Supreme Court Trump ballot disqualification prime time recap
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Or check out a stylish and comfortable Highlander. With seating for up to eight and available panoramic moonroof, you can enjoy wide open views with the whole family. Visit buyatoyota.com for more national sales event deals. Toyota, let's go places. President Biden speaking live at the White House right now. This is...

Press conference called on short notice, the president making brief remarks and taking a series of questions from a very animated press corps. A lot of cacophony in the room. But the president doesn't often take questions at live press events. And so making news there, including right up until the last moment. Chris Hazel, I actually want to go to you on that. The president's remarks on Israel there.

at the end, going some distance further than he has previously in terms of describing what's been happening in Gaza.

He was about to exit the room. He came back to answer a question specifically about Israel. So he was he wanted affirmatively to talk about it. He used the phrase over the top to respond to characterize the Israeli campaign in Gaza. He had used the word indiscriminate to describe the bombing in a private event, in a fundraiser. And this was by far the most

forwardly critical of the Netanyahu government's approach in Gaza. He has been on the record and in public. He talked at length about the reporting that we've seen that there are intense talks for negotiations for an exchange that would essentially be a pause or ceasefire in hostilities in exchange for hostage releases, the hostages to be released.

This is the latest iteration of the deal Benjamin Netanyahu rejected yesterday in a long speech that he gave both to the Israeli public and then in English publicly. But he clearly is pressing on that. He's pressing on humanitarian aid. It was very interesting. It was the most striking pivot the president has made in public.

in his criticism of the Netanyahu and unity cabinet, war cabinets, management of the war effort in Gaza. Also talking about the timing of the Hamas attack in Israel and what was going on diplomatically. And he said, I have no proof for what I'm about to say, but it's not, it's possible that this is not coincidental in terms of why they timed their assault the way that they did. Lawrence, let me go to you in terms of the basis for this

press conference and the basis for the president's quite strident remarks at the top rebutting not the central conclusion of special counsel Robert Herr's investigation into the president's handling of classified information. Central finding, of course, is that President Biden should not be charged for anything that he did, but rebutting forcefully the way that Robert Herr explained his reasoning in that

Well, yeah, especially this line that the president quoted where the report refers to him as a well-meaning elderly man with a poor memory. What is the word elderly doing there? And poor memory, what is the test of that? Might that be Donald Trump saying, I don't recall 400 times under oath in the same deposition? Is that a good test of it? The idea that witnesses over a 40-year discussion, 40-year discussion,

don't remember everything, or that someone who graduates from college in June can't tell you where the diploma is in September, that seems to be a condition that this special prosecutor doesn't understand in the human mind. So I'm going to be fascinated when I can get into...

all these hundreds of pages to see what is it that makes you stress the lack of memory in this particular case where you have this completely cooperative witness and there has never been a witness under oath anywhere being questioned over a period of years of that witness's life where they don't say, I do not recall. It is impossible to ask witnesses questions

where the answer will not be, I don't recall. And if you don't get that response, it just means you didn't ask enough questions. Can I speak just on that? Because I had the same thought. It's fairly standard lawyering to advise people, even when in doubt or you think you might remember. If you can credibly say, I don't recall about something, that's a standard legal advice. And it has nothing to do with the age of the person.

of the person giving the deposition. And when you're under oath, you can't lie. If you do recall, you have to say that you can. But if you can't. Exactly. Well, that's the whole point, right, Rachel? That basically because of those standards, the extra burden that you don't want to get anything wrong means you err on the side of saying, I don't recall, I don't remember, unless you really specifically do. And if there's a thing that might seem minor and you're not sure and you're being asked about a very specific aspect of it, like

Was it in the morning, that meeting or was it in the afternoon? And you had that meeting that day and you even refreshed your notes. You know, I don't recall what time of day. Oh, my gosh, you're you're 25 and you can't tell the morning and night apart. I will tell you this because we're going to get to all of it. But the president came out and spoke tonight because on the one hand, he has very good news. This exhaustive.

investigation led by a Trump era holdover prosecutor cleared him of the wrongdoing on classified documents. No charges. No charges. End of story. Case closed. Good news. But he has a political piece of bad news woven in there, which is what seems like cheap shot derogatory attacks on him, which I wouldn't call normal course of investigatory material. And so maybe Mr. Herr would be better suited going for a job as White House physician. But he'd have to go and get a medical degree, too, because he's

Legally, there's no interest or relevance to his views of the president's overall memory. If it's very specifically to the mental criminal intent or mens rea, and you say you could have this criminal intent and you didn't remember this, you didn't mean to do it, sure. But talking about how, for example, the president remembers or discusses his son's death and Mr. Herter and his team's apparent view that that tells you something, the first

As soon as I saw that today, I thought, wow, that's a real partisan kind of tell in a report that has a good news legal headline. And the president just showing absolute rage at that point tonight. There was one adverb in particular that has sort of that struck me, which is painfully, which the author of this report, presumably Mr. Herr himself, uses the president was

his memory was painfully bad? It was some of the tapes they heard were painfully slow. Painfully slow, that's right. Painfully slow. And I just thought, well, who's in pain? That adverb is such a... It's doing so much work editorially. You're in pain because it takes too long? Like...

It's just very clear, just contained in that adverb is this kind of like siren call that's leaping off the page about him understanding exactly how this is going to resonate. A little political footnote to special prosecutors. What should be noted here is this is a Democratic president being investigated by a Republican special prosecutor, which prior to Donald Trump is the way it's supposed to be.

When a special prosecutor was investigating Donald Trump, it was a Republican. He's the first one who got someone from his own party as his special prosecutor. And Trump thinks that's the way it should be. And if you're a Republican like Robert Mueller and you're not a Trump Republican, he thinks that's unjust. Trump thinks the only people who should ever be allowed to investigate him, if he's ever going to be investigated, have to be real Trump Republicans.

This is the old fashioned way you get a Republican to investigate the Democrat. And this is a product of a Republican who then turns over cards to show that he's kind of a wise guy, partisan Republican. Yeah. And I mean, I think there are a couple of things that kind of struck me. Number one.

You talk about the timing. It kind of brings together what you were saying and what you were saying is that he also noted at the time he was being questioned, it was around. It was shortly thereafter, after the October 7 attack. So he was a little focused on some other things. Right. He had a lot on his mind. So he was saying that he's being questioned and he in that is one of the reasons that he might not have remembered every detail.

But the point that Lawrence is making, I think, is true. A lot of people have asked why there was a special counsel to investigate Donald Trump. The Justice Department could have simply investigated Donald Trump, who is no longer president of the United States. But it took three years to get those cases online and on board because there was this need to have a special counsel for the former president. This actually made sense to have a special counsel. He's the sitting president of the United States. But then to the sort of snark of it,

It's only on page one that the special counsel describes Mr. Biden as sort of self-involved. He's long seen himself as a historic figure. And they start out by saying he believed his record during decades in the Senate made him worthy of the presidency. And he collected papers and artifacts related to significant issues that they put. They put that in there. Yeah.

And that's actually page one and two. So they start out with a snark. Right. And then the executive summary, that's like, if you're only going to read one thing, let us tell you that this guy thinks he's really important. He thinks he's he is the president of the United States. He saw it coming and there's something wrong with that. And they start by saying he's very self-involved and thinks he's the most important guy. And then by page six, the most important guy. Right. They say, but we don't think that he would be convicted because a jury might empathize with him because he's a sympathetic, well-meaning elderly man with a poor memory.

So it really is sort of it's nasty and snarky for no reason. So Andrew Weissman is with us and we asked him to be with us, not just for talking about what happened in the Supreme Court today, but on on this point. Andrew, Ari just described what Joey is also describing. He used the phrases cheap shot and derogatory attacks.

in terms of the way that special counsel went out of his way to make remarks characterizing the president and how he appeared and these other sort of personal characterizations about the president that don't seem to have anything to do with his legal jeopardy or lack thereof. Are we reading that right, that this is sort of extra stuff, that he's gilding the lily here rather than just giving us the facts as to his investigation?

Yes, you are. I look at this as somebody who's been in the Justice Department for 20 years. I've participated in writing reports just like this, except without the adjectives and adverbs. What you do as a prosecutor is you look at intent and knowledge. You look for facts like obstruction of justice or cooperation.

Here, what you have is a case that's really similar to the case of Mike Pence. You have an inadequate proof of any bad intent of knowledge. You have no evidence of obstruction and you have evidence of cooperation. That ends it. That is why this case is like Mike Pence's case. And that should be the end of the discussion from the prosecutor.

What we have here is we have that and then you have, unfortunately, what I was concerned about, which is a repetition of James Comey, the use of adjectives and adverbs that are not the province of the Department of Justice.

That is not their role. It is completely irrelevant to the discussion. It is so clearly sort of a partisan swipe. I had the exact same reaction as Joy, which is literally on page one.

It starts where you are commenting on how he sees himself as a historic figure. You have comments about his memory. None of that is relevant because the whole issue here is, do you have proof that shows knowledge and intent to retain or disseminate classified information? And the report says, no, we don't. In fact, it says there are innocent explanations we cannot refute. Mm-hmm.

That's the end. So all of this other stuff is a testament to somebody who has appointed a special counsel, but who is within the Department of Justice, who is not following the rules of the Department of Justice, which is euphemistically known as you put up or you shut up, meaning you either decide that you're going to charge or

No one cares about your personal views of the evidence and the people involved. Right, exactly. And that's the tragedy and the sort of shonda of what James Comey did, which did set a sort of standard. I do want to say just at a personal level, I should say one of the people whose name is in this report, Mark Zwanitzer, is somebody who I have known and worked with on tons of different projects for years. So in the spirit of full disclosure, I have to say that he's one of my very good friends. So that makes it awkward in terms of me.

covering this, but I just, that's in the interest of transparency. Ari, you said that this feels like a legal report that is couched in a whole bunch of stuff that has absolutely nothing to do with this legal report. Does any of that change the fact that this is sort of a cul-de-sac? I mean, legally, this is it. Like, there's no next step. Nothing else happens here. None.

This is done. I mean, it's very good legal news for the president to have this done and done this early. And they expedited that by fully cooperating. And, you know, Andrew Weissman knows better than most that the prior president did not cooperate with the open probe, did not say, you know what, if we sat down under oath and I explained all this, it would look better or not as bad as you think, but rather fought them tooth and nail. Now, I want to be clear, legally, different presidents have taken different tact.

But it is, according to the DOJ and the traditions of trying to do fact finding, a positive that the president did sit down and do this. And her again, based now that we have this closed and final report, her looks like the Trump holdover prosecutor here looks like.

Having gotten the thing that helps you get the most facts possible, a timely interview with a very busy and very legally protected figure, the president of the United States, and having gotten the answers that helped him reach the conclusion that there was no crime, he then started to cherry pick the interview for his spin on basically what he perceives to be, Mr. Heard's opinion, derogatory information. Yeah.

I think Lawrence hit it on the head and it bears repeating that it is standard ops to say, I don't recall that the former president in other cases recently has said it. And many, if you want to get the age thing, because this is let's call it what it is. This is ageism snuck into a report clearing the person of any wrongdoing. If you want to get the ageism, young people are told all the time by their lawyers. Hey, you're way better off leaning into. I don't recall.

than possibly misstating something to a federal officer or under oath in this case. So it's a lot of derogatory stuff. And that is also if this were a movie, you'd say, oh, gosh, the other lawyers who told the president, well, you could drag this out and not do this interview. They might be saying, well, this is why you shouldn't do the interview. And I do think it is. I want to be clear, a credit to the president that he chose to do fast cooperation. I think that's good for the system. Politically, though, it's now being used against him.

I'm sure there were advisers saying don't do it right now saying that. Along with the standardness of I don't recall is the standardness of prosecutors and or litigators being annoyed by it. And part of the peak that you read in it is that peak, right? I mean, he's frustrated and angry that he didn't get more. But the other thing I just you mentioned this. We should just be clear here, right? Like,

Age is the central narrative question here that this all revolves around in terms of its political repercussions, the way the news happened today, the questions being asked him by multiple figures there. And in the end, what makes it such a useful political tool for people that want Donald Trump to be elected or want him not to be reelected is that the fact of his age is not something you can rebut. You can't be, you can't tack to, if someone says you're too far left, you can tack to the center.

The man is 80 years old. He rides a bike. He is the age he is. And so it's a very useful political attack for that reason. Let's bring in a BC News White House correspondent, Mike Memoli. Mike, you've, of course, been covering Joe Biden, covering President Biden for years. Can you

Give us any insight into the White House decision to put President Biden tonight at the podium, to have him take questions, to have him show some emotion, some anger, to show a little lip in terms of the way that he spoke at the Fox News correspondent there saying, yeah, I think, you know, I think I'm doing fine. My only mistake here is that I keep calling on you. Can you give us any insight into the White House and the president's thinking about this?

Yeah, absolutely, Rachel, because in my conversations with Biden advisers up until the beginning of the week, they were prepared for a report to come out that they knew would clear the president of any wrongdoing. They were confident of that in part because of their fulsome cooperation with the president. They were worried that absent a legal case, that we would see a repeat of the Comey matter with Hillary Clinton in 2016 and casting a political judgment. As Bob Bauer put it in a statement today, he committed investigative excess against

because of concern with the way House Republicans especially would ultimately treat this investigation and the oversight that they were going to be providing to it. Now, what's interesting is that three days ago, the White House advisors, lawyers, did send a letter to Mr. Herr, and it was clear that their concern changed from this investigative excess to the judgment about age.

In a long memo responding to during what's known as a privilege review, they really questioned why Herr was making these judgments about the president's memory in a way that he was not doing for any of the other witnesses that testified and also had memory lapses. So they were clear, clearly concerned about this. As to why we see the president tonight, it's because this is the way you fight back.

It was notable when they announced this news conference tonight, the White House, one advisor said, let's F go. We know what the F stands for. And that is the unscripted Biden that they have always felt has worked well politically. And so you heard that humor saying his memory obviously lapsed because he forgot

not to call on Peter Doocy of Fox News first. They have a long history as well. But I was really struck by the anger he flashed in talking about his son, Beau. The special counsel makes reference to the fact that he didn't appear to remember when that was. The president saying tonight, how dare he, was the thought going through his mind when he was asked that question. Of course he remembers that. And that's, I think, a moment that will stick. And the Biden team has always felt is what resonates with voters much more than anything else here.

He did, of course, respond to the substance of the legal case. Of course, he wishes that his staff had handled these documents better. There's fascinating detail about the ways in which President Biden, as vice president, was keeping meticulous notes throughout his time of office. He referenced that memo he wrote directly to President Obama about Afghanistan that I actually was fascinated about. I had not seen this before, not heard about this before. President Biden

musing that while he was vice president, he even considered potentially resigning as vice president. So strong was his opposition to the decision President Obama ultimately made in December of 2009 about the surge. But the fire that we saw from the president tonight, it was important for the White House to get that out there as quickly as possible. This is a fight for his political livelihood, and they wanted to get set the tone right tonight. And Mike, I just have to ask you, just as a matter of White House Republicans,

it's something more than style and something less than art. One of the things that just watching it through the monitor, watching it live as it happened, is that the sort of the audio mix was the president talking and then as everybody else in the room talked all at once. Why now staff have a choice as to how to handle the logistics of an event like that? And with the, you know, let's...

effing go attitude that you're describing in the White House there. Is part of that actually not interfering to try to choreograph those questions and make it more organized, make it more orderly and just letting it be a bit of a scrum? Is that is that part of it in terms of capturing the energy and letting the president just get out there and throw some punches? Yeah,

You can see the smile on my face, and it's because we know many advisers in the White House who, let's just say, have very low regard for colleagues in the press corps. And I think they look for, sometimes, opportunities, frankly, to put the reasons for that disregard on display. It would be nice to see my colleagues in the press corps in the room tonight play nice with one another, maybe take turns. But this is a competitive situation, and we have every right to try to get our questions out. Sure.

But I think the White House also knows that. I did notice the president glancing down as he turned to take questions, which made me think that perhaps he did have a list of maybe people who they knew were going to be in the room that he would call on them individually. But certainly the moment called for aggressive and quick efforts to get a question into the president. And sometimes you do see the president just stand back and allow the noise to present itself and to stand back and be seen as literally the president

the person in the room with the most power in that situation, the president of the United States, in contrast to my friends in the press corps. That's where the phrase above the fray comes from. Exactly. Mike Memoli, so grateful to have you with us tonight on this, again, short notice, high consequence press conference from President Biden at the White House. Thank you.

All right. So we are here tonight. We are we are we are gathered here today, my friends, to do a recap of what happened. Correct. Historic event at the United States Supreme Court. We took a little bit of a detour to cover that breaking news from the White House. We are going to take a quick break right now. And when we come back, we are going to bring you our official primetime recap of today's historic proceedings at the United States Supreme Court. Here we go. We'll be right back.

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Say for the sake of argument that you engaged in insurrection. We fight like hell. Could you then run for president again? The state of Colorado says no, at least not on our ballot. By engaging in insurrection against the Constitution, President Trump disqualified himself from public office. Now the U.S. Supreme Court will decide.

We'll hear argument this morning in case 23719, Trump versus Anderson. Tonight, Donald Trump's battle to remain on the ballot for the 2024 presidential election. For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence. So the point is that a chaotic effort to overthrow the government is not an insurrection? The Colorado case, its national implications.

The question that you have to confront is why a single state should decide who gets to be president of the United States. And the damned if you do, damned if you don't predictions of chaos either way. Members of this court have disagreed about that.

I'm asking you. Tonight, Jason Murray is here live, the lawyer who argued today's case for Colorado voters. Joy Reid, Chris Hayes, Lawrence O'Donnell, Ari Melber, Alex Wagner, Stephanie Ruhle, all here for MSNBC's special coverage of the Supreme Court arguments on the disqualification of Donald Trump.

Welcome to our primetime recap of the historic proceedings today at the United States Supreme Court. I'm Rachel Maddow here at MSNBC Home Base, along with my beloved colleagues Lawrence O'Donnell and Joy Reid and Ari Melber 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 former President Trump should be disqualified from office for having engaged in an insurrection against the U.S. government, the justices did allow for the sound of the proceedings, the audio, to be live streamed. Here on MSNBC, we carried the audio of those oral arguments live and in full. That was starting just after 10 a.m. Eastern time.

But we also know that most people have lives and jobs and school and other responsibilities that might make it hard to take like two hours out of a Thursday to stare at an audio speaker for hours trying to figure out if that was Gorsuch or Alito yelling at that poor lawyer.

So because of that, we are here tonight to recap what happened in primetime. In the 1970s, Watergate hearings were also broadcast live during the workday, recognizing how consequential, how important those hearings were. News networks during that time started recapping each day's Watergate hearings at night on TV and primetime. So no one 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 have heard from you, our beloved viewers, that that was valuable. That was a useful thing. And 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 disqualified.

Might it be OK to allow him to run again, to allow him to be on the ballot, to allow him to compete and potentially even win the election, whereupon only then would he 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 we can 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 there's no procedure for determining President Trump's eligibility until after the election. And then what happens when members of Congress on January 6th, when they count the electoral votes, say we're not going to count electoral votes cast for President Trump because he's disqualified. That is kind of a

disenfranchisement and constitutional crisis in the making, and is all the more reason to address those issues now in a judicial process on a full evidentiary record so that everybody can have certainty on those issues before they go to the polls. If we think that the states can't enforce this provision 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 did not have the authority to exclude President Trump from the presidential ballot on procedural grounds, I think 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 a presidential election if President Trump wins about whether or not he's 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 aren't allowed to keep him off the ballot, then how does the Constitution's ban on insurrectionists holding office get enforced? Just think about it logically, right? If states can't enforce it by keeping people off the ballot before the election, then Congress would have to enforce the ban absolutely.

after the election, which would mean Congress would have to decide after the election, but before inauguration on, say, January 6th, 2025, they would have to decide then and there whether they're going to 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 he engaged in an insurrection the last time around.

Congress will just work it out in Congress on the spot on January 6th itself. What could possibly go wrong? You just heard Jason Murray there who did most of the arguing today for the plaintiffs who successfully sued in Colorado to keep Trump off the ballot. We're going to be speaking live with Jason Murray in just a few moments here tonight.

But that same point about how strange it would be to do what Trump's lawyers propose, 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 in a slightly different way by the second lawyer, by the Colorado Solicitor General, who today also defended Colorado taking Trump off the ballot.

In other words,

Do not make us do this. In other words, dear justices, rule that he's eligible for office or rule that he's ineligible 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's elected. I mean, if you thought last January 6th was bad, just wait to see what you'd unleash for the next one if we followed this course. Here's Chief Justice John Roberts today.

Counsel, what if somebody came in to a state secretary of state's office and said, I took the oath specified in Section 3, I participated in an insurrection, and I want to be on the ballot?

Does the Secretary of State have the authority in that situation to say, no, you're disqualified? No, the Secretary of State could not do that consistent with term limits. Because even if the candidate is an admitted insurrectionist, Section 3 still allows the candidate to run for office and even win election to office.

and then see whether Congress lifts that disability after the election. Well, even though it's pretty unlikely, or at least would be difficult for an individual who says, you know, I am an insurrectionist and I had taken the oath, that would require two-thirds of votes in Congress, right? Correct. Well, this is a pretty unlikely scenario. That's a pretty unlikely scenario.

So that's point one 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 can only be enforced after the election. That 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 that might mean for the country, those implications that are both bizarre and daunting, as described by lawyers in the case today, I think that's point number one. Now, let's talk about a second fundamental point that didn't necessarily go as expected today at the court. It's the very basic question of whether or not former President Trump did engage in an insurrection.

Everybody knew this was going to be something that was going to have to come up today, but there was less discussion on this point today than many observers expected. What there was was quite punchy, though. Let's start with Justice Katonji Brown Jackson and Jonathan Mitchell, who's the lawyer who today argued for former President Trump.

The Colorado Supreme Court concluded that the violent attempts of the petitioner supporters in this case to halt the count on January 6th qualified as an insurrection, as defined by Section 3. And I read your opening brief to accept...

that those events counted as an insurrection. But then your reply seemed to suggest that they were not. So what is your position as to that? We never accepted or conceded in our opening brief that this was an insurrection. What we said in our opening brief was President Trump

did not engage in any act that can plausibly be characterized as insurrection. All right, so why would this not be an insurrection? What is your argument that it's not? Your reply brief says that it wasn't because, I think you say, it did not involve an organized attempt to overthrow the government. That's one of many reasons. But for an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence.

And this... So the point is that a chaotic effort to overthrow the government is not an insurrection? No, we didn't concede that it's an effort to overthrow the government either, Justice Jackson, right? None of these criteria were met. This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things, but did not qualify as insurrection as that term is used in Section 3. Thank you. Because... Thanks. Thanks. It was... If it was chaotic...

It wasn't an insurrection. Like the way you can tell something's an insurrection is because they march in lines. That's part of the, you know, what's a little riot got 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 the Colorado voters.

In trying to figure out what Section 3 means, and to the extent it's elusive language or vague language, what about the idea that we should think about democracy, 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'd like to make three points on that, Justice Kavanaugh. The first is that 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 3 is designed to protect our democracy in that very way. The framers of Section 3 knew from painful experience that

that those who had violently broken their oaths to the Constitution couldn't be trusted to hold power again because they could dismantle our constitutional democracy from within. And so they created a democratic safety valve. President Trump can go ask Congress to give him amnesty by a two-thirds vote. But unless he does that, our Constitution protects us

from insurrectionists. And third, this case illustrates the danger of refusing to apply Section 3 as written, because the reason we're here is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn't require that he be given another chance. Thank you. The Constitution doesn't require that he be given another chance. The Constitution protects us from insurrectionists.

So we're going to talk tonight about the justices discussing what it would mean to prosecute Trump federally for the crime of insurrection rather than having it adjudicated in, like, for example, a Colorado trial court. We're going to talk about the justices debating Trump's lawyers' claims that he's the only former U.S. president who can't be banned from office for committing insurrection. All the others would be banned from office for committing insurrection, but Trump personally can't. We're

We're going to talk about the justices asking why one state should be able to do something this consequential. That's one where the questions went out like cannonballs, but the answers were actually pretty good. So we have a lot to talk about tonight, but let's 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 can't enforce it by preventing ineligible candidates from running for office, then

then how exactly does that ban get enforced? Ari Melber, you were in the room today when it happened. You were there for the arguments. First of all, let me ask you to critique my summary. Do you think it's fair to pull out those points as some of the pillars on which this argument was held up? I think it's very fair, and it's the first time we've seen the aspects of 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 tonight, a lot today about what counts as an insurrection. That snark from Justice Jackson was priceless. But we didn't hear a lot of substantive other discussion about what it takes to call something an insurrection. Does that tell us something important about where the justices see their sort of the edge of their their position?

their job description here in terms of what they ought to be considering? Yes, it tells us a lot. And it also speaks to how bipartisan this was. If you go by the different justice 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. And that's not because all eight or nine of those people are soft on insurrection. It's because of the things you raise and that we heard some in the questioning about. And so I'll give you a detailed legal answer to that if you want, but I'll start with something very simple, which is

It was clear by the end of the argument that most of these people just didn't want to go near ballot bans. The reasoning came second. It was almost more honest than usual how much everyone was like, we don't want to do this. We're not going to co-sign this. And then let's find out how do we get out. And so I would liken it to if anyone's ever had a destination wedding invite that you're not excited about. Like these people you used to know better for a while back. And it's in Antarctica. And you're first like, look, let me tell you straight up.

That's far away. I heard it's cold weather. Also, I think it's really expensive. Tickets, right? You're like brainstorming why you can't go. I have a sore back. Yes. I have a denture. How close are we? Now, any of those things might also be true.

And someone then might come to you and say, oh, there's a super sale because not a lot of people want to go to Antarctica. Super cheap tickets. But it wasn't just the ticket. There are other reasons. And that's what it felt like to me. So if you're looking for this to be the case that stops Trump, I would tell you maybe you find it to be bad news. Not you, I mean the viewer or anyone listening, thinking as a citizen. But if you're thinking, does the court still work on a nonpartisan basis? In some ways, we saw that answered with how much it was like that. And so to then jump in briefly to your legal question. Yeah.

The big thing was, even if it is an insurrection or even if this is something that you should be kicked off the ballot for, who decides that?

Is it just a random secretary of state in one state? And we have a lot of different types of ways we pick secretaries of state and they vary in partisanship. Is it judges in this state? And as Chief Roberts put it at one point, being as kind of blunt as he could, he wasn't talking law or text. He just said, wait, but if we did allow this, then other states would punch back. If we give them the power and say any state can do this, then they're all going to be knocking each other off the ballot. Now, let me tell you, Rachel. Good answer.

The answer to that, there's a good, Justice Roberts raised that issue. Another justice raised that issue as well. Good answers to that issue, though, from the lawyers who are representing the Colorado voters. I think Colorado had a very substantive answer, which is there was an insurrection and it was televised. And there's only one person who called those people to town. And that this idea of insurrections popping up everywhere is not factually true. And the court's concern about that, which I think includes

Democratic. I think Justice Jackson is a Biden appointee who's well versed on how they tried to stop then President Biden coming to office. I don't think she's minimizing insurrection. I think her point was, yes, but we're still going to run into who resolves that. In other words, you could be factually right, but still have an arms race across the states. And that is a concern for the court. And so this became if I was going to bottom line it legally, this became much more of a debate about the remedy.

Should this be dealt with in some other part of government? Right. Then the problem, the problem is huge. And let me stick with you on that for a second, though, because the and we're going to talk in more detail about the sort of parade of horrors. What if a state can take a person off the ballot? What would that mean? What would the other states do? There would be retaliation. There would be reason there would be unreasonable actions taken by other states to take other people off the ballot. We'll 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 that courtroom about what happens if the states don't do it. Because if there is a ban on insurrection...

in the Constitution and it can't be enforced by the states, then it has to be enforced by Congress, which is inviting another January 6th disaster. That's the rejoinder, right? It's one way or the other. 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's going to be a disaster, too. We've seen that before. Yeah. Now, to sound like a lawyer, I think that is a non-frivolous point. It is a legitimate point.

No, it's a legitimate point. And so what we saw in the oral argument was you're offering chaos. I see you with chaos. Yes. That these now... If you do, Dan, if you don't. And there's a saying in the law about constitutional hardball.

Well, this is beyond hardball. This is sort of constitutional flagrant fouls or constitutional violence or whatever you want to call it. Trump and his fans and his now convicted sedition fans. Right. He wasn't convicted of sedition or charged with it. He waits. He always offers something else. But his fans, the people he summoned, many of them have now been convicted of sedition. They have now sparked this back and forth. And we're going to hear, as you mentioned, from the lawyer later tonight who was arguing that having gone down this road, there need to be strong remedies pushing back.

Having said that, though, I think that the justices, including the Democratic appointees, basically said yes, but not at the state level. Figure out some other bar. Right. Figure out some other bar. And what you are proposing as the other bar here does sound a little scary, but let's not punt. Let's punt on that for now. All right. Our special coverage of today's historic Supreme Court hearing is just getting started. Still to join us, as I mentioned, the attorney for the California voters in this case who argued today in the court, Jason Murray, is going to be with us live. Stay with us.

I welcome the court's questions.

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MSNBC's Lawrence O'Donnell. When I was working in the Senate, I didn't realize that it's the perfect training for the job that I have now. Covering government, covering politics, the complexity of it all. Mastering the detail is crucial to being able to present anything.

that happens in Senate buildings or any of the other news centers that we have to focus on every day. The Last Word with Lawrence O'Donnell, weeknights at 10 p.m. Eastern on MSNBC. Justice Alito? Is there any history of states using Section 3 as a way to bar federal officeholders? Not that I'm aware, Justice Alito. Not that I'm aware, Justice Alito. Nope, this hasn't happened before.

I wonder why that is. Welcome back to our primetime recap of today's Supreme Court proceedings on whether former President Donald Trump is eligible or ineligible to ever again stand for office in the United States.

after what happened the last time. What you just heard there was a nice short, sharp jab from conservative Justice Samuel Alito, answered by President Trump's lawyer, Jonathan Mitchell, today. The real rejoinder to what President, excuse me, what Justice Alito was asking there, though, it came a few minutes later from the lawyer on the other side, the lawyer for Colorado voters, Jason Murray, in a back and forth with Chief Justice John Roberts, in which the chief justice essentially says to the lawyer,

hey, this is crazy that we'd have to decide something like this, isn't it? The lawyer then essentially responds, yes, it's crazy. But the reason it's crazy is that they're running a guy as their candidate for president 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 yeah, it's crazy. And yeah, you do kind of have to clean it up now. Listen. So what do you do with the

what would seem to me to be plain consequences of your position. If Colorado's position 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 predictions have never been

correct. I would expect that a goodly number of states will say whoever the Democratic candidate is, you're off the ballot and others for the Republican candidate, you're off the ballot and it'll come down to just a handful of states that are going to decide the presidential election. That's a pretty daunting consequence.

Well, certainly, Your Honor, the fact that there are potential frivolous applications of a constitutional provision isn't a reason— Well, no, hold on. I mean, you might think they're frivolous, but the people who are bringing them may not think they're frivolous.

Insurrection is a broad term, and if there's some debate about it, I suppose that will go into the decision, and then eventually what we would be deciding, whether it was an insurrection when one president did something as opposed to when somebody else did something else. And what do we do? Do we wait until near the time of counting the ballots and sort of go through which states are valid and which states aren't?

There's a reason Section 3 has been dormant for 150 years, and it's because we haven't seen anything like January 6th since Reconstruction. Insurrection against the Constitution is something extraordinary. It seems to me you're avoiding the question, which is other states may have different views about what constitutes insurrection. And now you're saying, well, it's all right because somebody, presumably us, are going to decide, well, they said they thought that was an insurrection, but they were wrong.

And maybe they thought it was right. And we'd have to develop rules for what constitutes an insurrection. Yes, Your Honor, just like this court interprets other constitutional provisions, this court can make clear that an insurrection against the Constitution is something extraordinary. And in particular, it really requires a concerted group effort to resist through violence, not some ordinary application of state or federal law.

Counselor, you're saying that someone, presumably us, would have to develop rules for what constitutes an insurrection? Unfortunately, yes, sir. Unfortunately, we have come to that moment in U.S. history. Yeah, we're going to need to have some rules around this. Joy Reid, this is, I mean, I don't think anybody thinks that, that...

that the Colorado petitioners are going to get their way from the Supreme Court today. But some of these questions, the way that they were raised and the way the lawyers had to sort of say to these Supreme Court justices, yeah, we're sorry we're here. Yeah. But we're here. It's really striking. It was. It's not it's not like it's every day that people try to overthrow the government with violence. You know what I mean? And, you know, to that question, you actually have some facts around which to organize an attempt to throw random Democrat arguments.

off of the ballot in Republican state. It's not like you could just do it. And let's just review the record here. Donald Trump wasn't just declared an insurrectionist because the Democrats in Colorado were mad. A bunch of Republican petitioners took this case to court. There was an actual trial at which they determined and adjudicated based on some 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 the what they're saying was just a riot. It wasn't a riot for no reason, because the people just weren't having a good day. It was in 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 a government that was over.

By definition, that is attempting to pull an insurrection and replace it. So, I mean, I thought some of the arguments were so circular and the idea that they can't adjudicate, they can't make a decision here out of the fear that at some point in the future, Democratic states would then try, I mean, a Republican states would then try to say that a different person was an insurrectionist based on none of those facts. If all those things happened again, yeah, that would happen because there'll be an insurrection. But again,

Like this is and Alex, I'll put this to you. Thank you for joining us, Alex. Great to be here. This was this was something that was raised by both liberal and conservative justices today. The idea, well, if Colorado has done this to Donald Trump, then other states might retaliate by doing this in 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 idea is, though, that our systems exist. The structures of government and testing of facts exists in the courts. And therefore, if somebody is going to unfairly retaliate or retaliate not based on the kind of fact pattern that Joy is describing, well, we'd catch that and we wouldn't let it go through. Right? Well...

Here's what I'll say. I think that it's far fetched to suggest that 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 there is, I mean, what did Alito call it? Unmanageable consequences. Imagine, forget Joe Biden. Imagine you just have a bunch of red states where Donald Trump stays on the ballot and a bunch of blue states where Donald Trump is off the ballot.

that in and of itself is problematic, right? You don't even have to like game out the scenario whereby, you know, Biden is the victim of some political partisan hackery related to this decision. You just have to work out a scenario where Donald Trump's name doesn't appear on all the ballots in the United States. It's a huge problem. That is a problem that happens now for third party candidates, right? That there are candidates who are running as third party or independent candidates who get on the ballot in some states and don't get on the ballot in others. And it's a

quantitative matter, not a qualitative matter. Major party candidates don't tend to have that problem. But each state's ballot looks different. I am not arguing that that should be, you know, that should be the reason they decide what they decide. But it seemed really clear as one person among many who sat looking or watching a blank screen, staring at a speaker, all of these justices.

seem very much less concerned with the textual interpretation, the originalism of the Constitution, and much more concerned, roundly, about the political reality that is ahead of them. And to the degree that they may say it's not up to states to decide this, Congress or

or the federal judicial system needs to decide this, in which case you will inevitably have a lawsuit in the federal courts on the same case in short order. But isn't that a consequence of the actual fact that our elections are decided by the states? Like, that's absolutely...

actually the system, right? The states get to decide the election. They get to decide who qualifies in their state. That's the system, right? And trying to say that because states decide and that what you'd have to do is essentially disenfranchise, right, all the states where Trump won the electoral college votes in that state on January 6, 2025 by saying, oh, guess what? He ain't getting a waiver. Who's getting two thirds of a vote

in the House of Representatives to get the waiver. So you're saying, let the people vote for Trump, then go to January 6th, 2025, and then say- But they're not going to use that. Right. Clearly, they're not going to use that. It's absurd. But I guess I would say that there's a weird thing. Just to take a step back, part of what was sort of weird about today is there's this sort of Calvin ball that conservatives play with their methodology on this court, right? Which is they love textualism, except when they don't need it. Exactly. Exactly.

The textualism is like, look, I mean, we have our personal policy preferences. We have outcomes we want, but we can't be thinking of outcomes. We've got to look at the text. The text tells us that everyone can have a gun in every public space in America in the year 2023 per Bruin. And that's just what we've got to do. And like, yes, if you've got a kindergartner with someone walking around with an Uzi, like, sorry, that's Constitution demands.

yes, there's some pragmatic and prudential concerns that we shouldn't do that. But that's what we can't look at. Sorry. So they do. So they do that when they when they like the outcome. And then the moment they don't like the outcome, they just chuck it over. And we also have them chuck chuck over their textualism today. And I guess. But the weird thing I want to say to sort of hop on the other side of that hypocrisy is like, personally, I'm not a textualist. And I think all these pragmatic considerations are a OK to think about. And actually, that is how we should be thinking about the Constitution. And I'm

legal realist. And I think Posner was right about this. Richard Posner, the sort of judge who talked about this pragmatism. And so all of these pragmatic questions strike me as perfectly legitimate. The other thing that they totally jettison, to your point, Joy, is like they're all about states deciding this stuff. That's correct. Except in two places. Bush v. Gore.

Correct. Where suddenly the state couldn't decide because the federal government had to reach in. Good for one right only. That's right. Literally, they say in the opinion, this only counts for here. And now here, it's like, well, what are you talking about? States? States' rights. States doing this? We're going to let states do it? Right. And by the way, by the way,

rights. Who do you think we are? If we're doing that, now do abortion. Because they literally said the opposite. They said in the case of abortion, you cannot apply a federal standard and force states to live with it. We have to let the states decide. So you're saying states get to decide whether women's wombs are owned by them, but states can't decide their own election rules when it literally says in the Constitution that the elections are decided in the state. True, but there is, let me just say this. I love, my favorite moments in oral arguments is when a justice is like, but come on.

No, seriously. Because honestly, that's what a lot of this comes down to. And there's a certain point where Amy Coney Barrett says, you would be, the voters of Colorado would be deciding the election for the whole country, right? You take them off the ballot. And that's not true because it's a blue state anyway. But the point still holds. And Murray starts to say, well, Your Honor, no, we would just be deciding for the Colorado voters. And she says, but come

Like, because it is the case that we all understand that the implications here of the state action are absolute. That's what happened with Florida, Florida, Florida, Florida. Three of them worked on the Bush v. Gore case for Bush. And so for Roberts to be the one who posed the question, well, why should we let one state decide? I don't know. Absolutely.

Ask yourself in the year 2000 when you and Coney Barrett and Kavanaugh were helping Bush decide from one state. For the consequence, though, to be the prohibition that is clearly in the Constitution that says if you engage in an insurrection, you can't hold office under the United States or in any state. If the consequence of this argument, the practical consequence is, well, we can't have the states enforce that. Right.

So, we're going to have Congress enforce it, which is just going to be a rugby scrum. No, they're not going to say that. Well, that's what, I mean, if you can't do it until the guy has been elected, when does Congress step in? What they are saying, what they're going to write, I would bet a lot of money, is that Congress has to pass an enabling statute that spells out specifically the procedures by which, a la which got referenced today, the series of acts passed under Reconstruction, some of them including called the Enforcement Acts.

in which Congress has to specify a procedure because this is too homogenous

hard to interpret for courts and too crazy to let to the states, Congress has to actually ex ante pass some statute that says how to do this and then we can do it. But then Congress won't do it. Of course not. And they're saying, but that passes a law that's only for the president. Because I bring you to Coy Giffen, the Trump cowboy, who was actually disqualified in the state of New Mexico from holding office. It was some, you know, local office, county commissioner. And there was no enabling legislation needed for them to do that. So what they're saying is it's a state law, but the

point, what they're saying is they want you're going to have to pass it just for the president, because Katonji Brown Jackson, Justice Katonji Brown Jackson did get into this question of why didn't the drafters of the 14th Amendment include the president? I guess they didn't have the lurid imagination to, you know, to understand that a presidential candidate, somebody who could be president, would commit insurrection. And so why didn't they specify the president? Just a legal point. We are talking right now about the what, which is very important.

Most of the argument turned on the who. Right. And one of the cases they talked about the most was this term limits case, which isn't a perfect case, by the way. Can you just say the name of the case is term limits? It's not a case about term limits. Right. And very frustrating. The Supreme Court has previously held

that if you add something, even something that sounds really reasonable, like we don't want people in Congress forever, right? And we want to have a limit on that amount of time. They said that actually is adding an eligibility requirement and you cannot do that. And so, yes, the what is super important. Indeed, I would argue that the split on the court is about the what. And we might see that, by the way, on the immunity case that we're watching. But the who is what

If it's a federal requirement that's in the federal constitution about the 14th Amendment, then what states locally do, the who about their local offices is one thing. But what they do about federal is different. And so the who here would be I don't know. Chris says now you have a money down on live TV about how they're going to write the ruling. So we'll come back. You could be right. The other thing they could do is say Donald Trump, whatever you think of him.

not only hasn't been convicted of insurrection, but he hasn't been charged with insurrection or an insurrection-like offense, which would be insurrection or sedition. And therefore, the who has to be some prosecutor or some other process at the federal level and not the state level. And I know that's frustrating. I'm not even, by the way, it's annoying when the justices do it, but I'll do it too. I'm not saying I agree with all this stuff. I'm just telling you. No.

I had to sit through law school and then I sit through the hearing today. And the who is that? Is this something that is more like a prosecutor or more like a federal thing instead of a state thing? Let me ask you a question. What happens then if he gets charged with U.S. Code 2383, rebellion or insurrection? If he's convicted of that, he would actually be incapable of holding any office of the United States. I could answer that in a sense. He or anyone is toast if that happens. The problem, the

The House January 6th committee was quite clear in its recommendation that Donald Trump should be charged with inciting an insurrection. Jack Smith did not charge it. So now we have a case working its way through the federal courts where Trump could very well be convicted of obstruction and any number of big felonies except for inciting an insurrection. The question is, if he's convicted and when sentencing comes down, is disqualification from office for him?

part of the sentence? Does this count as something? Can I just say, though, that had Donald Trump been charged with insurrection the way the January 6th investigation recommended, had he been charged, today there's no chance that Brett Kavanaugh would have sat there and been like, well, anybody convicted of insurrection is clearly disqualified. It's only because he wasn't charged with it that they're just saying, oh, but

Yes. If you'd only done that. Exactly. Yes. It's it's called legislating to the purpose. Yes. All right. Still to come, we've got a lot more from today's Supreme Court hearing, including the very, very sort of poignant in a bad way moment where the lawyer for the plaintiffs took a question from his old boss, Neil Gorsuch. Do you agree that the state's powers here over its ballot system?

for federal officer election have to come from some constitutional authority. Members of this court have disagreed about that. I'm asking you. Mr. Chief Justice, and may it please the court, we are here because for the first time since the War of 1812, our nation's capital came under violent assault.

For the first time in history, the attack was incited by a sitting President of the United States to disrupt the peaceful transfer of presidential power. By engaging in insurrection against the Constitution, President Trump disqualified himself from public office.

As we heard earlier, President Trump's main argument is that this court should create a special exemption to Section 3 that would apply to him and to him alone. He says Section 3 disqualifies all oath-breaking insurrectionists except a former president who never before held other state or federal office.

Did the framers make an extraordinary mistake?

Welcome back to our primetime recap of the U.S. Supreme Court's deliberations today, their oral arguments today over whether or not former 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 Colorado's ballot. Today, Mr. Murray made his Supreme Court debut representing six Colorado voters who brought that initial challenge to Trump's eligibility today.

In addition to more than a decade as a trial lawyer, Mr. Murray has worked closely with two of the justices who are up there on the dais today. He clerked for Justice Neil Gorsuch when Justice Gorsuch sat on the 10th Circuit U.S. Court of Appeals. He also clerked for Justice Elena Kagan at the U.S. Supreme Court. Today, Mr. Murray appeared before those justices in a different capacity, making the case to them.

that the ruling he won in Colorado should stand, that Donald Trump should not be allowed on the Colorado ballot. Joining us now live after a very long, very stressful day is Jason Murray. Mr. Murray, congratulations on your appearance at the court today. And thanks for making time to be here tonight. Thank you so much. And I appreciate you having me on. So I know that this was not your first time in that courtroom and you're very familiar with the Supreme Court procedure and you've seen a lot of lawyers step up to the podium today. How was it for you to do it for the first time?

Well, it was certainly a source of pride for me to get to argue in the Supreme Court for the first time and also to be able to appear before my former bosses.

In terms of how things went today, I don't think it's going to 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 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.

Well, I won't sugarcoat it. It certainly seemed like the justices were asking really difficult questions, mostly procedural questions about whether the states had the ability to enforce Section 3 of the 14th Amendment. I will say we got a lot of really difficult questions at the Colorado Supreme Court as well. And when the Colorado Supreme Court sat down to write their opinion, they realized we were right on the legal issues. So we hold out hope that as the court gets better,

deeper into the legal issues here, they will realize that the law and the history is clearly on our side here. But certainly they did have hard questions today. And I don't think the court would decide a hard case like this one without asking hard questions. Let me ask you to sort of

go back into one of the questions on which I think you got some of the hardest questions. At least, I'm not a lawyer to a lay observer, and I think in some of the journalism about what happened today, you've seen people reflect on what seemed like some very hard questions about whether or not Colorado as an individual state, or indeed any other state, should have a role that

wouldn't directly but would effectively remove a presidential candidate from consideration by the voters of the whole country. That issue, that prospect was raised a few different ways by the justices today. But I wonder if you just take it holistically and address that that criticism of the take that the Colorado Supreme Court and your clients brought to the court today.

It's an important question, and I think it's based on a misunderstanding because we weren't here today to ask the 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 is eligible to be president, again, based on his own conduct of engaging in insurrection. That isn't a political question for a 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, federal constitutional law, come up through state courts,

But once they're 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. And that was the case we were trying to make today.

Hi, Jason. Ari Melber here. Congratulations to you and all the lawyers today because there's a big case and a momentous one. And one of the most difficult things to do is handle that hot bench with nine justices. So 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's so hard and so like the whole thing is so fast and complex.

Is there any part where you'd want to do over or to extend your remarks or build on an answer? Because that can happen just in any part of life. So I'm curious if that happened all today and you'd share that with us. And then second, we discussed today on this panel, and 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. And I wonder, is there a way that through your arguments or the brief, which matters sometimes even more than than oral argument or through what you did today, that you could better sort of to paraphrase a different legal standard, say, yeah, an insurrection is one where, you know, when you see it.

And we're not going to have a ton of frivolous, made up insurrection claims if some bananas official in some bananas state says Biden did insurrection when he gave an interview. And you go, yeah, yeah, that was very different than the live TV document insurrection that we lived through. You know it when you see it. So that's the question. Do over and that.

Absolutely. Well, let me take the first point first. I wouldn't characterize it as so much of a do-over as the fact that there were a lot of questions that were being asked where I'd get 10 words in before I'd get another question and wouldn't so much have a chance to respond. So one thing, one point I'd like to emphasize now, because we didn't come up so much at argument is.

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. This 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 and members of the mob were chanting, hang Mike Pence,

President Trump poured more fuel on the fire on Twitter by painting a target on the back of Vice President Pence and egging the attacking mob on. And we saw his tweets at the end when he praised the attackers and justified their actions, saying these are the things that happen when an election is stolen. This case is as close to a virtual confession.

of intent to incite insurrection that you can possibly get. And so I thought that some of the discussion about, well, maybe one state will have one evidentiary record and another state will have another, you know, didn't fully engage with that central point. And if you, oh, I was going to ask you to remind me what your second question was, because now I've 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 is. An insurrection is more than a protest gone wrong. An insurrection is more than a riot. An insurrection is a coordinated attack on

for the purpose of resisting execution of law by force. And section three 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're attacking a function mandated by the constitution, not just some ordinary law. And here we had an attack

on Congress's constitutional duty to certify the presidential election results. So hypotheticals about the idea that a state might misuse Section 3 to go after their political opponents, I think just misses the point. I mean, 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. And 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 the state of Colorado for making history by being in front of the Supreme Court. There was a point, and you know, Justice Clarence Thomas, he didn't ask a lot of

questions. He obviously asked the first questions as he's the senior justice. But there was one point that he was pretty animated with you. And there was some irony. I'll just say this for myself, that his wife, her relationship to the insurrection, I found quite ironic in listening to him speak. But there was a point at which he talked about the plethora of Confederates who were still around after the Civil War. There were any number of people who could continue to either run for state office or national office. So it would seem, he said, that

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 that question of if this is such an obvious point and Section 3 is self-executing, why aren't there other cases that we can cite where insurrectionists were disqualified in the way that you were arguing Donald Trump should be disqualified? I would love for you to say more on that. If you could have a longer exchange, what more would you say?

One of the extraordinary things about this case is that we had about 50 professors of history who are the leading scholars in the Civil War and Reconstruction file briefs on our side in this case. And they explained that history. They said that immediately after the 14th 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 from offices 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 3. I took it what Justice Thomas was asking was something much more narrow than that broad question, which is, were states ever trying to restrict federal officials from taking federal office?

And the answer is no, but that's because of how ballots worked differently back then. States have the power to run elections and to control the ballots. That's incredibly clear from Article 2 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 a federal officer who was elected

like a member of Congress would have their eligibility determined as after the election when they came to Congress and said, I won. And then Congress decided whether to seat them. But that history just doesn't answer the question here because now 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 a person who's underage from 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 who sued to remove Trump from the state ballot, who won at the Colorado Supreme Court, defending that decision today at the United States Supreme Court, serves a heck of a big stage for your first time ever arguing for 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. But 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, then we just have to work very hard to beat him.

All right. Can I ask you, just now that I have the floor, can I ask you to address your first argument, which is the officer point? Oh, sorry. Why don't we... Can we... Oh, is that okay if we do this and then we go to the... Sure, sure, sure, sure. Go ahead. Will there be an opportunity to do officer stuff or should we... Absolutely. Absolutely. Officer stuff. We will get to the officer stuff. Let's do it.

Welcome back to our primetime recap of the Supreme Court's landmark arguments 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 U.S. Supreme Court knows better than to extrapolate from oral arguments to try to divine how the justices are eventually going to rule. We know we are 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.

But maybe 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, you know, this question of whether a former president is disqualified for insurrection to be president again is, you know, 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. And certainly it's not unusual that questions of national importance come up. Well, I suppose this court would be saying something along the lines of that a state has the power to do it.

But I guess I was asking you to go a little bit further in saying 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 2 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's creating a federal constitutional question that then this court decides.

Why should one state be able to decide who's the president, right? 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,

had 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 the ballot in some states and not in others. Some candidates are kept off the ballot for eligibility concerns that 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 on different states in every election. Just this election, she said, there's a candidate who 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 a bug.

So there's an answer to this concern. And we just heard Jason Murray give us another live answer to it here moments ago in his interview with us. When the justices express the concern that individual states shouldn't be allowed to do something with such 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? Does the fact that Justice Kagan asked about it at all mean that this ruling is foretold?

Joining us now is someone who knows these things, Dahlia Lithwick, senior editor and legal correspondent for Slate. She's also the host of the Amicus podcast. Dahlia, it's great to see you. Thank you so much for being with us. It's good to see you. Is there anything that we have been talking about you tonight that has been like petting a cat the wrong way for you, that you feel like we have screwed up, got the wrong way around or misunderstood?

Not at all. I might quibble with Ari's destination wedding metaphor only because to me, it felt so acutely like that 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. We've got a Dobbs leak. We've got a bad investigation of the Dobbs leak. We've got ethics scandals left and right. We've got 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 hurling

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 office rationale. I'll go with there was no due process for the president rationale. I don't care. I need to be off. And that like anxiety was palpable. Yeah. Yeah.

Yeah. And Ari is saying, that's exactly what I mean. Right. So that means that whatever way they weren't going to go to the wedding. Yes, exactly. Not going to the wedding. The train isn't going to end well. OK, so Dahlia, my question is a non-lawyer question for you.

which is I think that 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's the damage? What's the risk? What's the potential negative consequence of them finding a way to dodge it?

I mean, I think at the most sort of high minded constitutional level, it's that this needed to be answered. And that is, I think, what Colorado was saying is it is your job to resolve a constitutional question, largely of first impression. It is your job to decide for this entire country whether or not the 14th Amendment,

Amendment Section 3 is self-executing, whether the office-officer dichotomy holds, whether we can allow insurrectionists to run for office or not hold office. There was a bucket of questions that are exigent questions. And the court, I think, made pretty plain that they'd rather, or at least I counted, I think, five or six votes for

rather hang their hats on this kind of dopey, pragmatic argument that, you know, 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 a, you know, everybody knew this was a really,

Huge vehicle. It was a big, big swing case. Right. They have an opportunity to do the little swing when they get the immunity case. And maybe that's what that's the tradeoff here. Right. But this was a huge swing case. But we have an unresolved constitutional question. And I'm not completely certain that writing, oh, we need enabling legislation gets them out from under that question.

On that point about the immunity case being right around the corner, we expect that by Monday, these same justices will be asked to weigh in on whether or not that D.C. Circuit Court ruling should stand, the ruling that says unanimously by that panel of appellate dredges 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, but 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 happen.

And then this would be something where there would be an easy answer and we'd know what to do. And this would be settled in some very definitive way. So I wanted to ask your your reaction to that. It doesn't it doesn't seem clear to me why it's necessary for Trump to be charged with or convicted of insurrection for the for the Constitution's ban on insurrection serving an office to be effectuated. But what did you think of how that part of it was handled today?

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 going

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 was 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. Imagine if that fell on us. Us?

And so there's such deep disrespect for what actually happened. And I think it dovetails with one of the things that you all said earlier in your roundup, which I think is so important. We have a court that for, I guess, the first time in 20 years,

found humility today, like institutional humility. We can't do a thing. This is the court that like decides air pollution and water pollution and vaccine policies and is going to determine like what emergency room doctors can do when there is an abortion based on and what the FDA can do. They can do all that stuff and they can't.

either determine what an insurrection is or defer to a trial court's definition. It's very, very weird in February of 2024 to discover humility. Yeah, exactly. Results oriented, as we have been describing. Dahlia Lithwick, senior editor, legal correspondent for Slate, host of the Amicus podcast, and my favorite person to talk with about the Supreme Court. Dahlia, thank you so much for being with us tonight.

You guys, Steph, I want to bring you in on this. In discussing sort of what happened in the courtroom versus what's going to happen next, I feel like there's, unlike the immunity case, like there isn't really a pace issue here. There isn't like a lot of scrambling as to what's going to happen next and what effect this will have on other cases. This is either going to end it all or...

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 in terms of the impact of this case? In terms of beside the point, the concern I think tonight is what do the American people know? Yeah. You said it at the top of this broadcast. Most people were probably not listening today to the audio for two hours. And as sad as it makes us, not every American is watching us right now, though I totally think they should be. I think that's not true. They should be. Yeah.

And just think about it. During those two hours, there was much debate over what exactly is in the amendment, what government job is considered an officer, previous cases. But there was no debate, there was no discussion, and there was no decision over whether Donald J. Trump incited an insurrection. And the risk now, if the court rules in favor of Donald Trump, is a whole lot of Americans could say, look, he didn't do anything. And that's not the case. So in terms of what happens next,

Like we say every night here, making sure the American people actually know the truth. Yeah. And it's, I mean, and it's a very good point, Steph, that if we look at the details of this, it's important and understand the nuance and the difference between the different justices and whether it's going to be an eight to one decision or a six to three decision or how this is going to go. But if the takeaway from this is, oh, they tried to say that Trump did an insurrection. And he didn't do it. And he won. He won that case. Yeah. Then if that's the takeaway, then people are, A, 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 or not insurrection is OK and whether or not Trump did it. But there's a whole lot of people that are going to take that takeaway. People in the media and say, see, he didn't do it. The high court said it. And to your point, I thought you made a really good point about this sort of sudden humility that they found. I wonder if they're going to find on the Mifepristone case.

Right. Are they going to 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 the state. What's the state got to do with elections? Well, 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. The 15th Amendment has what amounts to enabling legislation. It's called the Voting Rights Act.

They have no problem chipping and chipping and chipping away at the Voting Rights Act, which is the enabling legislation like 100 years later.

for trying to enable the 15th Amendment, which is the one that says that no one shall be denied their right to vote based on race or previous condition of servitude. But on that amendment, they don't have any problem saying that some states can allow you to have voter ID, some states don't. Some states will let students vote, some states will only let you vote if you bring your gun license. States are making decisions that give you different outcomes for who has access to the ballot

every day. And only some justice departments, like Obama's, are really litigating on the question of that. And the reason I keep coming back to that is that what people are also forgetting is the insurrection was an attempt to deprive 80 million people of their right to vote. Yeah, that's right.

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. You're talking about trying to disenfranchise people based on believing that they aren't true Americans and that the outcomes of their selection of a candidate shouldn't count. I just I feel like these this week that we're in, it's Thursday, right? Yeah.

between today when it's so evident that the court is making political decisions, right? They're not just extreme textualists. They're not originalists. They're very much looking at the practical implication of the law.

And then Monday, when they're going to get this appeal from Trump to hear the immunity case. And there's broad speculation that if they rule in Trump's favor on the 14th Amendment, they might not rule in his favor on immunity, making clear that this court takes into account politics when it makes its decisions. I mean, it is...

The court's credibility is at a nadir. And this, both today and what happens or whatever transpires next week, the perception that it's, you know, a slap on this wrist, a carrot in this hand and a stick in the other, makes so evident to the American public this court is not what it proposes to be. And the question, I think, is going to be somewhere along the line in some

Congress yet to be elected accountability. I mean, how does it happen? And the prospect of, you know, unanimous decisions from the court in either direction, which, of course, will be praised as this remarkable pseudo bipartisanship. But it's just about, again, results driven negotiations. All right. Much more to come in our recap of today's historic Supreme Court hearing. Stay with us.

We understand that 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 the United States is ineligible for that office under the Constitution. So we fully expected we were going to get difficult questions, but we're confident that when the court looks at the law and digs into the issues, it will realize that we're right and apply the law as it's written.

President Donald 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's 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, who was in fact the winner of that election. Tonight's special edition of The Last Word with Lawrence O'Donnell starts at 10.30 p.m. Eastern tonight, so you have that to look forward to. If you need a note for your boss in the morning as to why you're sleepier than usual, just let me know. I'll sign one for you.

Welcome back, meanwhile, to our primetime recap of the Supreme Court case today, this historic case about whether or not former President Donald Trump did himself out of a job

did himself out of ever holding office again when he participated in an insurrection against the United States. Insurrection against the United States isn't just a mean thing to say about somebody. It's also a crime for which you can be charged in federal court. At today's arguments, Justice Brett Kavanaugh pointedly 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 2383 you agree that someone could be prosecuted for insurrection by federal prosecutors.

And if convicted, could be or shall be disqualified then from office. Yes, but the only caveat that I would add is that our client is arguing that he has presidential immunity. So we would not concede that he can be prosecuted for what he did on January 6th under 2383. Understood. Asking a question about the theory of 2383. Thank you. Understand, one could be prosecuted for insurrection. One could be prosecuted, not him.

Of course, he couldn't be prosecuted for anything. Not saying anything of 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 is our friend Andrew Weissman, former general counsel of the FBI. He was one of the senior prosecutors on Robert Mueller's special counsel investigation. Andrew, thank you for sticking with us. Much appreciated. What do you think about the fact that Donald Trump was never charged for

with insurrection or any insurrection-related crimes. That is something that the January 6th investigation in Congress suggested he should be charged with after their very detailed investigation. Yeah, that had been one of the crimes that was referred by Congress to the Department of Justice. That is the one crime that has as a penalty upon conviction that the person shall be charged

not be able to run for office. They're disqualified. So there was a lot of discussion today, as you've been noting, that that's essentially a form of the congressional, federally congressional sort of enabling statute for this constitutional provision.

I think there probably are two reasons that this Department of Justice did not charge it. Remember, the special counsel is part of the Department of Justice. And I think one is that that crime had not been charged for many, many, many, many years. And so the sort of idea that you're reaching back to that crime.

to single out Donald Trump would certainly have been an attack. There's an answer to that, which is, you know, we've never been in this situation before. But I think the other is, if you think that there's a claim of politics now, if you brought that charge with the idea is that that has that penalty, you're avoiding all that. And I think that's really worth taking a step back to note

that if you think about what we're seeing, if you compare this Justice Department, both in the discussion we're having now about the fact that they did not charge insurrection, they did not seek to make it disqualifying for Donald Trump, and relate that also to what you saw in the Rob Hurst special counsel report today. This is a Justice Department that appointed a special counsel for Trump.

the sitting president appointed a special counsel with respect to a sitting president's son. You did not have Merrick Garland, for instance, issue a purported summary of the report saying, obviously, that's something on my mind today from my work in the Mueller investigation. I mean, if you just compare the sort of 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're 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 special counsel 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 sort of my take home when I was thinking about the insurrection charge that was raised in the oral argument today. Let me also ask you about the other thing that came up, I think, a little 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 few days, is going to consider whether or not to leave standing that circuit court ruling that said that Donald Trump doesn't have immunity from prosecution. I think...

I mean, I don't know. I think the common wisdom is probably that they will take it up, but also that the the circuit court's ruling against Trump is not in much danger. I mean, again, it's the peanut gallery. Who knows? We'll see how it goes once the court makes its own decision. But do you think there is any interplay for the justices between what they handled?

today, this issue of Trump's qualification 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 soon, so near on the horizon, has an effect at all in terms of how they handle these issues separately? Yeah.

Yeah, these are people. They are humans. And yes, there is the, you know, people are saying, well, maybe they'll take it because they want to show that they're even handed. They'll give with one hand and take with another because they clearly wouldn't take that case directly.

just to reverse the DC circuit. That's just not going to happen. They would be taken to put their imprimatur on that issue. But on the other hand, I think having lived through today, they may be saying, you know what, we do not need any more Trump cases. And my own view is that that's probably the way to go, because it'd be odd to take a case where you might be vindicating the idea that

no president is above the law, that the unremarkable proposition that a president cannot kill people with impunity. I mean, 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 it in some ways is the worst possible vehicle to for them to be putting their imprimatur on that principle.

Yeah. And again, just as humans, like even if you only think about the three justices who were appointed by Donald Trump, knowing that they would be sitting there for a couple of hours like they were today and it would have to happen again really soon. And they'd have to spend the whole time talk about talking about Donald Trump murdering people, murdering individuals. There'd be like named people who'd be murdered in the hypotheticals and they'd have to sit there.

like engage with it in order to come to, even if it was a predetermined conclusion. I can't imagine if you're Amy Coney Barrett that that sounds like a fun way to spend a Tuesday after today. Yeah, absolutely. If you just look at today, we're basically, you know, just almost, it was a bloodless

sort of discussion today where there was just 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 a 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 hollowed

Yes, exactly. Exactly. Andrew Weissman, former general counsel to the FBI and our stalwart friend on nights like this. Andrew, thank you very much. You're welcome. I do think that there's I think this is to your point, Alex, that it's impossible to think that these justices are going to handle these issues effectively.

in isolation. Yeah. That this has to affect their willingness to take on the immunity case when I don't think anybody expects that they're going to overturn that appeals court ruling, that they're going to say that Donald Trump really is immune from prosecution even if he murders his political opponents. So why put themselves through this again? Well,

And and the and the reality that just sort of taking it up to put their stamp on it is going to hand Trump a win by further delaying the case. That's another political consideration. I do 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, right, the 14th Amendment

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 thing, the federal case that Jack Smith has built against Trump is very narrow. It's built for speed. We don't know when it's going to 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 that

That I think a lot of people are looking for in this moment when it comes to Donald Trump and the absolutely absurd defenses he's mounted vis-a-vis his behavior in and around January 6th in the 2020 election. Can I just for one minute, I'd be the you know, and I never like to disagree with Andrew Weissman because I think he is brilliant. But I mean, I.

I am not. I don't think the Justice Department has covered itself in glory in any of this, to be honest, because, you know, I think it was totally appropriate to appoint a special counsel in the case of the current sitting president's handling of documents, because that is the Justice Department. It's the guy he appointed that's running DOJ in the case of the former president.

It's not clear why you needed a special counsel and three years and to avoid the most obvious charge, which was 2383 insurrection. And I think the outcome of the Colorado case proves that it was a winnable case. In five days, they proved that Donald Trump did violate the law when it comes to insurrection, that he was an insurrectionist. And by not just being direct and

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. Definitely. And the truth is, he could have just been charged with insurrection by the current Justice Department, and it would have been adjudicated and over by now, and this would not be a question. And you can only blame one man, Merrick Garland. Yes, and I didn't mention the name Merrick Garland. I think Jack Smith took this up as quick.

as he could. Yes, he did. Two and a half years. I mean, that's going to be the true question depending on the timing of this trial. All right. Our recap of today's arguments at the 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. And the fact that 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. We've been told that

if what Colorado did here is sustained, other states are going to retaliate and they're going to potentially exclude another candidate from the ballot. What about that situation? 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 that's a serious threat? I think we have processes... We should proceed on the assumption that it's not a serious threat.

I think we have institutions in place to handle those types of allegations. One of several moments of today's landmark Supreme Court arguments in which the justices raised the prospect that if one state pulls a candidate's name off the ballot, then other states will retaliate and pull other candidates' names off the ballot for no good reason. And wouldn't that be terrible? This is a case that former President Trump makes in public all the time. The rejoinder to it is...

is an obvious one. We heard it there from Colorado Solicitor General. The rejoinder to it is, well, no, we're still operating within the rule of law here. And if there's no good reason for throwing someone off the ballot, the courts won't allow it. Just like we won't allow retaliatory malicious prosecutions for no reason or any of the other things that Trump is threatening.

Joining us now is NBC News presidential historian Michael Beschloss. Michael, it's lovely to see you. Thanks for being with us tonight. Same here. Thank you, Rachel. I wanted to ask you both about the substance of today's hearing. I think most observers believe that President Trump will not be struck off the ballot based on today's oral arguments, although who knows. But also this larger point that I think was illustrated by that exchange we just played, which is.

So much of what's happening in terms of the country reckoning with Donald Trump right now 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 now.

That's for sure. And we just heard those words in that clip. We've got to have faith in our institutions. Well, you know, 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, watching what Justice Robert Jackson said in 1949. He said the Constitution is not a suicide pact.

And what he meant by that is, you know, 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, then none of the rest of this matters.

So looking at it historically, you know, the Civil War, it's a matter of grim record that the Confederacy tried to take down our 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 Appomattox, after the Civil War ended, Jefferson Davis was actually saying, and this is 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 that we've got this 14th Amendment, which was Congress and the states putting themselves on the line in a constitutional amendment saying, you know, we've got to protect our country and make sure that an insurrection like the 1860s never happens again. Yeah.

All I'm saying is here we are in 2024. Donald Trump has committed an effort of insurrection. It almost succeeded in 2021. He's now saying, you know, I will do it again if you elect me president. I may have a dictatorship. I may suspend the Constitution. How much more of a warning do 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 and the questions that they asked. But if they choose to absent themselves from this process and say, hey, we hope the 14th Amendment takes care of itself. Hey, we hope that insurrectionism is something that has self-defense. I mean, in history, are there parallels? Are there things that we should be looking to in terms of the Supreme Court walking away from confrontations with real and present dangers like this?

Absolutely. You know, the Supreme Court knew with the Dred Scott decision in 1857 what they were unleashing by saying that slavery would go on forever and it would spread. This court is beginning to remind me a little bit about the court that brought us the Dred Scott decision. And all I'm saying is that for someone to say, well, 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're basically saying, leave it to the voters. And all I can say is to people watching us tonight, voters, you know, Donald Trump has said he wants to take down this republic. Is that OK 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. Michael, thank you. Thank you. Thank you, Rachel. You're welcome. Yes, Chris. I want to just add to what Michael said, because one of the strange things today was that arguments sort of for affirming Colorado tended to be very historical and textual, and the arguments backward, these very practical, like, well, if we do this, if we pull on this thread, this thing will happen.

And 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 is polling 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 votes.

Totally possible. That means every state is a deciding state. Let's say one of those states was decided by 5,000 votes or as in the case of Florida in 2000 by 600 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?

Yeah, a bigger mob with better weapons. Yep, that's the plan, right? Amen. Just a few moments by colleague Lawrence O'Donnell. We'll take the reins with a special edition of The Last Word. Don't go anywhere.

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