everything you did is not presidential, so to speak. to saying now the supreme court will look at how a case normally goes through to get to the supreme court. this is significant, ian. >> it is. i think jack smith's being very smart trying to make this move as fast as possible. you don't want a situation where like on october 20th the supreme court throws out a conviction because of some procedural rule that no one anticipated. ordinarily i advocate for the supreme court to do as little as possible. you want narrow -- that's not because i don't like the supreme court. that's good judging. you don't want judges to overreach, but in this case i think we want the court to give us as much guidance as possible as to how this trial is going to be run. it's an unprecedented case. >> right. >> it's a case where the stakes are enormous. the voters need to know if this man is a convicted felon when it comes time for the election and so i am hoping that the supreme court is going to tell the trial judge what she needs to know so she can conduct the trial. she can then follow the rules that are given to her and we'll see if he's convicted. >> that trial is in march. that's part of the issue here, right? that's an ambitious trial date three months away in march. there we go with air quotes. saying it does go through. assuming the supreme court says i want to decide this before that march trial date, we'll get that deadline. it's before the supreme court's term ends. tell me what the merits of this argument are. >> sure. even if it's not all resolved by march, it certainly resolves the whole appeal on a timeline far faster. to ian's point, if you were -- and you had that graphic up. >> let's put it back up. >> if you were to have run through the entire process of appealing to the district court, perhaps the whole d.c. circuit court of appeals, that could be months, if not years, tied up in litigation. by fast tracking it, they're moving things along very quickly. on the substance of the former president's two arguments, one, that he's immune by prosecution. >> flush that out for us because he's saying, "whatever i'm accused of was when i was the president and therefore" -- >> what was the term, the outer limits of my presidential duties? that's an extension of the argument raised in the nixon case. it's part of my duties as president or an extension of them and the other one is based on the concept of double jeopardy in the constitution i can't be tried twice for the same thing because i was impeached and acquitted. these are both largely nonsense arguments. we were talking about this in the green room, ian and i. they really aren't good arguments and gets to the point of is the supreme court going to actually take them on or figure out a way to make this go away in some way? they're really not -- and this is not a criticism of the former president. they're just not strong legal points and it's hard to see how you win on either of those arguments. >> first of all, don't ever discuss anything we talk about in the green room, but this is an actual risk. we're talking about the arguments on the one hand novel. on the other hand, like this supreme court may or may not find in jack smith's favor and think to themself yeah, you know what? trump has to account for whatever he did as long as it's on the outer skirts of his presidency, what do you think about the risk jack smith is taking, particularly with the second argument? we know obviously double jeopardy attaches for criminal prosecution, but this was a legislative impeachment. why should it? >> yes. double jeopardy shouldn't be an issue at all here. the reason why is because in order to have jeopardy attached, in order for double jeopardy to come into play, there has to have been criminal consequences in the first proceeding. being fired from your job is not a criminal consequence. being disqualified from having a job in the future, even if that job is president, is not a criminal consequence. the immunity claim is slightly stronger, but i want to be clear just slightly here. there are cases showing that in some cases a president can be immune from some civil lawsuits. the main reason for that is because anyone can bring a civil lawsuit against anyone. i could sue you tomorrow. elliott could sue you tomorrow. you could be sued by 10,000 people tomorrow. >> let's not. >> thank you. >> a lot of lawyers. we like to sue each other. >> it's kind of what we do. the idea behind the presidential immunity decision is you don't want the president to be so bombarded with lawsuits he can't do the job of president. that just doesn't come up in the criminal context. the only people who can bring a federal criminal prosecution is the department of justice. >> the broader point, sort of why we impeach as americans, what the point is it's not to punish someone who did something wrong. it is to insure integrity of our systems of government. the point of an impeachment is to remove someone from office if they have transgressed in office. the criminal process is about sending people to jail and something totally different. now to push back a little bit on what this supreme court might do, it's a conservative court and so on, we aren't talking here about abortion or the death penalty or these sort of controversial social issues on which you can kind of predict where the members of the court will fall out. these are sort of integrity of government points and far more straightforward and i think far more emotionally fraught. >> speaking of the integrity of government, rudy giuliani who obviously used to be america's mayor, they say -- >> that guy. >> -- that guy, he is in the midst of defamation damages portion of a trial for what he said about two election workers. the jury selection is beginning. they were asked if they ever used the phrase let's go, brandon, used in a lot of right wing circles to insult joe biden. what does that tell you that that's being used? >> look, there's a lot of strong rhetoric that obviously gets thrown around. that's not a thing. if i'm going to analyze it as a defamation case, you could insult the president of the united states and that's not defamation because you're not making a factual claim. i think that rudy giuliani has bigger problems. i think the big myths of what trump has done, the attempts to overturn the election, the size of the conspiracy, one consequence of this is i don't think this presidential immunity thing will have legs. i think even this supreme court will probably turn that away, but this case, like these prosecutions, could have many trips to the supreme court and i'm more worried that they find some narrow issue to rule in trump's favor in the future than i'm worried that they'll have a sweeping declaration that if you're the president of the united states, you can commit crimes with impunity. >> we'll see. it's not bigness. it's huge. elliott and ian, thank you both so much. joining me now to talk about donald trump's looming legal issues, former trump attorney and fixer michael cohen, host of the political beatdown podcast and author of the book "revenge, how donald trump weaponized the u.s. department of justice against his critics." michael, good to see you. first of all, when it comes to trump, you called it. he did not testify today. you were adamant he probably would not. why do you think he ultimately did not? >> because he's scared and rightfully scared. everyone is talking about how potentially the lawyers gave him the right advice, that he finally took the right advice. knowing donald for a decade and a half, i can assure you it had absolutely nothing to do with advice of counsel. he knew that this was going to sink him. he knew that he could be brought up on perjury charge and so instead he decided to go with the easy way out and make the claim that he's already testified, he's already given enough and then look to see what he did. he starts to put out on his social media platforms all the attacks because again, donald cannot be at fault. he attacks judge engoron. he attacks attorney general tish james. he attacks me all in one single post. >> when you look at all that combined, you're right. his counsel did allude to the gag order, but one could avoid offending a gag order and testimony. he knew weeks ago he had already testified. that can't be the reason. i'm curious about this because as you well know, trump's image as a successful businessman was very crucial to his win in 2016, this serves to maybe be an incident where he would not have that power or brand anywhere near what it was in 2016 in the public's eye. will 2024 campaign? >> you would think that it would have the same effect. they voted for him because he portrayed himself as this great businessman. i'm really rich. i'm much richer than people even know and they bought the brand of donald trump. it is irrefutable that that brand is completely tarnished, but that's not going to stop the loyalists. they're now loyal to the brand even though the brand is tarnished. so they're not stopping and i'm talking about the magas that are so entrenched into the cult of donald trump that they don't care. they're more about the brand of racism and sexism and misogyny and xenophobia and anti- semitism than how much money donald has. >> we'll see how that ultimately turns out. you heard this lead story, the news about jack smith leapfrogging going right to the supreme court saying i'm not waiting for the appellate courts to weigh in whether trump has presidential immunity for everything he did while he was in office. he leapfrogged. it's not trump's motion or trump's team's filing. it's jack smith. is he outsmarting what is likely to have been trump's strongest claim here? >> it doesn't take much to outsmart trump's legal team. jack smith is a beast. jack smith is a beast. he knows exactly what needs to be done and he's doing it really incredibly well. he's not going to let trump do what we all know trump does best and that's delay, delay, delay. so yes, you're right, laura. he beat him to the punch. he beat that whole legal team to the punch and he's now going to have the supreme court weigh in on it for an ultimate decision. could you imagine that a president is entitled to immunity for life on anything that they do? i mean it goes against the very fabric of our constitution and american democracy. they're making the president into a king which, of course, is exactly contrary to the constitution. >> that's the exact argument of the lower court, the district court, who said look, basically just because you are president doesn't mean everything you do then becomes presidential. let me ask you about mar-a-lago because we've got some pretty exclusive reporting tonight that a former mar-a-lago employee, now a witness in the classified documents case -- there are a lot of cases -- that that former employee was contacted by trump and his associates the months after he quit his job and offered, of course, legal representation to this person who got complementary tickets to a golf tournament offered, repeated reminders to come back to work for trump. what do you see when you hear about these interactions and these come on back moments? >> donald needs to understand and so does his team that mar-a- lago is a cesspool for leakers and people who don't want to get caught up in donald trump's problems. so there's as many people as that are there are as many people who are potential witnesses for jack smith and other investigations. i'm shocked. first of all, when he offers them free tickets to a golf tournament, you realize that those tickets cost donald trump less than if he got him a burger at mar-a-lago. they cost him absolutely nothing. they're generally at his golf course with liv golf. it costs him absolutely nothing. there's thousands of people that show up for these tournaments. what's the difference if two, four, six, eight people additional show up? there's no cost which to get on. so he's offering the guy absolutely nothing. >> how about the lawyers, though? how about offering lawyers? >> good. i'm glad you brought that up because that was next on mihm list. remember, when bob costello reached out to me and what they tried to do is they will load you up with a lawyer for the sole purpose not to protect you, but to protect the king, to protect donald. they are passing along all the information and let's also not forget this happened with paul manafort with his lawyers when his lawyers were passing to donald's lawyers all the information that they were supposed to provide to come team, to the congressional committee in the interrogatories. they are not doing anything to benefit anyone other than donald and this man was smart. i don't know who it is, but this man was smart to walk away. he's already seen the damage that donald trump brings to people's lives like mine, like other people. he was smart to walk away. >> michael, i have to ask you. you know rudy giuliani is in the middle of the damages portion of that defamation trial. when you look at between the gag order in new york and what's going on with rudy giuliani's case, it must hit pretty close to home. >> oh, it hits very close to home and the amount of vile that gets spewed on social media as a result of donald's post and the comments by allina elena habib. let somebody else handle it. i've done in my opinion more than my share. let somebody else step up and have to deal with the repercussions. >> that tells a lot about what it's like being a testifying witness in these cases and that's really the point of all the gag orders. michael cohen, thanks for stopping by. >> good to see you, laura. now do you remember that $16 fast food burger that went viral a while ago? well, is that how the economy feels to you? "shark tank's" kevin o'leary is here to explain what's really going on next. tonight there are some new concerns for president biden in the race for 2024 because fresh cnn polling shows the president is losing ground to donald trump in two key battleground states. i'm talking about georgia and also michigan, which by the way, were two of the five that biden turned from red to blue in 2020, if you can remember. the new number shows president biden may have quite the achille's heel and according to cnn polls, the majority of voters in both michigan and georgia say biden's policies have contributed to a worsening personal economic view for them. joining me now for more perspective, "shark tank" judge and chairman of o'leary ventures, kevin o'leary. so good to have you. thanks for joining us tonight. i want to talk to you because you are the absolute expert on this. i want to talk about feelings. i know you know them well, the feels people have when it comes to the economy. despite that there are some positive signs, people don't feel like it's going well. why is that? >> well, let's think about something that occurred over the last nine months, ten months actually. so if you think about the economy, we've never taken rates from basically zero up this fast before to 5.5% terminal rate and so there's 100 million people in america, almost a third of the voting population, that have never lived through inflation, never seen rate hikes like this, never dealt with the consequences of them in housing and food costs and everything else and now their feelings are hurt because they don't know what this is, never lived through it. they're the younger cohort, but they vote and they're not feeling so good right now and that poll, you're talking about the "wall street journal" poll i think which, by the way, went all around the world in the last 48 hours. it had some real consequences in terms of what's going to happen next. >> well, next you mean for maybe the november 2024 election or what the feds might do? what are you thinking? >> no, no. it's a rather interesting thing that's occurring. think about this. if you are the norwegian sovereign wealth fund or the sovereign wealth fund of abu dhabi which makes $500 million every 12, 14 hours, where do they put it? they put it in the united states. that's primarily where they put it to work and they're looking at these poll numbers to decide what sector do i really want to put it into? they haven't vote. they don't care about voting. they're trying to figure out are we going to get biden's policies or potentially trump's policies? they'll know more on january 15th when he comes or not the candidate, but the point is if it's going to be less regulation and more pro energy and basically an environment which is very pro business for small companies in america, which is 60% of the economy, you want to put your money to work in american companies that were smaller like the russell 2000 and remarkably and this is what i find so interesting, over the last two months, fund flow into smaller companies in russell 2000 are extraordinarily high. the money is voting before the voters do on political outcome. policy drives capital. it has no allegiance . it doesn't care who wins. it looks for the path of least resistance with the highest returns and right now that money is loving american small businesses because they think there's a 50% chance trump's going to win. >> well, which means a 50% chance he might lose. how do you project something and think about the economic picture when the odds are 50/50? what do you think the economic picture looks like in 2024, november specifically because as you can imagine, yeah, there are the primaries, the votes beforehand, but until the next president is installed not a lot of that policy can actually get fully implemented. >> no, you're right, but think about this. if you're trying to allocate capital -- i do this every day -- i have to take chances. i have to make bets. i looked at those poll numbers and those results, i've never seen so many phone calls from countries outside of -- i'm an investor, sovereign wealth adviser, et cetera. so that thing went out there and people went wow, what do we do about this? why don't we but some bets on, not all of it. let's say you're going to allocate 40% to the u.s. maybe i'll put 15, 20% to work and that's what's happening. nobody knows with certainty and elections are crazy outcomes as we know with certainty. let me give you an example. go back to the numbers in this poll. there are material differences around the economy, crime, border security, inflation issues, the war. again, you don't care about the politics. you care about the policy. >> yeah. >> so you look at it and say to yourself well, i think right o chance. i'm going to allocate something. the economy's doing quite well actually. we look like we're having a soft landing, but if you're betting money, you're starting to realize that wow, this outcome is at least 50/50 and you're going to put 20, 30% to work now before january 15th. i know these are crazy times and everything else, but if you have to put money to work every day, you're betting on the american economy like you didn't two months ago. >> i guess you probably can't bet on say what's going on on x. i want to ask you quickly about this because elon musk, he has now reinstated the account of the conspiracy theorist alex jones. they are already having a hard time with fleeing advertisers. we know this is the case. does allowing this person back on that platform make sense to you financially? >>. >> oh, my goodness, that's a tough question. you brought up a really good issue. the only platform in america on social media that's not growing right now is x, formerly twitter. i spend about 2 million a month on social digital buys with my 40 plus companies. they're all private, but nine weeks act we stopped investing in twitter and only because it wasn't giving us good cac, customer acquisition cost numbers and roas, return on advertising spend. maybe it is. probably it is, but we review this