transcripts from special counsel investigation at issue is president biden's fitness tounfitness to understae nature of the charges and the intent and by extension his fitness to run the country. republicans want to testify before congress. ipush robert mueller to testify and that wound up backfiring in a spectacular way. joining is now fox news legal editor welcome. we are so happy to have you on the show. i remember democrats wanted robert mueller to testify and he did, twice before two different committees. both were unmitigated disasters for the democrats. so, is there risk in testifying publicly? >> there is always a risk. this airs, i think one of the main problems with special councils as they currently are. they can find someone not guilty of a particular crime but then write a report many times is far more devastating than illegal conviction. then when they go before congress can go either way it can help hur's case but to your point it could backfire as well and i do think there needs to be some thinking through about what special counsel and the rags require courts should consider

that is what i am trying to understa. with respect to your motion earlier, was the argumt that the verdict was void because it was repugnant or simply that it shou b vacated because it was repugnant. >> the conviction shode vacated. the conviction shoulde vacated because they were repugnant. neither of them raised any question. we argue to the judge supreme court. the acquittal was in question. >> as a ger matter, you agree that it is a matter of state law when jeopardy terminates? that is basic question whether the defendant is bng put in jear more than once. you have to have it terminated before you can get to the question. as a general matte is that a question of state law? it is subject to this court making the ultimate determination as to wha constitutes ancquittal. it is held that jeffrey terminates when there is an acquittal. within broad ranges the state has discretion, due process, speedy trial and et cetera to set procedures. >> one of therodures is the verdict form has t be signed by the jury foreman. the jury

not blow it off or say, oh, they're, you know, they're full of it, whatever he would he would try to understa what they're saying what their best argument is. and then he would craft argument around that. but, you know, boy, in terms of his greatest be i shouldn't say this at gettysburg but i think his his second inaugural is greatest speech in american history to i want to emphasize lincoln's commitment to a philosophical public opinion. and after cooper's after the cooper union address, when he when he goes to new and and he emphasizes that this country is based on public public sentiment is everything. and public sentiment must grounded upon a philosophical opinion that is isn't accordance with the truth of reality as opposed to an ideological distortion of reality. and the ideological distortion tries to strip african-americans their humanity or the sophisticate distortion that that claims to justify a state unilaterally withdrawing from the union in accordance with the constitution. the profundity of lincoln's mind, excellent thank you. with please join me in giving our panel a round of

is just saying congress understas well as anybody different stitutional's comparative attributes and virtues. it does not want courts making, i meanit is law, but it is policy laden judgments. once congress cannot find direction. >> if we want to talk about what congress wants we probl should advert to the fact that we do have an amicus brieng in this case from the house. it does not want chevro >> it has total control over chevron. it can reverse it tomorrow with respect to an titular statute and with spect to statue generally and it hasn't. for 40 years it has exceeded except for super rare cases. it has basicallsaid this is the background rule. it gives us a default rule from which to write statute. we have except -- accepted. >> i am not sure evyby in congress wants to overrule chevron. >> everybody in congres doesn't want to do everything. >> it is really can be for some members of congress and not veo tackle on thhard questions and allow for their friends to get them erhing they want. even if congress did it, the president would be to i think the third problem, even more proble

if it answers the question, i guess i don't understa w you even get to the chevron issu. chevron that onyo would give the same in the. >> maybe you would,bunobody knows where step two against her ends. i mean suose now taking the hits from kaiser, which about something not chevron usa of cour you would apply the canons of statutory construction before you get to step two. the point is in every other case you apply those cannons. if you're not sure aut the answer you dust off the back d see if there are some other cannons. >> because you have no her option, what chevron is it is a recognition that incertain cases you apply all those tools and the conclusion you come up with is congress hasn't spoken to this issue. if you had no other option, you are court and there isa case before you,you try as hard as you can. even though you know yoare basically on your own. wh there is an en what chevn says is now there are two possib cision-makers. there is the agency and there is the cour what we think is that congress would vepreferred the agency to resolve this question. when congr

i am at a loss to understa where the argument comes from. >> i think there is a differen between recognizinretion and recoizg delegation. there are certain statutory terms as you yourlfwent out that properly construed by the courts definitively would give e agency a realm of discretion in which to operate. there arotr terms in which it is really a na question. the fundamental feeling chevron is it doesn't do a good job of distinguishing between the two. the best example is brand ex. broadband communications are either an information service or telecommicions service. it might be hard to figure out which one,utthere cannot be one of the tuesday mx on a thursday. >> wait a minute, it may be binary to you. i do know with the development of technology and with the development of hothat is implemented in terms of transmison and the internet thatvetime that is going to change. the same issue even ithcase that we are in right now, the were two areas the congress look that and you that -- reviewed for sytravel for obvious reasons. there is very little outside on tse shs leave that the u.s. government can

expulsion of this weapon, and that happe bh in the bump stock situation and in this situation, so i don't understa why this statute couldn't be read as the way the government is. >> even if you read it that way, i don't see how that wins the case for the government. >> why not? >> because only one shot is being fired per function. >> no, sine nction. if i read the -- there's only a sing tng that happens. >> right. >> to begin the chemical reaction that expels the bullet. >> that is one bullet, one shot. >> but then we go into the other part of the statut automatically multiple shots. you can't forget the rest of the statute. that was justice kagan's point. when we t em together, the work of the function of the igr, i think, could be to start the chemical reaction that then results in the totic, more than one sh cing out of the gun. why can't i interpret it that way? if that were actually happening, then i think you would have a plausible argument for y is is a machine gun. that's not the way itor. >> that's because you're tereting the statute to say it has to be about the mechanics. >> no. >> what

justice kavanaugh: the question is different which is if the concern you have, which i understa is that insurrectionists should not be leo hold federal office, the residual to ensure that does not happen, namely federal prosecution of insurrectionists. if convictedcoress made clear you are medically barred fr holding a federal office. that truly exists and could be us against someone who considered joshua committed insurrection. -- someone who considered -- someone whcoitted insurrection. mr. murray: that is rht section re made clear that criminalrocution is not suffie because oftentimes insurrectionists gonpished as was the case in the civil war. even if we don't have the stomach -- justice kavanah: a provision was in effect from 1870 to 1948, but that dropped out and has not been sn necessary since then. in trying to figure out what ction three means to the extent of the language, what about the idea that we should think about democcythink about the right of the people t elect candidates of their choice , letting the people decide? your position has the effect of disenfranchisi voters