Transcripts For MSNBC Ana Cabrera Reports 20240702 : compare

Transcripts For MSNBC Ana Cabrera Reports 20240702



i'm katy tur in for ana cabrera. we are moments away from a, quote, rule for the ages. the supreme court has four decisions left to issue, including the decision on whether a president enjoys immunity for what they do while in office. a decision so big and so significant, justice neil gorsuch said during arguments they would be, quote, writing a rule for the ages, as i managed up top. what will the justices decide and what will it mean for the criminal case in overturning the 2020 election results. i'm joined by msnbc legal xant lisa rubin, former fbi general counsel andrew weissmann, former u.s. attorney and senior u.s. attorney chuck rosenberg. also with us, forming acting solicitor general neal katyal. first let's go to nbc's yamiche alcindor outside the supreme court. yamiche, lay it all out for us. >> reporter: this is sure to be a consequential day at the supreme court where judges are set to decide on the trump immunity case. all of this is connected to his efforts to overturn the 2020 election with special counsel jack smith saying he broke the law when he was trying to get people to do things like, get fake electors and trying to get the justice department to take actions that would allow him to hold on to power in the 2020 election. there are big questions before the supreme court. there are four cases along with this one. it could change the presidency as we know it here in america given the powers that this presidency might have after this ruling. any minute now we could get that decision. we'll be standing by to figureout what's going on here and what the decision is. the devil might be in the details here. this could be a complicated decision, a split decision here. we'll make sure we get it right here. it is a very big day here. history will be made no matter what the justices decide, katy. >> just to bring you into what's going on behind the scenes. we usually get these decisions in ten-minute increments. we've gotten one that is not the immunity case. we'll be watching for about 10:10 to see if we get another. there are four cases, so it could go to 10:40. they're also issued in the order of youngest to oldest -- not youngest to oldest. less senior to more senior serving on the court. the newer justice, if they're writing the majority opinion, will issue the first decisions. if it's a more senior justice, lit come in later. we could potentially be getting this immunity case at 10:10, 10:20, 10:30 or potentially 10:40. the times can get moved as we go. once we get the decision, yamiche just mentioned it might take some time to go through it. so we will have a team here reading through it to find out exactly what it says, exactly what it means. here is our team -- for the immunity case against donald trump and for donald trump's case in d.c. this is the case about whether he tried to overturn the 2020 election, whether he should be held criminally liable for it. so, andrew weissmann, there are three options in front of us according to most people who have been looking at this. one is that he has no immunity. one is that he has full immunity and three is that it's going to be a mixed bag. >> yes. so you want me to predict. okay. i think the first thing i would say is the decision is the fact there's been no decision until today. the reason i say that is i think there's no way that there is going to be a trial before the general election. and that, frankly, is the big story. >> but explain why. >> because there has been a stay in effect at the district court level. so no pretrial proceedings have gone anywhere since december. the judge has said, the district judge, that from december to the initial trial date of march was going to be used to allow donald trump to have pretrial preparation, discovery, argue motions. that's about 80 days, a little bit more. if you add 80 days to where we are today, assuming that there's a green light today, that brings you perilously close to the election. and whether judge chutkan is going have a trial just before the election that runs over it, that seems quite kwbl. but there also won't be time for a verdict under that schedule. the thing i'm looking for is i think there will be a mixed bag. i think there will be some area where they say there is immunity, and that will be a very limited area. i think that will be the majority. if the court says, you know what, we're leaving for the district court to decide what's official and immune and what's official but not immune, and that is sort of the one possible silver lining in terms of the general public getting more evidence, getting to hear from, for instance, mike pence. >> so if there's an evidentiary hearing going through all that jacket smith has, that's not a trial. it's not going to lead to a guilty/not guilty outcome. but it will lay out for the public what jack smith believes donald trump did. >> it will. katy, i should also note, there was a concession by formerp president trump's attorney that there were private acts for which there is no immunity. so you can expect those to go forward, but also, to andrew's point, potentially will put on hold while we have this mini trial or evidentiary hearing about which of these allegations are sufficiently official versus private. >> what did mr. sawyer concede was not official? >> he had a long exchange with justice barrett. he said i want you to agree or disagree these as private. trump turned to a private attorney spreading -- private. sawyer conceded yes. then she said the second scenario, he conspired with another private attorney, john eastman, who caused the filing in court of a verification signed by trump that contained false allegations to support a challenge. private. he said that also sounds private. and the third was, three ply vac actors, two attorneys including those mentioned above and a political consultant helped to implement a plan to submit fraudulent slate of electors to obstruct the certification proceeding and your client directed that effort. it's not part of his argument as to what would qualify for immunity. that's an enormous concession at oral argument that will be hopefully resolved by today's ruling. >> there was an interesting debate in the oral arguments, neil, that i would love to get your thoughts on. you can't apply general criminal law, general criminal code to the presidency. why not? >> well, the claim is that the president is so unique that every time congress passes a general criminal law, they have to say, by the way, it applies to the president. so we have a prohibition against homicide. you're supposed to say homicide is illegal and lands you in jail and, by the way, this applies to the president. that's a crazy way of thinking about our constitutional system. i don't suspect that that should get tracked by votes. it's not the way things are done. normally no person is above the law and the law is written for everyone. obviously if the law is an exception for the president, that's one thing. there's no kind of necessary clear statement that's required. katy, i also just want to bring our viewers a little bit into the scenes of what's happening at the court right now, because i've been there for mows of these handdowns sitting in the office. what happens is a justice reads an opinion. as you say, it's the least senior justice that will start the opinion reading. here it was justice barrett reading. that's going on right now. if the decenters, the so-called three liberal justices. if they disagree so strongly, they'll start reading their opinion. that can take you to 10:10, 10:15, maybe even 10:20. that ten-minute increment rule that you referred doesn't exist anymore. that was only during covid when there was no one in the audience. now there is actually an audience in the court as we report to our our viewers. it could take longer. we could get -- the next decision which is presumably the social media cases, should start to come down in the next few minutes. there may be some dissents that are read from the bench, and that would take us to maybe a 10:50 start time on the i'm municipality cases that we're waiting for. >> it is a sense among the very astute legal minds in this room that justice roberts, chief justice roberts would be the one to write this decision. neil gorsuch called it a rule for the ages, that's what they were writing during oral arguments. is that what you're feeling as well? >> absolutely. i think this chief justice cares so much about the institutional credibility of the court. in the big cases he feels like generally he's the one who shoumentd write. he didn't write dobbs, but because he didn't take the extreme position that the other justices, lead by alito, did. he wasn't effectively the true majority opinion writer. here in a case like this, i suspect he's going to have outside influence. i suspect much of the last months have been the chief trying to persuade each of the eight justices to sign one unanimous opinion with one line of reasoning. that's undoubtedly his goal. unfortunately it's been his goal since 2005 and he hasn't been able to muster it too much in recent years that justice alito and thomas in particular have moved the court so far to the right that that kind of unanimity has been very difficult for him to achieve indeed, if anything, we've seen the court breaking 6-3 in big controversial cases like the chevron decision last week which is going to have a huge outsized impact on you and me and everyone watching this show because it will usher in massive deregulation of the economy in areas like the environment, consumer protection and the like. >> there's also questions of whether osha can operate. whether workplace safety will be able to operate as it has. so justice jackson is now reading her dissent. that's going to push us further back. justice barrett before she read her majority opinion -- joked that this was not the case that people were coming the see today. no, it is not. i find it so interesting that you, as a member of the public, anyone out there, can go to the supreme court and can hear this for yourself. you can hear org arguments during nir individual case and you can be there for these days we're watching right now, as long as you get there early enough to get a seat. one of the big questions i still have about this, chuck, is why was this case even agreed to be heard in the first place. and justice sotomayor -- kagan, excuse me -- said basically during oral arguments. wasn't the whole point that the president was not a monarch and the president was not supposed to be above the law. wasn't the whole point of the revolution to break away from that system? >> i have a simple answer. i hope it's not simplistic, katy. but that's what the supreme court does. they weigh in on big legal questions. this is a big legal question. it has to do with whether or not a president, any president, not just mr. trump, is immune from criminal prosecution. so while i think the issue was well litigated, well briefed below, itches not at all surprised that the supreme court took this case. it strikes me as exactly the type of case they would take. >> what about the idea -- this country has operated for nearing 250 years without a rule that says a president is immune. why does it need a rule on paper now saying the president is immune for this act and that act? what has changed? >> again, a simple answer but i hope not a simplistic one. what has changed is that the president has been indicted. any president who has been indicted, and so far we've had 45 men serve 46 presidency, i imagine any of them who have been indicted would have claimed they were immune from prosecution. what has changed? trump was indicted, he raised the issue, litigated the issue, he has last so far in district court and in the xourt of appeals. and my assumes, katy, is he will mostly lose again, except, back to andrew's point, if it was delay that mr. trump wanted, he's won that. >> you argue the supreme court has already combochd the trump immunity case. this is your op-ed from melissa murray from april 24th, 2024. it is now july 1st and we still are awaiting this decision. >> even if you take the view -- chuck's reasonable view that the supreme court would want to put its stamp on this issue, i'm not sure everyone would agree with that. let's take that as a given. this was firsted raise to them by jack smith in december. there's no reason that they couldn't have done one of two things. one, they could have decided it quickly. they certainly have precedent for doing things really quickly. just take the nixon case. >> or take colorado. they did that quickly as well. >> exactly. that's this court. that's this court, exactly right. one, they could have done it a lot faster. remember, there's a pending criminal case. >> and also a pending election. >> exactly. let's say they decide, you know what, we're not here about the election but there's a public right to a speedy trial, not just the defendant's right, but a public right. so in my experience when i've little gaited, when there's a pending criminal matter, lits go quickly. >> don't they have the right to see all the evidence and see the argument made by the special counsel before the election in a timely way to help them decide whether they want this man to run the country again. absolutely. i think there's a slight definitional thing which is i think there is that right that we all have, but in terms of a criminal case, i think the court would view it more in terms of its public right to the trial, but it gets to the same point. the other thing, by the way, that the court could have done, they could have said, we're going to let the pretrial proceedings go forward. we can't have a trial yet. you know the 81-day problem we talked about -- >> was that their choice or judge chutkan saying she was going to put it on hold. >> she had to follow precedent. the supreme court could have said, you know what, given we're pretty confident that we're going to allow some form of trial to go forward and should have five votes for it, they could say, go ahead and do the pretrial proceedings. that's a long way of saying they had many things that they could have done. so it's very hard to look at this as anything but really weighing in, at least de facto on immunity for this former president. >> neal, i'd love to get you to jump in on this. >> i think andrew is basically right, that the court -- sure, they could have taken the case. they should have taken it in december, or if they're going to take it in february as they did here, they could have let the pretrial proceedings go on, and judge chutkan certainly signaled i think some willingness to have that happen while the supreme court was weighing the absolute immunity case. my very first case was bush versus gore which was decided in a matter of days, from the time of agreeing to hear the case, briefing, oral argument, decision. in united states versus nixon back in 1974 was probably the best analog. similar questions of presidential wrongdoing. the court decided that in a matter of weeks. here we're talking about a matter of month and at a time when the court knows full well there's aptal election about to happen and that the american people don't know all the evidence that jack smith has mustered. jack smith has had subpoena power and has access to evidence that the american public has never seen. that's what this prosecution would have revealed, and now there's a deep question as to whether that prosecution will ever take place. if, as i suspect, and i think lisa is absolutely right the court, because of trump's concessions, is going to let some sort of trial go forward, if trump loses that election, that trial is going to go forward and trump is going to face justice. but, if trump wins the election, he has the power to just nullify the prosecution right away at the get-go, and that will prevent the american public from ever learning all the evidence that jack smith has about what trump did on january 6th and in the days before and after. >> all right, lisa. >> i want to dovetail back to something that andrew said about delay being the win here. because one of the options that jack smith presented the court with in december, let me leapfrog the d.c. circuit court. you hear this immediately. that's what andrew was referring to. >> he knew it was coming. >> he knew it was coming. the court did that with the idaho abortion case it decided last week. it allowed that case to leapfrog the ninth circuit court of ap peoples before saying, hey, we made a mistake, we shouldn't have allowed that. the second thing, katy, i want to add to this discussion, the delay from december 13th when chutkan stayed the case to today, has been two times the length of what the trial would have been according to the notice sent out to potential jurors saying are you available for jury service, this case will take roughly three months. now it's been six-plus months. their decision to not leapfrog the case when jack smith asked for it has serious consequences here. >> liam read from judge jackson. she said if the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they're in office? it's right now the fact we're having this debate because the office of legal counsel has said the president might be prosecuted. presidents from the beginning of time have understood that's a possibility. that might be what has kept this office from turning into the kind of crime center i'm envisioning. once we say no criminal liability, mr. president, you can do whatever you want, i'm worried we would have a worse problem than the problem of the president feeling constrained to follow the law while he's in office. this was in response to john sawyer, trump's lawyer, feeling they can do the job of the presidency without the threat of legal liability hanging over their head. she turned that on its face. i wonder, if the supreme court does say you are immune from certain official act, doesn't that also send kind of a chilling vibe to presidents knowing that they can doimpunit? >> first of all, i think it's a good question for an oral argument. this sounds a little law schoolish to me. we haven't had presidents committing crimes with abandon since the founding of this nation. we've had two presidents, as far as i know, who could have been on the hook. nixon and trump. i'm not sure, katy, this is a runaway train sort of problem. that said, there's a really interesting i think case that demonstrates why it's valuable to have some sort of official act immunity. in 2011 when barack obama was president, he ordered that a u.s.-born person, anwar awlaki, born in new mexico, living in yemen who pledged loyalty to al qaeda be the target of a drone strike because of his terrorist ties. obama ordered it. awlaki was killed. by the way, i think it was an absolutely appropriate thing for president obama to do based on the input from his intelligence community, military community and justice department. no quarrel with it. there is a federal criminal statute that makes it a federal crime for a u.s. person, v, let's say obama, to kill another u.s. person, let's say awlaki in some third country, yemen. should mr. obama be prosecuted for that? absolutely not. not under any rational -- >> but their argument is what if there's irrational set of prosecutions to come in this new era we're living in. >> we've got the two social media decisions which means we're now in i'm community territory and could come at any moment. go ahead, chuck. >> under an irrational successor hypothetical, katy, someone comes in and thinks mr. obama should be prosecuted for ordering the murder -- the killing of anwar awlaki, under the crazy successor io, it would be absolutely appropriate for pres

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