hi, everyone, it is 4:00 in new york, i'm alicia menendez, in for nicolle wallace. it is a tried and true tactic of the donald trump playbook, turn anything into political score settling. today, lawyers for the ex-president filed a motion for a mistrial in the civil fraud case against him in new york that threatens to bring down the trump organization and tarnish his brand as a business mogul. in the motion, trump's team accused the judge and his staff of bias. the motion is filled to the brim with dramatic language, saying quote, only the grant of a mistrial can salvage what is left of the rule of law. trump's lawyers also took aim at the judge's law clerk, included photos of the clerk, as well as her campaign donation history in their public filing. that is even after the judge placed a limited gag order on donald trump that barred him from commenting on court staff. trump's lawyers were then prohibited from discussing the judge's communications with his staff. the length of the trial so far has been punctuated by skirmishes over trump's rhetoric. his targeting of the clerk led to fines a threat of imprisonment. the filing today is bringing questions whether trump and his team violated the gag order. we start with former assistant u.s. attorney and msnbc legal analyst, glenn kirschness, legal analyst, lisa rubin, and former top state department during the obama administration, rick stengel. talk us through the filing. why did trump's team go after the judge and his staff? >> you know, for a couple of reasons. i mean, one, they need to make motions that they believe have some merit, even if it's a fore gone conclusion. that judge engoron is not going to grant a motion concluding that he is hopelessly biassed, which is really what he would have to conclude if he were to grant this mistrial motion, but often defense attorneys will make motions, any attorneys will make motions to simply preserve the issue for appellate review because if you don't make the motion in the trial court, you have waived your opportunity to raise it in the appellate court. but here's the other thing, mistrial motions may sound dramatic, but they're actually pretty usual. i had dozens of them lodged in cases i was trying as a prosecutor. i'll give you a very quick example of the run of the mill mistrial motion. if i had a witness on the stand who was testifying and blurted out something in nonresponsive fashion that was prejudicial to the defendant and his right to a fair trial, perhaps blurting out something about another crime the defendant allegedly committed that was not charged in the case, you would have the defense attorney properly say, we object, your honor, and we move for a mistrial. those mistrials are almost always denied but they have then preserved their right to raise it on appeal. the other thing is it feels like donald trump is perhaps directing his lawyers to be as inflammatory as possible, seeing that this is yet another opportunity to get some disinformation, maybe even propaganda in the public square. and some of these court filings begin to sound like donald trump, 2:00 a.m., social media posts. >> 2:00 a.m., social media posts, you and i keep coming back to this, the idea is this a legal argument or political argument. i want to hear your take on what glenn just shared. is there a basis here for a mistrial? >> i don't think there is. to glenn's point, mistrial motions are frequent. they're common. they're very unusually on the other hand, vehicles for the type of propaganda he was talking about, and here, the basis for the mistrial motion is this claim of bias that according to the trump lawyers runs rampant through this trial. the only problem with that is just because you're losing on motion after motion or objection after objection doesn't mean the judge is biassed, and to the extent that there's some sort of partisan political issue with the judge or his principle law clerk having made campaign contributions, and there are reasons to believe there might not be, they fit into exceptions of the ethics rules, my understanding is that the solution to that is not a mistrial at all. it's not even to overturn motion on appeal, it's judicial discipline. >> to glenn's point, you had a question for lisa rubin, that is on the mind of rick, on the mind of a lot of our viewers. >> what they don't understand is the judge is biassed, biassed against criminality, buy against fraud, and biassed against hyperbole in court. trump thinks judges shouldn't be biassed against lawlessness. which he exemplifies. i was looking at pictures in the court today, and the clerk does sit next to the judge, which i hadn't ever seen before, is it common or uncommon? >> i haven't seen that before either. their interactions, when i'm in the courtroom, the way the courtroom is structured, the press sits at some distance. there's a bunch of reserved seats for the parties, friends of the judge, we're at considerable distance. i don't see the kind of eye rolling, constant communication and whispering that they talk about in their motions, at least with the frequency with which they say it happens. that having been said, is it unusual for someone to sit as close to a judge as this law clerk does? yes, does that mean something is awry or untoward, not necessarily. as judge engoron has said repeatedly, as the judge, he's entitled to consult with his staff as he sees fit, and i don't think that chris kise and his team have yet shown that. >> let's talk about the filing. trump's lawyers write that the judge's clerk is, quote, judging, saying the law clerk is given unprecedented and inappropriate latitude. do you think they're going to be willing to let this go, glenn? >> they're going to play this for all its worth, if only with donald trump's base in an attempt to grift more money from them. here's the thing. a judge has wide latitude in conducting the proceedings as he or she see fit. i've seen lots of judges use their law clerks actively during the course of the trial because, let's face it, the law clerks are generally the ones doing the research, handling up topics or even suggested questions to the judge, writing draft opinions. i mean, the law clerks are kind of the behind the scenes unsung heroes, and so he may have a somewhat unusual practice of having his law clerk right there available to him to consult in realtime. nothing improper about it. and it doesn't surprise me that lisa said, you know, based on her observations, it's not quite entirely accurate what they are putting in the mistrial motion regarding what's going on in court. >> you pointed out on twitter, where i follow you like a hawk, judge engoron cautioned about this motion. they said they would file this motion in a quote, delicate matter. i don't know what that means? >> well, i think last week, they had a number of conversations with judge engoron about some of these issues. chris kise first floated the idea that there was some improper campaign contributions on november 3rd. by november 6th, they were seeking guidance from him about filing a mistrial motion, and indicating to him that the mistrial motion would have to do with the law clerk, and they weren't sure how to frame it, without violating the terms of the gag order. at first, he said to them, don't file it, and that quote appears in their motion, but ultimately what he said to them was file it or rather submit it through what's called an order to show cause. typically an order to show cause is submitted to a judge in their private office called a chambers. the judge gets to review it and then determine what gets filed. that was my expectation of what would happen here so you weren't erring in the public domain, all of these allegations with her name, picture, campaign contribution history that happened nonetheless. when he said we will handle it in a delicate manner, it would be akin to a ceiling or redaction, and the incendiary allegations would be seen by the judge and attorney general, and not the general public as now happened. >> let's stay on that point. there's no question why they included her photo, why that felt necessary to a person who has already violated his gag order whose team has stood behind him as he has done so. there's the legal argument, the political argument, and then there's this additional piece that comes from team trump, which is an unmitigated effort to intimidate. >> and the long history of misogyny that donald trump and his teams have. i think he throws that in. he's, you know, the roy cohn school of defense. doing unseemly, look over here, over there, it's part of the tactics he has always done. he's been a defendant for 35 years. >> the misogyny is happening in the courtroom. the misogyny is also a whistle to his base. >> yesterday it was like prime toxic masculinity for the republican party, at least in terms of congress, but then there's this toxic masculinity happening in the trump proceeding, both outside the courtroom and inside the courtroom, too, and i will tell you, just as an observer, the way that they talk about and treat new york attorney general tish james, the way they treat a female attorney on her team in the courtroom, and finally, the way that they speak about the judge's principle law clerk, there is more than a whiff of misogyny there, and when brought to chris kise's attention, his response was i'm happily married and i have a daughter. you and i both know that's not an adequate defense in charges of misogyny. an insult to anyone who considers them a champion of women. >> i heard glenn kirschners response to that. judge engoron is likely to rule on the motion. explain to me what happens if trump's team appeals? >> if they appeal, it will come at the end of the trial, and as i say, there's not a chance judge engoron will conclude that he is hopelessly biassed and unfairly prejudiced against donald trump. he will reject the motion, and i have to echo lisa's point when somebody uses as a defense that they're married and they have daughters and therefore they can't be a misogynist, i would suspect many misogynists are married with daughters, and it's laughable. it's offensive. but it's not surprising. >> glenn, at what point does judge engoron up the ante. it doesn't appear the fines are stopping trump from targeting the court staff. what more can he do? >> he can up the fines, but as you say, that probably will not deter donald trump. it feels like he believes he's found a winning formula. he pushes boundaries and pushes boundaries. he has his lawyers, you know, file the kind of court pleadings that i never saw as a prosecutor. they're embarrassing. they're unprofessional, and they are often just sort of unhinged attacks on judges, on the opponent, the prosecutors, or letitia james attorneys, on witnesses or others. i don't think donald trump will be deterred unless and until he is perhaps facing the prospect of a jail cell pretrial, i think that's most likely to come not in this civil fraud case, but in one of his criminal prosecutions, if he continues to push these boundaries in danger, witnesses, court staff and prosecutors, and poison future jury pools, then judges may feel like they have nowhere left to go but to revoke him on release and detain him pending trial. >> among the preludes to this motion for mistrial where the ethics complaint filed by elise stefanik, which you have done great analysis on, and i have to admit, i sort of thought he was going to let elise stefanik carry his water on this one. the fact that they turned it into a one-two punch seems tell . >> it does. i don't know if it's a one-two punch. elise stefanik is behind a recent complaint to the justice department asking them to investigate on perjury grounds, the person who was supposed to be the star witness, michael cohen, who i will submit to you was a better witness than many think, and yet not nearly as central as anyone is saying. but, you know, this is part of their strategy. let's discredit the judge, the principle law clerk, a witness and threaten him with criminal prosecution, and then when it doesn't happen, we'll point the finger at attorney general garland, damien williams of the southern district and say they are in biden's corner trying to weaponize election interference claims for their own benefit. >> glenn, in your experience, what impact could this have on future witnesses? >> you know, i think everything donald trump says and posts is designed to do a couple of things, one, undermine confidence in the process. i believe that donald trump knows he has no defense on the facts or the law in any of these case, so what he needs to do is prepare for the eventual conviction in the criminal cases by undermining the public's confidence in the process. that's why he attacks process and the people who populate it. so when he is convicted and i believe he will be convicted based on the evidence we've seen even just publicly reported, i think he will be able to say, you see, i told you it was not going to be fair. i told you it was a witch hunt. i told you it was election interference. he is calculating each post and statement to do is to send a message to the witnesses that you better not cross me. i think he posted you come for me, i'm coming for you. just think about when he posted mike pence didn't have the courage to do what he should have done. he didn't have to say get him, the message was received. and the chants of hang mike pence broke out. he's trying to replicate that with all of the other witnesses who are in one way or another endeavoring to hold him accountable for his crimes. >> lisa, talk to me about the interplay of this motion and jack smith's case? >> well, it's interesting because yesterday, jack smith's team had a brief due in the d.c. circuit where they are trying to oppose donald trump's efforts to stay the gag order in judge chutkan's case. i was really curious to know whether they were going to attach that motion yesterday, a truth social post that trump made yesterday morning where he quote unquote, retruthed some random person's post saying that letitia james and judge engoron should be subject to a citizens arrest. and they didn't do that. they do make the d.c. court aware of the threats trump has made to alvin bragg, to trish james, and not by name but also by judge engoron who has had hundreds of phone calls to his chambers and to the court with vicious threats associated with them. so they are very well aware that not only is trump threatening the witnesses in their case, but he's making threats to people in the larger public domain as they pertain to other cases, and that that should all be pertinent to the d.c. circuit as they consider the gag order in the federal case. >> indeed. were you about to go to a break? that citizens arrest thing was so alarming. what that is is a dog whistle for people to take action in their hands. the fact that he's doing that and has all of these folks listening to it, they will take the law in their own hands. >> now i'm going to break. thank you for your expertise. everyone else sticking around. the judge in the election interference case issuing an emergency motion this afternoon responding to the leak of witness videos. we'll tell you what that is, what his ruling means for the other codefendants in this sprawling criminal case. a hearing on capitol hill today warning of threats coming from around the world turned into a forum for republicans to attack the homeland security secretary, and pushed debunked conspiracy theories. later in the show, president joe biden calling on the ex-president's rhetorics, saying it echoes words used in nazi germany. how trump and the gop are showing no signs of dialing any of that back. all of those stories and more when "deadline white house" continues after this. do not go anywhere. ntinues aftes do not go anywhere who can i talk to? 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