That fits in this new immunity we invented. We will ask you have a murderers row of legal analyst's. What a night. And when we are finished with that, cassidy hutchinson is going to join us. Unbelievable. She is part of what got this story moving. I envy you. That is an awesome lineup. Have a great show. Thank you. The vice president of the united states was taking notes. Donald trump always hated seeing people take notes in the white house when he was speaking, but taking notes was the least of donald trump's problems with mike pence during a meeting in which the president of the united states was trying to get the vice president of the united states to join what jack smith calls a criminal conspiracy and commit a crime against the united states of america. A crime that special prosecutor jack smith in a 165 page motion today calls a conspiracy against the rights of millions of americans to vote and have their votes counted. It was january 4, 2021. The discussion was one of several described today in which donald trump tried to get mike pence to throughout the electoral college results. The votes cast by every voter in america. This is about every vote cast. Throwing out the results of seven states with me not just that the votes in those states didn't matter, but that no votes in any states matter in deciding who the next president would be. It meant that your vote would not matter. No matter where you cast your vote. It was a meeting about whether mike pence had the constitutional authority to just throw out electoral college votes on january 6 when they are officially accepted by congress. It was a legal discussion, but no one from the white house counsel office was present. Not invited by donald trump. The lawyer arguing for donald trump in that meeting was the now indicted john eastman, who is facing criminal charges in georgia and arizona for his alleged crimes of election interference in those states. In jack smith's filing today, john eastman is referred to as coconspirator 2 and donald trump is referred to as the defendant. During the meeting the defendant asked coconspirator 2 to explain his plan to pence. He presented two options, pence could unilaterally decide objections to electors or, alternatively in the plan that coconspirator 2 devised the prior day, pence could send the electors to the targeted state legislatures to determine which votes should be counted. In the defendant's presence, co conspirator 2 admitted that the electoral count add act forbade what he proposed and no one had tested coconspirator 2's new plan to send electors back to the states. Nonetheless the defendant repeatedly expressed a preference that state legislatures, to have state legislatures do the review. Pence unilaterally reject valid electors states. Throughout the meeting the defendant repeated his knowingly false fraud claims as a purported basis for pence to act illegally. Pence is five pages of notes from the meeting reflect that. The defendant said when there is fraud, the rules get changed. Bottom line, when every state by hundreds of thousands of votes. This whole thing is up to mike pence. It has to do with you, you can be bold and do whatever you want to do. The meeting concluded with mike pence firm and clear, telling the defendant i'm not seeing this argument working. Nonetheless the defendant requested that his staff meet with coconspirator 2 again to discuss further and pence agreed. The next day, january 5, there was a rerun of the same discussion. During the meeting the defendant once again told pence, i think you have the power to decertify and when pence was unmoved the defendant threatens to criticize him publicly. I'm going to have to say you did a great disservice. That provoked pence's staff to alert the secret service detail that donald trump was going to publicly attack mike pence. Donald trump followed that meeting with a couple of phone calls to mike pence, saying you have got to be tough tomorrow. Donald trump tried to put public pressure on mike pence by tweeting lies, like all mike pence has to do is send them back to the states and we win. Do it, mike, this is a time for extreme courage. Donald trump's last attempt to personally convince mike pence to create a crime was on january 6. At 11:15 a. M. , shortly before traveling to the ellipse to speak to his supporters, the defendant called mike pence and made one last attempt to induce him to act unlawfully in the upcoming session. When he again refused and told the defendant that he intended to make a statement to congress before the preceding confirming that he lacked the authority to do what the defendant wanted, the defendant was incensed. He decided to reinsert into his campaign speech at the ellipse, remarks targeting pence for his refusal to misuse his role in the certification and the defendant set into motion the last plan in furtherance of his conspiracies. If pence would not do as he asked, the defendant needed to find another way to prevent the certification. When the defendant took the stage at the ellipse rally to speak to the supporters who gathered at his urging, he knew that pence had refused once and for all to use the fraudulent elector certificates. The defendant also knew that he had only one last hope to prevent biden's certification as president. The large and angry crowd standing in front of him. So for more than an hour the defendant delivered a speech designed to inflame his supporters and motivate them to march to the capital. The rest is history and as described by jack smith, a crime against the united states of america like no another in our history. Last night the united states of america learned beyond a reasonable doubt just how eager donald trump's next vice president would be to commit the crime mike pence repeatedly refused to commit. Look, when mike pence made that decision to certify that election, that is why mike pence is not on the stage. Senator vance, you have said you would not have certify the last presidential election and would have asked the states to submit alternative electors. That has been called unconstitutional and illegal. Would you again seek to challenge this year's election results even if every governor certifies the results? i will give you two minutes. First of all i think that we are focused on the future. He is still saying he did not lose the election. I would ask, did he lose the 2020 election? tim, i am focused on the future. That is a damning nonanswer. Leading off her discussion is andrew weissmann, former chief of the criminal division of the eastern district of new york and coauthor of the best selling book, the trump indictments. Also with us, timothy heaphy, former u. S. Attorney who served as lead investigator for the january 6 committee. Thank you both very much for joining us tonight. We all have our 165 pages here. Andrew, i simply open it to you. Guide us through what jack smith filed today. What you see is the highlights. It is really hard to do highlights, because this is bombshell after bombshell after bombshell. I actually literally highlighted every page. It is just all yellow. Exactly. It is the kind of thing that as you read it, you and i are old enough to remember watergate. This is watergate over and over again. With no disrespect at all to the january 6 committee that did an incredible job. What they couldn't get, given that they have far fewer tools than criminal prosecutors, as tim knows very well, is so much direct evidence where it is conversations with donald trump, over and over again. In addition to what you just went through, just so many people telling him there was no fraud that made any difference here. Mike pence is telling him that, his campaign is telling that. Lawyers are telling that over and over again. It is useful to remember the reason this is public is because judge chutkan denied donald trump's motion that he was making opposing this ever being anything that we could see. He continued to make motions saying no one should ever see this. It was rejected in a written decision by the judge today and she then released to this, so that is why we have it, over his opposition and now that we can see it we know why it is that he did not want anyone to see this. The same way that richard nixon didn't want anyone to see those tapes. Tim heaphy you tried to get mike pence's testimony at the january 6 committee. He refused to testify, unlike our next guest tonight coming up, cassidy hutchinson. As you read the vice president's testimony here as it is relayed by jack smith and it is not all of it, it is just the amount that he thought he needed to lay in the essence of the crimes here. The vice president on the witness stand would certainly be saying a lot more than what we see here, but what was it like for you to read the vice president story that you were trying to get and could not get at the january 6 committee? it is entirely consistent with the story that we told, but with greater clarity and greater detail. As andrew said, we had a lot of ceilings we would bump into where witnesses would say i'm not going to come, because i have an executive privilege or i'm going to come, but i'm going to stop short of testifying to you, members of congress, my direct communications with the president. The special counsel has availed himself wisely of the grand jury proceedings where he can go right upstairs to the chief judge and adjudicate whether or not a privilege claim is or is not valid and he's gotten mike pence to come and not just to come, but to testify about direct communications with the president. People like eric herschmann. This brief is filled with evidence about what those lawyers and others directly conveyed to their boss, the former president. Right? we had a lot of circumstantial evidence of what the president knew. Some direct, but a lot of circumstantial. Jack smith has done a good job filling in those gaps and it reads like a much more vibrant and detailed story, but essentially consistent with the broad scheme, intentional scheme that the select committee had. Andrew, what i was struck by was how active the defendant is in this story. As it has unfolded before, donald trump is in it, but it was not clear to me that he was picking up the phone himself and calling this person in arizona. We all know about the famous call in georgia with the secretary of state, but there were a lot more calls. There were a lot more deliberate actions by the defendant to advance the conspiracy. Absolutely and he is the principal player and in many ways the january 6 committee report, because they have this gap, was a little bit like hamlet without hamlet. And here he is not a hamlet like figure. He is very active. He is sitting there watching what he thinks is his last gasp of his administration and he is doing everything he can. In spite of the fact that he has been told over and over again that you do not have the facts and you do not have the law. Both of those are against him and he is still doing something. It is such an incredible read in terms of criminality from the heart of the white house, in the oval office. Over and over again. And on the big legal issue, which lawrence tribe is certainly going to be able to address, it shows that this was being done as a candidate. In terms of the issue that the supreme court said, which is that presidents are immune when acting as president. This picture paints over and over again that this is something he was doing and i think it is totally right to connect this to what we saw just yesterday, where you have two people running for vice president where the same denial is wrong on the facts, wrong on the law, is still to this day being repeated to the american public. Tam, there is a moment in the trumppence dialogue with quotation marks. All of these lines come from mike pence. There is a moment when donald trump is trying to insist that he join this conspiracy to use the power he does not have as vice president and he says i don't have that power. He says i don't have that power. But donald trump says to him, you are too honest. You are too honest. Now the structure of that, what that means in english is that you are telling the truth, that is what honest means. You are saying that you don't have this power, but you are being too honest in admitting you don't have this power, because that is what is preventing you from joining our criminal conspiracy. So when a prosecutor is looking for what does this defendant think and let's assume this defendant is not going to get on the witness stand, you have a witness here, mike pence, telling you exactly what he thinks. He thinks, honestly, you have absolutely no right to do what i am telling you to do. Right. The brief is written directly to address the central thing that jack smith has to prove, which is intent to disrupt the joint session. Purposeful conduct by the defendant, the former president, intending to disrupt the joint session and prevent the transfer of power, so his words directly to mike pence are the best evidence of his intent and you are right when he says you are being too honest, that is an implicit admission that what he is asking for is dishonest. Right? that is crucial evidence of intent. The other thing that is really interesting to me in the dialogues in this pleading is that he sort of predicts what he is going to do when he refuses his persuasion and that is launch the mob. He says i'm going to have to say, mike, that you disappointed me. I have to out you to the masses. He is predicting that his ultimate leverages the angry mob. That is what prompts marc short to call the secret service. Trump is essentially telling mike pence what is going to do. I'm going to get everyone mad at you tomorrow because you are too honest. Evidence of his intent to disrupt the joint session and prevent the transfer of power. Andrew, one way i was reading this filing today was literally looking for cassidy hutchinson who's going to join later tonight. I could not find her anywhere in there. Tim looked and could not see her there. It seems that one of the reasons for that is this is jack smith trying to thread this needle that the supreme court set up for him, which is nothing that is an official act, so jack smith seems to be trying to eliminate anyone from the witness list who was a white house employee as opposed to a campaign employee and there is one person in here who is both, a white house lawyer, but also volunteering for the campaign, which you can do in white house jobs, so they are using him as a campaign advisor, which is why we are going to be able to hear his testimony according to this theory, but that is how carefully this needle has to be threaded. What the supreme court did is basically they tried to really curtail what jack smith could do and to eliminate all of the official act evidence and official act witnesses and even with that, even with the supreme court trying to take a sledgehammer to this case, in the way that they also interfered with the manhattan case, dealing with the same issue. Even with that when you read this brief, you realize how much proof there is. Even within the truncated view, just a followup on one thing that tim said with respect to the vice president. When he telegraphs what he is going to do and when that happens and someone goes in and tells the president what is happening with the vice president and people are threatening to hang him, his reaction is so what? which is this sort of cavalier attitude beforehand and cavalier attitude when it is actually happening. As you know from cassidy hutchinson, that is when she was like, no more. Andrew weissmann, tim heaphy, thank you very much for leading off our discussion tonight. Now to the question of whether mike pence will ever actually get into a courtroom as a witness in this case. Will the supreme court allow that? that question goes to our next guest, harvard constitutional law professor laurence tribe. That is next. Etsy. Dangerous ladders. Gutter muck. Yuck. No wonder you hate cleaning your gutters. Good thing there's leaffilter. Our patented filter technology keeps leaves and debris out of your gutters forever. Guaranteed. Call 833 leaffilter to get started. And get the permanent gutter solution that ends clogs for good. They took the time to answer all of our questions. They really put us at ease. End clogged gutters for good. Call 833. Leaf. Filter, or visit leaffilter. Com today. My name is brayden. I was five years old when i came to st. Jude. I'll try and shorten down the story. So i've been having these headaches that wouldn't go away. 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Jude or its donors, we would have been in a bad place. These kids, they've done nothing wrong in the world. Finding a cure for childhood cancer, it means everything. Help st. Jude give kids with cancer a chance. [audio logo] here is what special counsel jack smith's 165 page brief actually asks the judge to do in this case. The request appears on the second to last page that says the court should determine that the conduct described is not subject to presidential immunity. The court should specify, one, that the government has rebutted the presumption of immunity attached to the defendant's official communications with the vice president. Two, that the remaining conduct described was not official and in the alternative, that the government has rebutted any presumptive immunity for any of the remaining conduct that the court finds to be official. And here is the line that we really need professor laurence tribe to translate for us. The government requests alternative rulings regarding rebuttal for all conduct the court finds to be unofficial to buttress the courts record and ensure thorough and efficient appellant review and minimize the risk of successive rounds of appeal. If you had any trouble following that last line, our constitutional explainer in chief is here to help you. Joining our discussion i was professor laurence tribe who has taught constitutional law at harvard law school for five decades. Thank you very much for joining us, professor tribe. Start wherever you want. Talk about how jack smith is attempting to obey what the supreme court has laid down for him as the limits of what he can charge a former president. Thanks for having me, lawrence. That line is perhaps the most confusing, so i won't begin with it. I will turn to it in a moment. I want to begin by taking a step back and saying that what jack smith did really makes one remember the wisdom of the adage, be careful what you ask for, you might get it. The supreme court, instead of addressing the damning facts that it looks like this case involves, kept saying in the oral argument, we don't care about the specific facts, we are writing for the ages and they wrote kind of a dissertation for the ages with lots of stuff that turns out to be completely irrelevant. That you could tak