obstruction charge against a january 6th rioter joseph fisher. >> i will yield to anyone who will tell me when you are bringing the impeachment vote. >> you got nothing. you guys got nothing because joe biden has been acquitted. >> the only person on the stage that is a convicted felon is the man i'm looking at right now. how many billions do you owe in civil penalties for molesting a woman in public, having sex with a porn star. >> i didn't have sex with a porn star. >> i don't speak as smoothly as i used to. i don't debate as well as i used to but i know how to do this job. i know how to get things done. and i know like millions of americans know, when you get knocked down, you get back up. >> on friday the supreme court handed down a decision to reduce the power of federal agencies by gutting a long standing legal precedent of chevron versus natural resources defense counsel. that gave federal agencies broad regulatory power. the justices may be driving key legal decisions in our country right now but there are subjects they probably don't know much about. to my knowledge, chief justice roberts is not a chemical engineer. brett kavanaugh is not a botanist and amy coney barrett is not a member of the federal reserve. but that is what this ruling implies, that the justices are experts in fields outside of the law and that they know better than the people who get paid to make these decisions in the federal government. justice kagen said it best. quote, a rule of judicial humility gives way to a rule of judicial hubris. joining me now is analyst and host of the amicus law podcast and an author of the best selling lady justice, women, the law and the battle to save america, dahlia ludwick. there have been a huge number of cases out of scotus in the last weeks but this hits all americans hard. not americans who are facing criminal charges. i'm talking all americans. chev ron has been on the books for 40 years. it has been precedent. but this court decided that precedent means something different than what we learned in law school. take us through a short description of what this decision means for americans. >> hi, katie. i think the easiest way to describe it is i think about how government works. we often make the mistake of thinking that joe biden and donald trump standing there talking about their climate policy or their veterans policy or their monetary policy, that that is a decision they make themselves at home at their desk. that is not how government works. that's not how government has worked for along time. government works because there are many, many federal agencies that decide policy. whether it is the atf, epa, whether it is the cdc, it is full of experts and scientists. if they make bad policy in four years you can vote for a different president and get a new head of the agency and new policies. the supreme court since chevron for 40 years said when a rule is ambiguous, we will refer to the agency and let them tell us what nitrogen oxide does as a pollutant. we will let the agencies decide whether mifepristone is a safe drug. we will let the agencies decide whether a bump stock is a machine gun. what the court has been doing for the last couple of years is undermining that one by one and case by case. two weeks ago, we had carance thomas telling us how knows how mushown guns work better than atf. and a judge told us he knows better than the fda how to regulate drugs. they arrogate this exertties to them self. but we are not going agency by agency. the court has said when there is a tie and an agency ruling is unclear, we will let the courts decide. we will take it out of the hands of agencies. as you have said, we have been seeing this all term. last year, we had sam alito explaining how swamp lands work. this year we have alito telling us how emergency medicine works. now justice gorsuch is telling us how air pollution works. and now in one case, it is not going to be a bunch of cases, judges across country are going to get to substitute their judgment about science, water we drink, drugs we take, about how to land an airplane. and the court says that's the way it is going to be. >> so dahlia, let's talk about the practical implications that you explained to our viewers. it is not just the supreme court and the nine justices that will be able to interpret the administrative agency's intent, purpose and law that congress passes, because the constitution says congress passes the law, right? there is a reason why we have the branches of government. are you saying then that a trial court judge in some court in some state can use his or her interpretation of a law to be able to now decide something that impacts the litigants there? and then are we going to expect more litigation wind its way back to the supreme court? >> yeah. you just described the mifepristone case. we had one judge in amarillo, texas who said he didn't like the way the fda regulated a drug that has been determined by scientists for many decades to be one of the safest drugs on the market. he was going to take it off the market. we had the case go all the way to the u.s. supreme court. and in this particular instance, the court thought his interpretation was wrong but also invited litigants to come back and try again next year who have standing. i think you are actually saying that any judge is in the country who wants to rewrite or rethink an agency rule can do that. the knock here is that congress has to write rules with more specificity. if they can get the 0.002% numbers right on carbon emissions, than that's fine. but that's not how congress writes statutes. congress can barely do anything. it can't write statutes with specificity that there is no ambiguity. then the question is who gets to determine in a case of an ambiguous or open ended statute, how we will interpret that. the court has decided the courts. >> you know, one of the things i hear often from conservative, i guess, groups. they scream about what they call judicial activism that comes from what they think are liberals. they talk about how judges need to be on the bench because they need to follow the laws. they need to respect precedent which is something that we have seen tested time and time again during confirmation hearings. this smacks of not only gross hubris on the part of the supreme court but it also smacks of selective judicial activism, doesn't it? it is the idea that when you whole sale get rid of chevron, you as a judge can be an activist as a judge in terms of how you want to see something turn out on a particular issue. >> you're right and the proof of that is the biggest fan of chevron was scalia. he was a ferocious opponent of justices putting their own ideas, often unstantiated ideas inpolicy. chevron was an effort to constrain judicial overreach. the fact that justice scalia would probably look at that decision and say this is insane. this is the antithesis of what i considered judicial humility shows you how far the conservative wing has moved away from justice an scalia who was considered very conservative. so justices get your hands off policy and let the agencies decide. that's way too moderate now for the court. >> i have like a second before i let you go but i want to know your call on the criminal immunity decision coming out on monday? >> i'm pretty worried. i think it means a lot that the court slow walked it into july. they usually end in june. i worry that some of the language in the fisher case opens the door for big claims about government overreach and the deep state and the fbi. i'm pretty worried. >> dahlia lithwick, thank you for making us smarter. i will leave our viewers and you with the following. there have been 30 nonunanimous rulings so far with the scotus. nine have been a split with republicans in majority and democrats in descent. judge aileen cannon continues to grind the classified documents case to a halt. and how special counsel jack smith is fighting back. l counsel jack smith is fighting back ng. since my fatigue and light-headedness would come and go, i figured it wasn't a big deal. then i saw my doctor and found out i have afib, and that means there's about a 5 times greater risk of stroke. symptoms like irregular heartbeat, heart racing, chest pain, shortness of breath, fatigue, or light- headedness can come and go. but if you have afib, the risk of stroke is always there. if you have one or more symptoms, get checked out. holding off on seeing a doctor won't change whether or not you have afib. but if you do, making that appointment can help you get ahead of stroke risk. contact a doctor and learn more at notimetowait.com when you smell the amazing scent of gain flings... time stops. 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(♪♪) gain flings. seriously good scent. everybody wants super straight, super white teeth. they want that hollywood white smile. new sensodyne clinical white provides 2 shades whiter teeth and 24/7 sensitivity protection. i think it's a great product. it's going to help a lot of patients. trump appointed judge aileen cannon coins to slow walk the president's former classified documents case at a glassial pace. she denied an order for the franks hearing to look at the truth of the search warrant for mar-a-lago. she also called for another hearing regarding other challenges made by trump's lawyers regarding the fbi search warrant. in her 11 page order, she said that further factual development is warranted and trump's defense lawyers were entitled to the hearing on whether the prosecutors had misused statements by lawyers. that hearing has no date set like the trial itself which is indefinitely on hold. joining me is a fellow at the constitutional law center and the coauthor of how to steal a presidential election, matthew sell igman,. i hope you didn't give the blueprint to trump. let's start with fort pierce, one of my favorite haunts. you were in the courtroom arguing as a friend of the court on behalf of special counsel jack smith's position that he was properly appointed according to the appointments clause as special counsel. take us through what happened in court that day. >> thank you for having me. so it was extraordinarily unusual for a trial court to have an amicus like me argue at this case. even when there are sometimes dozens or hundreds, less than a quarter of a percent of the time does the court permit an argument in oral argument. but in early may as the amieke who filed, asked if they wanted to participate in the argument. the defense, trump said they did. we wanted to participate to give equal time to the position. it was a hearing that lasted almost five hours which is a lot of time to give to an issue that has been raised in many courts across the country in the last 50 years and rejected every time. >> let's switch gears because you are very busy. you wrote an amicus brief i guess you say amicus. you wrote a brief for fisher. you said that this is very porpt because there are some doom and gloom people who think that this decision will adversely impact special counsel jack smith's prosecution of donald trump in the various election interference cases that he is facing. you in your brief to the supreme court took a middle of the road proach, something that is not as far reaching as the government and nothing as narrow as what fisher was seeking. tell us why we should not have a chicken little the sky is falling reaction to what fisher said yesterday. >> what the court did in fisher is it adopted a moderate interpretation of this statute, section 1512c2 which makes it a crime to corrupt, influence or impede any official proceeding. the interpretation that was adopted was broader than what the defendant, the violent january 6th rioter had asked for. he wanted an interpretation that limited the statute only to the disruption of evidence. the reason he asked for that is this statute was passed in the aftermath of the enron scandal. and the government in contrast asked for an interpretation of any obstruction at all. the court adopted a position that is close for what we advocated for in the brief which takes a middle path. in this case, fisher won in a sense that the decision below is reversed and will have to go back down and ask whether fisher's violent conduct falls into the moderate interpretation of the statute. but in six months, a year, or two year, we will find out that it does because there is no question in my mind that the violent protesters on january 6th impeded the use of an object, the electoral certificates in an official proceeding. what we see here in fisher is part of a larger pattern where there is a little bit of a setback for the prosecution that takes a lot of time. ultimately, i don't think it will make a difference in the guilt or innocence under the statute of the violent january 6th rioters or of donald trump. but it will take months or years to find out if that is true. >> you also filed a brief in the criminal immunity case that ended up in front of scotus. we know that the chief justice announced yesterday that monday will be the last day that we will have opinions released. your thoughts about this criminal immunity decision that is imminently going to be coming out for americans on monday? >> well, it seems i'm the sunny optimist of the guest. i think we will see an opinion that looks good for the president. i think it is certain that the court will say that some presidential conduct is immune. you can't make it a crime to veto a bill. outside of that, there is a question about how far the court goes in establishing presidential immunity. even more than that, like with fisher, even if the court gives president trump everything he wants, if he is immune for every act that he took while he was president, he is still going to be subject to a trial as long as he doesn't drop the charges against himself next year. the reason is if you look at the indictment, the vast majority of the conduct that is alleged is clearly unofficial conduct. outside of trying to malignly influence the department of justice, the conduct was taken in an unofficial capacity as a candidate trying to up lawfully reverse the results of apelection. so the ultimate outcome i think will land against donald trump. we have now been seven months here waiting for the supreme court to tell us what the rule is when no matter what the rule is, donald trump is going to lose. so the ultimate upshot of this is that we have seen in every case we are talking about, an enormous amount of delay, the judicial epicycles where we ponder what the right rules should be when under any rule, donald trump should lose. it is the delay that risks so much. >> very quickly, before i let you go, i have been pushing the idea that what we will see is tonya chutkan get the case back from scotus and she conducts a hearing of sorts in which she parses out what constitutes official and unofficial acts to have what remains of the indictment. that is what scotus was asking on the issue. do you agree we could see something of that ilic? like a hearing where americans could see the sins of donald trump before november? >> i think that is quite likely in fact. if the court issues a rule where the district court has to decide what conduct is official and what's not, i think an eviden shear thaerg hearing is likely to happen. it will air the facts that many americans have dropped down the memory hole. so this fall for americans to see just how grave his crimes against democracy were in the 2020 election aftermath, i think that could serve an important public purpose. of course it would serve a judicial purpose but it would also inform the american public on who they are contemplating again. >> i appreciate your legal acumen. thank you for sharing with us today. when you get knocked down, you get back up, the candidates reacting after the debate and how former president obama is trying to calm the nerves of democrat voters by talking about his first presidential debate next. about his first presidential debat next why take 10 antacids throughout the day when you can take 1 prilosec. for easier heartburn relief, one beats ten. prilosec otc. one pill. 24 hours. zero heartburn. new centrum menopause supplements help unpause life when symptoms pause it. with a multivitamin plus hot flash support. 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"the new york times" editorial board is calling on biden to leave the race after his debate performance on thursday saying he is not the man he was four years ago and the greatest public service he could do is to announce he would not run for reelection. but it goesoon to say that if the race goes down to biden or trump, they would pick biden. so should biden get out of the race? >> no. first of all, i strongly disagree with the opinion but i wonder if it is appropriate for them to do that. having said that, if joe biden stood on the debate stage and said nothing and let donald trump speak for 90 minutes based on donald trump's record and statements, i think joe biden still would have won the debate. but i understand the visual medium. there is so much riding on the outcome of the election and the stakes are so high and people's feelings and emotions are so strong around what happens in the race. i get why there is some consterna