>> Braude: TONIGHT ON "GREATER BOSTON" FROM THE BOSTON PUBLIC LIBRARY, CONSTITUTIONAL SCHOLAR, HARVARD'S LAURENCE TRIBE, AND FORMER FEDERAL JUDGE NANCY GERTNER, BOTH MEMBERS OF PRESIDENT BIDEN'S SUPREME COURT COMMISSION, WILL JOIN ME WITH MORE ON THE BROADER IMPLICATIONS OF ITS RECENT LANDMARK DECISIONS, AND THE FUTURE OF THE COURT ITSELF.

BUT FIRST, THE SIXTH DAY OF JANUARY 6 HEARINGS CENTERED ON CASSIDY HUTCHINSON, THE FORMER PRINCIPAL AIDE TO TRUMP'S FINAL CHIEF OF STAFF, MARK MEADOWS, WHO, IN A COMBINATION OF PRE-TAPED AND LIVE TESTIMONY, WALKED THE COMMITTEE THROUGH WHAT SHE SAW, IN HER FRONT-ROW SEAT TO THE EVENTS OF JANUARY 6th, STARTING WITH WHAT DONALD TRUMP, GUILIANI, AND HUTCHINSON'S BOSS, MARK MEADOWS, KNEW OF ADVANCED INTEL ABOUT POTENTIAL VIOLENCE, DAYS BEFORE RIOTERS STORMED THE CAPITOL.

>> I LOOKED AT HIM AND SAID RUDY, CAN YOU EXPLAIN WHAT'S HAPPENING ON THE 6th?

HE RESPONDED SOMETHING LIKE WE'RE GOING TO THE CAPITOL, IT'S GOING TO BE GREAT.

THE PRESIDENT WILL BE THERE, HE'LL LOOK POWERFUL."

I REMEMBER LEANING AGAINST DOORWAY AND SAYING I JUST HAD AN INTERESTING CONVERSATION WITH RUDY, MARK.

SOUND LIKE WE'RE GOING TO THE CAPITOL.

HE DIDN'T LOOK UP FROM HIS PHONE AND SAID SOMETHING LIKE THERE'S A LOT GOING ON CASS, BUT, I DON'T KNOW, THINGS MIGHT GET REAL, REAL BAD ON JANUARY 6th.

>> Braude: BUT NOT ONLY DID TEAM TRUMP DO NOTHING TO QUELL WHAT THEY SAW COMING ON THE SIXTH.

HUTCHINSON TOLD THE COMMITTEE THAT WHEN HEAVILY ARMED PROTESTERS SHOWED UP TO THE PRESIDENT'S RALLY THAT MORNING, SOME WITH PISTOLS, OTHERS WITH AR-15S, TRUMP DEMANDED THE SECRET SERVICE LET THEM PAST THE SECURITY CHECKPOINTS, WHICH HUTCHINSON REFERS TO AS "MAGS," AND ALLOW THEM INTO THE CROWD RIGHT IN FRONT OF HIM.

>> WHEN WE WERE IN THE OFFSTAGE AREA TENT BEHIND THE STAGE, HE WAS VERY CONCERNED ABOUT THE SHOT WE WOULD GET, MEANING THE PHOTO, BECAUSE THE SPACE WASN'T FULL.

HE WANTED IT FULL AND HE WAS ANGRY THAT WE WEREN'T LETTING PEOPLE THROUGH WITH WEAPONS WHAT THE SECRET SERVICE DEEMED AS WEAPONS, AND WHAT ARE WEAPONS.

I OVERHEARD THE PRESIDENT SAYING SOMETHING TO THE EFFECT OF "Y'KNOW, I DON'T EFFING CARE THAT THEY HAVE WEAPONS.

THEY'RE NOT HERE TO HURT ME.

TAKING THE EFFING MAGS AWAY.

LET THEM IN.

LET MY PEOPLE IN.

THEY CAN MARCH TO THE CAPITOL AFTER THE RALLY'S OVER THEY CAN MARCH FROM, THEY CAN MARCH FROM THE ELLIPSE.

TAKE THE EFFING MAGS AWAY, THEN THEY CAN MARCH TO THE CAPITOL.

>> Braude: A SHORT TIME LATER, AS WE KNOW, TRUMP WENT ON TO DELIVER THIS MESSAGE THOSE VERY SAME PROTESTERS: >> WE'RE GONNA WALK DOWN, AND I'LL BE THERE WITH YOU.

WE'RE GONNA WALK DOWN- WE'RE GONNA WALK DOWN- ANYONE YOU WANT, BUT I THINK RIGHT HERE, WE'RE GONNA WALK DOWN, TO THE CAPITOL!

>> Braude: AND, WE ALSO LEARNED TODAY, TRUMP DID TRY TO GO WITH THEM.

HE TRIED SO HARD, THAT HE GOT PHYSICAL WITH HIS HEAD OF SECURITY, BOBBY ENGLE.

>> THE PRESIDENT SAID SOMETHING TO THE EFFECT OF, "I'M THE F-ING PRESIDENT, TAKE ME BACK TO THE CAPITOL NOW."

TO WHICH BOBBY RESPONDED, "SIR, WE HAVE TO GO BACK TO THE WEST WING."

THE PRESIDENT REACHED UP TOWARD THE FRONT OF THE VEHICLE TO GRAB AT THE STEERING WHEEL.

MR. ENGLE GRABBED HIS ARM AND AID SIR, YOU NEED TO TAKE YOUR HAND OFF THE STEERING WHEEL, WE'RE GOING BACK TO THE WEST WING, WE'RE NOT GOING TO THE CAPITOL.

MR. TRUMP THEN USED HIS FREE HAND TO LUNGE TOWARDS BOBBY ENGLE AND WHEN MR. ORNATA HAD RECOUNTED THIS STORY TO ME HE HAD MOTIONED TOWARDS HIS CLAVICLES.

>> Braude: WHEN THEY FINALLY GOT BACK TO THE WHITE HOUSE, HUTCHINSON TESTIFIED THAT SHE OVERHEARD TRUMP FIRST, THEN MARK MEADOWS AND WHITE HOUSE COUNSEL PAT CIPPILONE DISCUSSING HOW THE RIOTERS WERE GETTING INCREASINGLY AGITATED, INCLUDING CALLS FOR VIOLENCE AGAINST THE VICE PRESIDENT.

>> IN THE BACKGROUND I HAD HEARD CONVERSATIONS IN THE OVAL DINING ROOM AT THAT POINT TALKING ABOUT THE HANG MIKE PENCE CHANTS.

I REMEMBER PAT SAYING SOMETHING TO THE EFFECT OF, "MARK, WE NEED TO DO SOMETHING MORE, THEY'RE LITERALLY CALLING FOR THE VICE PRESIDENT TO BE EFFING HUNG."

AND MARK HAD RESPONDED SOMETHING TO THE EFFECT OF "YOU HEARD IT PAT, HE THINKS MIKE DESERVES IT.

HE DOESN'T THINK THEY'RE DOING ANYTHING WRONG."

>> Braude: HE THOUGHT HE DESERVED IT, WHICH WOULD EXPLAIN WHY TRUMP PUSHED BACK ON SUGGESTIONS THAT HE INTERVENE, BEFORE FINALLY POSTING THIS INFAMOUS MESSAGE SEVERAL HOURS, AND COUNTLESS WARNINGS INTO THE RIOT: >> WE HAVE TO HAVE PEACE.

SO GO HOME, WE LOVE YOU, YOU'RE VERY SPECIAL.

>> Braude: SO SPECIAL, THAT AFTER HIS TEAM FOUGHT TOOTH AND NAIL TO GET HIM TO PUT OUT ANOTHER VIDEO, THE FOLLOWING DAY, WHICH CONDEMNED THE ACTIONS OF THE INSURRECTIONISTS, TRUMP TOOK OUT BASICALLY ALL THE LANGUAGE CONDEMNING THEIR ACTIONS: >> WHEN HE WAS CONVINCED TO PUT OUT A VIDEO ON THE 7th, I UNDERSTAND THAT HE HAD A LOT OF OPINIONS ABOUT WHAT THE CONTEXT OF THAT ANNOUNCEMENT WERE TO ENTAIL.

I HAD AN ORIGINAL DRAFT OF THE SPEECH WHICH THERE WERE SEVERAL LINES THAT DIDN'T MAKE IT IN THERE ABOUT PROSECUTING THE RIOTERS, CALLING THEM VIOLENT.

HE DIDN'T WANT THAT IN THERE.

HE WANTED TO PUT IN THERE THAT HE WANTED TO POTENTIALLY PARDON THEM.

>> Braude: AND PARDONS WERE APPARENTL ON THE MINDS OF MANY, ON TOP OF THE CONGRESSPEOPLE WE LEARNED ABOUT THE OTHER DAY.

>> DID RUDY GUILIANI EVER SUGGEST HE WAS INTERESTED IN RECEIVING A PRESIDENTIAL PARDON RELATED TO JANUARY 6th?

>> HE DID.

>> MISS HUTCHINSON, DID WHITE HOUSE CHIEF OF STAFF MARK MEADOWS EVER SUGGEST THAT HE WAS INTERESTED IN RECEIVING A PRESIDENTIAL PARDON RELATED TO JANUARY 6th?

>> YES, MR. MEADOWS DID.

YES, MA'AM.

>> Braude: AS TRUMP NO LONGER HAS PARDON POWER, FOR HIS SUPPORTERS, HIS AIDES, AND CERTAINLY HIMSELF, HE INSTEAD TOOK TO HIS PLATFORM TRUTH SOCIAL DURING THE HEARING TODAY, TO CALL HUTCHINSON A "PHONY" AND REBUT MANY OF HER CLAIMS, INCLUDING THAT THAT HE SAID PENCE DESERVED TO BE HUNG, AND THE WHOLE GRABBING THE LIMO STEERING WHEEL STORY.

OF COURSE, IF HE SAID IT ON TRUTH SOCIAL, IT MUST BE TRUE.

I'M JOINED NOW BY NANCY GERTNER, RETIRED FEDERAL JUDGE AND SENIOR LECTURER AT HARVARD LAW SCHOOL.

AND HARVARD LAW PROFESSOR EMERITUS LAURENCE TRIBE, WHOSE STUDENTS HAVE INCLUDED FORMER PRESIDENT BARACK OBAMA, SUPREME SENATOR CRUZ NO ONE IS PERFECT.

COURT CHIEF JUSTICE JOHN ROBERTS, JUSTICE ELENA KAGAN, AND U.S. ATTORNEY GENERAL MERRICK GARLAND.

IT IS GOOD TO SEE YOU BOLTS, THANKS FOR BEING HERE.

>> GOOD TO SEE YOU.

>> GOOD TO BE HERE.

I WANT TO SAY I WAS NEVER ONE OF HIS-- .

>> Braude: NOR WAS I, LARRY TRIBE, YOU TWEETED THIS MORNING.

>> COULD YOU HAVE CANCELLED THREE OR FOUR TED CRUZS.

>> Braude: YOU TWEETED THIS MORNING LARRY TRIBE LET'S NOT EXPECT A COURAGEOUS YOUNG WOMAN TO DELIVER THE MOON, RISING THE BAR TOO HIGH WILL LEAD TO INEVITABLE DISAPPOINTMENT.

I WAS NEVER DISAPPOINTED IN TWO PLUS HOURS, HOW ABOUT YOU?

>> NO, I WAS QUITE STUNNED.

I WAS STARYGED.

I WAS THINKING WHAT IS IT LIKE TO BE SHOCKED BUT NOT SURPRISED.

THAT'S THE FEELING I HAD.

FOR THE PRESIDENT TO GRAB AT THE THROAT OF THE HEAD OF THE SECRET SERVICE DETAIL IN ORDER TO ACCOMPANY AN ARMED MOB TO THE CAPITOL.

ARMED BECAUSE HE HAD INSISTED THAT THE MAGNATOMERTER BE REMOVED.

ANY DOUBT THAT HE WAS INVOLVED IN INCITING THIS INSURRECTION, AIDING AND ABETTING IT, AS WELL AS BEING QUITE DEEPLY INVOLVED IN THE WHOLE PLOT FROM THE BEGINNING, IS NOW DIMINISHED TO THE POINT WHERE IT'S NOT EVEN A REASONABLE DOUBT.

>> Braude: IS IT FOR YOU, NANCY GERTNER, HE KNEW TO EXPECT VIOLENCE, HE KNEW THEY WERE ARMED, HIS COUNSEL, HIS LEAD COUNSEL TALKED ABOUT IMMENSE KINDS OF ILLEGALITY.

DOES THIS ESTABLISH I GUESS BEYOND A REASONABLE DOUBT THE CRIMINAL ATITY OF PRESIDENT IF HUTCHINSON'S SYSTEM TO BE BELIEVED.

>> YES, BUT HUTCHINSON FOR SURE, HUTCHINSON'S TESTIMONY HAS TO BE SUPPORTED, A LOT I HEARD SOMEONE SAY DPRKS, IT HAS TO BE SUPPORTED.

BUT MORE IMPORTANT THAN THAT, NOT ONLY SUSPECTING THE INSURRECTION, THE COMMITTEE IS DOING SOMETHING WHICH IS SEEN PROSECUTED AS BEING-- YOU SEE THEM DOING THIS IN THE JANUARY 6th PROSECUTION.

AT THE START AT THE BOTTOM AND THEN YOU GO.

IF IT THE CASE THAT CLARK, GEUL YABEE AND NOW MAD OWES ARE ALL PART OF THE CONSPIRACY TO OBSTRUCT THE NOT ONLY JANUARY 6th BUT OBSTRUCT THE ELECTION TO UNDERMINE THE ELECTION, I DON'T SEE HOW THEY CAN BE CONSPIRATORS WITHOUT TRUMP ALSO A CONSPIRATOR.

BECAUSE HE WAS INVOLVED IN WHAT THEY WERE DOING.

>> YOU KNOW, BEFORE WE GET YOUR THOUGHTS ON THAT, LARRY TRIBE, FOR THOSE THAT DON'T KNOW JEFFREY CLARK WAS THE ENVIRONMENTSAL LAWYER FOR THE DEPARTMENT OF JUSTICE WHO TRUMP WANTED TO PUT IN THE TOP JOB AND JOHNNIESMAN WAS OBVIOUSLY HIS LEAD INSURRECTION LAWYER.

LARRY TRIBE, DO YOU REACH THE SAME CONCLUSION THAT JUDGE GERTNER DOES.

>> I DO, ALTHOUGH I DO WANT TO SAY I DON'T THINK OF JEFFREY CLARK AS AN ENVIRONMENTAL LAWYER.

I THINK HE WAS AN ANTI-ENVIRONMENTAL LAWYER.

>> Braude: PROBABLY SO.

>> IN THE GUISE OF DOING THE OIL SPILLS AM I DON'T WANT TO GIVE A BAD FLAME TO ENVIRONMENTAL LAWYERS.

BUT I REACHED THE SAME CONCLUSION.

>> Braude: DO YOU, DOES THE FACT THAT CLARK-- THIS ON THE SAME DAY LAST WEEK, HIS HOME WAS SEARCHED, EASTMAN'S PHONE SEEDS, THIS IS FOR YOU, LARRY, DOES THAT GIVE YOU SOME INDICATION WHERE YOUR FORMER STUDENT, THE ATTORNEY GENERAL, IS GOING BECAUSE THERE HAS BEEN A LOT OF CRITICISM INCLUDING FROM YOU ABOUT HIS APPARENT INACTIVITY ON A GRAND JURY FRONT.

>> WELL, I-- THAT CRITICISM WEEKS AGO MAYBE A MONTH AGO WHEN IT BECAME CLEAR FROM SOME OF THE OTHER INDICTMENTS OF THE HEADS OF BOTH THE KEEPER AND PROUD BOYS THAT HE WAS MOVING UP THAT CHAIN THAT NANCY DESCRIBED, LOOKING AT THE NOT ONLY THE PEOPLE SORT OF ON THE GROUND LEVEL BUT THOSE WHO WERE COMING TOGETHER TO BLOCK THE ATTACK ON THE CAPITOL AND-- PLOT THE ATTACK ON THE CAPITOL AND BECAUSE THE DEPARTMENT OF JUSTICE WAS BRINGING THOSE INDICTMENTS I WAS BEGINNING TO FEEL THAT I HAD BEEN TOO IMPATIENT.

>> Braude: BEFORE WE WENT ON THE AIR YOU SAID YOU DON'T LIKE WHAT DOES IT MEAN QUESTIONS.

SO LET ME ASK YOU A WHAT DOES IT MEAN QUESTION.

WHAT DOES IT MEAN THAT MS. HUTCHINSON SAID TODAY THAT BOTH GIULIANI AND MARK MEADOWS WERE INTERESTED IN PARDONS RELATIVE TO JANUARY 6th.

WHAT NRCHES SHOULD WE DRAW FROM THIS?

>> THE NRCHES THAT THEY KNEW THAT THEY HAD-- THEY KNEW, EITHER THEY KNEW THEY HAD COMMITTED A CRIME FOR WHICH THEY ONLY WAY OUT WAS A PARDON, OR THEY THOUGHT THAT THEY MIGHT BE.

I MEAN I DO THINK IT IS A RANGE OF THINGS, IF I KNEW I COMMITTED A CRIME OR A MIGHT BE PROSECUTED FOR CRIME, I THINK IN CONTEXT I THINK IT MEANS I KNEW I COMMITTED A CRIME BECAUSE THERE WERE SO MANY LAWYERS IN THAT ROOM SAYING THAT WHAT THEY WERE DOING WAS WRONG.

THAT I THINK THAT THEIR NRCHES IS THAT THEY KNEW THEY COMMITTED A CRIME.

YOU KNOW, IT IS A STUNNING-- JUST A STUNNING SORT OF STORY HERE THAT TRUMP KNOWS HE LOSES THE ELECTION, HE KNOWS THIS FALSE-- IS WRONG KNOWS THAT ARMED PEOPLE ARE GOING TO GO TO THE CAPITOL AND THAT HE SHOULDN'T GO BECAUSE IT WOULD BE ILLEGAL TO DO WHAT HE IS CONTEMPLATING, KNOWS ALL OF THAT.

AND HAD THE PARDON POWER TO BASICALLY EXONERATE THE PEOPLE WHO WERE THE COCON SPIRS-- CON SPIR TERES, I FEEL LUCKY THAT HE DIDN'T PARDON THEM T IS EXTRAORDINARY, RELIEVED THAT HE DIDN'T PART THEM.

>> Braude: I'M SORRY.

>> I THINK IT IS, YOU KNOW, WHEN YOU THINK ABOUT THE IMPUNITY THAT THEY FELT, THEY FELT THAT TRUMP COULD PARDON THEM, THAT IS REALLY THE DEFINITION OF A TOTALITARIAN STATE, CAN I DO WHATEVER IS NECESSARY IN THIS ELECTION BECAUSE THE BIG GUY IS GOING TO PARDON ME.

>> Braude: IF WE CAN STEP BACK FROM THE LEGAL ISSUES OR ILLEGAL ISSUES JUST FOR A SECOND, I SPOKE TO A BUNCH OF FRIENDS AND ASSOCIATES AFTER THE HEARING CONCLUDED AND ASKED WHAT WAS YOUR MAJOR TAKEAWAY INCLUDING SOME LAWYERS.

ONE MAJOR TAKE A WHICH WAS THE THROWING OF THE PLATE AGAINST THE WALL WITH THE KETCHUP DRIP DOWNING THE OVAL DINING ROOM, THE OTHER WAS THE GRABBING OF THE CLAFFIC ELF THE SECRET SERVICE GUY, MY MAJOR TAKE AWAY IS I'M WATCHING THIS 25 YEAR OLD WOMAN WHO SEEMED LIKE QUITE A PATRIOT, AND JUXTAPOSE, AND WITH THE COURAGE SHE IS SHOWING, APPARENTLY W SOME THREATS TO HER WELL-BEING, AND JUXTAPOSING THAT WITH THE FORMER NATIONAL SECURITY ADVISOR TO THE PRESIDENT, THE ONCE FELON YUSnd UNTIL PARDONED GENERAL MICHAEL FLYNN TAKING THE FIFTH WHEN HE ASK ASKED IF HE BELIEVES IN A PEACEFUL TRANSITION OF POWER.

LARRY TRIBE, WHAT WILL STAY WITH YOU MOST FROM DAY SIX OF THE HEARING.

>> THAT LAST EXAMPLE WAS ONE OF THE MOST DRAMATIC.

WHEN MIKE FLYNN SAID IT MIGHT INCRIMINATE HIM, CRIMINALLY, TO SAY UNDER OATH THAT HE BELIEVED IN THE TRANSITION OF POWER PEACEFULLY, BECAUSE HE DOESN'T.

HE HAS MADE CLEAR THAT HE AND A NUMBER OF THESE OTHER AUTOCRATS BELIEVE THAT DEMOCRACY IS SIMPLY WINDOW-DRESSING.

THEY REALLY DO NOT BELIEVE IN THE PEACEFUL TRANSITION OF POWER.

AND THAT COMES TO THE VERY HEART OF WHAT WE ARE LEARNING.

A LOT OF PEOPLE SAY THAT THE DIFFICULTY OF PROSECUTING TRUMP MIGHT BE SHOWING THAT HE HAD THE RECOGNIZE BUSINESSITY INTENT BECAUSE BEING SUCH AN EGO MANIAC HE MUST HAVE PERHAPS BELIEVED HE REALLY WAS THERE ARE TWO THINGS.

FIRST OF ALL THERE IS ONLY SO MUCH BS YOU CAN TAKE.

ABOUT THAT.

HE ALMOST CERTAINLY DIDN'T REALLY BELIEVE HE WON.

BUT NUMBER TWO, ACTUALLY THREE THINGS, NUMBER TWO, EVEN IF HE BELIEVED HE WON REALLY BELIEVED HE WON, THAT IS NOT AN EXCUSE FOR TAKING THE LAW INTO HIS OWN HANDS.

I MEAN YOU CAN SAY I REALLY BELIEVED THE IRS OWES ME 11,780 DOLLARS, THAT DOESN'T ENTITLE YOU TO BREAK INTO FORTH KNOX TO GRAB IT ON YOUR OWN.

AND NUMBER THREE, EVEN IF IN THE END WE DON'T SUCCEED IN INDICTING OR PROSECUTING TRUMP FOR WHATEVER REASON, IF WE GO AFTER HIM, HERE IS WHERE I AGREE SO MUCH WITH NANCY, IF ALL THE PEOPLE IMMEDIATELY AROUND HIM IND UP GOING TO JAIL THE WAY THAT EHRLICHMAN AND HOLDERMAN DID, THEN IN THE FUTURE WHETHER IT IS TRUMP OR SOMEONE ELSE, AN AUTOCRAT IN THAT SITUATION WILL THINK I MIGHT BE ABOVE THE LAW BUT I CAN'T DO IT ALONE.

AND IF ALL THE PEOPLE AROUND ME ARE GOING TO GET HAMMERED,S I I MAY NOT SUCCEED IN TRYING THIS.

SO AT LEAST IT WILL BE GOOD THAT EVERYBODY AROUND TRUMP IS BROUGHT DOWN.

AND I HOPE TRUMP AS WELL.

>> Braude: WHAT IS THE MOMENT THAT STAYS WITH US, JUDGE GERTNER FROM TODAY?

>> WELL, I MEAN, ST REALLY FUNNY, I WAS TALKING TO MY HUSBAND.

AND I SAID HAVE YOU EVER SAW A TV MOVIE WHERE THE PRESIDENT TRIED TO TAKE OVER THE STEERING WHEEL OF THE SECRET SERVICE, AND ESPECIALLY AN OVERWEIGHT, CLUNGY PRESIDENT LIKE, THIS AND THEN TRY TO STRANGE EL THE CHIEF OF SERVICE AGENT, YOU TURN TO ONE ANOTHER AND SAY NEVER HAPPENED.

I HAVE-- I THINK THAT THAT WAS EXTRAORDINARY.

BUT YOU KNOW S I THINK WHEN IT WAS WRITTEN ABOUT, THIS HER TESTIMONY WAS AMAZING BECAUSE SHE BELIEVED TRUMP WAS A GOOD PRESIDENT AND HAD DONE GOOD THICKS AND LIZ CHENEY IS LEADING THE CHARGE AND LIZ CHENEY ACTUALLY APPLAUDED TO THE DOBS DECISION LAST WEEK SO I MEAN IT'S A VERY INTERESTING, THE NOTION THAT TRUMP COULDN'T HAVE GONE SO FAR AND EVEN HIS SUPPORTERS SAYS YOU KNOW, THIS IS GUY IS CRAZY AND A CRIMINAL.

>> 93% VOTING RECORD WITH TRUMP, LIZ CHENEY.

>> LARRY TRIBE, ONE MORE THING ABOUT THIS, BEFORE WE SWITCH TO THE SUPREME COURT.

A WOMAN THAT LOOKS VERY MUCH LIKE NANCY GERTNER ON THE RADIO THE OTHER DAY QUOTED THAT OLD LINE IF YOU STRIKE AT A KING YOU MUST KILL HIM.

OBVIOUSLY VEES A VEES A POTENTIAL PROSECUTION OF DONALD TRUMP, DO YOU AGREE WITH THAT?

>> NO.

I REALLY DON'T.

I THINK IT IS NOT CLEAR THAT ANY JURY WILL FAIL SO TO HAVE AT LEAST ONE PERSON WHO HIDES THE KIND OF LOYALTY TO TRUMP OR DISBELIEF IN DEMOCRACY, THAT MIGHT LEAD THEM TO RENDER A NULLIFYING VERDICT OF ACQUIT.

BUT I THINK PEOPLE WILL NONE THE LESS EVEN IF HE IS ULTIMATELY SET OUT BECAUSE OF THE HUNG JURY T WILL BE LIKE THE IMPEACHMENT.

A LOT OF PEOPLE SAID IT WOULD BE TERRIBLE TO IMPEACH THIS PRESIDENT BECAUSE THE SENATE MIGHT ACQUIT.

SO ST T DID ACQUIT BUT I THINK FOR PURPOSES OF HISTORY, I THINK SIMILARLY T WOULD BE BETTER FOR TRUMP TO BE INDICTED AND THEN ULTIMATELY FOR THERE TO BE A HUNG JURY THAN FOR THE LESSON TO BE THAT YOU CAN TRY TO BRING DOWN THE GOVERNMENT BY VIOLENCE AND HE WON'T EVEN GET INDICT THE.

>> Braude: FLANSEE, YOU WANT TO DEFEND YOURSELF FOR 30 SECONDS OR NO?

>> WELL, I THINK, WHEN I WAS DEALING WITH WAS THE LESSONS OF THE MUELLER REPORT.

MUELLER AIMED AT TRUMP AND PULLED MISS PUNCHES AND DID SO BECAUSE HE THOUGHT THE WORLD WAS A DIFFERENT WORLD AND A MUCH MORE, YOU KNOW, MUCH MORE CIVILIZED WORLD AND THAT OTHERS WOULD TAKE UP THE CAUSE.

AFTER WATCHING THE JANUARY 6th HEARINGS AND TODAY, I BELIEVE THAT THE INDICTMENT AND EVEN A CONVICTION OF TRUMP, CERTAINLY AN INDICTMENT OF TRUMP FOLLOWED SORTED OF NATURALLY.

I THINK THE JANUARY 6th THEY WERE BRILLIANT.

THEY BACKED THE DOJ INTO A CORNER HERE.

IT ACCOUNT:NOT BE THAT THESE OTHER PLAYERS WERE CULPABLE IN THE WAY THEY ARE AND THAT TRUMP IS NOT.

SO I AGREE WITH LARRY NOW THAT, FIRST OF ALL I THINK THERE IS NO GARLAND HAS NO CHOICE BUT TO INDICT TRUMP AND THE FAIL IRE TO INDICT TRUMP WOULD BE VERY TROUBLING.

>> Braude: CAN WE SWITCH GEARS FOR THE REMAINING COUPLE OF MINUTES THERE WAS A GAL OCH POLL DONE IN TERMS OF CONFIDENCE OF THE SUPREME COURT AND THIS PRECEDED THE OVERTURNING OF ROE, THE GUN DECISION LAST WEEK, NUMBERS ARE PRETTY STUNNING.

HOW MUCH CONFIDENCE DO YOU HAVE IN THE SUPREME COURT, A GREAT DEAL, QUITE A LOT, JUST 25 PERCENT, AGAIN AND THAT IS BEFORE THE OVERTURNING OF ROE.

LARRY TRIBE, I WANT TO ASK YOU ABOUT THAT DECISION.

I THINK EVERYBODY WATCHING KNOWS THAT JUSTICE THOMAS AND HIS CONCURRING OPINION SAID THIS IS JUST THE BEGINNING.

I'M PARAPHRASING.

WE SHOULD LOOK AT SAME SEX MEARNLG, WE SHOULD LOOK AT CONTRA CEPTION.

ALITO IN HIS MAJORITY OPINION SAID NO, NO, THIS IS JUST ABOUT ABORTION.

THE DISSINT-- DISSENTERS SAID DON'T BE FOOLED, ACTALLY MARGARET MARSHAL WHO WROTE THE SAME SEX MARRIAGE DECISION PIECE YESTERDAY WAS WITH US ON THE RADIO BY A MONTH AGO AFTER THE LEAK AND I ASKED HER IF SHE THOUGHT THAT THIS COULD LEAD TO AN ATTACK ON SAME SECTION MARTIAL, HERE IS WHAT CHIEF JUSTICE MARSHAL HAD TO SAY.

>> YES, AND I WILL TILL YOU WHY.

ST THE REASONING OF THE COURT T IS NOT WHAT IS THE PARTICULAR ISSUE, IT IS JUSTICE ALITO REASONING, WHEN HE SAYS ANY SUCH LIFE COULD BE RECOGNIZED QUOTE MUST BE DEEPLY ROOTED IN THIS NATION'S HISTORY AND IMPLICIT IN THE CONCEPT OF ALL THAT LEAD US HERE, ALL KINDS OF THINGS ARE NOT DEEPLY-- IN.

>> DO YOU CHAIR HER WORRY LARRY TRIBE?

>> ABSOLUTELY.

ST CLEAR IN THE MOMENTS SINCE THAT OPINION LEAKED THAT IT COULDN'T BE CONTAINED.

WHEN ALITO SAID BELIEVE ME THIS WON'T GO ANY FURTHER, THAT HAD TO MEAN, YOU KNOW, TRUST ME, MY-ING DOESN'T COUNT, I'M JUST EXERCISING POWER.

HE WAS PERHAPS SPEAKING MORE TRUTH THAN HE KNEW BUT THAT IS NOT THE WAY THE DECISION WILL BE TREATED.

AND BESIDES, HE SAID AS LONG AS THERE IS POTENTIAL LIFE, THIS IS A UNIQUE SITUATION.

WELL THAT TRULY COVERS AT LEAST CONTRA CEPTION, SO COUNTRY, THIS IS AN OPEN SESAME ON ALL SORTS OF RIGHTS THAT WE'VE ALL TAKEN FOR GRANTED.

>> Braude: ALREADIEE BRIEFLY, WERE YOU QUOTED OR ACTUALLY YOU SAY MISQUOTED BY ALITO AND HIS MAJORITY OPINION.

CAN YOU GIVE US 30 SECONDS ON HOW?

>> I MEAN HE TAKES THE LINES OUT OF MY DEFENSE OF ROE V. WADE IN 1973 IN WHICH I SAID I'VE GOT SOME BETTER ARGUMENTS THAN JUSTICE BLACKMAN.

SO I DON'T THINK IT IS THE PERFECT OPINION AND A LOT OF OTHER PEOPLE HAVE AGREED.

AND HE SAYS SEE EVEN TRIBE, EVEN TRIBE DOESN'T LIKE ROE V. WADE.

WELL, SO WHAT.

>> Braude: NANCY, DO YOU WORRY ABOUT THE TENT AK ELS OF THIS DECISION AS WE WERE JUST DISCUSSING VEES A VEE CHIEF JUSTICE MARSHAL AND LARRY'S OPINION, DO YOU WORRY.

>> I THINK IT IS ABSOLUTELY CLEAR.

BOTH BECAUSE THE POTENTIAL LIGHT JUST IF YOU FOCUS ON THAT, POTENTIAL LIFE CAN GO, I WORRY IT IS NOT ONLY ABOUT BIRTH CONTROL BUT POTENTIAL LIFE, I WORRY, COULD BE A RATIONALE FOR THE REINTRODUCTION OF PROTECTIVE LABOR LEGISLATION, WOMEN SHOULDN'T NORTHBOUND THIS JOB OR THAT JOB BECAUSE OF ITS IMPACT ON THEIR PROCREATIVE CAPACITY.

BUT ALSO THE NOTION THAT THE ONLY THING COUNT NTION OUR CONSTITUTION ARE THOSES THINGS THAT WILL EXPLICITLY STATED OR WHICH WERE DEEPLY ROOTED AT THE TIME OF THE FOUNDING OR AT THE TIME OF THE POST CIVIL WAR AMENDMENT.

WE, I WAS IRRELEVANT IN THOSE-- WOMEN WERE IRRELEVANT IN THOSE DAYS.

AND BLACKS WERE RECENTLY ENSLAVED AND POTENTIALLY DIMINISHED IN THE SUBSEQUENT YEARS.

SO I MEAN, THAT IS THE VIEW, WHO WAS IT WHO, SOME REPRESENTATIVE WHO SAID YOU KNOW, THIS IS A VIBLGHT REE FOR THE WHITE RACE.

>> REPRESENTATIVE MILLER THOUGH SHE MISSPOKE.

>> WHITE LIFE.

>> YEAH.

THE DEEP HISTORY ON WHICH JUSTICE ALITO RELIED INCLUDED QUOTES FROM GREAT ENGLISH JURISTS WHO SUPPORTED AND FAVORED THE BURNING OF WOMEN AS WITCHES.

>> RIGHT.

>> AND SENTENCED THEM TO A FIERY DEATH.

THAT IS RELEVANT FROM ALITO'S POINT OF VIEW.

BUT NOT THE LAST HUNDRED YEARS MY GOD.

>> THE ABORTION DECISION, HE SAID AT THE TIME OF THE RECONSTRUCTION, ABORTION WAS RESTRICTED.

A YALE LAW PROFESSOR HAS GONE THROUGH SOME OF THAT HISTORY AND DECIDES THAT THOSE WERE ABORTION RESTRICTIONS THAT WERE NOT BECAUSE OF THE BELIEF THAT THERE IS POTENTIAL LIFE, THOSE WERE RESTRICTIONS MANY WHICH WERE IMPLEMENTED FOR THE PURPOSE OF ENCOURAGING WOMEN TO BE MOTHERS.

IT WAS VERY MUCH SORT OF HINGEED ON A PATRIARCHAL VIEW OF THE WORLD.

>> I TOLD YOU BEFORE, I WENT TO NYU, I COULDN'T GET INTO HARVARD SO I COULDN'T BE IN LARRY CLASS SO NEXT TIME EXPLAIN TO ME THE ABSURDITY OF ORIGINAL INTENT WHICH I STILL CAN'T WRAP MY ARMS AROUND.

WE ONLY V A MINUTE OR TWO LEFT.

LAST TIME WERE YOU BOTH ON YOU HAD COWRITTEN A PIECE IN THE "WASHINGTON POST" AFTER HAVING SERVED TOGETHER ON JOE BIDEN'S PRESIDENTIAL COMMISSION ON THE SUPREME COURT AND LARRY STARTING WITH YOU BRIEFLY IF I CAN, YOU BOTH SAID AND I'M PARAPHRASING, YOU WENT INTO THIS PROCESS LEAD LEANING IN THE DIRECTION OF TERM LIMITS AND LEANING AGAINST EXPANDING THE COURT.

WE CAME OUT LEANING IN THE DIRECTION OF EXPANDING THE COURT, PEOPLE LIKE ELIZABETH WARREN ARE SAYING NOW IS THE TIME TO TAKE THAT SERIOUSLY.

DO YOU FEEL THAT EVEN STRONGER AS A RESULT OF THESE HEARINGS?

>> I DO.

AND HAVE I TRIED TO PERSUADE THE PRESIDENT THAT HE AT LEAST SHOULDN'T POUR COLD WATER ON IT.

HE KEEPS SAYING THAT HE IS% AGAINST ENDING THE FILIBUSTER AND AGAINST EXPANDING THE COURT.

AS A POLITICAL MATTER, WE DON'T HAVE A VOTE TO EXPAND THE COURT NOW, BUT THERE IS NO GOOD REASON FOR THE PRESIDENT TO BE DEFLATING THE ENERGY THAT THE POSSIBILITY OF COURT EXPANSION HELPS TO GENERATE.

>> Braude: HE'S ALSO POURED COLD WATER ON THE ISSUE OF A CARVE OUT ON ABORTION ISSUES FOR THE WOMEN, IN TERMS-- BY THE THE WAY I MEANT AS A RESULT OF SUPREME COURT DECISIONS, NANCY, ARE YOU ON THE SAME PAGE AS YOU BOTH MR.

WHEN YOU WROTE THAT OP ED?

>> ABSOLUTELY.

I MEAN NOTHING HAS CHANGED.

AND IF ANYTHING, I THINK LARRY HAS WRITTEN ABOUT THIS, THESE DECISIONS WERE A POWER GRAB THAT NEITHER THE RATIONALE OF THE DECISION NOR THE TIMING OF THESE DECISIONS WERE REQUIRED.

THIS IS A GROUP OF FIVE, I WON'T PUT ROB EARTHS IN THE GROUP JUST YET WHO ARE DOING WHAT THEY ARE DOING BECAUSE THEY CAN.

AND FOR NO OTHER REASON-- .

>> WHEN YOU SAY QUICKLY NANCY YOU WON'T PUT ROBERTS IN THAT UP GRO.

WE KNOW ROBERTS WAS HOPING FOR MORE OF A MIDDLE COURSE HERE, THE DE FACTO CHIEF JUSTICE IS CLARENCE THOMAS NOW, IS HE NOT.

>> YES, BECAUSE HE'S THE MOST SENIOR MEMBER, YES, I THINK THAT IS RIGHT.

AND THERE IS YOU KNOW, HE IS IMPLEMENTING HIS WISH LIST.

THE GUN CASE WAS THROWING OUT DECADES AND DECADES OF LAW FROM NUMBERS OF HIGH COURTS, NUMBERS OF LEGISLATION.

THE ABORTION DECISION IS THRWING OUT 50 YEARS OF PRECEDENT AND HAVE I WRITTEN ABOUT THIS, NOT JUST FEDERAL PRECEDENT SITUATING THE RIGHT TO CHOOSE UNDER THE FEDERAL CONSTITUTION BUT SIMILAR ANALYSIS IN STATE CONSTITUTION.

AND THE HUBRIS OF THIS GANG OF FIVE SAYING WE DON'T AGREE WITH THAT STUFF AND MUCH MORE, WE CAN IMPLEMENT IT TOMORROW.

YOU KNOW, AS I SAID THIS ON THE RADIO, TO ME IT IS THE DEFINITION OF A COUP, A JUDICIAL COUP.

>> WE'LL END ON A JUDICIAL COUP.

LARRY TRIBE, NANCY GERTNER, AS ALWAYS, REALLY APPRECIATE YOUR THOUGHTS, THANKS SO MUCH.

>> THANK YOU.

>> THAT'S IT FOR TONIGHT.

WE'LL BE BACK TOMORROW.

PLEASE JOIN US FOR A SPECIAL BOSTON PUBLIC RADIO, LIVE FROM THE BOSTON PUBLIC LIBRARY THURSZ AT 11:00.

BOSTON MAYOR MICHELLE WU WILL BE WITH US FOR ASK THE MAYOR AND IMMEDIATELY AFTER THE SHOW, STICK AROUND FOR MARJORIE EAGAN AS THEY HOLD THE CONVERSATION ABOUT THE COURT RULING.

AND DREAMING ONLINE AT YOUTUBE.COM/GBH NEWS, FOR NOW THANK YOU FOR WATCHING AND PLEASE DON'T FORGET UKRAINE.

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