And it is pretty clear those options are as i just outlined it. Does that mean he couldnt find trump in violation of some other statute that has not been briefed before him . Nobody has also said im not going to summarily find contempt. These are things you have to bring before me. He has made it very clear. These are not summary proceedings. Unless he actually does it in front of me, im not going to do it on my own volition. We could keep going. , we shouldnt. That will do it for us for now. Now it is time for the last word with our good friend lawrence odonnell. Good evening. Good evening, rachel. We have convened our own version of the last word Supreme Court. In it, including Harvard Law ProfessorLaurence Tribe, Andrew Weissman is here with us. Senator Sheldon Whitehouse has a few things to say about it too and he will be joining us. Looking forward to it, lawrence. We learned today the United StatesSupreme Court has two different kinds of justices. Justices who are trying to protect the constitution and the law and justices who appear to be trying to protect the president , specifically the former president named trump. That is the fundamental Dividing Line that seemed to emerge on the court today with Justice Samuel alito, as usual, running away with wild flights of fancy about what would happen to president s if the Supreme Court doesnt provide them with some form of new protection that has never existed before. Justice samuel alito was placed on the Supreme Court, in effect, by the Supreme Court when the Supreme Court decided in the 2000 president ial election in favor of george w. Bush, who came in second in the voting of the American People that came in first in a 54 decision of the Supreme Court because george w. Bush, who lost the popular vote and was awarded the Electoral College by the Supreme Court became president , he was then able to put samuel alito on the Supreme Court. Samuel alito and his Opinion OverturningRoe Versus Wade quoted judges in england long before the United States of america existed who were prosecutors of witches, before they became judges who were then in the business of sentencing which is to death as judges. Samuel alito thought they were worthy of quoting in his opinion removing the right to Save Health Care services in this country for women. Today, samuel alito imagined that without some new form of immunity, written by the United StatesSupreme Court, every future president will be prosecuted by the new Justice Department that takes over after the president leaves office. In making that prediction, samuel alito was able to ignore the entire history of the United States of america prior to the criminal rampaging of donald trump in the white house. Justice neil gorsuch, whose seat on the Supreme Court was procedurally stolen by a republican senator mitch mcconnell, who stole it away from president obamas constitutional right to appoint a justice, held the seat open long enough so that donald trump could put Neil Gorsuchs in that seat. Neil gorsuch, who should be embarrassed every time he takes his seat on the Supreme Court, joined in the invented scenario of every president being prosecuted by the administration of his or her successor forever in the future. Even though that has only happened to one president , which proves that the one president those republican justices care about is donald trump. They repeatedly tried to say that their entire concern was focused on the future, imaginary president s, all of whom would appoint Attorneys General who would become prosecutorial abusers of former president s. Samuel alito declared from the bench of the Supreme Court of the United States that the Grand Jury System in america does not work. It is one thing for flippant pendants on tv to use them overdone clichid phrase about grand juries who will indict a ham sandwich if prosecutors want them to. It is another thing entirely for a Supreme Court justice to say that same thing, to use that pornographic legally ham sandwich example in the Supreme Court, which is exactly what Samuel Alito Disgracefully did from the bench of the Supreme Court today. He willfully insulted every member of every trump grand jury that has returned every indictment against donald trump. The team of judges trying to protect donald trump today came up against the newest member of the United StatesSupreme Court, who is trying to protect the constitution. Justice Ketanji Brown jackson interrupted the questioning of Donald Trumps lawyer early in the hearing with this. You suggested the lack of immunity and the possibility of prosecution in the president ial context is like an innovation. And mike understood it to be the status quo. I understood that every president , from the beginning of time, essentially, has understood that there was a threat of prosecution if for no other reason than the constitution suggests they can be prosecuted after impeachment , that the office of Legal Counsel has said forever that president s are immutable to a threat of prosecution, and they have continued to function and do their jobs and do all the things president s do. So, it seems to me that you are asking now for a change in what the law is related to immunity. Everybody has taught, including the president s who have held the office that they were taking this Office Subject to potential criminal prosecution, no . I see the opposite. I see all the evidence going the way. Marbury versus madison, mississippi Versus Johnson discussed the Broad Community principle. What was up with that pardon for president nixon . If everybody thought president s couldnt be prosecuted, what was that about . He was under investigation for private and public conduct at the times, official act and private conduct. Same with donald trump. Exactly the same. Later in the hearing, Justice Jackson imagined what could happen if the Supreme Court gives president s even more Legal Protection than they have now. If someone with those kinds of powers, the most powerful person in the world, with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes, i am trying to understand what the disincentive is from turning the oval office and the seat of Criminal Activity in this country. If the potential for criminal likability is taken off the table, wouldnt there be a significant risk that future president s would be emboldened to commit crimes with abandon while they are in office . President s from the beginning of time have understood that that is a possibility. That might be what has kept this office from turning into the kind of crime center i am envisioning. Once we say no criminal liability, mr. President , you can do whatever you want, i am worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while in office. Leading off our discussion tonight, neal katyal, who was in the Supreme Court chamber watching the arguments. He is a former acting u. S. Solicitor general, who has argued over 50 cases before the Supreme Court. He is also a professor at Georgetown Law and msnbc legal analyst and host of the podcast courtside with neal katyal. Also with us is Andrew Weissman, cohost of the podcast prosecuting donald trump. Neal katyal, let me begin with what we dont know. We listened, i know every word every one of them said. Heres what i dont know. When Justice Jackson was saying that moment was registering in the other justices, was there anything to read on other justices . I dont know what their reactions were to some of the more absurd answers landed by Donald Trumps counsel. There are so many things that can be there, that the eye can take in that we dont know when we are just listening. Which is why the American People should be able to see this and it is ridiculous they have to rely on me and a couple of other people in the room to tell them what happened. People should be able to see it for themselves. Lawrence, i have seen over 400 oral arguments at the Supreme Court and sometimes i walked out and i think it is clear what is going to happen. This was not one of those days. That is a little surprising because trumps claims were so bogus. They were ridiculous constitutional claims. I did that to get out earlier in the argument. Part of the reason why i think you are seeing some of the predictions like the court is going to side with trump and stuff has actually, i dont think that is accurate. I think it has to do with argument style. Trumps lawyer, first of all sat on the wrong side of the courtroom right when he walked in. He was bombastic, he wasnt used to, he wasnt used to the way the court does argument, whereas jack smiths lawyer, Michael Dreeben, was so collegial and almost a part of the Supreme Court. He didnt even seem like an advocate. Now, that created a dynamic in the courtroom, which built his credibility over time. Some of the early questions, which is a lot of the reporting, i dont think is necessarily where the court found up. To answer the question on absolute immunity, i think Justice Jackson was preceded by Justice Sonia sotomayor, who said this could be, this could allow a president to launch a coup. Most importantly, Justice Amy Coney barrett, when Michael Dreeben said this would make a president Above The Law and you must be liable for the crimes he commits, she said i agree. So, that is four justices there that i think are going to reject claims about absolute immunity that trump is making. The question is is there a fifth vote . That would be the Chief Justice. He was much quieter in this hearing than many. He was sullen, the Chief Justice. He does have an ability to surprise us and to do the right thing. Think about the Affordable Care act, where he was the fifth vote to uphold president obamas Signature Initiative right before the 2012 election. He reveres Chief Justice marshall, who wrote marbury versus madison, which was a Decision Compromising decision that gave something to everyone. I hold out hope, i know there are all these products and there right now, i hold out hope the chief will do the right thing here, uphold the rule of law, reject trumps claims of absolute immunity and let the Struggle Go On to the American People can see for themselves. Andrew, the chief seemed clear on this question of, so, the idea was floated what if we just expunge official acts, there will be no description of an official act in an indictment or in a criminal case against a president. But for the personal thing that he did will be what hes charged with. So, it was the chief who said what, if he appoints an ambassador and gets a Million Dollar bribe for uploading the ambassador, how do you leave out appointing the ambassador, which he has a complete legal right to do . That is a classic example of an official act. The chief got in there and on the side of common sense on that one. I totally agree that this is going to come down to the Chief Justice. And, the shocking part of the argument is if you put it in the trifecta of three cases, you have the disqualification decision, where they went out of their way and there was six justices went out of their way to basically say this is dead because we are going to go beyond what the issue is and until Congress Passes a statute, you cant do it. That was when you had three that is the colorado ballot, keeping donald trump of the colorado ballot. You are ready saw this sort of tension there. Then you have the fisher case, just a couple of weeks ago, which is the Obstruction Case where you just remember, you had chief Justice Roberts saving i think im just going to read the word otherwise demean likewise. This is mr. Tactuals side and im just going to rewrite the statute. That is also not looking great. Maybe, i agree this is his chance to do something. But, this decision, just remember, no one was arguing that private acts are either civilly or criminally immune. Everyone agrees private acts, you can always be prosecuted for. That is a given. It is not like that is a win for jack smith. That is like table stakes. He went in with that. This is about whether official act should be used. And, i was just shocked that democracy as we know it is riding on finding that fifth vote. There should not be any justices who are in any way supporting this idea. So, it was, that was what was remarkable. Maybe if you are cynical and think okay, maybe samuel alito and thomas are going to be outliers. But, the fact that it looks like theres at least four, its going to be, to me, it looks like 54, one way or the other on a case that i agree with neil is so off the charts tells you how inured we are to trump overtaking what this country is supposed to stand for. What i thought i was counting was a majority, clear majority saying, no, there is absolutely no such thing as absolute immunity, absolutely no such thing. I dont know what neil gorsuch was getting at at certain spots there, where he was saying things like, well, you know, if you, samuel alito said if you do that, Order Seal Team six, you dont have to worry about that because Seal Team Six wont obey the order to assassinate hillary clinton. And then neil gorsuch was saying, made a very clear point to say, to trumps lawyer, so theres absolutely no doubt that subordinates of the president can be prosecuted for exactly the thing you are saying the president cannot be prosecuted for and trumps lawyer said thats right, im sending all the subordinates can be prosecuted and neil gorsuch seemed to take some comfort in that like that was somehow an inhibitor on these actions. It is a typical trump answer which is everyone else is liable, except me. You are all holding the bag and i am going to go scotfree and right into the sunset. I think ultimately, there is this, you were talking to andrew about this, i think there is this possibility the chief will recognize that official acts can come in and be, it can be part of an indictment, it just cant be grounds for prosecuting someone. It is Background Information and your bribery example. That would allow the trial to go forward now. The question that i think that trump lawyer was trying to say is no, you have to go back to the district court, you have to expunge this out of the indictment and stuff like that. The special counsels lawyer, Michael Dreeben, set an excellent point. In the United States versus nixon, the Executive Privilege case, you said that information can be introduced as part of an indictment, even if it bumps up against Executive Privilege. It just cant be the basis for the criminal act. I do think there is that possibility, that the court could steer this in that way and the Chief Justice i think is acutely aware of some of that dynamic that andrew is talking about. We have lived with the Supreme Court under republican control our entire lifetimes. Im 54 years old, it has been every year it has been under republican control. This Supreme Court is more