cnn's paula reid has details on the justice department's investigation. >> reporter: the justice department today escalating its efforts to prosecute those responsible for january 6th, charging oath keepers leader stewart rhodes with seditious conspiracy. it's the first time prosecutors have used the sedition charge after bringing more than 700 cases related to the insurrection. prosecutors have said they were considering using the rarely applied section of federal law. rhodes is the most high profile in the investigation so far. court documents lay out a wide-ranging plot to storm the capitol and disrupt the certification of the 2020 election. two days after election day, rhodes allegedly urged his followers to refuse to accept the election results writing in a signal message, we aren't getting through this without a civil war. according to federal prosecutors on his way to d.c. on january 3rd, rhodes allegedly bought an ar platform rifle and sights, mounts, triggers, slings and other firearms attachments in texas. the next day he allegedly bought more supplies in mississippi. rhodes who earned a law degree from yale did not enter the capitol on january 6th, but video captures oath keepers forcing their way into the building in a military stack formation. in this clip, you can see a group of oath keepers very close to the capitol doors breaching the building. here, members inside the capitol rotunda including jessica watkins who was among those charged today with seditious conspiracy. the new indictment also reveals the group allegedly had quick reaction forces from three states, arizona, north carolina and florida, to rush into d.c. if needed. according to court documents, oath keeper thomas caldwell, arrested in january, claimed he took a reconnaissance trip to d.c. prior to the insurrection. prosecutors say rhodes was planning for violence well beyond january 6th, allegedly referring to the capitol attack as nothing compared to what is coming. in the weeks after the attack on the capitol, he allegedly spent more than $17,000 on weapons, equipment and ammunition. then, around inauguration day, rhodes told his associates to organize local melly militias oppose the biden administration. another member said, after this, if nothing happens, it's civil war 2.0. rhodes has nod publicly responded to the charges though he's previously denied involvement with the january 6th attack. he's expected to make his initial appearance in plano tomorrow afternoon. >> if convicted, he could face up to 20 years in prison. paula reid, thanks very much. let's bring in former fbi deputy director andrew mccabe. also with us, cnn legal analyst, former federal prosecutors elliott williams. andrew, this indictment makes it clear the insurrection wasn't spontaneous. this was a plan, apparently months in the work by a dangerous extremist group according to the charges. what stands out to you? >> wolf, it's a remarkable indictment. it's 81 pages long, incredibly dense with lots of facts and communications between the co-conspirators. what it really highlights is this complicated and complex level of planning that went into the activities they undertook on january 6th, planning that involved financial planning, travel planning, pre event training in different locations, the procurement of weapons, the deployment of those weapons to a special place where they would be able to access them on the 6th if need be. so this was very clearly a premeditated, thought-out agreement among these 11 people and also followed by a number of specific acts that they undertook in furtherance of the conspiracy. very, very detailed environment. >> it certainly is, if you read the whole thing. elliott, this is the first time anyone has been charged with what's called seditious conspiracy related to the january 6th attack. how serious, how significant is this charge? >> it's significant because it's not charged that often. wolf, it's not charged often because it's not often that people try to overthrow the government. it's an incredibly hard charge to sustain. in order to convict someone of seditious conspiracy, you have to find an agreement by two or more people to conspire by force to prevent, hinder or delay the execution of an act of government. what took so long is evidence of agreement. the text messages, the signal chats, the phone messages and so on to indicate that people agreed together to stop government. now, again, the last time the justice department tried to bring charges like this was 2010 or 2011 in michigan. they got tossed out by the judge for a lot of things i'm talking about here. it is actually quite hard to establish this kind of agreement. so the justice department, it appears, waited until they had a lot of evidence that built up and have what appears to be a pretty strong case. >> andrew, it wasn't just talking about a quote -- i'm quoting now -- a massive live bloody revolution. they were training in paramilitary combat tactics, staged outside d.c. according to the charges and all the evidence presented so far. they showed up with tactical gear. how strong do you believe this case is? >> wolf, it appears to be advantage strong based simply on the information that we see in the indictment. let's remember, the government typically has a lot more information that they don't reveal right up front. they like to hold on to some of these things as the prosecution gets a little deeper. i think it's remarkable the communications that are included here. let's point out, most of them were conducted over encrypted platforms like signal or proton email, things like that. that means they had to have convinced cooperators who were involved in those communications to provide access to their devices in order for the government to get that material. the government can't get that through subpoena to the communications platform company because it's all encrypted. in addition to having these communications, i would be pretty confident in saying they also likely would have secured the assistance of cooperators who had direct knowledge and participation in some of these events. this adds to my believe that it's a pretty strong case. >> when i read that lengthy document, it stood out that at least some may be fully cooperating with the justice department. eliot, what does this say about where the justice department's efforts stand a year after the capitol attack. attorney general merrick garland has faced criticism for not pursuing more serious charges related to january 6th. >> this pours water on the notion that they're not going after the planners. stewart rhodes didn't even enter the capitol building that day, signaling the justice department is able to starting, investigate and ultimately charge individuals who were merely communicating with people in the capitol that day, number one. number two, the point is that the planning of january 6th happened long before that morning in the form of rallies, speeches, communications and so on. so it's a far larger conspiracy than simply the acts of that morning. i think a lot of people were justifiably concerned that a lot of the charges were fortress pass or entering government property, conspiracy to obstruct congress, but not these serious charges here. again, something else to note, wolf, this charge here carries the same 20-year penalty as some of the other conspiracy charges, but this is a very important statement about the severity of the crimes and the severity of the attack on the capitol. >> elliott williams, thanks very much, andrew mccabe, thanks to you as well. coming up, the u.s. supreme court strikes down president biden's vaccine mandate for large businesses. i'll discuss that and much more with the u.s. surgeon general, dr. vivek murthy who is standing by live. liberty mutual customizes their car insurance so they only pay for what they need. 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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. tonight the united states supreme court has struck a major blow to the biden administration's pandemic policy. the justices blocking the president's vaccine or test rule for large businesses. the high court did allow a vaccine mandate for certain health care workers to go into effect nationwide. let's get reaction from u.s. surgeon general dr. vivek murthy. thank you for joining us. how big of a setback is this for the administration's efforts to deal with this pandemic? >> well, wolf, as a doctor and a public health professional today's news was disappointing. we know the requirements for vaccines in workplaces are an important part of how we can keep workplaces safer for both workers as well as for customers. the good news is that many companies have moved forward anyway in implementing vaccine requirements because they know again it's good for the workers, good for customers. i would encourage every business out there to move forward with these types of requirements voluntarily because they do help. but i would also recognize that there was good news in here, that the supreme court did uphold the vaccine requirement in health care settings, and we know that means 17 million health care workers will fall under that vaccine requirement. their being vaccinated not only helps them, but it's an important part of how we keep patients safe as well. >> the president did announce new initiatives on rapid testing, higher quality masks, deploying u.s. military medical teams. we're already, as all of us know, in the middle of this new surge. when is the administration going to start getting ahead of the problem rather than constantly playing catchup? >> the announcements the president made today were to add an additional 500 million rapid at-home tests in addition to the 500 million he recently announced. that 1 billion people will be able to -- as requested on the website that will be delivered to their home. this in addition to insurance companies that will be starting on saturday, january 15th, in addition to the 20,000 places where people can already get free testing. the bottom line is, if you look at the trajectory of the response, there have been big investments made in the last 12 months in testing, in therapeutics. that's what's allowed us to rapidly scale up testing. omicron came and dramatically increased the demand for testing. that's what we have to do. some of this is also i think has obscured some of the great progress we've made. this month in january we'll have five therapeutics that are available, have been available, and approximately 4 million doses of those. that's more doses of therapeutics than we've had in any other month over the past years. the bottom line is we're making progress. i know it doesn't feel like it in a moment like this where we have so many omicron cases. we will see more and more tests in the days ahead. >> i take it you acknowledge that the administration has had to play some catchup to deal with this enormous surge that's unfolding right now. >> certainly when it came to testing, as much as we had done, even though we quadrupled the supply of testing from the end of summer to december, clearly there was more needed because of the extraordinary demands of omicron. that's why you hear the announcements he's made over the last few weeks to dramatically increase the supply of testing. the bottom line is, wolf, there are a lot of curveballs that this virus has thrown at us. we've got to continue to do everything we can to invest not just on vaccines and boosters, but also expand the supply of therapeutics, expand the supply of testing, to make masks more available to the public which the president announced today, that next week we'll have an announcement on a plan to make high quality masks available to the public. these are parts of the strategies that we'll keep working on to make sure we not only get through this wave of omicron but that we're prepared for any new variants that may come our way. >> when will the new order of 500 million rapid tests that is so important, when will they actually be delivered, dr. murthy? people, they need these tests now, a month from now, two months from now may be too late. >> that's right, wolf. we recognize that the need is immediate. that's why the tests, the contracts have been signed. we're setting up the website and anticipate later this month alone, we will be able to ship out those tests after people request them in the website. we know time is of the essence. that's why people are working day and night to make sure the system is up. that will happen later this month. >> as you know, some experts believe the omicron wave may already be peaking at least in some parts of the united states. does the administration, dr. murthy, expect the covid situation this spring to be drastically better than what we're dealing with right now? and i hope it will be. >> well, wolf, my general philosophy is you hope for the best, but you prepare for the worst. we certainly are encouraged by what we saw in south africa, a rapid rise and then a plateau of cases. we saw that in parts of the united kingdom as well, particularly in london. if you look actually at new york city and other parts of the northeast, you're seeing that the rate of rise of infections is starting to drop off. we seem to be approaching a plateau. that is good, but let's keep in mind that our country -- we're a big country and we don't all move at the same pace. the omicron wave has started at different time points in the country, so it's not all going to peak at the same time. i think the next few weeks are going to be challenging. we'll continue to see high numbers of cases. our hospital systems in parts of the country are strained and that will continue, which is why the president announced that a thousand additional members of the department of defense were going to shore up and strengthen hospital systems across the country and the millions of pieces of protective equipment that we have september and will continue to send to hospital systems. a tough few weeks ahead. buti think there will be better days on the other side. we need to be prepared if another variant comes our way, we'll have the tools to deal with it. i believe we will. we have to remain vigilant. that means get vaccinated and boosted, wear a high-quality mask, and please use testing when you can before large gatherings to make sure you're not bringing infection into a group setting. >> excellent advice, dr. vivek murthy. we're grateful to you for all you're doing. thanks, as usual, for joining us. >> thanks so much, wolf. appreciate it. >> thank you. coming up house minority leader kevin mccarthy is dodging questions, trying to rewrite history about his communications with the former president donald trump. stay with us. you're in "the situation room." you ready to go fishing? 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investigation. the house select committee has issued four subpoenas to giant social media companies, the panel says the companies did not adequately respond to requests to turn over documents and information voluntarily. the committee also is leaving the door open to issuing a subpoena to house republican leader kevin mccarthy. he spoke out today about his refusal, refusal to cooperate with the investigation. let's bring in congressional correspondent jessica dean. jessica, mccarthy seemed to be trying to rewrite history. >> reporter: he certainly did, wolf. he responded to the request to the committee saying he did not plan to cooperate. he doubled down on that today. to your point, he simply did try to rewrite history. i'm going to give you an example. let's start with what he said january 13th of last year. take a listen. >> -- and bears responsibility for wednesday's attack on congress by mob rioters. he should have immediately denounced the mob when he saw what was unfolding. >> reporter: again, that was january 13th last year, days after the insurrection. you heard the house minority leader saying he bears responsibility. here is what house minority leader kevin mccarthy said today. >> my criticism went to everyone that day. why was the capitol so ill-prepared that day? >> reporter: again, now trying to say his criticism was to everyone where we just heard in that clip he bears some responsibility. mccarthy claims he doesn't recall a phone call now that he talked about that former president trump had claimed responsibility for some of this, that he told house gop members that he did claim responsibility. mccarthy now saying that's not what happened. our sources saying they were taking notes that day, they remember that's exactly what mccarthy said. a lot of facts that just aren't quite lining up with where they were roughly a year ago, wolf. he's also trying to defend his position for not cooperating by saying that nancy pelosi is simply playing politics with the select committee. it remains to be seen if they'll ultimately hear from mccarthy or the other gop members. they're trying to sort through how to compel them to testify. >> we'll see what happens. jessica, thank you very much. let's dig deeper. our chief political analyst glor gentleman borger and senior republican commentator john kasich, former governor of ohio. jessica, what happened to the mccarthy who seemed to be willing to hold trump to account? >> i think he's been taken over by ambition and has now become a captive of donald trump and the trump wing of the party, which seems to be now most of the party, and he wants to be speaker of the house. jessica is referring to that january 11th meeting with the conference in which he said according to many members that donald trump told him he has some responsibility for what happened. that's what the january 6th committee wants to find out. that want to know if donald trump actually accepted responsibility for the insurrection. and it's clear kevin mccarthy is not going to be the one to tell them. >> how embarrassing is it, governor, to see mccarthy actually twisting his own words from last year, pretending he simply doesn't remember what he said about mr. trump's culpability. >> gloria hit the nail on the head. everything he's doing, his statements the last couple days about the fact he's not going to -- he's going to throw democrats off their committees, this whole business about standing up to the committee in his way. this is all about him trying to become speaker. the problem he could have here -- i don't think it's certain, gloria, he's going to be the speaker. he's been warned that, if he continues to move to the right, he could have some weakness on his other flank. this is all about him trying to be speaker. that's why he'll do whatever he has to do. >> gloria, mccarthy is railing against the select committee's investigation calling it an abuse of power. does the select committee have any option to try to win over his cooperation. >> no. obviously the question is the committee going to subpoena him. we don't know the answer to that. i think they'd like to have some backup from the department of justice. they've held mark meadows in contempt. they'd like to see if the department of justice is going to prosecute on that, and so we have to wait and see. but aside from a subpoena which would be kind of a nuclear option to a congressional leader, i don't think they can do much of anything. who knows? they might decide to subpoena him. we'll just have to see. other than that, there's not much they can do. >> did you ever think you'd see a republican leader in the house of representatives, governor -- and you served in the house for many years. did you ever think that leader would rebuke a committee like this one for investigating an attack on the u.s. congress itself? >> wolf, you've observed it for a long time. everything that's happened around there right now is dysfunctional. the level of hatred and vitriol, it knows no bounds. again, i've got to go back to the fact that mccarthy, he doesn't care if he has to thumb his nose at somebody as long as at the end of the day when the republicans win the house, which they're likely to do, that he has the gavel in his hand. >> john kasich, gloria borger, thanks very much. coming up, democratic senators joe manchin and kyrsten sinema are meeting at the white house right now. we have new information and we'll share it with you right after the break. i've lost like 28 pounds. you look great! i love that my clothes fit better, but i just love ice cream a little bit more than that. the new ww personalpoints program is particular to you. so what kind of foods do you like? avocado. ice cream. sandwiches. no food is off limits. when can i start?! don't pay until spring! join today at ww.com hurry! offer ends january 17th! i may have moderate to severe rheumatoid arthritis. or psoriatic arthritis. but we are so much more. we're team 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the right people, even the most difficult jobs to fill. - [announcer] ziprecruiter, rated the number one hiring site. try it for free at ziprecruiter.com we're following breaking news. democratic senator joe manchin and kyrsten sinema are at the white house to discuss voting rights with president biden. chief white house correspondent kaitlan collins is working the story for us. manchin and sinema are the holdouts among the democrats who are obviously key to the president's jend. >> reporter: they are. but could also be key to blocking it, especially when it comes to blocking voting rights legislation. the president was clearly frustrated when he left his meeting with senate democrats on capitol hill. he's merged from that saying that they do not believe there's a path ahead right now, the president saying, quote, we missed. it's not just an issue facing the white house when it comes to passing the voter protection rights, it's also when it comes to the president and the president's efforts to get more americans vaccinated as it's been a very challenging week for this white house. president biden agitated tonight after making a sales pitch that seemed doomed from the start. >> it's about subversion, not just whether or not people get to vote, who counts the vote. >> reporter: biden uncertain about his ability to close the deal after another forceful appeal to senate democrats to change the filibuster to pass voting rights legislation. >> like every other major civil rights bill that came along, if we miss the first time, we can come back and try it a second time. we missed this time. >> reporter: while he arrived on capitol hill to a standing ovation, the president left empty handed. >> i don't know that we can get it done, but i know one thing. as long as i have a breath in me. as long as i'm in the white house, as long as i'm engaged at all, i'm going to be fighting to change the way these legislatures have been moving. >> reporter: moments before he arrived, senator kyrsten sinema delivered a fatal blow to biden's plan. >> i will not support separate actions that worsen the underlying disease of division infecting our country. there's no need for me to restate my longstanding support for the 60-vote threshold to pass legislation. >> reporter: afterwards senator joe manchin praised sinema, all but confirming that biden doesn't have the 50 votes needed to change the rules. >> the points i've been making for an awful long time and she has, too. >> reporter: the white house acknowledging the major setback for biden. >> we can certainly propose legislation to see if people support bunny rabbits and ice cream. >> reporter: the supreme court dealing another blow to the white house tonight, blocking biden's vaccine mandate for big companies. >> the supreme court's decision on the osha mandate essentially means ending this pandemic is up to individual employers to determine if their workplaces will be safe for employees. >> reporter: the president losing a key element of his plan to fight the pandemic as cases surge across the country, leaving the white house scrambling to respond and take steps that they refused to do before. >> i'm directing my team to procure an additional 500 million more tests to distribute for free. >> reporter: wolf, manchin and sinema are at the white house right now meeting with the president on voting rights legislation. they have made clear their position on the filibuster which democrats have said making an exception to that is the only way they believe they can get voting rights legislation passed because, of course, all republicans are uniformly opposed to it. if manchin and sinema do not change their positions on that, that legislation is going to die in the senate. it's not going to go anywhere. that is the big question here tonight because so far, when we've asked the white house what their backup plan is if manchin and sinema maintain those positions as they've held them for months, they haven't detailed what that backup plan is. >> i want to bring in national politics reporter eva mcken. between this setback on voting rights, the stinging defeat from the u.s. supreme court, just how bad was today for the president of the united states politically? >> reporter: wolf, this was a tough day for the white house, but they had to anticipate this outcome. they are still obviously fighting this evenings. what i think is important, though, is to listen to the public statements of the activist community, and i think that's important because that gives a sense of where the democratic base is. a lot of their frustration is trained at senator sinema and senator manchin, not at the white house. i'm thinking about dr. king's family suggesting senator sinema is a supporter of voter suppression, sounding that very same alarm. all that frustration from the democratic base, from democratic voters seems to be with inaction at the senate. the white house leaving it all on the table. that anger not trained at them. >> kaitlan, what's left for the president to talk to manchin and sinema now. haven't they made their positions abundantly clear? >> reporter: they have, time and time again for months. i asked the press secretary if the president is convinced he can no longer sway manchin and sinema on this. they've made it clear for months. they've had meetings. other democrats have talked to them. the white house has had people talk to them. it has not changed their positions. i think some people get exasperated when they see manchin and sin pla back to the white house tonight as it was clear how the president felt about the trajectory earlier today without detailing what else they're going to do next, what other plan they can have. i think that's the big question here. what is it that they can come to an agreement on? maybe it's another matter. they talked about trying to reform that law that was, of course, the center of the insurrection when it came to the role that the vice president played. whether or not that changes remains to be seen. when it comes to the two bills they're talking about, it seems unlikely they're going anywhere in the senate. >> democrats do appear unavailable to pass voting rights, unable to pass the build back better act. biden needs a victory right now. where does he turn? >> reporter: perhaps he can explore what more can be achieved through executive order. this is what we've heard from progressives. they said listen, do what you can while you still can. i'm thinking specifically about the issue of student loan debt. he indicated to date he doesn't have an appetite for moving forward with that on the executive level, but perhaps that can give him a needed boost to listen to the base and stop governing scared. >> in addition to the legislative problems he has, the pandemic clearly still priority number one. eva mckend, thank you. kaitlan collins, thank you. novak djokovic draws the top spot in the australian open, but it's 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>> i don't think there's any question. we saw with the french open how they treated her. all she wanted to do was skip a press conference. she was vilified. they forced her out of the tournament. it was novak djokovic of all people who said rules are rules. apparently not and when you look at how naomi osaka, a woman of color, serena williams, a black woman, how they've been treated for the slightest infraction and the amount of castigation and here you have the number one male tennis player in the world in novak djokovic and you look at the special treatment he's receiving, it brings about the double standard both for women and for women of color. >> jamele hill, thank you for joining us. many experts say cloth masks aren't cutting it against the fight against the omicron variant. which mask should you be using? your options, very important information you need to know right after the break. to t-mobid bring your own device, we'll pay off your phone up to $800. you can keep your phone. keep your number. and get your employees connected on the largest and fastest 5g network. plus, we give you $200 in facebook ads on us! so you can reach more customers, create more opportunities, and make this the best year for your business yet. visit your local t-mobile store today. ♪ ♪ ♪ ♪ ♪ ♪ with chase security features, guidance and convenience, banking feels good. chase. make more of what's yours. living with metastatic breast cancer means being relentless. because every day matters. and having more of them is possible with verzenio. the only one of its kind proven to help you live significantly longer when taken with fulvestrant, regardless of menopause status. verzenio + fulvestrant is for hr+, her2- metastatic breast cancer that has progressed after hormone therapy. diarrhea is common, may be severe, or cause dehydration or infection. at the first sign, call your doctor start an anti-diarrheal and drink fluids. before taking verzenio, tell your doctor about any fever, chills, or other signs of infection. verzenio may cause low white blood cell counts, which may cause serious infection that can lead to death. life-threatening lung inflammation can occur. tell your doctor about any new or worsening trouble breathing, cough, or chest pain. serious liver problems can happen. symptoms include fatigue, appetite loss, stomach pain and bleeding or bruising. blood clots that can lead to death have occurred. tell your doctor if you have pain or swelling in your arms or legs, shortness of breath, chest pain, and rapid breathing or heart rate, or if you're nursing, pregnant or plan to be. every day matters. and i want more of them. ask your doctor about everyday verzenio. mm. [ clicks tongue ] i don't know. i think they look good, man. mm, smooth. uh, they are a little tight. like, too tight? might just need to break 'em in a little bit. you don't want 'em too loose. for those who were born to ride there's progressive. with 24/7 roadside assistance. -okay. think i'm gonna wear these home. -excellent choice. i always dreamed of having kids of my own. ♪ ♪ now i'm ready for someone to call me mom. at northwestern mutual, our version of financial planning helps you live your dreams today. health experts agree that masking is the key to preventing the spread of the coronavirus along with vaccines and social distancing. which masks do a better job? cnn's brian todd has the story. >> reporter: we have, wolf. it's led to serious confusion. even with the new guidance the cdc's director says their recommendation that wearing any mask is better than wearing no mask at all. we have new information on viewers on what the government is going to say on this. tonight a new effort to stem confusion about mask wearing during the pandemic. the cdc expected to update the guidance soon. the cdc and local health officials have recently said n 95 and kn 95 masks appear to give you the most protection against the surging omicron variant. >> we should be wearing the best possible mask we can get, that's a fact. >> n 95 and kn 95s are better than cloth masks. how? one group comparing leakage found cloth masks can leak 75% in and out. surgical masks only 50%. n 95 masks as low as 1 to 10% if correctly fitted. >> you want to make sure that they fit properly. you've got to make sure it's really snug. it's an effective mask. that's the thing. >> n 95s are similar to kn 95s because they have high efficiency filters. n 95 has a slight edge. >> it has a great fit to your face. >> another key question, can you wear an n 95 or kn 95 more than once? >> yes. you can wear it a rule of thumb is up to 40 hours of use. the filter does not go bad for days to weeks. >> experts now say with omicron, it's high time to upgrade from cloth. >> cloth masks are little more than facial deck core races. >> some say there's been way to be that we ourselves, the front line workers, other influential people have actually curated on what works and what doesn't work based on evidence. >> n 95 and kn 95s are not cheap. they've averaged between 80 cents and $2 apiece. brian, we'll stay on top of this story. and to our viewers, thanks very much for watching. i'm wolf blitzer in "the situation room." you can follow me on twitter and instagram @wolfblitzer. erin burnett "out front" starts right now. "out front" next, the justice department charging the oath keepers founders and ten others with seditious conspiracy for trying to carry out a plot. now the question is who is in the justice department sights now. breaking news, president biden meeting just moments ago with two senators who will decide whether he gets voting rights passed. after a trip to capitol hill the odds are against him. the supreme court delivering a

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