an extraordinary case. that's tonight, on news night. ♪ ♪ ♪ good evening, i'm abby philip in new york. tonight, the special counsel -- big on the supreme court. how big of a bet? well, every single check and balance on all presidents might be at stake. jack smith is wagering that the justices will side with him. he is wagering that the high court will see the wisdom in answering this question sooner rather than later, is donald trump immune from prosecution? now, the special counsel rights like he's running out of time, and in a way, he is. the normal appeals process would give no guarantee that the high court would consider the immunity question before next november. now that is, i don't have to remind you, when america chooses its next president. how the court rules may reshape democracy as we know it. the justices have never said yes or no that a criminal can be criminally prosecuted for crimes they perpetrated while president, a ruling that the constitution does not offer a get out of jail free card would put trump in a media election altering legal peril. but a ruling that the constitution puts a legal bubble around presidents would make trump and anyone that follows him in the oval office truly above the law. joining me in moments are two of trump's former lawyers. but first -- joining me now is democratic congresswoman zoe lofgren. she's a member of the house january 6th committee, and she also worked for congressman john edwards in 1974 when president nixon was facing impeachment. congresswoman lofgren, thank you very much for joining us tonight. i want to start by just asking, are you concerned about this precedent that could be made from the supreme court for future presidents if they decide against special counsel jack smith? >> well, that would be extraordinary. and really, the president's u.s. versus nixon. i was actually on the staff and in washington when that case was decided, and the decision was that the president doesn't have absolute immunity. and in that case, of course, nixon was required to hand over the tapes and then, of course, resigned shortly thereafter. you know, this court has occasionally strayed from precedent, but it would be really shocking if they did so in this case. >> ginni thomas, the wife of supreme court justice clarence thomas, was involved in efforts to overturn the 2020 election. and you think justin -- justice thomas should recuse himself in this case? >> well, i do. thinking back to u.s. versus nixon, justice ryan quickest excused himself merely because he had worked in the department of justice and he knew some of the individuals who were the subject of the inquiry. obviously, there is a lot of public, well, mrs. thomas came before the january 6th committee, we had her texts and showed her involvement with some of the principles that were being prosecuted. i think it would be prudent for the justice to recuse, just -- judge rehnquist did those many years ago in 1974. >> and tonight also, cnn is reporting the special counsel smith might try to use data from electronic devices to show jurors when trump was using twitter on january 6th. and you believe that there is electronic data that, for example, the house january 6th committee was not able to get, that the special counsel might have access to, and that could be important in this case? >> well, i don't know. because as you just mentioned, we are not able to get some of that information. however, i think based on public reporting, it does appear that there was >> reporter: -- delivered to the doj and it may be revealing. we will see, one thing that we do know is the then president did nothing to stop the riot. in fact, it was furthering his ghouls, which is to use big island -- to use violence to overturn the election. and the fact that he did nothing for so long while calling individuals during the riot, trying to get them to continue, this may buttress that. but we will see when the trial commences. >> yeah, we will indeed. congresswoman zoe lofgren, thank you very much. >> any time. now i want to bring in two former donald trump attorneys, jim parlatore and -- schultz. tim, i want to start with you. if you are jack smith, would you have done this? >> really, there's no downside to him doing it, right? there is a nuance here. so the nixon case didn't decide whether the president had absolute immunity or not. but what it did do was show that in eight weeks from the time that the -- judgment was filed until the time the supreme court ruled with eight weeks. and the supreme court is no stranger to that, because that's what they did back fans. they ruled at that point in time on eight weeks in that case. so there's really no downside for jack smith taking on this matter and aggressively pursuing it. so in that regard, no, i would've done the same thing. >> and tim, do you think the court grants this request ultimately? is this something that is both in the interests of the special counsel and the former president? i think we are having some trouble with tim. so jim, i will put that question to you, do you think the court ultimately grants this request? >> so look, the court -- jacks mitt is asking for two things. one, he's asking to skip a step. he's asking to skip the intermediate appeals court, which is the d.c. court of appeals, and then go on to the supreme court without hearing that, without having that intermediate appeal. and that is certainly an extraordinary measure. it doesn't happen all the time, but like i said, back in nixon, it did happen, and it only took eight weeks. so i think this court is going to take careful judgment on that. i'm not sure whether he's successful or not. it all depends on whether this court really wants to hear from the d.c. circuit. the d.c. circuit is filled with supreme court justices in waiting. a lot of the supreme court justices, you know, over the years have come from the d.c. circuit court. they may want to respect that process. but in the end, i think a compelling argument can be made here for the speedy trial provisions and in the public interest to get this thing over with. either he has immunity or he doesn't, and the supreme court is going to have a ruling on it either way. so i think that's really what's want to drive their decision-maker. >> yeah, and of course, this is a court, the supreme court, that president trump put three of these justices on the bench. at the same time, it's also a court that has consistently ruled against him in some of these cases related to january 6th. so, is this something that you can really make bets on, or is this really going to come down to the actual arguments here that are presented to the justices? >> look, i think they really have to take a hard look at the public interest argument. i don't put a lot of stock in the fact that they were appointed by president trump when he was president, the fact that three them were appointed by him. i don't put a whole heck of a lot of stock in that. i think they're gonna look at this case and make a decision based on the publics interest. and that speedy trial provision is certainly in the public interest. and quite frankly, it's gonna be fairly difficult for president trump to make the argument, hey, we want to delay all of this, by the same time were saying, hey, all these cases are killing me. wouldn't he want to get them over with as well? >> if or when the high court eventually gets this case, what do you think is the most effective argument that trump's lawyers have for immunity? >> look, they're trying to take a civil -- what is typically a civil -- on amini that's afforded to a president in the civil context, meaning that things that are close to the decisions that he makes that our -- perimeter of his official duties. in the civil context, he would be immune from suit. they're trying to apply that in a criminal context. and i think that's going to be very difficult hurdle for them to climb over. >> what happens then if the supreme court rules in favor of trump? what does this mean going forward? to all these election related cases against him go away? >> yeah, they do, they do. if the supreme court rules in trump's favor, that means he's immune from prosecution in the jan sixth case. i don't think that apply to the documents case, because, you know, that obviously happened after he was in office. that pertains to documents that he retained after he was in office, that he continued to retain. i don't think it impacts that documents case. but it certainly has -- is going to impact the cases, the federal case brought against him in the, you know, in the case that involves the efforts to defraud the united states government, as alleged by jack smith. >> do you think would have any impact at all on any other people who are caught up in january 6th related activities, any other defendants if trump is ultimately ruled to be immune, they are not immune, but he is? >> well, i think that really is the presidential -- these are presidential immunities that he is claiming. so i don't know if it is going to have much impact on anyone surrounding him. but certainly, the person that thereafter in this case is donald trump. and if that case goes away, the rest of them likely trouble as well. >> mm. jim schultz, thank you so much for joining us tonight. and next, carl bernstein is standing by for us. why he says this move will have extraordinary consequences. plus, more breaking news in that case that is captivating the nation. the texas supreme court rules against a woman looking to have an abortion under the state medical emergency exception. so now that she's traveling out of the state to get one, what does it mean for her back home? tonight, the monumental development on whether donald trump, or any future president, for that matter, it will have to face accountability for alleged federal crimes committed while in office. special counsel jack smith and his team are pointing to a similar move that was employed in the u.s. versus nixon case where the justices rejected that president nixon's claims that he is protected by presidential privilege. joining me now is carl bernstein, he, of course, with bomb bob woodward well wrote the watergate scandal and knows a lot about that saga. bob, what do you know, carl, sorry -- carl, what do you think happens for this country if this court, which we all know is conservative leaning, which we all know donald trump appointed three justices on, what happens if they does have immunity? what president putin said? >> it sets the precedent that the president of the united states is above the law. the odds of that happening, given the nixon precedent, are somewhat dim. you would have to assume that this court, which actually has been quite unhappy and this is for us in some instances with the way that donald trump has railed against the judiciary, decided against him, ordered him to turn over. his tax returns have not been very favorable to him. i think that we can, perhaps, expect that this is going to be a judicial consideration based on the justices on the reading of the law and precedent. maybe an exception might be clarence thomas who probably ought to recuse himself, but probably won't. we don't know what is going to happen. if, indeed, trump is upheld in maintaining that he is above the law and executive privilege holds in this instance, he's not subject the same laws and procedures as other citizens of the united states, then of course some of these cases are going to go away. but not only will some of the cases go away, but majesty of nixon versus the united states will disappear. >> reporter: what about if the other thing happens. if he is not found to be immune, he is running for president of the united states. there is potentially going to be a trial in the spring on this matter. what would that signal about how this next election will go for trump? >> i think we need to step back and let's look at the wide view. we are in in extraordinary moment in american history in which this former president of the eight states, an accused criminal, is the subject of so much of our cultural debate, of our political debate, of our debate on almost everything having to do with politics in this country, with culture. and we never quite seen it phenomenon like donald trump. now we find him engaged with the highest court in the land. he is already engaged with congress, so we have a situation in which we have a country that is fixated, and the media, and social media, which is a fixated on donald trump to an extent that no former president, even nixon, as ever been the subject of. so we have to look at a phenomenon that we do not know what this means for this country. what we know is that this accused criminal, this former president of the united states who is accused of really sedition, the first american president to be accused of sedition, to undermine the very electoral system that he was sworn to uphold, that he could become the next president of the united states. this is a moment unlike anything. let me talk about richard nixon for one second. richard nixon was also an ex president who dominated his time as an ex president, gerald ford's presidency was held hostage to some extent by the whole issue of him pardoning nixon. so we have a precedent where an ex president takes the attention of the nation away from all of the things. >> reporter: it strikes me that this is a case that, if there is going to be a case that weighs whether a former president should be held accountable criminally, it is on this matter. it is on a question of if that president sought to overturn a free and fair election. this is unlike i think the nixon case, this is at the heart of american democracy in some ways. actually, speaking of that, just over the weekend i am sure that you have heard from, repeatedly over the last few days, talked, i guess you could say joking, wanting to be a dictator for a day. but he doubled down over the weekend, take a listen. >> i said i want to be a dictator for one day, but the new york times said, and you know why i wanted to be a dictator? because i want a wall, right? i want a wall, and i want to drill, drill, drill. >> we know that donald trump's authoritarian. there is nothing new about this and that's one of the issues in this coming election. does the united states want an authoritarian president of the united states as such as we have never had in our history with a possible exception of donald trump? >> reporter: i should say he claims that he is joking, but, to your point, this is something that trump flirts with quite a lot. >> i think it's more than a flotation. i think we have to look at the man, his life, record, going back to when he started in business as a con man that we need to look at his record as president of the united states, let's look at what happened on january 6th, let's look at what happened in the run up to the election, let's look at what happened to many things during his presidency. this is not someone with a great respect for the rule of law or the constitution of the united states. >> reporter: but, at the same time, if you look at the polls, if you're being generous a coin flip whether donald trump becomes president again, if he faces joe biden. the american people could very well choose someone with all of these characteristics, someone facing these criminal charges, someone facing these civil cases as well. this is, potentially, not a case where the democratic process prevents someone like a trump from being in office. >> absolutely. the question of whether in authoritarian can win the presidency of the united states, we have seen evidence that probably it is very fall possible. he won the first time that he ran for president of the united states, if you look at the great issue around the world is becoming the future of democracy. look at the numbers of countries that have moved from democracy to autocracy in the last five, ten, 15 years. not by coup, but by democratic a choice of voters. we indeed could be in that moment in this country. that's one of the great questions. this election is not just about donald trump, this case is not just about donald trump, it is about the people of the united states and what they choose in terms of leadership, of their values, their political values, their moral values, and we don't know the answers to these questions. we're going to find out. we know it is probably going to be a very close election. trump is certainly in amazingly good shape for someone given his record and his deeds and we will see where this case goes and where his campaign goes. >> reporter: and someone facing the really unprecedented legal troubles that he is indeed facing. carl, thank you very much for joining us tonight, as always. breaking tonight, a ruling against the texas woman who is seeking an abortion under the medical emergency exception. the cultural conversation about what this all means for women's next. plus, with ukraine on the brink, president zelenskyy is about to come face to face with u.s. lawmakers with a desperate plea. but, likely to get the cold shoulder. 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(♪♪) (♪♪) the new festive family meal. starting at $24. now celebrating at el pollo loco. ♪ ♪ ♪ new tonight, the texas supreme court reversing a ruling that allowed kate cox to get an emergency abortion hours after she left the state to have the procedure. now, that reversal follows the lower courts ruling last week that cox could get the abortion under texas as medical emergency exception. cox sought the action after learning that her fetus had a genetic condition that was fatal. now, in its ruling, the texas high court called on the state medical board to provide more guidance on that medical emergency provision. it also said that it should be up to doctors, not judges, to decide whether to provide an abortion, but that cox's doctor did not establish or a test that her symptoms or life-threatening. joining me now is erin carmen, a senior correspondent for the new york magazine. erin, this is really disturbing of the case. we have been following it for a while, but always knowing that kate cox's pregnancy, the clock was ticking. her decision to leave the state, what does that signal to you about what really was going through her mind and the decision she had to make about whether to press forward with a legal case that she was trying to make? >> abby we've heard a lot of cases of women being forced into terrible situations by these new laws that were enabled by the overturning of roe v. wade, but what makes kate cox's case unusual is that she was still pregnant going before a judge, they, gang as an adult woman, for an abortion. now, miners have had to do this for quite some time but it is deeply unusual, i think her lawyer said the last time was roe v. wade, for adults have to come before a judge and say i'm fearful for my life, health, and future fertility. her feet is as a condition incompatible with life. it is either going to die inside of her or upon birth, and she would like to tuesday and her pregnancy now for the sake of her life, her baby, and her future fertility. so i think there are 22 other women in texas who have gone before a judge after their pregnancies have already ended in a resolution. whether it is leaving the state to get an abortion or being forced to become septic and