DEFENDANT TO TURN THE COURTROOM INTO A FORUM IN WHICH HE PROPAGATES IRRELEVANT DISINFORMATION, AND SHOULD REJECT HIS ATTEMPT TO INJECT POLITICS INTO THIS PROCEEDING. AND QUOTE. JOINING ME NOW TO DISCUSS ALL OF THIS, IS GLENN KIRSCHNER, FORMER FEDERAL PROSECUTOR, MSNBC LEGAL ANALYST AND HOST OF THE JUSTICE MATTERS PODCAST, AS WELL AS DAVID JOLLY, FORMER REPUBLICAN CONGRESS MEN, MY APOLOGIES, WHO IS NO LONGER AFFILIATED WITH THE PARTY. AND BARBARA MCQUADE, FORMER U.S. ATTORNEY, PROFESSOR AT THE UNIVERSITY OF MICHIGAN LAW SCHOOL AND AN MSNBC LEGAL ANALYST. THANK YOU ALL FOR BEING HERE. I JUST WANT TO GET STARTED. DAVID, WE'VE TALKED A NUMBER OF TIMES. YOUR REACTION TO THESE GO TO HELL CHRISTMAS MESSAGES FROM DONALD TRUMP. ARE WE SEEING SOMEONE WHO IS JUST UNHINGED? OR IS THIS MORE ABOUT HIM FEELING THE PRESSURE OF WHAT IS COMING AND PEOPLE MAY BE TELLING HIM THE TRUTH ABOUT WHAT HE CAN EXPECT TO HAPPEN? >> CHARLES, GOOD TO BE WITH YOU. MY TAKEAWAY IS THE OLD MAN IS AFRAID OF PRISON. WHENE GETS IT HIS BACK AGAINST THE WALL, WE SEE HIM LASH OUT. BUT MUCH LIKE HE DID ON THANKSGIVING, HE NAME CHECKS PROSECUTORS WHO IN SOME WAYS ARE HOLDING HIS FREEDOM IN JEOPARDY, IN THE BALANCE HERE AS THEY ARE PRESENTING THEIR CASE IN FRONT OF THE JUDGES. HE THANKSGIVING HE WENT AFTER LAETITIA JAMES, WHO HAS DONALD TRUMP'S PERSONAL FORTUNES ON THE LINE. HE'S GOING AFTER JACK SMITH NOW. I THINK WE'RE SEEING TRUMP AND HIS BACK AGAINST THE WALL. IS THERE DANGER IN THAT? SURE. WE CAN TALK ABOUT THE FACT THAT OUR CHRISTMAS HE RIGHT GO TO HELL, SO MAYBE YOU TRULY HAS LOST IT. BUT IT DOES GIVE US CAUSE FOR DANGER AND CONCERN. HE IS CURRENTLY AN ECONOMIC WITH JOE BIDEN. SOME POLLS HAVE HIM AHEAD. THIS IS AN INDICATOR WHEN HE SAYS THAT HE IS RUNNING FOR RETRIBUTION THAT HE WILL DO WHAT HE SAYS HE'S GOING TO DO. WHAT WOULD HE DO TODAY IF HE WAS IN OFFICE WITH THE POWER TO USE THE DEPARTMENT OF JUSTICE FOR HIS OWN MEANS? I THINK WE KNOW WHERE HIS FRAME OF MIND IS. WE KNOW WHAT HIS INTENT IS. IF -- MAR-A-LAGO >>, YOUR LAWYER HERE. WHAT ARE YOU GLEANING FROM WHAT JACK SMITH IS BASICALLY SAYING IN THIS LATEST FILING ABOUT THE EVIDENCE HE HAS? WE KNOW WE'RE IN DISCOVERY NOW. I WANT TO READ A QUOTE FROM THE FILING. LET ME KNOW IF YOU THINK ABOUT IT. THE GOVERNMENT ANTICIPATES CALLING WITNESSES WAS KNOWLEDGE OF INFORMATION PROTECTED BY CERTAIN PRIVILEGES, INCLUDING THE ATTORNEY CLIENT PRIVILEGE AND THE SPEECH OR DEBATE PRIVILEGE. I DON'T KNOW ABOUT YOU, BUT THAT LAST PART, THE SPEECH AND DEBATE PART, LET ME KNOW THAT THERE ARE PARTICULAR WITNESSES THAT ARE GOING TO SHOW UP ON THAT LIST THAT THIS APPLIES TO AND THAT SHOULD WORRY DONALD TRUMP. WHAT DO YOU READ INTO THAT? >> SAME THING, CHARLES. THIS CLAUSE ONLY APPLIES TO ONE CLASS OF PEOPLE, AND THAT HIS MEMBERS OF CONGRESS AND THEIR STAFFS. AND SO TO SAY THAT WE WANT TO PRECLUDE ANY ARGUMENT THAT MIGHT CONFUSE THE JURY INVOLVING THE SPEECH OR DEBATE CLAUSE SAYS TO ME THAT JACK SMITH IS PLANNING TO CALL AS WITNESSES EITHER ONE OR MORE MEMBERS OF CONGRESS OR STAFFERS. THAT IS VERY INTERESTING TESTIMONY BECAUSE WE HAVEN'T REALLY THOUGHT ABOUT IT BEFORE. WE DIDN'T SEE IT BEFORE THE JANUARY SIX COMMITTEE. IT MAY BE THAT SOMEONE IS COOPERATING THOUGH NOT NECESSARILY. HE COULD PUT SOMEONE ON THE WITNESS LIST EVEN THOUGH THEY ARE NOT COOPERATIVE OR PART OF A PLEA DEAL. IT'S JUST AT LEAST ONE MEMBER OF CONGRESS ON JACK SMITH'S WITNESS LIST. >> EVEN IF THAT MIGHT BE THE CASE, JUST BECAUSE YOU APPEAR ON A WITNESS LIST DOES NOT MEAN THAT THE GOVERNMENT HAS TO CALL YOU. IT MEANS THEY CAN. THE PRESERVING THE RIGHT. BUT NONETHELESS THIS IS PRETTY EXCLUSIVE LANGUAGE WE'RE SEEING IS PART OF THIS FILING. GLENN, TALK TO ME ABOUT THE BALANCE BETWEEN WHAT IT IS, FOR EXAMPLE, WITH JEFF SMITH'S REQUEST THAT WE DON'T WANT THIS TO BE LITTERED WITH DIFFICULT POLITICAL SPEECH. WHEN YOU'RE TALKING ABOUT, AT ITS CORE, AN OFFENSE IN A FACT PATTERN THAT INHERENTLY INVOLVES DIFFERENT DEGREES OF POLITICS. HOW IS THE COURT GOING TO STRIKE THE APPROPRIATE BALANCE IN NOT NECESSARILY MAKING THIS A CIRCUS, AND JACK SMITH IS TRYING, BUT ALSO NOT INFRINGING ON WHAT DONALD TRUMP HAS IS ANYONE ELSE WAS A CRIMINAL DEFENDANT? >> A GREAT QUESTION. THIS IS AN UNUSUAL TRIAL, AN UNUSUAL SET OF FACTS AND CIRCUMSTANCES. MOTIONS, JUST A FANCY WAY TO SAY WE'RE TRYING TO LIMIT TO THE OTHER SIDE AS TO WHAT THEY CAN AND CANNOT PRESENT BY WAY OF EVIDENCE, WHAT THEY CAN AND CAN'T ARGUE TO THE JURY. MOTIONS IN LIMINE LIKE THIS ARE PRETTY ROUTINE. ORDINARILY THE PARTIES KIND OF KNOW WHAT THEY CAN AND CAN'T ARGUE WHAT INBOUNDS IN WHAT IS OUT OF BOUNDS AND THAT TYPICALLY GOES FOR PROSECUTORS AND DEFENSE ATTORNEYS. BUT IT'S PRETTY CLEAR THAT JACK SMITH WANTS TO BE THE DEFENSE TEAM TO BE OUR NOTICE OF A LAUNDRY LIST OF CATEGORIES THAT HE BELIEVES ARE OUT OF BOUNDS AND HE WANTS JUDGE CHUTKAN TO RULE THE DAY ARE OUT OF BOUNDS. YOU CAN'T ASK A JURY TO DECIDE ISSUES OR TO DECIDE GUILT OR INNOCENCE BASED ON PASSION, BASED ON PREJUDICE, BASED ON POLITICS. I'LL GIVE YOU A SIMPLE EXAMPLE. SOMEBODY CAN'T PUT UP A DEFENSE THAT SAYS, WELL, I MAY HAVE COMMITTED THE CRIMES, COULDN'T FIND CONVICTED AND SENT TO PRISON MY CHILDREN WILL BECOME ORPHANS. THAT WILL PLAY ON THE SYMPATHIES OF THE JURORS FOOT IT IS ABSOLUTELY AN INAPPROPRIATE ARGUMENT TO MAKE. JACK SMITH IS TRYING TO CUT OFF ALL INAPPROPRIATE ARGUMENTS BASED ON POLITICS, BASED ON PASSION, BASED ON IMMUNITY, BASED ON SELECTIVE PROSECUTION. THESE ARE LEGAL ISSUES FOR THE COURT TO RESOLVE. THESE ARE NOT THE KIND OF THINGS THAT JURORS GET TO HEAR ABOUT. >> GLENN, I WANT TO FOLLOW UP WITH YOU. 11,780. YOU'VE HEARD THIS OVER AND OVER AGAIN. THAT NUMBER, THAT CALL TO RAFFENSPERGER, DONALD TRUMP CONTINUES TO PUSH THIS NOTION OF IMMUNITY. HE IS USING EVEN THE EVIDENCE IN THE CALL ITSELF TO GEORGIA STATE SECRETARY RAFFENSPERGER, I JUST NEED TO FIND 11,780 VOTES, AS EVIDENCE OF, LOOK, I DID NOTHING WRONG. IS THIS IMMUNITY ARGUMENT, AND YOU JUST TALKED ABOUT APPROPRIATE ARGUMENTS, IS THIS IMMUNITY ARGUMENT GOING ANYWHERE? >> NO. THE IMMUNITY ARGUMENT IS GOING PRECISELY NOWHERE. JUDGE CHUTKAN RULED THAT A PRESIDENT IS NOT ABSOLUTELY IMMUNE FROM BEING PROSECUTED FOR CRIMES HE COMMITS WHILE IN FICE. I ANTICIPATE THAT THE D.C. FEDERAL CIRCUIT OF APPEALS WILL ROLL THE SAME WAY. I THINK THE MOST INTERESTING QUESTION IS, WILL THE SUPREME COURT THAT CLAIM BY DONALD TRUMP WHEN THERE REALLY IS NO LEGAL SUPPORT FOR IT? THERE IS NO STATUTE, THERE'S NO PRECEDENT, AND THERE'S NO CONSTITUTIONAL PROVISION THAT SAYS A PRESIDENT CAN COMMIT ANY AND ALL CRIMES HE WANTS WITH IMPUNITY. FRANKLY, IF THE SUPREME COURT BUYS INTO THAT, THEN THE PRESIDENT COULD COMMIT ANY NUMBER OF CRIMES AGAINST THE SUPREME COURT WHILE IN OFFICE TO SORT OF MARGINALIZED THEIR POWER. I DON'T SEE ANY OF THAT HAPPENING. >>> >> DAVID, LET'S TALK SOCIAL MEDIA. DONALD TRUMP HAS BASICALLY BEEN A NIGHTMARE. WE ALREADY KNOW THIS. THERE WAS A DAILY MAIL POLL THAT RECENTLY ASKED 1000 LIKELY VOTERS WHAT WORD THEY WOULD USE TO DESCRIBE DONALD TRUMP. AND -- WAS ASTONISHING. YOU HAD THINGS LIKE POWER, REVENGE, DICTATOR, DICTATORSHIP, SUCCESS, AMERICA, CORRUPTION. WHAT DO YOU MAKE OF THIS IN TERMS OF THE LARGER NARRATIVE, AS WE ARE JUST NOW INSIDE ONE MONTH FROM THE IOWA CAUCUSES? >> I THINK ARE POLITICAL COMMUNITY, IF YOU WILL, IS KIND OF RUNNING ON A PARALLEL TRACK WITH OUR CULTURAL AND CIVIC COMMUNITY AND THEY ARE ABOUT TO RUN INTO EACH OTHER BY NOVEMBER. WHAT I MEAN BY THAT IS I DON'T KNOW THAT WE ARE READY FOR A NATIONAL DEFINING MOMENT WE ARE ABOUT TO, FACE THE CULTURAL MOMENT WE ARE ABOUT TO FACE. WE HAVE DISCUSSED THUS FAR TONIGHT DONALD TRUMP'S ETHOS, BUT HE'S ALSO THE FRONT RUNNER FOR THE REPUBLICAN PARTY. THERE DOESN'T APPEAR TO BE A POLITICAL PENALTY FOR THAT TYPE OF BEHAVIOR. IF ANYTHING, THERE IS A REWARD WITHIN REPUBLICAN POLITICS. THOSE HARD LEGAL CONVERSATIONS WERE HAVING, SUPPOSE HE'S CONVICTED IN THE JACK SMITH CASE AHEAD OF THE NOVEMBER ELECTION AND EITHER WINS OR LOSES AND REFUSES TO ACCEPT DEFEAT. OR SUPPOSE I AGREE WITH GLENN AND I'M SURE MARKED AS AS WELL, THE IMMUNITY CLAIM COULD NOT POSSIBLY BE UPHELD. BUT SUPPOSE THE SUPREME COURT, THE 63 MAJORITY FINDS A WAY TO UPHOLD SOME TYPE OF CRAZY CLAIM BY THE PRESIDENT THROUGHOUT THIS PROCESS. THERE IS A WORLD IN WHICH THIS COUNTRY JUST FRACTURES AND BREAKS. THE TERMS THAT APPEAR IN THAT HEAT MAP YOU JUST MENTIONED SUGGESTS TOXICITY NOT WITHIN OUR POLITICS BUT WITHIN OUR CULTURE. WE ARE RESILIENT, WE CAN GET THROUGH THIS. BUT ONLY IF WE TRY VERY HARD TO DO SO.
