today. we talked about accountability. giuliani and santos back in court. different cases, both about lies. coming up. and an exclusive interview with a wall street billionaire who's making waves tonight on msnbc. this will air for the first time. we're going to show you a preview of how this semiconservative billionaire who's even met with trump at the white house is telling us on the beat and this is exclusive, this is what he thinks about trump and the possibility of a second term. >> trump is a disgusting human being, he belongs in jail in my opinion. >> strong words. more context on that. that's an exclusive. we gip begin with jack smith's breakthrough as he tries to take an assertive and proactive approach in prosecuting trump for the coup. this surrounding a mystery with trump's actions, the plotting, speech, insurrection, and those long, tense hours while trump stood by while his fans committed convicted sedition. part of the process is getting more evidence and a better view of how this all went down, including potentially who trump was talking to or messaging with. who he was communicating with as the sedition unfolded. we know he spent part of the time in his private white house dining room. we know he watched the violence unfold on television. we know during the period of that tense time, you don't have to bring yourself back to how it felt. nobody knew how many might die, who would be killed or how long it would take to get order again, but during that very period, he posted online on what was called twitter about condemning mike pence as his fans hunted pence down. that's a lot of what's known. there's other things we don't fully know. and that's because there is a seven hour gap in what a normally meticulous call logs. not on just any day but on the suspicious and criminally investigated day of january 6th from as you'll see here in the post report, around the 11:00 a.m. hour up to about 7:00 p.m. now that has been something many people have wanted answers to. journalists research that kind of thing. people call each other. ask questions. sometimes you find a hint, a clue or a leak from people. why did the logs go missing? you may recall missing material was a big part of what ultimately undid the nixen presidency. according to smith's new court filing, he has obtained what one investigator calls the holy grail of evidence against trump. his own cell phone data. let me repeat. this is the cell phone data of donald trump that may have clues about what he did or didn't do or what he lied about on january 6th. this filing indicating they've extracted and processed data from the white house cell phones used by the defendant. that is trump. and the team reviewed and analyzed data on the defendant's phone and determined the usage of the phones through the post election period including on and around, that's standard legal language. they got him, they got the evidence, for jan 6, 2021. they write periods of time during which the defendant's phone was unlocked and twitter was open on january 6th. that's important because you can imagine if someone says -- writing online for their behalf. smith also states they have the phone data of an individual one. it's an anonymous individual. so experts say this is the kind of thing that can add to the evidence of what trump did or didn't do, which can box him in. that goes to his public conduct that he did send out this or that message or tweet and to his secret conduct of what he called, what they texted him, what he relied and what that says about the larger defense of what he'll try to make. because if the defense is hey, a lot was going on or i didn't know this or as soon as i knew there was violence, i told them to be peaceful. well, the evidence may say something different. this could also show whether quote trump personally approved or said that very fateful tweet attacking pence. that's how politico puts it. january 6th committee did not get this far. indeed in that final report which we've discussed with vice chair cheney, the committee was clear it was unable to quote locate official records of trump's phone calls that afternoon. the witnesses asked about this. either wouldn't answer in those depositions and hearings or they would claim they had no idea. >> so are you aware of any phone call by the president of the united states to the secretary of defense that day? >> not that i'm aware of. no. >> are you aware of any phone call to the attorney general by the president of the united states that day? >> no. are you aware of any phone by the president of the united states to the secretary of hoemd defense? >> i am not aware. >> did you speak to president trump on his private cell phone on january 5th or 6th? >> once again, i will assert my fifth amendment right to respectfully decline to answer your question. >> let's walk through what we just saw there. the second clip is of a defendant, roger stone. we've heard so much about. basically saying that to truthfully answer whether they spoke that day, him and the then loser of the 2020 election, outgoing president trump, if he admitted or spoke about whether they had that contact, that would implicate him in a crime. that's not good but as we've said, it's also his right in that kind of proceeding to invoke the fifth amendment, but that would go to him not wanting to say it. if there is enough phone data swirling around that jack smith has or the president's phone or phones the president's used or roger stone and others, they may be able to prove that question in court without his testimony. we heard liz cheney's disembodied voice asking the basic questions. again, if the capitol is attacked, it is now a convicted sedition. doesn't matter who's doing the sedition. could be a foreign terrorist group. domestic. it is a baseline obligation of the commander in chief to defend the country. everybody knows that. and so what cheney was illustrating there was the lack of awareness and thus the possibility of it didn't happen that trump ever lifted a finger to anyone from the military to the attorney general to anyone to try to defend the united states. why? because you don't defend, allegedly, against the sedition, insurrection and attack that you you're planned, started, and wanted. i say allegedly because this is all to be litigated. trump's lawyers say he's innocent and argue that missing calls are not enough to prove the case. meanwhile, john eastman, one of the architects of the coup, we know the fbi seized his cell phone. you've seen that video. long before his georgia indictment. we know jeffrey clark faced the feds in a lawful search which was quite historic. also had nixon era echoes because there you see the feds pulling him out in his pajamas. the same officials he used to oversee at the doj. they came to search his home and are going to find out what, if anything, is in that evidence. what are on these phones and what is the counterargument if you're trying to pursue the case and trying to prove a negative like oh, you didn't call anyone or reach out to the secretary of defense. is that enough for jack smith? he is now asking the supreme court to green light and fast track so there are answers. either way, could be good or bad news for trump. jack smith asking a supreme court to get involved so their answers to everything involved. the phone data, the nature of the conspiracy, whether trump didn't want to intervene in something he had planned or whether he can prove somehow that there's enough reasonable doubt that the government didn't carry its burden. these are the big questions. and we're going to turn to david kelly who ran the famed southern district of new york who's dealt with criminal cases in national security. david, good to see you. back together in 60 seconds. gou back together in 60 seconds. advil targets pain at the source, acetaminophen blocks pain signals. advil dual action. ian will find the true meaning of the holiday sweater. i will? because he went to michaels and got everything he needed to make a one of a kind crewneck you could never get off the rack. turn ideas into i-did-its. ♪ (holiday music) ♪ that first time you take a step back. i made that. with your very own online store. i sold that. and you can manage it all in one place. i built this. and it was easy, with a partner that puts you first. godaddy. we're back with david kelly. welcome, david. look at what jack smith according to filings got ahold of. what do you see there as a prosecution roadmap? >> when i first saw it, i said this is really compelling. first off, you're not going to have the contents of any phone call. it's not like a wiretap. it's unclear from the submission there's actually information, there's actual text messages. if you can actually read the text messages. but even if there's not, this is still really powerful evidence because what a prosecutor will do is take the whole series of calls. when the calls were made, to whom, and really chart it out and draw connections to incidents that coincide. hypothetically, he makes a phone call to roger stone then suddenly, the oath keepers are off and running to the capitol. so it can be very compelling evidence about you know just drawing connecting the dots and drawing connections between phone calls to particular people and then incidents that happened in the wake of those calls. >> as a map, this is farther than the committee got. we know they got a lot. here was a reference they made to some of what they got regarding giuliani and other contacts. take a listen. >> because the presidential call log is empty, we don't know which senators president trump was calling but we know from giuliani's phone records that president trump also called him at 1:39. after he had been told that the riot was underway at the capitol. >> david, how much does that matter? when you get really close to something as lawyers may do. you might spend years on certain cases. you get so close as the classic cliche goes, the forest from the trees. the committee and jack smith are trying to prove what? that trump wanted this? of course he wanted it. he called everybody to washington and marvelled at the impact and was only pushed at the end of the day to walk it back. but that's sort of a general view. explain to us why in court jack smith would have to prove this point by point and what it means to show that they have evidence that as it got violent and went down, trump not only didn't call the secretary of defense as cheney emphasized, but seemed to be rooting it on. >> a lot of what they think they know about trump, sitting in his dining room at the white house watching things unfold on tv. that's kind of the vanilla thing. sitting there watching it and didn't do something to stop it but what jack smith can now prove with the phone records is he wasn't just sitting there with his, twid ling his thumbs. he was using his thumbs to call different people to make sure things were happening. he's kind of orchestrating things from the white house. calling rudy giuliani or jim jordan or you know somebody from the oath keepers or roger stone and he is not calling mike pence. the secretary of defense. secretary of homeland security. people who could help stop this. instead, he's calling people who could help promote what was going on. and so when you take this type of evidence and tie it in to other evidence, it can be really compelling. both graphically and testimonily. >> defendants have rights then there's the extra issues of the president. he's not supposed to be above the law but there are protections and privileges. i want to read the phone notes then they say it's unclear if smith accessed the substance of trump's communications or if anything was shielded due to executive privilege or other limits. how do you deal with that and how do you get a full accounting of that? right now, everybody's looking at jack smith as independent. you have to be a real bananas conspiracy theorist when you look at his prosecuting democrats, war crimes abroad. the guy's just independent. having said that, david, you know where i'm going. the country cares. the law cares. about not having presidents over eight years having to worry over their shoulder about the secrecy and executive privilege when they're dealing with tough calls. >> there's two issues. one is the executive privilege where you can assert it over certain documents and communications to preclude it from being used at trial. here, one of trump's biggest problems and his biggest hurdle is the fact that it goes with the office. not the individual. so these were documents. the phone records really are the government's phone records. and only the president biden could exercise executive privilege. getting back to the immunity issue, which is a separate issue. whether or not i think the immunity issue is very important. you don't want just anybody to sue the president because they don't like what he or she has done. at the same time on the other side of the spectrum, what is the limits to what a president can do and as one judge said, the president is not a king. so you can't act with reckless abandon without any expectation of consequences and what jack smith has done is to you know, meet trump head on with his notion that he gets absolute immunity by saying okay, you want to get this reviewed, want to go to the supreme court? let the supreme court decide what the limits are of that immunity. >> on that lightning round, i got about 30 seconds. neil really confident. he's a careful lawyer but he just said look, even in the conservative supreme court, they might mess with this case in other ways at a later posture but he thinks jack smith would win this request. what do you think? >> neil's a very bright guy. i agree with him 100%. you go this far back to the federalist papers. it's an executive. it's not a king. think about it. i mean, you could just go and be trump. you could walk down fifth avenue and shoot somebody and you get away with it. no. the constitution prescribes the limits on an executive's power. it's not a king's unlimited power to do whatever he or she wants and i think the supreme court will conclude that way. >> interesting. >> david kelly, thank you so much. good to see you, sir. let me tell folks what's coming up by the end of the hour. we have an exclusive. we hear a lot about billionaires these days but do we hear from them, get the question them and press them? 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(tony hawk) skating for over 45 years has taken a toll on my body. i take qunol turmeric because it helps with healthy joints and inflammation support. why qunol? it has superior absorption compared to regular turmeric. qunol. the brand i trust. want to turn to lies and how to hold them accountable and that could be small lies, random political lies or the biggest of them all. from courtrooms to our civic culture. take george santos. he has now paid mightily for his lies. he was expelled from the house which is quite rare. he was sort of subjected to a national humiliation if he's capable of feeling something, and there was a line drawn. now, i've discussed with you on this very program why the way republicans drew that line was limited. it didn't get to the big lies like trump's big lie that fed the insurrection. we'll get to that. but right now, we'll start with what's happening to santos since he was booted. he has tried to sell videos of himself to people who will pay money, which is a service you can use online. called cameo. means he'll say just about anything for a price and for someone who got famous then infamous for lying, you can see the fit here. write a message and he'll read it and he really will read all kinds of stuff which has comic jimmy kimmel trolling him over it. >> i didn't say for me, i just wrote them and sent them to find out will santos say it? okay. so. all right. so this is the request. the question was george please congratlation my friend gary for winning the clearwater, florida beef eating contest. will santos say it? let's find out. >> hey, gary fortuna. just wanted to stop by to congratulate you for winning the clearwater, florida beef eating contest. eating six pounds of ground beef is an all time new record. bye. >> that's different than any hard copy. santos is proving he will say just about anything. just looking at my notes here. he may be incapable of shame, but he's also in court today facing 23 counts on the fraud, money laundering and other crimes. he's in plea deal talks while rudy giuliani is facing legal heat for pushing lies. he was in court today for the defamation trial. now, the judge has ruled giuliani defamed two election workers by falsely claiming they changed their votes in georgia. the jury will decide on the amount of damages he owes them. giuliani is back at it. here he is outside the courtroom doubling down. >> whatever happened to them, which it's unfortunate for them to people are overacting, but everything i said about them is true. >> do you regret what you did? >> of course i don't. i told the truth. >> this morning in court, the judge said that comment itself might be another round of defamation. and again, giuliani could be paying millions for each of these so he's taking a risk. those are very real consequences for election lies and that's before you get to his criminal prosecution in georgia. trump of courseg 91 counts for a whole range o things in business fraud allegations, lies, and other misconduct. and then a these companies. fox, which has paid out a ton, news max which is positioned ox right, are still deit other pending cases from voting companies who say they were defamed. and you have the elector fraud. multiple states which have been charged where again, separate from whatever happens to donald trump himself, some of his fans who thought they could get away with what they th