So much for joining us. Ac360 begins right now 360, just 33 days before the 2024 election, the judge on sealed jack smith, hundred and 65, page argument for why donald trump should still face charges for trying to overturn the last one. We'll tell you what's new and whether or not his revised case might survive the supreme court challenge also tonight, john king all over the map talking young voters in michigan whose ties, the middle east could determine their vote. And with the race so close, perhaps tip the election. And later gary tuchman walking some of the worst hit parts of hurricane helene's path of destruction, or even almost a week later, the only way in its by air or on foot good evening. Thanks for joining us. We begin with breaking news in the case of conservative supreme court majority put on hold, if not on ice, late today. Judge tanya chutkan unsealed. Special counsel, jack smith's argument for reviving the election interference case against donald trump. Now smith as reframe the charges in a way he hopes will now conform to the supreme court's ruling on presidential immunity. And was stan what will all but certainly be more scrutiny from the nine justices. The brief filed under seal last week is heavily redacted, but still reveals plenty of new evidence that smith intends to use some of it, apparently confirming the worst about the former president's reaction been learning his vice president and his family had been forced to flee a mob of trump's supporters bent on hanging him. That's pence in his security detail and his family fleeing right now i'm quoting from the filing upon receiving a phone call alerting him that pence to take had been taken to a secure location. Person 15 russia the dining room to inform the defendant and hopes that the defendant would take action to ensure pen to safety. Instead, after person 15 delivered the news the defendant looked at him and said only so what the filing also focuses on the trump tweet, which arguably put pence in such jeopardy in the first place and argued extensively for why it should be considered an unknown official act. Therefore, not immune from prosecution. That tweet, you'll remember said pens quote didn't have the courage to do what should have been done. So those are two highlights joining us now with more cnn chief legal affairs correspondent paula reid. What more are we learning from this new filing? i understand in this new filing, we're really seeing the complete picture of how the special counsel believes it could convince a jury that trump's efforts to subvert the 2020 election were private actions that he was acting as an office seeker, not an office holder. And this is key because in july, the supreme court ruled trump cannot be prosecuted for official actions. And then this filing prosecutors write quote, at its core, the defendants scheme was a private one extensively used private actors and his campaign infrastructure to attempt to overturn the election results and operated in a private capacity as a candidate for office and this filing also includes some never before for seen evidence. Prosecutors argue that thing it was like conversations with vice president mike pence or then chiefofstaff mark meadows, could all be used in their case, anderson, it's not clear that's going to work because the supreme court also said official actions cannot be used as evidence in why is this coming out now? well, this was up to the judge, tanya chutkan. It was her discretion to release this enormous filing from the special counsel and special counsel short time ago, seven weeks ago, they submitted this approximately 200 page argument laying out what they believe their case looks like after the supreme court's immunity ruling and its judge chutkan's job until look at the supreme court ruling, look at the case, and determine what survives. But it was her choice to make this public again, just over a month before the election. And how does the trump campaign responding? well, of course they're not happy and they are pivoting to the political former president trump calling this quote a hit job. And they're trying to tie it to the campaign even to last night's debate. In a statement from the campaign, they're saying, quote, the release of this falsehood written unconstitutional january 6 brief, immediately falling. Tim walz's disastrous debate performance is another obvious attempt by the harris biden regime to undermine american democracy and interfere in this election. I'll repeat, even though this was the special counsel's argument, it was the judge's decision to release this, and i also want to note the supreme court really had a big role in delaying a possible trial here because they waited from december of last year all the way to july to weigh in on this immunity issue, making it impossible for special counsel smith to bring this this case to trial. And this this filing is really the last opportunity voters will have likely to see the evidence in this case. And the former president is reelected, this case will be dismissed. Even if he's not, it will proceed, but it's unclear, anderson what lies ahead for this prosecution all right. Paul reid, thank you. Before in prison has been posting about this online, including this warning using the justice department of violating its own guidelines. And i'm quoting from him now for 60 days prior to an election, the department of injustice is supposed to do absolutely nothing that would taint or interfere with the case. They disobeyed their own rule in favor of complete and total election interference. He goes on, i did nothing wrong. They did the case is a scam, just like all the others, including the documents case which was missed. That's not all just moments ago he posted this. I didn't rig the 2020 election. They did joining us now, two former federal prosecutors bestselling author jeffrey toobin, cnn anchor laura coates, also with us former fbi deputy director andrew mccabe, and retired federal judge, nancy gertner, jeff what do you make of the details that jack smith has laid out and do this? think they'll survive trump's claims of immunity. This is an incredibly difficult task for judge chutkan because these categories, official and unofficial, are very difficult to define in the supreme court didn't really come up. They were they were vague in defining what they are. Some of this is i think clearly on the line of bon official trump's meetings with his campaign staff, with his campaign lawyers. I think that certainly will count as an unofficial, the toughest thing for jack smith and the most difficult question for judge chutkan is what about the conversations with mike pence? because smith argues that pence was operating either as a campaign worker, essentially working with trump on the campaign or as president of the senate, as in the legislative branch, in his oversight role on january 6. Those are tough arguments for jack smith to make but the evidence from from pence is very damaging to trump. So smith is going to try very hard to get that stuff in law, the special counsel says that trump quote, explicitly excluded a white house attorney in favor of private counsel. And one of the meetings in which the then president allegedly tried to convince pence to reject the election barrow votes. The filing reads and i'm quoting, it is hard to imagine stronger evidence that conduct is private, that when the president excludes his white house counsel and only wishes to have his private counsel present. What kind of pushback do you think trump's legal team might offer on that point? well, whatever pushed back, they offer is going to pale in comparison to the role of what white house counsel is. White house counsel? so it's not the private attorney of donald trump or any particular president. It's for the office of the presidency. They're concerned with what's happening in the current administration and in the prospective administration's why they want to preserve things like what would be the conversations presidential privileges, and the like, things that would go to the very heart and core mission of the office. If you exclude that particular person and say, i want my personal attorney instead, you really undermine your ability in the future to say no, no, no. I was asking because i'm the president of the united states yet and still the likely say, well, counsel was counseling perhaps donald trump was not essentially knowledgeable about the distinction he had an attorney present that's what he was trying to do and could been later go back to white house counsel, what we see in this filing though, does not suggest that they will be able to have a successful argument. This comes down to one very basic thing jeff is right, that it's vague, but either you were acting as somebody in pursuit of an office or you were in office holder, if you were an office holder you have to abide by the parameters of the office and you cannot have these fall again, detours into personal behavior, andrew, i mean, you see the complaints from trump's and the doj's violating its own rules about not making public statements about an investigation too close to an election. Obviously, trump didn't care about that when james comey inform congress, and notably it became public for the fbi was reopening the clinton email investigation agent days before the 2016 election, you were part of the clinton investigative team. I'm wondering what you make of the former president's argument tonight i don't find it particularly persuasive as you as you might guess, a couple of reasons. One, this is a doj rule, it's a policy and it's certainly one that can be waived by the attorney general anytime he thinks it's necessary to do that or in the interests of justice and the second big piece here, anderson is directed at the investigators, the fbi the u. S attorney's, the line attorneys who are working with agents on an individual cases. And it's a caution to not take any over public actions, things that would be seen in the runup to an election. We're long past that point in this case, these are not decisions of the department of justice. These are decisions of the court and the judge decided to release this this filing today. And that is not something that the department have. Justice can control. So it's really not a matter that comes within the scope of that policy whatsoever. Judge gertner, i'm the special counsel is arguing trump's interactions with pen should be allowed as evidenced because the constitution specifically excludes the executive branch from the certification of electoral votes. And according to the filing, the former president unquote sought to him encroach on power specifically assigned by the constitution to other branches to advance his own selfinterests and perpetuate himself in power contrary to the will of the people. Do you think that argument will hold up in court? i mean, the then president tweeting about mike pence in while mike pence and danger was was that not an official act of the president well, first of all, i think i disagree with jeff because i think the pence accusations here, the pence data i think is new and that's the difference between what we saw it with respect to the january 6 committee and now so there what jack smith is trying to do is show that pence was not pence and trump were not acting in any official capacity because there was no official capacity beyond certifying a ministerial just counting the votes and nothing more i also want to follow up with laura coates said, which i think is very telling, which is that in many of the conversations with pants, it was not just not flooding the white house, counsel, but it was also campaign workers were in many of these conversations. It was clear then or it should be clear to a jury that what pence was was again, acting as an office holder as office seeker rather than office holder pence. Smith goes into great day the tale about how the constitution expressly limits the sitting president and the sitting vice president's role in the electoral counting process. So that someone can't continue their authority beyond the time that they're term runs out the constitutional line as well as an evidentiary line and evidenced line here that would pence was doing in these conversations with trump were not official. They were campaign discussions. Jeff, a big part of the special counsel's argument is that a law called the hatch act allowed trump's white house staff to basically wear two hats essentially separating their political advocacy from their official duties. The special counsel claims and i'm quoting when the president acting as a candidate engaged in campaignrelated activities with these officials are in their presence. He too was not engaging in official presidential conduct. Well, the hatch act is a law that says you know, highlevel government employees can't do politics. They have to do their job and so what jack smith is trying to do is say that's the line between official and unofficial. It's an understandable effort because these vague categories, at least the hatch act it gives give some form to that those distinctions, the problem with that argument is that the president himself is not covered under the hatch act the president is allowed to do both his official duties and of course to campaign so i think it helps helps him somewhat to try to draw this line, but since the main character in the drama is not covered by the hatch act it's not, it's not quite as helpful as he wants the filing references contemporaneous notes that vice president pence at the time during a wrote during a meeting with the former president and my lawyer, john eastman was asked to explain to pans why he should reject the electoral college votes how important would those contemporaneous notes be in a trial well, you know, we've almost always gone back to what the jim comey contemporaneous notes things was. Right. And that was because contemporaneous notes actually buttress the credibility of a person who actually wrote them. Why it's close in time to when their memory would have been freshest, they would not have essentially time to concoct a story or change it and it lends itself to feeling more truthful. That's great in front of a jury or whoever is the trier of fact that it's the judge in this case solely because it's so see you, they're not trying to go back and shift in narrative or have revisionist history the contemporaneous notes written close in time are very important. It also shows you that there was manipulation that they're arguing was trying to happen there. They were trying to look at him, not as somebody who was in executive role, but his legislative administerial capacity and that could bode very well for the prosecution to suggest that they went to lean on him as a running mate, as a candidate, not his role as the vice president. Andrew i prosecutors have said that they have a witness who's going to testify that the former president said to the first lady, melania trump and ivanka trump and jared k