taylor swift got her fifth nomination for the taylor swift eras tour film. our coverage continues with "katy tur reports" right now. good to be with you, i'm katy tur. special counsel jack smith is going directly to the supreme court, asking the justices to weigh in on his election interference case. smith is looking for a ruling on whether a president has immunity from crimes while committed in office. it is a potentially very risky move. after all the justices say, yes, he is immune, the case is over. kaput. but if they rule no, it cuts off donald trump's ability to delay the trial through appeals. so big risk, big reward. meaning he would go to court on or close to the march trial date, thereby giving voters a chance to hear the evidence against the man who is asking to be president again. jack smith writing, quote, it is of imperative public importance that respondent's claims of immunity be resolved by this court and that the respondent's trial proceed as promptly as possible. if his claim of immunity is rejected. so will the justices weigh in, and if they do not, what does jack smith do next? joining us now, nbc news correspondent vaughn hillyard on the politics of all of this, msnbc legal analyst, lisa rubin, and former acting assistant attorney general for national security and nbc news legal analyst, mary mccord. i will start with you. does the supreme court say, yes, we will weigh in, and we will weigh in quickly? >> i think they will say that they will weigh in. that is fairly unusual procedure to seek what's called certify j they found other cases important enough take directly from a district court ruling without a stop at the circuit court of appeals on the way. what could be more important. the court did this also back in the nixon case, back when a watergate case was going to trial, against someone else involved in watergate, and the special counsel sought documents to subpoena them from president nixon who had refused and sought to quash that subpoena, and because those materials were needed, it was the tapes were needed for that prosecution, this is another case where the special counsel went straight from the district court up to the supreme court. the supreme court took that case, and from the time it went up until it was resolved, it was just a matter of weeks, and trial was able to start as scheduled. that's exactly the game plan that jack smith is following now, and i do think the supreme court will take the case. >> that is the game plan that jack smith is following. we know how the supreme court weighed in on that. let me ask you about how this makeup, this court, whether we can apply past as precedent with the justices sitting on the supreme court. three were appointed by donald trump. >> right, but i would not take the appointment of three justices by donald trump as necessarily an indicator of how they will rule on the question of presidential immunity. there's no actual precedent for absolute immunity from prosecution for a president. there is immunity that is a limited immunity for civil cases against a president, but no precedent, and i know precedent and president sound similar so i'm going to try not to use the same word so it's not confusing. there's no case resolved when it comes to criminal immunity, immunity from criminal prosecution. it's a very important issue, and i do think we have certainly seen this court, notwithstanding its makeup, issue opinions that aren't always favorable to mr. trump. you know, back when the white house select committee sought presidential records as part of its investigation into january 6th, mr. trump sought to prevent those presidential records asserting an executive privilege. that case also went up to the supreme court after mr. trump lost in both the district court and the court of appeals, and the supreme court refused to reverse that ruling, refused to stay it and denied cert. that was a blow to the former president. documents that were a substantial part of the house select committee's extensive report on january 6th, those immediately started flowing over to the house select committee. i think the supreme court will be looking at this case based on its importance to the rule of law, based on history and precedent, and i'm not going to predict the outcome, but i will say that judge chutkan's decision denying absolute presidential immunity was a very very strong decision, founded in the text of the constitution, which has no immunity provision for presidents, founded in our structure, our separation of powers structure. >> she does say that, there is no immunity in the constitution, it does not exist for presidents. i want to get into the constitution and what it says in a moment, but let's talk about, lisa, this is a big risk, there's a record for what judges have decided in the past on these cases and whether he has the ability to stop documents, et cetera. but still, if jack smith doesn't get this, everything is gone, lection interference case kaput, you can have arguments about the classified documents case, all sorts of things will be endangered in terms of the ability to hold donald trump accountable for his actions. >> let's start, katy, from the premise that many of us thing the only case that could be tried before the election is the one in question now. and of course the supreme court has another option available to it which is it doesn't have to grant cert before judgment. they don't have to rule on the merits. i agree they probably will. they could say we're going to wait to see what the d.c. circuit does. which is what makes what jack smith did today particularly brilliant because it has a two-headed strategy. on one hand he's going to the d.c. circuit and saying please expedite the appeal so the case can be tried, and saying to the supreme court, let us leapfrog the d.c. circuit and come directly to you. >> is that potentially problematic, does the d.c. circuit say, what are you doing, why are you trying to leapfrog us? does it backfire? >> they understand time is of the essence, this is urgent and we understand as the special counsel's office that trump's appeal on the immunity decision necessarily pauses the trial. >> does he have any merit when he argues immunity is this is there any standing, any case law, any precedent he's relying on when he says i was president of the united states, i shouldn't be held accountable for what happened on january 6th or i was president, and i was doing my duty as somebody who is supposed to protect the constitution, and i felt the election was not fair. so it was just due diligence? >> i can tell you yes and no, right. in the civil context, the supreme court has recognized that there is limited civil immunity for presidents when they are acting within what is described as the outer perimeter of their duty. there is no criminal precedent theory. the other problem for donald trump is the d.c. circuit decided in three civil cases having to do with january 6th that that limited civil immunity isn't available to donald trump, why? because he wasn't acting in his official capacity but a campaign one, and it's very likely that a court could decide the same thing here with respect to criminal immunity. yes, maybe the president is entitled to some criminal immunity, but it could be fact specific, and depending on whether he's acting in the outer perimeter of his official duties. >> i'm going to get to the politics in a moment. if the supreme court does weigh in and they do say that he does not have immunity, they allow the case to go forward, does that mean, as i said in the open, that this would happen on schedule in march or near to that or does donald trump have another delay tactic that he could potentially use? >> well, there are a lot of the proceedings right now in the district court are staged. now, jack smith filed just yesterday or maybe it was this morning. i swear there's been so many filings in the last 48 hours, it's hard to keep track, but did file a brief in the district court saying we agree with donald trump that there is an automatic stay that happens when you have appealed something but it's not a stay of everything. the district court can decide certain motions that have been fully briefed and still require the government to keep preparing for trial. unclear how the district court is going to rule. certain proceedings will be stayed in the district court. it really depends on how fast the supreme court rules, they take the case, rule against donald trump. will they rule against him before march 4th, and will it be enough time before march 4th to get a jury selected and impanelled and ready to go or will it slip by days or weeks. that remains to be seen, but the schedule that jack smith is asking for is aggressive. it's trump, file your opposition by next monday. supreme court, i hope you would decide it quickly at your next conference, and then a note that in the nixon case, the supreme court took it one week later, and then they said, this is the schedule. once the supreme court, we would suggest that the parties exchange briefs 14 days later, replies seven days later, and arguments scheduled. with that schedule, we could be talking about the case being fully briefed and argued by the middle to late january. >> vaughn, let's talk about the politics of this. we have seen donald trump at his civil trial in new york. how much attention is he paying to this elections case in d.c.? >> absolutely, we have to come back to the time line here. frankly, i don't know if we're ready for this, the campaigns are ready for this or the legal team. once we get to the point of march 4th here, this is going to be a race to the finish line because july 15th, i'm not talking about november of 2024, i'm talking about july 15th. that is the day the republican national convention begins. right now, if polling holds, donald trump wins the nomination outright, but could they come this next summer, the republican delegates with their gop nominee convicted on federal crimes. that's going to be a decision on the floor of the convention. >> can they pull an audible? are the delegates tied to what the states sdmds. >> -- states decide. >> there was kerfuffle whether ted cruz could take over the nomination, and he argued there would be riots on the street. >> there were ted cruz allies that were trying to unbind the delegates. that is political party, they can do whatever the heck they want. next summer, if 2/3 vote to unbind the delegates, you've got a festive party here. he has no incentive to have this trial began on march 4th. april, may, june, there's a couple of intervening weeks between the time that the trial could conclude and the timehe convention could take place, and it would be up to the republican party activists toermine whether or not they want donald trump as the party's nominee, understanding a conviction is taking place. >> do they see this as an asset politically? they say that publicly. this is helping us. there are people that argue if there are no cases against them, he would have just failed off and not been able to regain as much power as he so far has been able to do because there's been so much tension, and he's been able to paint himself as a victim in this. >> i don't think anybody legally is going to make the case that this is beneficial if you're going to trial. at the same time, what we are increasingly hearing is i am told by allies of donald trump and aides of his, look where the polling numbers stand. here in iowa just today, we have the new polling numbers. >> 51%. >> 51%. 70% said they are firm in their support of him. his numbers have only grown here and for donald trump, somebody emboldened by this year, he has seen every advantage to indictments and to the intention that this is garnered because he made the case to the american public that he is being politically targeted in an effort to take down the maga movement. right now, the republican electorate is siding with the argument. >> let me ask you about that narrow gag order that we talked about last week, reinstated in the elections case. this was regarding what donald trump could say about witnesses, potential witnesses. shortly after that, a few hours later, after you and i talked about this. donald trump went, i believe, on social media, and went after bill barr, calling him a coward. does that constitute a violation of the gag order? >> not in my view. law is an art, not a science. you might get a different answer from mary and a number of lawyers who come on the show. in my view, no. the reason is because it's not concerning his participation in the trial or in the investigation. calling bill barr a coward in the abstract could be about anything. if he said bill barr is a coward, and i don't think he has the courage to come to the trial and testify, that might across the line. as it is, bill barr is a an epithet, but not a violation of the gag order. >> donald trump was supposed to be testifying today, but decided not to. maybe his lawyers decided it wasn't a good idea to end the case on a bad note with the judge. we saw what happened with the judge when the defense called him or when the prosecution called him to testify. we're going to wait on the judge's decision i that case. it's still ongoing. we should probably get something in january. is that what you expect? >> i expect a few weeks after january. closing arguments are january 11th, and judge arthur engoron said he will take a few weeks to make up his mind and issue a ruling. >> $250 million is what the ag wants. vaughn hillyard, lisa rubin, mary mccord, thank you very much. ag ken paxton said it did not matter that her baby would not survive. now kate cox says she will leave the state to get an emergency abortion. what the texas supreme court is saying. plus, where is alexei navalny, the jailed russian opposition leader didn't show up to court today, and his lawyers haven't heard from him. but first, how much will rudy giuliani owe. his georgia defamation case started today. what the jury heard from lawyers on day one. we are back in 60 seconds. portu. ♪ please be a phone, please be a phone. is it a phone? oh, it smells like a cat nip toy from chewy. that's not a phone. get a free, $30 egift card at chewy. this is better than toilet paper get great deals on gifts that deliver excitement, at chewy. rudy giuliani is officially on trial right now. it is day one of the $43.5 million defamation suit brought by shaye moss and ruby freeman. opening statements are underway. a judge has found giuliani liable for smearing the mother and daughter as he tried to overturn the 2020 election results. a jury will decide what the damages are. joining us outside the district courthouse, nbc's justice reporter, ryan reilly. opening statements, what are they hearing? >> reporter: the defense attorney general in this case representing rudy giuliani said at the owned of this trial he's going to ask jurors to award damages to the plaintiffs and have his client be on the hook for damages. he didn't say how much that's going to be. that should be on the lower end of the spectrum. he brought up the johnny depp trial, saying they were asking for more money than johnny depp, and at some point, you need to relate the amount of money requested back to some realistic figure for what the damages were here. it's really about what money figure they're going to land on. you had a really compelling case put together by the plaintiff's attorneys here, talking about the damage that this had. the racist attacks that they had after these false claims were made against these two georgia workers, and of course we heard testimony already from the january 6th committee, where shaye moss laid out exactly what happened to her as a result of some of these false claims against her. take a listen. >> it has turned my life upside down. i no longer give out my business card. i don't transfer calls. i don't want anyone knowing my name. >> reporter: so there's some really dramatic obviously testimony there that we should hear more of, ultimately when they actually take the stand. and rudy giuliani himself is expected to take the stand in his own defense so this case should probably wrap up by the end of the week here. but we'll figure out what exactly damages rudy giuliani will be forced to pay, and whether or not he can indeed pay those. he's on the hook for so much, and is in fact selling his home in new york because of some of the figures that he's facing. the consequences of what people did in 2020 are now in 2023 coming home to roost. >> a remind over more of what he is currently facing. isn't one of his lawyers, his long time lawyers also suing him because he hasn't been paid? >> reporter: unfortunately lost you. can't hear. >> can you hear me now, ryan? >> reporter: i can hear you, yep. >> good. remind us what rudy giuliani is facing, isn't one of his long time lawyers suing him because he hasn't been paid? >> reporter: he is, yeah. so he's facing a lot of liability coming down the pipeline here including that lawsuit from one of his lawyers who's representing him. and of course he also has these two criminal cases sitting out there, one that's already on the books, and one that will be forthcoming, because he is unindicted coconspirator number one in jack smith's investigation, and those unindicted coconspirators can expect the charges to come forward as well, that's all if donald trump is not in the president's office. obviously then the justice department is going to have a much different procedure towards all of these individuals who have been associated with donald trump and the jack smith case. >> ryan reilly, thank you very much. and coming up next, doctors say her baby will not survive, and if she does not end the pregnancy, she might not be able to get pregnant again. a court agreed but now texas ag ken paxton is involved. what the mom says she's going to do. israel says it is the beginning of the end. what officials there say about hamas's ability to wage war. blet small communities can achieve. trying to give a better life to people that don't have the means to do it. si mi papá estuviera vivo, sé que él tuviera orgulloso también de vivir de esta viviendo una vida como la que estamos viviendo ahora. es electricidad aquí es salud. hey, you should try new robitussin honey medi-soothers for long-lasting cough and sore throat relief. try new robitussin lozenges with real medicine and find your voice. you know? 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