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mr. biden turned in classified documents to the national archives and the department of justice, consented to the search for multiple locations including list home, sat for a voluntary interview, and in other ways cooperated with the investigation. end of quote. i've seen the headlines since the report was released about my willful retention of documents. these assertions are not only misleading. they're just plain wrong. on page 215, if you had a chance. i know it is a thick document. on page 215, the report of the special counsel found the exact opposite. here's what he wrote. there is in fact a shortage of evidence that i willfully retained classified materials related to afghanistan. on page 12, the special counsel also wrote, for another documents. the decision to decline criminal charges was straightforward. the evidence suggests that mr. biden did not willfully retain these documents. the evidence says i did not willfully retain these documents. in addition, there's some attention paid to some language about my recollection of events. there's even reference that i don't remember when my son died. how in the hell dare he raise that? frankly, when i was asked the question, i thought to myself, it wasn'tfully of their damn business. let me tell you something. some of you have commented, i'm aware since the day he died, i wear every day the rosary he got from our lady of -- every memorial day we hold a service remember him attended by friends and family and the people who loved him. i don't need anyone, i don't need anyone to remind me when he passed away that he passed away. the simple truth is i sat for two days of events going back 40 years. at the same time i was managing an international crisis. the third task was to make a decision about whether to move forward with charges in this case. that is their decision to make. that's counsel's decision to make. that is his job. they decided not to move forward for any extraneous commentary they don't know what they're talking about. it has no place in this report. the bottom line is, the matter is now closed. and i will continue what i've always focused on. my be enjoy of being president of the united states. thank you and i'll take some questions. >> president biden, something special counsel said in his report is that one of the reasons you were not charged is because in his description, you are a well-meaning, elderly man with a poor memory. >> i'm well-meaning and i'm an elderly man and i know what the hell i'm doing. i'm president and i put this country back on its feet. i don't need his recommendation. >> how bad is your memory? can you continue as president? >> my memory is so bad i let you speak. that's -- >> do you believe your memory has gotten worse? >> my memory is fine. my memory -- take a look at what i've done. none of you thought could i pass any of what i got passed. how did that happen? i guess i just forgot what was going on. >> the voters have concerns about your age. isn't this report only going to fuel concern? >> only by some of you. [ inaudible question ] >> if you take responsibility, being careless with classified material. >> i take responsibility for not having seen exactly what my staff was doing. things that appeared in my garage. thing that came out of my home. thing that were moved not by me but my staff. >> mr. president, for months when you were asked about your age, would you respond with the words, watch me. while many american people have been watching and they have expressed concerns about your age. >> that is your judgment. that is your judgment. that is not the judgment of the press. >> the express concerns about your mental acute. they say you are too old. in december you told me that you believed there are many other democrats who could defeat donald trump. why does it have to be you now? what is your answer? >> because i'm the most qualified in this person to be president of the united states and finish the job i started. >> i did not share classified information. i did not share it. with my ghost writer. i did not. guarantee you did not. they did not say that. >> mr. president -- >> let me answer your question. the fact of the matter is, what i didn't want repeated, i didn't want -- i didn't read it to him. i had written a long memorandum to president obama why we should not be in afghanistan. and i was, multiple pages. so what i was referring to, i said classified. i should have said, it should be private. it was a contact between a president and a vice president. as to what was going. on that's what he was referring to. it was not classified information in that document. that was not classified. [ inaudible question ] >> when you look back at this incident, is there anything you would do differently now? do you think that a special prosecutor should have been appointed in the first place in both these cases? >> first of all, what i would have done is oversee the transfer of the material that was in my office. in my offices. i should have done that. if i could go back, i didn't have the responsibility of that. my staff was supposed to do that and they reference that in the report. my staff did not do it in the way that, for example, i didn't know how half the boxes got in my garage until i found out staff gathered them up, put them together and took them to the garage in my home. and all the stuff in my home was in filing cabinets that were either locked or able to be locked. it was in my house. wasn't out in like mar-a-lago in a public place where -- and none of it was high classified. it didn't have any of that red stuff. do you know what i mean? around the corners? none of that. so i wish i had paid more attention to how the documents were being moved and where. i thought they were being moved to the archives. i thought it was all being moved. that's what i thought. what was the last part of your question? >> whether the special counsel should have been appointed in this case and the case of why are rival, former president? >> i think a special counsel should have been appointed. the reason i think a special counsel should have been appointed is because i did not want to be in a position that they looked at trump and weren't going to look at me. just like they looked at the vice president. the fact is they made a firm conclusion. i did not break the law. period. thank you all very much. [ crowd noise ] >> i'm of the view, as you know, that the conduct of the response in gaza, in the gaza strip has been over the top. i think that, as you know, initially, the president of mexico did not want to open up the gate to allow humanitarian material to get in. i talked to him. i convinced him to open the gate. i talked to bibi to open the gate on the israeli side. i've been pushing really hard. really hard to get humanitarian assistance into gaza. there are a lot of innocent people who are starving. a lot of innocent people in trouble and dying. and it has to stop. number one. number two, i was also in the position that i'm the guy that made the case that we have to do much more to increase the amount of material going in, including fuel, including other items. i've been on the phone with the qataris, i've been on the phone with the egyptians, with the saudis to get as much aid as we possibly can into gaza. there are innocent people, innocent women and children also in badly needed help. so that's what we're pushing. i'm pushing very hard now to deal with this hostage cease-fire because i've been working tirelessly in this deal. how can i say this without revealing it? to lead to a sustained pause in the fighting in the actions taking place in the gaza strip. and, because i think if we could get an additional delay, i think that we would be able to extend that so that we can increase the prospect that this fighting in gaza changes. there's also other negotiations. you may recall, in the very beginning, right after, right before hamas attacked, i was in contact with the saudis and others to work out a deal where they would recognize israel's right to exist. make them part of the middle east. recognize them fully and return for certain thing the united states would commit to do. the commitment that we were proposing to do related to two items. i won't go into detail. one of them was to deal with the protection against their arch enemy to the northwest -- northeast, i should say. the second one, by providing ammunition and material for them to defend themselves. coincidentally, that is the time frame when this broke out. i have no proof, what i'm about to say. it's not unreasonable to suspect that the hamas understood what was about to take place and wanted to break it up before it happened. >> good evening from new york. i'm anderson cooper. >> from washington, i'm kaitlan collins. you saw there a seething president biden wrapping up a press conference dealing with special counsel robert herr's report on his handling of classified documents. president biden denied a critical part of that report. >> and the report clears him legally but could damage him politically, including a passage which reads, and i quote, mr. biden would likely present himself to a jury as he did during our interview with him as a sympathetic well-meaning elderly man with a poor memory. joining us now, kate bedingfield who served in the white house. david axelrod, and former frump communications director, all three cnn political commentators. david, i'll start with you. is that the press conference the president should have had? >> i understand the concept of why he had the press conference. this was red hot and out there and list people felt he needed to respond to it. whether the response was adequate, or whether it creates more problems i think is another question. he did contradict elements of the special counsel's report. and that undoubtedly will go on. and then he was quite angry, not just at the release, or the characterizations of the special counsel, but of what some of the reporters were asking him. it is a fact that this is a problem for the president. the most damaging things that could happen in politics are things that reinforce a meme that's out there that is hurting you. and the central meme that is hurting the president is this issue of age. it's a big barrier. people don't give him credit for what he's done. they blame him for everything that happens and a lot of it has to do with their feelings about his age. so it's not wise to say to a reporter, that's your interpretation. it's not, there are reams of polling material about this. so i'm not sure, he was feisty and energetic. i'll say that. i'm not sure that he solved his problem tonight. >> yeah. kate, you worked for the president. he did call, he named the president of egypt, he said it was the president of mexico. with a did you make of that appearance? >> well, overall, i agree with david. he needed to do it. i think it was smart for them to recognize that the narrative was not in a great place. that he needed to show some urgency on it. i think a couple thing that did he that were effective, he tack on directly one of the kind of pieces, the editorializing that herr that was getting traction. that he didn't remember the year that his son died. i thought he took on really effectively. he showed at love genuine emotion. i worked for him for a very long time and there's no doubt that everything he was saying there and feeling there is very real. i thought he took on directly which was effective. i think the second thing did he that was effective, did he show a little swagger. and i think the swagger does combat the age. you never want to be defensive and you don't want to seem angry or riled up. but i think in getting a little combative with reporters, he's showing, i have a lot of energy. i've got a lot of life in me. so i think him doing that was a good thing. >> i don't think the president did himself any favors in that speech. he undercut two of his biggest messages. the adults are back in charge, by being dismissive. yes, he was exonerated. he won't be tried or convicted. but there were some really damning things. he had afghan documents with him. this showed a decent level of recklessness of handling classified information. >> he said in that that he didn't. >> so i think there was a dismissiveness to the seriousness of this. and they were using this bizarre line to say he stepped away from an international crisis, the biggest attack on our ally israel since the holocaust, to go deal with a self-inflicted investigation by the department of justice. how is that supposed to inspare confidence? i don't know why he went back out. he already said most of this in virginia. this is a five-alarm fire for the white house. >> mexico? mexico? where did that come from? i may not, that's the only thing anyone will remember from this. he was exonerated. and i think it is annys call that he was exonerated. and i think legally, he's never had a problem with this. the issue of criminal intent was quite clearly absent in the biden case and certainly according to the accusations, in the jack smith indictment, very much present in the trump case. i think they're very different and the report even spelled this out. but mexico? >> if we weren't living in the trump time, if he didn't cooperate with investigations, if this was ten years ago, this would be a huge story. yes, he was exonerate but there are details that show a level of negli negligence. >> i don't buy that at all. classified information is -- over people overclassify so much. they take classified information all the time. i think legally this is a nonissue. the issue was biden's age. that didn't seem very helpful. >> this point about mexico. he misspoke on the name of the country and the context of a larger answer about what he's doing to try to get humanitarian assistance. is it a perfect answer? great to misspeak? no. it's never great to misspeak. i promise everybody on this panel has said the wrong name or the wrong date in a conversation. but he's explaining in great detail the work that he's doing to try to ease that crisis. so i don't think that we should lose sight of the fact that he's explaining the work that he's doing as president and get so hung up on one word. is it perfect? i'm sure, does he wish he said egypt rather than mexico, i'm sure he does. misstating one word, i don't think we should overcrank on that. >> you were in the room. i wonder what you made up today. >> yeah. anderson, this was president biden that seemed pretty ticked off, to be honest with you. he was ticked off about the special counsel report and particularly coverage of it. he said even though there's language in there that says he did willfully retain some of these classified documents. he said there's also language that says contrary, and that coverage should reflect that. he mentions specifically one part of interview and the report where robert herr asked about the death of his son and when that happened and he said, how dare he raise that? it's none of your business. he was also clearly ticked off about the questions that this report and all the memory issues that this report raises. all the questions that will get fueled even more about the concerns about his age, the concerns about his mental acutie, and he was pretty ticked off when i asked my question to him which was the fact that he has been saying for a while that people have raised concerns about his age. watch me. well, a lot of american people who have been watching are making clear that they have concerns about his age. they think he is too old. why does it have to be him? when i asked that question, he said, you know, this is your opinion. this isn't anybody else's opinion. public polling clearly suggests that this is a serious concern that a lot of people have. so i took this as a president who clearly wanted to get out there, show this sort of fighting side to him. and we know in conversations that we've had with biden advisers, people who know him really well. that they think he does well. in setting when he's sort of shouting, sort of fighting back at questions. fighting back at the concerns. so i wonder if there was sort of this opportunity that the white house saw to put him in that setting, take some of these difficult questions that they expected he would have. i know you were talking about this with your panel. the fact that in the very press conference where he was getting asked a lot of questions about his age, his memory issues. he made this important mistake. this notable mistake saying, the president of mexico sisi. that clearly didn't help his cause. but again, i think this was a president that want to use his own words to address everything that has happened today. this white house and this president, they know that these questions about age, his memory, his misspeaks, his missteps, they're not going away any time soon. >> you reference the moment when he talked about list son in the report. that it references list son and the former president, according to the report, couldn't in that moment remember the date of it. let's play what the president that tonight. >> i know there's some attention paid to some language in the report about my recollection of events. there's even reference that i don't remember when my son died. how in the hell dare he raise that? frankly when i was asked the question, i thought to myself, it wasn't any of their damn business. let me tell you something. some of you have commented, i wear every single day the rosary. our lady of -- every memorial day, we hold a service remembering him attended by friends and family and the people who loved him. i don't need anyone to remind me when he passed away. >> you said that you felt that was a moment that was effective and clearly, obviously, very real and emotional. >> absolutely. look. when i saw the report, honestly, that was the hardest part to comprehend. anyone who knows joe biden, and anyone who has watched joe biden knows just how impactful the loss of his son was to him. and so, and i thought that was very genuine and very powerful. you know, it's the rest stuff that was a little worrisome. and just responding, it is true, all of us make mistakes at times, and misstate things. we're human beings. the problem is this has become a real thing. now, every time the president does that, it becomes a story. it becomes the thing and it goes viral on social media where he's getting pounded on this age issue. particularly among younger people. so that is a stubborn problem that is an obstacle to get, you know, in his campaign moving forward. >> so as someone who worked in the white house, from a campaign standpoint, what does that mean? in terms of putting him out there, we heard in the earlier hour, commentators saying he needs to get out there more. people need to see him being vital. is that what the campaign will look like? >> i think that's what it should look like. i think it argues to put him out more. not less. i think the more people see him, the more they hear him describing what it is he's doing. the goals he's trying to achieve. the more they see him interacting with people out on the campaign trail, the campaign heats up. some of his best moments is when he is talking one-on-one or in small groups with people. he shows an incredible. a empathy and understanding for their livesful i think the more he's out there, the better. it also reduces the focus on every individual misspeak. people who essentially speak publicly for a living. of course, they're going to mrs. speak from time to time. so the more he's out show casing what he's fighting for, what he's achieved, and again, that contrast with donald trump. we sort of, in this conversation, we've lost a little bit, the biggest news from this report today which was the special counsel talking about the very clear differences between the way donald trump essentially obstructed the investigation into his own handling classified documents, and willfully mishandled them, versus what biden did, which he said was much more about essentially unintentional moving of the documents. so again, i think the more biden goes out, the more people see him, the more they see his vigor and also his passion for what he's working on, the better. and again, the less focus on each individual misspeak. >> by the way, it was outrageous that herr put in some of that stuff in this report. that had no place in it. there's no reason why this report had to be 300 pages. there is no reason why this fairly straightforward case had to be treated this way. and the, i mean, this was just like what james comey did to hillary clinton when he supposedly cleared her of the use of classified information and then talked about how reckless and terrible she was. the job of prosecutors is to put up or shut up. if you have a case, bring your case. if you don't have a case, shut the hell up or say as little -- >> do you think it is politics? >> absolutely. merrick garland picked a republican prosecutor, someone who worked for donald trump. i don't know why merrick garland chose him. democrats seem to have this idea that if they pick republicans for these tough jobs, they'll get some credit for it. it didn't work with james comey appointed by a democrat. it didn't work with her. and i think this was, there was no case to be brought here. but herr did his best to damage biden politically. unfortunately for biden, biden didn't help himself today in his response. but the idea that this was put in this report, that he was elderly. that didn't belong. in report. >> some of it did feel very gratuitous. do i agree with that. i do caution. i see an emerging narrative from democrats that this is a partisan investigation by the doj. this was a republican and a trump appointee so therefore, he's putting this in. the message of the democrats should be we can trust the department of justice. it's not weaponized. republicans are misrepresenting it. and i'm seeing a bit of that coming. not from me but some of the democrats defending biden tonight. >> thank you. let's go back to kaitlan in d.c. >> thanks, anderson. i'm joined here by the host of the assignment podcast. ashley allison, and doug, all here with us. let's start on the age thing. it is what is important here is the context. this is not just one moment that this happened where he mixed up mexico and egypt as he just did there. this comes with a lot of back drop and a lot of concerns. it's not just one moment in the report either. in the last week he's represented dead european leaders who haven't been alive since the '90s, confusing them with almost current leaders. i think it is a bigger picture. and clearly the white house felt the need to address it and that's why they made him come out. >> first, joe biden and donald trump are both old americans. there is nothing that we'll be able to do in this election cycle to change that narrative except go directly at it. and i think, i hear a lot of people saying, i don't think it was a good move. well, you can't just hide. because that's, we're not in a normal political media atmosphere. voters want a fighter. voters want to say, you come at me and you talk about my son and me not remembering when my son died? i'm going to tell you something. so will it be the thing that folks decide in november, whether or not, if donald trump and joe biden on age? probably not. their age actually cancels them out. who will stand up for me? moo will fight? there were moments when he mixed up mexico and the president of egypt. but i will argue in his remarks, that young voters, the thing that they were listening to was what he said about gaza. that he went as far as i have ever heard him say, without saying the words cease-fire. he said i want an extended pause on hostages. that's what they're looking at. they want to know what are your actual policies and i would be curious to see what the polling shows. if they get out there with this message, if it gets more traction. his age isn't going to change. he has to take it on straight. with a little comedy, with the fox reporter talking about my biggest memory loss was that i even let you speak because we know that antagonistic behavior. it might not work for all voters but he can't hide. >> when you look at polling, voters way more register that issue with biden than trump even though trump is just few years behind him. >> that's very true. and you hear that from younger voters. my 90-year-old aunt in new jersey said this guy is too old. and we hear this over and over again. and the problem for biden is, yes, the issue is not going away. because biden is not going away. every time he presents himself, there is a problem like this. david. a. a excel rod. i heard him say, he mentioned our lady of, and then he didn't flame the church. he got stuck go on a moment. it reminds me in 1994, going to see frank sinatra in concert. one minute come fly with me was playsing. a few minutes later he could barely remember the words from my way. what did we remember? that he couldn't remember the words to my way. this will be a recurring problem for biden. and ultimately, the biden white house right now is saying three things. one, hey, a lot of people forget things. two, he was slightly less responsible than donald trump. and three, there was a lot going on in the world with israel. so let's cut him some slack. that's not strong messaging. >> what did you hear? >> i guess i'm the only one who is not as alarmed. i'm looking it a holistically. this report come out and this line is in it and 37 to address it right away. there's no scenario where you let that sit. in terms of media management, you want to be out there. because what happened after he had his speech, we played a clip of him saying, how dare you speak about my son that way. we didn't play a clip of him saying mexico instead of egypt. and i think people take these in a different way than they used to. they're not sitting home at the couch for him to speak. they'll see a number of clips. and your point is very well taken. that essentially, there's a lot of young people who have been waiting for him to speak in some kind of striking way about israel and gaza. and specifically, him saying, i think they've gone overboard using that kind of language. that will be very striking in the social media space. and even seeing all the reporters barking at him, yelling at him. he has quick, fast, snappy, defensive replies. i don't think again generationally they'll be like, whoa, he was sarcastic. i like a nicer biden. that isn't what they've been asking for. i'll put it out there. i know everyone has that, this was bad for a number of reasons. i would challenge our thinking in that people don't take it in the way we do. nitpicking at it because that's our job. they'll get these emotional clips and they'll walk away with his emotion which was very intense. almost enraged. he used to word seething. people hear particular clips and think maybe just identifiably so. >> people covering biden realize, he does have a temper. his whole staff would acknowledge that. it is something that is known about him. >> he's not mr. ma goo. he has to be punchy. >> a key part of this, to go back to what jeffrey toobin was saying, the special counsel did have to issue a report. it was a lengthy report which we were expecting. was that him trying to explain why he didn't charge biden? why that was going to be so long? what was your read on what em? >> so first this report is required by the special counsel regulations. and if we want a precedent of someone issuing a very long special counsel report without recommending a charge, look no further than robert mueller who introduced a 400-page special report and did not specifically say i recommend charges. he was ambiguous. let me be clear. this is a very close call. i have written and read a thousand of these documents. they're called prosecution memos. you lay out the facts and you say here's my recommendation. charging or no charging. joe biden was correct that trump's truck in was worse but his conduct was close to the line. joe biden established by this report, joe biden retained sensitive classified documents after he left the vice presidency. >> marked classified? >> yes. marked classified. highest level. top secret sci. he knew it. he knew it. he's on tape after he's out of the vice presidency, saying the classified documents are in the basement. >> he just denied that. that's a he coo part of the report. it is the secretary sentence in the record and he just denied sharing that with the ghost writer. and i looked at this closely. they have recorded conversations between biden and this ghost writer. >> exactly. that's what blew my mind about joe biden's statement. two major things he just outright contradicts or is contradicted by, however you look at this, this report. two things he said that are completely the opposite of what robert lherr found. who do you believe? first joe biden says i did not act willfully. that means voluntarily, intentionally. the second sentence of the summary says, president biden willfully retained classified materials. it was willful. he knew. he talked about it. and he said i did not disclose classified documents to my ghost writer. page three says that he did that. it says mr. biden shared information including some classified information from those notebooks with his ghost writer. >> what is the distinction, and i want you to make your point but what is the distinction, they were at may house. in the garage, that box of documents. and he said trump's were at mar-a-lago where people come by. it is true. i think 40,000, 48,000 guests came through mar-a-lago in that time period. how does that justice department see that? >> to me, that is an irrelevant distinction. they're both in unsecured facilities. i didn't understand what he was doing driving at. maybe he was saying, there is less foot traffic. that's barely a factor in what my consideration would have been here. as a prosecutor, and ultimately, what robert herr says in this report, the technical elements of a crime, it appears robert herr is saying were met. what he ends up doing is looking at the soft factors. and you have to do that as a prosecutor. and he takes into consideration things like what he says, maybe this is overstated. maybe not. he says essentially, joe biden would have created a sympathetic picture in front of a jury. he had memory issues, he had age issues, and that goes into was he able to form the mental intent? and the jacket that joe biden cooperated. you can't say i cooperated. it cancels what i did. but it is perfectly appropriate to say from the moment we engaged with them, they were cooperative and to give that a plus. >> is it a given that the entire framing, that this is a comparative scandal. meaning, it's about what trump did versus what biden did or pence did. so fundamentally, the thing that trump is still in trouble for is not cooperating. so in isolation, you're making a very specific argument. but politically, he's going to look out in the public and say fundamentally i did what was asked. he didn't. that's why he's still in trouble. >> very much so. and you're very much in line with what special counsel writes. no question donald trump's conduct is worse than this. the special counsel goes out of his way in this document to lay out the ways that donald trump's truck in is worse and the primary distinction is exactly that. joe biden cooperated and donald trump obstructed. and that makes a big difference. >> is this not helpful to trump's team? >> it is. >> we have a former trump attorney. isn't this going to be something they could potentially use? >> one is just atmospherically. we've all seen a thousand time of documents skrun around the bathroom at mar-a-lago. now there are similar looking photos in this report. here's the technical thing that donald trump's team will use this. donald trump's team in the federal jack smith classified documents team at mar-a-lago will bring a motion for what is called selective prosecution. very, very hard to win these motions. what you have to do is show a judge, somebody else did essentially the same thing i did. i was prosecuted. he was not. now, donald trump has a basis to make that motion. >> so i'll just say, everything up, brilliant. you're a wonderful lawyer. and yet most americans are not going to read that report. most americans are not going to read the mueller report. what they will know is that joe biden was not charged with a claim because robert herr decided that and that robert herr made editorial comments about his age. the question is when donald trump's case come up, will those still matter to people? or will his case of not cooperating and the antics that we know donald trump will pull when he is up for trial will cancel out what joe biden did today? >> stand by. we have a lot more to catch up on as we are breaking down the abrupt remarks at the white house. also, the historic oral arguments that happened at the supreme court. that has to do with keeping donald trump off the ballot under the 14th amendment's insurrectionist clause. it sounds awfully national to me, telling words during oral arguments. signaling a deep skepticism for the supreme court decision barring donald trump from the ballot. i'll talk to two people who have been a key part of this debate over this. >> reporter: in one of the most anticipated supreme court cases of the year, the justices signaling they will side with donald trump on the question of whether he's eligible for the 2024 ballot. the former president did not attend thursday's arguments. most justices didn't address his role in the january 6th insurrection. instead, focusing on legal arguments around the 14th amendment. trump's lawyer, jonathan mitchell, an experienced supreme court advocate, argued trump isn't covered by the so-called insurrectionist ban. >> a ruling from this court that affirms the decision below would not only violate term limits but at a away the votes of potentially tens of millions of americans. >> reporter: and argued january 6th was not even an insurrection. only one justice asked about whether it was. >> the point is that a chaotic effort to overthrow the government is not an insurrection? >> this was a riot. not an insurrection. >> he argued for voters who won their case. >> president trump disqualified himself from public office. states have the power to ensure that their citizens' electoral votes are not wasted on a candidate who is constitutionally barred from holding office. >> reporter: the justices appeared much more skeptical. in an ominous sign, the chief justice that the arguments were at war with history. >> that seem to be a position that is at war with the whole thrust of the 14th amendment, and very ahistorical. the whole point of the 14th amendment was to restrict state power. >> reporter: and question the consequences of a ruling in favor of colorado, and other states then following suit. >> it will come down to just a handful of states that will decide the presidential election. that's a pretty daunting consequence. >> reporter: even liberal justice elena kagan asked this. >> i think the question you have to confront is why a single state should decide who gets to be president of the united states. >> reporter: it was murray's first time arguing before the high court and he engaged in several contentious exchanges with the justices and even got a scolding from justice gorsuch whom he once clerked for. >> no, no, talking about section three. >> please don't change the hypothetical. >> reporter: even though the arguments seemed to go well for trump, he still wanted the last word addressing reporters. >> say hey, we won't let you run. i think that's pretty tough to do. i'm leaving it up to the supreme court. >> paula reid joins me now. do we know how long it will take to get a decision? >> it's unclear. we know the chief justice is under enormous pressure to build consensus under party lines. come up with a narrow ruling that would have bipartisan support. if you listen to the arguments today, it appears that is possible. and it is important because we know this court is under scrutiny for concerns about ethics, and partisanship. but something like that also takes time and it is unclear if the chief justice will be able to accomplish this and get out an opinion before super tuesday which is just a month away. >> all right. we want to get perspective from the two best voices behind the argument. both distinguished constitutional scholars, retired judge michael luttig, and the book, to he send a presidency. the power of impeachment. i wonder what your takeaway was. >> it is quite clear the colorado decision to exclude donald trump from the primary ballot will be overturned. perhaps not into nothing. perhaps 8-1. but what i took away from it was quite a different lesson. the two members of the court who were my former students, the chief justice and justice kagan, whom you quoted just a couple minutes ago saying, isn't it amazing that just one or two states might determine who becomes president? where have they been all this time? when they studied constitutional law, there was something they learned about the electoral college. i doubt they've forgotten about it. to listen to the argument, you would think they had. the fact is that the court is engaged in sort of selective remembering and selective forgetting. they seem to have forgotten that the way in which our constitution is structured under article two, it is the states that basically run even the election for president. and it is true as the chief justice pointed out, that the thrust of the 14th amendment was to give the federal government more power, and the states less. but it didn't change the basic structure of who decides who gets on the ballot. if i just take a step back, let me just say what judge luttig and i wrote in august of last year. was that donald trump is constitutionally disqualified by the most democracy-president-elect provision of the constitution. it is there to prevent someone who swears to support the constitution and then mounts an insurrection against it. to prevent that person from coming back into power. we said that under that provision, donald trump is disqualified. nothing the supreme court decides in this case is likely to contradict that. they're likely to say that the way colorado did it at this stage, when they are simply deciding who run for the primary election, that is is not permissible. but they're simply kicking the can down the road. when people argue that he is disqualified by the constitution, either at this stage of the general election or when congress meets in january of 2025 to count the electoral votes, this problem will rise again. and the report will not have avoided chaos. it will simply have postponed it. >> judge luttig, i'm wondering what your takeaway was. i'm sure you heard from the justices on the colorado court decision. >> anderson, the first thing i would say is that i agree with every single substantive constitutional point that the professor just made. it's rare, anderson, that you can tell what the supreme court is going to do from oral argument. but sometimes, you can tell what the court is not going to do. and this is one of those times. the supreme court of the united states is not going to decide whether the former president is disqualified under section 3 of the 14th amendment. not now, and i don't believe ever. to that kicking the can down the road, professor tribe is exactly right. under our constitution, the states have the power under the electors and elections clauses to administer and conduct federal elections, including the election for the president of the united states. that is all the supreme court needs to know to say that the state of colorado had the constitutional power to disqualify the former president. but as professor tribe says, they've now they have kicked it down the road, if not off the road forever. in particular, if they've only kicked it down the road, there will come a time when the general election is approaching, that the supreme court will have to decide the case. and that would be a less timely decision than it would have been to make that decision today. but, what the supreme court is hoping, without any question whatsoever, that it will never have to decide this question. they are hoping and banking on the fact that the donald trump will not win the presidency because, in their view, and in the argument that was properly made by his lawyer, section 3 only disqualifies a person from holding the office. by its terms, it does not disqualify one from running for the office in either the primary or the general. but if the supreme court waits and it does come to pass that the former president is elected president of the united states in 2024, then the supreme court of the united states will have to address whether that newly elected president of the united states is disqualified under the 14th amendment. that is a recipe for national chaos. >> i mean, that seems -- how would they even -- you are saying if trump was actually elected, then the supreme court would have to decide whether the 14th amendment would prevent him from actually assuming office? >> that's exactly correct, anderson, because section 3, by its terms, only pre vents a person who engaged in an insurrection against the constitution from holding the office. and indeed, the former president's lawyers actually argued in their reply brief that the supreme court of the united states never will have the power to decide the former president's disqualification. why? they argued because the congress of the united states can at any time remove the disqualification. and so they literally argued to the supreme court, one, the court does not have the power to decide the case, this issue at all, and it certainly can't decide it until 2029, after the president would be out of office if he were elected. >> professor, just briefly, nobody really thought or a lot of people -- a lot of observers thought -- and it seems like it was the case, other than justice jackson, the court largely avoided discussion whether january 6th was an insurrection. i expect you anticipated that? >> i want to add that january 6th is only the climax. what we didn't hear today and are going to hear going forward is whether the president, who was then president, whether donald trump orchestrated a coup against the constitution. through fake electoral ballots, fake electoral slates, an elaborate plot. if that plot this succeeded they wouldn't have had to storm the capitol. it's the entire course of conduct that was an insurrection against the constitution. the court could have made that clear, and that would have solved at a national level what is otherwise still going bedefinitely people through different definitions of insurrection. >> professor, appreciate your time. back to katlyn. >> thanks, anderson. of course, we heard from the former president a moment ago. he had this to say about what happened in court today, which i should note was on a appearance he chose not to aend. >> i thought it was very -- it was a beautiful process. i hope that democracy in this country will continue. i thought the presentation today was a very good one. i think it was well received. i hope it was well received. >> and i am joined by a former attorney for donald trump, jim trusty. what did you make of how the arguments went today and how each side argued them? >> i think they went reasonably well. these lawyers are people that clerked for supreme court justices, they were pretty at home. there were different levels of hostile fire as we heard before in terms of justice gorsuch turning the tables on his own former law clerk for a minute. it was not particularly aggressive. it wasn't what i would call an extra hot bench. they not their points out. i thought there was interesting areas that are different than the last two folks that anderson was talking about. >> how so? >> a couple things. number one, it's not a surprise to me that they didn't really get into the thicket, this rabbit hole of what is insurrection and what was the proof. if you really want to get to the heart of what i think strikes a lot of people as wrong with that proceeding, not that they were well versed about article 3, section 3 of the 14th amendment. it it's this idea of a minute eye trial, a political report serve as evidence with no rules of evidence, a soeshologist say i know what trump meant. those are bizarre due process challenges. if the supreme court goes on that, say we don't like the trial, then they keep the door open for every state to its own trial and get an assessment by the supreme court eventually. i think they are -- i think roberts is looking for a kind of a foundational procedural thing to shut this litigation down. what was interesting to me, the one that had a lot of traction is the idea of whether or not this part of the 14th amendment even applies to the president. and remember the colorado lower court said i think he is an insurrectionist but it doesn't apply to him. >> versus the office? >> exactly. it takes you to this really -- mine, maybe fascinating to nerds like me only. literally you had justices talking about what happened in 1869, '69, '70. if jefferson davis ran for president of the knewly united states, what was going to happen? and to me that's all fascinating history. what was interesting to me is of all people justice jackson weighed in on that. maybe a little hint i heard as if there was a hint of disappoint in her voice. she said it doesn't look like he, the president, was supposed to be a part of this particular regulation. she looked at it said he is not on the list. >> even though she seemed to believe that he had maybe engaged in the insurrection, not necessarily that this clause would apply to him dating back to that conversation. >> she is tracking the lower court in colorado saying i have all sorts of problems with his conduct. that's what we infer from her comments. but i don't think this applies him at all. if that's the case, if the 14th amendment literally stops at a point of officers, not the president of the united states, then all the litigation falls off. >> how different are the implications of what they decide if they decide it on a technical procedural grounds or decide it on the merits? >> i think with a lot of the procedural grounds, they can amputate all the rest of the litigation. >> does it open it up to further litigation in the future? >> well, no, not particularly. there are some avenues that could get there. i think justice sotomayor was talking about some issues about federalism, whether states versus feds. and i think my read on it was she was setting up the possibility you could have litigation on the issue but in federal court. there may be an agreement we don't want to get to the due process, go one by one by one, you know, maine, colorado, all these different states with different processes to talk about the trial, but there may be disagreement on the exact procedural basis that could shut this down and, as you point out, some may not amputate the rest of the litigation, some could. >> donald trump wasn't there today, as you know. we talked recently since you have no longer represented him, times he has gone to court. how much of a difference does that make when he is in the room with the attorneys making the arguments and when he is not? >> i think the last time we talked about it i said i think it's good for him to take things in firsthand. but it's not something where it's not an old gang ster movie where the judges freak out because he there. >> i meant his attorneys act differently or argue differently. >> i hope they don't cater to the politics as much as just knowing i am in front of the supreme court, highest court of the land. i have got to answer their questions and have to have the best foot forward. there was a couple of sound bite moments in terms of talking about insurrection. he disqualified himself i think was line. really most of it was very much i think responsibly reacting to the questions. >> you said not a hot bench. what does that tell you about how the court is approaching this? do you think they kind of have made their decisions? >> no. i mean, lawyers try to bank on the supreme court are going to go poor quickly on those predictions. i wouldn't bet any money on it. i think there seemed to be a flavor of looking for a procedural/foundational component that they can agree on to basically end this without talking about the trial for insurrection itself. >> jim trusty, always great to talk to you. we will see what they decide. we have many more legal issues for the former president that we may talk about going forward. thanks for joining us on set tonight. and of course as we are looking what happened in the last hour alone, the entire busy day, oral arguments we have been talking about that happened at the supreme court, also as we've been discussing president biden himself now weighing in in those abruptly scheduled remarks at the white house after a special counsel cleared him for miss hand lining classified documents in a way that created a political headache. the president began by talking about the legal aspect of that case. >> let me say a few things before i take questions. as you know, the special counsel released his findings today about they are look into my handling of classified documents. i was pleased to see he reached a firm conclusion that no charges should be brought against me in this case. this was an exhaustive investigation going back more than 40 years, even into the 1970s when i stswas a new unite states senator. special counsel acknowledged i cooperated completely. i did not throw up any roadblocks. i sought no delays. in fact, i was so determined to give the special counsel what he needed, i went forward with a five-hour in-person interview over two days on october 8th and 9th of last year even though israel had just been attacked by hamas on the 7th and i was very occupied. it was in the middle of handling an international crisis. i was especially pleased to see special counsel make clear the stark distinction and difference between this case and mr. trump's case. the special counsel wrote and i quote, several material distinctions between mr. trump's case and mr. biden's are clear, continuing to quote, most notably, after giving multiple chances to return classified documents to avoid prosecution, mr. trump allegedly did the opposite, according to the indictment he not only refused to return the documents for many months, he also obstructed justice by enlisting others to destroyed evidence and then to lie about it. in contrast, mr. biden turned in classified documents to the national archives and the department of justice, consented to the search of multiple location, including his home, sat for voluntary interview and cooperated with the investigation, end of quote. >> in addition to the legal aspect of this report, you saw president biden address the parts tv talking about his age and his mental acuity. we will talk about that shortly here in this hour. but first, more on the supreme court taking up the colorado supreme court's decision that barred donald trump from the ballot citing the 14th amendment. it got a very skeptical hearing and oral arguments today. we listened to them live. justice elena kagen speaking volumes with this question to the attorney representing the plaintiffs here, jason murray. >> i think that the question that you have to confront is why a single state should decide who gets it be president of the united states. in other words, this question of whether a former president is disqualified for insurrection to be president again is just say it, sounds awfully national to me. so whatever means there are to enforce it, i would suggest they have to be federal, national means. why does -- if you weren't from colorado and you were from wisconsin or you were from michigan and had really, you know, what the michigan secretary of state did is going to make the difference between, you know, whether candidate a is elected or candidate b is elected, it seems quite extraordinary, doesn't it? >> no, your honor. it's this court that's going to decide that question of federal constitutional eligibility and settle the issue for the nation. >> and joining me now, new york republican congressman elise stefan you can, house republican conference chair and highest ranking woman in house leadership. thank you for being here on this busy day. i am just curious what it says to you about the u.s. that the supreme court is even hearing on argument like this about a former president and whether or not he violated the insurrectionist clause. >> well, it shows that the left and the democrat party in joe biden's campaign know her they are going to lose at the ballot box. you are seeing witch hunt after witch hunt, court case after court case going after joe biden's political opponent which is donald trump. today was a very bad day for joe biden. it was a very bad day in court for the left. it was a very bad day for the colorado bogus court case. it was a very good day for president trump. it was a good day for the constitution in the american people. the american people are going to make this decision in november. prosecutors. even though independent voters brought this lawsuit in colorado, that's important as well? >> this is witch hunt against president trump. it is not a coincidence that it is while president trump is skyrocketing in the polls. meanwhile we, saw a disastrous day for nobusuke. joe biden plum meeting in the polls. and yet you saw a feeble mental acuity lacking in the president of the united states just today. so this is a horrible day. it's a disastrous day for joe biden. it's a winning day for donald trump -- >> let's talk about -- >> and the supreme court is likely to have multiple liberal justices that side with the conservative justices siding for the constitution -- >> you think the court is going to overturn the supreme court? colorado's decision? >> absolutely. you heard questions whether from justice kagan, multiple questions from the liberal justices who are likely i believe this could be a 9-0, 8-1 or 7-2 case. >> the next thing that the supreme court could take up is the question of donald trump's argument, assertion of presidential immunity. if you trust the supreme court's decision on the 14th amendment, will you accept what they decide on presidential immunity as well? >> certainly. i will have something to say when the court makes that decision. i have put out a public statement of course the president has presidential immunity. you can't handcuff a sitting president of the united states for future presidents to go after them. it wouldn't allow them do their job in their official capacity. that was a wrong headed decision. i expect the supreme court will overturn that as well. >> appeals court decision. does that extend to president biden? do you think he can do whatever ant not get prosecuted as well? >> the trump campaign said this is slippery slope. if you are an opposing party, could go after your predecessor based on policy disagreements or official acts. that's where ty this is so egregious. >> the skating report suggests it's not weaponized. it was brutal. >> the prosecution -- >> would you -- would you make the argument he should have been charged -- >> if you look at what the special counsel said, it was a willful -- willfully not abiding by rules when it comes to classified information, willfully breaking the law. the reason they are not pursuing prosecution is because of the lack of mental acuity of the president of the united states. >> he cooperated -- >> no, no. he -- >> do you agree -- >> specifically because of the mental acuity. that was pointed out in the document. saw a panicked white house, a unfit president of the united states for a disastrous press conference to clean it up and it only did more damage. the reality is donald trump going to win this november and democrats are spiraling out of control because they see that joe biden continues to plummet. his polls will go down much further tomorrow base and that horrific press conference today and it's selective prosecution. the fact that it's not even a slap on the wrist when the prosecutor himself, the special counsel -- >> it wasn't a slap -- >> when you say -- >> we are not pursuing that prosecution. >> they talked -- you though, a big part of this is that president biden went and sat down with him for two days over the course of two days. obviously, that's the interview you're talking about where they talked about his age. donald trump hasn't cooperated. don't you think if he had cooperated -- >> it's a witch hunt. this is at the behest of joe biden -- >> but don't you think -- >> no, no, no, to. there is a difference here. president trump has -- according to the president records act, declassification authorities. joe biden doesn't that when he was vice president of the united states. joe biden also had classified documents when he was a sitting senator. that does not -- that is not covered by the presidential records act. to say -- >> i read it. doesn't give trump the documents to take documents -- >> this is a raid on mar-a-lago versus working with joe biden and saying he broke the law but refusing to prosecute. >> that's the point. that's my fient-point because trump didn't -- >> no. it is selective prosecution from the doj -- from joe biden's doj ordered by merrick garland not to prosecute against joe biden even though it found he willfully broke the law. on top of that, the reason why they are not prosecuting is because they say he is mentally you unfit to put in front -- to pursue that. that is unheard of and it is selective prosecution and it's why people inhaurntly know in the country if your last name is biden or clinton, you get to live by a different set of rules than everyday americans. >> hunter biden would disagree with that. >> let's talk about the sweetheart deal. >> no, no. hunter biden was indicted and he has a special counsel. this was a special counsel -- >> and got a sweetheart deal from joe biden's doj -- >> i want to talk about. you. in your public comments and the resolutions that republicans are introducing on capitol hill that you are a part of, people want to know if you are auditioning to be donald trump's vice president. have you handed over any documents or been a part of vetting process for the trump team regarding that? >> i am one the top surrogates for president trump. i voted for president trump in 2016. i was proud to work with him. i worked on impeachment defense team when the first witch hunt started against him, perpetrated bit democrats and adam schiff and i'm proud to be a top surrogate. i would be proud to serve in a future trump administration. i have a lot of responsibility as the conference chair and as the representative for new york's 21 congressional district a seat at the highest level. we are focused on the issues that matter to the american people. the border crisis which is raging across our country. house republicans passed a border security bill. joe biden has failed. in fact, he caused this border crisis -- >> also, i mean, the republicans on -- in the -- >> we passed a border bill. >> pass a democratic -- >> and you and i know how difficult it has been historically for a border bill -- >> yeah, we saw what happened with the republicans -- >> house republicans -- >> but -- >> it's because of joe biden -- >> the executive action -- >> and joe biden opposed that. right, because it was trump era -- >> he wants a wide to open border. >> he said he was willing to shut the border down. >> you are getting off topic. >> no, i'm not. >> i'd like to return to my question. >> not true. he has the executive authority now to end catch and release, to end -- >> and the ability to pass legislation. >> and we did. let's talk about the vice presidency. you said you would be willing to serve in a trump administration. had you been vice president on january 6th, 2021, what would you have done? >> i stood up for the constitution. i believe -- >> no, what would you have done if you were vice president. >> i would not have done what mike pence did. i stand by what i said on the house floor. and i stand by my statement which was -- >> you would have rejected the votes? >> there was unconstitutional overreach in states like pennsylvania and i think it's very important that we continue to stand up for the constitution and have legal and secure elections which we didn't have in 2020. and the tens of millions of americans agree with me. >> i would say the supreme court in the state of pennsylvania said that republican passed changes to their law was constitutional. but it's notable to hear you say given you are in the running to be the vice president that you would have rejected those votes. come this election, when vice president hairs is in that position, would you be okay if she rejected the votes if donald trump wins? >> we need to make sure it's legal. we are talking about democrats -- >> what legal? >> it was not. it was unconstitutional when there was circumventing state legislatures changing election law. i stand by my statement on the house floor. tens of millions of americans agree and have questions about the validity -- >> because republicans are so in doubt about the election. >> no, no, no. because the american people have questions on the constitution -- >> because republicans are so -- >> let me say this for you. when it comes to this election, we are seeing the democrats trying to remove president trump from the ballot. that is not constitutional. that is not a legal and safe secure election. that's what's being discussed at the supreme court today because radical leftist can't stand the fact that donald trump continues to skyrocket in the polls and joe biden continues to plummet. and when you get out -- if you get outside of cnn and talk to hard working american people like in my district, across this country, they want to see new leadership in president trump -- >> can i -- you deleted a statement that was on your website recently calling january 6th -- >> it's publicly available -- >> why did you delete it? >> i have all my public statements from the congress. you can access them -- >> why was it deleted? >> i all of those statements are available since i was elected on multiple social media accounts and you can access it there. >> so retraction of what you said? >> certainly not. i have press releases for the current congress. the reality is, you as a journalist can go through all of my official social media accounts and find my previous statements. >> the last thing i have to ask you about, you referred to the january 6th defendants as hostages. as someone who was in israel for several weeks after october 7th and met with families of real hostages, don't you find that offensive? >> i have given those family members of hostages in israel, we have hosted them and among house republicans and we continue to stand up to make sure israel has the right to defend itself and, kaitlan, you should be condemning the fact that the president of the united states called into question israel at his press conference today. meanwhile, he misunderstood and confused the president of egypt with the president of mexico. i will continue to stand up for israel's right to defend itself and yet you have a president of the united states who who shutd a veto threat. i stand by my statement there. people are seeing an unequal department of justice. you have blm violent rioters -- >> you are going off topic. >> they are not prosecuting. rioters who are not being prosecuted by the doj and you have non-violent individuals who were in the capitol on january 6th and didn't commit violent acts prut poohed by the doj, being held. that is un-- >> you drew the distinction -- >> that's un-american. >> criminal defendants in the people who were raped and kidnapped into gaza -- >> i draw distinction by the doj, the fact that they refuse to prosecute violent rioters during blm and yet they have an unequal set of rules and go after nonviolent individuals on january 6th. cnn continues to struggle because you have continued to fail to understand the american people's frustration with this two-tiered set of justice in this country. >> i don't think that has to do with call the -- >> it has to do with loot more than that. >> thank you. >> thank you so much. and of course just ahead, we will speak to the secretary of state of colorado. she is here to weigh in on what she heard in today's arguments. . more now on what happened today in court for donald trump and what it maeps for the future of this case as the supreme court seemed to be signaling it is unlikely to allow the state of colorado to kick him off of its ballot. there are many other legal matters for donald trump of course. the question of whether the supreme court takes up the immunity appeal, his team is expected to file their emergency appeal by monday's deadline. also the four criminal trials that await him. here tonight colorado's secretary of state jena griswold, also back with us ashley, doug, elie. secretary, we don't know how the supreme court is going to rule or how soon. hopefully, we will find out quickly on that. what did you make of today's arguments and what we heard from people like trump's former attorney who believed it was a effective day for him? >> well, i think it's a significant day for democracy. we are at the supreme court just steps away from the united states capitol where congress people ran for their lives, where we saw our nation assaulted and our democracy under attack. it was so strike to go me to see trump continue to lie, to lie about his role in the ipos, to continue to argue he is above the constitution and above the law. fopz so i hope the justices see through his lies and recognize that states have historically been able to keep disqualified candidates off of our ballots. >> they seem to be making the argument just i have kavanaugh when it comes to democracy, the reverse saying allowing states to make the decision would be problematic. >> well, i think one of the things that is potentially problematic is the court's focus on politics. their focus on the role of one state deciding a presidential electorate. but ultimately elections are within the state's jurisdiction to run. and just like we wouldn't put non-natural born citizen on the ballot, we also believe that oath-breaking insurrectionists are not qualified. >> what was your thought of that given the arguments that you heard also from the plaintiffs? >> i wonder if you picked up on listening to the argument, sounded like the justices were saying this insurrection disqualification is different than age or residency or natural born status. the other three are readily ascertainable. usually the question about whether someone engaged in insurrection is highly variable and changes state by state. they have concern with that. i wonder what you thought of that line of questioning? >> honestly, insurrection is not something we see every single day. some of the attorneys argued it's an extraordinary event. and it is. i think the justices were indicating that our legal systems do not work, that rogue secretaries of state will be able to throw tantrums and stream insurrection to keep candidates off the ballot. i don't think that's how it would play out. ultimately, just like in colorado, we had a five-day trial at district court. there was an appeal to the colorado supreme court and now we are at the united states supreme court. and the justices have all of the abilities in the world to clearly define what an insurrection is. but that does not -- i would say, i would argue allow them to pretend that that section 3 of the 14th amendment doesn't exist. it's there to protect the country from insurrectionists taking office. it's therefore this situation with donald trump. >> was it any concern to you that colorado is essentially alone among the states in having found that donald trump engaged in insurrection and should be disqualified. maine is sort of there. your calling in maine made that decision, not in the courts. there have been two dozen or so eggs challenges rejected in blue states, red states, and swing states. does it concern you that colorado is out on its own? >> no, because, honestly, it is not atypical for states to have different candidates on the ballot. outside of this question about donald trump, this presidential primary will have a candidate who is not a natural born citizen on some ballots and not on other states' ballots. in colorado. >> we said the person is not qualified, he is not on our ballot. so i think that's a typical thing in election administration. and on top of that, i will push back a little bit on your premise. some the courts that did not disqualify donald trump didn't look at the question. and again in a federalism, it's up to them. >> you are talking about standing considerations? >> kick gt case out on political reasons. it's a political question, we are not going to ajoud indicate. >> some of donald trump's 2020 challenges were dismissed on the same basis. your primary may 5, do you think it's important for the voters of colorado that they get an answer from the court before -- excuse me, march 5? >> absolutely. on top of that, our ballots go out next week. we are a vote by mail for all state. we have early voting, drop boxes a galore. i think it's important that voters know if a vote for donald trump is going to count. i also think it's important for the american public to know whether an insurrectionist can take the highest office again. >> i wonder what you think of this because she referenced there the politics of the court taking into account. they waded into many political fraught cases before. justice clarence thomas is the only one on the bench there during the 2000 gore -- bush v. gore. i wonder how you think they are looking through that lens? >> that was my first election i voted in. so it was -- it was disappoint to go see the supreme court decide what i felt like the outcome of an election. and so surprisingly, i might be in agreement tonight, my republican colleague here. i don't wan the court to make this decisions to take him off the ballot. i think that it will divide our country. do i think he is an insurrectionist? absolutely. do i think that the american people should say we don't want him? no. unfortunately, the republican party is not there, he will likely be the nominee. it's important he is defeat inside november because i don't think an insurrectionist should hold the highest office. i am just afraid of what will happen if he is removed and his base -- they have already -- you know, they said threatening things. and donald trump himself has not said he would try to stop the violence if people got upset when -- after the last time he was in court in new york. >> and also remarkable to hear elise stefanik, on the short list, may not be picked, to trump's vice president, presidential candidate if he wins, say that she would not have done what mike pence did, she would have blocked legi legitimate credible votes that day, rejected people's valid votes when she is certifying in congress in a ceremonial role. >> one thing about donald trump, romney mcdaniels is learning this week, loyalty to trump is a one-way street and donald trump only takes points one at a time. so you have to say whatever trump -- whatever the latest trumpy answer is you go that streit as long in trump world as you can. >> even if it's unconstitutional? >> that's the deal you made with yourself. every movie, book, play that we have seen on this topic tells us when you make a deal with the devil, it comes with a price. there has been a price a lot of people have paid so far. obviously, others -- >> did that surprise you? i'm still thinking about that moment that she openly acknowledged -- >> my last conversation with congresswoman stefanik in her office in 2016 and she said we have to stop donald trump. she is terrible. she, like a lot of republicans, have seen the light or changed their tune. however you want to define it. nothing surprises me. this is where the center of gravity for the republican party is now. and it's unfortunate. that's reality. >> it's not surprising. we literally saw an issue that for president after president after president people have said we need to solve and we got so close. not that the bill that was proposed around immigration this week would have solved the whole immigration problem, but we got so is close and the most conservative bill possible and donald trump called and said, nope. and it's over. and so that that's the world we are living in right now. donald trump is literally the puppet master around all of these folks who just are looking for political future and not for people. >> coming up next here on cnn, we will get back to the breaking news and go to the white house to hear what they believe how president biden's impromptu news conference went tonight. that's right after a quick break. xfinity rewards presents: '1st and 10gs.' xfinity is giving away ten grand to a new lucky winner for every first and ten during the big game. enter daily through february 9th for a chance to win 10gs. with the ultimate speed, power, and reliability the xfinity 10g network is made for streaming live sports. because it's only live once. join xfinity rewards on the xfinity app or go to xfinity1stand10gs.com for your chance to win. president biden's press conference tonight, hailing the speds for saying he will not charge him with mishandling classified documents and tearing into his for his age and mental sharpness. he was asked what voters make of the question. >> mr. president, for months you were asked about your age, you would respond with the word, watch me. then the american people have been watching and they have expressed concerns about your age -- >> that is your judgment. that is your judgment. that is not the judgment. the press. >> they expressed concerns about your mardi gras mental acuity, they say you are too old. you told me you believe there are many other democrats who could defeat donald trump. why does it have to be you now? >> because i am the most qualified person in the country to be president of the united states and finish the job i started. >> are you hearing anything from the white house or officials sore sources with the biden campaign about how they thought that press conference went? >> yeah, you know, one white house official was texting me. no one can say that isn't a man in command after that press conference. they do generally tend to like it when the president is sort of fired up. they think that it shows his strength. but i think it's clear that he was kind of fuming about this investigation, the conclusion that it drew the way that it was conducted, of the questions. you saw the president get particularly worked up when he talked about being asked about the death of his son, saying that's none of your business. what does that have to do with all of this? and he clearly also just does not appreciate the fact that the report basically said that he was an elderly man with memory issues. you saw him get very defensive saying that his memory is just fine. he said, i know what the hell i'm doing. and i think there are just -- they are aware that the repeated references in this report to the president having memory issues, recall issues, are only going to fuel critics who have raised questions about his age, his mental acuity, and you saw when i started asking about that concern, shared by american -- american voters, he immediately cut in and said, that is my opinion, to be clear, that isn't my opinion, that something that we see consistently in public polling. but, yeah, i think there is also the moment where the president didn't do himself any favors by mixing up who the president of egypt is. he made a reference to the president of mexico. all in all, i think the white house clearly wanted to get him out there, wanted him to stay i his words defense of what was in the report and we got just that. >> thank you. joining me former trump campaign advisor david urban, cnn commentator van jones. van, did the president do himself any favors tonight? >> look, that wasn't joe biden at his best. but listen, you know, you had donald trump couldn't tell the difference between nikki haley and nancy pelosi. you know, people make those mistakes and those kinds of things happen. think the more important thing is people have to remember tonight that the supreme court ducked its opportunity and responsibility to stop this insurrectionist to take advantage of the situation. if barack obama had sent 10,000 black men to destroy the capitol and attack a joint session of congress, he wouldn't be in jail, he would be in guantanamo right now. we shouldn't be talking about donald trump. he should be facing the same justice anybody else would in the country. that's the story tonight. >> david, what is the real story tonight? >> wow. wow. i usually -- i usually agree with van. we kind of agree on some these. this one, we are 180 degrees out. the story is that joe biden is noncompass men tis. america sees it. the special counsel wrote about it. he said, you know, elie talked about this before, but for the fact that he is an older, nice old man with a bad memory, that probably -- they would have recommended charges. >> that's not -- >> they wouldn't -- >> they said he -- >> no, it's one of the -- >> the fact that he cooperated -- >> okay. but, you know, but he -- but he goes on -- he goes out of the press conference and says there was no classified materials disclosed on tape talking about disclosing classified materials. he did way more damage. >> listen, if the qualification that you now are going to stand by is how well people equip themselves, being smart and honest about legal situations, donald trump should be off the map. joe biden did not do anything remotely as bad as donald trump. donald trump took stuff, stole stuff, hid stuff, lied about it. biden turned it over directly. that's why he is not being prosecuted. again this false equivalence between a joe biden, who is a law abider, joe biden who is competent. >> he is running the country right now, versus donald trump who has memory lapses like everybody else of that age group, and also is an insurrectionist and steals stuff, it's ridiculous. >> i would encourage all of the viewers to read the document yourself. maybe turn to page 61 where junior military officer working for the vice president at the time says, i don't feel comfortable with the classified material contained in the notes. please don't involve me in anything going forward with this project. taking yourself out. she said, i can't argue because i am a junior officer. people clearly knew things were wrong and wanted to get out of the blast zone. this is going to get worse before it gets better. >> van, i mean the president, obviously, look, you know, he is who he is. he is the age he is and the way he speaks is the way he speaks or misspeaks sometimes. what does this campaign look like to you between these two men? >> i don't think most americans want to see this matchup. we have see u said the vast majority of americans don't want to see donald trump and joe biden part three, part search, you know, the repeat, nobody wants to see this. it's where we are. i got tole you, if joe biden focuses on what he has been able to accomplish, which is right now if he were to retire he would be on mount rushmore when he look on what he has done on climate, this economic tailspin. when you look at what he did on stuff people forget about, marriage equality, you go down the list, the accomplishments of joe biden with the narrowest of majorities is extraordinary. if you look at where he is trying to take the country versus where trump wants to take the country, revenge tour and promise of dictatorship, there is no contest. >> david, i mean -- >> unfortunately, the polling doesn't show is that, van. the polling doesn't show. americans believe the country is on the wrong track, they are worse off than four years ago. the presidential all-time low. because of donald trump? >> no. listen. i think you are going to be surprised. listen, you might disagree. i think some of right track wrong track is the chaos and fear people feel there is a part of the country that is off the rates in some kind of a almost cult-like worship of someone who has 91 felony charges and looks like a runaway train to the white house. . so discontent in the country isn't about the sitting president. it's about the fear of the next president trump. >> i think you are misreading that. 75 million americans plus feel that the country is on the wrong track because of the current occupant of the white house. not the previous occupant. >> biden was criticized for his handling of the clyde in the special counsel report. the special counsel said what former president donald trump did was worse. so i know you are saying this is bad for biden. but is it really a gain politically for the former president? >> look, anderson -- >> and who, by the way, is -- >> listen -- >> could stand trial for this. >> right. if you're keeping score on the legal merits, i think it's a wash because american voters are going to say it is going to be abbey equivalent lens. biden had documents. people said it was bad. what this report really shans a l shines a light on, you see the current president not remembering pretty key dates, not necessarily the situation with his son, but when he became vice president. was i vice president then? he asked the special counsel. i mean, those are pretty significant milestones to remember -- >> look, in conversations, like -- you ask me what year did i start at cnn, i would stumble, think it was 2001, 2002. >> i believe there is a reason he put them in there. i think he put it in there to support his claim that one of the reasons i am not bringing shall -- not recommending charges brought when the president leaves is because his lack of memory now is pretty bad. and it will be even worse in a year or so from now when he is not president. so one of the reasons i am not recommending prosecution brought is because he will be seen as a nice, kind, older gentleman with a bad memory. he says it clearly. >> did he seem gratuitous to you? >> maybe a little bit. i am sitting here -- this is some kind of bizarre nightmare mirror -- it's like a "black mirror" episode. we are talking about a president who is literally doing the job right now, the country seems to be functioning, and meanwhile the supreme court apparently is going to duck out on the opportunity to do their job. this is the supreme court, by the way, that when it comes to women's rights over their bodies is happy to throw a person in the garbage can and attack 100 million women, take diversity off the campuses, voting rights away from people, gut clean water. when it comes time to disenfranchise one guy who is a clear insurrectionist, they are running for the exits. donald trump is playing chicken with our institution -- >> we got to go. van jones, david urban, next on that note, looking ahead at today's historic supreme court arguments. the skepticism justices exited towards colorado's case and how they may rule. we will talk to others ahead in a moment. two leading candidates for senate. two very different visions for california. steve garvey, the leading republican, is too conservative for california. he voted for trump twice and supported republicans for years, including far right conservatives. adam schiff, the leading democrat, defended democracy against trump and the insurrectionists. he helped build affordable housing, lower drug costs, and bring good jobs back home. the choice is clear. i'm adam schiff, and i approve this message. growing up, my parents wanted me to become a doctor or an engineer. those are good careers! but i chose a different path. first, as mayor and then in the legislature. i enshrined abortion rights in our california constitution. in the face of trump, i strengthened hate crime laws and lowered the costs for the middle class. now i'm running to bring the fight to congress. you were always stubborn. and on that note, i'm evan low, and i approve this message. . during today's supreme court argument justice alito spoke of the consequences of siding with colorado over the former president not just for the presidential ballot in that state, but in all 50 states. >> i don't see where w-- what i a gained by using this temporary than directly addressing what's involved, the question of who can enforce section 3 with respect to a presidential candidate. the consequences of what the colorado supreme court did, some people claim, would be quite severe. would it not permit -- would it not lead to the possibility that other states would say, using their choice of law rules and their rules on collateral estoppel, that there is non-mutual collateral estoppel against former president trump. so the decision of the colorado supreme court could effectively decide this question for many other states, perhaps all other states. could to not lead to that consequence? >> joined by jeffrey toobin. i hope you know what collateral estoppel means, including the book the nine, inside the secret world of the supreme court. so, jeff, what was alito's point there? >> just in terms of the argument itself, you know, jason murray represented colorado, and i would say his argument was somewhere between a calamity and a disaster. >> wow. >> it was everything he was selling, they weren't buying. he didn't do a bad job. it's just that every argument, you know, whether trump was covered under section 3 of the 14th amendment, whether colorado had the right to do this, whether colorado had the -- used the right procedures. the argument that justice alito was making there, it was related to an agreement chief justice roberts made at another time, which was, what happens with other states? do other states feel they are bound by colorado? and they have to throw trump off the ballot? that's what alito meant by collateral estoppel. chief justice roberts made the point, what happens when red states start throwing biden off the ballot? is that the kind of arms race we want? i thought maybe justice sotomayor votes for colorado, but it looked like 8-1 or 9-0 to me. what it means in real terms is donald trump is going to be on the ballot in 50 states, period. >> that's the gist of it. it's important that this decision come down quickly. more important that the question of over presidential immunity comes down quickly. the country is in denial that we are having the rematch that no one wants. but that is the simple reality right now. voters have a right to know -- first, we need the case to build and move forward. we can't until we have the immunity decision. but they deserve to know before election day if he is a convicted felon. there is a possibility with the there's also a possibility donald trump could be a convicted felon and still win. i think we have to be open eyed to the weaknesses of both these major two party candidates. >> that is in many ways more important than this case. even if somehow colorado won, the only states that would be throwing him off are states trump wasn't going to win anyway. immunity could decide whether donald trump goes on trial in washington. >> what are the steps on that? >> next week, the supreme court is going to have to decide whether they issue a stay and that's really almost more important than the outcome of the ultimate appeal. >> if the issue is stayed, that means it's delayed. >> that means that judge chutkan, who's presiding in washington, depending on how the stay is written, but it probably means she can't do anything until the supreme court decides the case, which would probably be june. then it really becomes impossible, especially if trump is tried in new york, as it looks like he will be on march 25th. >> and given the gravity of it, the supreme court wouldn't rule on that sooner than june. >> you know, they take their time. they don't rush. >> they keep in mind the political calendar as well. july is obviously the republican convention. there's always these tendencies to not want to pursue things in a highly political season. if this does not move quickly, it wouldn't be solved. >> what in the world was cl clarence thomas doing hearing this case? his wife was intimately involved in the issue of insurrection, which was the subject of this. the fact that he has not recused himself and the fact that no one can do anything about that, because basically the supreme court has said unless you want to impeach us, we're free to do whatever we want. it is outrageous that he didn't recuse himself in this case. >> it is remarkable the standards the supreme court has for themselves. they apparently can receive vans and trips and all sorts of gifts. coming up, another huge political story tonight. the third official contest in the republican presidential race is under way right now. nevada's 26 delegates up for grabs in tonight's caucuses. nikki haley got a lot of grief this week when she came in second in the republican nevada primary. tonight it's the republican nevada caucus, which is currently under way and where there are delegates at stake. i should note nikki haley is not on the ballot tonight, but former president trump is. state party rules there forbid candidates from being in both. john king is here to break down that confusion in the caucus. john, can you just explain how republicans got here and what you're watching for tonight? >> let's explain the race first in general, the big race, then these peculiarities of nevada. we have iowa and new hampshire, that's trump. he's 2-0. that has not happened in modern times. a little more than 30 minutes from now the caucuses will close. we expect to get some results pretty quickly. 26 delegates at stake. if you come back to where we are, look, the race for the nomination can be about two things. it can be about momentum. trump has that. or it can be about delegates. trump has that. very early in the count right now, but 26 delegates at stake in nevada tonight, trump is expected to get all of them. you mentioned tuesday night. let's look at it. there were no delegates at stake. trump was not on the ballot. it was nikki haley versus none of the above. she said it was meaningless and it was in terms of the math. she hoped to see this fill in yellow so she could say there are voters out there who want her to be president of the united states. it did not affect any delegate math, but it did not help. if donald trump wins the first three, then we go to south carolina. what does nikki haley do from there? a flip side from 2020, remember, joe biden lost the first three and then he won south carolina. republican races are different. the times are different. however, if you're nikki haley and donald trump is 3-0, you better win. >> what does that mean if donald trump's getting these delegates tonight? how much harder does that make that path for nikki haley, who is still in this race to get the nomination? >> she's raising a lot of money. she says she's going to stay in the race regardless of what happens in south carolina. let's take this on a day to day basis. go back in time to 2016. remember, donald trump was new on the scene then, and he still won 44 of the 46 south carolina counties. the lighter red is marco rubio. i'm just back from a trip to south carolina. they like nikki haley, but they love donald trump. that's her problem. >> anyou're in south carolina talking to voters for the last several weeks. what's next for her? >> again, can she pull it off here? two big challenges. she has to convince a lot of people who are planning to vote for donald trump, please don't do that, reconsidering my argument, i'm more electable, he has chaos. can she do this in the state where she was born and twice elected governor? the challenge is she hasn't been on the ballot in ten years and donald trump has won the 2016 primary and the 2016 general election and the 2020 general election. can she convince enough people or get democrats and independents to flood the south carolina primary? it's mathematically are possible, but historically it's never happened. if you go 0-4, one, two, three, four, then, yes, she says she's going onto super tuesday. she has some money, but it's donald trump's party. you have to prove it isn't.

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