thank you for spending this very busy tuesday with us. "the beat with ari melber" who i think has probably read through the entire 57-page decision -- i think 57 payables. i saw you working through it. >> 57 pages. we've gone through it. we appreciate your coverage. we're making sense of it. good to see you a couple times today. welcome to "the beat."

i'm ari melber. we begin with breaking news. donald trump's federal trial is back on because this court is ruling against defendant trump today. they're green lighting the trial sought by special counsel jack smith. this spruling sets a precedent for holding a former president accountable. we have special coverage we've been working on since this broke early on the east coast today. we start with the basics. you don't need to be a lawyer or constitutional scholar to understand this. the ruling rejects donald trump's very far-fetched arguments that his job history as president should mean he could never be arrested, indicted or tried for anything related to his time in office. trump's lawyers argued he should basically retain a kind of permanent immunity from the fact he used to be president. the court is rejecting that today. we're going to begin, like i said, with the clarity of this single spare sentence. quote, for the purpose of this criminal case, former president

trump has become citizen trump. that's it. if you don't want to read the whole thing, and we'll give you more context, that's the ruling right there. that term, "citizen trump," is the high court saying this prosecution, trial and possible incarceration like any other citizen. that is the top line. that is the key. that is why this is a devastating loss to a defendant, donald trump, who hoped to either establish some new get-out-of-jail-free card for long-term, permanent immunity, or to use this to delay the case indefinitely. here is how the historic news broke today. >> that d.c. appeals court that had taken up this issue of presidential immunity, the court has denied trump's argument. >> this is a big win for spouse jack smith, and clearly a setback for former president donald trump. >> the trump team has already indicated that they intend to

appeal this decision to the u.s. supreme court. >> this is also about timing. we know former president trump and his legal time, they are trying to do anything they can to delay -- >> to delay. trump's legal team has one move left. they say they're going to trial. they're going to ask the supreme court to review today's big ruling. that could delay any trial of donald trump if the supreme court takes the case. but the supreme court could also simply decline that request, letting this ruling stand. the supreme court denying far-fetched trump legal appeals is not a new thing even though he has appointed three justices in the current court. that's how the court, remember, handled many trump appeals in the related period after his november 2020 loss. this high court never heard, let alone overturned, appeals court rulings against trump's election theories and complaints about his loss. i say that by way of background. the court could also decide this is a big legal question about a

former president and they could hear this case as a way to review. today's ruling is legally solid. it was unanimous, three judges siding with jack smith. the d.c. circuit is considered the key court of appeals in the nation with expertise on government issues and in a ruling says trump is waging an unprecedented assault on the structure of our government. the court discussed the evidence that drum stands accused of injecting himself into a process in which the president has no role, accounting and certifying of the electoral college votes, undermining constitutionally established procedures. so, if your argument is, hey, i was just president, in fact you're doing something where you have no role, because the presidency, as powerful as it is, is a government role. we've been at this for a long time in this country. there have been limits established. for instance, the president storms the capitol and says he wants to vote in congress,

that's not part of the presidential role. that might sound far fetched except when you you remember a bunch of the ex-president's supporters did storm the capitol and in testimony in the january 6th hearings, he wanted to physically storm as well. the court today is finding those kind of efforts for the president to go far beyond what is even debatable in his powers and those efforts waged for malicious or criminal intent doesn't mean you have no limit there, doesn't mean there's no limit to ever prosecute that after you leave office. those kind of things can be prosecuted just like, say, murder. >> could a president who ordered s.e.a.l. team six to assassinate a political rival who was not impeached, would he be subject to criminal prosecution? >> if he were impeached and convicted first -- >> your answer is no? >> that was the most infamous exchange in the oral argument for today's ruling.

if you're trying to keep it straight and say, i watch the news, there's a lot of different trump cases and prosecutions, that infamous argument which made waves well outside of news, it was on the late night shows, on the internet, are we living through this? that was from this case, the trump theory promoting the violent lawless theory of presidential power. today the news is that this ruling answers that exchange. the court ruling against trump and noting his stance would collapse our very system of separated powers by placing the president beyond the reach of all three branches. that is court speak for we don't have a dictatorship. we have separate coequal branches of government. the court knows that the trump alternative theory would be congress could not legislate the executive, could not prosecute and the judiciary could not review. again, that is a description of a quasi dictadictatorship. jack smith's win reenforces

accountability not only for citizen trump, as the court called him, or any president. the court flatly noting we cannot accept the office of the presidency places its former occupants above the law. that principle is not new, but tonight, because of the extreme and egregious behavior of a single former president, tonight that principle is reaffirmed in a very high level. if the supreme court, as i said, doesn't take and review this case, this would be the last word on it. many, many key precedents come from these appeals courts or the d.c. circuit, not all the way up to the supreme court. i told you we'd start simple and we did. i showed you some of the basic sentences from this court that tells you why this is a citizen trump and not aend, before i brn our guests, with one other slightly morethe's been a lot ot

voter fraud, democracy, who is the bad party stealing them or not. there's been talks about coups and insinsurrections. this ruling cuts to the heart of accountable in our system in an imperfect but still functioning democracy. this is the most important part in my legal analysis for you tonight, which i'm about to show you what the judges said. here is the concept. how ever imperfect and how ever frustrating and how ever slow, the people still have the greatest check on power through their vote in a functioning democracy. a if that is stolen by liars or would-be tyrants who accuse others of doing the stealing and others of being illegitimate, if that is stolen, this nation will not endure as a democracy that is able to check political power with people power. that's why this whole thing matters. it's not because people have

other objections to donald trump or his style or what he's put us through or how much time and energy he may have sucked out of the body politic away from other things that could have been addressed, legislative and other policies. it's not about that. everyone knows donald trump tried to steal the race after he lost. whether he did it in a way that is criminal and, therefore, jailable, is still for the courts to decide. not for you or i or any observer, but for the courts through a mandated system and due process protections and a jury of your peers. the other key line tonight in this ruling speaks to this clash, this talk of coups and insurrections and voter fraud which has very sadly and sometimes frustratingly defined our civic life for the past few years. the judges ruled they cannot accept the claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power, the recognition of

election results. here we are full circle. because those election results, that check on power still works. that's what we're talking about. it was those election results that functioned in 2020. today the court ruled that that check must still operate in the election we're heading towards later this year, not by delaying accountability or sugarcoating or punting, but rather, no matter what happens in this trial, which is now back on and which could still acquit the defendant or have a mistrial or have many endings that might not be what people want donald trump to be tried or hoping for, but the functioning of the system, holding that trial of a former president alongside this year and this campaign, that's what the system demands. that's what today's ruling sets.

now we turn to two experts exactly on the intersection of the supreme court and criminal trials. neal katyal, president obama's acting solicitor general, arguing many supreme court cases. leslie caldwell the head of the justice department's criminal division, overseeing even such type cases that have politicians, high profile defendants and other complex issues. welcome to you both. neal, your thoughts on today's opinion? >> it's long and polite. when you look at the substance of it. the appeals court made one thing painfully clear, trump's position on absolute immunity is dead wrong. i guess you could call him a loser. the decision is an important step, obviously, as you were saying, in restarting the criminal proceedings against defendant trump. to me more than that, and i heard your sentimentality, and i

want to share it, it's a really important affirmation that in this country we treat citizens equally. it doesn't matter how rich you are, status, political jobs you've had. you still have to face the law. there's no presidential get-out-of-jail-free card in our constitution. former presidents get all sorts of perks, pension, health care, secret service and the like. the appeals court said today the one perk you don't get is lifetime protection from criminal prosecution. you are citizen trump, not president trump. >> leslie, this is a big win for jack smith's office which tried to push this forward. how do they now respond when the default is the trial is back on, they can file motionless, seek a date? although at the same time the supreme court will decide whether to take this or not. >> so the d.c. circuit gave former president trump until this coming money, february 12th, to either make an effort

to go to the supreme court or not. if he doesn't do it by that date, what's called the mandate, meaning making the d.c. circuit opinion official, will go out, and the case will go back to judge chutkan's court. she will then put it on her calendar, and it will stay there and move how ever it's going to move unless the supreme court does decide to take the case. so it puts the case back in the district court pretty quickly unless something happens at the supreme court level. i'd also like to comment on one thing neal said. i think it's really important -- first of all, i totally agree with neal, and with you, ari, this is a complete rejection of trump's arguments. but i also think they were very smart to write it as respectfully as they did. they took trump's arguments very seriously and wrote a very respectful opinion which i think will give it a lot more

credibility and authority going forward. >> you're both gesturing at a subtle legal point. since you brought it up and you're our experts, let's get into it. you might say aren't they always respectful and diplomatic? i think what you might be gesturing at, tell me, leslie, is some of the claims -- we played one about the murder of rivals. there are others in here -- this word doesn't appear. i did a reading, didn't control f, technically and literally dictatorial, but they don't say the dictator word. in that sense they're trying to be as formally fair and clean as possible, even though i did read a passage where they talk about the obvious claim of someone who, by the way, is running to get back into the office, that he could do anything with no review by any other branch of government during or after.

that's a dictator's level powers. that's not the american separation of powers. your response, if any, on that, leslie? >> i think if you read the opinion, that's the message. we're not a dictatorship, he's not the king. they don't say it in so many words. i think anyone who reads this will take that away from it. i think it was smart of them to avoid using adjectives and adverbs that could easily have been deployed in a case like this. >> same context to neal and remind listeners, we've had other courts, serious courts go farther and say, hey, we don't do kings in this country. it can cross into rhetoric. part of what they also need to do, legally, neal, is have an opinion that is bulletproof enough that if the supreme court wants to leave it, they have no demand, no kind of unfinished business that they have to take it. i want to play to the point of how this was worded the very

respectful way that judge henderson previewed something we saw in today's ruling which was the idea that the executive that is supposed to enforce the laws can actually go around breaking them doesn't make any sense. i'm going to play that and get your response. >> i think it's paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws. >> neal. >> tar tannism has become quite a staple in judicial opinions today, but not in today's decision about donald trump. you don't see anything like that. maybe the one place that gets a little tart is that they pointed out, look, trump, when you were in your second impeachment and trying to defend yourself in the senate, you told the senate

through your lawyers that don't impeach him because he can later be held criminally liable. now you're turning around and saying something else. that is pretty remarkable. even after all these years, trump finds a way to one up his own chutzpah. i don't think they go further than that. i think the reason is, this is a really well-balanced panel. judge henderson is a leading conservative jurist, not someone identified with the left in any way, shape or form. these three judges unanimously coming together in a serious scholarly opinion, it makes it really hard for the u.s. supreme court to take this case. the supreme court only hears about 60 cases a year. this is obviously one that is important, but as the decision "today" shows, it's one in which there's just an obvious clear right answer. and so, if i had to guess, i would say at this point, the united states supreme court is not going to hear this case.

>> you don't see four votes for it? >> yeah. you need four votes out of the nine to grant the case and you need five to stay the decision and stop the trial. i don't see right now four or five votes for either of those propositions. anything can happen, and obviously this is an important set of issues. the supreme court has never squarely held that presidents don't have absolute immunity. the reason for that, ari, we've had no former president who has ever pushed the envelope lining this and said such a crazy thing outside. even richard nixon didn't say anything like this in court. i think it's not likely to be heard by the supreme court at this point. >> i don't want to overflatter you on the way out of the seg lt. neal katyal giving a supreme court vote count is like willy wonka giving you a chocolate review. one could disagree with it, but it is deeply, deeply versed in the underlying material.

you saying that having read the decision that you don't see that appeal coming in and them taking it is big. if the supreme court doesn't take it, the trial is back on. it was scheduled for march. maybe it slides a few weeks, but not going to slide a year. that's very interesting from you. neal and lessee, thank you both. >> thank you both. really great guests for us to lead off the show. more guests coming up, including a look at how the house is within the hour or so planning to hold an impeachment vote on a biden cabinet member. that's something that almost never happens. as for the supreme court, awful eyes are on this court which has had a lot of pressure over a lot of issues over whether they do what neal expects, let this thing stand, put trump on trial or stay out of it. today set a standard that could be good for america. talk about good news, could be good for america for a long time

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turning to our league breakdown on this big win today for doj special counsel jack smith. the d.c. appeals court no one is above the law and rejecting the immunity claims we've heard so much about. the judges, as i told you at the top of the hour, the key thing is that we're dealing with citizen trump, not president trump. trump appearing in court last month to witness the contentious hearing with some of the sound we also played you and ricocheted around the world. a former president running for office again talking up the idea that he could have people killed and never be held accountable for it, could kill his political opponents. they said, if trump got that kind of immunity, wouldn't that open the proverbial pandora's box. >> to authorize the prosecution of a president for his official

acts would open a pandora's box from which this nation may never recover. could george w. bush be prosecuted for obstruction of an official proceeding for allegedly giving false information to congress to induce the nation to go to war in iraq under false pretenses? couldn't obama be potentially charged with murder for allegedly authorizing drone strikes targeting u.s. citizens located abroad. >> that voice was trump's lawyer making some of his better arguments, doesn't the president kill people and order them killed all the time. do they have to worry that every one of those could turn into a later murder case? there is something to that argument. that's why, if you follow the news, sitting presidents, first of all, can't be indicted for anything at all, period. second, there are great protections in the national security arena and otherwise. this is not of course the case about what the army did or didn't do.

today the judges said the interest in criminal accountability outweighs the potential risks of chilling presidential actions. this is a very unusual thing we're living through tonight. it's because of how donald trump has acted, how he's rolled, how he's moved. we have the appeals court making new precedent that reenforces a traditional concept. no other former president was ever indicted. nixon worried about it, but took the pardon. the judges used that law and history on their side because we have a lot of history to draw on. let's take a non-criminal example, that the appeals court looked to something that has long been a benchmark for presidential power. it goes back to truman when in 1952 the supreme court did find a sitting president exceeded his authority. he tried to basically seize the steel mills. here we see like truman this indictment charges that trump violated laws enacted by the

congress, he exercised power at the lowest ebb which is what you see. the truman youngstown case discusses. sometimes it's high like going to war. sometimes it's very low like without any other support from congress or any other part of government just trying to take, in that case, what was basically private property. the judges say trump lacked the lawful discretionary authority to defy criminal law. including president trump have not believed themselves to be wholly aligned from criminal responsibility. that was a very respectful way to put it. what they're referring to is, hey, you guys, the trump lawyers are full of it. you guys and gals, the trump lawyers, recently said trump could be tried and prosecuted once he left office. you are -- they didn't say it

this way. you, the trump lawyers are lying. you're lying about the state of the law and lying about your own positions. we will say when we use those words that are that strong, we'll show you exactly the evidence because look at the history of, say, andrew johnson, richard nixon, bill clinton, donald trump. they all faced a type of impeachment. no one was ever convicted. the judges pointed specifically to the nixon example who, of course, got that pardon from ford. they describe how the full pardon came in because those two people, they knew and accepted as the obvious fact that a former president could be tried, charged convicted. that was needed, take the pardon to avoid the legal fact that he could be charged. >> it is common knowledge that serious allegations and accusations hang like a sword over our former president's

head. i deeply believe in equal justice for all americans, whatever their station or former station. by these presence do grant a fum, free and absolute pardon unto richard nixon. >> that full pardon was to deal with the sword, as then president ford put it. the point tonight is not whether you agree with that or not. the point is it was such common knowledge in and outside of law that the sword of potential prosecution hung over richard nixon that the pardon was their decision about saving him from that. compare that to today where, until today, trump's lawyers were trying to make this argument that you could never do that, that that wasn't legally allowed. now, ford's decision proved very unpopular. he was the first incumbent president to lose since '32. clinton agreed to suspend his law license and took a fine for exchange with a deal with robert

wray's non-prosecution agreement. the point is not whether you think the impeachment charges, perjury charges or anything meant much legally. the point is they negotiated with the doj because the doj was taking the position that after leaving office they could charge a former president. the judges today also discussed that trump knew well about all of this, that on the senate floor in public, as i mentioned earlier, the reason i called this a lie is his own lawyers very recently said, of course, he can be prosecuted once he leaves office. >> after he's out of office, you go and arrest him. so there is no opportunity where the president of the united states can run rampant in january at the end of his term and go away scot-free. the department of justice does know what to do with such people. >> true. that was a statement of both the ruling now today and jack smith's position at doj about why they could put trump on trial. that statement just happened to

be given there on the senate floor very recently, in '21, by trump's own lawyer. when the court mentioned that today, that was a pique or signal, that they do understand just how extreme the trump argument is to even be discussing this in page after page after page. you can go back to nixon or back to george washington or back to the constitution which says that formerly impeached officials once they leave office can be tried like anyone else. tonight the news is that's the ruling unless the supreme court intervenes. we have two legal eagles digging into this part of the case when we come back. s part of the case we come back

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join xfinity rewards on the xfinity app or go to xfinity1stand10gs.com for your chance to win. we're back with laugh professor marissa marie and former prosecutor greenberg. professor murray we walked through this. it's a dense ruling. some parts are in general interest, for example, some of the jurisdiction stuff. the highlights i hit in our second segment go to how much this court wanted to really both wrestle with and nicely shred the dictatorial arguments. what did yu think of specifically that section? >> i think the appeals court was incredibly methodical and deliberate about addressing all

of trump's argument, even the ones that were quite stupid. they stepped through all the arguments related to absolute immunity. they talked about the more species arguments whether the impeachment judgment clause prevented donald trump from being criminally prosecuted after the fact because he was not convicted by the senate in the second impeachment. they also absolute destroyed the quite specious argument that, quote, unquote, double jeopardy principles prevented donald trump from being prosecuted here. they noted double jeopardy principles are very different from the double jeopardy clause that appears in the fifth amendment of the united states constitution. again, they took their time with this, as we have been talking about for the last month, but they really addressed all of this. now the question is whether or not the supreme court will be the next venue where drum tries to again have his day in court. >> i want to play a little something more from the impeachment trial and also put on the screen.

we're monitoring the house activities on this potential impeachment vote of a biden cabinet member. that's what's in the corner. i want to play for you another piece of the trump impeachment trial over the january 6th issues. the court actually cites this in the ruling today. i mentioned this last block, i showed bruce castor, another lawyer, david schoen. you'll get to see again another trump lawyer, the second one talking about what happened today, that two years ago, they knew a former president could be prosecuted and today that's what the court held. >> we have an investigative process in this country to which no former officeholder is immune. that's the process that should be running its course. that's the process that tells us is the appropriate one for investigation, prosecution and

punishment. >> quote, no former officeholder is immune. >> he's right. you have this opinion where all of these donald trump arguments, that he's above the law, that congress cannot legislate any laws that apply to me. the prosecutors can't prosecute me and the judges cannot review any of my actions and the voters can't vote me out. really, this opinion, to quote another former president, yes, we can. we can vote him out. the judges can review his conduct. prosecutors can prosecute him. this was such a strong opinion that really just took apart this separation of powers doctrine argument and shows why it's so important that he cannot justify the law with impunity. those lawyers support that very argument. >> professor murray, you mentioned some of the claims by the trump legal team were, quote, stupid.

one was the completely absurd idea that you'd have to always have legislative impeachment trial and conviction before a prosecution. that would grant a level of protection, basically for most presidents, as we've shown, no one has ever been convicted. practically speaking, immunity. you can see the holes in that. they were very spare here. i want to read a very simple sentence which notes that because it's a legislative and political process, impeachment acquittals are often unrelated to factual innocence. what are they saying there, professor? >> i think they're basically saying that an impeachment trial is not the same as an adjudicated trial before a court. as we talked about when we discussed both trump impeachments over the course of the last four years, ari, an impeachment doesn't have the

same kinds of procedural protections, the evidentiary standards don't apply. it's not the same as a criminal trial. when i said the argument was stupid, i could have elaborated. it was phenomenally stupid. you have a kind of hail mary law you see in a major football game. they were very kind to dispatch this and treat it as an actual argument when it was really specious and they could have dismissed it with "lol, bro, are you kidding?" ? >> would that be the lol or the laughing face, you know when you do the laughing face emoji and then the l? >> this was definitely a laughing face emoji. it was a really specious argument. they took it seriously. they didn't have to. they addressed. the also equally specious argument was the double jeopardy argument that because he had

gone through impeachment, he was somehow immune from being criminally prosecuted. they took that seriously. they didn't have to. it was a dumb argument. >> we haven't touched on that as much tonight. what you're referring to is one of the trump claims was false. he said, i've already been tried. he hasn't been tried. i think everyone knows that because, well, he's been indicted in more than one place. he has not faced a single trial. double jeopardy refers basically to that concept. he was trying to grandfather in the senate version of that. i think if a different politician, if rod blagojevich did that, you might get a whole section on that. no, you haven't been tried before. you're making a point our other lawyers made earlier in the hour. this was done really by the book. professor murray, miss greenberg, thanks to both of you. when we come back, do you know the supreme court is holding a different trump hearing this week? a lot of eyes on the supreme

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you want to see who we are as americans? i'm peter dixon and in kenya... we built a hospital that provides maternal care. as a marine... we fought against the taliban and their crimes against women. and in hillary clinton's state department... we took on gender-based violence in the congo. now extremists are banning abortion and contraception right here at home. so, i'm running for congress to help stop them. for your family... and mine. i approved this message because this is who we are. breaking news right now out of the floor of the united states house of representatives. we have been monitoring, i mentioned earlier, how this impeachment vote of secretary mayorkas was going to go. you can't make it up. the current total with zero time remaining -- sometimes they hold these votes open. the current total was about tied at 215.

now we're seeing 216-214. this is not a final result. the house floor vote is basically open, but what this means at this time is that there are, without it being finished, more nos than yeses so this relatively unusually attempt to impeach a sitting cabinet member. you can see what i see. a couple folks seeming to applaud on the left side. if there's gravelling, we're going to listen in. >> on this vote the yays are 214 and the nays are 216. the resolution is nod adopted.

>> a major failure for the speaker of the house. >> for what purpose does the gentleman from utah seek resolution? >> mrbs, i have a motion at the desk. >> mr. moore moves to recall the motion on adoption of house resolution 863. >> the question is on the motion to reconsider. those in favor say aye. those opposed say no. >> the ayes have it. the gentleman from utah. >> mr. speaker, i request the yays and nays. >> those favoring a vote by the yays and the nays will rise. sufficient number having risen, the yays and nays are ordered. pursuant to clause 8 of rule 20, further proceedings on this question are postponed. pursuant to clause 8 of rule to the unfinished business is the vote on the motion to suspend the rules and pass hr 72 -- >> we've been listening to

recently appointed speaker of the house, a major loss for speaker johnson who clearly did not get the votes they thought they had or wanted to have. speakers usually bring things to the floor that they can pass. this was a hard line demand by many within the republican party to try to make the issue of the border larger by impeaching the biden secretary mayorkas. this just failed. i can also tell you, and i'll bring in emily bazelon who has been watching with us. this is the procedural act. they'll run it back basically. the failure there of this attempt to impeach the secretary means that the republicans thought they had more votes than they did. i can tell you, if you were watching moments ago, for a while it was deadlocked at 215. the voting was technically open. it then fell by two votes.

emily bazelon, staff writer for "new york times" magazine knows plenty about the legality of so many of these border issues. we've seen it go all the way to the supreme court yesterday. what we saw here was fundamentally the politics, emily. as you and i know, people can make all the predictions they want. the republicans brought o this to the floor today to win, not to have a public embarrassment. a couple people gone, but most people were there. your reaction out of this news that the republicans failed to get their impeachment done through their narrow majority of secretary mayorkas. >> i think it's important to remember that the accusations that the republicans brought against secretary mayorkas was not corruption, it wasn't negligence. they didn't like how he was doing his job. they talk about it as willfully refusing to enforce the laws at the border. really this is a policy dispute. it's interesting that some of their members, a few of them balked and refused to go along

with this impeachment which was largely symbolic and, as you said, very much driven by politics. >> i'll bring in law professor melissa murray. i talked to my control room and said do we still have a floor camera. if we do, let's take a look at that. this is kind of the overhead there. talk this through with me as we watch. this is still a very active moment on the house floor. that's why so many people are there, they're voting on something else. as we look down, these are the camera shots we get. professor murray, we heard applause which seemed to come primarily from the democratic side of the aisle, excitement. this was not supposed to be a cliff-hanger. speaker johnson has a bit of momentum of being a new republican speaker, of rising through the current body, of being allegedly more popular among republicans than kevin mccarthy, of having a better bond to donald trump which is supposed to matter to the maga

right. yet democrats were applauding on the house floor moments ago because the republicans still came up short. >> if you watch "house of cards" you know frank underwood would never -- you really need to count the votes before you go into it. this was always doomed to failure even if it got a majority in the house and articles of impeachment was met. it was almost certainly going to fail. again, emily makes a really important point here, this always seemed more like political vengeance than actual real governance here. the president and the executive have broad authority to control the border. not unlimited or unfettered authority, but broad authority here. and there's no indication that a simple difference in policy preferences would rise to the level of the high crimes and misdemeanors that typically are contemplated for impeachment. we have talked a lot about what high crimes and misdemeanors means in the context of impeachment over the years, but

we know at the very least it is not simply a difference of opinion about public policy. >> and emily, i wonder what you think of the way the republicans sort of overplayed this. because a more reasonable or policy based approach would resonate with large parts of the country. some immigration policies are controversial even in traditionally blue states and cities. but the open questions about whether undocumented workers are being overincentivized. these are tough policy questions. and there's a lot of polling, "the new york times" had a poll in the last month showing a lot of registered democrats and independents say they want humane treatment at the border, but they want more limits. so there are plenty of areas to debate the policy. and to say maybe the biden administration's approach isn't perfect. but tonight, again, the breaking news that they failed in their vote to impeachment, but the opposite energy, politically, the republicans are now nursing

a new unforced error and loss. i'm not sure this kind of vote draws attention to the actual immigration policies at hand. it seems to more become a political story about them losing. >> right. it calls attention to how unruly this caucus is, and how hard mike johnson's job is as trying to shepherd this caucus along. the same as the speakers who came before him. there's just a really, you know, fractured nature of the republican house membership right now. it's also, i think, worth noting that this isn't the only way in which the republicans in congress are having trouble coming together around the border. we're also seeing them apparently walk away from the deal that they made about the budget that was all about trying to get concessions from the biden administration and democrats on the border that they appeared to have largely won. and then former president trump said i don't want you signing

any kind of deal with the democrats, and it seems like that's going to be enough to blow up this deal, which is the deal that a lot of them really wanted. and some republicans are saying, hey, wait a second, why are we walking away from this thing, the way we have of putting pressure on the democrats over the border that we put in place. >> professor murray. >> yeah, i think that's right. we saw today that there was an inability to get the votes needed from the republicans in order to pass immigration reform, to pass the immigration border bill. and instead, there's a pivot to this other kind of action, and i think this will leave americans wondering, what can they do? they can't figure out how to move forward on public policy. they bungled the whole impeachment process and we're still left with what appears to be for many in this country a real humanity crisis at the border. >> this is a breaking story. our guests stay, libby casey, who has been on msnbc many

times, joins us by phone because of the breaking news. libby, what happened here? is this a rebuke to the republicans and did the speaker not know what the vote count was going to be? >> i mean, the main rule of this is you don't bring up a vote unless you have the whip count. this is really a stunning defeat to speaker johnson. just a few days ago, he was expressing a lot of confidence that he had the votes to move forward with what would have been really a pretty incredible move, to charge secretary mayorkas with high crimes and misdemeanors. but there were concerns among rank and file republicans about whether or not this was the right use of process and whether or not this really made sense. and we saw just one republican peel away at first. but that one republican turned into just enough to make this a

real problem for speaker johnson. >> yeah, and that was some of the tense sort of vote count we had at the end. i was telling viewers we're going to watch this along with you. it was 215 tied which would still not execute the impeachment. but libby, then it went down two votes. what if anything can you tell us about those last-minute shifts? >> yeah, well, here's the thing. republicans could have had this if they hadn't lost a couple members. we just saw george santos expelled from the house, so they're down that way. they're down some other members so there's no room for error. it is rare that we watch a vote take place, ari, and we don't already know the outcome. this was real drama unfolding. but what it seems to be is that there was a balking at this question of whether this is the way to do this. it really is a stunning outcome. >> yeah, really striking. i want to thank libby for hopping on the phone, and our legal eagles, emily and melissa, for joining us.

let me tell everyone what's going on this big news day. we saw the surprising failure of the effort to impeach secretary mayorkas and the fallout from that will continue for republicans. we'll see hot the white house says later tonight. also, coming up, we have the great joy reid doing her hour, and then rachel, chris, and lawrence covering the other big news we began with, the stinging rebuke to donald trump's immunity claims and the ruling he will stand trial for the coup case brought by jack smith unless the supreme court intervenes. keep it locked here. thanks for watching "the beat." "the reidout" with joy reid is up next. so, we switched to tide pods free & gentle. it cleans better, and doesn't leave behind irritating residues. and it's gentle on her skin. tide free & gentle is epa safer choice certified. it's got to be tide.

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xfinity rewards presents: '1st and 10gs.' xfinity is giving away ten grand to a new lucky winner for every first and ten during the big game. enter daily through february 9th for a chance to win 10gs. with the ultimate speed, power, and reliability the xfinity 10g network is made for streaming live sports. because it's only live once. join xfinity rewards on the xfinity app or go to xfinity1stand10gs.com for your chance to win. good evening. breaking news from capitol hill just moments ago, the house failed to impeach secretary alejandro mayorkas by just two votes. it was an embarrassing loss for speaker mike johnson. we'll have much more on that dramatic moment later in the show. but we begin tonight with