congregations just because they were not willing to take on this brawler mentality. you use the words earlier, pugilistic, that is in many ways how the evangelical mind has been conditioned to expect something more than just biblical doctrine. it is now, we need you to fight against our enemies who are out to get us. >> tim, it's an extraordinary book. the book is the kingdom, the power, and the glory. thank you for writing it. congratulations. that's our show for tonight. now it is time for the last word with lawrence o'donnell. good evening, lawrence. >> good evening, alex. we all remember where we were the night that the draft opinion of the supreme court's overturning of roe v. wade came out. samuel alito's draft opinion on it. i'll never forget running down the hallways here with it in my hands, not believing that we had such a document. tonight, in this hour, i have something almost as good. and it involves what will be the opinion of the supreme court in donald trump's appeal and it is so strong that it is sending me out on the following limb. and andrew weissmann is here to knock me off that limb in a minute, if he feels like it. i am now predicting a unanimous opinion by the supreme court against donald trump on both counts of his appeal. the immunity, double jeopardy, unanimous. i don't see any other way. if clarence thomas doesn't recuse himself and hangs in there, i don't even see how he's gonna be able to find his way to ruling in donald trump's favor on any of this. this view now comes from this almost equivalent, almost equivalent of the alito leak, one of the supreme court justices will decide this, it's going to be a grave disappointment for donald trump because this is a supreme court justice appointed by donald trump, who could not be more solidly against donald trump based on what we have already seen him right about exactly this. >> wow. is this -- >> very close to that. yes. >> this is explosive, lawrence. i am very eager to hear what you have to say, and eager to see what andrew weissmann has said about. neal katyal said he didn't get was a question that scotus would reject trump's claim of immunity, but there may be but that there may be actual reporting behind it -- >> now i understand why. i understand why the opinion is so solidly against donald trump among people who already apparently knew what i have just discovered today. >> i don't know what you discovered and i want to know all about it. i will be watching. >> we'll get right to it. >> have a good show. >> we really do have breaking news tonight about one member of the supreme court's opinion about donald trump opinion that he cannot be prosecuted for any crimes committed while he was president of united states. this opinion is very bad news for donald trump, and virtually guarantees that donald trump will lose his appeal of trial court judge tanya chutkan's ruling that presidents of the united states are not above the law and can indeed be charged with crimes that they committed while in office, at least one member of the supreme court has already agreed in writing with judge chutkan's ruling. what makes this an especially crushing setback to donald trump's hopes in the supreme court is that the member of the court who fully agrees with judge chutkan is one of the three justices appointed by donald trump. that means there are likely tonight at least four votes against donald trump on the supreme court, with only one more vote needed to crush the trump appeal. the breaking news of the night is actually 25 years old. in july 1998, brett kavanaugh wrote a 38-page article for the georgetown law journal, complete with 167 footnotes. the title of what is now the most important thing brett kavanaugh ever wrote before becoming a supreme court justice is, the president and the independent counsel. brett kavanaugh reviewed the history of special prosecutors going back to the administration of president ulysses s grant. on page three of the article brett kavanaugh writes, congress can answer a question that the constitution does not explicitly address. is the president united states subject to criminal indictment while he serves in office? congress should establish that the president can be indicted only after he leaves office voluntarily or is impeached by the house of representatives and convicted and removed by the senate. brett kavanaugh would not advocate that congress pass an unconstitutional law. that sentence alone indicates the supreme court justice brett kavanaugh believes, quote, the president can be indicted only after he leaves office. page 16 of brett kavanaugh's article removes all doubt about what supreme court justice brett kavanaugh actually thinks. quote, the framers thus appeared to anticipate that a president who commits serious wrongdoing should be impeached by the house and removed from office by the senate and then prosecuted thereafter. the constitution itself seems to dictate, in addition, that congressional investigation must take place in lieu of criminal investigation when the president is the subject of investigation, and that criminal prosecution can occur only after the president has left office. and right there, in writing, brett kavanaugh destroys the totality of donald trump's appeal tonight to the united states supreme court. brett kavanaugh destroyed the idea that the president cannot be prosecuted after leaving office for crimes committed while in office. simultaneously brett kavanaugh destroys the absurd trump lawyer notion that it would be double jeopardy to prosecute donald trump now after he faced an impeachment trial in the united states senate for essentially the same high crimes. i'm going to read these two sentences again, because these two sentences prove just how quickly the united states supreme court can actually handle this appeal and write a fully authoritative opinion in this appeal because the supreme court's opinion could be written by brett kavanaugh and amount to only these two sentences, the framers this appeared to anticipate that a president who commit serious wrongdoing should be impeached by the house and removed from office by the senate and then prosecuted thereafter. the constitution itself seems to dictate in addition that congressional investigation must take place in lieu of criminal investigation when the president is the subject of investigation and that criminal prosecution can occur only after the president has left office. and of course brett kavanaugh's article quotes the constitution in full support of his position. article one, section three, clause seven, quote, judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the united states. but the party convicted shall never the less be liable and subject to indictment, trial, judgment, and punishment, according to law. so the constitution says that after leaving the presidency, donald trump is, quote, subject to indictment, trial, judgment and punishment, according to law. it's all over. it's all over. the presidential immunity that donald trump's constitutionally illiterate criminal defense lawyers have invented is a fiction that will likely be crushed by the supreme court unanimously. any member of the supreme court trying to rule for donald trump will have to find a way to rewrite the line of the constitution says that a former president is, quote, subject to indictment, trial, judgment, and punishment, according to law. it cannot be done. you cannot re-write that line. donald trump will be going to trial in the case of united states of america versus donald j trump, possibly on the scheduled trial date of march 4th if the supreme court acts quickly enough in this appeal, which the court in the past is known how to do. donald trump is definitely going to trial in the case of georgia versus donald trump. donald trump will definitely go to trial the criminal case of new york versus donald trump for business fraud, and donald trump is going to trial in the criminal case of united states of america versus donald j trump in federal court in florida, where the federal judge in that case appointed by donald trump will continue to do everything she possibly can to delay the trial and help donald trump in any way she possibly can. brett kavanaugh won't be doing that for donald trump. brett kavanaugh destroyed donald trump's appeal in writing 25 years ago. there is no more important trump legal news tonight than the words supreme court justice brett kavanaugh wrote 25 years ago. leading off our discussions tonight is andrew weissmann, former fbi general counsel former chief of the criminal division in the eastern district of new york. he's the co-host of the msnbc podcast prosecuting donald trump. also with us, barbara mcquade, former u.s. attorney and law professor at the university of michigan law school. she is also the co-host of the podcast hashtag sisters in law. they are both msnbc legal analysts. and andrew, with the guidance of justice kavanaugh, i just can't see how it's anything but unanimous. >> okay, so i agree with you that the supreme court is, i think, gonna take this. they're gonna have a decision that's expedited, and i think on the double jeopardy part of the issue it's hard to see how it won't be unanimous. it's such a clear issue. on the other part, you only need five. i'll be happy with five. whether the court, there are certain justices who are stragglers in dissent, so be it. it doesn't matter as long as you get to five. that's the famous -- sandra day o'connor was asked what's it like being on the supreme court and she said you want to know what it's like? five. it's all about how you get to five. i'm a little bit sanguine then you are with respect to the kavanaugh article. this is why. the court has already said, with respect to civil liability, of the president, that he has civil liability, or she, eventually, will have civil liability if the president has acted within the outer perimeter of his authority. and so the issue for the court here i think will not be so much can a former president not be prosecuted no matter what he did, in other words if he goes on fifth avenue and shoots somebody, that clearly brett kavanaugh saying saying that you can be prosecuted for that. as a former president. frankly, you can be prosecuted for it as a current president. the issue will be this issue of the outer perimeter. whether the immunity will be like civil liability, where as long as the president was acting within the functions of the office of the presidency then will he enjoy the same immunity that he has in the civil realm in the criminal realm? that's something the d. c. circuit was recently dealing with. and so i think that will be the issue, less than a categorical bald faced claim by trump's lawyers that no matter what he dies, even if he kills somebody on fifth avenue. so i think that kavanaugh's article is useful for the broad claim, but it doesn't answer the narrow climb. having said, this is like super nerdy because at the end of the day, i do think they will be at least five justices who say that in this case, the case can go forward. en banc -- -- -- >> barb mcquade, the trump lawyers are not arguing a narrow point here. they have said he can do absolutely anything and you cannot prosecute him if he does it while he is president. >> that's right. that claim is absurd. we heard that once before when the manhattan district attorney was issuing subpoenas to investigate donald trump back a couple of years ago. the supreme court rejected that argument that the president couldn't be investigated in a criminal case. that was a sitting president. but here i think the answer is going to be, as andrew says, more focused on whether this was in his capacity as president has not or not. as we have seen judge chutkan right, as we saw the d. c. circuit court of appeals right in a civil matter, when donald trump was pushing to change the outcome of the election as alleged in the indictment, he was acting as a candidate. he was wearing his hat as a campaigner. he was not executing the duties of the presidency. because he wasn't acting in that role, none of his conduct is covered by any immunity that he might have. >> and andrew, i can just hear it now, when we're in the supreme court argument on this. and justice kavanaugh asks any question at all of the government, these words from justice kavanaugh 25 years ago are going to be repeated, if not already in the brief. >> absolutely. he's going to be very aware. all the other justices are going to be very aware. and of course everyone already knows he was part of a sort of type of special counsel and so he has written and has views that he has voiced about this not exact predicament, but pretty darn close. that's why i just think he and justice roberts, i think, are going to be, at least those two, will be joining those three so-called liberal justices. and that gets you to five. and as i said, who cares after that? and this is one where to try and analogize this to the civil context is one where i would strongly urge everyone to read judge chutkan's decision, because she just goes chapter and verse through the text, the structure, the history, and then the logic of why it makes no sense to apply the same rules of civil immunity that former president enjoys in the criminal context, because of course criminal context is much more serious. we as the public shouldn't be tolerating that and there is nothing in the constitution, to be clear, the constitution is silent about presidential immunity. so all this would be invented by the court, the same court doesn't want to invent rights about a woman's right to choose. for them they would really be creating yet another right when it suits them. i don't think they will have five votes in the court to support donald trump's position. >> meanwhile, barbara there is wrangling between jack smith and the trump criminal defense lawyers about what exactly can happen in this case while an appeal is pending. can any more discovery go on? does it all have to shut down? but it seems like this is a largely academic point at this stage, since the supreme court seems to be moving very quickly here. >> it is and it isn't. even quickly for the supreme court is probably gonna be weeks and not days. they've asked for the response brief from donald trump as to whether the court should even take up the question by december 20th. and so to keep things moving for that march 4th trial date, i think jack smith very much wants to continue. a number things need to be done to resolve some other pending motions. they want to get on with our motion practice under the classified information procedures act, which talks about how they're gonna handle classified information. there are notices that need to be filed for expert testimony and other things. i think jack smith wants to keep that rolling. donald trump's lawyers are saying, no everything must halt while this is on appeal. i think it's clear the trial can't take place until the appeal is decided. i don't think it's clear that the pre trial proceedings have to stop as well. >> barbara mcquade, andrew weissmann, please stay with us. we're gonna squeeze in a commercial break. when we come back there is defendant giuliani news from the sidewalks of washington d. c. where he has said things that have gotten him into even more legal trouble in the last 24 hours. ♪ and struggle with cpap. you should check out inspire. ♪ no mask. no hose. just sleep. inspire. sleep apnea innovation. learn more and view important safety information at inspiresleep.com ah mornings! cough? congestion? i'm feeling better. all in one and done with new mucinex kickstart. headache? better now. new mucinex kickstart gives all-in-one and done relief with a morning jolt 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dollars in damages to two women who successfully already sued rudolph giuliani for defamation. a federal civil jury in washington d. c. is now considering how much money they will force rudolph giuliani to pay the farmer of fulton county election workers, ruby freeman and shaye moss -- for the lies giuliani told about them. whatever the jury may have been no considering went up, when plaintiffs were able to show the jury now this video of giuliani committing defamation against the two women once again last night outside the courthouse. >> whatever happened to them, which is unfortunate for other people overreacting, but everything i said is true. >> do you regret what you did to ruby freeman? >> of course i don't regret it! i told the truth. >> what a sick, sick. man. rudolph giuliani zone lawyer has already said in court yesterday that ruby freeman and shaye moss are, quote, good people. that's his phrase. federal judge beryl howell questioned giuliani's lawyer today about how giuliani could have stood outside the courthouse last night and committed exactly the same offense against ruby freeman and shaye moss that has him facing a damages judgment now. the new york times reports, mr. sibley the lawyer also suggested that the long days in the court room could be taking a toll on mr. giuliani, 79. judge how asked mr. sibley if he was concerned about his clients age or mental capacity issues. mr. sibley said he had not seen evidence of that yet. we'd off to the enemy is facing criminal charges in georgia for his attacks on these same women. at the age of 79, a remainder of rudolph giuliani's life will be in the hands of tours jurors in washington d. c. and georgia, who could decide that the final chapter of his life will be spent bankrupt and in prison. andrew weissmann, barbara mcquade are back with us. andrew, needless to say none of us have ever seen anything like rudolph giuliani, and there he is doing on the courthouse steps but he is charged with in the courtroom. >> so this is