tumult in tulsa. i'm michael smerconish in philadelphia. for the first time in three months there have been 13,000 people under the same roof in the united states. i'm well aware of the demonstrations that followed the death of george floyd. and recognize the hypocrisy. in being concerned about one type of gathering and not another. still, this feels different. it will be a campaign rally. and here are the rules. the trump campaign has said every attendee will be subjected to a temperature check and offered hand sanitizer and a mask, although masks are not required. six feet of separation, it sounds like these folks could be within six feet of six other people, while the president is speaking. not to mention entering and exiting, visiting the bathroom or concession stand. tonight's event stands in stark

contrast to the creativity exhibited by others who have a similar need to attract crowds. somewhere that the nba will soon play an abbreviated schedule. and players will have the option of wearing a smart tech ring that could provide early detection of covid-19. or consider the fact that on july 18th, comedian jim gaffigan will perform in a scranton casino in the parking lot. billing himself as a drive-through comic, patrons will be placed in drive-in cars. couples with wedding dates. that's another example. wedding dates that fell amidst the pandemic had to deviate from their plans. like the washington heights, new york, couple was married in the street officiated by a friend hanging outside of a fourth story window. i myself had engagements cancelled due to covid. so i recorded my speech.

none of that ingenuity will be in evidence tonight, why? because presumably the president views that as weakness. he wants a split screen, that shows thousands while joe biden is speaking to empty rooms. when asked if the president will wear a mask, i'm sure the attendees will do so. but to him, it's an acknowledgement or reminder that the deadly virus is still very much among us. but it is. the world health organization warned friday that the world is in a new and dangerous phase as the global pandemic accelerates. the world records 150,000 new cases, the largest rise yet in a single day according to the w.h.o. nearly half of these infections were in the americas as new cases continue to surge in united states, brazil and across latin america. no wonder then apple just

announced it's reclosing 11 stores in four states, north carolina, south carolina, florida and arizona. look, the nation has a rich tradition of individualism. manifest destiny. self-determination. call it what you will, but in this case, we are all making decisions not only for ourselves but for everyone with whom we will come in contact. the data suggests that younger americans are at an extremely low risk of death. but older americans and those with underlying illness are at a heightened risk of fatality. you should should the former and the rest of us protect the latter? it's pretty straightforward. by wearing masks, social distancing and washing our hands. that goes for whether you're a protester or president. which leads me to this week's survey question @smerconish.com. should masks be required, not just recommended, for large

gatherings, be they political rallies or street protests? joining me is tim murtaugh, the communications director for the trump 2020 campaign. hey, tim, thank you for being here. why not simply require that everybody wear a mask tonight? >> well, we've chosen oklahoma because it's practically the most open place in the country. we will be providing masks to attendees that they can wear if they want. everyone coming in will get a temperature check. anyone with a temperature will not be permitted. we'll have more hand sanitizer that anybody could possibly want. all of the precautions are in place. i'm pretty sure that cnn has covered the covid crisis pretty well. so people are certainly aware of the situation. people, as you mentioned in your lead-in, people have the freedom of choice. and over 1 million people requested tickets to the president's event here in tulsa. and people come in with their eyes wide open. and they know that we have taken the precautions to protect them. >> but the problem with the individualism argument is that

when you make a decision, if you, tim murtaugh, were making that decision, you're making it also for me to the extent i come in contact with you, as we all know, it's been drilled into us, the purpose of that mask is to protect those with whom you will then be in contact. >> well, individualism, in the united states, and freedom in the united states is not just an argument, michael. it is actually how we live as americans. and it's how americans always have lived. and people do have the freedom of choice, whether to come here or not. but, again, as you alluded to in your opening i don't recall this level of concern when there were tens of thousands, even hundreds of thousands of demonstrators in cities across the country including your hometown and my hometown of philadelphia a couple weeks ago. i don't remember the social distancing shaming that cnn and other networks were doing at the time. that was because it was an issue and cause that producers and

news editors in your news organization agreed with. now when it comes to a trump rally, well, all of a sudden, the rules are back and it's a rediscovery of the coronavirus crisis which was not, i would say, on the front lines of your thinking when it was the protests that you were covering. >> well, that may be the case for others. you need to listen more to my radio program because i've discussed both in an ongoing way. i'll simply say this and i want to move on to another aspect. the wording of my survey question today very carefully says all of the above. i recognize the difference between indoors tonight and outdoor in a street protest. i want everybody associating with others in a large setting to wear a mask. here's what i think is really going on. the president tweeted a photograph, i'm sure you've seen it, of joe biden speaking in a seemingly empty room where people are engaged in social distancing. kathryn, put that up on the screen. my theory, tim, it's a political

calculus where the polls right now don't favor the president. he wants to remind people that he can draw a throng of thousands. and then have a split screen, where there's joe, with just a couple people social distancing. is that the image he's playing for tonight? >> well, i think it was always going to be the image, whether we played for it or not, and whether there was a coronavirus crisis or not. the fact is president trump can pack 20,000 seat arenas and we're going to have tens of thousands of more people out here in the streets. so people will actually have a choice whether to go inside or stay outside. and the president will be speaking at both locations. but joe biden has never been able to draw a crowd. and it will be a split screen to show the great enthusiasm behind president trump's re-election campaign with tens of thousands of people supporting his re-election. versus joe biden who couldn't draw a crowd 1/20th that size, outside of coronavirus either way.

whether or not it's split screen is going to happen tonight or three months from now, it was always going to happen. there's a huge enthusiasm gap. president trump's supporters would run through a brick wall to vote for him. ain't nobody running through a brick wall to vote for joe biden we know that. >> you're confirming what health is about. it's put in a certain position so that optics can show, in the trump base, hey, in the polls, even in the fox news polls where i'm getting hammered, don't worry about it, because i can still bring people out in tulsa, oklahoma. >> it was always going to be a case that joe biden can't draw a crowd and the president can. we're in tulsa, oklahoma, because it's practically the most open place in the entire country. it was always going t g toing t contrast of president trump's excellent record of achievement versus joe biden who has a 44-year record of failure and he's running on ideas to fix things that he should have fixed

in his 4 1/2 decades in washington. no one is excited about joe biden, no one. the false polls that you show, in 2016, if we believe public polls hillary clinton would be in the white house right now. and the fox news poll is really one of the worst offenders. we know that the president is in strong position. whether or not we're here in tulsa or anywhere else, the contrast between the excitement between president trump's re-election and just the doldrums that surround the joe biden campaign were always going to be in evidence. so that contrast was inevitable. >> quick final question, if i may. if tonight is so safe, why is a waiver necessary for all the attendees? why do they have to click an acknowledgement that they're giving up their right to sue if they get sick tonight? >> come on now, you know if we didn't have that waiver, you'd be asking me the opposite question. and it's just standard language. my wife booked a massage the other day and there was a

similar waiver on the website for her. if you buy a ticket to a baseball game, on the back of that, it's a waiver that says watch out you may get hit by a flying ball if it leaves the field of play. that's just standard. if we didn't have that you'd be asking me the opposite question. >> hey, tim, thank you so much for being here. come back. >> sure, thank you, michael. could someone who gets sick tonight turn around and sue the trump campaign? joining me now to discuss is trial attorney shane inspector. he teaches at the law schools of hastings, berkeley and penn. full disclosure, i'm affiliated with his law firm kline & specter. coronavirus waivers and immune bills are a big mistake. i'll reed ad it allowed.

by clicking you are acknowledging that an inherent risk of exposure to covid-19 exists in any public place. and you're agreeing nod to hold donald j. trump for president, inc., et cetera, et cetera, liable for any illness or injure. your reaction is what? >> mike, that waiver is almost certainly not enforceable, the court would find it to be against public policy and not force it. mr. murtaugh says to you these things are standard. this might be the first political rally in american history where anyone was asked to sign a waiver of liability before going in. so, i think it's pretty clear, this waiver is not going to be enforceable. mr. murtaugh said to you just a moment ago that the trump supporters would run through a brick wall for him. what he really means is that

they will run through a coronavirus wall for him. and that's what's going to happen today in tulsa. there will be people in that auditorium who will have coronavirus, who will not test positively on the temperature check, because some people will not be symptomatic, even though they have the virus. they will be in the arena. they will spread the coronavirus. folks who have signed these waivers will get coronavirus, they probably have very weak lawsuits, frankly, because a jury will not be sympathetic to their claim, since they do know they are assuming some risk of getting the virus, but they will go home. and they will spread coronavirus to mom and to dad. and to their siblingings and to their spouses. and to their kids and to others in their workplace. in restaurants. and this is a very poor idea. >> so, what is a business? take this out of the political realm, what is a business to do,

amc flip flopped yesterday, initially saying they would not require masks then saying they would require masks. what is a business to do in this environment? >> yeah, mike, you're right. amc flip-flopped yesterday, so did rival theaters as well. they originally said they were not going to require them then decided to require the masks. and that was very smart. what businesses should do is just follow the rules. follow the cdc guidelines. follow your state and local recommendations and laws. and if you do that, you will not be successfully sued. you're only required in america to act reasonably. you're not required to act perfectly. and it is reasonable to simply follow the rules. and if you do that, there won't be a successful suit what a business should do, instead of saying sign a waiver, i business should say, we care about you. we care about your health and your safety. we strive to make our workplace

safe. our restaurants safe. our business safe. if you see something you think is not safe, please tell us. please tell a manager. that is a positive message. that's what people want to hear. people want to hear where they're going cares about their health and safety. what the president is saying today, regrettably, is i care more about my political future than i care about your health and safety. he would be much better off for the country and himself if he said please wear a mask. >> a quick final response from you to bring this full circle. i can hear the trump campaign saying well, wait a minute, mr. specter, we are following the rules. there's not a requirement in tulsa that everyone wear a mask. if there were, then we'd follow that rule. >> that's not correct. there's still a common-law requirement of reasonable care. it is unreasonable -- excuse me, 19,000 people, the largest crowd to assemble inside of america in

over three months, it's unreasonable to not require those folks to wear a mask. >> shanin, thank you for being here. >> you're welcome, thanks, mike. >> what are your thoughts? tweet me @smerconish. go to my facebook page. what do we have, kathryn? from twitter, the president can have a huge rally but my kid can't have a real graduation? how is that okay? well, the differing result from this, you're not the only one who's providing pus with a lot of assessment and saying if they can do this, why can't i do that? obviously, he's free to do whatever he wants i guess my guess point is so long as he exhibits reasonable care to all of his attendees. in your case, obviously, it was the school that decided it was unwire. i want to know what you think. go to my website at this hour and make sure you're answering the survey question. should masks be required, not

just recommended, required for all large gatherings, be they political rallies or street protests. up ahead, before rayshard brooks was fired at by a police officer, he pointed a taser at the officer. we examine how georgia law on tasers and stun guns could shape the outcome of the case. and just how dangerous is a taser? we'll take a look at its capabilities with the ceo who manufactured it. plus, bill barr announced he's replacing geoffrey berman a powerful attorney from the southern district of new york but berman is refusing to step down until the senate confirms his replacement. is president trump within his rights to remove him? for over 85 years? with capital group, i can. talk to your financial professional or consultant for investment risks and information. talk to your financial professional or consultant hey allergy muddlers... achoo!

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former atlanta police officer garrett rolfe faces felony murder and ten other charges after he shot and killed rayshard brooks outside of a wendy's drive-through last week. video shows brooks in a scuffle where he grabs one officer's taser and appears to discharge it. footage then shows him running away from the officers with the taser. brooks points and fires the taser at the officer, officer garrett rolfe shoots brooks. the video is horrifying to watch. the death seems tragic and unnecessary, but how will it be treated under the law? joining me now is tanya miller. she worked as a prosecutor in the fulton county d.a.'s office and now a civil rights attorney in georgia. counselor, i want to put on the screen the deadly force standard in atlanta. i'll read it aloud. and then i want to apply it to

this case. an employee may use deadly force to apprehend a suspected felon only when he or she reasonably believes that the suspect possesses a deadly weapon or any object, device or instrument which when used against a person is likely to result until serious bodily injury and when he or she reasonably believes that the suspect poses an immediate threat of serious bodily injury to the officer or others. now what i'd like to do is put on the screen that final sequence in slow motion. and ask you, how will that standard apply to the final sequence. roll the tape as tanya miller explains. >> so, here, you got to be really look at this situation. obviously, at the moment that the officer uses the deadly force. but you also have to kind of know what was going on before that. the officer is trained extensively on the use of a taser. he knows that a taser can only deploy twice. he knew at the moment he used

deadly force that the taser at that point had been deployed twice. i don't think anyone can reasonably say that the officer thought that the giant yellow plastic device in his hand was a firearm. so he knew it was a taser. he knew it was inoperable after that second deployment. so, i think the use of deadly force in that moment is going to be deemed unnecessary. in addition to that, we know that a taser is not a deadly weapon. a taser is not a deadly weapon. it's not a deadly weapon per se, and it's certainly not a deadly weapon under the circumstances of this case. >> but doesn't -- but doesn't georgia law consider it a firearm in a possession of a deadly weapon situation? >> no. a taser is not a firearm. a firearm is a firearm. it is what the common sense term means. it's a gun.

and in fact, under georgia law, a gun is a bedly weapon per se. now, there can be other objects when you use them in a certain way that become deadly weapons. for instance, it could be a bat. a bat is not a deadly weapon per se. but if you use it in a particular way, it can become a deadly weapon. and form the basis for an aggravated assault charge. in this case, a taser is more like a bat than it is a gun. a taser is nondeadly force. when officers use a taser, they can tell you over and over again that is less than deadly force. so how is it, and i think this is what is going to be the problem for officer rolfe, how is it in the hands of mr. brooks, a taser, when an officer uses it is not deadly force but somehow becomes deadly force. and becomes deadly force after it has been rendered inoperable. nobody knows that better than recove officer rolfe. officer rolfe is a trained

atlanta police officer. he knows how tasers work. he knows that tasers can deployed twice. i don't think that can be considered a deadly weapon. >> doesn't that presuppose, that officer rolfe, in the heat of the moment it able to do a calculus and know it's been fired twice? and i ask that, i think of all the cases where eyewitnesses differ when asked how many gunshots did you hear? one person says i heard five. another says i heard three. in the heat of the moment, would a reasonable officer be able to process, it's been fired twice and therefore doesn't pose a risk to me? you get the final word. >> absolutely. ultimately, that's a jury question. we don't know what will officer rolfe's position is going to be on that. certainly, he is an officer. he's trained. he's on the scene. he's there. you can hear the taser deploy the first. you can see it deploy a second time. in fact, he switches from a taser to a gun.

so he is making calculations about whether or not this is a deadly situation as it's unfolding. and he made the wrong choice. i think you have to look at his intent, right? that was critical for the district attorney. not only did had he shot mr. brooks twice in the back and said i got him. but he runs up to mr. brooks when he already inflicted a mortal wound on him and he kicks him when he's done. and he waits 12 seconds before calling for help. all of these demonstrate the intent to do harm and october out of ainge per. >> tanya miller, thank you for being here. >> thank you for having me. the georgia bureau of investigation say rayshard brooks who possession of the officer brosnan's taser. i want to take a closer look at that exact model.

joining me now is rick smith, the founder and ceo of axon, the taser manufacturer. dumb it down for me. i have no familiarity with tasers. i bet the large part of the audience doesn't either. how does it work? >> this is a taser 7. it's basically a handheld device to project two darts up to a 25-foot distance. and it transmits electricity through the darts. and that electricity when going through the body of the person can encompass him on a temporary basis. for example, i've been hit with these about ten times. they're quite effective. >> in other words, two shots but with a total of four darts. and i understand you, almost like a car battery, you need a positive and a negative to make a connection in order for it to be effective? >> that's correct. as you can see on the front of the device here, there are a total of four round circles

representing four dart borers. when i pull the trigger the first time, you would see two darts fire out, a positive and a negative. if i fire again, you'd see a second set of two darts that fire out. >> in that video sequence that i've just slowed everyone. the slowed down sequence that was from "the new york times." when mr. brooks points his taser at the officer. first of all, it seems lit. is there an illumination? there's a flash light from that taser, that's my first question? >> yes, so when i turn the taser on, once it's act vivated you s there's a flash light that comes on and you really see the flash light. >> and my second question in that respect is, i see right there on the screen, something being emitted from mr. brooks' taser, the taser that will brooks now has in his hand. if in fact he's already -- if that weapon has already fired

two shots. what might i be looking at? >> okay. well, when the device is operating, i'm not going to shoot the darts here. but i will show you this has what's called an arc display. and i can show it here. and there you're seeing the high voltage electricity. in this case, the darts are not out. once the darts are fired, if the darts have not hit a person, then the electricity cannot go through the wires and through the darts because there's nothing connected on the other end. and you may see that same electrical emission happening on the front of the device, if the electricity can't not make it through the wires into a target. >> when members of law enforcement are trained on the use of the tasers that your company manufactures, what are they told relative to the lethality or the deadly nature, if anything, of them? >> well, many police officers do

go through a voluntary exposure. that depends on the agency. in terms of the risk categoried as less lethal weapons, meaning they have a low probability of causing serious injury or death. injury rate is about 3 out ofof 1,000 uses. there are extenuating circumstances, for example, a person can fall from a high height and cause dangerous injuries. officers do train when incapacitated with the weapon, there's a risk that they could be rendered helpless and somebody could take their firearms. the truth is it's a very complex situation in which the officer may be justified in using deadly force under those circumstances. >> that was have been illuminating. thank you, rick, we really appreciate it. >> yep, thank you. still to come, what would happen if your boss told you to

leave your job, and you said, nah, i don't think so. that scenario is actually playing out in high levels of of the u.s. government. a u.s. attorney refusing to step down last night after attorney general william barr tried to oust him. who will be forced to blink first? we'll find out in a moment. it . i guess those cows must actually be big dogs. sit! i said sit! ♪ five dollar ♪ five dollar footlong ♪ piled high with veggies they're back. any footlong is a $5 footlong when you buy two. for a limited time. subway. eat fresh. for ralphie's appointment. who's his groomer? carrie. full groom for sure what? i just booked ralphie's appointment online. that work? wait you what? it's that easy! download the app or book online at petsmart.com

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a high-profile ouster not going as planneding. attorney general william barr tried to oust geoff any berey b he's the powerful district attorney for the southern district of new york who investigated associates of president trump. berman is a republican who contributed to the president's campaign, according to "the new york times." he worked at the same law firm as rudy giuliani. contrary to normal protocol for u.s. attorneys he was never

formally nominated for the position by trump or confirmed by the senate. he was appointed in 2018 by then attorney general jeff sessions. after 120 days his formal appointment to the post was made by the judges of the united states district court. an our after the court said berman was set to leave the office. berman issued an extraordinary statement saying he learned of his release from a press release. and look note at why he will not step down. quote, i have not resigned. i have no intention of resigning my position by which i was appointed by the united states district court for the southern district of new york. i will step down when a presidential nominee is confirmed by the senate. until then, our investigations will move forward without delay. does the administration have

authority to fire him? joining me the school professor at the school of law, arguing cases in the supreme court and lower federal courts. professor, in your twitter feed, you said nerds like me will fixate on the technical legal questions here. that's exactly what i want to do. let me put 28 u.s. code 546 on the screen which reads if an appointment expires under section c2 the district for such district may appoint a united states attorney to serve until the vacancy is filled. the order of appointment shall be filed by the clerk of court. that's how he got the gig, right? of what significance is that? >> michael, historically, the power to remove a government officer is essential to the power to appoint them. with berman, appointed by the district court, with the separate statues, c, saying that

predates this one where we actually have a pretty classic conflict where one statute seems to say the president can do it. and the other statute seems to imply only the people who appointed berman, that is to say, the judges on the southern district can do it. this is why i think it's quite a mess and why berman thinks he has a leg to stand on in not stepping down. i have that second provision, and it is as you represent. each united states attorney is subject to removal by the president. that seems pretty straightforward. >> so, i think it's pretty straightforward if you read the text in the abstract. here's the problem, at the time that 546, the first provision you that mentioned was enacted, the vacancy it's referring to was a vacancy in the 541 appointment. i don't mean to get lost in the weeds. what i'm trying to point out here when congress originally wrote the language that you put up first, congress was thinking it would be up to the district

court up in until there's a new senate-confirmed successor to the u.s. attorney. the president has an argument under 541 that he can do himself. the key, though, the attorney general can't. one of the questions we should be asking is barr purport to fire berm jn because aberman? because he can't. barr announced he was appoints currently the u.s. attorney for new jersey to replace berman. i don't think it's at all clear that either the president can remove berman. he also has the power either by himself or the attorney general to replace him. as opposed to once again, having the district court of the southern district do it. >> it is the big picture of you here as laurence tribe represented in his tweet this morning where he says here's an instance in which trump's penchant for using unconfirmed acting officials looks like it will come back to bite him in the butt. >> if i may, i really think the

big picture actually is why is this all happening. and that's above my pay grade. i do think the real question and what berman's state brings dramatically to the forefront is what are the ongoing investigations his purported ouster is meant to derail? i think that's really what we're going to. to professor tribe's point, i do think that the provision for judicial appointment of u.s. attorneys is unique in our system. it's really not tim cal to have executive officers who are ever appointed by judges. but it's for this exact purpose. so that the president and attorney general cannot end run the senate, for more than 120 days when it comes to who has the core prosecutorial power until our administrative courts. >> this provision is appointed for ansa pointee in waiting so to speak. when the president appointed a

u.s. attorney confirmed by a united states senate there would be no issue, trump could fire him and that would be the end of it? agreed? >> totally. that's how we got here. the last one confirmed by the senate was preet bharara who the president fired in 2017. we got here because the president fired mr. bharara could not get through the senate. because the senate has loose lips for u.s. attorneys meaning he needs the consent of the senators. >> right. >> we had this secession of not interim, but sort of temporary u.s. attorneys where now that has really, i think, put the president in a pretty pickle. maybe not with respect to firing berman. but certainly, with respect to replacing him. >> stephen vladeck, that was well done. thank you. >> my pleasure. >> more social media reaction. where's this from, kathryn? facebook? what do we got?

friday night news dumps work great for a saturday 1k9 a.m. show. you know, joe, there's no such thing as a friday night news dump. the administration might think so but the reality is we have a 24/7 news cycle. it's not as though everyone is waking up on a saturday and not plugged in. we're plugged all the time so you're never going to hide a story, is my point. make sure year going to smerconish.com and answering the survey question. to me it's a no-brainer. should masks be required, not just recommended, required for all large gatherings, beretolit protests? next up, are you proud to be an american? the results showed dramatic changes i'll explain. hour one......it start and works twice as hard when you take it again the next day.

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though he's in the slammer. just not just proud of him. this may see persnickety, when you're proud to be american implies a comparison, as opposed to what? where else would i want to be a citizen? nowhere i can think of, if i had to live elsewhere, based on climate, not history, economy, beats me? australia, new zealand, germany? so how proud are you to be an american. my answer is extremely proud. for all of her deficiencies i can't imagine a better place comparatively speaking. i feel extremely fortunate to have been born and raised here. to be an american citizen. with the freedoms that come with that experience and associations. recognizing significant limitations based on race, on gender, on sexuality although those limitations are barred by

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justin, i had the spokesman for the trump kban on as my guest at the lead of the program today. essentially saying to him, how can you jeopardize public health just to get a split screen that shows the president with 20,000 people and joe in an empty room. and your take away from that is that i'm on the trump bus? come on. you got to do better than that. pick a different week. i'm sure you'll have a better example of a program you can single me out for your allegation of bias. have a wonderful week. i'll see you next week. ♪ for adults with moderately to severely active crohn's disease, stelara® works differently. studies showed relief and remission, with dosing every 8 weeks. stelara® may lower your ability to fight infections and may increase your risk of infections and cancer. some serious infections require hospitalization. before treatment, get tested for tb. tell your doctor if you have an infection or flu-like symptoms or sores, have had cancer, or develop new skin growths,

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♪ good morning to you. we begin this hour with breaking news. a standoff between bill barr and powerful u.s. attorney who investigated a number of president's associates. >> the justice department announced the u.s. attorney for the southern district of new york is stepping down. but jeffrey boar bonn says he has no intention of resigning. during his tenure, he handled several high profile cases. the prosecution of michael cohen, president trump's former personal attorney jeffrey epstein as well. office is currently investigating rudy giuliani and two of h