>> stephanie ruhle, all here for msnbc's special coverage of these court arguments on the disqualification of donald trump. >> welcome to our primetime recap of the historic proceedings that the united states supreme court. i am rachel maddow at msnbc home base along with my beloved colleagues, lawrence o'donnell, and joy reid, and chris hayes, happy to have you all here. no cameras are allowed in federal courtrooms, including the united states supreme court, but today, for the arguments about whether china -- for having an insurrection against the u.s. government, the justices did allow for the sound of the proceedings, the audio, to be livestreamed here on msnbc, we carried the audio of those oral arguments live unfold. that was starting just after 10 am eastern time. but we also know that people have lives, jobs, school, other responsibilities and might make it hard to take two hours out of a thursday to stare at an audio speaker for hours trying to figure out of that was gorsuch, or a leader yelling at that port lawyer. we are here to recap what happens in primetime. in the 1970s, watergate hearings are also broadcast live during the workday. recognizing how consequential and how important those hearings were. news networks during that time started recapping yesterday's watergate hearings that night on tv and primetime. nobody would miss out on that incredibly important history in the making. we then did the same during the daytime hearings of the january 6th investigation in congress in 2022. we know from what we've heard from, your beloved viewers, that that was valuable, it was a useful thing. so here we are, together, again, tonight, with basically the same approach. the united states supreme court is now considering whether the leading candidate for the republican presidential nomination should be banned from running again. or potentially, might be okay to allow him to run again, to allow him to be on the ballot, to allow him to compete and potentially even when the election whereupon only than he would be prohibited from actually taking up the job. now, why would you allow someone to run for an office if they are ineligible to hold that office. i don't know. but for the non lawyers among us, i think that we could all take comfort in the fact that that idea sounded just as cockamamie and nuts today at the united states supreme court as it would if you tried to explain it to somebody on a street corner. >> i think it would create a number of really difficult issues if the court says that there is no procedure for determining president trump's eligibility, until after the election. then, what happens when members of congress on january 6th, when they count the electoral vote say that we are not going to count electoral votes cast for president trump, because he is disqualified, that is kind of a disenfranchisement and constitutional crisis in the making. it is all the more recent to address those issues now on a judicial process on a full evidentiary record. so that everybody could have certainty on those issues before they go to the polls. >> if we think that the states cannot enforce this version for whatever reason in this context. in the presidential context, what happens next in this case? i mean, is it done? >> if this court concludes that colorado didn't have the authority to exclude president trump from the presidential ballot on procedural grounds, i think that this case would be done. but i think it could come back with a vengeance, because ultimately, members of congress may have to make the determination after presidential election if president trump wins about whether or not he is disqualified from office and whether to count votes cast for him. >> if he might be ineligible to hold office in the united states, but states are not allowed to keep him off of the ballot, how does the constitution's ban on insurrectionists holding office to get in forest. think about it logically, if states cannot enforce it by keeping people off of the ballot before the election, then congress would have to enforce the ban after the election. which would mean that congress would have to decide after the election, but before inauguration on january 6th, 2025, they would have to decide then and there whether they will count electoral votes for trump or not. based on whether or not congress believes at that point that trump is eligible, or ineligible for office depending on whether in their infinite wisdom, congress thinks that he engaged in an insurrection the last time around. congress will work it out in congress on the spot, on january 6th itself. what could possibly go wrong? you just heard jason marie who did most of the arguing today for the plaintiffs, who successfully sued in colorado to keep trump off of the ballot, we will speak live with jason marie in just a few moments tonight. but that same point about how strange it would be to do what trump's lawyers proposed, to not start to decide whether trump is eligible to be president until after the election, until after he has potentially been elected president, that same point was also made slightly differently by the second lawyer. by the colorado solicitor general who today, also defended colorado taking trump off of the ballot. >> the petitioner contends that colorado must put him on the ballot because of the possibility that there would be a supermajority act of congress to remove his legal disability. under this theory, colorado and every other state would have to indulge this possibility, not just for the primary but through the general election and up to the moment that ineligible candidate was sworn into office. nothing in the constitution strips the states have their power to direct presidential elections in this way. >> in other words, do not make us do this. in other words, dear justices, rule that he is eligible for office, but do not force a situation in which he must be allowed to run, but he might not be allowed to serve if he is elected. if you thought last january 6th was bad, just wait to see what he did lead for the next one if we followed this course. here is chief justice, john roberts tonight. >> counsel, what if somebody came into a state secretary of state's office, and said i took the oath, specified in section three. i participated in an insurrection, and i want to be on the ballot. does the secretary of state have the authority and the situation to say no, you are disqualified? >> the secretary of state couldn't do that. because even if the candidate is an admitted insurrectionist, section three is still a lousy candidate to run for office, and even when election to office, and then see whether congress lifts the disability after the election. >> even though it is pretty unlikely, or it would be difficult for an individual who says that i am an insurrectionist, and i had taken the oath, that would require two thirds of votes in congress. correct? >> this is a pretty unlikely scenario. >> it is a pretty unlikely scenario. so that is 0.1 from today's supreme court arguments. the proposed remedy here from the trump side, which congress has to enforce, the ban on an insurrectionist serving in office, that that ban could only be enforced after the election, but trump has to be allowed to run even though he might not be allowed to actually serve if he wins, the practicalities of, that what it might mean for the country, those implications that are both bizarre and daunting as described in the case today, i think that is point number one. we will talk about a second fundamental point that didn't necessarily go as expected today at the court. it is the very basic question of whether or not former president trump did engage in an insurrection. everybody knew that this was going to be something that was going to have to come up today but there was less discussion today than many observers expected. what there was was quite punchy, though. we will start with justice ketanji brown jackson, and jonathan mitchell who is the lawyer who argued for former president trump. >> the colorado supreme court concluded that the violent attempts of the petitioners supporters in this case to hold the count on january six, qualified as an insurrection as defined by section three, and i read your opening brief to accept that those events counted as an insurrection. but then you are apply seems to suggest they are not. what is your position to that? >> we never accepted this was an insurrection. what we said in our opening brief is that president trump did not engage in any act that can plausibly be characterized as an insurrection. >> what is your argument that it is not? your brief says that it wasn't because, i think that you say that it didn't involve an organized attempt to overthrow the government. >> that is one of many reasons. but for an insurrection and needs to be organized, and an effort to overthrow the government of the united states through violence. and this -- >> and the point is that a chaotic effort to overthrow the government is not an effort to overthrow the government? >> none of these criteria were met. this was a riot. it was not an insurrection. the acts were shameful, criminal, violent all of those things but it didn't qualify as an insurrection as a term is used in section three. >> thank you. >> thanks. if it was chaotic, it wasn't an insurrection. the way that you can tell something is an insurrectionist because they marched in lines. that is part of -- what does a little right have to do with anything? justice brett kavanaugh elicited some of the strongest pushback on this point, this point of whether this was an insurrection and the implications of that. he elicited some of the strongest pushback on that today from jason murray. one of the lawyers for colorado voters. >> in trying to figure out what section three means, to the extent that it is elusive language, or vague language, what about the idea that we should think about democracy and think about the right of the people to elect candidates of their choice, of letting the people decide. because your position has the effect of disenfranchising voters to a significant degree. what about the background principle, if you agree, of democracy? >> i would like to make three points on that. the first is constitutional safeguards are for the purpose of safeguarding our democracy. not just for the next election cycle but for generations to come. and second, section three is designed to protect our democracy in that very way. the framework of section three new from painful experience that those who had violently broken their oath to the constitution could not be trusted to hold power again because they could dismantle our constitutional democracy from within. so they created a democratic safety valve. president trump could ask congress to give an amnesty by a two thirds vote but unless he does that our constitution protects us from insurrectionists. third, this case illustrates the danger of refusing to apply section three as written, because the reason we are here is that president trump tried to disenfranchise 80 million americans. who voted against him. and the constitution does not require that he be given another chance. thank you. >> the constitution doesn't require that he be given another chance. and the constitution protects us from insurrectionists. we are going to talk tonight about the justice is discussing what it would mean to prosecute trump federally for the crime of insurrection, rather than having it adjudicated for example, in a colorado trial court. we are going to talk about the justices debating trump's lawyers claims that he is the only former u.s. president who can't be banned from office for committing an insurrection. all of the others would be banned from office for creating an insurrection, but trump personally can't? we are going to talk about the justices asking why one state should be able to do something this consequential. that is why one of the questions went out like cannonballs but the questions were pretty good. we have a lot to talk about tonight but we will start with these first couple of takeaways here. was this an insurrection, and if there is a ban in the constitution on insurrectionists holding office, but you cannot enforce it by preventing ineligible candidates from running for office, how exactly does that ban get in forest? our, eu were in the room when it happened, you are there for the arguments, first of all, let me ask you, do you think it is fair to pull out those points at some of the pillars on which this argument was held on? >> i think it is fair, it is the first time that we've seen the insurrection discussed by the supreme court. >> in terms of the argument about, well, on the point of insurrection, i felt like i was going to hear a lot today about what counts as an insurrection. that starts from justice jackson, it is priceless. we didn't hear about what it takes to call something an insurrection. does that talk about where the justices see the edge of their job description here in terms of what they ought to be considering? >> it tells us a lot, it also speaks to how bipartisan this was, if you go by the different justices appointed by different parties, based on the questioning, which is all we have to go on, i would give you eight or nine votes likely against the colorado, trump ballot ban. that is not because all eight or nine of those people are soft on insurrection. it is because of the things that you raise, and we heard some of the questioning about it. i will give you a detailed legal answer about that if you. one but i will give you something very simple which is that it was cleared by the end of the argument that most of these people just did not want to go near ballot bands. the reasoning came second. it was almost more honest than usual how much everyone was like, we don't want to do this, we are not going to cosign, this then let's finally get out, how do we get out? if anyone has ever had a destination wedding invite that you are not excited about, these people that she used to know better, for a while back, and it is in antarctica, and you are first like, let me tell you straight-up, that is far away. i heard it is cold weather, also i think it is really expensive, take, it's your brainstorming why you can't go -- how close are we, any of those things might also be true. so someone then might come to you and say there's a super sale, because not a lot of people want to go to antarctica. super cheap tickets. and you're like, it wasn't just the tickets, there are other reasons. that is what it felt like to me. if you are looking for this to be the case that stops trump i will tell you that maybe the bad, news if you are a viewer, anyone thinking as a citizen, if you're thinking does the courts to work on a nonpartisan basis? in some ways we saw them answered with how much it was like that. to then jump into your legal question, the big thing was, even if it is an insurrection, or even if this is something that you should be kicked off of the ballot, for who decides that? it's just a random secretary of state in one state? and we have a lot of different types of ways that we pick secretaries of state and ate partisanship. is it judges in the state? as chief roberts put. it at one point, it is kind of being as blunt as he could, he wasn't talking law, he just said if we did allow, this than other states would punch back. if we gave them the power instead any state could do this, then they are all going to be knocking each other off of the ballot. let me tell you, rachel, justice roberts raised the issue. good answers to that issue from the lawyers who are representing colorado congress. >> i think they had an answer which is there was an insurrection that was televised and there's only one person killed those people to town. and the insurrectionist popping up everywhere are not factually true. and the course concern about that which i think includes democratic -- i think that justice -- was a biden appointee who is well versed on president biden coming to office. i don't think that he's minimizing the insurrection. i think that her point is that we are still going to run into results that. you could be factually right and still have an arms race across the state, that is a concern for the court. this became, if it was the bottom line, this became much more of a debate about the remedy. it should be dealt with in some other part of government than the problem. the problem is huge. >> let me stick with you want not for a second, because we are going to talk in more detail about the parade of horrors. what if a state can take a person off of the ballot, what would that mean, what do the other states do? there would be unreasonable actions to take other people off of the ballot. we will talk about that in a little bit but on this issue of whether or not the states do this, or somebody else does, we also got a parade of horrors today in the courtroom about what happens if the states don't do it. because if there is a ban on new erect -- which has to be inviting another january 6th disaster. that is the rejoinder. it is one way or another. you may not like the states doing it. but if they don't do it the congress is going to have to do it and that is going to be a disaster as well. we've seen it before. >> now, to sound like a lawyer, i think that is a non frivolous point. it is illegitimate -- it is a legitimate point. so what we saw in the oral argument is you are offering chaos? i see you with chaos and this is now -- there is a saying in the law about constitutional hardball, this is beyond hardball. this is constitutional flagrant fouls, or violence, whatever you want to call it. trump and his fans and his no convicted sedition fans, he was always trying for something else but his fans have now been convicted of sedition. they have now sparked this back and forth and we will mention this later tonight who is arguing that having gone down this road there needs to be strong remedies pushing back. pushing back i think that the -- said yes but not at the state level. >> figure out some other bar and what you are proposing to us does sound a little scary, but we will not punt that. our special coverage of today's historic supreme court hearing, it is just getting started, still to join us as already mentioned, the attorney for the california voters in this case to argue today in court, jason murray will be with us live, stay with us. >> states have the power to ensure that their citizens electoral votes are not wasted on a candidate who is constitutionally barred from holding office. states are allowed to safeguard their ballots by excluding those who are under age, foreign born, running for a third presidential term, or as here, those who have engaged in insurrection against the constitution in violation of their oath. i welcome the courts questions. as the world keeps moving, help prevent covid-19 from breaking your momentum. you may have already been vaccinated against the flu, but don't forget this season's updated covid-19 shot too. ♪♪ whoo! ♪♪ light work! ♪♪ next victims. ♪♪ you ready for this? 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the lawyer that essentially responds yes it is crazy, the reason it is crazy is because they are running against a guy who just recently tried to overthrow the u.s. government. yes, that is crazy, nothing like that has ever happened in this country before, at least since the civil war. but yes it is crazy. you do kind of have to clean it up now. >> listen. >> what do you do with what i would seem to me to be plain consequences of your position. if colorado is in a position that is upheld, surely there will be disqualification proceedings on the other side. and some of those will succeed. some of them will have different standards of proof, some of them will have different rules about evidence, although my prediction has never been correct. i would expect that a good number of states will say whoever the democratic candidate is, you are off the ballot, and others for the republican candidate, you are off the ballot, and it will come down to a handful of states that are going to decide the presidential election. that is a pretty daunting consequence. >> certainly, your honor, the fact that there are potential frivolous applications of a constitutional provision is not a reason -- >> you might think that they are frivolous, but the people who are bringing them may not think they are frivolous. insurrection is a broad term. and if there is some debate about, it i suppose that will go into the decision, and eventually we would be deciding on whether it was an insurrection with one president, as opposed to when somebody else did something else. what do we do, do we wait until near the time of counting the ballots to go through which states are valid and which aren't? >> there is a recent section three has been dormant for 150 years. it is because we haven't seen anything like january 6th since reconstruction. insurrection against the constitution is something extraordinary. >> it seems to me were avoiding the question, which is that other states we have different views about what constitutes insurrection. now you are saying it is all right because somebody is going to decide that they said they thought it was an insurrection, but they were wrong, and maybe they thought that it was right, and we would have to develop rules for what constitutes an insurrection. >> yes, your honor, just like this court interprets other provisions, it can make clear that an insurrection against the constitution is something extraordinary. in particular, it really requires a concerted group effort to resist through violence, not some ordinary application of state, or federal law. >> councillor, you are saying that someone, presumably us would have to develop rules for what constitutes an insurrection? unfortunately, yes, sir, we have come to that moment. in u.s. history, yes, we are going to need to have some rules around this. joy reid, i mean, i don't think that anybody thinks that the colorado petitioners are going to get their way from the supreme court today. but the questions, the way that they were raised, on the way that the lawyers have to say to the supreme court justices we are sorry we are here, but we are here, it is really striking. >> it is not like it is every day that people tried to overthrow the government with violence. with that question, you would actually have some facts around which to organize in attempt to throw a random democrat off of the ballot in the republican state. it is not like you could just do it. let's just review the record. donald trump wasn't just a cleared insurrectionist because the democrats were mad, a bunch of republican petitioners took this case to court. there was an actual trial at which they determined then adjudicated based on republican petitioners, saying he did try to be an insurrectionist. fact number two, he was impeached specifically for attempting and supporting an insurrection. there are plenty of facts on the table that say that the point of what they are saying, it was just a riot. it wasn't a riot for no reason because the people just weren't having a good day. it was a riot to attempt to replace the winner of the presidential election with the loser of the presidential election. thereby, to replace the government that was supposed to take effect, with the government that was over. by definition, that is attempting to pull an insurrection and replace the government. i thought some of the arguments were so circular, and the idea that they can't make a decision here out of the fear that at some point in the future, democrat it stays would then, or republican states were tried to say a different person was an insurrectionist, based on none of those facts, all of those things happened, yes, because there would be an insurrection. >> i will put this to you, thank you, alex. this was something that was raised by both liberal and conservative justices today. the idea that if colorado has done it to donald trump, other states might retaliate by doing this and very unfair ways to other candidates. the rejoinder to that is, yes you could also bring frivolous and malicious prosecutions if you ever get caught for anything in the criminal law. the ideas that our systems exist, they have structures of governments, and facts exist in the courts. therefore, somebody is going to unfairly retaliated, or retaliate not based on the type of fact pattern that joy is describing? we would catch that and let it go through, right? >> here is what i will say. i think it is farfetched to suggest all of a sudden this is going to lead to a spate of efforts to get joe biden off of the ballot in red states. but i do think that there is, what did toledo call it? unmentionable consequences. forget joe biden, imagine you just have a bunch of red states where donald trump stays on the bella donna bunch of blue states where donald trump is off of the ballot. but in and of itself is problematic. you don't even have to give out the scenario where biden is the victim of some political partisan hacker e related to this decision. you just have to work out a scenario where donald trump's name doesn't appear on all of the ballots in the united states. that is a huge problem. >> that is a problem that happens now from third party candidates. there are candidates running as independent candidates who get on the ballot in some states and don't get on the ballot in others and it is a want to taint of matter, not qualitative. they don't tend to have that problem but each state's ballot looks different. >> i am not arguing that that should be the reason they decide what they decide but it seemed really clear, as one person among many who side looking or watching a blank screen and staring at a speaker, all of these justices seemed very much less concerned with the textual interpretation and the originalism of the constitution and a much more concerned about the political reality that is ahead of them. to the degree that they may say it is not up to the states to decide this congress, or that the federal judicial system needs to decide this. in which case, we will inevitably have a lawsuit in the federal courts on these same face. >> isn't that a consequence of the actual fact that our elections are decided by these states? that is actually the system. the states get to decide who qualifies and their state. that is the system. and trying to say that because states decide, and what you would have to do is essentially disenfranchise all of these states where trump won the electoral college votes in that state, on january six, 2025, by saying guess what? he's not getting a waiver. who is getting two thirds of a vote in the house of representatives to get the waiver? so you are saying let the people vote for trump, then go to january six, 2025, and then say -- >> i guess that there is a weird thing just to take a step back part of what was weird about today is that there is a ball that the conservatives play with on this court. they love textualism except when they don't need it. textualism is like, we have our personal policy preferences, we have outcomes we won but we can be thinking about comes. the text tells us that everyone can have a gun in every public space in america in the year 2023 and that is just what we have got to do and if you have a kindergartner with walking around your like sorry, that is what the constitution demands. yes there are concerns that we shouldn't do that but you can't look at that they do that when they are like okay and then the moment they don't like the outcome, they just took it over and we end up checking over the contextualism today but the weird thing i want to say, the hop on the other side of the hypocrisy, personally i'm not a textualist and i think that all of these are a-ok to think about. that is actually how we should be thinking about the constitution, and i am a legal realist, and i think he was right about this. the judge who talked about this pragmatism. so all of these pragmatic questions strike me as perfectly legitimate. the other thing, to your point, joy, they are all about states deciding this stuff except into places. bush versus gore were suddenly the state couldn't decide because the federal government was staying in the opinion that is the only counselor here and now it's like what are you to talking about? states doing this? we are going to let states do it? >> by the way, by the way -- now do abortion. because they literally said the opposite. they said in the case of abortion you cannot apply a federal standard, and for states to live with, it we have to let the states decide. so you're seeing states get to decide whether women's wounds are owned by them, but states can decide their own election rules, when it literally says in the constitution that the elections are decided by the states. >> true. let me say this, i love -- my favorite argument is when a justice is like come on. seriously. because that is what a lot of this comes down to. there is a certain part where she says you would be -- the voters of colorado would be deciding the election for the whole country. you take them off the ballot, that is not true because it's a blue state anyway, but the point still holds. she says your honor we would just be deciding for the colorado voters. but come on. it is a case that we all understand the implications of the action are absolutes. >> that's what happened with florida. florida, florida, florida. three of them worked on the bush v. court case for bush. so for roberts to be the one to pose the question, why should we let one state decide? >> for the consequence to be the prohibition that is clearly in the constitution that says if you engaged in an insurrection you cannot hold office, in the united states or in any state, the consequence of this argument, the practical consequences that you can't have these states in force that. so we will have congress enforce it, which is just going to be a rugby scrum. if you can't do it until the guy has been elected -- >> what they are saying is that i would bet a lot of money that congress has to pass it in labeling statute that's also specifically the procedures by which the series of acts passed, some of them including the enforcement acts, where they have to specify a procedure where this is too hard to interpret for courts, and too crazy for the states. congress has to actually passed some statute that says how to do this. and then we can do it. >> but they are seeing it passes a law that's only for the president. we talk about the trump cowboy who is actually disqualified in the state of new mexico from holding office, county commissioner, there was no enabling legislation needed to do that. it is a state law. but the point is that you are going to have to pass it just for the president, because ketanji brown jackson didn't get in to this question, on why didn't it include the president. i guess they didn't have the imagination to understand that a presidential candidate, someone to be president would commit insurrection. so why didn't they specify that? >> we are talking about the white, which is very important, most of the argument turned on the who. and one of the cases they talked about the most, in a perfect case -- >> can you say the name of the case is -- >> thank you. right. the supreme court has previously held that if you add something, even something that sounds very reasonable, like we do not want people in congress forever, right? and we want to have a limit on that amount of time, they said it is not in an eligibility requirement and you can't do that, yes, the what is super important, indeed, i would argue that the split in the court is about the what, we might see that on the immunity case we are watching, but the who is if it is a federal requirement that is in the federal constitution about the 14th amendment, then what states locally do, the who of their local offices as one thing. what they do about federalist different. so who here would be, i don't know, you have money down on live tv about how they are going to write the ruling so we could come back and you could be right. the other thing that you could do is say that donald trump, whenever you think of him, not only has been convicted of insurrection, but he hasn't been charged with an insurrection like offense which would be insurrection or sedition. and therefore, the who has to be some prosecutor or some other process at a federal level and not the state level. i know that is frustrating. it is annoying when the justice did it but i will do it as well i'm not saying i agree with all of this stuff. i had to sit through law school and then i sit through the hearing today and the who is that. is it something more like a prosecutor or more of a federal thing? >> let me ask you a question. what happens if he gets charged with u.s. code, 23, 83, rebellion, insurrection, if he is convicted of that than he would actually be incapable of holding any office of the united states. >> i can answer that. he or anyone is toast of that happens. >> the house january six committee was quite clear in its recommendation that donald trump should be charged with inciting an insurrection. jack smith didn't charge it. so now we have a case where it is against the federal courts where trump could very well be convicted of obstruction in any number of big felonies except for an insurrection. the question is if he is convicted when sentencing comes down his qualification from office, it is not part of the sentence? does this count as something? >> can i just say that had donald trump been charged with insurrection with the way the january six investigation recommended, had he been charged today there is no chance that rod kavanaugh would've stopped there and been like, well, anyone convicted of insurrection, it is only because -- >> it is called legislative to the purpose. .com, we have a lot more from today's supreme court hearing, including the very, very poignant in a bad way moment where the lawyer for the plaintiffs took a question from his own boss, young gorsuch. >> do you agree that the states powers here over its ballots have to come from some constitutional authority? >> members of this court have disagreed about that. >> i am asking you. including those that could send me to the hospital. so now i look forward to more good days. breztri won't replace a rescue inhaler for sudden breathing problems. it is not for asthma. tell your doctor if you have a heart condition or high blood pressure before taking it. don't take breztri more than prescribed. breztri may increase your risk of thrush, pneumonia, and osteoporosis. call your doctor if worsened breathing, chest pain, mouth or tongue swelling, problems urinating, vision changes, or eye pain occur. can't afford your medication? astrazeneca may be able to help. ask your doctor about breztri. as the world keeps moving, help prevent covid-19 from breaking your momentum. you may have already been vaccinated against the flu, but don't forget this season's updated covid-19 shot too. ♪♪ whoo! ♪♪ light work! ♪♪ next victims. ♪♪ you ready for this? ♪pump up the jam pump it up♪ ♪ ♪ youis this yours?s? you ready? 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welcome back to our primetime recap of the u.s. supreme court's deliberations today. their oral arguments today over whether or not president donald trump should be disqualified from standing for office. jason murray is the denver- based lawyer whose argument helped convince the colorado supreme court that trump should be disqualified from the ballot. they made the debut representing colorado voters, in addition to more than a decade as a trial lawyer, they worked closely with two of the justices up there today. for justice neil gorgeous, when he sat on the court of appeals, he also had justice elena kagan at the u.s. supreme court. before the justices and the different capacity, making the case that the -- that donald trump should not be allowed on the colorado ballot. joining us now live after a very stressful day is jason murray. mister marie, congratulations on your appearance at the court today and thank you for making time to be here tonight. >> thank you so much. i appreciate you having me on. >> so, i know this was not your first time in that courtroom, and you are very familiar with the supreme court procedure, and you have seen a lot of lawyers stuff up to the podium today. how is it for you to join for the first time? >> certainly a source of pride for me to get to argue in the supreme court for the first time. also to be able to appear before my former bosses. >> in terms of how things went today, i do not think that it will come as a surprise to you for me to tell you that most observers think that the case is not going your way, most observers think that president trump will be allowed on the ballot, that colorado's decision to take him off of the ballot will effectively be overturned by this court, i have to ask if you share that common wisdom, if you feel like you have a sense of where the justices are going after what you went through in court today? >> i won't sugarcoat. it is certainly seemed like the justices were asking very difficult questions. most of them procedural questions about whether these states had the ability to enforce section three of the 14th amendment. i say that we have a lot of difficult questions, and when the colorado supreme court sat down to write their opinion they realize that we were right on the legal issues. so we hold out hope that as the court gets into the legal issues here that will realize the law and history is clearly on our side here. certainly they have hard questions today. i don't think that the court would decide a hard case like this one without asking hard questions. >> let me ask you to go back into one of the questions in which i think you got some of the hardest questions. i am not a lawyer to really observer and i think it is some of the journalism that happened today. it reflected on what seemed like very hard questions about whether or not colorado as an individual state, or indeed any other state should have a rule that wouldn't directly, but would effectively remove a presidential candidate from consideration by the voters of the whole country, that issue, the prospect was raised a few different ways by the justices today, but if you just take it holistically and address that criticism of the take that the colorado supreme court and your clients brought to the court today. >> it is an important question i think it is based on a misunderstanding because we were not here today to ask those supreme court to allow colorado to decide these issues for the nation. we were asking the u.s. supreme court to decide as a matter of constitutional law whether donald trump was eligible to be president again, based on his own caught out of engaging in insurrection. that is not a political question for the state to decide. that is a legal question for the court to decide. and although the case came up through a state court, many important cases of federal law, a federal constitutional law came up through state courts, but once they are at the u.s. supreme court, it is for this court to make the final decision that will govern for the whole country about the constitutional eligibility of the candidate. that is a case we were trying to make today. >> hi jason, our email or hear congratulations to you and all of the lawyers today. it was a big case, and a momentous one on one of the most difficult things to do. handle the hot bench with nine justices. congratulations to all of you. two questions, i don't know if you want to answer both of them. but given what you went through today, and it is so hard, and the whole thing is fast and complex, is there any part where you would want a do-over or to extend your remarks, or build on an answer? that could happen in any part of life. i am curious if that happened at all today. second, we discuss on this panel, it was clear in the courtroom that there was bipartisan skepticism about one of your key points which is that the insurrection was this unique and rare event. i wonder, is there a way through your arguments with the brief which matters sometimes even more than oral arguments, or through what you did today, that you could better, to paraphrase it differently, say yes, an insurrection is one where you know it when you see it. and we are not going to have a ton of frivolous made up insurrection claims, if some bananas official, and some bananas state says that biden did an insurrection when he gave an interview, and that was very different than the live tv documented insurrection we lived through. you will know it when you see. it that is the question. a do-over, and that. >> absolutely. let me take the first point first, i wouldn't characterize it so much as a do-over as the fact that there were a lot of questions that were being asked where i would get ten words and before i get another question, and wouldn't so much have a chance to respond. so, one point i would like to emphasize now, because we didn't come up so much at arguments, is just how clear the evidence was and how lucid the colorado supreme court's factual findings were on the fact that president trump engaged in insurrection against the constitution. this isn't some sort of secretive thing that relies on dubious witness testimony. it was in plain sight for everybody to see. we saw the tweets. we saw his words. we saw his campaign manager the day of, his former campaign manager, call this a sitting president asking for a civil war. we saw that even after the capitol came under violent attack, members of the mob were chanting hang mike pence, president trump or more fuel on the fire on twitter by putting a target on the back of vice president pence and egging the attacking mob on. we saw his tweets at the end, where he praised the attackers and justify their actions, saying these are the things that happen when an election is stolen. his case isn't close to a virtual confession of intent to incite insurrection you can possibly get. and so i thought that some of the discussion about, well maybe one state will have one evidentiary record, another state will have another, didn't fully engage with that central point. >> i was gonna ask you to remind me what your second question was because now i have forgotten. it >> insurrection, do you know it when you see it? >> i think it's more than that. the history is really clear on what an insurrection. isn't insurrection is more than a protest gone. wrong and insurrection is more than a riot. in insurrection is a coordinated attack for the purpose of resisting execution of law by force. and section 3 requires an insurrection against the constitution. and that hasn't happened since the civil war. because here an insurrection against the constitution requires that you are attacking a function mandated by the constitution, not just an ordinary law. into here we have an attack on congress's constitutional duty to certify the presidential election results. so hypotheticals about the idea that estate might misuse section three to go after their political opponents, i think just misses the point. you can always have frivolous applications of law, frivolous cases that are factually and legally baseless, and we trust that our justice system will put an end to them by saying this is baseless. i don't see why section 3 should be any different. >> hi jason, it's joy reid. as a product of denver public schools, i will congratulate you and steve collateral for making history. justice clarence thomas, he didn't ask a lot of questions, obviously yes the first question is he's the senior justice. but there was one point where he was pretty animated with you. there is some irony, and i'll just say this myself, that his wife, her relationship with the insurrection i found ironic when listening to him speak. it was a point at which he talked about the plethora of confederates still around after the civil war. there are any number of people who can continue to run for state office so it would seem, he said, that that would suggest that there would at least be a few examples of national candidates being disqualified if your reading is correct. there was a lot of engagement with you on this question. if this is such an obvious point, in section three is self executing, why aren't there other cases that we can cite where insurrectionists were disqualified in the way that you are arguing donald trump should be disqualified. i would love for you to say more on that. if we could have a longer exchange, what more would you say? >> one of the extraordinary things about this case is that we have about 50 professors of history who are the leading scholars in civil war reconstruction file briefs on our side in this case. they explained that history. they said that immediately after, before the amendment was ratified, and even before, congress was flooded by requests for amnesty from people who knew they would otherwise lose their jobs and be kicked out of office. the union army was evicting hundreds of people on a weekly basis for officers in the south that they were ineligible to hold. and we had a number of state court cases where state courts were determining eligibility under section three. i took it what justice thomas was asking with something much more narrower than that broad question, which is, where states ever trying to restrict federal officials from taking federal office? ? and the answer is no. but that's because of how balance work differently. biden states have power to run elections in control the ballots. that's incredibly clear from article two of the constitution. and the difference is that back then states didn't write the ballots. they didn't run the ballots. essentially everyone was a write-in candidate. so the only way that federal officer who was elected like a member of congress would have their eligibility determined is after the election when they came to congress and said i one and then congress decide whether to seat them. but history doesn't answer the question here because nail states are using that power to do ballot access determinations and so then you have to ask, well, if states can exclude a person who's not a natural born citizen, or person who's under age for the presidential ballot, which they've been doing for many decades, why can't they exclude an oath breaking insurrectionist? >> jason murray, the lawyer representing colorado voters, defending that decision today at the united states supreme court, a big stage for your first time ever before the supreme court. i know that there's pride that goes with it, but i hope you get some rest thereafter and that the adrenaline come down is not too painful. >> thank you so much. i appreciate that. >> all right. good luck. much more to come in our coverage of the supreme court hearing today over whether donald trump is disqualified from the ballot. first, a moment for the named plaintiff in this case, whose lawyer we just met, she is 91- year-old colorado republican norma anderson. >> this is very personal to me. i've lived a hell of a long time and i've gone through a lot of presidents. and this is the first one that is trying to destroy the constitution. if they qualify him, they would have to work very hard to beat him. beat him. with nurtec odt i can treat and prevent my migraine attacks all in one. don't take if allergic to nurtec. allergic reactions can occur even days after using. most common side effects were nausea, indigestion and stomach pain. talk to your doctor about nurtec today. ♪ parodontax ♪ blood when brushing could be the start of a domino effect of gum disease. all of these signs could lead to worse. parodontax is clinically proven to reverse the signs of early gum disease. parodontax, the gum experts. as the world keeps moving, help prevent covid-19 from breaking your momentum. you may have already been vaccinated against the flu, but don't forget this season's updated covid-19 shot too. liberty mutual customized my car insurance and i saved hundreds. that's great. i know, i've bee telling everyone. baby: liberty. oh! baby: liberty. how many people did you tell? 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will there be an opportunity to do officer stuff? >> absolutely. [laughter] >> officer stuff. we will get to the officer stuff. let's do it. welcome back to our primetime recap of the supreme court plan recognitions today on whether donald trump's effort to overthrow the government the last time he lost an election is sufficient to keep him from standing for election again, or from serving as president, if indeed he's elected. every one of us who has ever reported on the with supreme court knows better than to extrapolate from oral arguments to try to define how the justices originally going to rule. we know we're not supposed to do that. but even with that caveat, i think everybody's eyebrows shot up to their hairline today when center-left justice elena kagan said this. >> if they could put most boldly, i think that the question that you have to confront is why a single state should decide who gets to 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, it sounds awfully national to me. so whatever means there are to enforce, it would suggest that they have to be federal, national means. that seems quite extraordinary, doesn't it? >> no, your honor. because ultimately it's this court that's going to decide that question of federal constitutional eligibility and settle the issue for the nation. it's not unusual that questions of national importance come up. >> we would say something along the lines of the state has the power to do it. but i guess i was asking you to go a little bit further and say why should that be the right rule? why should a single state have the ability to make this determination, not only for their own citizens, but for the rest of the nation? >> because article two gives them the power to appoint their own electors as they see fit. but if they're going to use a federal constitutional qualification as a ballot access determinant, then it is creating a federal constitutional question that then this court decides. >> why should one state be able to decide who is the president? for the plaintiffs, challenging whether donald trump can be on the ballot, that starts off as this incredibly damning question from justice elena kagan today. but the lawyer for colorado, and then after him the colorado solicitor general, and an answer for that concern, saying basically, hey, states decide who gets on the ballot all the time. that's the system. it's not at all uncommon for different states to have different candidates listed for the same election. some smaller party candidates get, on not others. some are kept off eligibility concerns the some states take more seriously than others. it happens. the supreme court can give guidance to make it more uniform, but the states can handle this. the colorado solicitor general, speaking on the same point just moments later said there is a huge amount of disparity and candidates end up on the ballot in different states and every election. just this election, she said, it a candidate to colorado excluded from the primary ballot, who was on the ballot in other states, even though he's not a natural born citizen. that is just a feature of our process. it is not above it. so there's an answer to this concern we just heard jason murray who had an answer to it a few moments ago. when the justices ex express the concern of the individual states shouldn't be allowed to do something that has profound national consequences it definitely resonates. did the lawyers in the room rebut that concern, answer it in a way that's going to work on any or all of the justices? just the fact the justice kagan asked about it at all mean that this ruling is foretold? joining us is someone who knows these things, senior editor and legal correspondent for slate, also the host of the amicus podcast. great to see you. thank you so much for being with us. >> good to see you. >> is there anything that we have been talking about here tonight that has been like petting a cat the wrong way for you? feels like we have screwed up, got the wrong way around, or misunderstood? >> not at all. i might quibble with arteries destination wedding metaphor because to me it felt so acutely like a train in speed, where it's just hurtling from one crisis to another. we have a court that's in the midst of a legitimacy crisis. you've got a dobbs leak. even a bad investigation of the dobbs leak. you've got ethics scandals left and, right the first justice asking questions, had his wife texting mark meadows and trying to get state election officials to change votes. all of that is happening, and you sort of feel like the justices are like hurtling their bodies against the sides of the train, just being like, get me off this train. i don't care what the rationale is. i'll go with the one state shouldn't decide rationale, i'll go with the officer rationale, i'll go with there's no due process for the president rationale. i don't care, i need to be off. and that anxiety was palpable. >> and ari is saying that's exactly what i mean. >> so whatever way they weren't gonna go to the wedding. >> exactly. >> the train isn't going to end well. so dahlia, my question is, and it's a non lawyer question for, you i think we could all see the justices trying desperately to get away from having to do something substantive here that would address the crisis at hand. what is the damage? what's the risk? what's the potential negative consequence of them finding a way to dodge it? >> i think at the most sort of high-minded constitutional law of all it's that this needed to be answered. that is, i think, what colorado was saying, that it's your job to resolve a constitutional question largely a first impression and it is your job to decide for this entire country whether or not the 14th amendment section three is self executing, whether the officer dichotomy holds, whether we can allow insurrectionists to run for office but not hold office. there's a bucket of questions that are exigent questions, and the court, i think, made pretty plain that they would rather, or at least i counted, i think, five or six votes hanging their hats on this deal be pragmatic argument that we don't want to decide because it will allow shenanigans in other states. so it just seems to me that the downside is, and this was, everybody knew this was a huge vehicle, a big swing case. they have an opportunity to, when they get the immunity case. maybe that's the trade-off here. but this was a huge swing case. we have an unresolved constitutional question. i'm not completely certain that writing, oh, we need enabling legislation lets them out from under that question. >> on that point about the immunity case being right around the corner, we expect that by monday, these judges will be asked to weigh in on whether or not that d. c. circuit court ruling should stand, the ruling this as unanimously by that panel of appellate judges that president trump doesn't have absolute immunity, that he can be prosecuted in federal court for what he tried after the election. in discussing immunity today, i guess he wasn't trying to bring up immunity. president trump's lawyer awkwardly brought it up with brett kavanaugh. while brett kavanaugh was trying to focus on this question of why president trump wasn't prosecuted for insurrection, and we've been talking about that a little bit tonight, this idea that because trump hasn't been charged specifically with insurrection, that suddenly seemed to create this incredible clarity among all the justices that had that thing happened, then this would be something that there would be an easy answer to when we know what to do when this would be settled in a definitive way. i just wanted to ask here, your reaction to that. it doesn't seem clear to me why it's necessary for trump to be charged with or convicted of insurrection for the constitution's ban on insurrection serving in office to be effectuated. what did you think of how that part of it was handled? >> i was a little frustrated at how deeply disrespectful i felt that the court was about the process that happened in the colorado trial court. there was a trial on the merits. there were, as you just heard, meaningful findings from that court. the notion that trial courts can't do this thing determine whether there is an insurrection. or even worse, rachel, the notion, and we heard this from the chief justice, heaven forfend we would have to somehow determine whether there was an insurrection. >> us? >> imagine that fell on? us and there was a deep disrespect for what actually happened and i think that deals with one of the things that you all said earlier in the year round up, which i think is so important. we have a court that, for, i guess the first time in 20 years, found humility today. institutional humility. we can't do it. this was the court that decides air pollution and water pollution and vaccine policies. it is going to determine what emergency room doctors can do when there is an abortion base, and they can do all that stuff and they can't either determine what an insurrection is or have a trial courts definition. it's very weird in february of 2024 to discover humility. >> exactly. results oriented, as we have been describing. dahlia lithwick, legal editor for slate, host of the amicus broadcast, and my favorite person to talk about the supreme court. thank you for being with us tonight. steph, i want to bring you in on this. in discussing what happened in the courtroom versus what's going to happen next, i feel like there's, unlike the immunity case, there isn't really a piece issue here. there isn't a lot of scrambling as to what's going to happen next and what effect this will have another cases. this is either going to end it all or it's not. and it feels like it's not. but does that mean that what happened in the courtroom today is essentially beside the point essentially based on this case? >> the concern i think tonight is, what do the american people know? you said it at the top of this broadcast. most people will probably not listening today to the audio for two hours. as sad as that makes us, not every american is watching us right now, although i totally think they should be. and just think about it. during those two hours, there was much debate over what exactly was in the amendment. what government jobs in previous cases but there is no debate, no discussion, and no decision over whether donald j trump incited an insurrection. and the risk now, if the court rules and favor of donald trump, is a whole lot of americans could say look, they didn't do anything, and that's not the case. so in terms of what happens next, we say every night here, making sure the american people actually know the truth. >> it's a very good point, it's important stephanie, that would if we look at the details of, this it's important to understand the nuances between the different justices and whether it's gonna be an 8 to 1 or 6 to 3, and the takeaway of this is they tried to say trump did an insurrection -- >> if he didn't do it -- >> he won that case. if that's the takeaway, people are missing the point, but the court's decision may do damage in terms of how we perceive whether or not the 14th amendment exists, whether insurrection is okay. >> there are many people who are gonna take that take away and say he didn't do it. the high court said it. >> i thought you made good point about this sudden humility that they found. i'm wondering if they could find it on the mifepristone case. and we're gonna find it in cases where, i mean, they seem to believe that states have a lot of rights when it comes to women's physical body. but they are like, a state, with the state get to do with elections? what kind of everything. and as i was listening to dahlia talk i was thinking about another amendment that was a reconstruction amendment, the 15th amendment. it has what is enabling registration. it's the voting rights act. they have no problem chipping away the voting rights act, which is the enabling legislation, like 100 years later, for trying to enable the 15th amendment, the one that says that no one shall be denied their right to vote based on race or previous condition of servitude. but they don't have any problem saying that some states can allow you to have voter i. d., some states don't. some states will only vote if you bring your gun license. states are making decisions that give you different outcomes for who comes ax has access to the ballot every day, and only some justice departments, like obama's, i really litigating on that. and the reason i keep coming back to that is what people are also forgetting is the insurrection was an attempt to deprive 80 million people of their right to vote. it was an attempt to literally disenfranchise 80 million people, disproportionately black folks in detroit, people in georgia, people in arizona, a lot of latinos in arizona. and you're talking about trying to disenfranchise people based on believing that they aren't true americans and that they are -- the outcomes of their selection shouldn't count. >> i feel like this week, it's thursday right, between today when it so evident that the court is making political decisions. they're not just extreme textualists. they're not regionalists. they're very much looking at the practical implications of the law. and then monday, when they're gonna get this appeal from trump to hear the immunity case, and this broad speculation that if they ruler trump's favor on the 14th amendment they may not rule in his favor on immunity, making clear that this court takes into account politics when it makes its decisions, and that it is the court's credibility, that is at and nader. both today and what happens, and whatever happens next week, the perception that it's a slap on this wrist, a carrot on his hand, and a stick on the other, makes it so evident to the american public this court is not what it proposes to be. the question, i think, is gonna be somewhere along the line, in some congress yet to be elected, accountability? how did that happen? >> the prospect of unanimous decisions from the court in either direction, which is remarkable pseudo- bipartisanship. result driven negotiations. much more to come in a recap of today's historic supreme court hearings. stay with us. >> we understand what we are asking the court to recognize is something extraordinary, which is that for the first time in our nation's history, a major candidate for president of united states is ineligible for that office under the constitution. so we fully expected we were going to get difficult questions. we are confident when the court looks as a law and digs into the issues, it will realize that we are right and apply the law as it is written. t and app law as it is written. nurtec. allergic reactions can occur, even days after using. most common side effects were nausea, indigestion, and stomach pain. ask about nurtec odt. ♪ ♪ nausea, indigestion, and stomach pain. is this yours? you ready? surprise! i don't think you can clear this. i got this. it's yours now. he hits his mark —center stage—and is crushed by a baby grand piano. you're replacing me? 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(vo) oh yes. start with an all-cash offer at opendoor.com with nurtec odt, i can treat a migraine when it strikes and prevent migraine attacks, all in one. don't take if allergic to nurtec. allergic reactions can occur, even days after using. most common side effects were nausea, indigestion, and stomach pain. ask about nurtec odt. is it possible to count on my internet nausea, indigestion, and stomach pain. like my customers count on me? it is with comcast business. keeping you up and running with 99.9% network reliability. and security that helps outsmart threats to your data. moaire dida twoo? your data, too. there's even round-the- clock customer support. so you can be there for your customers. hey billy, how you doin? with comcast business, reliability isn't just possible. thanks. it's happening. get started for $49.99 a month. plus, ask how to get up to a $1000 prepaid card with a qualifying internet package. don't wait, call and switch today! i'm daniel lurie and i've spent my career fighting poverty, helping people right here in san francisco. i'm also a father raising two kids in the city. deeply concerned that city hall is allowing crime and lawlessness to spread. now we can do something about it by voting yes on prop e. a common sense solution that ensures we use community safety cameras to catch repeat offenders and hold them accountable. vote yes on e. >> president trump engaged in insurrection by inciting a violent mob to attack our capitol and disenfranchise over 80 million people who voted against him. in doing so, president trump disqualified himself from holding office. that's not something we are doing to him. that is not something any court is doing to him. that is something he did to himself, under our constitution. >> disenfranchising 80 million people who voted for his opponent, and was, in fact, the winner of that election. tonight's special edition of the last word with lawrence o'donnell starts at 10:30 pm eastern tonight. so you have that to look forward to. if you leave a note for your boss in the morning as to why you are sleepier than usual, just let me know. i'll sign them for. you welcome back. meanwhile to our primetime recap of the supreme court's today. this historic case about whether former president donald trump did himself out of a job, did him self out of holding office again when he participated in an insurrection against the united states. an insurrection against united states is not just a mean thing to say. it's also a crime for which you can be charged in federal court. add to these arguments justice brett kavanaugh raised the issue of that possible federal prosecution. it made sense in context, but it was clearly a sensitive subject for president trump's lawyer. >> just to be clear, under 23 83 you agree that someone could be prosecuted for insurrection by federal prosecutors and if convicted could be or shall be disqualified from office? >> yes, but the only cavett caveat that i would add is the client is arguing he has presidential immunity, so we're not gonna concede that he should be prosecuted. >> understood. asking the question of the theory of 2383. >> one could be prosecuted for insurrection. one could be prosecuted. not him. of course he couldn't be prosecuted for anything. not saying anything one way or the other about whether donald trump might have committed the crime of insurrection, whether he might be immune from that prosecution for that crime, even if he did it. that of course is a sensitive issue for a sitting supreme court justice to discuss with anyone, given that that is an issue that the supreme court will be taking up by monday as in several days from now. joining us once again, our friend andrew weissmann, former general counsel for the fbi. when the senior prosecutors on robert mueller special investigation. thank you for sticking with us. what do you think about the fact that donald trump was never charged with insurrection or any insurrection related crimes? that is something that the january six investigation in congress suggested he should be charged with after their very detailed investigation. >> that would've been one of the crime is referred by congress to the department of justice. one crime that has, as a penalty, upon conviction, that the person shall be, not be able to run for office. they are disqualified. so there is a lot of discussion today, as you have been noting, that that is essentially a form of the congressional federally congressional enabling statute for this constitutional provision. i sink there are probably two reasons that this department of justice did not charge it. remember the special counsel's part of the department of justice. i think one is that that crime had not been charged for many years and so this idea that they're reaching back to that crime to single out donald trump, which would certainly be an attack. there's an answer to that, which is we've never been in that situation before. but i think the other is, if you think that there's a claim of politics now, if you brought that charge, the idea is that has that penalty, you are avoiding all that. and i think that's really worth taking a step back to note that if you think about what we are seeing with comparing this justice department, both in the discussion we're having now about the fact they didn't charge insurrection, they did not seek to make it disqualifying for donald trump, and relate that also to what you saw in the special counsel report today, this is the justice department that appointed a special counsel for the sitting president, appointed a special counsel with respect to a sitting presidents son. you did not have merrick garland, for instance, issue a purported summary of the report saying, obviously, that something on my mind today. for my work with the mueller investigation. if you just compare the propriety and sense of what the department of justice should be doing or not, and even if you disagree with, it it's clear they are trying to adhere to the rule of law and appropriate functions of the department of justice. and it just is in striking contrast to the trump administration, where they appointed the department of justice appointed a special counsel and basically every single day that that council existed there was the constant threat that donald trump would get rid of the special counsel. so it's just remarkable how different the two justice departments are behaving. that was my take on what i was thinking about, the insurrection charge that was raised in the oral arguments today. >> let me also ask you about the other thing that came up i think a bit awkwardly in that exchange between the justice and the lawyer, which was this question of immunity. obviously the supreme court, within just the next days, is going to consider whether or not to leave standing that this ruling this or donald trump doesn't have immunity from prosecution. i think, i mean, i don't know, i think the common wisdom is that they won't take it up, but also that the circuit courts ruling against trump is not in much danger. again, it's a peanut gallery. who knows? we'll see how it goes once the court makes its own decision. do you think there's any interplay for the justices, between what they handled today, this issue of trump's qualifications to be on the ballot, and this next thing that is coming down the pike to them, this issue of immunity? do you think that one of them being so near on the horizon has an effect at all in terms of how they handle these issues? >> these are people. they are humans. and yes, people are saying well maybe they will take it because they want to show that they're even, they'll give with one hand and take with another. they clearly wouldn't take that case just to reverse the d. c. circuit. that's just not going to happen. they would want to put their imprimatur on that issue. in living today, they would say we don't want any more cases in my own view that's the way to go because it would be odd to take a case where it might be vindicating the idea that no president is above the law, that the unremarkable proposition that a president cannot kill people with impunity. it's just almost incredible that we're having that discussion. but if they were to take the case to vindicate that, in many ways de facto they would be undermining it because it would delay the case that is actually trying to hold them accountable for crimes. so in some ways it's the worst possible vehicle for them to be putting their imprimatur on. >> just as humans, even if the only thing about the three justices appointed by donald trump knowing they're sitting there for a couple of hours like they were today it would have to happen again pretty soon, and you have to spend the whole time talking about donald trump murdering people, murdering individuals, they'd be like named people who would be murdered in hypotheticals. they would have to sit and engage with it in order to come to, even if it was a predetermine conclusion. i can't imagine if you're amy coney barrett that that's a fun way to spend a tuesday after today. >> absolutely. if you just look at today, it was a bloodless discussion today, where there was limited discussion about the actual insurrection. it was so interesting hearing from counsel for colorado, with us tonight, where he actually gave so much more color to end discussion about what actually happened on january 6th. that didn't happen in the supreme court. and i can see them very much not wanting it to happen in those hallowed halls. >> yes, exactly. and always, one former general counsel to the fbi and our stalwart friend on nights like this. andrew, thank you very much. i do think that, and this is to your point alex, it's impossible to think that these justices are going to handle these issues in isolation. this has to affect their willingness to take on the immunity case. i don't think anybody expects that they're going to overturn that appeals court ruling. if they're gonna say that donald trump relieves immune from prosecution even if he murders his political opponents. so i put themselves through this again? >> and the reality that just sort of take here up to put their stamp on it is going to hand trump a by further delaying the case, that's another political consideration. i think it's important for people who feel dejected by the likelihood that the supreme court isn't going to rule in the prosecution's favor on the 14th amendment case. if you're looking for political accountability for donald trump, the 14th amendment situation, if you will, was always going to be problematic and complicated and maybe result in a situation that would have created even more civil strife in this country. the immunity saying, the federal case that jack smith has built against trump, very narrow, it's built for speed. we don't know when it's go to trial, but it very well could go to trial in the summer. he could get convicted. that could be real accountability, in a sort of final way. i think people are looking for that in this moment. the absolutely absurd defenses he has mounted, vis-@-vis his behavior around january 6th. >> i never liked to speak into -- but i am not, i don't think the justice department has covered itself in glory an any of this, to be honest. i think it was totally appropriate to appoint a special counsel in the case of the current sitting president's handling of documents. that is the justice department. it's the guy he appointed. it's running doj. in the case of the former president, it's not clear why he needed the special counsel in three years, and to avoid the most obvious charge, which was 23 83, insurrection. and i think the outcome of the colorado case prove that it was a winnable case. in five days improve the donald trump did violate the law when it comes to insurrection, that he was an insurrectionist, and by not just being direct, and not doing the job that he's getting the big bucks for, merrick garland, he has caused us to have to wait three years to have the supreme court avoid doing the obvious as well. and the truth is, he could've just been charged with insurrection by the current justice department, and it would've been adjudicated and over by now, and this will not be a question. and you can only win one. >> i didn't mention the name merrick garland, i think jack smith took this up as quickly as he could. >> yes he did. >> two and a half years, that's gonna be the true question. >> all right, a recap of today's arguments and supreme court continues in just a moment. stay with us. >> if president trump were appointed to an office today, if he were appointed as a state judge, he could not hold that office, which shows that the disability exists now. the fact that the congress has a power to remove the disability doesn't negate the present qualification, nor does it implicitly bestow on president trump a constitutional right to run for offices that he cannot hold. n offices that he cannot hold. as the world keeps moving, help prevent covid-19 from breaking your momentum. you may have already been vaccinated against the flu, but don't forget this season's updated covid-19 shot too. ♪♪ whoo! ♪♪ light work! ♪♪ next victims. ♪♪ you ready for this? 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>> your honor, i think we have to have faith in our system that people will follow their election processes appropriately, that they will take realistic views of what insurrection is under the 14th amendment. courts will review those decisions. this court may review some of them. but i don't think that this court should take those threats too seriously, in its resolution of this case. >> you don't think there's a serious threat? >> i think we have -- >> we should proceed on the assumption that it's not a serious threat. >> i think we have institutions in a place to handle those types of allegations. >> one of several moments into these landmark supreme court argument, justices raised the prospect that if one state pulls a candidate's name of the ballot, other states will retaliate and pull other candidates means off the ballot for no good reason. and wouldn't that be terrible? this is a case that former president trump makes public all the time. the rejoinder to it is the obvious one. we heard there from colorado solicitor general, the rejoinder true it is, well, no, we're still operating with the rule of law here. and if there is no good reason for throwing somebody off the ballot, the courts won't allow it. just like they won't allow retaliatory prosecutions for no good reason, or any of the other things that trump is threatening. joining us now, nbc news presidential historian michael beschloss. michael, thanks for being with us tonight. >> same here. thank you, rachel. >> i wanted to ask you both about the substance of today's hearing, and i think most heroes believe the trump will not be strike off the ballot, but also this larger point that i think was illustrated by that exchange we just played, which is, so much of what's happening from a country reckoning with donald trump is the country reckoning with his bluster, his threats, and the fear of what he might do if he is held to account. and that's right up on the supreme court's doorstep. >> that's for sure. and we just heard that the words in that clip. we've got to have faith in our institutions. well, that's true in general, but i keep on remembering, both when i was listening today and also listening to all of you talk tonight, what just as robert jackson said in 1949. he said the constitution is not a suicide pact. and what he meant by that is the constitution deals with all sorts of issues but if you can't protect your country against threats like rebellion and insurrection, such as we saw in the civil war, and we saw on the 6th of january the none of the rest of this matters. so looking at it historically, the civil war, it's a matter of grim record that confederacy tried to take down a republic, tried to take down our democracy, break it up into two or more countries, one of which would be a big slave holding republic, the union army was able to prevent that. narrowly. but what happened, as you know from your reading of history, is that after the civil war ended, jefferson davis was actually saying, and this was a direct quote, the leader of the confederacy, supposedly defeated, what he said was, the confederacy was not defeated in this war. we won a victory and we were cheated of it. so he tried to deal with that by getting ex confederates elected to federal office, elected to state office, and so that's one of the reasons we've got this 14th amendment, which wise the congress and the states putting themselves on the line in a constitutional amendment, saying we've got to protect our country and ensure that an insurrection like the 1860s never happens again. all i am saying is, here we are in 2024, donald trump has committed an effort at insurrection and almost succeeded in 2021. he is now saying i will do it again if you elect me president. i may have a dictatorship. i may suspend the constitution. how much more a warning to we need? >> in terms of the supreme court taking what appears to be its approach to this today, again, we're reading the tea leaves in terms of the way the justices behaved in the questions they asked, but if they choose to absent themselves arms process and say hey we hope the 14th amendment takes care of itself, we hope insurrectionism as self- defense. in history other parallels? are there things we should be looking to in terms of the supreme court walking away from confrontations with clear and present danger like this? >> absolutely. the supreme court knew in the dred scott decision in 1857 what they were unleashing by saying that slavery would go on forever. this court is beginning to remind me a little bit about the court that brought us the dred scott decision. and all i am saying is, for someone to say let's just have faith in our institutions, our institutions did not work in the 1860s. they almost didn't work in 2021. if the supreme court does not act, if colorado does not prevail, then we are basically saying, leave it to the voters. and all i can say is, to people watching us tonight, voters, donald trump has said he wants to take down this republic. is that okay with you? it almost happened before, twice. are we going to let it happen a third time this november? >> nbc news presidential historian michael beschloss, thank you. >> i want to add to what michael said. one of the strange things today was that arguments sort of for affirming colorado tend to be historical, textual, and the others are practical. if we pull on this thread this thing will happen. what was totally missing were practical and prudential considerations on the other side. let's forget about the text of the 14th amendment. let's just think about if you let this guy on the ballot. let's say that we have an election in which donald trump's pulling ahead, going into election day, but the polls are wrong and he loses. let's say that we have an election in which joe biden wins 270 electoral votes to donald trump's 268. totally impossible. that means every state is a deciding state. let's say one of those states was decided by 5000 votes. or, is in the case of florida in 2000 -- what about 2000 votes? what do you think is going to happen under those conditions? what do you think will happen to the country if this man is in that position under those conditions? >> a bigger mob with better weapons. e*trade from morgan stanley. with nurtec odt i can treat and prevent my migraine attacks all in one. don't take if allergic to nurtec. allergic reactions can occur even days after using. most common side effects were nausea, indigestion and stomach pain. talk to your doctor about nurtec today. ♪oh what a good time we will have♪ ♪you... can make it happen...♪ ♪♪ try dietary supplements from voltaren for healthy joints. - i got the cabin for three days. it's gonna be sweet! try dietary supplements from voltaren what? i'm 12 hours short. - have a fun weekend. - ♪ unnecessary action hero! unnecessary. ♪ - was that necessary? - no. neither is a blown weekend. with paycom, employees do their own payroll so you can fix problems before they become problems. - hmm! get paycom and make the unnecessary, unnecessary. - see you down the line. as the world keeps moving, help prevent covid-19 from breaking your momentum. you may have already been vaccinated against the flu, but don't forget this season's updated covid-19 shot too. ♪ ♪ ♪ ♪ why choose a sleep number smart bed? 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