that he's talking about, and witch hunts and god help us when he gets on the campaign trail and what he will say. his last rally was canceled because they didn't want to get his hair wet in north carolina. i think the biggest thing to come out of this trial politically is donald trump's temperament, especially when one or both of the women who have claimed to have had an affair with donald trump are in the courtroom with him. how will he be able to contain himself? i don't think he will. >> susan and christina, thank you both very much. great conversation. i appreciate your time. that wraps up the hour for me. i'm jose diaz-balart. you can reach me on social media. you can watch clips from our show at youtube at msnbc.com/jdb. thank you for the privilege of your time. up next, andrea mitchell talks with stephen breyer about thursday's oral arguments in the trump immunity case and a whole lot more. and that starts now.

right now on andrea mitchell reports, crossing the line. the judge in donald trump's hush money trial admonishing the former president's legal team during a hearing today to determine whether mr. trump repeatedly violated a gag order when attacking witnesses and jurors. the judge has not yet ruled on whether to fine the former president as prosecutors are requesting. plus, back on the stand. the first witness answering more questions today as prosecutors try to establish the timeline of what they call donald trump's orchestrated criminal scheme to turn the 2016 election. how mr. trump is reacting while sitting just feet away. and the u.s. supreme court preparing to hear mr. trump's claims of presidential immunity. retired justice stephen breyer joins me on his new book "reading the constitution" as well as the conflicting legal philosophies now dividing the court.

good day, everyone. i'm andrea mitchell in washington. at the hush money trial in new york today, judge juan merchan coming down on donald trump's defense attorney, todd blanche, during this morning's contempt hearing, not with the jury present, of course. the court walking point by point through mr. trump's ten alleged violations according to the prosecutor of the gag order. restricting what the former president can say about witnesses and jurors. last night, here's donald trump weighing in on the jury on conservative talk radio. >> that jury was picked so fast. 95% democrat. the area is mostly all democrat. you think of it as just a purely democrat area. it's a very unfair situation that i can tell you. >> prosecutors telling the judge, quote, trump knows what he's not allowed to do and he does it anyway. calling mr. trump's disobedience intentional. the defense firing back saying,

quote, there was absolutely no willful violation of the gag order. insisting that mr. trump was responding politically. the judge continuously pressing defense lawyer blanche for specific details telling him, quote, you're losing all credibility with the court. just outside the doors of judge merchan's courtroom yesterday, mr. trump called expected witness michael cohen his former lawyer a liar. >> and when are they going to look at all the lies cohen did in the last trial? he got caught lying in the last trial. so he got caught lying, pure lying. and when are they going to look at that? >> after the contempt hearing, the jury was brought back in, and now former "national enquirer" publisher david pecker is again on the stand. we begin with vaughn hillyard outside the court, andrew weissmann, and former u.s. attorney, chuck rosenberg. vaughn, highlights from the gag order hearing.

>> reporter: from the gag order hearing, was the fact that the judge has yet to make a determination on whether donald trump violated the gag order that he placed on him at the beginning of this trial. the prosecution brought forward ten specific social media posts in reference to donald trump's own comments to cameras upon leaving the courthouse in which he attacked michael cohen. now, over the course of nearly an hour and a half, the two sides went back and forth. the headline was judge merchan's frustration with todd blanche, questioning his credibility with the court because of his inability to articulate on behalf of donald trump the post that he says that trump was directly responding to, as to why he felt he could attack the likes of michael cohen as well as stormy daniels. but also when he reposted others' posts about individuals like the jurors or stormy daniels or michael cohen, whether donald trump was in fact

standing by those statements or endorsing them or approving of them. and that is where the judge was very specific in his frustrations with todd blanche, and so we could very well learn by day's end whether donald trump has violated and whether there's a fine or whether judge merchan as the prosecution would like, whether he will warn donald trump if he were to violate the gag order in the future he could potentially be put in jail through these proceedings. >> protecting jurors is a top priority. the judge has made that clear. what is your take on mr. trump's comments last night about the jury on that radio show? >> well, if you put together the comments, the ones last night as well as the ten others that are alleged by the d.a., and the arguments today where todd blanche tried to articulate some sort of defense, it's very clear that the judge is going to find at least one if not multiple

violations of the gag order. it should be pointed out that the d.a. is actually only seeking a fine at this point. so you might think the d.a. is coming down like a ton of bricks on this, but he's not. he's taking the first interim step which is just asking if a fine. obviously, if it continues, the d.a. may ask and the judge may impose a sentence that's much more severe, which is not just a fine but it could include some sort of jail time. >> chuck, let's talk about this. what do you think is going on here? is donald trump deliberately pushing the envelope? is he pushes for a mistrial? is he testing this judge? because clearly, the judge does not want to do the maximum thing, which would be as you step up on the ladder, trying to confine him in some way. you have a former president, he

would become a political fire storm and there are lots of obvious procedural problems there. >> look, i think the judge has fashioned a thoughtful gag order. it doesn't preclude mr. trump from campaigning. it doesn't preclude him from talking about economic policy or national security policy or foreign policy. what it precludes him from doing although he's not abiding it, is from criticizing witnesses or jurors, because in addition to being a candidate for president, he's also a criminal defendant in a courtroom in new york city. so i think the judge is in a tough position. a lot of this is unprecedented. it's a word we use often but not always correctly, here it applies. this is unprecedented. you have a gag order in a criminal trial where the defendant is a former and perhaps to be again president of the united states. but does the order permit

mr. trump to campaign? absolutely. i don't think that's a close call. again, it prohibits him, if he were to abide it, from criticizing, threatening, intimidating witnesses and jurors. your criminal justice system doesn't function without witnesses and jurors. it goes to the heart of the integrity of the judicial proceeding. what the judge is trying to do is exactly what he ought to be doing, finding some way to have that order that he issued apply to mr. trump and constrain his conduct. >> andrew, in terms of speech on social media, is there any kind of legal distinction that the judge might be determining between something that he writes or something that he reposts? is there any distinction there? >> that did come up in the oral argument. and the problem for the former president is that not all of the

posts he made were simply reposting. so his attack on the jurors, he added -- donald trump added his own words. he wasn't simply forwarding. even if you were to take that argument, and i think that's a pretty far fetched argument. i mean, let's just get real here. if you are in good faith trying to comply with that gag order, you simply would have asked your counsel or asked the court before you did it if you were really trying to do it. just to your point, andrea, this is donald trump goading the judge to do this. and i think the reason is he would much rather have all of us talk about his being jailed than to talk about the evidence at the trial. so he wants to play the martyr. he wants to have this happen and say there's another story that is not simply covering what i think is going to be a lot of

damaging evidence starting with david pecker who is back on the stand today talking about the fact that he was in cahoots with donald trump to essentially only give favorable coverage to donald trump and negative coverage to donald trump's adversaries. again, i think this is really a very standard tactic for donald trump, which is just try and change the narrative. >> and to that point, chuck, i'm reading a note here from lisa reuben who is in the overflow room, i believe. and she's talking about the fact that pecker and pecker describing his conversations with michael cohen, and with his editor, i guess it was executive editor about what was going to happen in the 2015-2016 campaign. pecker told his employee this arrangement of killing stories and stories that had come that

were negative stories had to be kept a secret because they were going to try to help the campaign and to do that, it had to stay quiet. in almost every regard, the amount of money being paid, the catch and kill scheme, the checkbook journalism is not unusual for these tabloids, but everything was geared to getting him elected. and i think just paraen thetically, our colleague rachel maddow showed the covers, and the covers are what really matter for the "national enquirer" because people don't buy it for the content. they buy it for the cover. they see it as they go into every supermarket in america. just about all of the 2016 covers that they showed, these were about, you know, trump wins this. hillary is a terrorist. hillary is terrible. it was just crazy stuff. >> right. so, andrea, mr. pecker's testimony is important because

it helps to set the scene. the government chose him as its first witness. and for a reason. you want to give the jury context. not just about mr. pecker's relationship with mr. trump but how the newspaper, maybe that's not an accurate term, the periodical they publish would engage in catch and kill and would help mr. trump by killing certain stories and help mr. trump by running others that were unfavorable to his opponents, laying out that relationship in detail is important. it helps explain not just the context to the jury but why the jury should trust mr. pecker and others who will later corroborate this relationship when they get on the stand. the devil is in the details, andrea, and it seems to me smart to start off the trial this way. >> but andrew, that's not

illegal. that's unethical. that's bad campaign. well, not bad campaign practice i guess if it works but certainly not journalistically ethical. that said, how do you get to the felony here? >> so it is important to know that this is the crime charged is false business records, but in order for this to be a felony, it's false business records that were part of a cover-up that was furthering and concealing election fraud. that is the way in which the d.a. opened. and so you have all sorts of campaign violations. campaign finance violations that the d.a. is alleging. and that the money that was being used, whether it was for paying off the doorman or karen mcdougal or stormy daniels, which is the heart of the case,

are all according to the d.a., election -- forms of election campaign fraud and part of that conspiracy. that is an element that makes the false business records a felony and not just a misdemeanor. but to your point, the bad journalist practice, if you step back and think about the big picture that's being presented to us, this case just like the fox and dominion civil case, is a form of this country really not adhering to its principles with respect to the role of the fourth estate. it's much closer to what you expect in countries like russia and authoritarian regimes. the idea that the media is in cahoots with a member of one party to get that person elected is simply not how this country operates or is supposed to operate. and we now have seen this both

with respect to the testimony today from the "national enquirer," but we also saw it with respect to fox news and dominion, that sort of fundamental principle of how the fourth estate works is really undermined and it shows that donald trump, for all of his alleging fake news, this trial is showing that he is actually adground zero of fake news and was using that to get elected. >> and andrew and chuck, stand by for a second. i want to get back to vaughn on the latest of the testimony from the google documentary, the document that we're all following. vaughn. >> reporter: right, andrea. let's be clear here. for years we have talked about david pecker and his role in this. and yet we have not heard from him publicly discuss that august 5th, 2015 meeting with michael cohen and donald trump. we have not had him on the record, and the question is, would there come a day that david pecker would testify? and as we speak, that is what is

currently happening. and michael -- david pecker, i want to read a couple specific quotes here. because he is explaining that trump tower meeting that is at the heart of this case here against donald trump. david pecker says that he told michael cohen and donald trump, quote, i said that i would also be the eyes and ears. i would notify michael cohen, and he would be able to kill, meaning kill these stories. the prosecutor from the district attorney's office asked, quote, how if at all did mr. trump react to your suggestion that you continue to do that? quote, pecker says, he was pleased. currently there is evidence being brought forward before this jury that includes those "national enquirer" headlines, the pro-trump headlines as well as the attacks on the likes of the clintons and other republican primary opponents like marco rubio and ted cruz throughout the republican primary process. those are currently being entered into evidence before the jury right now. and the question from the

prosecutor was, did each of these headlines correspond to stories you ran in "national enquirer"? yes, pecker responded. was this part of an arrangement you struck at the meeting in 2015? pecker says yes. negative stories about trump p's opponents was part of the deal, right? pecker responds yes. for the first time in the public record, we're getting david pecker corroborating what michael cohen for years has now articulated about that meeting. to note, hope hicks could well be a witness. pecker has testified hope hicks was in and out of this meeting. so we could very well get more corroborating testimony as it pertains to that exact meeting in trump tower in august of 2015. >> so chuck, is this the beginning of trying to build up the credibility of michael cohen? who was obviously a flawed witness. a convicted admitted perjurer. >> building up mr. cohen's credibility, andrea, might be a

long walk through dry sand. he's a criminal and a liar, but that doesn't mean he's not telling the truth here at trial. so what you're really trying to do is corroborate him. and by the way, i have said this before, in many years as a prosecutor, i wish all of my witnesses were nuns and librarians but they're not the ones who are around when crimes are committed. this may sound trite and it may sound cliched but the government didn't really select mr. cohen as its witness. donald trump did. if you're going to stage a criminal trial, if you're going to try mr. trump on criminal charges, you're going to choose as your witnesses people who are around mr. trump. that would be michael cohen. so think of this, again, if the analogy works as a brick wall that the prosecutors are constructing. and each of the witnesses add some number of bricks to the wall. hopefully at the end of the trial, you have a big sturdy wall and the jury understands the theory of the case and accepts your evidence.

and so are you trying to build up mr. cohen's credibility? you know, i think of it in a different way. you're trying to corroborate him so that even though he can be attacked and he will be on cross-examination as a convicted felon who really has a passing acquaintance with the truth, other witnesses and other documents will show the jury they can trust the overall story. >> chuck rosenberg, andrew weissmann, vaughn hillyard, thanks so much. we'll be checking back with you later in the program. and as donald trump is in that new york city courtroom with david pecker, of course, on the stand, a central figure in the hush money case, president biden is traveling to florida this hour to spotlight the abortion issue ahead of the state's six-week ban that goes into effect next week. joining us now, nbc news white house correspondent monica alba, and "washington post" national editor phil rucker, coauthor of i alone can fix it, and a very stable genius.

so phil, david pecker back on the stand right now. being questioned about michael cohen, as we said, after a major clash over donald trump's gag order. how is this all sitting with the trump campaign? how does this affect their ability to raise money? they're behind on the money raising, and to get him out on the trail? >> well, andrea, the campaign is in that courtroom for donald trump, and you know, one of the arguments that his defense attorneys made in court this morning is that he's not violating this gag order according to them when he comments on the trial on social media, but that's rather part of his campaign that when he makes comments about this case, about the judge, about jurors, et cetera, that's part of his campaign activity in the 2024 race. and so obviously, trump is going to be there in court for the next several weeks. that's where the campaign for him is taking place. and he seems to be leaning into this strategy of portraying himself as unfairly persecuted as a way to raise more money

from his supporters and grow sort of this cult of victimhood around him. but as we know and have seen from the last many months, he has been far behind the biden campaign in terms of the funds they have been able to raise. >> and monica, the president now campaigning in florida. from what we can tell, not that they really think they have a chance right now to get florida, but they really want to amplify the abortion issue before that six-week ban goes into effect. also affecting south carolina, georgia, other southern states. isn't that part of it? and talk to me about our new poll. abortion ranking fifth in the latest nbc news poll on issues voters find most important. it's still inflation, the border, but it's such an important focus for single issue voters. suburban women and other key groups, right? >> exactly right. that's why the president is heading to tampa this afternoon to speak about reproductive freedom and really he is heading

to the epicenter of some of these battles over abortion access. that is because that six-week ban is set to go into effect next week, and so the president is going there because he has the ability to go out and campaign and do these kinds of speeches which his aides are talking about, in contrast to his general election opponent here, and of course, former president trump who we have just been discussing. also today, the president is going to be going after donald trump very specifically when it comes to abortion. while he's not necessarily talking about specifically this hush money trial, he is going to be talking about donald trump's record on abortion and the fact that when he came out with that stance a couple weeks ago, he said it should be left to the states to decide, and he, the president, is going to directly argue that that is what has led to what we're seeing in florida, what we saw in arizona with that 1864 era abortion ban being upheld, and all of these other things that have essentially amounted to a patchwork of different guides when it comes

to abortion access across the country. so you're going to hear that message from the president, and it does come at a time when our polling shows that abortion is further down the list than some other really key issues for americans when they're asked. it's been pretty consistent actually that people identify the economy and inflation as still being at the top of their list. but this is something that when i speak to biden campaign officials about, they consistently say that if you look to the midterms, if you look to special elections and ballot measures over the last couple years, since roe fell, that this is consistently been a very mobilizing issue for voters. and that people do turn out specifically on this issue and they expect that is what will happen in november. in terms of the abortion ban going into effect in florida, at the same time there's also going to be this ballot measure that they think again will be a kind of mobilizing issue to get people to support and that this could even cross party lines. there could be people who maybe would typically support

republican candidates but they could maybe get behind the ballot measure that would protect the right to abortion access. and that's something they're seeing in the state, and that's why they want to be there on the ground to explore that even though, yes, they admit of course florida is a very red state. it's a long shot. former president trump won it both in 2016 and 2020. but that doesn't mean they're going to close the door to campaigning there and raising what they view as this very motivating issue heading into the election. andrea. >> monica alba and phil rucker, thanks both of you for the campaign trail, but the campaign is as you point out in the courtroom. let's go back to vaughn hillyard for a moment. i want to go back to you, vaughn, on what is the latest from the courthouse as donald trump sits there really trapped in his own trial. >> reporter: right. right now, the prosecution has brought forward of the "national enquirer" headlines your were talking about that go back to the republican primary when

particularly donald trump was running against the likes of ben carson, but notably, ted cruz, and there's a series of "national enquirer" pieces that were salacious and frankly unfounded in hurtful ones toward the likes of ted cruz. i was covering cruz's campaign there at the time, and there was one particular piece that is currently being discussed in which they alleged that there were multiple women ted cruz had had affairs with. this was a startling allegation at a time that essentially was a one-on-one race between donald trump and ted cruz, and currently, daefd picker who was at the time the publisher of the "national enquirer" is answering district attorney alvin bragg's office's questions about how these headlines came to be. and he articulates that he would receive a phone call from michael cohen, who was working as his personal lawyer, fixer at the time. cohen would then articulate to him that, hey, we want a story done on a certain candidate, for example, ted cruz.

then at that point, the "national enquirer" in the words of david pecker would, quote, would embellish it from there. and that is what led to these negative stories against donald trump's republican rivals. so what the prosecution is getting at is that this scheme was not only just to catch and kill of potentially negative stories against donald trump but also the creation and in the words of david pecker, the embellishment of stories against his rivals. ones that became so prevalent in the heart of the republican primary in 2016 that led to donald trump's domination. >> vaughn hillyard from outside the courthouse. thank you very much for that update. we appreciate it. and coming up next, supreme impact. my conversation with retired supreme court justice stephen breyer on a number of topics, including his view on how justices should interpret the constitution. the subject of his new book.

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and it comes as the court is suffering some of its lowest public support with majorities now seeing it as partisan and many say unethical. political oversight on conflicts of interest. all of that as a backdrop. this is not the first time the high court has been caught in the middle of a case that is decide a presidential election. in 2000, the court effectively decided that george w. bush was elected by ending a recount in florida that would have given al gore 537 more votes. gore conceded in a gracious speech that is widely praised to this day. the court's decision was accepted by the public. here with me now is retired supreme court associate justice stephen breyer. of course, participated in that case, and his new book is "reading the constitution, why i chose pragmatism, not textualism." congratulations on a fascinating book. >> thank you. >> i want to go through that with you and through some of the precedents you were involved in. so in discussing that book, and

cases like presidential immunity, and i know you're not going to talk about the pending case, but turning to the larger issue of how the public respects the court in a polarized age, in looking at bush v. gore in 2000, in your dissent, you wrote, above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the court itself. that confidence is a public treasure. public treasure. so does the court risk losing public confidence as in the past when they don't do what you wrote in your bush v. gore dissent, which you also wrote this court should resist the temptation to resolve tangential legal disbuttes where doing so threatens the outcome of an election? ? that's what i thought. i still think that about bush v. gore. i wrote that i didn't want to

take it. right now, what is the bigger issue, you say? i don't know. we have had some pretty bad decisions in the supreme court's history. as well as some pretty good ones. i think brown v. board is a pretty good one. i think dred scott v. sanford is a pretty bad one. there are many others. so i told a woman who is the -- was the president or chief justice of the supreme court of ghana, she was in my office over here. and one of the questions she asked me, she wanted to bring more civil rights into ghana, and she said, why do people do what you say? ah. what a good question. >> exactly. >> why? and in trying to answer that, i really had to give examples. i gave the example of the cherokee indians where the supreme court said northern

georgia belongs to the tribe, and the president, andrew jackson, said well, john marshall, chief justice, made his decision. now let him enforce it. and the president sent troops to georgia, but not to help the indians. rather to drive them out. they walked along the trail of tears. to oklahoma. where their descendants live to this day. and think of the problems of segregation, jim crow and how long it took to not just issue brown versus board, saying on paper, yes, they cannot have jim crow, but to make it a reality, is it a reality today? well, the legal part perhaps, but the legal part when i was a law clerk in 1964, my god, a long time ago, i would have said that what the court is trying to do in '64, ten years after brown, is to try to get that

enforced. they weren't getting much help. and i remember those signs, impeach earl warren and so forth, from the south. and what happened in my opinion, what happened, and that of a lot of others, eventually, the country turned around. the north, too, began to wake up and say, what's going on in the south is not a good idea. and you had to get millions of people, and i explained to her how difficult those cases were in arkansas, where they closed the schools. okay, now we come up to your case. your case, you say, is bush v. gore. i heard harry reid, the democrat leader of the senate, say in the supreme court at a dinner, the most remarkable thing about bush v. gore is never remarked. what? well, in his view, he said that case hurt a lot of people. that was his view.

not surprising. about half the country felt that way, maybe a few more than half. and it was wrong. that was my opinion. and i suspect it was his opinion. but people did follow it. and i say at stanford when i'm talking to students when i tell them that. a great victory for the rule of law. i know one-third of you think there should have been some paving stones thrown. you're sorry there weren't a few riots and so forth. but before you conclude that, turn on your television set. not this program. but turn on your television set and see how people decide things in countries where they don't follow a rule of law. >> do you worry about that now, mr. justice? >> you're always worried about it. >> why will people follow the law, the rulings of the court, when in dobbs, justices who have said when they're being confirmed, i will follow precedent, stare decisis.

and then they turn and they come up with a decision, 5-4, on dobbs reversing a half century of precedent, and as you write about that, on dobbs, you wrote that justices first of all, you say in your book that justices should pay more attention to the consequences of their decisions instead of focusing only on the text or originalism. how does a judge know what the consequences of a decision will be. in the dobbs decision, hasn't it been proved in state bans on ivf, for instance, the consequences are not being considered by the majority? >> i wrote or joined justice kagan and justice sotomayor, and we wrote a pretty long dissent with a lot of arguments in it. that was one of them. we thought that there would be a lot of decisions in the state, and that's there. but your first question is why would people follow it?

why? what did i tell this woman from ghana? what did i tell the chief justice there? i said you have to convince not the judges. they already understand it. and they're paid to do it. and what about the lawyers? no. you have to convince the people in the villages, the people in the towns. contrary, not your belief, but popular belief, we have 320 million people in the united states, and 319 million are not lawyers. and those are the people -- >> which is probably a good thing. >> yeah. over time, over 200 years, people gradually have dm to the point of view that we will have some cases we don't like at all. we will have some law we don't like at all. but the more important thing is called the rule of law, because that's what is one weapon in the fight against the kinds of chaos we now are seeing.

>> but when the respect for the high court is at such low levels, when people feel it's too partisan, that it's not ethical, that people have conflicts of interest, do you reach a point arguably where by following the originalists and the textualists and people who, as you write in your book, are looking at things that are not relevant because they're -- as you view the law, and as you have always interpreted the law, interpret the law in terms of the values of the founders, in terms of what they wanted our country to be and what they thought the principles of the constitution should be, not the literal words because so many things were never even imagined. i mean, look at guns. >> what do i say to the students? aboudoment, i say i found it in a letter, george washington was writing a friend. and he said the same thing that joanna, my wife, paid my

grandchildren $20 for anyone who memorizes the gettysburg address, and the first two lines of the gettysburg address say it even better than george washington. what they say in that civil war was four score and seven years ago, our fathers came forth upon this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal, women too. look, we're now engaged in a great war now. to see whether this nation or any nation so conceived, any nation so conceived, can long survive. okay, the word that describes those two great sentences and describes what george washington was thinking and what describes what i hope every high school student will think today, we are an experiment. sure, over in france, they wrote all about democracy and human

rights and the same thing up in scotland, and you can go back to rome and you'll find it, but these intellectuals are thinking, yeah, it's a great idea. but they won't be able to do it. >> let me bring you the gun issue. you write in your book, you take issue with the second amendment. second amendment, right to bear arms. they were malicious. you talk about the fact there are more guns in america than any other country. more guns than people. 400 million guns. you talk about, and we just had the 25th anniversary of columbine. you talk about the practical reality, where five justices arguably now versus four or maybe six to three are looking at the second amendment in a literal textural way and not the need by local, federal, and state governments to regulate guns to protect people's lives, children are doing duck and cover now for guns. >> i didn't take issue with the second amendment. i took issue with the majority's

interpretation of the second amendment. but i thought the second amendment showed that just what you said. it's about the militias. not about keeping a gun under your pillow. now you're getting to the point of this book. the point of this book is this, that we have had quite a long time where most judges whom i admire very much, holmes, brandeis, cardoza -- >> goldberg. >> yeah, goldberg too, absolutely goldberg. >> i read the book. >> good. that's very good. but they have a way. chief justice marshall, when we get these words, these words, the freedom of speech. the right to carry and bear arms. those words are pretty abstract. so how do we interpret them? we read them, you read them. and if the word in a statute is carrot, i tell you a secret, that doesn't mean fish. all right. but you go beyond that. and you look at the purposes.

and you look at the consequences, and you look at the values. all of those things in different cases are relevant, but there is this new, new thing coming along. i call it a tidal wave. the tidal wave is called textualism. originalism. what is says is we have a great new method. a great new method to do that judge's job. we say you do is just read. read what it says and follow what the reasonable or ordinary person would have thought those words meant at the time they were written. >> and that's what you object to. justice holmes talked about not shouting fire in a crowded room, where facing protests everywhere, freedom of speech an issue. the court is relevant to everything happening in our lives today. you love this court. you love your friends on the court. those that you disagreed with, scalia, i know how much you loved all of them. why did you retire?

>> why did i retire? i'll tell you a terrible thing. it's called the human condition. and when you get to be about 83 and i'm almost 84 years old or whatever it is, you begin to think it's time for a younger person to have that chance. it's time to move on. and it's time to maintain the institution, but the institution can be maintained without any particular person on it, namely me. so there we are. it's a tough decision. and it's a personal decision. and i thought this was the right time. i mean, i'm not going to be there until i'm 150. >> thankfully you're still teaching students at harvard law, writing books like this book, and i have to say, you know, there's some people who would say it's time for political candidates to retire when they're in their 80s, but that's another subject. mr. justice breyer, thank you so much. of course, we have the book is reading the constitution, why i

chose pragmatism, not textualism, and of course, to join us for special coverage of the supreme court's oral arguments i'll be outside the court on thursday on presidential immunity, which could be the decisive argument and decision that will affect whether there is a case, a january 6th case that is even heard before this election. thank you, justice. >> thank you. anthony: this making you uncomfortable? good. when you've got type 2 diabetes like me, you have up to 4 times greater risk of stroke, heart attack or worse death. even when meeting your a1c goal. discomfort can help you act. i'm not trying to scare you. i'm empowering you... to get real with your health care provider. talk to them about lowering your risk of stroke, heart attack or death.

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and you're looking at a live look outside the lower manhattan courtroom where day six of donald trump's criminal trial is under way. we're just getting under way because it's six to eight years we're told. we wait for a ruling on that gag order hearing that judge merchan held this morning. prosecution witness david pecker is back on the witness stand. lawyers for donald trump objecting to a line of questioning about steve bannon's involvement with pecker. you know steve bannon, the close -- well, had legal troubles of his own, but he was a close adviser during 2015, 2016, and throughout the trump presidency. back with us now from his post outside the courthouse, nbc's vaughn hillyard. also back with us, andrew weissmann and chuck rosenberg. an update on what's happening in the courtroom now? >> reporter: right, there's currently deliberation over

steve bannon's name into this conversation that the defense for donald trump is asserting and objecting to this line of questioning of david pecker. around steve bannon and his relationship with pecker, because pecker is now testified that in october of 2016, that donald trump introduced steve bannon to david pecker. now, of course, in october of 2016 was at the heart -- well, all of the deliberations over the stormy daniels payment were ongoing, but also, the fact that steve bannon was working as the chief campaign strategist, ceo of the campaign by that point. so we're currently listening to a line of questioning where the defense is saying look, steve bannon was never brought forward as a co-conspirator in this, but the questioning where the defense is saying, look, steve bannon was never brought forward as a co-conspirator in this, but the prosecution is making the case that, yes, while they're not charging steve bannon and the questions of whether he would be brought forward as a witness are

still outstanding, that they believe he fills in the gaps about some of the david pecker testimony and the extent to which it was a scheme or a conspiracy that even extended beyond just david pecker, michael cohen and donald trump but others were involved as an extension of the trump cam pawn and donald trump personally to subvert and make sure that articles through the national enquirer were put out into the sphere that were beneficial to him and damaging to others and specifically pertains to steve bannon, damaging to the clintons. but all of this is part of a conversation that is happening in real time. >> this is quite a technical legal point that is going back and forth. there is no question that the election campaign allegation is part of this case, because it is

what the d.a. says makes this a felony and not a misdemeanor. in other words, the false business records were done to further or conceal another crime. that was the intent, and that other crime is the new york campaign violation. that is a conspiracy charge. so, these are information about steve bannon that david pecker was going to testify to and in order for them to be admissible under the rules of evidence, it has to be part of a conspiracy. frankly it doesn't need to be a charged conspiracy, just a conspiracy that the judge finds existed. so it is a -- quite a technical issue. i think that the state has the better of the argument. i think the judge was a little concerned about notice, like how much notice was given to the defense that this was going to come up and it looks like the prosecution said, you know, we're going to move on, but it

is as the judge said required for this to be a felony that the state carries its burden that there is an intent to commit another crime. in other words, not just the false business records, you have to contend that some other crime was being committed. so that's sort of the in the weeds answer to sort of what was going on at the side bar on this. >> we love it when you get in the weeds. it is exactly what we need. chuck, let's continue on all that point as well as the fact that during the break, following the gag order hearing, donald trump posted on truth social about judge merchan, calling on him to recuse himself. so what is your reaction? is he poking the bear? >> it is not wise. i mean, let's be clear, the gag order doesn't preclude mr. trump from criticizing the judge. criticizing the judge is fair game. what the gag order is intended to do, primarily, is protect

witnesses and jurors and therefore the integrity of the trial. but whether it is a good idea, first of all, i mean, i think the simple answer is no. like yelling at the umpire in the top of the first inning and telling him how awful he is and being surprised when a couple of calls don't go your way later in the game. it is not a violation of the gag order. it is crass. it is foolish. but it is not sanctionable. >> and to that point, he is going to continue. he's continuing to attack the judge, to attack d.a. bragg. you just think it is not smart? >> yeah. i mean, chuck has it exactly right. it is obviously not smart. you know, if you step back from, you know, this discussion is we're talking about somebody who was the former president of the united states, and we're discussing whether he should be denigrating the legal system,

denigrating a d.a., notably both part of, you know, minority communities, and, you know, this is the former leader of the free world. he is being accorded not just due process for any defendant would get, he is clearly being provided due process above and beyond what any other defendant would get as we have talked about, the judge is in a difficult spot on the contempt order, because i truly think that any other person who is engaged in 11 episodes like this would have at least some time being stepped back, which is the term of art for spending some time, you know, in a holding cell. so, he is being courted every, every due process that anyone else would be entitled to, and

more so. so, his complaining is clearly just part of a political ploy on his part. >> and just a quick 30 seconds, vaughn, i want to explain to everyone, david pecker is on the stand, not likely that he'll finish today, and there is no court on wednesday, unless he changes that decision, the judge. so this would resume on thursday with david pecker most likely since they adjourn at 2:00 this afternoon for the continuation of passover holiday, right, vaughn? >> reporter: right. so thursday they'll come back, david pecker will continue to face questions from the prosecution, and then at that point in time, the cross examination from the defense will be able to begin. and this is sort of where we get to issues, like when the gag order comes into play and the hearing, we're dealing with minutes and every single day, and when we have passover, if the court is coming out at 2:00, suddenly there is a realization that we may get to one witness for the entirety of this week. next monday, there is also no

trial, so that's why when we talk about this trial lasting a number of weeks, this week is good evidence as to why he could see. >> exactly. vaughn hillyard and andrew wiseman, thank you to both of you. that does it for this edition of "andrea mitchell reports." thank you for being with us. follow us on social media at mitchell reports. "chris jansing reports" starts right after this quick break. "chris jansing reports" starts right after this quick break mor" memory loss is, is not something that occurs overnight. i started noticing subtle lapses in memory. i want people to know that prevagen has worked for me. it's helped my memory. it's helped my cognitive qualities. give it a try. i want it to help you just like it has helped me. prevagen. at stores everywhere without a prescription.

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