>>> 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 TO 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 SENT ELECTORS TO CERTIFY WHO WON THOSE ELECTIONS AND TO PROVIDE VOTES AND THEN CONGRESS IN A JOINT, EXTRA ORDINARY 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 FROND 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 WHO THEY CHOSE. >> THANK YOU, COUNSEL. >> THANK YOU, COUNSEL. WELCOME BACK TO OUR PRIMETIME RECAP OF TODAY'S SUPREME COURT PROCEEDINGS ON WHETHER PRESIDENT TRUMP'S IS IMMUNE FROM CRIMINAL PROSECUTION FOR ACTIONS HE TOOK AS PRESIDENT. IT IS ALSO OUR PRIMETIME RECAP OF THE FIRST FULL DAY OF TESTIMONY FROM THE BLOCKBUSTER LEAD WITNESS IN THE CRIMINAL TRIAL OF THAT SAME FORMER PRESIDENT, WHICH IS ONGOING 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 FROM MICHAEL DREEBEN, LAWYER FOR THE SPECIAL COUNSEL'S OFFICE THAT HAS BROUGHT THE FEDERAL PROSECUTION AGAINST TRUMP FOR TRYING TO STAY IN OFFICE, MICHAEL DREEBEN IS ENGAGING WITH THE QUESTION OF WHAT COUNTS AS AN OFFICIAL ACT BY A PRESIDENT VERSUS WHAT IS AN UNOFFICIAL ACT BY A PRESIDENT APPEARED THE REASON HE WAS ENGAGING WITH THAT IS BECAUSE THE CONSERVATIVE JUSTICES TODAY, AS KATIE FILLING WAS TELLING US, THE CONSERVATIVE JUSTICES KEPT PUTTING THAT FORWARD AS THE MOST IMPORTANT THING TO BE DERIVED FROM TODAY'S, IT. THE NEXT THING THEY WANTED TO DO, THE NEXT STEP I WANTED TO TAKE IN THIS CASE, NOT INCIDENTALLY, A TIME-CONSUMING START ALL OVER KIND OF STEP THAT WOULD HAVE THE PRACTICAL EFFECT OF MAKING ABSOLUTELY SURE THAT THERE IS NO CHANCE DONALD TRUMP STANDS TRIAL BEFORE THE ELECTION. THAT IS WHAT THE TRUMP SITE WANTS, THAT SEEMS TO BE WHAT TO 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 STUPID HIM, THE MORE LIBERAL JUSTICES DID USE TODAY'S PROCEEDINGS TO TRY TO SPELL OUT WHAT IS JUST BLUNTLY WRONG WITH THAT. WHAT SEEMS CRAZY TO NORMAL PEOPLE ABOUT THE BROADEST STROKES OF WHAT TRUMP IS TRYING TO DO HERE. >> THERE'S NO CRIMINAL PROSECUTION, IF THERE IS NO THREAT OF CRIMINAL PROSECUTION, WHAT PREVENTS THE PRESIDENT FROM DOING WHAT HE WANTS QUESTION >> ALL OF THE STRUCTURAL CHECKS THAT GO BACK TO MARCHING AGAINST MUD, IMPEACHMENT, OVERSIGHT BY CONGRESS, PUBLIC OVERSIGHT, THERE'S A LONG SERIES IN FITZGERALD DIRECTLY ADDRESSES IN THE CIVIL CONTEXT. >> NOT SURE, I'M NOT SURE THAT THAT IS MUCH OF A BACKSTOP. WHAT I MAKE IS MORE WORRIED ABOUT, YOU SEEM TO BE WORRIED ABOUT THE PRESIDENT BEING CHILLED. I THINK THAT 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 AND THE SEAT OF CRIMINAL ACTIVITY IN THIS COUNTRY. >> I DON'T UNDERSTAND, I DON'T THINK THERE IS ANY ALLEGATION IN THIS CASE. WHAT GEORGE WASHINGTON SAID, WHAT BENJAMIN FRANKLIN SAID IS REVIEW THE PROSECUTION OF A PARTICULAR SOMETHING EVERYBODY CRIED OUT AGAINST AS UNCONSTITUTIONAL. WHAT GEORGE WASHINGTON SAID IS WE ARE WORRIED ABOUT FACTIONAL STRIFE, WHICH WILL -- >> LET ME PUT THIS QUARRY 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 ARE IN OFFICE? IT IS RIGHT NOW THE FACT THAT WE ARE HAVING THIS DEBATE BECAUSE PRESIDENTS MIGHT BE PROSECUTED, PRESIDENT FROM THE BEGINNING OF TIME HAVE UNDERSTOOD THAT THAT IS A POSSIBILITY. THAT MIGHT BE WHAT HAS KEPT THIS OFFICE FROM TURNING INTO THE KIND OF CRIME CENTER I AM ENVISIONING. ONCE WE SAY NO CRIMINAL LIABILITY, MR. PRESIDENT, YOU CAN DO WHATEVER YOU WANT, I AM WORRIED THAT WE WOULD HAVE A WORSE PROBLEM THAN THE PROBLEM OF THE PRESIDENT FEELING CONSTRAINED TO FOLLOW THE LAW WHILE HE IS IN OFFICE. >> RIGHT. LET ME PUT THIS QUARRY ON THE TABLE, SHE SAYS, JUSTICE KETANJI BROWN JACKSON, SPEAKING PLAINLY, TAKING A STEP BACK TO SEE THE LARGER PICTURE TODAY. WE KEEPS 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 COULD COMMIT ANY CRIME THEY WANT AND THERE'S NOTHING ANYONE CAN DO ABOUT IT? CHRIS HAYES, I WAS WORRIED YOUR HEAD WAS GOING TO NOD OFF. >> I HAD THE SAME EXPERIENCE LISTENING TO ORAL ARGUMENTS. YES, EXACTLY. PARTLY IT IS BECAUSE TRUMPS LAWYER AND TRUMP HIMSELF, SOME OF THE CONSERVATIVE JUSTICES ALL SEEM TO BE AGREEING ON THE DIRTY HARRY MODEL OF THE AMERICAN PRESIDENCY, WHICH IS YOU HAVE TO BE TOUGH, YOU HAVE TO BREAK SOME LEGS. MAYBE YOU GOT TO SHOOT SOME BAD GUYS. WHAT ARE YOU GOING TO DO, BRING USE AGAINST ANY? THAT WAS A CONSISTENT THEME TODAY. THEY KEPT SAYING BOLD AND DECISIVE ACTION. ONE OF THE THINGS KETANJI BROWN JACKSON BROUGHT UP, WHICH WAS A HIGHLIGHT OF HERS THAT APPEARS WITH THE POINT, THERE ARE LOTS OF PEOPLE WITH TOUGH JOBS OUT THERE, GOVERNORS, THE PEOPLE THAT RUN THE PENTAGON. THEY ALL MIGHT FACE CRIMINAL PROSECUTION. SOMEHOW THEY MANAGED TO DO THEIR JOBS AND ACTUALLY, ISN'T IT PROBABLY GOOD THAT LIKE THEY ARE GOING TO DO SOMETHING AND THEY GO TO THEIR LAWYER AND ASK WOULD I GET THROWN IN JAIL FOR THIS? I WAS LISTENING TO THAT AS SOMEONE WHO CAME UP AS A REPORTER IN ILLINOIS WHERE 4 OF 11 GOVERNORS WENT TO PRISON. IT WAS A GOOD THAT YOU MIGHT END UP IN JAIL IF, FOR INSTANCE, YOU SOLD COMMERCIAL DRIVERS LICENSES FOR BRIBES AS A FORMER GOVERNOR DID WHEN HE WAS SECRETARY OF STATE. THOSE WERE OFFICIAL ACT. BUT, YES, THAT SWORD OF DAMOCLES HANGING OVER YOUR HEAD, PROBABLY A USEFUL RESTRAINT WHEN WIELDING GREAT POWER. >> ALEX WAGNER. >> AND I TALK ABOUT THE FIRST CLIP THAT YOU PLAY, THE IDEA THAT AS WHAT DID SAUER SAY, THE OFFICIAL STUFF HAS TO BE EXPUNGED, WE NEED TO HAVE A SEPARATION BETWEEN THE PRIVATE ACTS AND THE OFFICIAL ACTS. I THINK IT IS QUITE CLEARLY A DELAY TACTIC BUT IT DOES HAVE ME WORRIED IF THIS IS THE MOST LIKELY OUTCOME HERE, REMANDED BACK TO THE DISTRICT COURT, A WHOLE NEW SERIES OF TESTS ARISES ABOUT WHAT PART OF THIS IS OFFICIAL, WHAT PART OF IT IS PRIVATE, I WORRY ABOUT THE INTEGRITY OF THE CASE THAT THE PROSECUTION HAS PUT FORWARD. THEY SORT OF ARTICULATED THAT IN COURT TODAY TO MAKE. MICHAEL DREEBEN FOR THE PROSECUTION BASICALLY SAYS THIS IS AN INTEGRATED CONSPIRACY HERE. IT HAS DIFFERENT COMPONENTS. AND, YOU KNOW, IT IS 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 AND SEPARATING PRIVATE AND OFFICIAL CONDUCT, ASSUMING ANY OF IT IS OFFICIAL, I DO WORRY ABOUT WHAT THAT MEANS FOR THE CASE WITH LARGE. >> IT SLOWS IT DOWN FOR SURE AND MAY KILL IT ALTOGETHER. >> IF LAWRENCE IS RIGHT AND IS 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 IF IT DOES. >> DON'T WE HAVE TO ANSWER THE QUESTION THAT WAS ASKED? THAT IS WHAT KETANJI BROWN JACKSON, JUSTICE JACKSON KEPT SAYING. SHOULD WE ACTUALLY ANSWER THE QUESTION, DOES A PRESIDENT HAVE BLANKET IMMUNITY? THEY WERE GOING ALL AROUND TRYING NOT TO ANSWER IT. WE ACTUALLY NEED THE ANSWER TO IT. TO YOUR POINT RACHEL, NOW THAT WE'VE GIVEN THE THEORETICAL'S OF A COUP ATTEMPT, KILLING YOUR OPPONENT, BRIBERY, TREASON, MURDER, NOW THAT WE PUT IT ON THE TABLE WHERE TRUMP CAN HEAR IT, WHERE HE CAN SEE IT AND FIND IT, DON'T WE NEED TO KNOW JUST IN CASE HE BECOMES PRESIDENT WHETHER HE CAN KILL PEOPLE? HE NOW KNOWS THAT, IN THEORY, HE'S GOT FOUR, FIVE PEOPLE ON THE COURT TO THINK MAYBE HE CAN. >> THE ARGUMENT ABOUT THAT TODAY WAS WE WILL CARVE OUT AN AREA OF PRIVATE ACTS ONLY AND THOSE ONES AND THOSE ONCE THEY CAN BE PROSECUTED FOR EVENTUALLY SOMEDAY. BUT, IT'S GOING TO BE AN ELABORATE TEST. >> DON'T FORGET, YOU HAVE TO DO IMPEACHMENT, CONVICTION, BEFORE YOU CAN GET TO CRIMINAL PROSECUTION. >> WHICH HAS NEVER HAPPENED IN THE HISTORY OF THE UNITED STATES. >> ERGO THE REASON WHY THEY ARE CREATING A HIGHER, MORE IMPOSSIBLE BAR. >> THAT IS A NONSTARTER. YOU MENTIONED YOU ARE NOT A LAWYER BUT YOU SOUND LIKE A GOOD ONE BECAUSE THAT IS WHAT HAPPENS AT THE SUPREME COURT. THERE IS THE QUESTION PRESENTED AND IT SENDS TO WHAT EXTENT DOES A FORMER PRESIDENT HAVE PRESIDENTIAL IMMUNITY FROM CRIMINAL PROSECUTION FOR 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 WEISSMAN AND OTHERS MENTION IT, IT WAS THE FIRST CLUE THEY WERE LEANING TOWARD TRUMP. IF YOU CAN ALLEGE HER WAY, IT IS NOT REALLY AN OFFICIAL ACT, YOU JUST ALLEGE IT, WELL, ANYONE CAN ALLEGE ANYTHING. IF YOU WATCH THE NEWS OR FOLLOW THE LAW, I'M SURE YOU'VE HEARD ABOUT THAT. WHAT WE ARE DOING HERE IS TESTING THE EVIDENCE. THERE HAS BEEN OVERWHELMING EVIDENCE, WHICH IS WHY JACK SMITH GOT THIS FAR, IS WHY HE WON THIS CASE AT THE DISTRICT LEVEL, IS WHY HE WON AT THE D.C. CIRCUIT UNANIMOUSLY IN A BIPARTISAN SET OF APPOINTEES. THE EVIDENCE HAS ALREADY BEEN ESTABLISHED TO SOME DEGREE. IT DOESN'T MEAN TRUMP IS GUILTY BUT IT MEANS WE ARE PAST THAT POINT. IF ANYONE CAN ALLEGE THEIR WAY AROUND, THEN THIS QUESTION AND THE TEST THE CONSERVATIVES OF THE COURT WON'T PROTECT AMERICA. >> HOW DO YOU SEPARATE IT ? GIVING OUT PARDONS IS AN OFFICIAL ACT. >> IT IS AN ARTICLE TO POWER. >> IF HE SELLS THE PARDON,
