Jack Smith re-indicting Trump made it 'easier' for judge to get election case back on track

PRESIDENTS HAVE IMMUNITY FROM OFFICIAL CONDUCT. I WANT TO BRING IN FORMER U.S. ATTORNEY AND MSNBC LEGAL ANALYST, CHUCK ROSENBERG, ALSO WITH US, FORMER FBI GENERAL COUNSEL AND CO-HOST OF THE MSNBC PODCAST "PROSECUTING DONALD TRUMP," ANDREW WEISSMANN. WHAT IS JACK SMITH HOPING TO DO HERE? >> AS YOU SAID, COLLISION, TO GET THE CASE BACK ON TRACK. FOLLOWING THE SUPREME COURT'S DECISION THAT A PRESIDENT -- ANY PRESIDENT IS IMMUNE FOR OFFICIAL ACTS, OFFICIAL CONDUCT, THE DIFFICULTY NOW IS FIGURING OUT WHAT IS OFFICIAL AND WHAT IS UNOFFICIAL, WHAT IS IN AND WHAT IS OUT. WITH THE SUPERSEDING INDICTMENT JACK SMITH AND HIS TEAM PROPOSED TO THE JUDGE THAT EVERYTHING THAT REMAINS NOW, EVERYTHING IN THE NEW INDICTMENT IS UNOFFICIAL CONDUCT AND PROSECUTABLE. DONALD TRUMP'S TEAM WILL CONTEST THAT AND THE JUDGE HAS A DIFFICULT TASK. SHE STILL HAS TO MAKE A DETERMINATION ADHERING TO THE SUPREME COURT'S DECISION ON WHAT IS PROSECUTABLE, AN OFFICIAL ACT, AND NONPROSECUTABLE. >> HOW DO YOU THINK JACK SMITH'S TEAM DID IN DETERMINING WHAT IS IN AND WHAT IS OUT? >> I THINK HE REALLY HELPED HIMSELF. FIRST, HE DELETED THE INFORMATION THAT THE SUPREME COURT REQUIRED TO BE TAKEN OUT, AND THAT IS THAT THE COURT HAD SAID THE PRESIDENT'S INTERACTIONS WITHIN THE DEPARTMENT OF JUSTICE ARE CORE PRESIDENTIAL FUNCTIONS UNDER THE CONSTITUTION AND HE IS ABSOLUTELY IMMUNE. IT'S NOT EVEN A REBUTTABLE PRESUMPTION. AND THEN FOR OTHER OFFICIAL ACTS AS CHUCK JUST SAID, THERE'S A STRONG PRESUMPTION OF IMMUNITY BUT IT CAN BE REBUTTED. THAT'S WHY YOU SEE HERE BOTH A DELETION OF INFORMATION THAT REALLY CANNOT BE CHARGED, BUT ALSO YOU HAVE THE ADDITION IN THE INDICTMENT OF LANGUAGE THAT SAYS OVER AND OVER AGAIN THAT THE PRESIDENT WAS ACTING AS A CANDIDATE FOR OFFICE, NOT AS A PRESIDENT. WHEN YOU ARE ACTING AS A CANDIDATE, IF IT CAN BE SHOWN THAT THAT'S THE CASE, THEN JACK SMITH WILL ARGUE THAT THAT IS SOMETHING YOU ARE NOT IMMUNE FOR. SO FAR IT SHOULD BE CLEAR, BY THE WAY, THERE ARE AT LEAST FOUR JUSTICES THAT AGREE WITH THAT, AND EVEN AMY CONEY BARRETT IN A CONCURRENT SAID SHE AGREED IF IT WAS SOMEBODY ACTING AS A CANDIDATE, THAT WOULD NOT BE SOMETHING SUBJECT TO IMMUNITY. FINALLY, THE THING THAT JACK SMITH DID HERE IS HE MADE IT HARDER FOR DONALD TRUMP TO ARGUE THAT THE INITIAL GRAND JURY INDICTMENT WAS TAINTED BY INFORMATION THAT IT SHOULD NOT HAVE RECEIVED BECAUSE IT WAS INFORMATION THAT THE PRESIDENT WAS IMMUNE, AND THEY PRESENTED THE NEW INDICTMENT TO A COMPLETELY NEW GRAND JURY, SO THEY REALLY TOOK AWAY ONE OF THE ARGUMENTS THAT DONALD TRUMP COULD MAKE AT THE DISTRICT COURT LEVEL AND UP TO THE SUPREME COURT. >> I DON'T THINK IT'S A SUPER SURPRISE, A GOOD DEFENSE TEAM WOULD HAVE PREPPED FOR THIS, BUT HOW LIKELY DO YOU THINK IT IS THEY COULD GET A DISMISSAL IN THIS CASE? >> I THINK IT BECOMES MUCH MORE DIFFICULT, AS ANDREW EXPLAINED, FOR TRUMP TO GET A DISMISSAL. THIS NEW SUPERSEDING INDICTMENT IS LIGHTER, MEANING PARED DOWN, AND THE OBJECTIONABLE PARTS WERE REMOVED AND MR. TRUMP'S TEAM WILL OBJECT IN LARGE PART TO SOME OF IT. AND HE HAS AN EASIER PATH FORWARD. THE PROSECUTORS HAVE TAKEN A GOOD INDICTMENT AND NOW BECAUSE OF THE SUPREME COURT DECISION MADE IT BETTER AND EASIER FOR THE JUDGE TO ESSENTIALLY APPROVE OF WHAT REMAINS AND TRY AND GET THE CASE BACK ON TRACK AND MOVE FORWARD. CHRIS, YOU ARE QUITE RIGHT. THE TRUMP TEAM MUST HAVE ANTICIPATED THIS, AND I THINK IT WAS A SMART MOVE BY JACK SMITH AND HIS TEAM TO PARE IT DOWN AND MAKE IT SIMPLER. MUCH TO CONTEST REMAINS. I THINK THE SUPREME COURT DECISION IS NOT ALL THAT EASY FOR JUDGE CHUTKAN, THE TRIAL JUDGE, TO APPLY. I THINK MUCH REMAINS, NO DOUBT, CHRIS. >> WE DON'T OFTEN HEAR FROM JUDGES IN INTERVIEWS, AND WE DID FROM KETANJI BROWN JACKSON. I WANT TO PLAY PART OF IT. >> YOU ARE CONCERNED ABOUT BROAD IMMUNITY? >> I WAS CONCERNED ABOUT A SYSTEM THAT APPEARED TO PROVIDE IMMUNITY FOR ONE INDIVIDUAL UNDER ONE SET OF CIRCUMSTANCES. WHEN WE HAVE A CRIMINAL JUSTICE SYSTEM THAT HAD ORDINARILY TREATED EVERYBODY THE SAME. >> IS WHAT SHE'S TALKING ABOUT WHAT WE'RE TALKING ABOUT RIGHT NOW, ANDREW? ABSOLUTELY. SHE WAS VERY DISCIPLINED IN THAT INTERVIEW IN THE WAY SHE SPOKE. HER DESCENT WAS QUITE PRECIPITOUS IN RAISING THE ALARM. JUST TO REMIND REVIEWERS, WHAT THE MAJORITY SAID BECAUSE TO STATE IT IS TO REFUTE IT. THEY SAID THE ALLEGATIONS IN THE INDICTMENT THAT A PRESIDENT ASKED THE DEPARTMENT OF JUSTICE TO CONJURY UP A SHAM INVESTIGATION TO UNDERMINE THE PRESIDENTIAL ELECTION, THAT THAT IS A CORE PRESIDENTIAL FUNCTION FOR WHICH A PRESIDENT CANNOT BE CHARGED CRIMINALLY, EVEN WHEN THOSE CONVERSATIONS ARE ABOUT A SHAM INVESTIGATION. THAT WAS WHAT WAS CHARGED IN THE INITIAL INDICTMENT THAT IS NO LONGER IN THE SUPERSEDING INDICTMENT AS A RESULT OF THE MAJORITY OPINION. SO YOU KNOW, I PERSONALLY AGREE WITH KETANJI BROWN JACKSON THAT THE DECISION PORTENDS SUCH POTENTIAL DANGER IN TERMS OF THE POWER IT GIVES THE PRESIDENCY. THAT'S THE REASON YOU HEARD PRESIDENT BIDEN ON THE DAY THIS DECISION CAME DOWN, THE SITTING PRESIDENT SAID THIS IS WRONG, I DO NOT -- THE PRESIDENCY SHOULD NOT BE GIVEN THIS KIND OF UNILATERAL POWER IN A DEMOCRACY. >> CHUCK, WE ONLY HAVE A MINUTE LEFT BUT I HAVE TO ASK YOU ABOUT WHAT IS NEXT. U.S. DISTRICT JUDGE, TANYA CHUTKAN, SET A HEARING NEXT WEEK TO HEAR THIS COURSE. WHAT WILL HAPPEN? >> THE TRUMP TEAM WILL ARGUE MORE THINGS SHOULD BE OFF LIMITS. THE PROSECUTOR WILL ARGUE THE NEW SUPERSEDING INDICTMENT CORRECTLY FRAMES WHAT IS PERMISSIBLE AND THEREFORE SHOULD REMAIN TRIABLE AND IT'S UP TO THE JUDGE TO DECIDE. CHRIS, I DON'T THINK IT WILL BE SIMPLE OR EASY, BUT THE PROSECUTORS HAVE LAID OUT A MORE CLEAR PATH. I THINK KUDOS TO THEM FOR DOING IT. IT WAS A SMART MOVE.