With custom gear, get started today. Accustoming. Com erin burnett, Outfront Tomorrow at seven on cnn Closed Captioning is bronchi by you, cora, help maintain a healthy Urinary Tract with you, cora, having utis for ten years, you cora, we make uti relief products. We also make proactive urinary Tract Health products. You korea is a lifesaver tried today at your core. Com . Tonight on 360, just 33 days before the 2024 election, the judge unseal Jack Smith, hundred and 65 Page Argument for why Donald Trump should still face charges for trying to overturn the last one. Well tell you whats 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 michigan, whos 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 Helenes Path of destruction. Were even almost a week later, the only way in is by air or on foot. Good evening. Thanks for joining us. We begin with Breaking News in the case of conservative so the supreme Court Majority put on hold, if not on ice, laid today. Judge Tanya Chutkan unsealed Special Counsel, Jack Smiths argument for reviving the Election Interference Case against Donald Trump Now Smith has reframed the charges in a way he hopes will now conform the supreme courts ruling on president ial 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 upon learning his Vice President and his family had been forced to flee a mob of trumps supporters bent on hanging him. Thats henson, his Security Detail and his family fleeing right now im quoting from the filing upon receiving a Phone Call alerting him that pens to take had been taken to a secure location. Person 15 rushed the Dining Room to inform the defendant and hopes that the defendant would take action to ensure Pences 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 unofficial act. Therefore, not immune from prosecution. That tweet, youll remember said pence quote, didnt 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 while i understand in this new filing, were really seeing the complete picture of how the Special Counsel believes it could its convince a jury that trumps 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. He 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. Now this filing also includes some never before for seen evidence. Prosecutors argue that things like conversations with Vice President Mike Pence or then chiefofstaff, mark meadows. Could all be used in there case anderson, its not clear thats going to work because the supreme court also said official actions cannot be used as evidence and 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 courts immunity ruling and its judge Chutkans Job to look at the supreme court ruling, look at the case, and determine what survives, but it was her choice to make believe falling to moses, disastrous Debate Performance is another obvious attempt by the harris Biden Regime to undermine american democracy and interfere in this election. So ill repeat that even though this was the special councils argument, it was the Judges Decision to release this, and i also want to note the supreme court really had a big role in delaying 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 case to trial. And this this filing, its really the last opportunity voters will have likely to see the evidence in this case if the former president is reelected, this case will be dismissed. Proceed, but its unclear, anderson what lies ahead for this prosecution. All right. Paul reed, thank you. Before and president has been posting about this online, including this one accusing the Justice Department of violating its own guidelines. And im 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 cases of scam, just like all the others, including the Documents Case which was dismissed thats not all just moments ago he posted this. I didnt rig the 2020 election. They did joining us now to former federal prosecutors bestselling Author Geoffrey Tube and seen an Anchor Law codes also with his former Fbi Deputy Director Andrew Mccabe and retired federal judge, nancy gertner, jeff for what do you make of the details that Jack Smith has laid out and do you think theyll survive trumps claims of immunity . This is an incredibly difficult task for Judge Chat can because these categories please Official And Icon official are very difficult to define in the supreme court didnt really come up. They were they were vague in defining what they are some of this is i think clearly on the line of unofficial trumps meetings with his campaign staff, with his Campaign Lawyers i think that certainly will count as an official, smith and the most difficult question for Judah Shotgun is, what about the conversations with Mike Pence because smith argues that pence was operating either as a campaign worker, essentially worked king 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 laura, the Special Counsel says that Donald Trump, quote, explicitly excluded a white House Attorney in favor of private counsel. And one of the meetings in which the president allegedly tried to convince pence to reject the electoral votes. The filing reads and im 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 trumps 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 is not the private attorney of Donald Trump or any particular president. Its for the office of the presidency its either concerned with whats happening in the current administration and in the prospective administrations why they want to preserve things like what would be the Conversations President ial 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 im 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 thats what he was trying to do. It 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 its 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 andrew, i mean, you see the complaints from trump tonight, the doj is violating its own rules about not making public statements about an investigation too close to an election obviously, trump didnt care about that when James Comey inform congress and negatively became public for the fbi was reopening the Clinton Email investigation days before the 2016 election, you were part of the clinton investigative team. Im wondering what you make of the former were President S Argument Tonight i dont find it particularly persuasive as you as you might guess, a couple of reasons. One, this is a doj rule, its a policy and its certainly one that can be waived by the Attorney General anytime he thinks its necessary to do that or in the interests of justice and the second big piece here anderson is that policy is specifically directed at the investigators, the fbi the u. S attorneys, the Line Attorneys who are working with agents on individual cases. And its a caution to not take any overtli public actions, things that would be seen in the runup to we want election. We are 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 Of Justice can can control. So its really not a matter that comes within the scope of that policy. The whatsoever judge gertner, im the Special Counsel is arguing trumps 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 encroach on powers specifically assigned by the constitution to other branches to advance his own selfinterest 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 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 thats the difference between what we saw it with respect to the January 6 committee and now so 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 there . In many of the conversations with pence, it was not just not excluding 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 again, acting as an Office Holder as Office Seeker rather than Office Holder Pence Smith goes into great detail about how the constitution expressly limits the sitting president and the sitting Vice President s role in the electoral counting process. So that Someone Cant continue their authority beyond the time that theyre term runs out. So both 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 Counsels argument is thatll law called the Hatch Act, allowed trumps White House staff to basically wear two hats essentially separating their political advocacy from their official duties. The Special Counsel claims and im quoting when the president acting as a candidate engaged in campaignrelated activities with these officials during their presence, he too was not engaging in official president ial well conduct. Well, the Hatch Act is a law that says, you know high Level Government Employees Cant do politics. They have to do their job. And so what Jack Smith is trying to do is say thats the line between official and unofficial. And if its an understandable effort because these vague category boris, at least the Hatch Act gives, give some forms 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 sue both his official duties and of course to campaign so i think it helps him somewhat to try to draw this line. But since the main character in the drama is not covered by the Hatch Act, its not, its not quite as helpful as he wants. The filing references contemporaneous notes that Vice President pence at the time im during a wrote during a meeting with the former president when lawyer John Eastman was asked to explain, depends why he should reject the electoral college votes. How important would those contemporaneous notes being a trial where we almost always gone back to what the Jim Comey Contemporaneous notes things was and right. And that was because contemporaneous notes actually buttress the credibility of a person who actually wrote them. Why its 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. Thats great in front of a jury or whoever is the trier of fact if its the judge in this case solely because its almost you theyre not trying to go back and shift the narrative or have revisionist history that contemporaneous notes written close in time of very important. It also shows you that there was a manipulation that theyre arguing was trying to happen there. So 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 were trying to lean on on him as a Running Mate, as a candidate, not in his role as the Vice President. Andrew, im prosecutors have said that they have a witness whos going to testify that the former President Said to the first lady, Melania Trump and Ivanka Trump and jared kushner, quote, it doesnt matter if youve won or lost the election, you still have to fight like hell is a statement like that . I mean, does that evidence is admissible i think its admissible its how persuasive it would be to a jury if in fact we ever get in front of one is the bigger question that i have this on the one hand, this statement the purportedly shows the former president acknowledging that he doesnt actually care about the actual results of the election. The only and what happens i mean if chutkan rules in favor of the Special Counsel on agrees the behavior in the filing is not subject to president ial immunity. What then i mean, i guess therell be an appeal by trumps team. And what would that mean for any kind of a time . Im table i just have to preface the what then question which is, you know, we are in new territory here. So who knows . But clearly the supreme court is telling Judge Chutkan to thread the needle here and describe whats in the appropriate category in what is not what is in the nonimmune category in what is immune, i would imagine she will issue a decision. There will be an argument. Both sides will say what what they want to say. She would have to issue its decision saying this is in and this is out people have asked whether there would be an appeal. Again, were dealing with new issues. I have No Doubt that the supreme court would i want to say stick its nose in this No Matter what and the timing of it at this point, doesnt really matter but certainly not going to be a trial before the election. Theres one very simple answer to at least one of these questions, which is if Donald Trump wins the election, this case has gone away. Yeah, so jeff toobin, thank you. Laura coates from a cave, judge gertner. Thank you. A reminder. You can watch Laura Coates live at 11 00 p. M. Eastern tonight. Coming up next the president ial race, which this filing just dropped into with little more than a month until election day, while the latest on the race a time has come for a fresh approach to Dog Food every day. 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