it for me tonight. thank you very much for being here. now it is time for the last word with lawrence o'donnell. >> good evening, rachel. we're gonna have two miracle workers joining us tonight, senators jon tester and sherrod brown, who somehow managed to get reelected to the senate in states where no other democrat can win. but we begin tonight with our history lessons from professor laurence tribe, also andrew weissmann is with us on this really historic night in the case of united states of america versus donald j trump. >> i'm looking forward to hear that. >> the supreme court getting involved at this stage, even just to say that jack smith, we would consider what you are asking us to do. that alone is such a big deal. >> we will consider it, and we are ready to start hearing. we want your response by next week. i mean, it's happening. it's on. here we go. >> and, rachel, guess who was proven wrong today? that would be me. as of last, i think, it was thursday night, i had gotten extremely impatient with the federal appeals court process, in these cases, and i started to get the feeling that it was gonna be business as usual, and donald trump was gonna humiliate yet another governing institution, and that is the federal appeals process, and use them to his advantage, by them simply running on their normal schedule of who knows how long anything takes. and here we are tonight in a completely different place than we were when i was complaining about that. i was expecting of them, and it's not like they watch this show, so they obviously were very, very ready, much more ready for this than i thought. >> listen, first of all, i absolve you. as far as i'm concerned, you never were wrong, and you will never be wrong, lawrence. i also think, you had reason to be complaining. it took the d. c. circuit court 11 months and 25 days to rule on the civil liability thing. i mean, that kind of a base, that is slow, even for them. that is slow even for the normal course of events. i think there was reason to be upset there. but as i said, you have never been wrong and will never be wrong. >> okay, that's the promo for this show. just got it right now. [laughter] it's a five second promo. they can afford it. >> thanks, lawrence. >> thanks, rachel. thank you. breaking news, welcome to 1974. this is what living through high-speed history feels like. 50 years ago when republican president of the night states was under investigation in the federal courts in washington, d. c., responded accordingly and appropriately. the courts worked faster than we had ever seen them work before. the breaking news of tonight is that the united states supreme court took only five hours this afternoon to decide to fast-track special prosecutor jack smith's request that the supreme court intervene now, and decide donald trump's appeal in the case of united states of america versus donald j trump. donald trump appealed a decision by the trial court judge, tanya chutkan, in which judge chutkan denied donald trump's claim of complete immunity from criminal charges from any conduct during his time as president of the united states and his claim that he was immune from prosecution in the january 6th case because donald trump's lawyers say that that would be double jeopardy because donald trump already was subjected to an impeachment trial in the united states senate on essentially the same charges. last week, this appeal by donald trump seemed like business as usual, when the federal court system, with the united states court of appeals and washington, d. c. having jurisdiction over the trump appeal. with an unlimited amount of time, to consider that appeal. and as i complained on this program last week, the appeals court could take a year to decide an appeal like that if they wanted to. and after the appeals court decision came down, losing side will surely appeal to the united states supreme court which could then take, who knows, another year. jack smith decided not to play that game. at 12:30 pm today, jack smith filed a petition directly to the united states supreme court, asking the supreme court to use its power to reach down and take this case off of the appeals court docket for immediate consideration by the supreme court. at the same time, jack smith filed a backup motion with the appeals court to expedite the appeal at the appeals court level if the supreme court refuses to take the case at this stage. and just five hours later, the supreme court responded favorably to jack smith, and a half hour after that, the court of appeals responded favorably to jack smith. the united states supreme court issued an order saying the court granted jackson its request to consider taking the case on an expedited basis. the supreme court has not decided to take the case, but has decided to consider jack smith's argument that the supreme court should take the case. the supreme court then gave donald trump's lawyers until next wednesday, december 20th, four pm, to file and reply brief to jack smith's brief that was submitted to the supreme court today. and the united states court of appeals, which still has jurisdiction over the case, unless the supreme court decides to take the case at this stage, they issued an order to donald trump's lawyers saying that they replied to jack smith's request is due this wednesday, the day after tomorrow, at 10 am. and in his petition to the supreme court, jack smith reminded the court of just how quickly the supreme court is capable of working. quote, the district court overseeing one of the watergate cases had scheduled trial to begin on september 9th, 1974. on may 24th, 1974, the special prosecutor sought certiorari before judgment following the district courts denial of former president nixon motion to quash a subpoena seeking oval office recordings. the court granted certiorari a week later and set the case for an argument on july 8th, 1974. the decision issued 16 days later and the trial began in the fall of 1974. jack smith showed the supreme court in that example that the nixon case, one of the reasons they acted as fast as they did, was to preserve the criminal trial schedule of the watergate defendants in washington, d. c.. jack smith asked the supreme court and appeals court today to expedite their appeal to help preserve the trial date, currently scheduled for march 4th in this case. rule 11 of the united states supreme court says that an appeal can bypass the court of appeals and go directly to the u.s. supreme court, quote, upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this case. jack smith uses that key phrase, imperative public importance, multiple times in his petition to the supreme court, beginning on the first page of his argument. and on page ten, jack smith writes, this case involves paradigmatic issue of imperative public importance. the amenability to criminal prosecution of a former president of the united states to conduct undertaken during his presidency. it requires no extended discussion to confirm that this case, involving charges that respondent sought to thwart the peaceful transfer of power through violations of federal criminal law is at the apex of public importance. the charges implicate a central tenet of our democracy. and the charges allege that the respondent conspired to transgressed the law in manifold ways by intentionally using fraudulent means to obstruct the presidential electoral process, by obstructing constitutionally prescribed processes in congress for counting electoral votes, and by seeking to deprive millions of voters of their electoral choice for president. leading off our discussion tonight is professor laurence tribe who has taught constitutional law at harvard law school for five decades. also with us andrew weissmann, former fbi general counsel, and former chief of the criminal division in the eastern district of new york. he's a professor at nyu law school, and co-host of the podcast, prosecuting donald trump. he is also an msnbc legal analyst. and professor tribe, we begin with you tonight with all of your experience as a practitioner before the supreme court, and a very successful one. please, set for us where we are tonight in supreme court history? how rare is this kind of intervention request to the supreme court? how often does the supreme court respond within hours to such a request? where are we now in the history of this story? >> we are on a very fast track, lawrence. in the 1940s, i researched it. there were only two cases. one which involved a nazi saboteurs in which the court ruled to link it to the court of appeals and consider the case straight in the trial court. in the 1950s, there was only one such case involving seizure of the steel mills. i could not find any such cases in the 1960s. there was one in the 1970s, you have described it, the nixon tapes case. in the 19 80s, there were two, one of them involving the iran hostage crisis. i haven't found any in the 1990s. and in the 2000s, the pace has picked up. there has been five or six. it's not quite as extraordinary now. the court is picking up its pace. but the net result is that jack smith trumped trump. and it is going to consider this case without doubt, once the former president responds by four pm, nine days from now, a week from wednesday, urging him not to take the case. we really won't have any good arguments about why it should wait for the court of appeals. they will almost certainly decide to hear the case on an expedited schedule. it will be resolved in all certainty, in time for jack smith trial before tanya chutkan to begin on march 4th. so, we are watching history in the making, and it is on fast boil. >> andrew weissmann, take us inside what would likely be the special prosecutor's team deliberations on this strategic question. do we go -- they could have just ask that pence court to expedite this, and hailed it as fast as they could, and then armed, they hope, with a solid opening from the appeals court, donald trump would then be appealing to the supreme court. and at that point, jack smith could have asked for an expedited schedule there. but they could be going to the supreme court if it worked the way they wanted to, with possibly two strong opinions in their favor, one from the district court, one from the appeals court. jack smith had to decide, nope, we are gonna go at the supreme court without what could be a possibly very helpful opinion from the appeals court. take us through that strategic decision, how they would have made that? >> sure. that's a great question. i think the way i would have analyzed it, and i'm pretty sure the way jack and now one of the new attorneys, michael dreeben, an eminent supreme court practitioner, we have looked at this, is that there is really if you focus on the essence. this is a case where there needs to be a trial and a resolution before the general election so that the public which has a right to a speedy trial can see that evidence and weigh that in assessing the vote. there is no question that the district judge has already found that that is consistent with due process for the defendant. and from jack smith's point of view, you do not want to have the delay at the court of appeals level, and then potential additional delay at the supreme court level. so, this is sort of a win-win, no matter what the supreme court does in terms of taking it or not. in other words, if they are not gonna hear it, fine, then there is nothing lost. they are proceeding at a pace at the court of appeals level. but if they are going to hear it, and i agree with professor tribe that they will hear this, and they are going to get a faster ruling. remember, picking a jury in this case takes time. you have judge chutkan who has set aside two months. those jurors can't just wait around waiting for a supreme court decision or a court of appeals decision. so this really has to be decided quickly. finally, i don't think that donald trump, and this is something that professor tribe was getting at, has an argument as to why this shouldn't be heard quickly. remember, his point is that he is entitled to presidential immunity with respect to this case. he should not be subject to even that indictment. he is saying that it is double jeopardy. he should not be subject to the indictment. what he is going to say in terms of why this should be decided quickly. his whole point is that he is suffering every day because his rights are being violated. so, he should be on the side of saying that i want an expedited review of this, so all parties, the government and the defense, have the same interest here. and of course, the public has an interest. so i think that should weigh very heavily, and professor tribe's point, supreme court needs to resolve this. >> professor tribe, i know for the court to grant that they will actually hear the case, it takes four votes of the justices to get to that stage. what we saw today, does that require four votes of the justices? or is this something the chief can do on his own? >> no, the chief wouldn't feel free to do this on his own. in fact, the granted motion actually requires five votes, the grant a motion to expedite consideration of certiorari before judgment. it takes one more vote then it takes to grant certiorari before a judgment. one of the main reasons that i think both andrew and i are so confident that the court will agree to hear the case is that this might be one of the few instances where donald trump and his lawyers do the sensible thing, and that is simply wave the time they have been given between now and a week from wednesday, and say, of course, we agree this case should be held, it should be heard quickly because, as andrew said, he can't simultaneously say that i'm hurt by the very dependency of this proceeding, with every passing hour, but i wanted to stretch out. so he might as well be consistent. and his arguments on the merits arguments that he doesn't really want to rehearse, by filing an opposition to certiorari, a week from wednesday. why not just give the court a full flavor of those arguments on the merits? besides, the arguments are remarkably weak, even in a highly conservative court. the argument that he is absolutely immune above the law, it's really quite easy for judge chutkan to dismiss it in a very powerful opinion. and the argument that she qui n, that there is double jeopardy because h convicted by the sen argument is not going any tso with in this very in theprofeswe're h 7 ♪ ♪ essor laurence tribe and andrew weissmann are gonna sta with us. we're gonna be right back with more ♪ ♪ ♪ n $34. and this nintendo switch, sold for less than $20. i got this kitchenaid stand mixer for only $56. i got this bbq smoker for 26 bucks. and shipping is always free. go to dealdash.com right now and see how much you can save. 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( ♪♪ ) first time i connected with kim, she told me that lher husband had passed.. and that he took care of all of the internet connected devices in the home. i told her, “i'm here to take care of you.” connecting with kim... made me reconnect with my mom. it's very important to keep loved ones close. we know that creating memories with loved ones brings so much joy to your life. a family trip to the team usa training facility. i don't know how to thank you. i'm here to thank you. in his petition to the supreme court today, special prosecutor jack smith said, a corner store of our constitutional order is that no person is above the law. the force of that principle is at its zenith where, as here, a grand jury has accused former president of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor. nothing could be more vital to our democracy than that a president who abuses the electoral system to remain in office is held accountable for criminal conduct. neither the separation of powers nor a respondents acquittal in impeachment proceedings lifts him above the reach of federal criminal law. like other citizens, he is accountable for criminal conduct. professor laurence tribe and andrew weissmann are back with us. and professor tribe, we see what is the essence, or what will be the essence of jack smith's argument to the supreme court on the merits of this appeal. we will get the first hint of what the trump team response to this on wednesday morning when they actually have to respond to the court of appeals on this very same question. this is one of those documents that i read and i struggle to imagine any response by the trump lawyers. >> well, i can't imagine any coherent response, especially since the argument that is central in this case, the argument that is central in this motion for expedited consideration is not a one-sided ideological argument. it is the argument that says, because no one is above the law, or below the law, it is vital that the american people before voting for the next president of the united states have an answer to whether a jury of his peers designs that donald trump committed this grave crime. if he is innocent, the people deserve to know that. he deserves a bill of good health. if he is found guilty, the people need to know that too. this is one of those rare cases in which it is virtually impossible to make a principled argument about why the supreme court shouldn't resolve the matter and resolve it in time because whichever way it goes, it's going to be moot if it happens only after the election. it is something people have a right to know, and because they have a right to know it, they have a right to know it in time. the justice delayed is justice denied, it was never more appropriate than in a case like this. >> andrew weissmann, the argument that the trump lawyers are facing, are about to have to make, is not on the merits of the case. it's on why this should not be decided now. they have to say to the he's argued over 100 times in the supreme court, the area that he specializes in is the criminal law. i have worked with him for he's argued over 100 times in the supreme court, the area many years. that he specializes in is the criminal law. you do not get anyone more i have worked with him for many years. you do not get anyone more steeped in this issue. steeped in this issue. and he is thought about and and he is thought about and written on this when he was the head legal officer in the written on this when he was the special counsel mueller investigation, where he wrote head legal officer in the about this very issue. so, jack smith has, you know, the a+ team in order to, for this argument before the special counsel