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new testimony of the alleged criminal conspiracy to help elect donald trump. >> trump turned to the business at hand and asked david pecker, how is our girl? >> argument for absolute immunity goes before the supreme court. >> this court never recognized criminal immunity for any public official. >> a private attorney who was willingly -- to spearhead his challenges to the election results. >> what was up for the party with president nixon? if everybody thought presidents couldn't be prosecuted, then what was that about. >> if it feels completely,'s because we destroyed our own democracy.

>> rachel maddow, nicolle wallace troy reed, lawrence o'donnell, ari melber, all here as msnbc special coverage of trump on trial begins. who has the time? who has the time? you are telling me that simultaneously we have nearly three hours of oral argument at the united states supreme court of the former president claiming he is immune from prosecution for any crime he did while president and debt the exact same time he is being criminally prosecuted. the first star witness against him just had his first full day of testimony. who has the time? there isn't time to pay attention to all of this. let alone everything else

that's happening too. because of that, we are here to help. i am rachel maddow at msnbc headquarters along with my colleagues chris hayes, lawrence all dollar , katie phang. katie was sick the arguments. thank you. we know you at home are a real person with a real life and you may not have been able to follow the proceedings in real time. it's our jobs to cover these things and it was hard for us to cover this all at once. we did know it was coming and we prefer it and delegated. we listen to things at 1.5 speed. we skipped lunch and dinner but we got it for you, and for us. it's our prime time recap of today's events. there is a lot to get to. we will jump in and we will start with the supreme court. former president trump claiming he is immune from prosecution from all and any crimes he committed while serving as president. it is a claim so audacious, it

was widely perceived to be a shocking hail mary when his defense first proposed it. the federal court the first heard this claim just overhand smashed it. ruling against him comprehensively in words that were designed to be set to music, basically. , quote, this court cannot conclude that our constitution cloaks former presidents with absolute immunity for any federal comes they committed while in office. nothing in the constitution's text or allocation of government powers requires exempting former presidents from our nation's historic commitment to the rule of law and that either the people who adopted the constitution those who have safeguarded it across generations have ever understood it to do so. defendants four your service as commander-in-chief did not pistole won him the divine right of kings to evade the criminal accountability that governs his fellow citizens.

no man in this country, not even the former president so high that he is above the law. that was a ruling by the first federal judge who considered this audacious claim that, as a president, he was immune from any crimes he committed while serving in the presidency. when trump appealed that ruling, the appeals proceeding also went very poorly for him. the appeal court proceeding made headlines after one of the three appellate judges asked trump's lawyer in court, a shocking hypothetical about whether he could order the assassination of a political rival and not be charge for it. trump's counsel said, indeed, that was their position. so, all the federal judges who reviewed trump's audacious immunity claim, all of them, have seemed disinclined to go along with that but they have seemed shocked by it.

there clarion decisions of the trial court level and at the appellate level, there clarion decisions against him on this immunity question seemed they would be the last word. but, with this supreme court, never say never. the united states supreme court sat on this issue for weeks and then finally announce they wanted to take this case themselves. they announced they would take it today, which is probably the latest possible day on which they could've scheduled these arguments. to the extent that trubisky best defense tactic is delay. the supreme court has already been an excellent accomplice in that defense. even with that backdrop, the arguments today were legitimately, i think, stunning. trump's counsel was grilled for about an hour. the counsel for prosecutor jack smith and the justice department was grilled for nearly twice that amount of time.

almost immediately, at the start of proceedings, under questioning from justice sotomayor, we got confirmation that the appeals court hypothetical, the crazy hypothetical about trump being able to assassinate his political enemies and never be charged for it, we got confirmation right at the start that was not a fluke. he maintains in his letters maintain that he really is immune from prosecution specifically for killing his political rivals. >> i'm going to give you a chance to say, if you stay by it, if the president decides that his rival is a corrupt person and he orders the military orders someone to assassinate him, is that within his official acts for which he can get immunity? >> it would depend on the hypothetical. >> it could and why?

>> that could be an official act. rarely. he might officially, as part of presidential duties, want to kill his domestic political rival. if it's an official act, trump's lawyer say he's immune from prosecution. in other words, yes, we think you should be able to do that. anything else you want to clarify it turns out he wants to do? it's not just assassinating his individual domestic political opponents, it's worse than that. over to you justice kagan, questioning trump's counsel. >> if a president sells nuclear secrets to a foreign adversary, is that immune? >> that sounds like similar to the briber example, likely not to me. if an eviction like he would have to be impeached and convicted for stash >> what does that mean if it structured as an official at? >> i don't know if the hypothetical whether or not that would be an official act.

you probably have to have more details to apply the analysis. >> how about of a president orders a military to stage a coup? >> i think that the chief justice pointed out earlier, where there's a series of guidelines against that, so to speak, the you cmg perhaps a military from following a plentifully unlawful act. if you want to attack -- we advance it may be an official act and is i would say in response, these hypotheticals come has to be impeached and convicted before criminally prosecuted. >> well, he's gone. let's say this president who ordered the military to stage a coup come he's no longer president. he wasn't impeached and he could not be impeached. but he ordered the military to stage a coup and you're saying that's an official at? >> i think it would be -- i think it would depend on the circumstances whether it was an official act. he would have to be -- >> what does it mean depend on the circumstances?

he was the president. he is the commander-in-chief. he talks to his generals all the time. he told the generals come i don't feel like leaving office and i want to stage a coup. is that immune? >> if it's an official act, there needs to be impeachment and conviction beforehand because the framers viewed that -- >> official act? >> if it's an official at? >> is it an official act? >> the way you describe the hypothetical, it could well be. >> that answer sounds as though it's under my a test it's an official act but they sure sounds bad, doesn't it? >> that sounds bad and that's why the framers have a whole series of structural checks that have successfully for the last 234 years prevented the very kind of extreme hypothetical. >> has that extreme hypothetical always been prevented? yes, your honor, that, quote, sounds very bad.

you can see where he's going at the end of this when he calls that an extreme hypothetical? it's an important part, i believe, of how the proceedings went. trump's lawyer and most of the conservative justice today carried on with this proceedings at the supreme court as if it is a wild hypothetical. just a crazy pipedream, like a martian scenario that a president might try a coup. might try to use force to stay in power after he was voted out. who could ever imagine something like that? trump's lawyer call that unlikely, he specifically called it and i, quote,, very unlikely as a scenario. >> that's the wisdom of the framers. with they view as the risk to be guarded against was not the notion that the president might escape criminal prosecution for something very very unlikely in these unlikely scenarios. they viewed much more likely a much more destructive to the republic the risk of factional strife discussed by -- >> the framers did not put an

immunity clause into the constitution. they knew how to. there were immunity clause is a some state constitutions. they did not provide immunity to the president. not so surprising, they were reacting against a monarch who claims to be above the law. wasn't the whole point that the president was not a monarch? >> the whole point of america. why we are a country. justice kagan with the counsel . what he is saying is the idea of anyone actually trying a coup to stay in prowler -- that's crazy. that's crazy. so extreme we don't have to worry about a hypothetical like that. it's partisan strife. conflict between political parties. that's the biggest risk not this crazy idea of a potential coup. justice kagan said yeah, okay, but maybe tyranny.

maybe a tyrant unbound by law running with impunity. maybe that would be bad for us and maybe that's why we were formed as a constitutional republic. as a general matter. it's folly to extrapolate from oral arguments and say you know how the ruling will come down based on the comments from the justices when the case was heard. with that caveat, it seemed clear today that the most conservative justices were inclined to side with trump, not just on a technicality but possibly on substance. justice clarence thomas suggesting presidents are always committing crimes. shout- out operation mongoose from justice clarence thomas today. justice brett kavanaugh, justice alito describing prosecutors and judges and grantors of citizens in terms it would be right at home in a trump social media feed about how the risk not a lot rule on the country

and what looks like a were supposedly cool system is really corrupt people who are out to get donald trump. the conservative justices today were consistently unwilling to discuss trump's alleged crimes as laid out in the indictment that led to this case. to the point to became almost a comedic gymnastic effort at avoidance between justice alito and the lawyer for special counsel jack smith. >> if the court has concerns about the robustness of it, i would suggest looking at the charges in the case. >> i want to talk about this in the abstract conspiracies. >> conspiracies to defer the united states with respect to one of the most important functions, namely the certification of the next president. >> i don't want to dispute the particular application of that. 371 conspiracy to defraud the united states to the particular

facts. >> it's difficult to think of a more critical function in the certification of who won the election. >> you know, i'm not discussing the particular facts of the case. >> stop with the facts. do not tell me about the things that whoever your client is to. or the things in the indictment of whoever your client is that led to the case whatever it's about. i want to speak in the abstract is at the particular facts in the case, the particular facts of what donald trump did are just an unimaginable extreme hypothetical i do not want to engage with. the not consensus but widely held view of today's proceedings at the united states supreme court is a conservatives on the court will likely succeed in using this case to further and fatally delay criminal court proceedings against donald trump before the election in november. rather than reject his claims

of immunity from prosecution like other federal judges who have considered this matter before them up done, they instead, they will carve out some newly specified class of actions that are immune from prosecution, if you are a president, and they will invent a test for deciding what counts is that kind of action by president. then they will send tune in federal january 6 case back to a whole new cycle in the lower federal courts to run his attempted overthrow of the government through the court's newly invented legal test that they're going to make for him in this case. which, yes, will take forever because in the meantime, he will get a chance to get back in the white house to shut the whole thing down. and, in the meantime, the american people will be asked to vote on whether he should take the seat again without knowing what federal prosecutors have found and believe his criminal about his conduct when he tried to overthrow the government to stay in office the last time.

we are going to more ahead on that thing i just described on why it seems the justices are going to send this back to the lower courts and how they showed their cards on the today. before we go too much further, let's talk about this. let's talk out what went. >> i've got a lot. i've got a lot. >> we've got a special. start at the top. >> i found it viscerally, founded a handful of moments that felt like genuine vertigo. a physical sensation of am i losing my mind? what's going on? there is something wrong about this. why did this give this distress? the reason is this. donald trump's framing of this prosecution is what's extraordinary is the fact of the prosecution. the lower courts and the rest of us what's extraordinary are the actions he took towards the prosecution.

what is unprecedented is the actions at issue which is a first attempt to disrupt the peaceful transition of power since the cannons fired at fort sumter and not that an indictment was brought. from the first moments the conservatives adopted the notion that what is new and extraordinary needs justification is the prosecution itself. in so doing, what they did, as you said quite well, adopted the most cynical sort of authoritarian and relativistic view of all of this that trump himself adopts which is, any prosecutor can prosecute for anything. we saw this in the -- case as well. this assumption that everyone below this court is austere with their impeccable vision. everyone below them, political hacks. colorado, they just don't want trump on the ballot. any prosecutor can prosecute anyone. what happens next?

these political hacks everywhere, we are the only ones who see clearly. we do not trust this other process beneath us. the district court and the appellate court and greentree and prosecutor and department of justice and attorney general and duly elected president in the colorado supreme court, all of that, no. we get to say. never considering they are the political hacks. the people who are engaging in regular order are these lower bodies who produce this and in so doing, but it felt like was almost a philosophical endorsement of the worst aspects of trump which is this is power politics by another name. none of this actually adheres to any set of regularity or rules of law. the reason this has not happened before his because there is never been as partisan a prosecutor is jack smith? that's what's unprecedented? it's not because of what he did?

to walk into the third branch of government and these people with all the power, the creative minds who brought you 12-year-old given birth to a child, to listen to these folks and find them in the highest halls of power adopting the most authoritarian and cynical vision of this was genuinely shocking. >> lawrence o'donnell, want to go to your next. katie was in the courtroom and heard the arguments. we will make you go last, and clean up. i have as much anxiety as you do, chris. i want to go to you because you are the man who tells us we are overreacting. i would like you to throw cold water on my feelings. >> there is no cause for alarm in any of this. >> god bless you. >> as long as joe biden is reelected. because, if that was a given fact, if he was running with say

the 18 point lead in the polls of bill clinton had at a certain point in his reelection campaign, there would be less nervousness. we would know eventually this process will work, and if they send it back to the judge, and have an evidentiary hearing and bring witnesses in and away she cannot now. there would then be some actual underwrote testimony about all this stuff before the election, if they do that. eventually, you got through all this prosecution. i think joe biden is going to be reelected, so i'm not terribly concerned about what they will do in terms of slowing this down. what you saw, the fundamentals of what we saw, and what we discovered clearly today is that there is a group on the supreme court who believe that their duty is to protect the constitution and the law and there's a possibly larger group who believe their duty is to protect the president and not

all precedents. the president named trump. that that intensity launches those fevered dreams we heard from alito and gorsuch that every president now will make sure that their predecessor is prosecutor. they were adopting the trump notion, by the way, that it's a biden prosecution. and then the next administration will, obviously, prosecute the previous president. to do that, they had to completely ignore the 230 years of history that preceded the donald trump residency. that all had to be ignored, and they did willfully ignore it. these are guys who pretend they are amateur at least historians who pay attention to these things. it was that tortured process. what also emerge really clearly was not a single justice there

but the trump argument. the trump argument is not for selective immunity. it is for absolute immunity. every one of them basically found a way of saying that's ridiculous. the alito were included that thing where he kept saying i'm not talking about these facts. the good side of that coin is these facts are so bad, i can't talk about them. that's the good side of that. >> i think thomas is the exception. i think thomas thinks all presidents need absolute immunity. >> that's the great mystery. he did not recuse himself or maybe his definition of recusal is i will talk the lease. clarence thomas spoke only three times. he didn't ask a paragraph worth of questions. the only thing he raised that was outside what anyone else mentioned was an issue that was not even before the court which was the legitimacy of the

appointment of jack smith. that's not even before the court. thomas asked about that so he remains the most mysterious on the court today. >> i think we overthink them. when you work for president, you know they're just guys and girls. these particular guys consume all of this. i think what was clear today, they will direct quote segments from of these programs. alito gives speeches in front of conservators and i'm sure conservatives in the audience who don't watch our programs, what's he talking about? chunks from all your scripts i've heard in his rants. they are bound to trumpian their feelings of being persecuted to a person. in trump's immunity claim which has marriott legal implications and layers to it, they found common cause with the feeling of persecution. that is what they spoke to

today. that's where he found a receptive audience. what's amazing to me as a non- lawyer is federal judge carter in california was like, the farther we get the more murky it gets but in the immediate aftermath, trump clearly committed the crimes. federal judges said more likely than not he committed felonies. he and that eastman guy. the further we get, the people at the highest levels of this branch that everyone said, the court is held. i think after today, we have to get rid of the notion that the court is held and after today we have to get rid of the notion that there is complicated legal theory. they feel him. they feel persecuted just like he does. >> i thought it was a dark day for the supreme court. i do not think the conservative justices purported themselves well on the back-and-forth, i'm not sure the other side for rule of law move to back enough. i think this will matter in history.

you will study some of these. the last time we were gathered on supreme court day, was a colorado case. the reason legally, not politics, legally the experts would say that was unlikely to go against trump's that was not any precedent for putting them up the ballot. now we are gathered and there is zero precedent for this kind of blanket immunity. there's anti-precedent. nixon another taking partisan a robert ray who replaced ken starr striking a deal with bill clinton that otherwise he could be prosecuted. that's bipartisan examples. different party presidents. against all of that, the test is, okay, trump might not benefit as much but do the rules hold? based on the questioning, the rules did not hold for most of the conservative justices. justice roberts has a slow grade scandal going. he has the money and corruption on one side but also the chief justice overseeing an increasingly partisan maga court.

he cannot stand idly by. this is on him too. one more thing, official acts, there can be potential official acts that would be harder to prosecute. none of these are those. the fact that could happen, when dealing with war or order a drone strike and accuse someone of brought? >> or the pardon authority. >> and it takes in american life and you say we will deal with that. i am reminded from social network, if you invented facebook, you would've invented facebook. if these were official acts they would be official acts. the reason as you pointed out in the exelon opening, that none of the conservative justices wanted to go near their job which is to review the law and find facts. they didn't want to go into the facts. it's not an official like to get people to storm the capitol and tried to assassinate the

vice president of the united states who works for you and the speaker of the house in the line of succession? it's not an official like when it's, three states and is been certified to put in elector fraud which indicted more people yesterday. these aren't near official acts and i would defend any president including the former president's right to not have wartime attacks reviewed in domestic court. that's not happening and i don't think they need to spin their wills pretending that might happen someday? the facts in front of them and they willfully ignored it and i will close by saying -- because i did wait my turn, what depressed me the most was not the upcoming election but seeing multiple justices out themselves as insurrection and sedition minimizes today, and it was a sad day. >> quickly, because i was there, so many don't get the privilege, and i want to use that word privilege, to go inside the united states supreme court. it is a public place. when you are there, you are

struck by how regal and stately, how formal and beautiful the building is but more underlying the institutions and norms that are supposed to be protected overtime. what we saw today that bothered me the most in addition to everything you all have noted is the debasing of the lawyers. i go back to the lawyers because i always believe somebody like trump can't do what he does but for the enabling of the lawyers. we have seen a sears that have been indicted or gotten into trouble in various ways because they assisted, they have been co-conspirators in the literal of senses, but to see somebody like john sauer get up and say what he did and you look at this multipage transcript that i couple and tell you what pages the word assassinate, says the nation, ankou, don and those were hypotheticals that were embraced by a lawyer today is beyond sobering. it is depressing. it's the idea you have the erosion of the courts --

erosion of precedent but the erosion of the rule of law in the sense we are supposed to be able to look at people who also have respect for their jobs and what their roles are in the ethics and professional responsibilities, and and i feel we go so far from that because of trump doesn't have dictators and autocrats donate people that enable them, they will be able to get to the supreme court. they won't get on the steps of the hallowed halls of this place. the constitution in the preamble says we the people of the united states in order to form a perfect human to establish this constitution. perfection should not be the enemy of good. there was no good faith today and some of these justices, and they're trying to create the perfect place with the perfect environment for somebody like donald trump. >> a perfect size told. the plane law heading into this. we have more of a recap of what happened today in two courtrooms, the u.s. supreme

court, the new courtroom where donald trump is a criminal trial. more of the recap ahead.

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state you can see private acts don't get immunity. >> we do. >> in the special counsel mindscape refund pages 36 and 47, he urges us even if we assume that we were to decide there was immunity for official acts, they were sufficient private acts in the indictment for the trial to go back and try begin immediately. i want to know if you agree or disagree about the characterization of these access private? turn to a private attorney willing to spread knowingly false claims of election fraud to spearhead his challenges to the election results, private? >> -- that sounds private. >> petitioner conspired with another private attorney caused the filing in court to the verification signed by petitioner that can date false allegations. >> that sounds private.

>> three private actors and two attorneys and political consultant help the pullman plan to submit fraudulent claims of presidential electors to obstruct the proceeding and petitioner and co-conspirator attorney directed that effort? >> you read it quickly. i believe that's private. >> bozak she would not dispute. those were private and you wouldn't raise a claim? >> is characterized. >> is characterized those were private. conservative justice amy coney barrett, she's getting donald trump's lawyer to agree that a whole bunch of things that trump was indicted for in the january 6 federal case, punter those things are things that could not possibly be construed to be the official actions of a president. now, justice barrett emerge from the arguments today is potentially the swing vote on this overall issue. maybe which is crazy given how

right-wing she is. of all the conservative justices, she seemed like the one that was maybe trying to work out some workable answer. she might be persuaded by either camp. roberts was somewhat hard to read. justice barrett gave more indication than any other conservative justice that she might be really thinking about where she would come down. she later suggested to the other side lawyer, special counsel jack smith, that maybe if there's a bunch of stuff that trump did that everyone admits was his private acts when he was committing these alleged crimes, maybe i'll trump's purportedly official actions can be kicked out and you could just try him on the private stuff. you could just try him for the asserted conduct that even his side admits was just private action taken for his own private gain. in other words, couldn't you cut the january 6 indictment

and have? >> the special counsel has expressed some concern for speed and wanting to move forward. you know, the normal process what john sauer it -- if we decided there was some official acts of immunity and to let that be sorted out below. another option for the special counsel to just proceed based on the private contact and drop the official conduct? >> is it an option to proceed just on some of the stuff trump did and not all the stuff he did. the lawyer for special counsel jack smith said in response that they would rather try him on everything. thank you very much. he did also concede that if they had to follow this approach she was suggesting, there might be ways to try trump enters the purportedly private acts and not the other stuff. maybe.'s lawyer said oh, no, the whole case would have to be thrown out. we couldn't possibly proceed

like that. they would have to be a long, long, long, very long, very long , deliberate sequence of litigation and he rings and test in proceedings before anything like that could get near trial. many further proceedings. how about we schedule that for the 45th of december 150 years from now. [ laughter ] her justices like alito or kavanaugh and definitely gorsuch, seemed clear they are on board with the desire for that kind of maximalist delay. what we might call the wait wait don't ever tell me approach. listen is justice jackson gets trump's lawyer on the ropes. is finding it difficult to answer questions about the seemingly extreme consequences of this extreme new immunity regime he's proposing. she's got them on the ropes. then listen at the end is neil gorsuch swoops in to save trump's lawyer. to give him a better idea.

may be a delay would be a good idea to get everybody out of this. >> when you were giving your opening statements, you were talking about, you know, you suggested that the lack of immunity and the possibility of prosecution in the presidential context is like an innovation, and i understood it to be the status quo. i understood that every president from the beginning of time essentially has understood that there was a threat of prosecution and they have continued to function into their jobs and do all the things that presidents do. it seems you are asking now for a change in what the law is related to immunity. >> i would, quote, from benjamin franklin said at the constitutional convention, history provides one example only of a chief magistrate who is subject up public justice criminal prosecution. everybody cried out against

that. >> i understand but since benjamin franklin, everybody is thought including presidents without the office that they were taking this office subject to potential criminal prosecution, no? >> i see the opposite. the evidence going the other way. discussed brought immunity principal -- >> what was up with a pardon for president nixon? if everybody thought that presidents could not be prosecuted, then what was that about? >> he was under investigation for both private and public condo. >> on that score, there does seem to be some common ground between you and your colleague on the other side that no man is above the law and the president can be prosecuted after he leaves office for his private conduct. is that right? >> we agree with that. >> the question becomes as we

have been exploring a little bit about how to sager great private from official conduct that may or may not enjoy some immunity and i'm sure we're going to spend a lot of time exploring that. >> i would really like to spend as much time as possible exploring the. we could start a several years long process. justice gorsuch swoops in, let's finish this talk of presidents of former presidents knowing they can go to prison. let slow things down and talk about having more hearings. let's talk about new test for what types of presidential behavior counts as presidential behavior. new test we will invent and that'll be a long discussion will have to spend a lot of time on the. let's talk about further proceedings. further proceedings that we would like to see. >> and that is left open in that case the possibility of further proceedings and trial. >> exactly right. that would be a natural course for this quarter taken this place. the court can and should reverse a categorical holding

of the d.c. circuit that there's no such thing as official acts, especially when it comes to -- >> you agree further proceedings would be required. >> that is correct. >> definitely, many further proceedings were as long a time as possible. joy reed has joined us. i am not a lawyer and neither are your. watching these proceedings that felt that was a tell all when gorsuch came in and said it's not going well. don't talk about presidents knowing they can be prosecuted. let's talk how we can do new stuff, new legal proceedings. >> and they noted they jumped in and interrupted whenever any of the women -- female justices tried to talk about the actual case. let's not dwell on the actual thing in front of us. let's ask whether a president can pardon himself. let's go on that tangent. i have to say listening to this today was liberating for me, honestly.

i am deeply cynical about this court majority and never believe them to be anything other than politicians. they do not admit they are politicians and they are here to serve donald trump's interests and they've always been that into drive us into the 19th century but is back to an era that is better than the outworn court that ruined america. that's what i always thought. it's liberating to no longer have to pretend there's something is. i've been asking our legal analyst, what do you think? what do you think they will do? almost to a person those who practiced before courts like this, people who go in into this and our lawyers said no, no, there's no chance this court will find absolute immunity. i always did. it's liberating. i asked jamie raskin and he agreed. he said, at this point, they should move their offices into the republican national committee. now there is no longer a question. they didn't even fake it like they did with dobbs to praise and there was a constitutional

principle. they didn't even try to cite in a sensible. they are no longer faking it. they are being very obvious. we are here to protect, not the presidency, but this former president. donald trump. we are here to work for him. we are going to come up with legalese sounding gorsuch trying to deepen his voice and sound like an intellectual and we will try to intellectualize it but really what we are doing, we will protect this president because we want to retire under a republican and be replaced by 30-year-old versions of ourselves. you can't stop us. we are just going to do it. to me, it's liberating to no longer have to pretend that they are what they are. it's what i expected and they proved me right. >> can i respond? what you're seeing makes sense. i feel i'm taking crazy pills.

what you just said, someone watching at home, this is what it is, yes, that's what it was today. all's i will say is it's getting worse. you are right and that's what was depressing. >> the worst trump cases are getting to them. >> the reason it's getting worse is the term folks were asking them to make up voter fraud and other off-the-wall arguments after then president- elect biden was declared the winner. they did not do that. they never granted it and on the one hand there's the recent history including trump appointee's and on the other hand, what you said, it's getting worse. it's this bananas and what you think you're seeing is what you are seeing. >> this is the amazing split screen we saw today is that in the state of arizona, everyone below trump is subject to the criminal justice system. everyone like michael cohen in the new york case did the crimes, not for themselves, none were going to be president

or have immunity, they acquired shame and high legal bills. they are all from rudy giuliani to the white house chief of staff, you name it, all of them including the 11 fake electors in arizona are subject to the criminal justice system and everyone in the crimes for trump must face the criminal justice system. everyone according to the supreme court, trump. this is monarchism. the i.d. of the founders of the country decided to exit a monarchy and then create a different monarchy here is insane. >> more the recap of the action in the united states supreme court in trump's new york courtroom as well, i had.

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his novel theory would immunize former presidents from criminal liability for bribery, treason, sedition, murder, and here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power. such presidential immunity has no foundation in the constitution. the framers knew too well the dangers of a king who could do no wrong. >> welcome back to our prime time recap of the proceedings at the united states supreme court and the new york criminal court downtown where donald trump is facing criminal charges related to hush money payment that was designed to

influence the 2016 election. that was the start of the opening remarks to the justices today. he represents special counsel jack smith. putting that out there bribery, treason, sedition, murder, and here conspiring to use fraud to overturn the results of an election and perpetuate himself in power. this is the entire ball game. it's not something you can slice in half and come up with a tidier way that keeps you out of the politics -- >> if you're someone who studied the 2025 project, the platform for a second term term, there is no separation at the policy level between trump, the private person who would act, and trump the wannabe resident again in his official acts. they are together officially and publicly. when he ran the first time, to unearth what he really wanted to do with the border. it was a scoop and leak that

led to the store we know about and covered the part to do illegal things at the border. it's in a document and you can keyword search it and the official and private acts of the second term agenda. what they do doesn't just matter in terms of the first-ever file and transfer of power in america having a criminal consequence for the person who masterminded it, matter should he prevail next november. it matters to everybody in the country. i think the idea there will be no trial, it's clear to me not because of any sort of distrust i had for the members of the court, but because liz cheney, they said this court stinks on this issue. conservatives. if you don't get farther to the right, and they said this smells. >> can i ask a question? as the one person who is worked for a president, can you please walk us through what it would do to a president's mentality in office if they had supreme

power. >> it has never been you need the laws to rein in a president from committing. we rely on norms too much and that's on us. but now we know. >> you were in the courtroom and this is a creepy question. does it make it worse to have all these hypotheticals on the record? tab the hypotheticals out there? a president can assassinate. you can tell the military to launch a coup or so military secrets for personal gain? his legal team is been asked this and essentially answered yes. does it make it worse to have these spelled out during the course of this litigation. >> you would never think you would have to get to that situation. i think it grounds us and the reality that we are not living in a world that we thought existed anymore. it's gone. it's been destroyed. we are beyond earth two.

this rule of law that does not exist on the planet which is why we were speaking during the break, and i want to emphasize this, ketanji brown jackson at the best analysis at the end of all of this which was, why can't we answer the question the way it has been posed? if we just say no that you don't get that immunity, then we don't have to be, a put your acts in this bucket. up at your private acts in this bucket and never the twain shall meet. this one legged stool justice roberts analysis that rubric doesn't work. it's fatally flawed and it only leads to to lay in bed president bad luck. if you just answer the question, no you don't get immunity for that -- >> then you don't need new test. >> and to donate didn't worry about new trials and more appeals s'more delay. that you get to amy coney barrett's point and you get it back to where it needs to be.

you do not have access out the official part of it. you don't have to excise that out. presented with limited instruction. that happens every day in a court of law. >> particularly justice jackson were trying to say there was a way to do this. here's a way we should can do this. >> she was a public defender. >> she is trying to stop this scheme. we've been on the air for nearly an hour. i'm not one quarter of the way through all the things i want to talk about, even just with the supreme court. it's been a big day. will be back with more the recap, coming up next. >> as you've indicated, this case has huge implications for the presidency, for the future of the presidency, for the future the country in my view.

my name is oluseyi and some of my favorite moments throughout my life are watching sports with my dad. now, i work at comcast as part of the team that created our ai highlights technology, which uses ai to detect the major plays in a sports game. giving millions of fans, like my dad and me, new ways of catching up on their favorite sport.

. these are not the kinds of activities that i think any of us would think a president needs to engage in in order to fulfill his article 2 duties, and particularly in a case like this one. as applied to this case, the president has no functions with respect to the certification of the winner of the presidential election. the states conduct the elections. they send electors to certify who won those elections and to provide votes, and then congress in an extraordinary joint session certifies the vote. and the president doesn't have

an official role in that proceeding, so it's difficult for me to understand how there could be a serious constitutional question about saying you can't use fraud to defeat that function, you can't obstruct it through deception. you can't deprive millions of voters of their right to have their vote counted for the candidate they chose. >> thank you, counsel. >> thank you, counsel. welcome back to our prime time recount of today's court proceedings on whether the former president is immune from actions he took as president. it is our recap of the first full day of testimony from the blockbuster lead witness in that same criminal trial of that same former president, which is going on right now in new york. we still have new york to get to. but on that point from the supreme court arguments today, that discussion at the top there from michael dreeben, lawyer for the special counsel's office that has brought the prosecution against trump for trying to stay

in after he lost the election, dreeben is trying to ask the question what counts as an official act by a president versus what's an unofficial act by a president. the reason he was engaging in that is because as the conservative justices there katie phang who was just there kept telling us, the conservative justices kept putting that forward as the most important thing to be derived from today's argument. the next thing they wanted to do, the next step they wanted to take in this case, not nentally, a time consuming start it all over kind of step that would have the practical effect of making absolutely sure that there's no chance donald trump stands trial before the election. that is what the trump side wants. that seems to be what the hard line conservatives on the supreme court want as well. but while those conservative justices today were demanding that lawyers for both sides dance on the head of this particularly stupe utd pin, the more liberal justices did use

today's proceedings try to spell out what is just bluntly wrong with that, what seems crazy to normal people about the broadest strokes about what trump is trying to do here. >> if there's no threat of criminal prosecution, what prevents the president from just doing whatever he wants? >> all the structural checks identified in fitzgerald and a whole series of cases for example impeachment, oversight by congress, public oversight. there's a long series fitzgerald directly addresses in a single context. >> i'm not sure that's much of a back stop, and what i'm, i guess, more worried about, you seem to be worried about the president being chilled. i think we would have a really significant opposite problem if the president wasn't chilled. if someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there

would be no potential penalty for committing crimes, i'm trying to understand what the disincentive is from turning the oval office into, you know, the seat of criminal activity in this country. >> i don't know there's any allegation of that in this case, and what george washington has said is -- what benjamin franklin has said we view the chief executive is what we call out as unconstitutional and what george washington said is we're worried about factional strife. >> let me put this worry on the table. if the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they're in office? if right now the fact that we're having this debate because olc has said presidents might be prosecuted, presidents over time have understood that's a

possibility, that might be what has kept this office from turning into the kind of crime center that i'm envisioning. but once we say no criminal liability, mr. president, you can do whatever you want, i'm worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he's in office. >> let me put this worry on the table. she says justice ketanji brown jackson today speaking plainly, taking a step back to see the larger picture today. we keep saying how terrible it would be if the president was put on trial for his crimes. can we also talk about how terrible his crimes would be and how terrible it would be for the presidency and for the country going forward if all future presidents knew they can commit any crime they want and there's nothing anyone can do about it. chris hayes, i was worried your head was going to --

>> well, because i had the same experience listening to oral arguments. like, yes, yes, yes exactly and partly because trump and the conservative lawyers all seem to agree which is you've got to be tough, and you've got to break some legs and you've got to shoot some bad guys. like what are you going to do, bring your lawyers against me? that was a consistent theme today. one of the things ketanji brown jackson brought up, which is another highlighter which pairs with that point, there's lots of people with tough jobs out there. they all might face criminal prosecution. somehow they manage to do their jobs, and actually isn't it probably good they're going to do something and they go to their lawyer like, will i get thrown in jail for this? that seems oo like good check. in illinois 4 of 11 governors went to prison.

it was good you might end up in jail if for instance you sold commercial driver's licenses for bribes as a former governor did when he was secretary of state. like those were official acts, but that sort of damocles hanging over your head probably a useful restraint when wielding great power. >> can i just talk about the first clip you played, the idea what did sour say, the official stuff needs to be expunged, we need to have a separation between the private acts and official acts. "a," i think it's a delay tactic. but "b," if it's remanded back to district court and a whole new series of tests arises what part is official and what part is private, i do worry the case the prosecution put forward here. dreeben for the prosecution basically says this is an integrated conspiracy here, it has different components, and it's donald trump working with

private lawyers to achieve the goals of the fraud. once you start to unwind that arbitrarily, i guess if the district court must into separating private and official conduct, assuming any of it is official, i do worry about what that means for the case writ large. >> oh, yeah, and it slows it down for sure and may kill it all together. >> well, and if lawrence is right and there's a very likely possibility joe biden wins and this ends up going to trial, you do have to think about, okay, what actually is the meaningful impact of this? >> and also don't we have to at some point answer the question that was asked? and that's what ketanji brown jackson was actually say, should we answer the question does a president have blanket immunity? we need the answer to it. because to your point, matt and rachel, now we have the thereicals of a coup, treason,

bribery, whatever, now we've put it on the table trump can see it and hear it, he now knows in theory he's got four or five people on the court who think he can. >> and the argument today was we'll carve out an area of private acts only, and those ones they can be prosecuted for eventually someday, but it's going to be an elaborate test. >> and don't forget you have to do impeachment and conviction before you get to prosecution. >> which has never happened in the history of the united states. >> which is why they're creating a higher and impossible bar. >> you mentioned you're not a lawyer, but you sound like it because that's what happens in the supreme court. there's a question presented. and it says to what extent does a president have presidential immunity from criminal prosecution from conduct alleged to involve official acts? now, that word "alleged" is

doing a lot of work. this question was already written. it was the first clue. andrew weissmann and others saw this. it was the first clue leaning towards trump. if you can allege your way, it's not really an official act, you just allege it. anyone can allege anything. what we're doing here is testing the evidence. there's been overwhelming evidence, which is why jack smith got this far, won it at the d.c. circuit unanimously in a bipartisan set of appointees. the evidence has also been established oo some degree. it doesn't mean trump is guilty but it means we're past that opponent. if anyone can allege their way around, this question -- >> and how do you separate it? giving out pardons -- >> it's an article of power. but if he sells the pardon and takes a bribe for the pardon, is it an official act in. >> the bribe part is pardoned

but the pardon is not. you have to take a holistic view. >> this isn't splitting the baby, it's splitting the knife. >> joining us now is congresswoman zoe lofgren, served on the january 6th investigation in congress. so good to have you with us tonight. i know it's been a long day. thank you. >> i'm glad to be on. >> so i think you've heard some of the discussion among us today in terms of what we thought from the oral arguments. you can't always extrapolate from the oral arguments to know how the court will rule, but what was your concern today in the supreme court? >> well, i'm very concerned. the job of the justices is to decide the case before them. and they went off on tingeants and what-ifs and hypotheticals. that's not the case. that's not the case before them. this has been wrong from the get-go. they should have never taken the case. the circuit decision was tight and right.

okay, they took it. they delayed it, and then they went off on tangents. it looks like they're trying to delay this by not actually deciding the case that is before them. so i'm really concerned. you know, all of us who are lawyers in this country are also officers of the court, we're told in school that the judiciary is to be respected and impartial. and frankly, up until january 6th, the judicial branch held. i mean even the trump judges made rulings based on the facts and the law, and i think a lot of us had confidence in the judicial branch. but, boy, that faith was really shaken today. >> congresswoman, in terms of the way things proceeded in court today, i think a lot of americans who aren't lawyers are going to read headlines tomorrow or maybe tonight. they're going to see analysis, and analysis i think for a broad audience in a big case like this

often focuses on the most easy to understand part of it. and the most easy to understand part of it is the hypotheticals. could president trump order the assassination of a rival? could president trump order the military to carry out a coup? could president trump sell america's nuclear secrets to another country for his personal profit? i mean those hypotheticals are understandable by a broad audience. i think it's -- i guess, how do you think that will land with the american people? i'm worried this is going to unsettle people in a newly deep way. >> i think it will unsettle people. but what ought to be unsettling is that the court is apparently quite obviously trying to prevent the trial of donald trump through going off on tangents, hypotheticals that are not before them. the president's --

ex-president's lawyers conceded immunity only continues with official acts. they can take the case before them and see what the appellate court did. obviously overthrowing an election is not an official act and doesn't need to be litigation. all these other acts are not before the court. maybe one day there will be a case about a rogue president killing a rival. but that's nut the case today. i just think they look like partisans, not like neutral justices. >> in terms of that trial, your colleague from that january 6th investigation, liz cheney, had an op-ed in "the new york times" this past week where she explained for all the incredible revelations we got from the january 6th investigation, all the incredible testimony that we saw, there was testimony the committee was not able to get including from some very key people, his white house chief of staff mark meadows. there was the white house

counsel's office, lots of assertions of privilege. the vice president, the vice president's counsel, lots of assertions of various privileges. i single those out because those are people who did testify to the grand jury for the federal january 6th indictment brought by jack smith, which will now be delayed. she's effectively suggesting as a defendant trump and his counsel know what that testimony is, and they must find it terrifying if they want to make sure the american people don't hear it before november, before they vote. >> well, i mean that's speculation obviously. trump knows what happened. it's true we were stone walled by some of those individuals, mark meadows and others, so i'm sure that the prosecutor has more information than we were able to get. but we know enough from our investigation to know it was not a pretty picture, that the former president was at the center of a wide ranging plot to

overturn the election. and when he failed in the various methods that he try, the last effort is to use violence, to stir up a mob to try and stop the certification of the election that went on while the riot was going on. so, you know, yes, smith probably has more information, but certainly we had enough information on the committee to refer mr. trump for prosecution. >> congresswoman zoe lofgren of california, thank you for making time to talk to us tonight. it's invaluable to have you here. >> thank you. all right, our prime time recap continues. another key courtroom today, donald trump's criminal trial in new york had some revelations and some real terms between the prosecution and defense. we've got a recap of that for you. stay with us. >> a stable democratic society needs the good faith of its public officials, correct?

>> absolutely. >> and that good faith assumes that they will follow the law? >> correct. >> all the mechanisms that could potentially fail, in the end if it fails completely it's because we've destroyed our democracy on our own, isn't it? >> it is, justice sotomayor. i also think there are additional checks in the system. of course the constitutional framers designed a separated powers system in order to limit abuses. i think one of the ways in which abuses are limited is accountability under the criminal law for criminal violations. but the ultmal check is the good will and faith ipdemocracy. and crimes that are alleged in this case that are the antithesis of democracy undermine that. >> an encouragement to believe

words that have been put into suspicion here that no man is above the law in his private or official acts. >> i think that is an assumption of the constitution. i think thn of the constitution.

after several hours of questioning across three days this week, prosecutors today wrapped up their direct examination of their first big witness against donald trump, david pecker, the former ceo of the company that used to run the national enquirer. prosecutors have been using david pecker's testimony this week to make the case that he and then-candidate donald trump hatched what they called an illegal plan, a scheme to use the national enquirer as a tool for trump in 2016. they'd print positive stories about trump, print negative things about his rivals and pay to prevent them from being

published. now, according to prosecutors that's all in line with the alleged payment that's at the heart of this case from donald trump to porn star stormy daniels to keep her quiet about an affair she says they had. there was a fantastic moment in the opening statements on monday when the -- when the trump lawyer tried so vaguely cast his eye at the stormy daniels payment and described it as trump looking for opportunities related to "the apprentice." he was just looking for opportunities related to his television show. prosecutors say the catch and kill payments amounted to illegal contributions to donald trump's campaign. david pecker told the jury about how he eventually received a letter from the fec, the federal election commission, which was beginning to streg. he's very worried about this. he says he called up trump

attorney michael cohen. michael cohen told him don't worry about it. even though it's this time of night, we don't have yet the official transcript from court today, still. but we do have a bunch of reporters in the courtroom and in the overflow room and able to take detailed notes, which is what i'm about to read from now. joshua steinglass, the prosecutor, quotes, did you receive a letter from the federal election commission? >> david pecker, yes. steinglass, did you speak to michael cohen? >> pecker, i said michael i just received this letter what do we do it, and michael cohen said jeff sessions has him in his pocket. i said i am very worried. for the record attorneys general aren't supposed to fit in the president's pocket even if the president wears notoriously wide leg pants. this bill david pecker testified today trump asked about, one of the people whose silence they had paid for, he said trump

asked him in 2017 before he was nugerated, quote, how's our girl doing, meaning how's karen mcdougal? david pecker said he told trump in response things were going fine, that she was taying quiet. pecker says trump asked about her again that summer when he invited david pecker to come to the white house. quote, how's karen doing, david pecker said she's quiet, she's doing good. he had to put his foot down on any additional payments for trump because trump was not paying him back like he said he would, first for a doorman, for a trump property who made a wild claim about a supposed trump love child. then for karen mcdougal, again, pecker expected to be paid back by trump for that payment. trump did not pay him back. again, this is from a reporter's notes from the trial today. david pecker told his editor,

quote, we already paid $30,000 to the doorman. we paid $150,000 to karen mcdougal, i am not a bank. we're not epeeing out any further dispersements. pecker testified he ultimately suggested trump himself should be the one to pay for the third catch and kill payment on trump's behalf, the one for stormy daniels. that gets us to the most important part of david pecker's testimony, which is why trump was so concerned about keeping these negative stories about himself quiet. this is important because paying someone hush money, paying someone to not say a distasteful thing about you is not a crime. prosecutors are alleging that the hush money payments in this case were used to influence the election. they were an illegal contribution to trump's campaign, and then they say trump covered up the payments by creating false records to make them look like legal fees. again, from our reporters notes today, steinglass, prosecutor, did you ever have any intention

of printing karen mcdougal's story about mr. trump. pecker, no we did not. steinglass, was your purpose to influence the election? >> yes, we were. >> were you wear expenditures to influence an election made at the request of a candidate are unlawful. >> peck, mes. >> steinglass, we didn't want the story to embarrass mr. trump or embarrass or hurt the campaign. >> it's not for the purpose of the magazine's bottom line. it was for the campaign. it was a contribution to the campaign. today david pecker explicitly said these payments were made to protect trump's campaign for the presidency. reporters notes today again. steinglass, did trump say anything to make you think his concern was for family? pecker, i think it was for the campaign. in the conversations with

michael cohen with respect to both these stories and the conversations i had directly with mr. trump, i made the assumption, the comment, the campaign. it continues, pecker, quote prior to the election if a negative story was coming out about donald trump and spoke about it, he was concerned about melania trump, concerned about ivanka, what the family might say or feel about it. but after the campaign he had concerns on the doorman's story about the story came out and what wasn't true about an illegitimate child. steinglass, did that apply to karen mcdougal as well? pecker, yes. steinglass, did he ever say he was concerned about how melania or ivanka would feel? pecker, no. msnbc legal correspondent lisa rubin was in the courtroom today. lisa, we don't have a proper

transcript yet, so we're piecing it together from everyone's fingers. the way we pieced that together was it true to the flow it felt like in the court proceedings today? >> it was true to what it felt like, but there were also a number of explicit moments. to my mind the biggest thing was pecker's admission he understood that the payment to karen mcdougal was an unlawful campaign contribution, and he understood that in realtime, not after the fact. how did he come to understand that, because of his own entanglement with arnold shwarzenegger who was then running for governor in california, and he had a catch and kill scheme of his own with arnold shwarzenegger. the owner of those magazines said before we close this deal and i really want to sell to you, you've got to talk to arnold. arnold said to him i'd like to serve as an editor at large for you and continue my conversations with the magazines which has been lucrat chb for

the magazines, but in exchange you will come to me with new information about me and help me suexpress stories because i'm running for governor of california. and not only did david pecker agree to do that, he did it 30 or 40 times with respect to allegations of affairs, respect to harassment. he even helped put up one of the women who accused shwarzenegger of fathering an illegitimate child with him in hawaii so that he was away from california during the campaign. when shwarzenegger was found out by the l.a. times and he was asked did this actually happen, he said ask david pecker? why? because pecker had engaged in one of those lifelike assignment agreements with these women. that's how pecker said he came to understand it was unlawful because authorities came knocking and they investigated. >> they got in trouble for this. >> they got in trouble with that. not with the fec, because as you know a gubernatorial candidate is not subject to federal campaign finance law.

that's how david pecker accumulated the body of knowledge that caused him to say when he was concerned about this, "b," this might be a problem, i'm sensitive to it. and michael cohen arranging for the mcdougal settlement, a lawyer for american media without revealing the substances of the conversation david pecker essentially conveyed i checked with a lawyer and the lawyer said this is not kosher. even though he wasn't a bank, even though he was worried, for example, with stormy daniels and the effect on wal-mart, his biggest distributor of the magazine, when it all was said and done, his biggest concern is i don't want to be in legal trouble. i want to protect my company, i want to protect myself, and then third of all i want to protect donald trump. >> he did say explicitly in court today that he consulted with a campaign finance lawyer or elections lawyer who was saying around this time, letting him know this stuff was -- so it wasn't just that he was realizing it himself based on the fact there was a state

investigation in california and he was turning up in the press. he consulted a lawyer about the illegality of what he was doing. >> he consulted two lawyers. he consulted an outside election law specialist and the general counsel of the company, who would have had to pass judgment on it, and that was the person who said this is not happening. >> when he says, he basically tells michael cohen, don't give me a check, don't give me a trump organization check, i don't want it to on the ami books because he knows having it on the books opens him up to vulnerability legally speaking. >> i have to say i felt this revelation felt enormous to me for this reason. these people are so -- they're operating in such a weird world, right? my wife worked at the obama white house which is the opposite of this. everything is like so lawyered and everyone's checking with the lawyers about everything. we're operating in a very different world, and there's some part of me that felt like these are the fly by the seat of

the pants operators. it's possible they didn't realize they weren't committing a crime. it seems possible they didn't know. this was pretty shocking to me that, like, there's expert advice. >> definitely a crime. >> don't do this. that seemed like a really big deal. >> i thought the d.a. got one more win out of this that isn't in all those details. they established that david pecker still likes donald trump. and that's a good thing because you have michael cohen and other people who very clearly have to be viewed with at least some questions about the personal animus that will come up on cross. here the jury was treated to a very simple fact, this guy this was transactional. he says nothing personal against him, just business. and that makes him a stronger witness against trump. >> yes. >> after the direct examination of david pecker concluded today, the cross-examination started, so the trump lawyers got to start asking david pecker hostile questions effectively and that had some really

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welcome back to our prime time recap of what was a very intense day in two different courtrooms where one at the united states supreme court in washington, and another at the criminal court in manhattan. this afternoon the defense for donald trump got their first chance to cross examine a prosecution witness. it was david pecker, the former head of american media, which published the national enquirer. now, broad strokes in some ways

the job of the defense is easier than the prosecution. all the defense has to do is convince one juror there vnt a case against trump. reasonable doubt in the mind of one juror is a victory for trump. the prosecution spent this week thus far trying to establish the narrative that david pecker used his role at ami to conspire to unlawfully effect the outcome of the 2016 presidential election to favor donald trump. that's the underlying illegal conduct, which turns these counts of falsifying business records into a felony instead of a misdemeanor. defense attorney ameal bovie today used his time in court attempting to undercut that narrative from the prosecution, trying to put reasonable doubt into the mind of at least one juror. for example, on cross-examination today he got david pecker to say trump was not the only figure for whom the national enquirer was shell out money to buy and bury negative stories. i have to tell you again the court still hasn't released the

transcript of today's afternoon session. we had reporters in the courtroom, though, and here are notes they gave us. bovey, quote, under your watch you only published about half the stories you purchased, is that right? that's about right. you purchased rights to a story and dreemts that don't disclose it with the nda? bove, there were also instances ami would purchase a story to get a celebrity to participate in an interview or use their likeness. pecker, yes. standard procedure, right? pecker, yes. bove, ami has used hundreds of thousands of source agreements for these purposes, correct? pecker, yes. and bove, wept onto get david pecker to talk about specific

instances of suexpressing stories about specific public figures. they talked about tiger woods and actor mark whalberg and also gubernatorial candidate arnold shwarzenegger and rahm emmanuel. and he'd been skelching stories himself long before the trump presidential campaign and that's because trump made storsties and drove magazine sales for ami. quote, 1998 was the first time you gave president trump a heads up about a negative story relating to marla maples who tried to stop the story from running. pecker, yes. bove, that's almost 17 years prior to the 2015 meeting. pecker, yes. bove, 17 years of giving president trump a heads up to stories long before 2015 because that was good for business. pecker, yes.

bove, president trump was giving you content to run in the national enquirer, correct? pecker, yes. and bove, also tried to put a little distance between trump's lawyer and fixer, michael cohen, and the trump campaign. again, whether or not this was all done to benefit the campaign is at least one of the cruxes of the matter here. again, this from an nbc reporter's courtroom notes today. bove, cohen was mr. trump's personal lawyer and that was his only job? pecker, correct. bove, between 2015 and 2016 cohen was always clear he wasn't working for his campaign, he was his personal attorney. pecker, yes. that's in addition to trump's defense attorney trying to make it seem to the jury that pecker has a faulty memory, implying he had his facts fed to him by prosecutors suggesting he might have lied under oath at one point when he didn't mention multiple times hope hicks, trump

staffer hope hicks was present at at least one key meeting. the defense will get to resume their cross-examination of david pecker tomorrow morning when court reconvenes at 930 a.m. i have to say the revelations on david pecker on direct examination feel so understandable and straightforward and sort of right to the point in terms of what the case is. i understand the defense is trying to muddy up his case, but i can't quite tell they're making any focus point that's going to be an important counter narrative. lisa you were there today in the courtroom. is that fair? >> i think the defense made some headway in trying to establish two things. one, this was not pecker's first rodeo. and two, pecker was always serving pecker. in other words, the primary purpose of this payment had nothing to do with benefitting donald trump's campaign. trump for pecker was good business as he had always been, but that doesn't to your point

undermine the fact it's still an election law violation and david pecker knew it at the time. >> let me interject, though. isn't there a big difference between what david pecker used to do for donald trump for 17 years in terms of burying stories and get him happy and contribute daand all that stuff. and then once trump's campaign started in 2015 and 2017, that's when pecker started paying to shut people up for the first time. i mean prosecution said in their opening statement monday that that was only once trump had his presidential campaign going, that was the first time they ever paid anyone -- paid anyone for information about trump. it's a qualitatively different process at that point. >> i agree with that and the payments were abnormal even by enquirer standards. pecker testified a couple days ago it was their practice to pay people up to $10,000.

but anything in excess of $10,000 had to be done with pecker's approval or the approval of dylan howard, the chief content officer. to that point not only were they doing it for trump for the first time, first payment to the doorman, second payment $150,000, and most importantly the thing the cross did not succeed in inflating, trump was involved the whole time. what was the best thing david pecker did for them, he testified about multiple conversations with trump himself whether in person or by phone. trump was involved in the karen mcdougal story from start to finish, even holding a dinner at the white house in august or july of 2017 where he says, mr. pecker, this is your dinner, invite as many business associates as you want. there's a picture of dylan howard hammering it out in the oval office as well as that picture walking him out in the rose garden. that's a conversation during which pecker says to him yet again how's karen. >> is the implication of how's

our girl and how's karen how's she doing or is he holding to the agreement? >> is she holding to agreement and satisfied with what you offered her. she was trying to forward her career. she wanted to do red carpet inert views and write columns and some of the fitness magazines. so at one point pecker has her come new york and he has a meeting where he hears her out about her various complaints with her contractual agreement with american media? why? because in his words wants to keep her in the family, hoemds her close. >> i did think as i was reading our notes because we don't have the transcript of what was being said in the cross, that the john edwards case is the closest kind of parallel analog we have here, and particularly because that ended up in acquittal, and that

turned on this question whether he was suexpressing an explosive and embarrassing campaign affair for campaign purposes or personal purposesch the strongest ground it seems to me they have to defend is on that point. the idea everyone's lying and making it up seems like nonsense. the idea the arrangement didn't happen seems like nonsense. the place it seems to me they have the strongest argument to make is that this was about personal embarrassment or something else. >> the other thing that is strong is that all the other celebrity catch and kill schemes, this seems to be the only one -- and correct me if i'm wrong, also just reading through the notes, where they covered up the way it was reported internally, where they went to incredible elaborate lengths to make it look like it's something it's not and to hide it from their own accountant, to make it look like it's under sort of the president title rather than where they would normally put these sort of

deals. so it's unique, and i almost feel like highlighting arnold shwarzenegger and these other deals because they weren't structured this way and they weren't concealed this way in a way actually makes the prosecution's point. >> but even if they were concealed in that way and they weren't prosecuted by other people, that wouldn't undermine the fact this is still a crime, that the manhattan d.a.'s office. >> and pecker admitted to. >> right. and i don't think we know, by the way, joy, if american media didn't disguise those other payments. it's probably simply not relevant to the case. >> i think it's so damning the excerpt you read again from our reporters that donald trump didn't mention melania or ivanka trump's name once. it rips apart this was for protection and who's been in court with trump for solidarity, which family members? none of them. if this is really part of the defense it is paper thin when

you don't have anybody sitting next to him. >> today in court things started on the hearing on the so-called gag order, what trump is allowed to say about witnesses, about jurors, and what the court is going to do about it if and when he continues to keep breaking those rules. that hearing happened this morning. it did not necessarily end the way you might expect. we're going to take a quick break. our recap of today's crazy day and legal proceedings continues right after this. d legal procee right after this

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welcome back to our prime time recap of today's legal proceedings both in washington, d.c. at the united states supreme court and in new york criminal court, running alongside the trump criminal trial, running alongside it like a subplot has been the question of whether the judge in this case will find former president trump in contempt of court for violating a gag order from the court, a binding court order

that supposedly forbids him from attacking potential witnesses, jurors, and most officers of the court. this question is taking a surprisely long time to answer. before today prosecutors had already put in front of the judge ten different posts or comments made by trump or his campaign, which they said violated the terms of the gag order. then today prosecutors brought in four more comments that trump made that they say violate the gag order including one which happened while trump was on his way to court today. interestingly, though, there was no ruling on the alleged violations that have already been presented before the judge today. the judge looked at the new ones that were presented to him yesterday and said he'll hold a hearing on those late next week. nbc news says that hearing will happen on thursday, and there will be a hearing, but it does seem like it's kind of far away. the question is why is this taking such a long time to

resolve? ari? >> i think the judge wants to be very careful and knows everything is subject to appeal. and there's a practical side to this. they won't tell you this in law school but if your case is going forward and yes this is a good distraction, but i think the judge may take his time because the case is going well. the other point i want to share is the question sometimes posed why is this night different than all the other nights, and i return to that tonight to say we heard a lot of hypotheticals from the supreme court about what would happen if you put a former president on trial, and the good news today why is this night different? here's what happened, you had an orderly court proceeding and the jury will be fair and the prosecution and defense will deal with it. and america has not fallen apart in new york as this is the first week of actual arguments and witnesses, so it can be done. >> even when he calls for his supporters to come out in great numbers, he called for all hell to break loose. and there's been like -- not quite a minion.

>> there's was the bell guy. >> if you're alone bring something that augments. >> a large foam finger, i don't know. >> lisa, it feels to those of us who aren't lawyers who are watching this from the outside that the gag order thing has been litigated, "a," in all his cases but at this point on a time frame that seems like ineffective in terms of stopping him from doing the things a gag order is supposed to stop him from doing. >> let me play devil's advocate for a second. i think judge merchan's point is the gag order violation is not out. he can either fine him up $1,000 per violation or throw him in jail up to 30 days. so long as the choice between the two is outstanding, that is keeping trump in line. it is the stick he has. it's sort of the trick lou kaplan used in the e. jean

carroll trials. he knew full well trump wanted him to throw him in jail, and he didn't do that but he held it out as a possibility. while trump was not particularly well-behaved at moments during that trial, i have no doubt kaplan holding out the possibility of ejecting him from the courtroom kept trump further in loon than he otherwise would have been. >> why would that system of incentives changed if he ruled and said, okay, i want $1,000 for each of these violations, and any additional violations they're either going to be increased financial penalties or they might be jailed depending on how bad they are? >> arcter engoron who was the judge who oversaw the civil fraud trial, that was the method he used, and i don't think trump ever took him seriously. because when you're talking about sums of money despite trump's penchant for exaggerating how much he's worth, $10,000 isn't a lot of money to donald trump. $13,000 isn't a lot of money to trump, so long as judge merchan

doesn't have a lot of options under the statute, even if he says the next time you do it jail is possibility, he's already said that. >> is he constrained by statute or an appellate court already said that would be $100,000 per violation? >> i think he is. i look add the criminal contempt statute in new york and it's pretty clear those two options as i just outlined it, does that mean he couldn't find trump in violation of some other statute that's not been briefed before him? no, but he also said i'm not going to summarily find contempt, right? these are things you have to bring before me. and he's made it very clear these are not summer proceedings. unless he does it in front of me, i'm not going to do of my own volition. we can keep going. "way too early" with jonathan lemire is up next. so i heard the meeting was quite amazing, quite amazing. and the justices were