that really understands what's going on and can communicate that. we'll see what happens. >> dana: you say that with gentleness and grace, all three of you great having you as part of our panel this week and i'm sure we'll see you again, michael, nick and caroline. have a great weekend. fox news alert. crunch time at the supreme court right now we are moments away from a new set of blockbuster opinions being released. high-profile cases could affect many aspects of life in america. we'll take a trip down that road today. welcome to a new hour of "america's newsroom," i'm dana perino. bill is off today. great to have you here. >> bret: great to be here in person. i'm bret baier in for bill hemmer. this morning major cases. among the cases on the docket presidential immunity from criminal prosecution, january 6th obstruction, restrictions on homeless camps and a case brought by fishermen on the power of federal agencies. that's a big one. >> dana: that's one of my favorites. team coverage. andy mccarthy and jonathan turley standing by with analysis. kayleigh mcenany on set with us. our chief legal correspondent shannon bream is outside the court. switching from the debate, although it hangs heavy, we have these other cases. one of them could be the decision on trump's immunity case. >> i love that you guys love the regulatory case as well. it will touch everyone's use to everything you use, federal regulations touch everything. we'll get to that case later. yes, we're waiting on immunity. it could come this morning. it looks like we have our first opinion. the case involving homelessness and whether cities and states could make bans on encampments and those things to help them control the homeless population in their communities. now a lower court had said at one point it violated the eighth amendment's ban on cruel and unusual punishment. we'll wait to see what the content is. we have the runners who come down the path. i see ours coming with our first opinion. we'll get to that. one of the ones we're watching. not at the top of the list to immunity. this one is authored by justice gorsuch. only people senior to him now could be releasing opinions. it always gets released in reverse seniority. the trouble was a lot of these communities have said if we can't police this in some way or fine or move people along or ticket them we will lose control of the situation. a number of communities out west. in this case from oregon had a real issue with that. this from the court says homelessness is complex and causes are many. so maybe the public responses required to address it. the question is whether the eighth amendment grants federal judges primary responsibility for assessing the causes and advising those responses. a handful of federal judges can't match the collective wisdom of the american people. sending it back down to the lower court to reassess that. it is justice gorsuch, roberts, alito, kavanaugh and barrett together. we'll dig into this. see what it means on the merits. it is by far the last opinion of the day. two boxes, that means there are several more to come, guys. >> dana: thank you so much. let's talk to the rest of our panel, jonathan turley and andy mccarthy and bret, ask the first question. >> jonathan to you. we're waiting on the immunity case and it is the big one. but also there is this chevron case that people haven't talked about a ton but it is massive when it comes to regulations and how agencies in the federal government, how powerful they are and what congress does and where the balance is. >> you are absolutely correct on that. the luper case involving herring fishing boats suddenly told by this agency the new rule that they would have to pay for effectively the agency inspectors on their boats. this added a sle considerable cost to a marginal industry and they objected and said where did you get that authority? just because your budget is shrinking doesn't mean you can just say now you pay for the inspectors. i think they are likely to win on that issue. the question is whether the court is going to put a spike through the heart of the chevron doctrine. that's a doctrine that for decades has given agencies sweeping deference in how they interpret laws. the court is chipping away at chevron and really interfering with the traditional role of judicial review and the expectation is that if this court was getting ready to dispatch chevron, this would be the case. it is perfectly situated for that purpose. i also want to note that that homeless case is going to have equally sweeping impact. it will give cities the right to remove tents from public areas. that these are generally applicable laws that prevent people from camping on city property. many cities, even democratic ones, are likely to quietly rejoice in that decision because they are struggling with dealing with these homeless populations that are blocking city streets. >> dana: andy mccarthy would you like to weigh in on that and as we wait for the possible trump immunity case, does that decision change at all after last night's debate? not that the decision would change but the impact of it? >> well, i think it becomes even more important, dana. the immunity decision will determine basically how much of the time in the run-up to the campaign and election day that former president trump may end up tied to courthouses and courtrooms rather than out on the campaign trail. it seems to me that there is going to be a case left after the immunity decision. that was clear even from the oral argument where justice barrett and justice kagan e elicited concessions that some of the actions can't be covered by immunity. that means jack smith will have some kind of a case. he can continue to pursue immunity, which means the case will be tied up on appeal from now until sometime next year, or he could pick up whatever scraps he is left with and maybe i shouldn't say scraps. if he is courageous enough and try to get to trial on that material only and still a chance to get on trial with former president trump prior to election day. >> bret: everybody, if we would stand by we'll wait for a few more decisions from the supreme court and bring you back as we get more. we are heading now to north carolina. i think you are looking live at this rally in north carolina in raleigh. we don't know how many people are there. a choir is there. this is an event that president biden will be at. the first time we'll see him from last night. how this goes and what he says in this rally will -- as you heard from kevin earlier, raise some eyebrows, there are a lot of people in the democratic party calling for him to be replaced and so calls for him to be replaced is the presumptive democratic nominee and it is getting louder. it may not be so easy to convince president biden to step down. chad pergram is live on capitol hill to explain this. it is a logistics nightmare in one sense, chad. >> good morning. last night was seismic, senior house democratic leadership source tells me, quote, those closest to the president have not served him well. the source adds, this is not sustainable. but the house's top democrat stands by president biden. >> hakeem jeffries do you think president biden should step down after the debate performance last night? no. >> were you okay with how he did? >> now removing the president is messy. it would likely take a cohort of senior democrats ranging from former presidents obama and clinton and former house speaker nancy pelosi to convince mr. biden to step aside. house republicans want the audio tapes from the interview special counsel robert hur conducted with the president and hinted that president biden was not with it. >> is that augmented, that push after we saw the president's performance in the debate last night? >> everyone can see the objective fact that we have been discussing for a long, long time. that president biden is not up to the job. everyone sees that clearly. it is nothing we take pleasure in pointing out because it is so dangerous. >> democrats have until august 7th to replace mr. biden when a roll call of democratic delegates begins. they vote then to comply with the law in ohio. if the president steps aside before august 7th, delegates are no longer pledged to biden. anything after august 7th spells trouble. it is hard to replace the nominee unless there is death, resignation or disability. democrats wish the house was out of session today. that way they could duck questions about president biden and petrified about bleeding seats down ballot. >> bret: that's a big part of it. >> dana: kayleigh mcenany is here. one of the things we are talking about is president -- former president trump, i thought, was pretty restrained in pointing out what everyone else could see. i don't think that trump and biden could see their own two shot. i don't know if there was a monitor down below. it was obvious that he could see something was going on. he had one gentle comment, i i don't understand what he said and i don't think he did, either. it was a gentle comment. was that a strategy. >> i have to believe former president trump was shocked at biden. it had been a long time since they had been on the debate stage. he knew he could come in strong. trump knows how to go hard at someone when he wants to but he didn't. he even had a lie. my must husband and i looked at each other. he doesn't want it to be this way, joe biden when talking about the young women who have died but he does not know. he was even gracious in saying i give it to you, joe, i don't think you want to see the chaos at the border. >> bret: do you think there are republican websites keep joe, that they want him to be the nominee and they don't want to see some switch that democrats are continuing to talk about this morning? >> without a doubt. you want to beat the democrats and who better to beat than joe biden. i would say this, though, when you look at polling head-to-head match-ups joe biden is the strongest contender of the democrats. many of the democrats are unknown nationally. if you replace him at the convention if you are able to do that you only have a two-month stretch to make the new candidate known to the american people. >> dana: you already have something like hakeem jeffries, who is the democratic leader in the house of representatives saying biden should stay in. tim waltz, a governor of min mine and biden surrogate saying he should stay in. whitmer of michigan says the same thing. you could see a split between the elites and people in in the democratic party and the rest of the democrats like the entire opinion page at the "new york times" saying this has to change. >> that has been going on for a long time. lucas tomlinson posted two years ago 75% don't want biden as the nominee. others have said you would need a lot of top democrats to come and intervene. that is not happening today. hakeem jeffries i imagine was on the phone last night like all the other democrats and not pushing for a new nominee. >> bret: those aides at camp david, his family, they had to know. they had to know that this was a possibility. >> dana: as did all the spokes people at the white house and the campaign. >> bret: they had to know. >> how did 16 people sit for eight days and think it was a good idea? if he prepared for this for eight days a conversation i had with a top trump national security issue who said i listened to trump on the phone with a taliban and in no uncertain terms he used language but the taliban walked away knowing if they harmed a single american they would be done. we didn't lose a single american for a year. if it took eight days to prep for days. there is no time to prep for a call with putin or xi. i worry for the country. i really do. >> dana: a sentiment a lot of people are feeling today. see you on "outnumbered." >> i would encourage you guys while you are worrying about style today, to fact check everything donald trump said and to measure that against what the truth is and whether those things are good for the country and see how the things shake out. >> dana: the shaky debate performance. more on the panic unfolding in washington and at campaign officers across the country. >> bret: former president donald trump looks to keep building momentum after his debate performance. we'll speak with two men reportedly on the v.p. short list. we talked to one earlier, senator tim scott. now senator tom cotton and north dakota governor doug burr groom coming up. >> this election will come down to a question on strength versus weakness. president trump showed strength last night. every day, more dog people are deciding it's time for a fresh approach to pet food. developed with vets. made from real meat and veggies. portioned for your dog. and delivered right to your door. it's smarter, healthier pet food. if you have generalized myasthenia gravis, picture what life 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matter too much and through time they really haven't meant that much. this one mattered a lot because it answered the question countless voters have. is this old guy fit for the job? this was a debate he wanted. it was played under rules that he agreed to and he came out and seemed like a ghost. i think the impression in -- democrats are right to begin thinking getting him off the ticket. >> bret: what about hakeem jeffries and governor waltz saying he needs to fight on. one debate. does that dissolve over days? >> i think the outward visible signs are. inside the democratic party you know that they think it's over for the old guy or if he stays on will drive them to a disastrous defeat, possibly even a landslide. >> dana: we have spent months being told by the white house press secretary the president runs circles around her behind the scenes at the white house and told last week that videos we air were cheap fakes. listen to her here. >> you all have called it the cheap fakes video. that's exactly what they are, cheap fakes video, they are done in bad faith. misinformation, disinformation, how desperate republicans are here. these deepfakes, these manipulated videos and it is again done in bad faith. >> dana: 80 minutes into the debate last night dana bash asked the question to biden about his age and competency. by then everybody had already made up their minds it was not going well. >> let's take a look at all the people who knew that last night was very possible, okay? robert hur, who interviewed biden on the documents case as special counsel said he was too elderly and memory too poor to be prosecutable. as you pointed out, they have not released the audio tapes of that. who knows what that whole scene sounds like? susan rice, anita dunn. all the people who work at the white house also know. they balked at that "wall street journal" story that said he was showing signs of slipping. they pushed back all over that. but that story now appears to be quite accurate based on what we saw last night. there is going to be -- i think what we're seeing from josh shapiro, a battle royale over two camps. one camp will say we'll keep him in there. they have did the basement campaign in 2020 in front of a teleprompter and made sure he got across the finish line. if they get him across the finish line again and decides that he wants to bow out after six or eight months as president they'll move kamala into the spot. not planned she would speak last night but she was on the cable networks. the entire "new york times" and other people it is time to go. so there will be a huge tussle going on there. >> bret: stand by if you would. i think we have another ruling out of the supreme court. shannon bream is standing by outside. >> this is the one we have been talking about under the radar on federal regulatory activity. it is written by the chief justice and this was the idea that if a federal agency is going to interpret ambiguous laws from congress, they get the final word. there is deference to the federal agencies. critics say it has given those agencies way too much power through people people not elected. it looks like here it says -- let me see the chief justice is writing. it looks like a 6-three opinion and a serious claw back of the federal agency power if not completely overturning the chevron case that gave them power. we have given the required courts and had them prefer to permissible agency interpretations. when we consider whether that doctrine should be overruled and sounds like they are going that step. how far they have gone with overruling chevron. they do say the language from the chief is chevron the overruled. now they have regulations from a law and that can't be checked by a court is gone. this is huge in the world of federal regulatory procedure and again to make it -- whatever you do during the day, the gas you put in the drive, the cell phone you use, everything is touched by federal regulations and these agencies from had a great deal of power since the 1984 case called chevron from here at the supreme court. today the language makes it clear the court is saying we are done with chevron as we understood it. it will claw back the federal power. let me read you from the ending of this opinion here by the chief justice. he says if it is legal interpretation that has been emphatically the province and duty of the judicial department saying courts are ones to weigh in here, not just the federal agencies. chevron is overruled. courts must exercise independent judgment deciding whether an agency has acted within its statutory authority. the lower courts got this wrong and essentially chevron is gone. courts need not and under the administrative procedure act don't have to defer to an agency anymore. >> bret: that is a big deal. >> dana: a huge decision and because of the way it came down, it really does remind all voters, but especially republicans, that president trump was able to get those conservative justices at the court who made a decision to say congress has a responsibility here in pushing it back. >> bret: jonathan turley and andy mccarthy standing by. it is hard to overstate the significance of this when it comes to regulations and dealing with everything the government deals with that affects people at home. >> you are absolutely right. this is a momentous decision. they finally delivered. chief justice roberts delivered the final into chevron. it is now gone. this has been something in the making for years. the supreme court has become increasingly uncomfortable with this deference given to agencies. some of the justices have said this doesn't really make a lot of sense. the trump administration comes in and issues sweeping new regulations because of their policy priorities and we give deference to those and then biden comes in and he then reverses all those and we give deference to those. what about the right of citizens to get a fair hearing in front of judges for them to look at these questions and see if these interpretations are reasonable? and so chevron is now gone and look, you will have everyone in washington go into spontaneous vapors chevron is a religious item in the beltway and gave so much power to federal agencies. this republic existed before chevron. many of us are older than this decision. what this means is that courts will get into the full business of interpreting what is a reasonable approach to this language. now, will this affect agencies? absolutely. it means that they are likely to be sued more often. it is likely that they will have to face greater challenges. and some people say that's really a good thing and others, particularly in washington, believe that's a nightmare. but we are going to back to where we were before chevron was enacted. >> bret: thank you. >> dana: mark is the new alliance president and meghan from the fisheries who we have enjoyed getting to know over the years as the case is working through the process, mark, your initial reaction? >> yeah, it looks like a court decided this based on the administrative procedure act, a 1946 law where congress told the supreme court that it needed to use its own independent judgment to interpret statutes and when chevron was decided in 1984 the court glossed over that or hadn't given effect to that. roberts said it was a mistake and the theory that you should leave decided decisions alone, doesn't justify leaving chevron in place in part because it has proved so unworkable in practice. >> dana: meghan, you have been a tireless advocate for your business and industry and workers. your thoughts this morning. >> i am ecstatic. we finally have a level playing field. american citizens finally have the same rights in court as the united states government. and that's huge. that will make a huge difference in our industry and in every industry going forward. i mean, thank god for new civil liberties alliance. if it wasn't for them we couldn't have afforded to go to the supreme court and fought it all the way up. now we'll actually have a shot at winning in a lower court going forward and that is tremendous. >> bret: just to make clear for everybody here, this case deals with the challenges to the federal mandate requiring atlantic herring fishermen and carry inspectors on their vote and you had to pay for it. that's how it all starts. >> yes, what happened was we were required to take federal fisheries observers on our boats but the federal government is required to pay for them. they wanted to expand their program but no appropriations from congress to do so. they said the fishing industry can pay. and the costs were tremendous. this decision today with claw back that power for agencies to just do what they want. >> dana: this is pretty remarkable. thank you for being with us here. on set with us is brett hume and martha maccallum following this for a long time. this is momentum and a consequence of the new justices over the past few years. >> not only that but the consequences that federal agencies repeatedly have overstepped and overreached and left citizens in the situation where they had to fight the agency and its own judges, and then take the matter to court if they could afford to. it was interesting what she just said about this association that took care of the legal proceedings for them so she -- she couldn't have mounted this case without the help she got. that gives you an idea how big a deal and how powerful these agencies have become. >> bret: conservatives have fought for this a long time. these cases was the way to do it and now a resolution. >> when you hear people in the trump world and conservative circles talk about dismantling the administrative state, this is what they are talking about. the role regulatory agencies play in individual's lives and small businesses that constantly have to battle fending off agencies. think about what this fishery had to deal with. we'll have someone on your boat when you go out so you have to deal with that person and make sure they can get on and off and boat and then pay for it. you have to pay for the whole thing. so it is -- just extrapolate that to every other business in america that has 16 different agencies that have to show up to test this machine and that machine. if a worker gets hurt you have 45 different agencies calling you up. it is onerous for businesses and something they will feel less the burden of the government off their back. >> dana: it tells congress you have to do your job. they will have to put pen to paper and get details done. coming up we have governor doug burgum who dealt a lot with this issue in his business career and governor. shannon bream. >> justice kagan and sotomayor is reading her dissent. these cases where the dissenter wants to make sure they have the oral record of their objection from the bench. she said this now puts the court at the apex of the administrative process. what actions can be taken for climb ant change and the nation's healthcare system or transportation systems and government of a.i.? a lot of conversation during the arguments do you prefer an expert who works at the fda making decisions about including regulations or leave it to courts. the court has said 6-three they will leave it to the courts and we wait on the next opinion. more to come. >> dana: we want to bring in the north dakota governor and trump surrogate doug burgum. you have probably been playing close attention to it. not a lot of fisheries in north dakota but how does this affect you and other governors across the states? >> this is huge, this case on eliminating the chevron deferences. this is what has given the biden administration just essentially unlimited overreach. right now in north dakota we face over 30 rules and mandates all of which have come from agencies, all of which then would claim that they have the power to be stronger than even the courts in deciding how they should be able to administer the stuff and it is choking america and one of the reasons why our economy is being held back. this is a huge thing. this will affect a number of actual cases that north dakota and other states have currently pushing and fighting back and filing with the federal government. i think every american ought to be rejoicing because again this puts the federal government power back where it is and leaves power back in the hands of not just the courts but in the hands of the states because state regulators can make decisions better about our clean air, clean water, our soil health. we live there and care about it more than some bureaucrat in an agency in washington, d.c. this is a fantastic log jam going on for 40 years in the country with ever increasing power coming particularly the biden administration has used it more than any other administration to try to jam their ideology through rulemaking on families and small businesses and states. >> bret: as a conservative who has been fighting regulations like this and as a trump supporter, possibly on his v.p. list, these last 24 hours have to be pretty good for you? >> well, i think what is not really about what is good for me or that. i think for every american you have to look at this with a bunch of apprehensions and go wow, if this was eight days to prepare for an hour and a half debate, who was running the country during those eight days and today and running the country between now and next january 20th? it is -- it is not just americans watching. you had iran watching, russia, china, all of them were watching. look, if we had some action we wanted to take, we should do it now before president trump is back in office. joe biden's weakness has already invited wars around the world and i just think it is scary for every american. if you are an average american just hoping to tune in last night and find out about how joe biden had a plan to solve inflation, interest rates and the open border, you heard nothing. so i'm sure it's a discouraging thing. they created this situation. they engineered joe biden as the candidate four years ago and engineered who his vice president was going to be and they basically fought against democracy in their own democratic primary this spring. president trump emerged out of a competitive primary. joe biden was insulated from all that and now all of america has a chance to see we basically have been foisted a lie that president biden is terrific behind closed doors. now we know that the whole world has seen what is actually there and everybody has a right to be frustrated and angered at both the white house and the democrat party for just pushing this scenario forward for america. >> dana: there are some calls amongst many democrats saying that joe biden should pull out of the race and that they should have a different candidate going into the election. but there are party elders or people in power saying no, he should stay. it was just a bad night, a fluke, no problems here. do you think joe biden will be the actual nominee that the democrats put forward after the august convention? >> well, i've heard my neighbor, governor tim waltz in minnesota said joe biden should stay. gretchen whitmer, northern tier state thinks he ought to say. i want to say i agree with the governors in the northern tier that he should stay. they created this. this is the horse they are betting on. i think that this their choice. they have engineered this. i think it ought to be the race they should be going in. but if they switch to someone else president trump, the issues don't go away. inflation, open borders, war overseas, energy policy helping to fund our adversaries and hurting americans. all of those remain regardless who the candidate is. i think you will see president trump get stronger and stronger as the months go forward. >> bret: brit hume is here. >> it is possible, if the democratic hierarchy can talk joe biden into stepping off the ticket, staying president until the end of his term but not being a candidate again, democrats could have the last laugh here. if they are able to settle on a credible alternative candidate. let us not forget that donald trump, as strong as he seemed last night to so many people, remains unpopular and remarkably so. so suddenly you have somebody who doesn't have the biden record to run. without that burden against a man who is unpopular on the republican side. democrats could end up winning the race. >> bret: what do you make of that? you would like to see joe biden continue as the nominee. >> well, i think you swap out the candidate, you will have the same policies. if you pick any one of the names that have been suggested before on the democrat side, these folks will all inherit a horrible economy, open borders, inheriting the wars that we have overseas. that's not going to change. i really doubt that you will in a few months come in with a different candidate that will have a fundamentally different message other than more taxes, more regulation, more printing of money, borrowing money from china to redistribute wealth. i don't think that changes. i think americans will make their vote in november based on their pocket books. they will be voting for president trump. >> bret: we appreciate your time. thanks. >> dana: thank you, sir. and we just have so many guests. it is a festival of guests on "america's newsroom." senator tom cotton is also with us. senate intel committee member, senator from arkansas, possible v.p. pick as well. let's get your take on the debate last night, sir. >> well, i think everyone saw president biden, that he is not up to doing the job. hasn't been up to doing the job 3 1/2 years. even if he was younger he would be a failure, his ideas are failures. he admitted there was no inflation when he took office. he is the cause. he admitted terrorists had probably crossed our border. we know to be the case among the 10 million illegals who entered the country and time and time again president trump pointed out we had peace and stability around the world when he was president. this is a very unusual moment in presidential history, first time in more than 100 years with two people who both have been president. we don't have to guess or project what president trump might be like in office, we know. russia did not invade ukraine when he was president. they did when barack obama and biden was president. you didn't have iran running wild when trump was president. our enemies are laughing at us and allies are worried about us. on full display last night was not just joe biden's unfitness for office but his failed, weak presidency as well. >> bret: i want to turn back to the supreme court, senator and this case we have just seen the chevron case that essentially tears apart the ability of agencies to really make regulations without some pushback. as a conservative, how big a deal is that for you? >> well, this case is a huge victory for the american people. constitutional government and the rule of law. it is a huge blow to the administrative state in washington, d.c. no one elects bureaucrats to make these decisions for the american people. they elect us, congressmen, senators and the president to make those decisions. we shouldn't be having bureaucrats making them and congress should be writer clearer, simpler laws that allow people to understand them and not punt off to the administrative state to make those decisions for us. that's one way you get the web of regulations you have seen over the last 3 1/2 years acting like a wet blanket on economic growth. we didn't have that when donald trump was president. we had reasonable regulations to protect public health and safety but we also had strong economic growth. that's what we'll have once president trump is back in office especially now that this outdated judicial made doctrine has been overturned. >> dana: senator cotton, thank you for joining us today. a busy day and we're happy to have your voice. we'll continue to monitor the supreme court. we could still get additional cases. we're paying attention to that. shannon bream is on the scene and we'll be right back. changes your struggle with missing teeth forever. it changes how you eat, how you feel, and how you enjoy life. it changes your smile and how others smile at you. clearchoice network doctors have changed over 100,000 lives with dental implants, and they can change yours, too. because a clearchoice day changes every day. schedule a free consultation. type 2 diabetes? discover the ozempic® tri-zone. ♪ ♪ i got the power of 3. i lowered my a1c, cv risk, and lost some weight. in studies, the majority of people reached an a1c under 7 and maintained it. i'm under 7. ozempic® lowers the risk of major cardiovascular events such as stroke, heart attack, or death in adults also with known heart disease. i'm lowering my risk. adults lost up to 14 pounds. 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(♪) >> dana: fox news alert. breaking news about the january 6th rioters. supreme court ruled. what did they say? >> so what they have said is that one of the statutes the justice department used to charge hundreds of different january 6th defendants is no good. that includes president donald trump because he is actually had two of these counts against him in the jack smith d.c. case against him. the federal criminal case on hold here. they say this statute, which was passed in the wake of enron, they say it doesn't fit here. given the subsection was enacted to address the enron disaster not some other set of dangers like what happened over here at the capitol it is unlikely congress responded with such an. it means that all of these people who were charged under this particular obstruction statute for january 6th, that is no good. the dissent this is interesting vote makeup. the dissent is actually written by barrett. she says that congress did intend for this kind of conduct to be brought under this obstruction charge and thinks the majority got it wrong. it means a big headache for the d.o.j. and good news for hundreds of january 6th defendant charged under this statute including president trump. >> bret: these are big cases. andy, this is -- what does it mean, big picture for the january 6th defendants? >> dana: how many people -- did it apply to all these cases? >> well, it applied to all of them or many of them, dana, in the sense that it was charged in them. it doesn't mean that everybody who pled guilty, for example, which happened massively in that connection, doesn't mean that all those people have preserved their right to complain about that on appeal. so how many of them it will actually benefit is questionable. the importance here is that they have found that this is an evidence impairment statute. so in other words, for this kind of obstruction to apply, you actually have to corrupt the documentary evidence that is being presented in a proceeding the way the justice department tried to apply it was that if you engage in conduct that prevents the proceeding from happening in the first place, that it was applicable. the court seems to be saying that that's not the case, at least the majority decision. i think the importance with respect to president trump is number one, does jack smith have to supersede his indictment? the most important two counts of that indictment are this obstruction statute. i think what he would come back and say is that his obstruction theory in the case includes what they call the fake electors scheme where they actually provided certificates to the congress for purposes of -- according to the prosecutors, undermining the proceeding at which president biden's victory was certified. so it will be interesting to see what jack smith has to do with his case and does he have to go back to the grand jury and supersede it. if he has to do that, hard to imagine this case could get to trial. >> dana: jonathan, do any of the rioters in jail today get released because of this? >> they very well could be. there are two aspects to this. some were convicted of what is now established to be improper charges. hundreds of people were the subject of improper charges by the justice department. that includes president trump, who hasn't been tried yet. they were also sentenced based on this conviction as well as a mix of other things. so those sentencing decisions have to be re-evaluated. i have said all along i was surprised by how heavy the department of justice went on obstruction. i said something going to vegas and playing roulette but only betting red. the court said red is not a bet. we have to go back and look at all of these cases, not just for those who now have these convictions knocked out, but how they impact sentencing. for president trump, this is a big day. i've said all along that fisher needs to be treated as important as the immunity decision potentially for trump. it basically rips the wings off the plane that jack smith is trying to get off the ground in d.c. can he push that plane forward on the runway? i don't know because if you take this claim out, it is really integral to his entire complaint. it is hard to see how the complaint holds together if he was exsive and wrong bringing these charges. you would usually see a superseding indictment but i expect he will try to avoid that. but for trump, what a day. his nominees put the court over the top in delivering this on chevron and then they just knocked out hundreds of these convictions for january 6th. these citizens should not have been charged with this crime. >> bret: just to be clear joseph fisher is one of 330 people charged with this obstruction of official proceeding in connection with january 6th and that's a fraction of the 1350 or so january 6th defendants but a big, big deal. back to shannon bream. we're done for the day on decisions. that means that next week we are looking for the rest of this, including immunity. >> yes. the chief justice has said monday is the final day of the term. that means monday we find out presidential immunity, where that goes for president trump and potentially generations of presidents to come as we keep saying, justice gorsuch said during the arguments we're writing a rule to the ages. we go into overtime. monday will be the final day. monday at 10:00 a.m. eastern we'll find out what the court decided on the presidential immunity claim by president trump. >> dana: a political version of penalty kicks. tune in on monday. i knew everyone was worried about that. kevin mccarthy joins us now. so many things to ask you about. let me first ask you about the decision about immunity. i want to get your thoughts as does bret on the debate last night. >> i think the supreme court, this is why we have three co-equal branches. the chevron decision is one of the biggest decisions we find. we have watched the outreach in what the executive branch has done in regulation which was the role of congress. it has shifted it back, restructured to where the founders believed america should be. i think that will be a defining decision long term and i really celebrate that decision. >> bret: what about the debate last night? what did you think and what do you think it means? will joe biden be the democratic nominee? >> first thing i would say is i told you so. i remember when i talked to the "wall street journal" and the democrats and morning joe all attacked me saying i was lying for what i actually saw when i would go privately in to see the president. that he could only talk from the cards. the times he took me on a wild tour down to the swimming pool where jill was trying to stop him. i've seen this president time and again, a different joe biden every time i went in to discuss matters with him. so i think the american public saw that. if the democrats believe democracy is on the ballot they cannot remove joe biden from the ballot. you can't put somebody else in where the american people have had no time or decision making process where they selected that individual. this decision should have been made a long time ago back before labor day but it will really come down to the biden family. why did they put him through this? they had made the decision and if democracy is on the ballot, they have to keep joe biden on the ballot because the people selected him. >> dana: when you watched him last night did you think he seemed worse than the last time you saw him? >> look, there are times i've seen him where he has been better or not. i've seen him in a worse situation where i walked out of the white house literally depressed as an american. and i have shared that with people. it concerns me that the staff would yell at me as well. you couldn't negotiate with this president. what's really concerning to me is as i travel the world and talk to a lot of world leaders still, they have seen this same joe biden and have privately spoken to me concerned about it. just a year ago a couple months ago. that makes america weaker. this is the commander-in-chief. this is the individual that has to represent this country. this is the leader of the free world. at no time would you allow that individual to be there let run again. >> bret: you did get asked about this and said you worked with him behind the scenes and competent. you said some things along the way and then you said earlier before the debate you shouldn't lower expectations for biden. but you do believe that this is really where it is, the declining of president biden's mental competency. >> let's put this in perspective. i don't like to lower expectations. this man took one week out of office while he is the leader of the free world with ukraine at war, with the axis of evil going on, with inflation flaring, he took one week off to sit at camp david and only prepare to try to memorize answers and that is the position you got. what i would really like you to do is go back four years and show joe biden answering a question in that debate to this debate and see how quick the decline is. that's what i talked to you about every time i would meet with president biden, i got a different joe biden. i would use a negotiation skill when he would only use the cards. i would disrupt the meeting once he got into the cards because then he could no longer continue forward as you watched last night. i did all my negotiations with his staff. i would have to come in and he would have to bless something but it was always with the cards. i used the structure. when i sit and negotiate with somebody i'm not going to give them the secrets of what i'm talking to him about. but disrupting on the cards he could not carry on the conversation longer. those people in the room saw it, they knew it. and that's why the standpoint of why did they ever make that decision a year ago to put him in this place? >> dana: former speaker kevin mccarthy. great show. before we go i wanted to ask you something. last night they were talking about golf handicap. cancel the election, let's settle it on the golf course. how do you define a golf hand he cap? >> how well you play as regard to par. >> dana: par. >> bret: i don't think biden is a six. the former president is good. >> harris: we begin with a fox