the ones that keep having these problems. we live in a world where the justices on the supreme court, the conservatives would like to say we are and he opposed north america where racism is no longer a problem. >> being race blind in this country today means being blind to injustice and refusing to address it. that is not good for democracy, and that is why we are not going to stop fighting for voting rights. >> and maya wiley, i am going to say we are ending on an up note, because the warriors in the fight continue on this friday night. >> it is a big coalition and we are the majority of this country and we are not letting it go. >> maya wiley, thank you for being here tonight, my friend point that is our show for tonight, a special edition of last word: defendant trump, co- hosted by andrew wiseman and melissa murray, starts right now.

that's the [ music ] that evening and welcome to a special defendant donald j trump tower. i am andrew wiseman, and i am melissa murray. there are just 17 days until donald trump goes on trial in manhattan on 34 criminal charges related to 26 campaign scam to purchase adult film star stormy daniels silence, so she would not talk about an alleged encounter she had with trump shortly after his youngest child was born. with the pressure of the trial looming, donald trump has spent the last three days escalating his attacks on new york judge juan merchan who will preside over the upcoming criminal trial. these new attacks aren't limited to judge juan merchan, but also include the judges daughter, who trump attacked by name yesterday on social media.

>> all of this is part of a pattern. donald trump's attacks on juan merchan's family echo previous attacks you made against both the wife and law clerk of arthur, the judge in the civil fraud case against trump point now, donald trump is under a gag order in the criminal case, as he was in the new york civil case and the d.c. january 6th criminal case. tonight, the district attorney's office has asked the court to make abundantly clear that the march 26 order protects family members of the court, the district attorney, and all other individuals mentioned in the order. furthermore, the court should want defendant that his recent conduct is con tenacious and direct him to immediately desist. if defendant continues to disregard such orders, you should face sanctions. the district attorney's office also went on to note that potential trial witnesses and prospective jurors who are not currently the subject of defendants invective will

likely fear having themselves and their family members be subject to similar attacks. this theory is not hypothetical. in the course of preparing for trial, multiple potential witnesses have already expressed grave concerns to the people about their own safety and that of their family members, should they appear as witnesses against defendant. >> donald trump the lawyers responded that any expansion of the gag order would be an improper restriction on protected campaign speech. this afternoon, as part of his campaign, donald trump posted on his social media site video of a truck that had a picture of president biden bound and gagged, to appear as if he were being kidnapped in a cargo bed, we are not going to show you that this is all to reminiscent of roger stone, who in 2019, posted a photo of the federal judge presiding over his case

with target crosshairs posted to the side of her head. this is in addition to stones references to special counsel robert mueller as a hitman. >> joining us now to discuss all these developments is nancy gardner, former united states federal judge and senior lecturer at harvard law school. welcome. >> great to be on with you guys. >> thanks so much for being here. these attacks on the judiciary are obviously nothing new for donald trump, but what is new is the number of federal judges have spoken out about these attacks on the judiciary and its impartiality, and this is really not business as usual for federal judges. what you make of these developments? is this well, that the federal judiciary is speaking out or is it something that gives you pause? >> no, it is very welcome to me. this is not part of a civilized society of law and order, and it is about time that someone sort of called the question and said that this is beyond the pale. what he is doing is beyond the

pale, at least now, this is the third judge who understood, and it is not about the usual concerns, you know, about a fair trial, which is terribly important, intimidating potential jurors. this is about intimidating witnesses and court start and undermining an orderly and regular trial. it is a good thing that federal judges have spoken out, and it speaks to how extraordinary this is, how extraordinary a moment this is. >> judge, i would like to pin it to the gag order. as we just noted, donald trump is saying it should not be expanded to cover either the lead prosecutor or the judge or their family members. and saying that this is actually part of campaign speech point i was wondering what your thoughts were about whether it would be appropriate. you have sat in the same position as these judges. they clearly have been reticent to go that extra step, but you

think it is time for them to do that, so that they themselves, their family members, and believe prosecutors are not subject to this kind of threat? >> no, it's interesting, the gag orders did not include the judge and included the judges staff, but not the judge, and had not been the prosecutor. i actually think it makes sense to extend this. and the notion that this is campaign speech, it said something about how bankrupt a campaign is when it has to be run not on policies and not on proposals, but on attacking the judge and the cases against you. you both know that ordinarily, what happens is the lawyers will file a document in court, the lawyers can talk about that document can talk about the pleadings, but not attack. this is so outside the usual -- the usual course of events, that i think this should be extended, and i don't think that there would be an issue with respect to that, given

trump's history here. i don't think that would be a problem. >> judge, one other question, we as law professors are used to grading student work, and sometimes we grade the work product of courts and their opinions. how would you grade the federal judiciary as it faces this moment that demands accountability, but so far, there has been very little. is that judiciary living up to its mission? >> boy, that's a complicated question, and only a law professor could ask that question, i just want to say, but i will answer it nonetheless. you know, it's very interesting, all of the judges who have been involved in drug cases has been over backwards to get him more due process, more procedure than any other defendant, and i think that is in part the reason why you see these kinds of delays where courts have been bending over backwards, which is not inappropriate in the ordinary case, but it is almost as it

you add up a column of figures here of all the procedures come all the difference that has been shown to this former president, and i think that you have a lack of accountability, because but for this case, no one is going to trial. the notion, as trump's suggests, that he is being singled out and treated differently, you know, perhaps it's true, he is being treated differently, he is being treated better than anybody. >> so, i was wondering, with respect to what we learned today about this posting of the picture of the current president being bound and gagged and appearing on trump's social media, is that the kind of thing that an ordinary course -- if this was any other defendant, that there would be every man, in other words -- remember, donald trump is out on bail in not one, but four criminal cases. at some point, is he going to be treated like anyone else, and if you were sitting as an

article three judge again, without the a potential consequence? >> well, what everyone is positing about is did we tell him not to do it and is he violating a court order? what is happening with trump is that he is violating norms no one even thought they had to tell him not to do. so, the picture of president biden, no one had to say don't threaten the president of united states as part of these proceedings. that is the problem. it is almost as if everybody is gag order has to be don't threaten anybody in public. but they haven't done that. but certainly, with respect to the judges daughter, i would bring him back to court, i would warn him. if he violates it again, the way you would have to staircases, you would have to say there would be money damages. that obviously doesn't make a difference. if that happens again, there

would be contempt, and there could well be jailing for it. but again, this is my point of everyone is bending over backwards. the ordinary defendant may well already be in jail already because of this conduct, but everyone is being careful, only to have him sort of monitored in terms of what they have ordered him to do, and if he violates that, go up the line. a judge imposed money damages on him. but that obviously won't matter. i mean, your presentation suggests this, i don't think the public understands exactly not only how unusual this is, but how frightening and troubling this is, because if we can't have orderly trials, we can't have trials. >> that is a terrific point, and again, we are only a few years out from the shooting of judge esther solace his son and husband at her home by someone who targeted them, so these fears are not unfounded, but as you say, it doesn't seem like

there is quite a lot that can be done to deter this particular defendant and any other ordinary defendant would likely be in jail at this point. as the justice system done too much to give donald trump due process, is it time for them to be treated like any ordinary defendant here? >> yes. i know you want a more elaborate answer, but yes, it is about time for and to be treated like any ordinary defendant. i mean, he has been allowed to play out the string, which is improper for a presidential candidate with any degree of dignity, but it's certainly improper for a defendant in a criminal case. but the problem is, i think every judge facing him would feel, and any kind of high- profile case, but particularly this one, that the worst thing is to make him a martyr, which is precisely what he is inviting. i recall in one of these cases, you said if you continue, you will be excluded from the case. and you know, trump was

essentially daring him to do that. so, if people are pausing before they actually give him the ultimate sanction of putting him in prison for violating the terms of bail, it is because you don't want to make him a martyr. and because you want to be clear that this was conduct beyond the pale. but i think that is the only reason they are hesitating. >> judge nancy, you are the perfect leadoff person to talk to get and what was going on today in the news. thank you so much. >> thank you. coming up next, more on that new york criminal case against trump. >> [ music ] >> you should be worried about me, he should be worried about the manhattan district attorney, the district attorney of new york prosecutors, you should be worried about the documentary evidence, you should be worried about all of the witnesses who are going to

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michael cohen, transformer

fixer and district attorney alvin bragg's primary witness in the upcoming manhattan criminal trial, says that the case against donald trump is simple. well, that may be, but it is undeniable that one complicating factor in the manhattan criminal trial is michael cohen himself. some context is in order. recall the central role that michael cohen, known as a lawyer a in alvin bragg's indictment, [ inaudible ] to get a flavor of this, here is legendary actress glenn close reading from the indictment on the prosecuting donald trump podcast point >> on the hush money payments, the defendant, donald j trump, repeatedly and fraudulently falsified new york business records to conceal criminal conduct that he'd damaging information from the voting public during the 2016 presidential election. one component of his scheme was that at the defendant's request,

the lawyer who then worked for the trump organization as special counsel to defendant, lawyer a, covertly paid $140,000 to an adult film actress shortly before the election, to prevent her from publicizing a sexual encounter with the defendant. >> so, michael cohen is currently on supervised release, that is a fancy term for probation. so, after serving his prison sentence for campaign finance and other crimes, he was put on supervised release, and he is the fellow, of course, who is working for donald trump as his lawyer and fixer. well, last week, a federal judge denied michael cohen's request to end that probation early. and the judge said in telling words that michael cohen perjured himself either when he pleaded guilty in 2018 to a crime he now says he did not

commit, or he perjured himself just a few months ago when he testified at donald trump's civil fraud trial in new york. >> joining us now to discuss is faith, a former supervisor in the special prosecutions and civil rights units of the eastern district of new york. she is now a defense attorney and a founding partner. welcome, faith. >> thanks for having me. >> hi, think, it is nice to see you. i know you are a terrific former prosecutor, because we work together, you are also a terrific defense lawyer. you are the perfect person to ask this question of what are you going to be watching for on the 15th when this trial starts before the judge in manhattan? >> so, andrew, you are too kind to say those wonderful things, but i think, look, with michael cohen, the huge issue is can he be consistent in the heart of this case? can he keep aware he has been

for really many years now with a consistent story on the hush money? he's going to be crossed every which way. he is going to be crossed, as you just mentioned, about judge furman's observations about his potential perjury. on the other hand, the judge said he was very much truthful. so, i think if he can stay on point with his testimony about hush money, i think we are in good shape in terms of the government's case here. and that is true, because as you and i well know, you cannot prove a criminal case with nuns or boy scouts or other perfect citizens. michael is who we are stuck with michael is who we are going to hear from day and night here, and again, if the key story which is that up well in the prosecutor's opening statements, i think at the end of the day, his testimony will carry the day, despite the harsh cross-examination he is going to get about his previous not so truthful testimony about his own involvement and his own

view of his pleading guilty in federal court. >> so, they, you mentioned nuns, i can't help but notice this is easter weekend and that is usually the time when most of the networks play the sound of music, you have already alluded to this, but how do you solve a problem like michael cohen if you are d.a. alvin bragg and so much of your case things on his testimony, and obviously as a witness, he has lots that can be impeached. are you worried about this, what is the defense going to do, where the places they can attack michael cohen and really tried to bring down this testimony? >> i think the first thing you do is you make certain, picking the jury, how you do an opening statement, that you don't set too high a bar for michael cohen to meet. you make sure the jury understands that he was in this crime, two point you make sure the jury understands that it is the only way to get a first- hand witness, first-hand observation, is someone who has

a very complicated situation, because they are a criminal as well. so, i think you tried to let the air out of the balloon of a perfect witness, because he will not be one, and i think he will suggest to the jury over and over again, before michael take a stand, that he will tell a consistent story about the heart of this crime, no matter what is going on around him, no matter what attack happens over and over again, i think we will see on his credibility, in terms of describing his guilty plea, describing other things that the prosecutors must describe, in secondary. >> so, fate, one of the things he referred to is the process of both sides getting to ask questions and vetting the potential jurors. that obviously is going to be incredibly time-consuming and difficult in a high-profile matter where you could have lots of jurors who are the one

hand hate donald trump, and others who love him. what are you sort of concerned about if you are the prosecution, what are you concerned about if you are defense council, and how do you sort of deal with that? what is unusual in a high- profile matter is you have jurors who want to serve, most people want to get off the jury, but this is one where people may actually want to sneak on. >> i think that is right, and i think there are a few clusters of issues that everyone here is going to watch out for, and i'm sure the judge will as well. first of all, for the prosecution, you want to make sure you don't have people who are already allergic to criminal allegation that is sort of the first in-kind in some ways, that involves tricky election law interplay between state law and federal election schemes, election requirements, you don't want to have someone who is overly concerned with

technical defenses, but actually gets the heart of this crime, which is in essence, that donald trump did not play fair, he put his finger on the scales, he hated important information that may have changed the election. if you are on the defense side, i think you are quite concerned to make sure that people require -- jurors are saying they require enough from each of the witnesses, that they are preconditioned already on the burden of proof, which of course favors the ex-president, and that they hold michael cohen, who really is the center of this case, to a high standard but that they don't find that the upholstery around michael cohen, the documents, the imaginations with respect to very complicated attempts to hide these transactions are enough for these jurors without michael cohen doing a very good job. >> allots to look for at this

trial get started in manhattan, faith, thank you so much for giving us the rundown. >> thanks for having me. coming up, a trump election lawyer faces being disbarred after conspiring to obstruct the level function of the government of the united states. what we learned from the john eastman disbarment hearing, and doesn't make sense that we have actually seen more accountability for lawyers than for former presidents? we will talk about it, up next. >> [ music ] come on. i already got a pneumonia vaccine, but i'm asking about the added protection of prevnar 20®. if you're 19 or older with certain chronic conditions like asthma, diabetes, copd, or heart disease, or are 65 or older, you are at increased risk for pneumococcal pneumonia. prevnar 20® is approved in adults to help prevent infections from 20 strains of the bacteria that cause pneumococcal pneumonia. in just one dose. don't get prevnar 20® if you've had a severe allergic reaction to the vaccine or its ingredients.

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many americans are understandably frustrated that accountability for those who allegedly orchestrated the events of january 6, 2021 has been elusive. well, there is one glimmer of accountability on the horizon. this week my federal judge ruled that john eastman should be disbarred in california. viewers will recall that eastman is alleged to have been one of the architects of the skin to substitute fake electors. indeed, he has been indicted as a co-defendant of the georgia election interference criminal case in relation to that scheme. and escaping 128 page opinion, judge yvette roland rebuked eastman for knowingly asserting false claims about voter fraud, was representing the law in order to [ inaudible ], and conspiring with president trump

to obstruct a lawful function of the government of the united states, specifically by conspiring to disrupt the electoral count on january 6, 2021 point eastman exhibited gross negligence by making false statements about the 2020 election without conducting any meaningful investigation or verification of the information he was relying upon. the evidence presented demonstrates that eastman, despite claiming sincere belief, deliberately propagated false claims about the 2020 presidential election, thereby breaching his ethical duty as an attorney to prioritize honesty and integrity. >> so, john eastman says he will appeal the ruling, but as of now, he cannot practice law in california. but he is not the only trump lawyer in trouble. a disbarment hearing is currently underway in washington, d.c. for jeffrey clark, the disgraced former doj official who donald trump appears to have installed as acting attorney general for part of the day on january 3rd, 2021, in furtherance of trump's

alleged efforts to stop the peaceful transfer of power to president-elect joe biden. and that is not all, rudy giuliani, john ellis, sidney powell, and others office similar license consequences. >> joining us now to discuss is kyle chaney, senior legal affairs reporter at politico and former acting assistant attorney general at the justice department. >> she is also the co-host of a wonderful podcast, prosecuting donald trump, and she is an msnbc legal analyst, welcome. >> so, mary, kyle, it seems like the only accountability we are going to get for some of these other people who were in the trump world and allegedly orchestrated some of these election interference schemes is going to be pretty is professional just and procedures. what can we learn from these procedures, what are the kinds of findings that the judges are

making here, and what can they tell the american public about the events of january 6 and those who are alleged to have been responsible for them? >> you know, they don't have the fanfare of the criminal cases and criminal trials we have been anticipating, but in a way, these are the trials of what happened leading up to january 6th, the trial of donald trump's attempt to overturn the election. there is some granular testimony happening in some of these cases, where you are seeing people, you know, john eastman for example, there were months of testimony putting his theories through the ringer, constitutionally testing them, testing his claims of fraud, down to the very specific minutia of them and really picking them apart, and the judge in her lengthy rolling looked at them and said, what you said here in pennsylvania was false, this piece of information you relied on in georgia, you should have known better than to rely on that it was flimsy, one after the

other, and in some ways, you're getting a breakdown and retelling of the story of what happened that we may not see in the criminal cases, still up in the air. >> mary, i wonder if you could tell us something more about the findings that were actually made. one of the things i was struck by was that the findings were made by a fairly high legal standard in the law, and also that they weren't limited to mr. eastman. what did you make of all that? >> that's right, so of course in a criminal trial, the standard is beyond a reasonable doubt, and here, the judge used the standard of clearing and convincing evidence. so, for each of the charges against mr. eastman, she reviewed the evidence that had been submitted throughout the course of the trial and assessed whether basically the prosecuting entity, the disciplinary council in california, have established by clear and convincing evidence that mr. eastman had violated his various roles of professional responsibility,

including dishonesty, misleading the court, misrepresentations. and the judge, i think this goes to kyle's point, it was very elaborate scope of the evidence and a very elaborate ruling, going three for example misrepresentations about fraud that were alleged in litigation in georgia, in pennsylvania, in michigan, things that mr. eastman was willing to -- as an attorney for donald trump, are things that he either knew were false, or could not substantiate, things like evidence of fraud that was significant enough to change the outcome, and he essentially had to admit that he never really had evidence of fraud that would have ever been significant enough to change the outcome. other important things we talked a lot about on the

podcast, the fraudulent collector scheme, the judge found that he knew, notwithstanding the advice he was given, for example, that vice president pence could decide on his own that he was not going to count the ballots from the swing states where there were dueling states of electors, or that he could count the fraudulent states of electors as opposed to the legitimate states of electors, or he could decide to delay the whole thing. that was the advice that he was given to mr. pence and to mr. trump, and the judge found -- you knew that was wrong, you knew that was not substantiated legally or through history. so, the judge really went back and forth, and also said, you are not protected here by the first amendment, because you are a lawyer subject to regulations that the courts have upheld, means you can have some restrictions on your speech, and also speech, to a point, andrew, speech, when

you're actually using your speech as a tool a crime, the conspiracy i was just talking about and you and melissa were talking about, then your speech is not protected. so, it is a very detailed ruling by the judge. so, kyle, what is up next? we know john eastman plans to appeal this decision, what does the process look like, and if he is ultimately disbarred, what are his professional prospects? are we as law professors going to have to welcome him back to teach constitutional law? >> i mean, look, disbarment by design is sometimes a painfully slow process, because as you pointed out, you are taking away someone's livelihood if they are permanently disbarred, and rudy giuliani, he was suspended from practicing law more than a year ago in washington, d.c., but his permanent disbarment decision is still pending, it takes a long time by design. eastman gets to appeal to a

review panel of other judges, and then he gets to go again to the california supreme court if he is unhappy with that ruling. there are still a few more levels here for him and some of the other people who are facing similar processes. >> kyle cheney, mary mccourt, kyle, i noticed you did not say anything about his return to the academy, not even a prospect we want to contemplate. many thanks to both of you laying this all out. >> mary, i will see you on the pond. coming up, i have a lot of questions to ask michael anchor and coauthor about the supreme court and of the immunity hearing on april 25th, that is next. >> [ music ] ight? (fisher investments) nope. fisher avoids them. (other money manager) well, you must earn commissions on trades. (fisher investments) never at fisher investments. (other money manager) ok, then you probably sneak in some hidden and layered fees. (fisher investments) no. we structure our fees so we do better when clients do better. that might be why most of our clients come from other money managers.

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switching is easy at knix.com former bryce tara of the january 6th committee, liz cheney, is urging the supreme court to promptly resolve donald trump's claims that he is immune from criminal prosecution in his d.c. federal elections interview case, which is right now and definitely delayed. >> i trust that they will deal in a responsible and expeditious fashion with this appeal, and recognize that taking action that will result in further delay in preventing the american people from seeing

that evidence in open court, is itself suppression of the evidence, that the american people have a right to see that evidence and the court ought to recognize that. >> [ applause ] >> well, donald trump is certainly not acting like any person who seeks to have his day in court to clear his name, rather he wants to avoid any trial for the general election, because if he wins, he could simply get rid of the dcm florida criminal cases with basically a wave of his hand. he could direct the justice department to simply move to drop the cases against him. but special counsel jack smith can push the supreme court decision in his effort to have a trial before the 2024 election. the public has a right to speedy trial, as none other than justice samuel alito has written in a unanimous supreme court decision. the court has recognized the public's interest and promptly holding those charged with

criminal conduct to account. when an defendant like donald trump seeks to delay the trial until a point he can no longer be prosecuted, in this case the election, the justice department has every legitimate interest in seeking to have a trial before it is too late. the justice department has an interest from different donald trump from committing offenses in the future, and anyone else who might do the same thing. and remember, all that smith wants is his day in court, which means trump will also have his day in court, and the government will have to meet the highest burden we have in the law for holding someone to count, that is proof beyond a reasonable doubt. now, particularly where trump has made the battle cry of it is a witchhunt a bludgeon against the legal system, the courts should be welcoming a trial where that accusation can be put to the test. so, donald trump's d.c. trial mesa fire be delayed, but it remains a question whether the supreme court will be

responsive. melissa, you study the supreme court. you are a constitutional law scholar. >> i've been shaking my head the whole time here point >> okay, so what do you think in terms of when you think about the argument that we are going to see on the 25th of april, putting it in the context of sort of widening the lens of having looked at the supreme court and this makeup of the supreme court, how do you think about it, how should we be thinking about it? >> jack smith is not a superhero, so this idea that he has all kinds of levers he can pull with this court to get them to speed up this trial, that is not the case, he is nothing beyond his advocacy and that april 25th hearing, in order to move this forward. and again, to prevail the supreme court, you need five votes. and this is a conservative 6-3 super majority, and there is a

lot going on here. so, you are right, i do think about the court in a broader context, this is a big term for the court, even leaving aside his trunk cases, disqualification, the immunity issue, leaving that to the side, the court had enormous cases about the future of the ministry to state and administrative agencies, there are a number of cases about the post jobs reproductive rights case, we heard one of these cases on this week of mifepristone and regulations, and i think you have to think about all of those different parts in this entire docket for this term to understand what might be going on with regard to the trump cases. so, we saw in that oral argument in the abortion case, hold on with me a moment, i know abortion has nothing to do with donald trump -- >> i am with you, professor. >> the court seemed very much to be of the view that the litigants, the plaintiffs there

did not have standing, so it seems very likely the court is going to throw this case out on standing grounds, this does not belong in federal court at this time. and i think that is likely an outcome that the whole court can get down with, because they don't want more women going to the polls talking out abortion as we go into the november 2024 election. it was disastrous in 2022 point >> taking it as a cynical view. >> it is a cynical view, but it is probably right. they're going to pond this case, there will be another mifepristone case in the future, it will be after the election, but the fact that the court is going to punch this is going to make the court book moderate, and lots of news people will say this is the court being restrained, this is the court being moderate.

decision they can come out with lawfully is that he's not ly immunized from criminal liability entirely, if they come up with that in june, it's not going to matter because in this is not going to trial. they're looking moderate winning court the the court is probably the most antidemocracy element in our entire system of government right now. >> what i'm hearing is mifepristone, basically, to look moderate, now, to have the effect on the election that they want, but, they leave a disastrous decision till later, and on immunity they can write flowery language, presidents, they're not above the law but with respect to this former es president, they de facto are making him above the law.

>> again, they should be making this such a huge issue in the election, the court itself should be on the ballot. >> that is a really good take home for people, which is, if you take it from professor ke murray, which, the court is on the ballot. coming up, why judge eileen cannon has made this upcoming tuesday a day to watch in the criminal classified documents case against donald trump. that's next. at's next. ahhh! with flonase, allergies don't have to be scary. spraying flonase daily gives you long lasting non-drowsy relief. flonase all good. also, try our allergy headache and nighttime pills. only at vanguard you're more than just an investor you're an owner. that means your priorities are ours too. our retirement tools and advice can help you leave a legacy for the ones you love. that's the value of ownership. this thing? it's what's going on inside of me.

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considering issuing the following jury instruction. a president has sole authority under the presidential records act to categorize records as personal or presidential during his or her presidency, and outgoing president's decision to ask lewd what he or she considers to be personal records from presidential records transmitted to the national archives and records administration constitutes a presidents categorization of those records as personal under the presidential records act. >> well, judge cannon has given the parties two options. the problem is both options are legally wrong. both of them are predicated on the presidential records act, and that is a civil statute, not a criminal statute, which is what is charged here. let's bring in an expert. joyce vance, former u.s. attorney, and before that, a former chief of the appellate division and knows everything one side and down the other

with respect to the 11th circuit which covers florida. she is a professor at the university of alabama school of law and she is the co-host of the terrific sisters-in-law podcast. welcome. >> joyce, i have so many questions. this jury instruction, proposed jury instruction is, i think, the legal term is boxers. is this the moment where jack smith really has to consider asking for judge cannon to be recused from this case? >> there have been so many moments. but, i think this is the last clear chance to prevent a judge who's demonstrated she can't handle this case properly to prevent her from taking steps that would just end the prosecution without giving the evidence a hearing and letting a jury decide the facts. y'all have done a great job of setting this up. this is a judge who refused to rule on trump's motion to dismiss the case because of the presidential records act, but has now given us reason to

believe that she is, in fact, accepting that defense, and that she will impose it on the case as a matter of law if it goes to trial, and bear with me on all of the legal mumbo- jumbo, here. there are a couple of steps, but once a jury is in the box hearing a case, once they've been sworn in, if a judge dismisses a case at that point, the government doesn't get to appeal. double jeopardy would prevent the government from trying the case a second time, so eileen cannon, who all alone we've been concerned that she would delay the case and never let it go to trial, and that's a very real worry, at the same time, we have to be concerned that if this case does go to trial, judge aileen cannon will then take it away from the jury and will dismiss the charges against donald trump, and that will be the end of the classified documents case. >> if i'm hearing you correctly, if this is something that happens after the jury is sworn, and the trial starts, that that, that operates as an

acquittal, and basically the government has no recourse. they can't appeal that, it's over. >> that's absolutely right, andrew. as you know, there's an exception, here. the exception is if the jury renders a verdict of guilty and then the judge dismisses the case against the defendant, the government does have the ability to appeal. but that's completely in judge cannon's hands, and if she decides to dismiss the case before the jury renders a verdict, the case is over. >> joyce, one of the things that's interesting is, the issue of when to do this, and i think we've talked a lot about this, and your thinking may have evolved on it. what is it about now that makes you think this may be the moment that judge smith has to take an action here, to avoid that consequence that you just talked about. >> i thought jack smith should have done it as soon as she

drew the case. i understand the hesitation, as the government's lawyer you don't want to appear to have bias against the judge, nonetheless i thought she had given him plenty of reason to do it. at this point, i think he has no choice. because if he does not ask the 11th circuit to recuse her, she could, for instance, set the case for trial pretty quickly. the time to do it is now. >> joyce vance, perfect person to talk about what can happen in florida, thank you so much, good night. as we await the first criminal trial of the former u.s. president, we encourage you to do as they say in law school, the reading. read all the charges against donald trump for yourselves, make your own decisions, all of the indictments in our new book, the trump indictments, the historic charting documents with commentary, and includes helpful notes on the law as well as the many different players involved. >> thanks for joining us for this