news business, as your interview and brian's book point out. >> i know a lot of people who feel the same way, that it should just be plain old fox without the other word because of its history and perhaps its future. >> and we know we are talking about when you take fox, you don't have to say the second word. we get it, yeah. >> their mendacity is well known. >> thank you, alex. in trump world i don't recall is not perjury, and when cassidy hutchison testified to the january six committee she told them what her trump paid lawyer told her. >> stephan never told me to lie to the committee. i don't want you to perjure yourself, he insisted, but i don't recall isn't perjury. >> of course, i don't recall is perjury when you do recall, which is why cassidy hutchison chose not to follow that lawyers advice and commit perjury by sticking to the lie of i don't recall. she got rid of that lawyer and she went on to tell the truth to the committee. yesterday donald trump's first daughter, guided by a trump paid lawyer, demonstrated her fidelity to the family principle of i don't recall is not perjury when she repeatedly testified under oath that she did not recall anything about loan agreements that she was involved in for the family business. well on the witness stand in the manhattan courtroom with the new york assistant attorney general showing her her own emails about those loan details, ivanka trump's talk to the family under oath motto, i don't recall. new york city general, letitia james, said this. >> her testimony raises questions with regards to its credibility. at the end of the day this case is about fraudulent statements of financial condition that she benefited from. she was enriched and clearly you cannot distance yourself from that fact. the documents do not lie. the numbers do not lie. >> the numbers do not lie. but did ivanka trump lie? bloomberg's tim o'brien, who literally wrote the book about the trump family business, says this. >> it's curious to me, because she wasn't taking the fifth, which it is civil case would be an admission, essentially of acknowledgment of guilt. she was just saying she couldn't remember. she couldn't remember details about the old post office building in washington, d. c., that the trumps turned into the trump international hotel. she could remember details about the doral golf club purchase in florida. one of his probably single biggest golf course acquisitions. and so on and so forth. and ivanka is somebody who remembers the colors of the walls and how they were painted in every project that they worked on. they could tell you how many windows were put in an every project. she could tell you how many new trials were put in the floors. she could tell you the interest rate on loans that they received. she could talk about the amount of debt leveraged against each property that they owned. so the idea that suddenly in this courtroom she can't really recall specifics about evaluations or how that tied in two statements that the trumps gave to the banks, it's more than passing strange. and i suspect, since there is not a jury present, none of this is really being lost on arthur engoron, the judge hearing this case, so he's now essentially the jury of one for the trumps. >> today don't arms lawyers tried to short-circuit the case by asking the judge to find it on trump's favor because or they considered the witness of michael cohen's testimony in this stage of the case. the judge said he would consider that request. the trump defense lawyers will begin presenting their case on monday. they have told the judge that the first witness for the defense will be codefendant donald trump jr.. leading off our discussion tonight is the senior legal correspondent for the messenger. he was in the courtroom, as he is every day for these proceedings. also with us, former federal prosecutor for the eastern district of new york, and andrew weissmann, former fbi general counsel and former chief of the criminal division in the eastern district of new york. he's an msnbc legal analyst and co-host of the msnbc podcast, prosecuting donald trump. adam, let's go to the courtroom with donald trump's first daughter testifying. the i don't recall chorus that went through that testimony, what was the general sense or feeling of credibility in the courtroom for that? >> well, there were two dimensions of i do not recall. there was, i do not recall when the state was examining her and i recall vividly when trump's own lawyers were examining her. at that point, during cross-examination, she could recall intimate details of what it was like during the purchase of the doral, how she was, it was her time as, her first time as a mother. she was a pregnant woman and was giving birth to her first child. at that point, all of the memories breakthrough. she was able to give vivid recounting's of that period. i don't recall happened before that, when the government was asking her about detailed communications and then, at that moment, oh, it's about a decade ago and it might have been longer than a decade ago, i don't remember these details, but was a has a perfect memory is the record, the email she was confronted with again and again, emails with bank executives with whom she was talking about her father's financial condition, emails about the anxieties that certain trump executives had, about whether v net worth, the covenants that obligated trump to have a certain, i think, four billion dollars in net worth was something that was a problem for them, and something that they needed to ultimately bargain down. and those are the details that have a perfect verbatim memory more than a decade later, those are the details speaking to the fact that this is a documents case and giving an insight into why a good portion of the trial was decided before this trial began. >> andrew, this is an opportunity for your shortest law school lecture ever about i don't recall. and i mean to apply it to all the litigation we're going to be seeing this year, from cassidy hutchinson's description of the i don't recall period, where she's being advised to not recall what that would have meant. what we saw with ivanka trump, what we will surely see in some of these trump prosecutions going forward, with some witnesses not recalling at certain points, where is the line between i don't recall and perjury? how safe is i don't recall? when do prosecutors are opposing counsel decidely i don't recall really needs to be attacked and pushed and exposed? what should we be wanting for throughout this year, as i don't recall comes up under oath? >> i think a good way to start is, i've been a defense lawyer, faith gay has been a defense lawyer for a much longer time and has a bigger claim on. it let me start with the typical instruction that you get when you are a defense lawyer prepping a witness. you will tell them honestly they have to be truthful and they should answer the question. or they'll be like, lawrence, listen to the exact question, an answer just that question. if you don't recall it, if you don't recall the answer, say. obviously if you recall something, you cannot say you don't recall. but you usually get new structure which is, your job, when you are being deposed, if you are at trial, it's not to help one side of the other. it's just to answer that question. so if you think it without way, you could say that ivanka or any witness, she was asked question about something that happened many years ago, so it was possible that she actually doesn't recall. it's possible that the questioning is not that precise. it's possible that it's asking something quite specific or where it would be obvious that you couldn't recall. do you remember exactly what you said? there it would be easier to answer that truthfully, i don't recall. so it's not a conversation we are having where you're trying to help the other person. the other piece, and this is where you get into trouble, you can't say, you know what, the government will never know what is really in your head on this. so your route is to do x y and z, when you have to be telling the truth. the problem for the government is when somebody says i don't recall something, and frankly even if they give an answer that's not true, it is very difficult to make a perjury case. that would be a criminal case. it has to be proof beyond a reasonable doubt. so i think probably failed your admonition as making this the shortest lecture possible. but hopefully that helps. >> anything under an hour. it's the shortest lecture [laughter] ever done on a law school subject. faith gay, what do you see when you hear this trump family testimony, the lack of recall, and how did we work in a courtroom. a witness says i don't recall, and then they're confronted with her email that shows that they were heavily involved in that thing that they're saying they don't recall being heavy valve in. and that point, the email, it seems to me, would win the moment. >> i'm glad, lawrence, you didn't even email would trump. it let me just say this, a couple of interesting things about this. first of all, in a civil case, or in a criminal case, an adverse inference can be drawn. you put an email up on the screen and then witness testifies in a way that's just not credible, and the judge here can certainly decide he just doesn't accept that testimony. same thing for trump's criminal trials to come. the juries can say you can say all day long, i don't recall, i don't know, that's stupid. witnesses can say that. and into armors, or you the judge, can just decide to ignore it and to decide that exactly the opposite is true. verdicts can be sustain that way. but i think the real net effect here is that these defense lawyers, when they start their case next week, they have got to get away from these documents as fast as they possibly can. they've got to say, the documents don't matter. the banks didn't care. the banks wanted to lend to trump because he was famous. they just filled out these forms and threw them on the floor and did what they wanted to do. these documents don't matter, they've got to say, because valuations for real estate change all the time. anybody can make up evaluation. valuations are all over the place. these documents don't matter because it's me, poor victims citizen trump against the big bad international or new york banks. so he's got to push away from all of this, holding up the document on the one hand, and having someone say i don't recall on the other, not because of perjury but because right now he's really in a death penalty phase. the best analogy for this face is, guilt is established. this judge thinks donald trump 's guilty. so the thing now is to avoid the death penalty, to make sure his businesses don't get thrown out of new york, and to make that penalty as small as possible. forget guilt. just focus on what the ultimate decision is going to be, how much to damage those businesses. so he's going to start arguing way away from the documents and way away from i don't recall, which do terrible damage this week. >> adam, what should we expect in the defense case? they've submitted a long list of potential witnesses. they say they're gonna start with donald trump jr.. what can they accomplish was donald trump jr. as a witness that hasn't already occurred since he already appeared as a witness for the attorney general? >> i think it will go back a little bit to what i said a bit earlier, about ivanka trump's cross examination. that offers a window because she was the only trump family witness who was cross-examined. the other trump family members, including the former president, we're not cross-examined during the states case, so through ivanka's testimony, we see a window event into where this is going with don jr.. it's essentially turning the defendants and ivanka trump is a good defendant but or other family members are, into the victims, the victim of, in the way the trump lawyers have said throughout this, prosecutorial overreach, as they have it, essentially having them be the dasher's of the big dreams of the trump family members, given the personal sentimental journeys that each of them, as they go into these business dealings, steer as far away from those emails and those records that establish their liability for the judge before trial began and go into that. now that's where the trump family members testimony, and beyond that some of what faith was saying a little earlier, they're going to hammer home the themes through witness testimony of the bank executives, to underscore their argument that oh, there wasn't any harm here, they weren't really looking closely at it, these loans would've gone through anyway. i think those are the themes that are going to emerge from the defense, and what they're going to try to advance when this defense case begins on monday. >> matt adam klasfeld, and we waste, when faith gay, thank you so much. and erskine station with us to discuss the latest developments injects mid-federal prosecution of donald trump. that's next. ♪ [man struggles] i need some sleep. ♪ [man relieved] if you struggle with cpap, you should check out inspire. inspire. sleep apnea innovation. learn more and view important safety information at inspiresleep.com struggling with the highs and lows of bipolar 1? 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it is with comcast business. powering all your devices with gig-speed wifi. and you get fast downloads and uploads. pick it up! pick it up! oh we got this! because it's powered by the next generation 10g network. more speed for your business? it's not just possible. it's happening. get started for $59.99 a month for 12 months. plus, ask how to get an $800 prepaid card with a qualifying internet bundle. >> donald trump's lawyers have comcast business, powering possibilities. filed their brief with the court of appeals, which will hear arguments over the partial gag order that judge tanyka chutkan imposed on donald trump in the federal criminal trial over his efforts to steal the 2020 election leading up to and on january 6th. the trump lawyers wrote, given its extraordinary nature, one would expect an extraordinary justification for the gag order. none exists. the gag order rests entirely, and wrongfully, on a classic hecklers veto, that is, the district courts speculation that president trump's audiences might react to his speech with harassment or threats to prosecutors or court staff. president trump is entitled to proclaim, and the american public is entitled to hear, his core political messages. donald trump's lawyers claim the gag order is over rot and vague. in fact, the order is a narrowly tailored restriction against donald trump attacking the court staff, jack smith, and members of the prosecution team, and potential witnesses. trump's criminal defense lawyers also said that his appeals court upholds the order they will appeal to the supreme court with three trump appointed justices. so with us, andrew weissmann, and point on the we will go to the supreme court is more a scheduling issue at this stage than anything else. >> well, it's important to remember, going to the supreme court, even if they would take this issue, will not slow down the trial date. >> why not? >> because this is just about the gag order. so what he can say or not say has nothing to do with the trial date. i normally, on your show and other shows, try to be really dispassionate in evaluating. i just want to say, the idea that they argued to the court of appeals that this is speculative is truly outrageous. you do not have to look just at the january 6th case itself. what is charged by the grand jury, which is donald trump fomenting what happened on january 6th, as the, and the combination of a conspiracy. so this is not speculative. the district judge has been threatened. everyone knows it. there is a person who has been indicted for it. there are people who are prosecutors, court staff, election workers, family members of all of those people, who are getting threats constantly. it is beyond reprehensible to make that assertion, and i would hope that the court of appeals views it that way. in that courthouse they are all together, it is inconceivable they are not aware of how much the secret service and the marshals have had to do to keep people safe. it is also simply not true that donald trump or anyone else cannot run for office and that his political attacks and tell people what he stands for and what he stands against, and that has nothing to do with anything that is in this limiting gag order. they are completely separate. so the idea that this brief is pitched as an attack on his right to run for office, only in the most warped sense that running for office means that you are entitled to threaten judges, their family members, court staff would not be true. it's really a brief that is so real and sort of its audacity. >> which is a trademark of trump lawyers, in all of these cases. the defense on the idea of donald trump was acting under vice of council. judge chutkan is ordering the trump lawyers or pushing them toward letting them know whether they're going to use that defense. why do they have to reveal that they would use that defense? why do they have to reveal it ahead of time? >> sure, so, in the law, when you are going to put on expert testimony, whether it's in the complicated account or in this case an attorney, or a medical expert, in the federal rules it is just a scheduling issue. the court has discretion to say, i'm not going to let this happen on the first day of trial because you know what's going to happen in? i'm going to have to give the other side time to prepare. so the rules say that you are