>> Braude: TONIGHT ON "GREATER BOSTON," 2022 HAS BEEN QUITE THE YEAR FOR DONALD TRUMP, LEGALLY SPEAKING, THAT IS, AND IF THE LAST FEW WEEKS ARE ANY INDICATION, 2023 COULD BE CRITICAL.

SO WITH THE HOLIDAYS UPON US, I'VE INVITED MY VERY OWN SPIRITS OF TRUMP LEGAL PAST, PRESENT, AND FUTURE.

THAT WOULD BE RETIRED FEDERAL JUDGE NANCY GERTNER AND HARVARD LAW PROFESSOR EMERITUS LAURENCE TRIBE.

BUT BEFORE WE BRING THEM IN, LET'S GET A GOOD LOOK AT WHERE WE ARE NOW, WITH MULTIPLE CASES KICKING INTO HIGH-GEAR.

BEYOND THE MANY CIVIL MATTERS THE FORMER PRESIDENT IS TIED UP IN AND THE ONGOING INVESTIGATION INTO HIS ROLE IN ELECTION INTERFERENCE IN GEORGIA, THERE'S THE CRIMINAL REFERRAL FROM NEW YORK'S ATTORNEY GENERAL RELATED TO HER INVESTIGATION INTO THE TRUMP ORGANIZATION, THE SAME ORGANIZATION THAT WAS JUST DAYS AGO FOUND GUILTY ON MULTIPLE COUNTS OF CRIMINAL TAX FRAUD, FOLLOWING A TRIAL IN WHICH TRUMP WAS MENTIONED BY NAME THROUGHOUT.

THERE'S ALSO THE TRUMP-APPOINTED JUDGE WHO, JUST TODAY, FORMALLY DISMISSED THE CASE BROUGHT BY THE FORMER PRESIDENT, WHICH, UP UNTIL NOW, WAS BLOCKING D.O.J., DEPARTMENT OF JUSTICE INVESTIGATORS FROM USING THOUSANDS OF DOCUMENTS THEY TOOK FROM TRUMP'S MAR-A-LAGO ESTATE IN THEIR CRIMINAL INVESTIGATION.

THEN THERE'S SPECIAL COUNSEL JACK SMITH, WHO'S BEEN ON A SUBPOENA BLITZ SINCE HE WAS APPOINTED LESS THAN A MONTH AGO TO OVERSEE TWO TRUMP-INVOLVED INVESTIGATIONS.

AND, OF COURSE, THERE'S THE HOUSE SELECT COMMITTEE THAT'S SPENT THE BETTER PART OF THE YEAR MAKING THE CASE AGAINST TRUMP TO THE AMERICAN PEOPLE, AND NOW APPEARS ON THE CUSP OF ISSUING CRIMINAL REFERRALS.

AS CONGRESSMAN ADAM SCHIFF SAID AHEAD OF A MEETING ON THIS ISSUE YESTERDAY, THERE IS A LOT THEY ARE WEIGHING.

>> WHAT IS THE QUANTUM OF EVIDENCE THAT WE HAVE AGAINST INDIVIDUALS?

WHAT IS THE IMPACT OF MAKING A REFERRAL?

ARE WE GOING TO CREATE SOME SUGGESTION BY REFERRING SOME, THAT OTHERS THERE WASN'T SUFFICIENT EVIDENCE, WHEN WE DON'T KNOW, FOR EXAMPLE, WHAT EVIDENCE IS IN THE POSITION OF THE JUSTICE DEPARTMENT?

SO IF WE DO MAKE REFERRALS, WE WANT TO BE VERY CAREFUL ABOUT HOW WE DO THEM.

BUT I THINK WE'RE ALL CERTAINLY IN AGREEMENT THAT THERE IS EVIDENCE OF CRIMINALITY HERE AND WE WANT TO MAKE SURE THAT THE JUSTICE DEPARTMENT IS AWARE OF THAT.

>> Braude: I'M JOINED BY NANCY GERTNER, RETIRED FEDERAL JUDGE AND SENIOR LECTURER AT HARVARD LAW SCHOOL, AND HARVARD LAW PROFESSOR EMERITUS LAURENCE TRIBE, WHO COUNTS CONGRESSMAN SCHIFF AMONG HIS PAST STUDENTS, ALONG WITH U.S. ATTORNEY GENERAL MERRICK GARLAND, A FEW SUPREME COURT JUSTICES, AND FORMER PRESIDENT BARACK OBAMA.

WELCOME TO YOU BOTH.

GOOD TO SEE YOU GUYS.

>> GOOD TO SEE YOU, JIM.

>> GOOD TO BE HERE.

>> Braude: JUDGE GETTERRENER, IF I CAN START WITH YOU, YESTERDAY THERE WAS A NEATING OF THE JANUARY 6 COMMITTEE TO DISCUSS THESE REFERRALS.

IT WAS TERMED "SUCCESSFUL."

I HAVE NO IDEA WHAT THAT MEANS BUT THAT IS THE WORD THAT CAME OUT OF THIS.

WHAT DO YOU RANK ARE THE REFERRALS THAT ARE LIKELY TO HAPPEN, AND WHY DO THEY MATTER SINCE THEY DON'T HAVE ANY APPARENT LEGAL CONSEQUENCE?

>> THE WAY I LIKE TO THINK ABOUT IT IS THERE IS NO REFERRAL.

IN A SENSE, IT'S A VERSION OF WHAT HAPPENED IN THE MUELLER REPORT WHICH IS TRUMP SPUN-- OR, RATHER, BARR SPUN THE MUELLER REPORT AS NOT BEING AS SERIOUS AS IT WAS.

THE QUESTION HERE IS IF THERE WERE NO CRIMINAL REFERRALS OR CRIMINAL REFERRALS AGAINST "X" RATHER THAN "Y," WILL THAT BE CHARACTERIZED AS, WELL, THEN "Y" IS EXONERATED.

SO I MEAN, MY SENSE FROM CONGRESSMAN SCHIFF'S COMMENTS IS THAT THEY'RE GOING TO ERR ON THE SIDE OF MORE RATHER THAN LIZ.

IT DOESN'T HAVE ANY LEGAL WEIGHT TO IT, IN THE SENSE THAT THE DEPARTMENT OF JUSTICE IS INDEPENDENT.

BUT THE QUESTION IS THE PUBLIC IMPLICATION OF NOT REFERRING FOR CRIMINAL PROSECUTION.

>> Braude: LARRY TRIBE, DO YOU AGREE WITH WHAT JUDGE GERTNER HAD TO SAY, AND IF YOU DO, WHO DO YOU THINK THE REFERRALS WILL BE ABOUT AND FOR WHAT?

>> I AGREE IN PART, JIM.

I HATE TO EVER DISAGREE-- >> THAT ALWAYS HAPPENS WITH YOU.

>> ...WITH NANCY, BUT I THINK IT MAY BE LESS RATHER THAN MORE, BECAUSE MORE WOULD CREATE A STRONGER IMPLICATION THAT ANYONE LEFT OFF THE LIST WAS BEING EXONERATED.

IF THEY MAKE CLEAR THAT THEY THINK A GREAT MANY PEOPLE HAVE BEEN INVOLVED IN A CONSPIRACY TO OVERTHROW THE ELECTION, ALL THE WAY UP TO AND INCLUDING VIOLENT INSURRECTION, BUT SEVERAL NEED TO BE SINGLED OUT.

AND I WOULD THINK THE ONES BEING SINGLED OUT WOULD, OBVIOUSLY, BEGIN WITH THE PRESIDENT.

IT MIGHT INCLUDE MEADOWS.

IT MIGHT INCLUDE FLYNN.

IT MIGHT INCLUDE A COUPLE OF OTHERS.

IF THEY DO THAT, THE COUNTRY WILL FOCUS IN A WAY THAT IT MIGHT NOT IF THERE WERE JUST A SLAP-DASH LIST OF NAMES, AT WHICH POINT THE DOGS THAT DIDN'T BARK WOULD BEGIN TO SOUND LOUDER THAN THOSE THAT DID.

I AGREE THAT MOST OF THE REFERRALS WILL BE REALLY FOR PURPOSES OF THE COUNTRY AND HISTORY, RATHER THAN ANY LEGAL IMPACT ON THE JUSTICE DEPARTMENT.

BUT NOT NECESSARILY ALL.

THERE MIGHT BE FURTHER REFERRALS FOR OBSTRUCTION OF CONGRESS, POSSIBLY FOR PERJURY, POSSIBLY FOR WITNESS TAMPERING.

THOSE WOULD INVOLVE DIRECT ATTACKS ON THE CONGRESSIONAL PROCESS.

AND IN SOME INSTANCES, THOSE WOULD HAVE LEGAL SIGNIFICANCE, THOUGH, OF COURSING, JUDGE GERTNER IS RIGHT THAT THE DEPARTMENT OF JUSTICE IS INDEPENDENT, ANDAS WE HAVE SEEN, EVEN WHEN THEY REFER SOMEONE FOR PROSECUTION FOR CONTEMPT OF CONGRESS, THAT DOESN'T AUTOMATICALLY RESULT IN ANY ACTUAL INDICTMENT.

>> Braude: LARRY TRIBE, LET ME-- I'M SORRY, CONTINUE.

I'M SORRY.

>> THAT'S OKAY.

>> Braude: LET ME STAY WITH YOU FOR A SECOND.

THE INVESTIGATIONS THAT DO MATTER ARE THE ONES BY THE SPECIAL PROSECUTOR.

BY THE WAY, WAS JACK SMITH ONE OF YOUR STUDENTS, TOO?

>> NO.

>> Braude: SO YOU DON'T HAVE TO RECUSE YOURSELF FROM THIS DISCUSSION.

YOU WROTE A PIECE IN THE "BULLWORK" ABOUT A MOTION FOR CONTEMPT THAT SMITH FILED RELATING TO THE CLASSIFIED DOCUMENTS.

AND YOU SAID AFTER HAVING READ THAT MOTION FOR CONTEMPT AGAINST THE TRUMP OFFICE, I THINK IT WAS, "IT'S EVEN SAFER NOW THAN IT WAS DAYS AGO TO EXPECT SMITH TO INDICT TRUMP.

"Y" DID YOU WRITE THAT, LARRY TRIBE?

>> WELL, BECAUSE HE REALLY WOULDN'T HAVE FILED A MOTION TO HOLD THE FEET OF TRUMP AND HIS ASSOCIATES TO THE FIRE IF HE INTENDED SIMPLY TO LOOK THE OTHER WAY.

THAT IS, HE CLEARLY HAS RUN OUT OF PATIENCE.

HE HAS BASICALLY SAID EVERY TIME WE ASK YOU GUYS WHETHER YOU HAVE TURNED OVER ALL OF THE ILLEGALLY WITHHELD DOCUMENTS, ALL OF THE GOVERNMENT DOCUMENTS AND THE TOP-SECRET DOCUMENTS, W GET ONE ANSWER ONE DAY AND ANOTHER ANSWER THE NEXT.

AND WE'RE CHASING YOU ALL AROUND THE COUNTRY.

SOME OF YOU ARE SAYING THERE ARE SOME DOCUMENTS IN BEDMINSTER.

WE NEED TO KNOW.

AND THE FACT THAT THE CHIEF JUDGE OF THE DISTRICT OF COLUMBIA DISTRICT COURT DID NOT ACTUALLY ENTER A CONTEMPT FINDING ISED ABOUT THE POINT.

IT WAS THE FACT THAT IT WAS SOUGHT AND THAT IT WAS SOUGHT IN WASHINGTON, D.C., THAT I THINK IS IMPORTANT TO NOTE.

BECAUSE THAT SUGGESTS THAT THE INDICTMENT IS LIKELY, AT LEAST THE INDICTMENTS RELATED TO THE DOCUMENTS-- AND OF COURSE THE INDICTMENTS RELATED TO THE COUP ATTEMPT AND THE INSURRECTION...

IN D.C. >> Braude: JUDGE, DID YOU READ THE MOTION FOR CONTEMPT THE SAME WAY LARRY TRIBE DID?

>> WELL, IT DOES SUGGEST THAT HE'S ON THE CUSP OF AN INDICTMENT.

BECAUSE IT'S LIKE CALLING THE QUESTION.

IT'S LIKE ENOUGH ALREADY HE SAYS.

I WANT TO CALL THE QUESTION.

IS THERE ANYTHING ELSE HERE?

I MEAN, IT SIGNIFIES THAT HE'S MORE LIKELY AT THE END OF AN INVESTIGATION THAN AT THE BEGINNING.

IT IS EXTRAORDINARY THAT IT HAS TAKEN THIS LONG FOR THEM TO CALL THE QUESTION.

>> Braude: WELL SMITH HAS ONLY BEEN ON THE JOB A COUPLE OF MONTHS.

>> RIGHT, BUT EVEN THE DID YOU WANT.

ONE OF HE THINGS THE 11th CIRCUIT DECISION OVERTURNING WHAT CANNON DID IN THE MAR-A-LAGO CASE IS SO INTERESTING.

IT'S FINALLY SAYING, REALLY, THIS IS A NONISSUE.

WHAT THIS JUDGE HAS DONE IS A NONISSUE.

NO-- YOU KNOW, NO ONE WHO WAS INVESTIGATED BY THE DEPARTMENT OF JUSTICE GETS THE CHANCE TO INTERVENE, CHASE US ALL AROUND THE COUNTRY, YOU KNOW, CHALLENGE ISSUES BEFORE WE FINISHED OUR INVESTIGATION, AND THERE IS AN INDICTMENT.

SO IN ONE SENSE, THE JUDGE IN D.C. IS CALLING THE QUESTION.

THE 11th CIRCUIT CALLED THE QUESTION AND SAID ENOUGH ALREADY ON THIS REALLY VERY STRAIGHTFORWARD ISSUE.

>> Braude: I JUST WANT TO CLARIFY, JUDGE, STAYING WITH YOU FOR A MINUTE, SINCE YOU'VE SNAT THIS CASES.

I ASKED YOU ABOUT THIS THE OTHER DAY.

HERE'S TRUMP ON FOX NEWS DIGITAL NOVEMBER 18 AFTER THE SPECIAL COUNSEL WAS APPOINTED SAYING I'VE BEEN PROVEN INNOCENT ON EVERYTHING FROM FAKE IMPEACHMENTS TO MUELLER WHO FOUND NOW COLLUSION.

TRUMP SAID IT'S NOT ACCEPTABLE.

IT'S SO POLITICAL.

I'M NOT GOING TO PARTAKE IN IT.

WHAT IS THE LEGAL CONSEQUENCE OF A POTENTIAL DEFENDANT SAYING, "I WILL NOT PARTAKE IN A CRIMINAL INVESTIGATION "?

>> I'M TRYING NOT TO LAUGH.

>> Braude: WELL, I'M LAUGHING FOR YOU.

GO AHEAD.

>> I MEAN, IT'S LIKE, YOU KNOW, SOMEONE COMMITS A MURDER AND SAYS, "I'M NOT GOING TO PARTICIPATE.

I'M NOT GOING TO PARTICIPATE IN THE TRIAL."

>> Braude: I LIKE THAT.

>> YOU DON'T HAVE TO PARTICIPATE IN THE TRIAL.

WE'RE GOING TO BRING IT.

WE'RE GOING TO BRING CHARGES.

AND, ACTUALLY, THAT COMMENT RELATES TO MY EARLIER COMMENT ABOUT THE JANUARY 6 REFERRAL, WHICH IS THIS IS-- THE JANUARY 6 COMMIT HAS BEEN DOING AN IMPORTANT INVESTIGATION.

IT WAS A NARRATIVE FOR THE COUNTRY.

THE DEPARTMENT OF JUSTICE IS A MUCH MORE NARROW INVESTIGATION, AND SO WHO THEY REFER FOR CRIMINAL PROSECUTION BECOMES PART OF THE NARRATIVE, AND WHO THEY DON'T ENABLES COMMENTS LIKE YOU JUST QUOTED.

>> Braude: YOU KNOW, LARRY TRIBE, YOU ALSO WROTE IN THAT PIECE-- I BELIEVE IT WAS IN THAT PIECE, SOMEWHERE YOU WROTE THIS-- THAT ONE OF THE POSSIBLE CHARGES THAT COULD BE BROUGHT AROUND THE DOCUMENTS IS UNLAWFULL CONCEALMENT OF GOVERNMENT DOCUMENTS IN THE POSSESSION OF THAT FEDERAL OFFICIAL.

AND YOU SAID THAT STATUTE WOULD BAR A PERSON FOUND GUILTY OF THAT FROM RUNNING FOR OFFICE.

YOU GO ON TO SAY-- AND I'M PARAPHRASING YOU-- THAT THE LIKELIHOOD OF THAT STATUTE STANDING IF CHALLENGED, AT LEAST THE BARRING FROM RUNNING FOR OFFICE, IS VERY LIKELY, THAT IT'S PROBABLY NOT GOING TO STAND,, CORRECT?

>> THAT'S RIGHT, I WAS A LITTLE CAGEY, I GUESS, ABOUT IT.

I SAID THERE WOULD BE A CONSTITUTIONAL CHALLENGE TO IT.

THE STATUTE IS 18 US CODE 2071.

AND IT SAYS THAT IF YOU'RE GUILTY OF UNLAWFULLY CONCEALING OR OBLITERATING OR MUTILATING GOVERNMENT DOCUMENTS IN YOUR POSSESSION, YOU CAN GET UP TO THREE YEARS IN JAIL, AND YOU FORFEIT ANY OFFICE THAT YOU HOLD AND YOU'RE DISQUALIFIED FROM HOLDING ANY FUTURE OFFICE.

THE REASON THAT THERE'S A CONSTITUTIONAL CLOUD OVER THAT IS THAT UNLIKE THE DISQUALIFICATION THAT FOLLOWS IF YOU ARE CONVICTED OF INSURRECTION UNDER 18-- U.S. CODE SECTION 2383, THIS ONE DOES NOT HAVE ANY CLEAR BASIS IN THE CONSTITUTION.

THE INSURRECTION ONE IS DRAWN STRAIGHT FROM SECTION THREE OF THE 14th AMENDMENT WHICH SAYS INSURRECTIONISTS CAN'T HOLD OFFICE.

THIS, HOWEVER, COULD BE VIEWED AS AN ADDITIONAL QUALIFICATION OVER AND ABOVE THOSE THAT ARTICLE 2 SPECIFIES FOR THE PRESIDENT, LIKE YOU'VE GOT TO BE A NATURAL-BORN CITIZEN, AND SO ON.

AND THERE IS PRECEDENT FROM THE SUPREME COURT SAYING THAT CONGRESS CAN'T LAY ADDITIONAL QUALIFICATIONS ON TO THOSE THAT ARE SET IN THE CONSTITUTION.

BUT I ALSO DID SAY IN THAT PIECE-- AND I THINK THIS IS VERY IMPORTANT-- THAT WHETHER OR NOT A CONSTITUTIONAL CHALLENGE TO THAT DISQUALIFICATION SUCCEEDS, IT WOULD CERTAINLY CAST A SERIOUS CLOUD ON AN ALREADY-HEAVILY CLOUDED CANDIDACY IF SOMEONE WHO HAS BEEN DISGRACED AND TWICE IMPEACHED.

>> Braude: LARRY TRIBE, ONE LAST THING ABOUT JACK SMITH AND INVESTIGATIONS.

YOU TWEETED THAT YOU THOUGHT THAT THE LIKELIHOOD OF INDICTMENTS COMING DOWN NEXT YEAR, THAT THE TIME THAT THEY ARE LIKELY TO COME DOWN IS NEAR JANUARY OR FEBRUARY.

WHY DID YOU WRITE THAT?

>> WELL, I WAS JUST GUESSING.

>> Braude: OKAY.

>> I SAID I WAS GUESSING.

I MEAN, NONE OF US HAS A CRYSTAL BALL.

>> Braude: OKAY, OKAY.

>> MY BEST GUESS, BASED ON 50 YEARS OF TEACHING SOME OF THE RELEVANT PEOPLE AND JUST TEACHING CONSTITUTIONAL LAW FOR A WHILE AND WATCHING THE COUNTRY IS THAT IF IT HAPPENED LATER, EVERYONE KNOWS THAT IT PROBABLY WOULDN'T RESULT IN A CONVICTION IN TIME.

AN INDICTMENT HANGING OVER SOMEONE WITHOUT A CONVICTION, AND MAYBE EVEN WITHOUT A TRIAL HAVING BEGUN IS KIND OF LIKE ONE HAND CLAPPING.

IT DOESN'T CALL THE QUESTION, TO PUT IT THE WAY MY FRIEND NANCY HAS SO WELL PUT IT.

>> Braude: LET'S GO BACK TO YOUR FRIEND NANCY GERTNER FOR A SECOND.

TWO OTHER INVESTIGATIONS I WANT JUR QUICK THOUGHTS ON, BOTH OF YOU, IF I CAN, JUDGE GERTNER, STARTING WITH YOU.

FANNY WILLIS IN FULTON COUNTY LOOKING INTO THE INFAMOUS CALL FROM DONALD TRUMP TO THE SECRETARY OF STATE IN GEORGIA.

AND, SECONDLY, THERE ARE SOME PEOPLE THAT THINK AFTER THE CONVICTION OF THE TRUMP ORGANIZATION, CRIMINAL CONVICTION OF THE TRUMP ORGANIZATION THE OTHER DAY, THAT THERE IS A LIKELIHOOD THAT ALVIN BRAGG, THE MANHATTAN D.A., WHO SEEMINGLY STEPPED BACK FROM A POSSIBLE CRIMINAL PROSECUTION UPON TRUMP FOR SOME SORT OF FINANCIAL FRAUD, MAY RE-ENTER THE FRAY.

CAN YOU GIVE ME YOUR THOUGHTS QUICKLY.

>> ON THE NEW YORK STUFF, THE QUESTION I THOUGHT IS HOW CLOSE BRAGG GETS TO TRUMP.

THERE WAS AT LEAST A DEFENSE NACASE.

THE JURY DIDN'T ACCEPT IT, THAT ALL OF THIS STUFF WAS DONE BY LESSER, YOU KNOW, SUBORDINATES IN THE COMPANY -- >> BUT THE PROSECUTORS, EVEN IN THEIR CLOSING ARGUMENTS, THE PROSECUTORS MENTIONED TRUMP IT INDIVIDUALLY HAVING SIGNED OFF ON A LOT OF THIS STUFF REPEATEDLY EVEN THOUGH HE WASN'T A DEFENDANT, OBVIOUSLY.

>> IT'S HARD TO KNOW WHAT THAT EVIDENCE COMPRISES.

AND IF WIESSELBERG, THE C.F.O.

OF THE COMPANY, FINALLY POINTS THE FINGER AT TRUMP, THAT WOULD BE A VERY DIFFERENT MATTER.

WITH RESPECT TO GEORGIA, YOU KNOW, IT'S HARD TO KNOW FROM THE OUTSIDE, BUT THAT CALL WOULD HAVE CONVICTED ANYBODY ELSE.

GO FIND THE RELEVANT NUMBER OF VOTES.

THAT WALL COULD HAVE BEEN SUFFICIENT.

I ONLY ASSUME SHE HAS MORE.

>> Braude: SO, LARRY TRIBE, WHAT ARE YOUR THOUGHTS ON THOSE TWO MATTERS, MANHATTAN AND GEORGIA?

>> GOING BACK TO ALVIN BRAGG, I DON'T THINK THE KEY PROBLEM FOR TRUMP HAS ANYTHING TO DO WITH THE FINANCIAL CRIMES AND THE TAX CRIMES OF WHETHER WIESSELBERG FINALLY POINTS HIS FINGER AT TRUMP.

THE REAL PROBLEM IS REALLY-- GOES ALL THE WAY BACK TO STORMY DANIELS.

>> YEAH.

>> AND THE FACT THAT IT APPEARS THAT TRUMP AND NO ONE BUT TRUMP-- HE WAS NAMED AS "INDIVIDUAL 1" IN THE COCONSPIRACY GUILTY PLEA BY MICHAEL COHEN, YOU KNOW, ALL OF THAT STUFF.

WHETHER TRUMP-- >> THAT'S A DIFFERENT-- I AGREE WITH YOU.

>> WHETHER HE ILLEGALLY ARRANGED TO HIDE STUFF THAT HE THOUGHT WOULD PREVENT HIM OR MIGHT PREVENT HIM FROM... AND SOME PEOPLE THOUGHT, OH, THE STATUTE OF LIMITATIONS HAS RUN ON THAT.

WELL, IT HASN'T.

BECAUSE UNDER NEW YORK LAW, WHICH WOULD GOVERN ON THIS, THE STATUTE OF LIMITATIONS WAS TOLD, WHICH MEANS THE CLOCK STOPPED RUNNING WHILE TRUMP WAS PRESIDENT UNDER A RULE, I THINK MISGUIDED BUT NONETHELESS IN EFFECT AT THE TIME, THAT HE WAS, FOR ALL PRACTICAL PURPOSES, OUT OF COMMISSION BECAUSE HE COULDN'T BE INDICTED DURING THAT TIME.

SO THE TIME FOR THE STATUTE OF LIMITATIONS STILL HASN'T RUN.

AND MY OWN SENSE IS THAT IT IS NOW A RACE TO THE COURTHOUSE BETWEEN ALVIN BRAGG, WHO GOT REALLY KIND OF BURNED WHEN PEOPLE SAID, "WHY DID YOU DROP WHAT POMERANTZ AND HIS COLLEAGUES WERE GOING TO DO-- BRAGG WHO MIGHT GO AFTER TRUMP FOR BASICALLY STEALING THE 2016 ELECTION, WHICH REALLY WOULD BOTHER TRUMP MORE THAN ANYTHING; AND FANNY WILLIS WHO IS RIGHT ON THE CASE, AND JACK SMITH WHO IS REALLY BEING QUITE DOGGED IN HIS PURSUIT.

SO THERE ARE THREE, YOU KNOW, THREE ARROWS AIMED STRAIGHT AT THE TARGET IN THIS CASE.

AND IT'S NOT CLEAR WHICH WILL LAND FIRST.

>> Braude: CAN WE SPEND ANOTHER MINUTE ON SOMETHING WE TOUCHED ON A MINUTE AGO AND LAST TIME YOU WERE HERE, THE WHOLE ISSUE ON WHAT WOULD BAR TRUMP FROM RUNNING FOR FEDERAL OFFICE, OR ANYBODY.

YOU MENTIONED AMENDMENT 14 SECTION ATHLETE.

LET ME PUT IT UP FOR PEOPLE.

NO PERSON SHALL HOLD ANY OFFICE WHO HAD PREVIOUSLY TAKEN AN OATH TO SUPPORT THE CONSTITUTION OF THE U.S., SHALL HAVE ENGAGED IN INSURRECTION OR REBELLION, GIVEN AIDE, AND CONGRESS MAY REMOVE SUCH A DISABILITY.

CORRECT ME IF I'M WRONG, YOU BOTH SAID LAST TIME, THAT HE COULD RUN AND SERVE, FIREMEMBER CORRECTLY, EVEN IF CONVICTED, AND EVEN IF JAILED, FOR THINGS LIKE FINANCIAL FRAUD AND A WHOLE OTHER THINGS, THAT THE ONLY THING THAT CLEARLY WOULD BAR HIM FROM FEDERAL OFFICE IS A CONVICTION ON INSURRECTION.

STARTING WITH YOU LARRY TRIBE, DID I CORRECTLY SUMMARIZE WHERE YOU ARE ON THIS ISSUE.

>> THAT'S RIGHT.

ALTHOUGH I CAN IMAGINE HIM SAYING, "I TOOK AN OATH TO SUPPORT THE CONSTITUTION, BUT AS I MADE CLEAR, I DON'T UNBELIEVABLE CONSTITUTION.

I'M QUITE READY TO TRASH IT SO THE OATH WAS INEFFECTFUL, THEREFORE I'M NOT COULD HAVE HAD BY THE 14th AMENDMENT."

I WOULDN'T PUT THAT PAST HIM.

OF COURSE THAT WOULD BE, YOU KNOW, REJECTED, THAT CLAIM.

>> Braude: NANCY GERTNER, YOU AGREE THAT ONLY INSURRECTION-RELATED CONVICTIONS WOULD BAR TRUMP, WOULD LIKELY BAR TRUMP FROM FEDERAL OFFICE, CORRECT?

>> RIGHT.

THAT MEANS THE JANUARY 6-- WELL, IT WOULD BE-- I MEAN, IT WOULD BE AN INTERESTING THING ABOUT WHAT COMPRISES INSURRECTION.

SO, CLEARLY, HIS RESPONSIBILITY FOR THE JANUARY 6 INSURRECTION WOULD DO IT.

THE QUESTION IS HIS RESPONSIBILITY FOR, YOU KNOW, INTERFERING IN GEORGIA.

I MEAN, IT'S AN INTERESTING QUESTION AS TO WHAT COMPRISES INSURRECTION UNDER THE 14th AMENDMENT AND WHETHER IT'S NOT JUST WHAT HIS RESPONSIBILITY WAS FOR THE JANUARY 6 CAPITOL OVERRUN, BUT WHAT HIS RESPONSIBILITY WAS ALL ACROSS THE COUNTRY WITH RESPECT TO FALSEECT LECTORS, ET CETERA.

>> Braude: WHAT DO YOU THINK ABOUT THAT, LARRY TRIBE?

>> WELL, THERE'S ONE IMPORTANT ADDITIONAL POINT, AND THAT IS HE DOESN'T HAVE TO BE CONVICTED OF INSURRECTION.

IT'S NOT ENOUGH THAT SOMEONE JUST SAYS, "OH, HE'S AN INSURRECTIONIST."

BUT A NEW MEXICO COUNTY COURT DID SAY WITH RESPECT TO A COUNTY COMMISSIONER IN NEW MEXICO, THAT BECAUSE HE MORE LIKELY THAN NOT WAS INVOLVED IN THE INSURRECTION-- THOUGH HE WASN'T CONVICTED OF IT-- THAT AS LONG AS A COURT IN-- IN THAT CASE, THE COUNTY COURT IN NEW MEXICO-- FINDS THAT HE WAS GUILTY OF INSURRECTION, THAT'S ENOUGH TO DISQUALIFY HIM UNDER SECTION 3 OF THE 14th AMENDMENT.

AND I THINK THAT'S A CORRECT READING OF THE TEXT AND OF THE HISTORY OF THE 14th AMENDMENT.

YOU DON'T NEED TO BE CONVICTED OF INSURRECTION.

SO THAT WOULD SET UP A SITUATION IN WHICH STATE BY STATE, COURT BY COURT, A DIFFERENT PROCEDURE IN EACH STATE, PEOPLE WOULD ARGUE-- AND I THINK WITH SOME CREDIBILITY, ESPECIALLY IF THE EVIDENCE PRESENTED BY THE JANUARY 6 SPECIAL HOUSE COMMITTEE ON ITS FINAL MEETING AND ITS REPORT OF DECEMBER 21, ESPECIALLY IF THAT NAILS TRUMP AS THE CHIEF INSURRECTIONIST, THE INSURRECTIONIST-IN-CHIEF-- WHETHER THAT COULD BE USED AS EVIDENCE IN A COURT TO CONCLUDE-- IT WOULD HAVE TO BE A COURT.

IT WOULDN'T BE ENOUGH FOR IT TO BE A CONGRESSIONAL COMMITTEE, SOME COURT, TO CONCLUDE IN A PARTICULAR STATE THAT HE'S DISQUALIFIED UNDER SECTION 3 OF THE 14th AMENDMENT.

>> Braude: CAN WE-- >> IN THE ABSENCE OF A FORMAL FINDING, IN THE ABSENCE OF OF A PROSECUTION OR FORMAL FINDING I AGREE WITH YOU TECHNICALLY.

THE QUESTION IS WHETHER-- I MEAN, THAT WOULD BE-- THAT WOULD BE LITIGATED FROM NOW UNTIL WHO KNOWS WHEN IN THE ABSENCE OF A FORMAL PROCEEDING.

SO WHILE THAT COULD HAPPEN KNOW-- >> I DO AGREE THERE WOULD HAVE TO BE A FORMAL PROCEEDING.

BUT THERE ARE FORMAL PROCEEDINGS BEFORE JUDGES, LIKE YOU, WHEN YOU WERE A FEDERAL DISTRICT JUDGE.

IT WOULDN'T HAVE HAD TO BE A CRIMINAL PROSECUTION.

>> RIGHT.

>> IT COULD HAVE BEEN A CIVIL PROCEEDING, A DECLARATORY ACTION ABOUT WHETHER THIS CONSTITUTED AN INSURRECTION AND WHO IS RESPONSIBLE FOR IT.

>> I THINK I'M MAKING A POLITICAL RATHER THAN A LEGAL POINT.

>> Braude: CAN I INTERRUPT YOU TWO?

I WANT TO STEP BACK AND TALK ABOUT THE SUPREME COURT IN GENERAL, WHICH MAY BE THE ULTIMATE ARBITER OF A LOT OF THESE THINGS.

YOU SPENT YOUR LIFE TEACHING CONSTITUTIONAL LAW TO A LOT OF PEOPLE, LARRY TRIBE.

I WANT TO SHOW YOU A POLL THAT I'M SURE YOU'VE SEEN FROM SEPTEMBER, A GALLUP POLL HELP "HOW MUCH TRUST AND CONFIDENCE DO YOU HAVE IN THE UNITED STATES SUPREME?"

GREAT DEAL, 7%, THE LOWEST NUMBER IN 50 YEARS THAT GALLUP HAS BEEN POLLING THIS.

FAIR AMOUNT, 40%.

NOT VERY MUCH, NONE AT ALL.

THE LATTER TWO NUMBERS, NOT VERY MUCH, NONE AT ALL, ARE ALSO THE HIGHEST NUMBERS IN THE 50 YEARS, BYWAR, BY THE WAY, THAT GALLUP HAS BEEN POLLING.

WHAT DOES THAT MEAN FOR-- PUT TRUMP ASIDE FOR A MINUTE, OR MAYBE NOT-- WHAT DOES THAT MEAN FOR A DEMOCRACY TO HAVE SUCH LACK OF TRUST-- AND I WOULD ARGUE LACK OF RESPECT-- FOR THE HIGHEST JUDICIAL BODY IN A COUNTRY, LARRY TRIBE?

>> IT'S NOT GOOD NEWS.

I MEAN, I THINK DEMOCRACY DEPENDS ON ALL KINDS OF INSTITUTIONS.

IT DEPENDS ON CONGRESS.

IT DEPENDS ON THE VOTERS.

IT DEPENDS ON LOWER COURTS.

ULTIMATELY, WHEN THERE IS A CLASH OF INTERPRETATIONS OF WILL SOME CENTRAL PROVISION OF FEDERAL LAW, THERE HAS TO BE SOME AT LEAST TENTATIVELY FINAL ARBITER.

AND IF THE FINAL ARBITER IS REGARDED AS JUST A BUNCH OF POLITICAL HACKS, THEN WE'RE IN VERY DIFFICULT SHAPE.

I MEAN, AT THE EXTREME, DECREES COULD SIMPLY BE IGNORED, THE WAY ANDREW JACKSON, WHEN TOLD BASICALLY NOT TO DISREGARD THE RIGHTS OF NATIVE AMERICANS, SAID, "I'M GOING TO SEND THEM OFF ON THE TRAIL OF TEARS."

CHIEF JUSTICE MARSHAL DOESN'T HAVE AN ARMY.

HE CAN'T FORCE ME.

AND IT'S ONLY THE RESPECT IN WHICH THE COURT IS HELD THAT ULTIMATELY PREVENTS ITS DESEGREGATION DECREES AND ITS DECREES ABOUT RELEASING SOMEONE FROM PRISON OR IMPRISONING SOMEBODY OR EXECUTING OR NOT EXECUTING, FROM BEING DEFIED AT ALL LEVELS OF GOVERNMENT.

AND THAT'S CHAOS.

THAT'S ANARCHY.

AND IT'S IN THE VACUUM CREATED BY THAT KIND OF ANARCHY THAT PIRATES CAN RISE.

AND THAT'S REALLY THE GRAVEST DANGER THAT OUR SYSTEM OF GOVERNMENT AND THE RULE OF LAW WILL REALLY NOT HAVE A LAWYER IN CHIEF.

>> Braude: GERTNER, YOU TOOK AN OATH TO UPHOLD THAT CONSTITUTION.

WHAT'S YOUR TREKS THOSE NUMBERS?

>> I'M HORRIFIED.

I'M REALLY HORRIFIED.

I THINK IT IS-- IT REMINDS ME OF SOMETHING THAT GAMIELE BOUIE SAID IN "THE NEW YORK TIMES" A COUPLE OF WEEKS AGO, LIFE TENURE USUALLY WAS TO ALLOW JUDGES TO BE INDEPENDENT, TO EXPIRES-- FOCUS ONLY ON THE CASE AND NOT POLITICAL INFLUENCES.

WITH THIS COURT, IT IS ALLOWING THEM TO ESSENTIALLY THUMB THEIR NOSE AT THE PUBLIC.

THIS IS A COURT THAT AFTER DOBBS, DID ESSENTIALLY A VICTORY LAP AROUND THE COUNTRY, NUMBERS OF JUDGES DID A VICTORY LAP.

SO, I MEAN, I'M LOOKING AT WHAT THEY'RE DOING, AND I'M LOOKING AT THE REACTION TO WHAT THEY'RE DOING.

AND LIKE LARRY, I'M JUST HORRIFIED.

NEVER THOUGHT -- >> DOBBS BEING THE CASE THAT OVERTURN "ROE."

WE DISCUSSED AS YOU BOTH SERVED ON THE PRESIDENTIAL COMMISSION ON THE SUPREME COURT, DESPITE THESE FRIGHTENING NUMBERS, STARTING WITH YOU, JUDGE GERTNER, THERE SEEMS TO BE NO MOMENTUM FOR ANY SERIOUS REFORM THAT ADDRESSES THE PROBLEMS THAT MOST SANE PEOPLE HAVE OF THE SUPREME COURT.

>> WELL, THERE IS SOME MOVEMENT ON ETHICS REFORM IN CONGRESS, BUT IT'S ETHICS REFORM TO MAKE MORE TRANSPARENT FINANCIAL DISCLOSURES-- >> THAT'S SHELDON WHITEHOUSE WHO WAS HERE A COUPLE OF WEEKS AGO.

HE TALKED ABOUT MORE THAN $10,000 CONTRIBUTIONS COULD WOULD BE DISCLOSED.

>> THAT'S HELPFUL, BUT THE ISSUES WITH RESPECT TO THE SUPREME COURT GO MORE-- GO DEEPER THAN JUST THE QUESTION OF FINANCIAL DISCLOSURES.

THEY GO TO, YOU KNOW, THE BIAS, THE APPEARANCE OF IMPARTIALITY, AND THEY GO TO THE IMPUGN PUNTY THAT THIS COURT FEELS.

THEY ESSENTIALLY SAY-- CLARENCE THOMAS SAYS I DON'T HAVE TO RECUSE MYSELF WHEN MY WIFE'S DOCUMENTS ARE IN THE TRANCHE OF DOCUMENTS I'M ADDRESSING FROM THE JANUARY 6 COMMITTEE, BECAUSE YOU'VE GOT NOTHING ON ME.

WHICH IS OUTRAGEOUS.

>> Braude: VERY, VERY QUICKLY, LARRY TRIBE, DO YOU SEE ANY MOMENT FOR REFORM THAT WOULD MATTER?

>> VERY LITTLE.

IN TERMS OF PUBLIC SUPPORT, THE POLLS DO SHOW THAT FOR THE FIRST TIME IN A LONG TIME, THE MAJORITY FAVORS GETTING RID OF LIFE TENURE AND EXPANDING THE COURT.

AND CERTAINLY TRANSPARENCY AND ETHICS.

SO THERE IS SOME MOMENTUM.

BUT IT'S CERTAINLY NOT TOP OF MIND FOR MOST PEOPLE.

>> Braude: I HAVE 30 SECONDS FOR EACH OF YOU.

IT'S NOSTRADAMUS TIME.

IF WE'RE SITTING HAVING THIS SAME DISURKZ AT LEAST A DISCUSSION ABOUT THE SAME PLAYERS A YEAR FROM NOW, IN DECEMBER OF 2023, WHAT'S THE STATUS OF "U.S. V DONALD TRUMP" OR "GEORGIA V DONALD TRUMP."

>> I THINK THERE WILL BE TWO, MAYBE THREE SEPARATE CRIMINAL INDICTMENT HANGING OVER HIM.

WHETHER ANY OF THEM WILL HAVE GONE TO TRIECIALG I DON'T KNOW.

BUT IT'S GOING TO BE-- IT'S GOING TO BE ANSWERING TIME FOR DONALD TRUMP.

>> Braude: JUDGE GERTNER?

>> I AGREE.

PART OF THIS THAT THE GOVERNMENT CAN CONTROL, THAT THE DEPARTMENT OF JUSTICE CAN CONTROL IS THE INDICTMENT AND THE BRINGING OF CHARGES.

THERE'S NO QUESTION THAT TRUMP'S PRINCIPAL RESPONSE TO THAT WILL BE DELAY, AS WE HAVE SEEN WITH EVERYTHING.

SO I AGREE WITH LARRY THAT BY NEXT DECEMBER HE WILL BE CHARGED AND HE WILL BE MIDLITIGATION ON A NUMBER OF CRIMINAL FRONTS.

>> Braude: LARRY TRIBE, NANCY GERTNER, AS ALWAYS, I CAN'T THANK YOU ENOUGH FOR YOUR TIME.

IT'S TERRIFIC.

GREAT TO SEE YOU BOTH.

>> THANK YOU.

>> GREAT TO SEE YOU THAT'S IT FOR TONIGHT.

AND AS PART OF MY USUAL NIGHTLY PLEA TO NOT FORGET UKRAINE, I'LL ASK YOU TO COME BACK TOMORROW WHEN CONGRESSMAN SETH MOULTON WILL JOIN ME ON THE HEELS OF HIS SECOND TRIP TO THE REGION.

FOR NOW, THANKS FOR WATCHING.

GOOD NIGHT.

IT Captioned by Media Access Group at WGBH access.wgbh.org