this sort of quick injunction, temporary injunction just to sort of figure it out, it remains to be seen if that is even going to happen. we just have to watch. last night i wouldn't think, tonight i'd be reporting on the same breaking news as last night. >> you knew he was going to appeal. why did he go to the same judge when she just denied him the day before. two theories. one, they stink. two, they had to exhaust all remedies before appeal to the next level. you could argue either way. they obviously thought they needed to do this so they did. now the archives are supposed to deliver these things starting friday, the 12th. between now and then, that was the judge's reasoning. you got time. go to the d.c. circuit court and get them to stay it. because i'm not changing my order. now they'll do that. they'll run over to the d.c. circuit court and try to get a stay, pausing this before they can appeal. will the appellate court do that? depend on the three judge panel you get. what they see underlying the appeal. they may want to take a look and give him a temporary stay. how much time will they give it? these fears about running out the clock, that would mean the mid-term elections. i do not see what is worthy of -- what do i know sf talking to people who study the supreme court on the legal side not journalists they don't see what is in this for the supreme court. they don't understand what would be worthy of review. i don't think he can run out the clock. >> that is a question i have for experts that i have. >> i just answered it. >> i have got some experts coming up right now. but again, the only thing i can say is because of the breaking news because this is unprecedented is the old stay tuned or watch this space because we will be reporting it. i love you. i'll see you later. got to get to breaking news. this is "don lemon tonight" and we have breaking news. this is from the same federal judge who broke news last night at this time. she is saying some new stuff. but basically she is saying, standing by, doubling down on what she said last night. she is saying she will not help the former president as he attempts to buy time arguing to keep records from his presidency secret. she is pointing him instead to an appeals court as chris just mentioned. so the jung's latest decision come a day after she ruled again him in a n historic case over access o his presidency sought in the january 6th committee investigation writing presidents are not king and plaintiff is not president. with the national archives set to send records out to the house on friday the former president is scrambling in court for even a temporary hold. so let's get right to cnn's senior legal affairs correspondent, senior political director, and professor of law at the university of baltimore school of law. we have ek pert mind here o talk about this and get us through the breaking news. good evening. i'll start with you for the reporting. the former president denied again in this executive privilege case. what are you learning? >> you noted just last night this is the same judge that ruled that former president trump could not keep his white house records secret from the house select committee investigating january 6th. now, the national archives inherited inherited rum please's white house records after he left office and they are skej yould on friday o hand over this group of 700 pages of white house records to the committee. trump and his attorneys asked for that to be delayed while he appeal. it is not surprising the judge denied the request. now he'll likely go to the appellate court to make the same request. it would be surprising if they didn't gran it. >> but he is running out of options o delay, right? >> he is appealing this. >> if they're running out of time, only one day, this judge believes he has time. go to the appeals court and try it yourself. >> no worries. you also have a federal holiday. he has the right to go to the appellate court and ask them to just pause the hand-off of the document while they examine the larger constitutional question. this really is a pretty historic case. there are very novel questions raised in this case about the rights of a former president to keep his or her records protected. right now most of the power to protect the records of former presidents lies with the incumbent. we've seen here president biden has declined to protect these documents and that is where we get this case. so far it is not looking great for former president trump but we'll see what happens at the appellate court level and whoever loses there would likely want to appeal to the supreme court. whether they'll take it up i know one of our earlier colleagues said they didn't see a question here. i disagree. this is a novel constitutional question the supreme court may want to take up. >> stand by, paula. i want to bring in the other folks here. kim, give me your reaction to what the judge is doing rejecting this saying trying to buy -- he is trying to buy time and she is saying i'm not going to help you with that. >> under the rules of federal appellate procedure rule 8 if trump wants a stay from the court of appeals the rules do require that he first ask the district court judge for the stay. so it is almost like an exhaustion process. had to go to her first and then has to make the same showing to the appellate court that she rejected. that is a four part test that includes a showing of what we call likelihood of success on the merits. he has to show he'll probably win his appeal and that is the weakest part in my mind. but i have to agree with paula on the supreme court here as well. >> hold on. why do you say that is the weakest in your mind? >> that is the weakest in my mind because the presidential records act under which this lawsuit is brought is a post watergate reform specifically designed to bypass president nixon's attempts to essentially potentially destroy records and maintain records. and the united states congress said, no. the records belong to the people. the incumbent president joe biden is the holder of the people's interests. this is really about the public interest in this motion. >> got it. >> so donald trump has to argue he is more in tune with the public interest than the united states president under the constitution. i think that is a really tough sell. >> okay. so what if the judge had taken her sweet time? did she have to act with urgency here or could she have taken her time and said on friday i'm sorry you got to go to the appeals court? >> there is nothing mandating she do it in any particular amount of time. >> she did it in deference to the -- >> yeah, to the appellate court. she knows this is all eyes on this and the opinion was relatively brief. she nailed everything. it was a very tightly worded, very, very well done opinion. she knows what she is talking about. >> one more question before i get to david. what are you expecting when trump gets to the appeals court again, the d.c. circuit court of appeals again? >> i did a little research on this in sort of the legal scholarship field. it is rare to get the state that he wants. it is in less than, in a 2020 study less than 20% of the cases actually get what he is asking for but tend to be a higher percentage if asking to stay release of confidential documents. so i do think it is possible that the court of appeals is going to say this is important. we'll issue the stay. alternatively they could just say we agree with the lower court. you have not satisfied the standard for injunction. we are going to briefly deny the whole thing. that is conceivable. it does depend on the panel, the judges that are going to decide this. >> david, let's bring you in here, our political director and knows all things politics. without emergency relief from the d.c. circuit court. >> yeah, please do not ask me about appellate procedures. >> i'll ask you about the political angle. it is 40 pages. the question is what are they hiding? what could we learn from these white house records? who knows? there is a whole bevy of things. >> yeah. i mean, we know what the committee is interested in right? we know that the committee is interested in piecing together the build up to january 6th, the plotting and planning, and who was involved with that and how close did that get to president trump and was he directly involved in any way. the day, itself. everything that was going on around the president on the 6th of january. and of course the aftermath. so we know that they're interested in finding out sort of precisely through those days leading up and the day of the president's movements. who was around him. what were the conversations taking place? you mentioned, you know, it is up to the current president to assert privilege. joe biden made a really big decision a couple weeks ago when he came to the conclusion that he was not going to assert privilege. we know and the white house asserted again today in a statement, don, that joe biden is committed to a full counting of what occurred in the build up to and on january 6th so the country can prevent an attack on the democracy like that ever again. but still this was a weighty doe sigs. it is going to set a precedent which no doubt he and white house counsel were very much thinking through but he came to the conclusion the transparency and accountability for this greatest attack on our democracy trumped, pardon the pun, any claim that the former president may have relating to privilege. >> another political question here. because the concern obviously over politics is running out the clock. the 2022 midterms are coming very soon. congress could change hands. could he run out the clock on this? >> i mean, we'll have to see how lengthy, not just this particular appeals process is on privilege, but throughout the entirety of the existence of the committee. obviously they've issued a bunch of subpoenas. we know people have not been complying with those subpoenas based on guidance and counsel and advice from donald trump trying to sort of appease the desires of the former president. so clearly there is a clock here that the trump team will try to run out. but, don, the committee is keenl aware congress may change hands next november and come next january republicans could be in charge of the house. no doubt they are going to be setting a timetable here to complete their work sooner rather than later in 2022. they have no desire for this to go into the next congress. >> one more, david. because as you know, cnn is exclusively learning that the january 6th committee is interested in talking with at least five people from mike pence's inner circle the former vice president. some appear to be engaging with the committee and we all remember the video of pence being rushed out to safety. look, it's been sort of back and forth with mike pence standing up really for the constitution and for free and fair elections and also saying in another, with another voice or from another side of his mouth and praising the former president in speeches and what have you. if these folks are wanting to comply and wanting to testify and meet with the committee how worried should trump be pence's inner circle could testify? >> right. it is no surprise that the committee wants to talk to aides very close to vice president, then vice president pence. what i thought was so incredible in the reporting that we had today on this was exactly this notion, don, that there are eager people in pence world to tell their story. it is clear, you mentioned the video of him being ushered out. it is clear that the committee is very interested in the entire pressure campaign on pence from trump to illegitimately overturn the election. we know, we've heard about the communication former vice president dan quayle had with mike pence explaining there was no way for him to interseen. it was a purely ceremonial job for the vice president on that day for counting the electoral college votes but that the entirety of the pressure campaign gets at the president's motive. and so having pence's inner circle be willing to go up and tell the story of everything they know of the pressure trump was applying is a key piece to the entirety of this puzzle putting together the entire fact pattern of what was pretty clear right now, you know, an attempted coup. >> yeah. i was just looking at the new statement from the judge. let me ask you. the former chief counsel greg jacob reportedly pushed back on attorney john eastman who created the memo saying pence could overturn the results. former national security adviser keith kellogg was with trump at the white house january 6th and former white house chief of staff mark short was with the vp leading up and on the capitol hill january 6th. these are all critical fact witnesses. >> absolutely. the john eastman memo is short but from a constitutional law perspective really stunning. the plan was to have mike pence as president of the senate basically cancel or ignore the electoral college certifications from seven states. that means all of the votes in those seven states that went to the electoral college for joe biden, every human being voter in america would have been canceled in that moment. and then there would have been a contingent of 26 republican-led states that would then hand the election through a series of maneuvers to donald trump. and it was mike pence who standing alone said no to that. it is a pretty stunning thing that he did frankly given that they were hanging gallows outside the capitol shouting for his assassination. yes i think his loyalists probably want to tell his side of the story and have him have his place in the history books for as controversial as he is politically i really think we could be in very dark waters right now. and we could be in dark waters again if the january 6th commission doesn't get to the bottom of what donald trump did leading up to january 6th. >> thank you both very much. david, i just want to ask you about federal rule number -- i'm kidding. i appreciate it, guys, helping me out with breaking news. have a great evening. thanks so much. meanwhile, in a courtroom in kenosha, it erupts in fireworks and sobbing. the latest on the dramatic day in the kyle rittenhouse trial. so she'll get some help from fidelity, and she'll feel so good about her plan, she can focus on living it. that's the planning effect, from fidelity. michelob ultra organic seltzer. two flavors bursting onto the scene. they'll make quite a splash. now in watermelon strawberry. and black cherry. as real as it tastes. that's a nice truck. yeah, it's the chevy silverado. check out this multi-flex tailgate. multi-flex, huh? 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>> because i didn't do anything wrong. i defended myself. >> the prosecution hammering rittenhouse over his use of deadly force. everybody you shot at that night you intended to kill, correct? >> i didn't intend to kill. i intended to stop the people who were attacking me. >> by killing them. >> i did what i had to do to stop the person who was attacking me. >> by killing them. >> two of them passed away but i stopped the threat from attacking me. >> by using deadly force >> i used deadly force. >> you knew was going to kill. >> i didn't know if it was going to kill them but i used deadly force to stop the threat that was attacking me. >> you intentionally used deadly force against joseph rosenbaum, correct? >> yes. >> you intentionally used deadly force against the man who came and tried to kick you in the face, right? >> yes. >> you intentionally used deadly force against anthony huber correct? >> yes. >> you intentionally used deadly force against gaige grosskreutz, right? >> yes. >> with regard to joseph rosenbaum you fired four shots at him correct? >> yes. >> you intended to kill him correct? >> i didn't intend to kill him. i intended to stop the person who was attacking me and trying to steal my gun. >> during cross examination rittenhouse claimed joseph rosenbaum tried to take his gun and said he didn't want to have to kill him. >> if i would have let mr. rosenbaum take my firearm from me he would have used it and killed me with it and probably killed more people if i would have let him get my gun. >> even after you shoot him one time and he starts falling you continue to shoot three more times? right? >> i continued to shoot until he was no longer a threat to me. >> amid all the drama, this may not have been a good day for the prosecution. the defense making a motion for a mistrial with prejudice which would mean the case is over. can't be retried. they claim the prosecutor committed, quote, what amounts to prosecutorial overreach the judge saying he'll take the motion under advisement but tearing into the prosecution, asking the jury to leave the courtroom twice during cross examination then ripping into the prosecutor's line of questioning. >> i was astonished when you began your examination by commenting on the defendant's post arrest silence. that's basic law. it's been basic law in this country for 40 years, 50 years. i have no idea why you would do something like that. don't get brazen with me. you know very well an attorney can't go into these types of areas when the judge has already ruled without asking outside the presence of the jury to do so. don't give me that. i don't believe you. there better not be another incident. i'll take the motion under advisement. >> let's remember this is a judge who told prosecutors before the trial began that he wouldn't allow them to call the people rittenhouse shot victims. but he would allow the defense to call them arsonists or looters. >> let the evidence show what the evidence shows. if the evidence shows that any or more than one of these people were engaged in arson, rioting, or looting, then i'm not going to tell the defense they can't call them that. the word victim is a loaded, loaded word and i think alleged victim is a cousin to it. >> this case has been a lightning rod from the beginning. of course some people have to make it all about them. exhibit a since we're talking about the courtroom. republican senate candidate jd vance the one-time critic of the former president who has changed his tune now that he is running for office. he apparently couldn't resist weighing in on this case. pay close attention. this is what he tweeted. i'm quoting here. we have our boys -- we leave our boys without fathers. we let the wolves set fire to their communities. and when human nature tells them to go and defend what no one else is defending, we bring the full weight of the state and the global monopolists against them. law and order. right? law and order. wolves? we let the wolves set fire to their communities. that's a really loud dog whistle you've got there. and there's more. >> it is time for us as patriots to stand up because if we don't fight back against the lawlessness, if we don't defend this young boy who defended his community when no one else was doing it, it may very well be your baby boy they come for. it'll be your children whose lives they try to destroy when no one else is defending their communities. >> actually that is quite dangerous. what if everyone decided to arm up and go out and be vigilantes? is that what law and order is about? very, very dangerous. very. look, how rittenhouse shot three people and killed two of them, right? if he had not been there, it wouldn't have happened. if he had not inserted himself into the situation it wouldn't have happened. let's not forget. i want to be very clear about this. kyle rittenhouse is innocent until proven guilty. and it is playing out on our television sets now. that's how our legal system works. that is how it should work. it shouldn't work through vigilanteism in this country. that's not part of it. think about this. i want you to listen to what baltimore city state's attorney marilyn mosby told chris a few moments ago. it pretty much sums it up. >> i think you have to consider the fact that you have a young, white boy openly carrying and illegally possessing an ar-15 loaded with 30 rounds at a black lives protest matter in order to defend businesses not his business, not his life, not his liberty but defending someone else's property for rioters code name for criminals where he subsequently shoots and kills two unarmed people, wounds another, yet approaches the police, arms up, ar-15 strapped to his body and the police drive past him. why? 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>> so far the defense. the risk seems to be paying off in the sense of having the appeal of the jury, the sympathy card was played. obviously crying on the stand is going to evoke a level of sympathy from the jurors. remember, it is the tears in itself is not the most compelling aspect. when he asserted self-defense he has to demonstrate he was entitled to use self-defense and specifically lethal force to repel whatever force he perceived was used against himself. while there may have been that dent in terms of the sympathy card and figuring out this young man is speaking for himself, what would he sound like, what would he act like, would he be defiant, resolved, sympathetic? he answered those questions but hasn't answered the question whether he was entitled fully to use lethal force in this instance. >> so, paul, what do you want to say? >> i agree. although remember the burden is on the government not on the defense. they raised the issue. it is a privilege. it's what i call a but for defense. he pretty much has pled guilty to the homicide but i always call it a but for. i wouldn't have done it but for. and the judge is clearly antagon antagonistic to the government. i haven't quite seen something like that but i think the government created a reversible error by commenting on the defendant's post arrest silence. >> we'll talk about that. why do you thank the judge is antagonistic? you know this judge >> i do. i think the government is trying to do a back door. he called it a 904.04. that is wisconsin statute i'm sure -- >> no, we'll play that. why do you think the judge is antagonistic? >> because he thinks the government tried to do a back door around and tried to get in evidence he ruled inadmissible. >> just on this one thing. you didn't mean antagonistic overall? >> oh, no, no. just on this one issue. that is when he blew. >> okay. let's play that. let's play the judge when the judge chastises the prosecution. >> i thought this is my good faith explanation to you and if you want to yell at me you can. my good faith feeling this morning after watching that testimony was you had left the door open a little bit. now we had something new and i was going to probe it >> i don't believe you. there better not be another incident. i'll take the motion under advisement. >> yeah. that was just a short part of it there where a couple times that happened, laura. paul, you first because you know him. and then i want to get laura's take on this. you've appeared in front of this judge before. should this prosecutor know better? is the prosecutor in over his head? what do you think of that moment? >> i don't like to criticize anybody. i don't know this prosecutor. i don't know why he has another prosecutor at the table. we would normally switch off if things aren't going well with one prosecutor you put up the other one. but, clearly, i think the judge felt this prosecutor was trying to do an end around and he was not happy with it. that was clear. not in front of the jury of course but there was the other incident about commenting on the post arrest silence. i don't think things went well for the prosecution today. the defense did well. i think the defendant, mr. rittenhouse did well and held his own. i'm sure this is much more complicated and we don't have time today for lesser included offenses. that is going to be a big issue coming up. >> what do you think of the way this judge ran the courtroom today, laura? >> well, i mean, this judge is pretty theatrical and the offense he takes to comments made. there is a lot of pearl clutching that i don't think was actually meritorious based on the good faith arguments that were stated by the prosecution. having said that, the judge is absolutely right on two counts. number one, it is inappropriate to comment on the silence of a defendant. remember, the miranda warnings we're all accustomed to you have the right to remain silent. anything you say can and will be used against you not things you do not say. you can imagine a prosecutor in the courtroom deciding to point out the defendant has not taken the stand in closing arguments saying, see? why didn't this person tell you himself? making an allusion to someone who has a right not to take the stand is inappropriate. the idea he was trying to according to this judge bring in what is called propensity evidence suggesting, hey, if the person committed other prior bad acts or crimes they must have committed this particular crime. that is the essence of it. the judge took offense to both. there is a reason to do so. however, the idea of calling this prosecutor a liar or talking about the notion of not believing they made a good faith argument is i think a step too far but the judge has a responsibility to ensure the defendant has a fair trial. they often times will bend over backwards to make sure it is clear they are not going to do the heavy lifting for the prosecution and because of the prosecutorial burden they have to carry all of the water including ensuring that they dot their is, cross their ts, follow the evidence, and ensure the constitution is followed. >> as you mentioned, the prior bad acts, usually judges don't like that because they think it's not fair to the defense when you are talking about something that is specific -- not specific to this case. so interesting. thank you both. so much to ask you. we'll continue this conversation because the trial is still going on. thank you. good to see you. so let's talk about gas, food, rent all costing more as inflation hits a 30-year high. president biden addressing the problem today. what can he actually do about it? 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[ marcia ] clearchoice dental implants gave me the ability to take on the world. i feel so much better, and i think that that is the key. we're carvana, the company who invented car vending machines and buying a car 100% online. now we've created a brand-new way for you to sell your car. whether it's a year old or a few years old. we wanna buy your car. so go to carvana and enter your license plate answer a few questions. and our techno wizardry calculates your car's value and gives you a real offer in seconds. when you're ready, we'll come to you, pay you on the spot and pick up your car, that's it. so ditch the old way of selling your car, and say hello to the new way at carvana. president biden trying to calm concerns over higher than expected inflation today. the biggest increase in 30 years. >> today's economic report showing unemployment continuing to fall but consumer prices remain too high. amidst this crisis the recovery is showing results but not to them. everything from a gallon of milk to a gallon of gas costs more and it is wheresome. >> the u.s. bureau of labor statistics is reporting over the last six months there has been a 6.2% in cost of consumer goods. gas prices rose by 49.6% computers 8.4%. tvs 10.4%. washers and dryers 14.9%. milk 4.3%. my guest the chair of the former council of economic advisers. good evening to you. tell me about the numbers. gas skyrocketing, inflation, everything costs more. it is something that is impacting everyone. how long do you think this is going to be like this? >> well, the whole debate going on, is this temporary or lasting? even the most temporary oriented think it is going to be months. the basic problem is that all the countries of the world are trying to come roaring back at the same time and the supply chain is not equipped to handle that. we're spending far more of our income on physical goods than we have for almost 20 years. because lots of services are shut down and people are afraid of catching the virus. while those two things continue to happen it is going to be hard to get off this train so a grumpy several months. >> gas prices are really the big thing right now. anyone who is on social media, just talk to people. they're like gas prices are so high. but there is not a quick fix on this for the president. some options include tapping into emergency reserves, urging oil producing countries to ramp up production, or even stopping u.s. oil exports. are any of these good options? >> none of those are lasting options. you know, if you think about the strategic petroleum reserve it can affect things but it is sort of a few days, couple of weeks. that sort of thing. what is happening with oil is every country of the world is trying to come booming back so if you look at the inflation taking place and gas prices it is not just in the u.s. it is a worldwide phenomena. you got inflation really ramping up all over the world. and we've got to get -- i know it seems weird but we've got to get control of the spread of the virus so people can go back to spending their money on services and there will be less emphasis in demand for physical goods and cars and computers and all of the stuff that are experiencing the supply shortages and then on the energy side, you know, we -- eventually they'll produce more but we just went through over the last ten years, we've just gone through this cycle where prices are really high and there was massive production and then prices went down and everyone went broke and now the prices are back high again and you see a lot of those producers saying, wait a minute. how do we know this is going to last? it didn't last the last time. let's not be as keen on pumping as much as we did before. >> it is interesting too to watch. in the real estate market homes in the suburbs went crazy during covid. i am wondering now if those people will move back to the cities because of high gas prices. >> you've already seen it. how prices, different prices are going up. this is what happens when you have such an epic shutdown. we kind of close down, now we're trying to reopen. if everybody in the world tries to reopen at the same time, the supply chain is not designed for that. we're buying more physical goods as a share of income than any time in the last 20 years so of course we'll have supply chain problems. you see that in the list you went through. if you look at tvs, cars, computers, all of those are using computer chips and computer chips are in short supply because in the factories where they make computer chips they're having covid outbreaks. you can't i mean -- >> i know. >> it's crazy. >> 68 bucks. i filled my car. 68 bucks it cost. and, yet, this, like i say, we are going to have a grumpy several months because these are not -- these are things which get fixed. they don't get fixed in weeks. >> a lot of people don't want to take mass transit because of covid, right, social distancing? 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(vo) wildfires have reached historic levels. as fires keep raging, the need to replant trees keeps growing. so subaru is growing our commitment to protect the environment. in partnership with the national forest foundation, subaru and our retailers are proud to help replant 1 million trees to help restore our forests. subaru. more than a car company. take this, everyone. in a divided country, americans agree on at least one thing. facebook is making our lives worth. a cnn poll finding 76% of u.s. adults say facebook is having a negative effect on society. only 11% think it improves society. okay. get this. even when you only ask people when frequently use the site, 70% still say the social media joint is doing more harm than good. it's addictive. even when people know it's not good for them. so are people going to demand change? our poll finding there is bipartisan agreement on this. 55% of democrats and 48% of republicans are in favor of more federal regulations. when have you seen democrats and republicans so close together? maybe it's time for the public to have more of a say in the online algorithms that have real-life consequences. up next, breaking news. another court loss for the former president. and the january 6th committee could be getting documents this week. for sure. seriously? one up the power of liquid, one up the toughest stains. any further questions? uh uh! one up the power of liquid with tide pods ultra oxi. ♪ this flag isn't backwards. it's facing this way because it's moving forward. ♪ just like the men and women who wear it on their uniforms and the country it represents. they're all only meant to move one direction which is why we fly it this way on the flanks of the all-new grand wagoneer. moving boldly and unstoppably forward. feeling sluggish or weighed down? it could be a sign that your digestive system isn't working at it's best taking metamucil everyday can help. metamucil psyllium fiber, gels to trap and remove the waste that weighs you down. it also helps lower cholesterol and slows sugar absorption to promote healthy blood sugar levels. so you can feel lighter and more energetic metamucil. support your daily digestive health. and try metamucil fiber thins. a great tasting and easy way to start your day. here is the breaking news. another big setback for the former president and his teattet to keep his administration's records from going to the january 6th committee. a federal judge denying his request to stop the transfer of judgments. judge tanya chutkan is the same judge who issued a ruling last night denying trump's claim of executive privilege an

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