handed future presidents a, quote, loaded weapon, in the words of a dissenting justice, aimed straight at the rule of law in the country. the conservative 6-3 majority of the court, half of them appointed by ex-president donald trump, two others have been faced calls for their recusal in this very case, a potentially fatal blow to council jack smith's effort to hold the president accountable for crimes committed on january 6th in the insurrection and the plot to overturn the 2020 election he lost. they ruled that donald trump and all future presidents are entitled to immunity for official acts, that they take during their presidency. now there is a question of whether a president can order a seal team 6 or assassinate a political rival, the united states supreme court said in effect, yeah, maybe. regarding jack smith's prosecution of donald trump, the court is sending that case back to judge tonya chutkan to parse out what is an official act in which trump is entitled to complete immunity and what the what is not an official act. quote, in dividing official from unofficial conduct, courts may not inquire into the president's motives. you mean like a coup? going on, chief justice robs writes, this, quote, this case is the first criminal prosecution in our nation's history of a former president for actions taken during his presidency. determining whether and under what circumstances such a prosecution may proceed requires careful assessment of the scope of presidential power under the constitution. the nature of that power requires that a former president have some immunity from criminal prosecution for official acts during his tenure in office. at least with respect to the president's exercise of his core constitutional powers, this immunity must be absolute. as for his remaining official actions, he is entitled to at least presumptive immunity. of what this amounts to, according to the three dissenting supreme court justices, is that donald trump is above the law. writing for the court's three liberal justices, justice sonja sotomayor, issuing a primal scream kind of warning for her colleagues saying they have dramatically and dangerously expanded the power of the presidency creating a quote, lawfully bound president. from the scorching dissent, the president of the united states is the most powerful person in the country, and possibly the world. when he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution. orders the navy's seal team 6 to assassinate a political rival? immune. organizes a military coup to hold on to power? immune. takes a bribe in exchange for a pardon? immune, immune, immune, immune. even if these nightmare scenarios never play out, and i pray they never do, the damage has been done. the relationship between the president and the people he serves has shifted irrevocably and in every use of official power, the president is now a king, a king above the law. never in the history of our republic has a president had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate criminal law. moving forward, however, all presidents will be cloaked in such immunity. if the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide by will not provide a backstop. with fear for our democracy, i dissent. end quote. that's where we start today, with some of our favorite experts and friends, former lead investigators for the january 6th select committee is here, attorney, founder of the site democracy market mark elias is here. the senior editor for slate, the host of the amicus podcast is here. with us at the table, former top official with the department of justice, and msnbc legal analyst, andrew witzman is here. andrew? >> i would like to pick up on the part that you were reading from justice sotomayor, because she talks about this parade of horribles. and one of the things that was so revealing is justice roberts does not address them. he does not talk about how the test that the majority opinion lays out in any way would give us any comfort that there's a problem, so that the -- using seal team 6, he just says these are fanciful, he doesn't in any way say why this test of, if it's official conduct, it's immune, why everything that justice sotomayor is saying is not completely something to worry about, and wait, there's more. the majority opinion says, with respect to the department of justice, that part of the criminal case that was brought by jack smith is out. why? because that is under the "take care" clause of the constitution. that is exclusively within the president's power. and so even where there is a sham prosecution, he is immune. just think about it for a minute. the relationship of the president to the department of justice is, even if the president knows it is an allegation, it's a sham case, immune. >> so let me ask you about things that already happened. because they also seem to write, in a hypothetical manner, when all of the hypotheticals have in some ways inched toward coming to pass, donald trump sought to prosecute hillary clinton and jim comey and others, as early as 2017, "new york times" broke the story in early 2018, or late 2017, don mcgahn serves as a guard disrail against those prosecutions. what does this mean if there is no don mcgahn in the second trump presidency and he proceeds with doing that? >> the people that are not immune are woo be the people under the president. they don't enjoy presidential immunity. >> sotomayor writes about pardons. >> so there's -- >> that's already happened, too. there was reporting in "the new york times" that he sought to shoot people at the border, and promised the border patrol agency that he would give them pardons. >> yes. so the normal check -- cut the word "normal," the president, under this decision, can do, can use the department of justice as a weapon, and is immune. they have taken that part of the case out. even as they say, they say the allegation, it's a sham. imagine, imagine the hypothetical i've been posing today, imagine that there is a tape recording of the president saying bring a fake case against my political rival, i know there's no proof, just bring it, and i want him prosecuted. under this decision -- >> we have that, too in the call -- >> absolutely. this is not so much of an hypothetical. and the only check would be, which was discussed during the oral argument, would that be the lower level people would not enjoy immunity, but you already have the president saying, but don't worry about it, i will commit crimes -- commit crimes for me because i will pardon you for it. so this is just -- it is, i'm going to quote from nicolle wallace, which is this is like the sixth sense, which is the supreme court in russia exists but none of us think that there is a rule of law there. when you look at this opinion -- >> yes. we should pull the curtain back on what is actually happening, shouldn't we? people are exploring options to live in other countries if they think they can be targeted for prosecution by donald trump, because targeting you, targeting me, targeting andrew would be an official act based on today's decision. >> yes, they could pardon for criminal prosecution, they could target for administrative investigation, the irs, the s.e.c., the epa, under this opinion, they could even, you know, engage in physical violence or assassination. and all of that is terribly, terribly troubling in the abstract. but we're not in the be a tract. we're in the reality. and the reality is that donald trump has said that if he is elected, he will seek retribution. he has said that if he is re-elected, he will be a dictator for at least a day. and there is a team of maga extremists who are working on something called project 2025, and related things, to execute and make much more effective donald trump's retribution, if and when he gets into office. this will not be nixon's enemies list of a few hundred, this will be donald trump's enemy list of several teps of thousands and the federal government will be his tool from start to finish. >> diane, i want to read about how this went down. because lest anyone think we are hyperbolic in our reaction to what the majority decided, with the conservative super majority, where a lot of smart people thought there wasn't any political reason to think, it the smart people thought there would be no real reason to side with the president and smart people thought there wouldn't be any reason to give him absolute immunity, he has done all of that. the court has made a mockery of all sorts of people who would think there is any respect of democracy or restraint, and don't take my word for it. let me tell you how this went down and how justice sotomayor handled herself this morning. so this is what happened in court. chief justice roberts came in and said, quote, vit opinion of the court this morning. he took a deep breath. quote, trump versus the united states. roberts' reads of the majority, sotomayor was watching and kavanaugh and ketanji brown jackson was looking away from colleagues toward the gallery, the chair slightly turned away from other members and roberts gave seven reasons why the court made the decision it did, including what roberts called a lack of precedent and issues that are quite difficult. says that lower courts didn't provide the above guidance, and the associate justice sonja sotomayor's strong powerful dissent, this is nbc's reporting, she minced no words about today's opinion, quote, it makes a mockery of our system of government. she went on to say, quote, the court gives former president trump all of the immunity he asked for and more, end quote. history matters. right? she said rhetorically, quote, except here. she took a quick second to look up from the pages she was reading from to glance at her colleagues. and she goes on to report that if this particular indictment of former president trump doesn't reach the level of a prosecutorial offense, she said this, quote, it is hard to imagine what prosecution ever would. the man in charge of enforcing laws can now just break them, she said. ironic, isn't it? she seemed to make a nod to the political leanings of some of her colleagues on the bench when she said during her dissent, quote, why is it a hard question? i don't know. do you? she then took the court through a few examples of actions she believes the president can now take, with his newfound immunity. order the navy seal team 6 to assassinate a political rival, immune. he's the commander in chief, she said with a isn't that correct. with fear for our democracy, i, along with the framers, dissent. that's from our colleagues reporting on how this historic decision went down on this historic day, from this body held in historically low esteem. >> so, the first thing i want to say, and i think this is a nontrivial point, is it is really a slame we don't get to hear that. the court has been allowing us to have realtime audio of oral arguments, and yet not allowing us to hear the decision handdowns. and today might have been a nice day to hear justice sotomayor reading from her notes on her dissent, because it just doesn't come across the same. and a handful of people in the courtroom recording it is not the same as hearing it in her own voice. to your larger point, i think we need to really understand that something has broken. i would say irreparably. and that the kinds of courts that used to hand down unanimous or nearly unanimous decisions in these huge consequential life-altering cases, that's gone. there's not even an attempt to forge unanimity, or to find some common ground, so you can bring people across the aisle. this is simply our team versus your team, my tribe versus yours. and i think the other thing that is really, really urgently important here is that the majority opinion reads like an interesting law school paper, what would you do hypothetically, if you were worried about showing bold, manly presidential action, and what would you do to protect him? and then you get this absolutely nuts and bolts, meat on the bones, dissent from justice sotomayor, saying this is not hypothetical, this is not an abstraction, please answer, what you're doing with seal team 6, please help me understand how the president can't just accept a bribe, and call it an official act. nothing like andrew says, radio silence. and so there is a way in which not only did they not attempt to say we're all one court, we're oracles, we speak in one voice, we're not even having the same conversation today. >> let me read from justice ketanji brown jackson's dissent. it gets at some of this for you, tim. even a hypothetical president, who admits to having ordered the assassinations of his political rivals or critics, or one who indisputably int gates an successful coup, has a fair shot at getting immunity under the majority president's accountability model. that is because whether a president's conduct will subject him to criminal liability turns on the court's evaluation of a variety of factors related to the character of that particular act. specifically, those characteristics that imbue an act with the status of official or unofficial conduct, minus motive. in the end, under the majority's new paradigm, whether the president will be exempt from legal liability for murder, assault, theft, fraud, or any other reprehensible and outlawed criminal act, will turn on whether he committed that act in his official capacity, such that the answer to the immunity question will always and inevitably be, it depends. again, not hypothetical. hanging mike pence was the mission statement of the january 6th insurrection. and then told by attorneys and staffers and other officials who you had the opportunity to interview, and depose, trump was indifferent to the mission of hanging mike pence, so he don't really qualify each as a rival to be assassinated, but there was a plan to assassinate someone who wasn't carrying out his will and he was at best indifferent, at worst complicit. and the other hypothetical in here is the idea that he instigated, the whole thing is about instigating an unsuccessful coup. i'm sure in place, the next one would be wildly successful. >> right. justice jackson is putting her finger on what to me is the most frankly surprising and disappointing part of the opinion, which is the inability to consider mode of evidence. i mean as a prosecutor, when you have charged an offense that requires some showing of intent, evidence about act taken, that suggests a particular motive, are just so indispensely important to that showing. and here, not only has the court articulated the test that says if it is official, then it's immune, but it hapstrings the government from demonstrating motive and that makes it extremely difficult for the special counsel to march through that indictment and put on evidence, again, even applying the supreme court's test, without being able to demonstrate evidence of motive. it is going to create a balkanized presentation without the ability to tell the full story. prosecutors want to tell the full story. the other part of the opinion, similarly, that really hamstrings the special counsel is the inability to demonstrate evidence of official acts. even if they're not charged. they could bear upon motive, intent, common scheme or plan, all of the common kinds of things that go into painting the full picture of the defendant's conduct. that's off the table now, after this, this opinion, so it isn't just the tests that are articulated, it's the manner by which the opinion hamstrings the government presenting its case, even if some of those acts under testify. >> i committed to getting through these two hours without needing a legal sort of education, and i feel like i'm veering into the danger zone here. so let me stop all of you. and let me ask you just to underscore, to make this, it feels like the majority made a ruling as though they live in an abstract universe, and that the dissent isn't in the world in which we live, and it feels that now the supreme court very squarely lives on earth 2 with donald trump and steve bannon. and the only people trying to sift through the actual facts of what has already happened, which was a coup plot, which was an indifference to the assassination attempt of his own vice president, or the three justices, can you just back up a little bit and tell me how we got here? >> yeah, look, the court explicitly, on the face of the opinion, says we make this decision not based on the exigency of the immediacy, almost an implicit nod that the conduct, they disagree, sort of with the conduct at issue. but they are speaking more broadly to history. and these broad incentives. that doesn't work. we live in the real world. the tests that they articulate, as much as they want to aapplies to posterity and to history has very real life consequences. and all of the incentives that they talk about with respect to chilling the robust executive authority, they ignore the incentive that this creates for future presidents to go rogue, right? the license it gives them, to use their official immense power of the presidency, to do illegal things, and that incentive is just as strong, frankly, than the chilling effect that the decision to allow them, so they are living weirdly, the majority seems to be focused on this sort of pristine notion of long-term incentives, but are ignoring the real reality of a rogue president who wants to misuse the law. >> and history will look at, i think, of ignoring a reality, that the extraordinary event isn't jack smith's attempt at prosecuting donald trump. the extraordinary event is the donald trump presidency. i have to sneak in a quick break. no one is getting anywhere. this is it. we will dive into every inch and paragraph of this decision. try to understand what justice sotomayor describes basically as a new chapter for our country. we're going to continue to talk about what this means and the effort to hold trump accountable for the insurrection of the united states capitol on january 6th. lots of questions. unchecked power, what does it mean with what he pursues for prosecution or worse and those who tried to hold the january 6th accountable and how it dismantles the future rule of law for future presidents and those they would pardon underscoring how important the november election is. we will continue after a quick break. er a quick break. and ask for something for memory, i recommend prevagen. number one, because it's effective. does not require a prescription. and i've been taking it quite a while myself and i know it works. and i love it when the customers come back in and tell me, "david, that really works so good for me." makes my day. prevagen. at stores everywhere without a prescription. the itch and rash of moderate to severe eczema disrupts my skin, night and day. despite treatment, it's still not under control. but now i have rinvoq. a once-daily pill that reduces the itch and helps clear the rash of eczema —fast. some taking rinvoq felt significant itch relief as early as 2 days— and some achieved dramatic skin clearance as early as 2 weeks. many saw clear or almost-clear skin. plus, many had clearer skin and less itch, even at 3 years. rinvoq can lower your ability to fight infections, including tb. serious infections and blood clots, some fatal, cancers including lymphoma and skin, heart attack, stroke, and gi tears occurred. people 50 and older with a heart disease risk factor have an increased risk of death. serious allergic reactions can occur. tell your doctor if you are or may become pregnant. disrupt the itch & rash of eczema. talk to your dermatologist about rinvoq. learn how abbvie can help you save.