Says that the president has the First Amendment right to speech. Yes. Even the First Amendment right to lie. Absolutely. This indictment is criminalizing conduct not speech. Its criminalizing speech. Why the randomly incised judge is bad news for the defendant. The complicated calendar of republican front runner facing three criminal trials and congressman jamie raskin on jack smiths decision to charge civil rights law used to prosecute kkk violence. Check out detroit. Check out when all in starts, right now. Good in a few new york. Im chris hayes. For the third time in four months, donald trump will be arrested and arraigned tomorrow. And a federal courthouse in washington, d. C. Hes got to be getting used to it by now. He will stand for a federal magistrate judge. He will enter a plea as he has done in the last two cases. In this new Criminal Case laid out against him for attempting to steal the 2020 election. Tomorrow he will be returning to the scene of that crime, as laid out in the detailed and sprawling 45 deed indictment that special counsel jack smith. Hes charged for a felony Felony Counts, conspiracy to file United States, count to conspiracy to obstruct an official proceeding, count three, obstruction of and attempt to obstruct official proceeding, and count four, a conspiracy against rights. Thats a Reconstruction Law Prosecutors used her to charge the ex president for a willfully seeking to disenfranchise voters. He is charged along six unindicted and named coconspirators, five of which are believed to be attorneys who helped, according to prosecutors, carry out trumps criminal scheme to stay in power. Federal prosecutors say trump orchestrated that scheme, quote, by using dishonesty, fraud, and deceit to impaired, distract, and defeat the lawful federal government function by which the results of the president ial election are collected, counted, and certified. Of course in The World We Live In today there is a whole machinery that exists solely to defend donald trump, that is its reason for being. And the folks that do that, day and night, day after day, they are just gonna throw whatever defense they can, even if those defenses are inconsistent or in tension with each other. The ex president is facing a serious trial. Hes arguably the most consequential of a lifetime. But he will, as it is right, mountain actual defense, not the nonsense being spewed on social media or on propaganda outlets, but an actual defense on the court of law under the rules of evidence before a jury of his peers, who will ascertain whether or not he committed these crimes beyond a reasonable turnout doubt standard. And there are defenses to be mounted in any Criminal Case. If it goes to trial, if a defendant doesnt plea, it must be mounted. Thats how the system works. One of the defense is clearly that previewing is that they were going to argue in court is a Freedom Of Speech defense. Here is how that defense played out this morning, right here on today. Its the first time in a sitting president is attacking a political opponent on First Amendment grounds and making it criminal to state your position and to engage in political gonna give you a timeout on that one. We see that. Before well, the indictment specifically says that the president has the First Amendment right to speech he. He even has the First Amendment right to lie. Absolutely. This indictment is criminalizing conduct, not speech. No, its criminalizing speak for this reason. The 2020 election there were all these irregularities going. On he had every right comment on that annex politically. In a Criminal Case, that what they would have to show is that all that speech was were not talking about beach. In the after of course the point is important goodwin, they really are all kinds of conduct that might be reprehensible, bad, morally wrong, even insidious, that is not criminal. It is particularly true with regards to speech, because speech is protected by the First Amendment, importantly sal. But this is not one of those cases. In fact, as she pointed, out none other than jack smith himself makes that point on page two of the indictment. Quote, the defendant had a right like every american, to speak publicly about the election and even to claim, falsely, that there had been outcome determinative fraud during the election and that he won. And one of the things, really indictment today, that it does so well is, smith and the lawyers that wrote this, really seek to clearly delineate when things move from protected speech, political advocacy, hardball politics, to a Criminal Conspiracy as laid out in the fact contained in the indictment. Nothing is more squarely in that latter character gory than the fake electors plot. I have been buried in the details, like many of you have, of january 6th, lead up, the aftermath, in this indictment contains the most detailed revelations about that specific conspiracy. The fake electors conspiracy is a plot we have seen in state after say, seven total, and the facts arent in dispute. Some of them are publicly broadcasted in realtime at the time. But crucially, to go back to the defense, the president s lawyer, ex president s lawyer is trying to mount, they basically have nothing to do a speech because all of this was kind of done behind the scenes. In some instances, i would in the wide open. But what is described in the fake Electors Scheme cruciallys conduct, actions. Jack smith sums it up simply in the tail of the name of the details the plot. Here it is, quote. Trumps use of dishonesty, fraud, and deceit to organize fraudulent state slate of electors and caused them to translate false whatever gets to congress, the organized in that that caused them to do it, thats conduct, thats behavior. Those are actions taken in the world. Its not blah blah blah. The conduct is trump in his coconspirators reaching out to people, getting them to meet by a certain date, organizing, them congregating, them persuading them to sign fraudulently, to swear under oath, and to assess to the government that they are the rightful electors in states where they were not, which all parties knew they were not. And then to submit those fraudulent documents violated his government as if they were real, we know they did all that. Thats a matter of record. And it is all just textbook fried. And its all conduct. Its not speech. In jack smiths really detailed here. The most interesting part is a part where smiths office traces exactly the line where this fake electors plot goes from morally questionable but defensible legally to indefensibly criminal. He lays it out in detail. I quote him here. The plan, this is the fake electors planned, capitalized on ideas presented in memorandum drafted by coconspirator 5, who is believed to be canneries ally kenneth cheseboro. The memorandum evolved over time from a legal strategy to preserve the defendants rights to a corrupt plan to subvert the federal government function by stopping Biden Electors votes from being counted and certified. The first version of the memo, called the wisconsin memo, quote, advocated that, because of the ongoing recount of trump in wisconsin, trump electors there should meet and cast votes on december 1st to preserve the alternative of trumps electors laid in the event trump ultimately prevailed in the state. And what jack smith is saying here is, thats illegal activity. The idea of being, theres a safe harbor, we have to have electors by, in the no standing recount, we dont want to miss the safe harbor deadline, so if we have these electors meet, they are their free prevail in the recount. So jack smith says that memo, thats lawyering. Thats advocacy. Villiers the second memo called the Fraudulent Elector and hear jack smith says, it marked a sharp departure froms wisconsin memo, saying that they be used to is Fraudulent Electors to prevent biden from receiving the 270 electoral votes necessary to secure the presidency on january sacks. So smith is now describing what crosses over into a fraudulent scheme. The Election Fraud lawsuits. They now become contextual. The whole point isnt to preserve the possibility of your electors if you win in court or if you win in recounts. No, they realize they have lost those. The whole point now is to just defraud the government, to produce a fraudulent set of electors, to propose to the Vice President so that he convinced hell be election. And if you think i am coloring the case by calling the electors the fake electors plot, fraudulent, the federal prosecutor describe an email from an unnamed arizona who had been briefed on this plan. He had a conversation with coconspirator 5, who we think could be trump attorney and ally kenneth cheseboro. In it we think cheseboro walks him through the plan. The corrupt plan. It was ultimately executed in arizona. Heres how that attorney, who just got briefed on the phone, describe the plot. Kind of wild, creative, im happy to discuss. My comment too cheseboro is i guess theres no harm in it, legally, at least. I dont thats great judgment. We would just be sending in fake electoral voters to pence so that Quote Someone in congress can make an objection when they start counting votes and start arguing that the fake votes should be counted. Fake electors in quotes there. The fake vote should be counted by a lawyer briefed on the plan. Memorialized in an email. Is that speech . The truth of the matter is, in the defense the ex president s trying to mount, speech maybe in for the rest of the conspiracy. But fundamentally the conspiracys conduct. In this one section of the damning indictment, you have something that just cant have had any purpose other than to be fraudulent. There is no defensible First Amendment law where you can say well, they were just speaking. No, they were clearly not. They did something. They swore to something that was false, and then try to get the false statement entered as true. They tried to defraud the government. The facts are not in dispute. It was plainly a crime. It has been not one to all of us in an intuitive world stance, not new technical way, but we know this was wrong and violated something deep and profound. And there are other parts of the night monthly deal with the lies that trump used, and how he views those lies in the furtherance of conspiracy. But when smith and his team regularly lay out is that this was a crime. It was a vast Criminal Conspiracy, A Multi Pronged effort to stay in power, to steal the election, which culminated in the january six attempted coup, and now sets up, in the words of legal scholar rick hassan, the most important case in our nations history. We catherine is professor of law in political science. You can read that piece on the importance of the trial in slate. Com. Danya perry is a former Deputy Attorney general, yesterdays Office Southern District of new york, and they both join me now. Rick, that headline really grabbed me after day, and i really like the piece. Why do you think this is the most important trial in the nations history . Unlike the other claims against trump so classified documents in the hush money, they dont go to our democracy itself. And might be terrible to lead a national secret, but its not the same thing as trying to subvert an election. And really, as i argue in the piece, trump has not been held accountable anywhere. He was not convicted in the senate. Theres been no civil civil liability. This is the only chance to hold him liable for trying to essentially end american democracy. If he can get away with this without even trying to put him on trial, any future candidate who might look for extra legal means to try to turn himself from election loser to an election winner. I said this before, but the u. S. Is not the only country in the world. There are many countries that have been experiences with different forms of government. And there have been attempted coups in countries that were democracies. And generally, when you try to do a cool, its sort of a situation. You succeeded you become the person in power, or you dont succeed and you end up in prison or worse. Its a very weird situation to try a coup, fail, and then hang out on the golf course for two years. Its not usually the way that it goes in other places. Its generally understood that this is criminal. And danya, you have worked on looking at a model prosecution and thinking about how the facts as revealed to the 800 pluspage report fifth with u. S. Criminal code. And im curious what you think of the decisions made here by smith and what the charges are and how strong the cases. I think its strong. Its fairly, as you just explained, it is laid out in a Pretty Simple format, easily understandable, digestible bets. The way its organized, i think, and state by state, or as you said, kind of a sequence, the chronology, the story of the evolution of the false electors slates scheme. Its all readily understandable. I think its very carefully crafted and just to go to the point that you were just raising, in terms of this question of defense of, quote, unquote, free speech, one has to only look at the statute in the elements for approving a Conspiracy To Defraud the United States. The elements are simple. There has to be a scheme to commit something unlawful. There has to be criminal intent. And there has to be over act over to act in furtherance of the skin. So a bunch of people sitting around in a basement, state house, plotting to submit a false electoral slate, thats not a crime. Doing anything in furtherance of it, and theres paragraph after paragraph, of the overt acts done in furtherance, is what takes us from something which could lie in the realm of First Amendment speech to the realm of Criminal Conspiracy that is actionable, and well see what a jury says, but perhaps well actually and in criminal conviction. Lets talk about criminal intent, one of the most important aspects of this, and it clear that i think theres three prongs to the defense. Criminalizing speech in front of conduct, he was relying on his lawyers advice. And then this third one having to do with intent. Ill read here today from his lawyer saying i would like them to try to prove beyond a reasonable doubt that donald trump believed that these allegations were false. Basically, rick, the notion that he is so, that he is essentially clinically deluded about the reality of the matter, despite the repeated evidence presented to him time and time again, said in the indictment. That clinical delusion means he is incapable of forming criminal intent. What do you think about that . I think thats a really weak argument. Besides the fact that theres good reason to believe that he didnt actually think that he won the election. Imagine if he said to mike pence, im going to break your legs and hurt your family if you dont throw out the electoral votes from wisconsin, even if trump believed that he had won the election, that would still be a crime. Hed be using words that wouldnt be protected by the four First Amendment. So its besides the point what he secretly believed or publicly says about whether the election was stolen. It doesnt give him the right to engage in criminal conduct. Thats what this indictment alleges. What do you think, danya . I completely agree with rick. Thats not a defense. First of all, there is, of course, reams of evidence that show that everyone critical around him was saying there was no fraud, and the former president himself said things to that effect. But here exactly its not. Its not a true defense. The question is not so much did he believe the election was truly stolen, but what act, further to your point, did he take, did he and his coconspirators take, regardless of his subjective State Of Mind . Did he believe that these electors that submitted the certificates to congress, were they the true electors, or did they go to a basement somewhere and say they were in the state house. There are so many questions like that. An important point. Not did he think it was stolen from him, but did the Electors Scheme, did they believe the electors were what they said they were, the rightful electors. And that, i think, is a tougher case to make. Rick hasen, danya perry, thanks so much for your time. Coming up, his investigation laid the foundation for Upcoming Court battle. Congressman jamie raskin and joins me to talk about what this means for the. Country and but how do you coordinate three trials and county around a president ial campaign. Were gonna go down that path. 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