this trial could be the first one. >> it could be, ali. it could be anytime between now and 2029. but when asked, the state said it would need about a 30-day jump to subpoena witnesses, they have a trial run with that with the judge from appellate trials that simply didn't go forward. so they're ready to go. but you also know the countervailing claim of eastman who said listen, i just can't wait around until 2029 to do it. that led judge mcafy other roads like, would this be tried as two -- of defendants, would it be defended as a defense each, and probably possibly trot by himself. we came out with more questions than answers when it comes to the timing of the trial. >> let's talk about the first amendment business, joyce. in fact, not in his indictment, but in the jack smith indictment, i think it's the second or third page. very very clear. everybody needs to defense with the first amendment saying. everybody's gotta right to lie. donald trump has a right to lie, he's gottaa right to lie a