DEFENDANT DONALD TRUMP IS FACING A NEW YORK LATER THIS HOUR. >>> TODAY, AT LEAST FOUR MEMBERS OF THE UNITED STATES SUPREME COURT AGREED TO HEAR DONALD TRUMP'S APPEAL ARGUING THAT L PRESIDENTIAL IMMUNITY PROTECTS HIM FROM CRIMINAL PROSECUTION FOR THE CHARGES FILED BY JACK SMITH AGAINST DONALD TRUMP FOR CRIMES LEADING UP TO RIAND ON JANUARY 6TH. IT TAKES ONLY FOUR MEMBERS OF THE COURT TO AGREE TO HEAR A CASE, AND OF COURSE IT TAKES A MAJORITY OF FIVE MEMBERS OF THE COURT TO ISSUE AN OPINION IN THE CASE. THE SUPREME COURT THREW OUT HALF OF DONALD TRUMP'S APPEAL TODAY AND GRANTED A HEARING ON THE OTHER HALF OF THE APPEAL. THE PART OF THE APPEAL THE SUPREME COURT THREW OUT OTODAY WAS DONALD E TRUMP'S CLAIM OF DOUBLE JEOPARDY ON THE BASIS THAT HE IS NOW BEING PROSECUTED FOR SOME OF THE SAME CRIMES HE WAS CHARGED CWITH IN HIS SECON IMPEACHMENT TRIAL IN THE UNITED STATES SENATE, IN WHICH A MAJORITY OF SENATORS VOTED TO FIND HIM GUILTY, BUT NOT THE TWO THIRDS NECESSARY TO CONVICT HIM. THE SUPREME COURT GAVE TRUMP'S LAWYERS THREE WEEKS TO SUBMIT THEIR BRIEF AND GAVE JACK SMITH THEN THREE WEEKS TO REPLY TO THE TRUMP BRIEF, THEN THE TRUMP LAWYERS WILL GET A FINAL WEEK FOR A FFINAL WRITTEN REPLY, AN A WEEK AFTER THAT THE SUPREME COURT WILL HEAR THE ARGUMENTS IN THE CASE ON APRIL 22ND. THE SUPREME COURT IS NOT BEING ASKED TO PROVIDE TOTAL AND ABSOLUTE IMMUNITY FOR ANY AND ALL POSSIBLE CRIMINAL CONDUCT BY A PRESIDENT. TRUMP PETITION TO THE SUPREME COURT ONLY ASKS FOR IMMUNITY FOR A PRESIDENTS OFFICIAL ACTS OR, QUOTE, THOSE PERFORMED WITHIN THE OUTER PERIMETER OF HIS OFFICIAL RESPONSIBILITY. THE ARGUMENT TRUMP'S LAWYERS MAKE TBEFORE THE SUPREME COURT COULD BE A RERUN OF SOME OF WHAT WE HEARD IN THE APPEALS COURT. >> COULD A PRESIDENT ORDER S.E.A.L. TEAM SIX TO ASSASSINATE A POLITICAL RIVAL? THAT'S AN OFFICIAL ACT, AN ORDER TO SEAL TEAM SIX. >> HE WOULD HAVE TO BE AND WOULD SPEEDILY BE IMPEACHED AND CONVICTED BEFORE THE COLONEL PROSECUTION. >> BUT IF YOU AREN'T,IC THERE WOULD BE BNO COLONEL PROSECUTION, NO CRIMINAL LIABILITY FOR THAT? >> THE CHIEF JUSTICES OPINION MARBURY VERSUS MEDICINE AND OUR CONSTITUTION AND THE PLAIN LANGUAGE OF THE IMPEACHMENT JUDGMENT CLAUSE ALL CLEARLY PRESUPPOSE WHAT THE FOUNDERS WERE CONCERNED ABOUT IS -- >> I ASK YOU A YES OR NO QUESTION, COULD A PRESIDENT WHO ORDERED S.E.A.L. TEAM SIX TO ASSASSINATE A POLITICAL RIVAL WHO WAS NOT IMPEACHED, WOULD HE BE SUBJECT TO CRIMINAL PROSECUTION? >> IF HE WERE IMPEACHED AND CONVICTED FIRST. >> SO YOUR ANSWER IS NO? >> MY ANSWER IS QUALIFIED YES. >> JACK SMITH ONE A PROCEDURAL POINT WITH A SUPREME COURT TODAY. DONALD TRUMP'S LAWYERS WERE NOT ACTUALLY ASKING FOR THE SUPREME COURT TO HEAR THE CASE NOW. THE TRUMP LAWYERS WERE ASKING TO SEND -- FOR THE SUPREME COURT TO SEND THE CASE BACK TO THE CIRCUIT COURT OF APPEALS FOR ANOTHER HEARING THERE BEFORE THE FULL 11 JUDGES OF THE CIRCUIT COURT OF APPEALS. AND JACK SMITH 'S BRIEF TO THE SUPREME COURT, JACK SMITH ARGUED THERE WAS NO NEED FOR THE SUPREME COURT TO UE HEAR THE CASE AT ALL. BUT IF THE SUPREME COURT WAS INCLINED TO HEAR THE CASE, JACK SMITH ASKED THE SUPREME COURT NOT TO SEND THE CASE BACK FOR ANOTHER ROUND AT THE APPEALS COURSE, BUT TO SET AN EXPEDITED HEARING AT THE SUPREME COURT, SCHEDULE THAT EXPEDITED HEARING. AND THAT IS WHAT THE SUPREME COURT NOW IS DONE. LEADING OFF OUR DISCUSSION TONIGHT IS NEAL KATYAL, FORMER ACTING ISU.S. SOLICITOR GENERAL AND HOST OF THE PODCAST COURTSIDE WITH NEAL KATYAL. HE IS A MSNBC LEGAL ANALYST. AND NEAL, I WANT TO BEGIN THE WAY ALL LAWYERS BEGIN WHEN THEY GET THESE NOTICES FROM THE SUPREME COURT THAT THEY'RE GOING TO HEAR YOUR CASE. THEY HAVE THE SUPREME COURT IDENTIFIED FOUR THE LAWYERS ON BOTH SIDES THE QUESTION, AND THE ONLY QUESTION, THEY WANT TO HEAR ADDRESSED. AND I WANT TO GIVE THAT QUESTION TO THE AUDIENCE NOW. THE QUESTION IS WHETHER, AND IF SO TO ETWHAT EXTENT, DOES A FORR PRESIDENT ENJOY PRESIDENTIAL IMMUNITY FROM CRIMINAL PROSECUTION FOR CONDUCT ALLEGED TO INVOLVE OFFICIAL ACTS DURING HIS TENURE IN OFFICE? HOW WOULD YOU ADDRESS THAT QUESTION? >> WELL, IF I'M JACK SMITH, THE PROSECUTOR HERE, I WOULD SAY ABSOLUTELY NOT, OR MAYBE HECK NO. AND JUST POINT TO THE PROUD TRADITION OF OUR CONSTITUTION, WHICH IS AT ITS ESSENCE, LAWRENCE, THERE IS ONE CENTRAL IDEA, WHICH IS NO PERSON IS ABOVE THE LAW. AND WHAT DONALD TRUMP HAS DONE THROUGHOUT HIS PRESIDENCY, BEFORE AND AFTER, IS ALWAYS A BASICALLY HIS ARGUMENTS AMOUNT TO I'M ABOVE THE LAW. SO WHEN HE WAS PRESIDENT AND THERE WAS THE TMUELLER REPORT, WHICH OUTLINED TEN CRIMES THAT HE HAD COMMITTED, HE SAID YOU CAN'T INDICT ME BECAUSE I'M A SITTING PRESIDENT. HE THEN GETS VOTED OUT OF OFFICE , AND THEN HE COMMITS CRIMES ON JANUARY 6TH TO TRY TO STAY IN OFFICE, AND HE SAYS YOU CAN'T PROSECUTE ME BECAUSE I'M STILL A SITTING PRESIDENT. SO NONE, CONGRESS GOES AND TRIES TO IMPEACH HIM FOR THIS. AND HIS LAWYERS GO TO THE SENATE AND SAY, OH NO, YOU CAN'T IMPEACH HIM, YOU CAN ONLY PROSECUTE HIM AFTER HE LEAVES OFFICE. SO THEN, JACK SMITH DOES EXACTLY THAT. THEY PROSECUTE HIM AFTER HE LEAVES OFFICE. AND HE SAYS, OH NO, YOU CAN'T PROSECUTE ME, BECAUSE I WAS IMPEACHED BEFORE AND I WASN'T CONVICTED, SO NOW I CAN BE PROSECUTED. IT'S ALL JUST A BIG SHELL GAME. IT ALWAYS ADDS UP TO THE SAME THING, DONALD TRUMP EVADES THE LAW. AND UNFORTUNATELY TODAY, LAWRENCE, THE SUPREME COURT PUT ITS THUMB ON THE SIDE OF SAYING DONALD TRUMP, WE ARE GOING TO HELP YOU EVADE THE LAW. THERE'S LOTS OF CAVEATS WE CAN TALK ABOUT THERE IN A MOMENT, BUT THAT IS, I THINK, THE UPSHOT OF WHERE WE ARE TODAY. >> AND DO YOU MEAN EVADE THE LAW SIMPLY BY THE DELAY IN THE TRIAL? OR ARE YOU ANTICIPATING, BASED ON WHAT YOU'RE SEEING IN THIS ORDER INTODAY, THAT THIS COURT, FIVE JUSTICES ON THIS COURT COULD ACTUALLY FIND SOME IMMUNITY PROVISIONS TO APPLY TO THIS CASE? >> I CANNOT IMAGINE FIVE JUSTICES, LAWRENCE, ON THE SUPREME ICCOURT SAYING DONALD TRUMP HAS ANYTHING LIKE A SERIOUS LEGAL CLAIM HERE. IT IS SO ANTITHETICAL TO EVERYTHING WE AS LAWYERS, AS AS CITIZENS, THINK ABOUT OUR GOVERNMENT. AND YOU KNOW, THE CLIP YOU JUST SHOWED BEFORE ILLUSTRATES THE CONSEQUENCES. A PRESIDENT CAN GO AN ASSASSIN'S POLITICAL RIVAL AND SAY IT'S AN OFFICIAL ACT AND YOU CAN'T PROSECUTE HIM? THAT'S LOONEY TUNES, TO PUT IT MILDLY. SO NO, I DON'T THINK THAT IS THE WORRY. THE SUPREME COURT AGREED TO HEAR THIS CASE AND SET A FAIRLY SLOW SCHEDULE OF HEARING IT ON APRIL 22ND. YOU KNOW L TRUMP WANTED A LONGE SCHEDULE, BUT STILL, THAT'S A LONG TIME. AND FOR REASONS THAT WE CAN TALK ABOUT, WHEN YOU START DOING THE MATH, THERE IS A REAL RISK THAT DONALD TRUMP COULD REVADE JUSTICE AND EVADE THIS PROSECUTION. >> IT SEEMS, ACCORDING TO THE QUESTION THAT THE SUPREME COURTR IS ASKING, THAT THIS COULD BE A NARROWER ARGUMENT IN FRONT OF THE SUPREME COURT. THERE MIGHT -- APPARENTLY THERE WILL BE NOTHING ABOUT DOUBLE JEOPARDY. BECAUSE THOSE ARE THE TWO QUESTIONS THE TRUMP LAWYERS BROUGHT TO THE SUPREME COURT, THE DOUBLE JEOPARDY AND THIS IMMUNITY FOR OFFICIAL ACTS, OR AS THE TRUMP LAWYERS PUT IT, ACTS THAT ARE AT THE OUTER PERIMETER OF OFFICIAL DUTIES. IT SEEMS THAT DISCUSSION ABOUT THE PERIMETER AND WHAT IS AN OFFICIAL ACT WILL BE THE FOCUS OF THIS ARGUMENT. >> THAT'S EXACTLY RIGHT, DONALD TRUMP'S LAWYERS HAVE MADE ANOTHER ARGUMENT WOULD DOUBLE JEOPARDY, WHICH WAS EVEN MORE BOGUS THEN THEIR ABSOLUTE IMMUNITY ONE. RELEASING S SOMETHING. YOU'VE GOT TO TRY TO COME UP WITH GAN ARGUMENT THAT'S WEAKE THEN THE ABSOLUTE IMMUNITY ONE. BUT DONALD TRUMP'S LAWYERS MANAGED TO FIND IT, AND THE SUPREME COURT DID NOT BOTHER WANTED TO HEAR THAT PIECE OF IT, YOU'RE ABSOLUTELY RIGHT. SO IT DOES TURN ON THIS T ABSOLUTE IMMUNITY THING. AND THEUN WAY THAT THE COURT HA WRITTEN IT -- IT SAYS ALLEGED OFFICIAL ACTS. AND BY THE ALLEGED OFFICIAL ACTS, THEY DON'T MEAN WHAT THE PROSECUTOR IS ALLEGING, THEY MEAN WHAT DONALD TRUMP, THE FORMER , PRESIDENT, IS ALLEGING AND THE IDEA THAT SOMEONE CAN JUST STAND UP AND SAY, WHILE, BECAUSE I WAS A FORMER PRESIDENT, I'M ALLEGING THESE ARE OFFICIAL ACTS, LIKE TRY TO LAUNCH A COUP ON JANUARY 6TH, THAT'S AN OFFICIAL ACT, AND NOW YOU HAVE TO EVALUATE MY IMMUNITY CLAIM. THAT CAN'T POSSIBLY, LAWRENCE, BE WHAT THE LAW IS. SO I'M NOT WORRIED ABOUT THE SUPREME COURT ULTIMATELY DOING THE RIGHT THING WHEN THEY HEAR THIS CASE. I'M WORRIED ABOUT HOW LONG IT IS GOING TO TAKE FOR THE SUPREME COURT TO DO THE RIGHT THING URAND WHETHER THE AMERICA PUBLIC IS GOING TO BE DEPRIVED IN THE INTERIM OF ACTUALLY DONALD TRUMP EVER REACHING JUSTICE. AND THERE'S ONE OTHER POINT I WOULD MAKE ABOUT THIS, WHICH HAS TO DO WITH PROSECUTORIAL NORMS. BECAUSE THERE IS AN INFORMATIONAL ASYMMETRY HERE. DURING THIS WHOLE DELAY PERIOD, WHILE TRUMP, WHILE THE SUPREME COURT HEARS TRUMP'S CASE, TRUMP CAN GO OUT TO THE CAMERAS AND SAY THE CASE IS BOGUS AND ATTACK JACK SMITH AND ALL SORTS OF STUFF. FEDERAL PROSECUTORS DON'T ACT THAT WAY. THEY ONLY OSGET TO SPEAK THROUG THEIR FILINGS AND THEIR PRESENTATION OF EVIDENCE. SO NOW F WITH THESE MONTHS AND MONTHS OF DELAY, THAT'S GREAT FOR TRUMP. HE IS GOING TO GET TO CLAIM HE'S BEING PERSECUTED WITHOUT WI THE PUBLIC EVER HAVING THE OPPORTUNITY TO ACTU
