>> i think justice gorsuch is very much in justice scalia's mold. i don't want to keep commenting on what justice scalia would have made of this. my own guess, knowing his jurisprudence would have been he would have been with justice thomas and the concurrence in this case. you know, there is a very unusual aspect of the court's opinion that almost no commentator, at least no commentator that i know have has even mentioned. and that is an unusual ambiguity. that is the fourth circuit, the u.s. supreme court says that the fourth circuit committed error by considering the president's campaign trail comments. as opposed to the text of the executive order. this comes in a paragraph about government allegations. the government alleges this, alleges that. and then the court drops a statement that the court of appeals clearly committed an error in considering what president trump said on the campaign trail. it's very interesting ambiguity. it could actually be an oversight, an unusual oversight in the u.s. supreme court opinion. but that could tell us how

yes, like justice scalia. i thought that he did a horrible job of leaning toward -- i don't i thinkarticular case, maybe i ought to listen more before i call again. thank you very much. host: we appreciate you watching and listening. "havingwitter, saying uncertainty in the term, let the justices collectively decide their fate." stella saying, "our founders thought this through. just because the world changes it doesn't mean we should rebuild our foundation is a country." referring to the constitution which gave the basis of lifetime appointments to the supreme court. and the justices who serve there. norman in massachusetts, independent line. hello. caller: thanks for taking my call. this is an important question. the constitution, which anyone can look up, it is available online -- in article three, it sets up a term for the supreme court. it doesn't say it all that the justices are in for life, it's as the op said. they are in for -- it is the opposite. they are in for good behavior. it is a lower standard

justice scalia's mold.t think to comment on what justice scalia would have made of this. my own guess knowing his jury ris were you dense is he would have been with the justices on this. at least no come mem tat or i know have that has mentioned an unusual ambiguity. the fourth circuit -- the u.s. supreme court says the fourth circuit committed error by considering the president's campaign comments. this comes under the fact that the government alleges that. the court drops a statement the court of appeals considered an error in considering what president trump says on the campaign trail. it's very interesting ambiguity. it could be an oversight in the u.s. supreme court opinion. that could tell us how the court ultimately is likely to come out. >> brian, matt, laura thank you. is the russian investigation turning into watergate 2.0? my next guest says yes. at johnsonville, naturally hardwood smoked. 100% premium pork. no fillers. period. i'm nick, that's my brother brett and we're proud to say it's made th

conservatives like bork and scalia had concerns about judicial restraint. in their view the supreme court the justices and the fed judiciary were planned to have an important role in protecting the right the framers intended to guarantee to citizens and a approach of judicial restraint that gave such deference to the elected branch of government would run the risk of abdicating the responsibility that jurists had to protect against overreaching majorities. so, bork and scalia came up with the idea of originalism, and the idea which had roots in earlier juris prudence was that courts should invalidate laws as inconsistent with the station the extent they could demonstrate that the framers of a particular provision of the constitution understood that particular law was incompatable with the constitutional provisions they were adopting. if you could demonstrate that was the original understanding of the first amendment or the fourth or fifth amendment or seventh amendment, you should invalidate the laws. other than that if you could not show that laws that wer

any other judge in the united states would have been removed what i just described scalia and thomas done. supreme court justices should also be removed but the senate would have to impeach them. i don't know it hasn't happened. it should happen every time there's an appearance of impropriety. host: one of the decisions, at least things court watchers are looking for today, what decisions will be made about the travel ban. that was desired by the trump administration stopped in the lower court as for review by the supreme court. abc news takes a possible options that the court should apply this request. saying with the votes of five justices the court could agree to the administration request to immediately reinstate the travel ban which trump will go into effect 72 hours. the -- mr. trump issued in march avoid chaos and distributions. the court could side with the opponents of the ban, abc news reports and refuse to let it take effect. if the administration could still conduct 90 day review that trump tied to the travel ban and by executive order could follow. one option saying when

ramification of because those that will say we want that cfpb director out and that was justice scalia's wisdom. he saw that would have been effective in the future. >> the humphries executor said what is crucial for the president is to be sufficiently accountable. the president's removal authority. >> so let me give you a couple of questions. could congress pass a statute bin must me at the opposite party of the president?. >> i don't know. >> could congress to back? the majority of the members must be the opposite party of the president. >> i don't know. >> the other thing to be careful about is to see what the statutes provide. so you could not get the automatic turnover. so i don't think that history is as solid as suggested with that diminution of presidential power. that is what is at issue?. >>. >> judge rogers, just with the matter of the consumer financial protection act not in terms of what has happened but whether the act itself is unconstitutional. >> what is your response that it is your position with secretary of the treasury removable for province?. >> it will have an answ

21 two fill the vacancy on the supreme court filled by the untimely death of every hero, anthony scalia. thomas, --kept that because he kept that promise, neil gorsuch sits on the supreme court. [applause] every case, he has proven to be a man of his word. he has proven to be a man who honors his bond and keeps his trust with us. we love him because he is our friend and whether as a private citizen, as a candidate for office, or now as president, he has defended people of faith here in the united states and around the world. and it is my pleasure to introduce to you my friend, our friend, the 45th president of the united states of america, donald j. trump. [applause] ♪ president trump: thank you, ralph. he said we got 81 percent of the vote. i want to know, who are the 19 percent? who are they? [laughter] where do they come from? thank you, ralph, for really kind introduction, and for your great leadership. it's wonderful to be back here with all of my friends. it is the fifth time. who would have known this was going to happen? but we had a feeling, didn't we? [applause] and, ralph, i

what should we have said about antonin scalia? golfing with dick cheney?t's a public act. >> greg: juan, respond to this. whether or not ginsburg should have to recuse herself -- this is judge napolitano talking about whether she should have to recuse herself. roll it. >> if she were a federal trial judge and had said about thea president what she did, she would be compelled by a higher court not to sit on a case in which the president was personally involved. if she sits in the case and herd animus towards him as a person and human being is manifest in the questioning or the decision of the case, it will damage the reputation of the court. >> greg: what do you think, juan? >> juan: but justice scalia, who favored a conservative point of view -- nobody thought that. you asked me, "what is the analogous situation?" and i'm telling you it doesn't hold water. let me finish up with what i was saying. >> kimberly: did scalia ever made comments like that about president obama? >> juan: if you befriend people in the administration, how can you render a fair verdi

more have appointed and confirmed the supreme court justice in the mold of the late great justice scaliaow justice gorsuch has a seat on the united states supreme court. [cheers and applause] they have also proposed the biggest in the history of the country and we're fighting for herb fair trade to have a level playing field their american workers. but it's fair by the day to bring back our jobs. >> for the sovereignty in freedom of the united states and and also withdraw from the paris club accord. [cheers and applause] >> you understand how bad it was for our country to strip us of our jobs and wealth and they keep saying it is not binding with the iran deal we have some duties. you'll see some good ones coming about. america will continue to lead space off crystal clean water and air what we will not do was let other countries take advantage of the united states anymore to dictate what we're doing or dictate our future stature five we will follow a very simple rule we will make america first. [cheers and applause] >> as i am sure you know, i'll also reinstated the of mexico city polic

and brown steals a little line from scalia mimicking, his we are not going to sit idly by. we are not going to wave good-bye to the fcc and let it wander around in the sunset. and this is part of the problem. agencies can take off in full flight under the way chevron works. and that is where some of the most reform oriented efforts are being pointed. and it is the courts that i think will have to do this first. i don't know how congress fixes something that is a court problem to begin with. but i think the courts are watching this carefully. and i think you will see some of the best writing on this in some of the opinions of the new justice about the relationship between nondelegation and the chevron doctrine and i think that what is going to happen is the courts, maybe a hope more than a prediction, but the courts are going to pin the agencies or more precisely the congress back and say you can't do this. it is too broad. there is no call for any particularly action, you have not identified a problem. you have thrown up your hands and say go regulate. and that is not enoug

. >>> it's been a little over a year since antonin scalia passed away. now his story i stage. you're going to be starring in this play? >> yeah. we did the play two years ago here in washington and took it to florida and california and now we're back home. so we're glad to be back. >> tell us about it. >> it's about the relationship between scalia and a clark. he's giving a lecture and gets heckled by a student asking questions. turns out to be a young harvard law school graduate applying for a job as his clerk. we have these two ark types of the far-reaching political spectrum which in the room sets up lots of laughs and great learning experience for civil discourse and i think there's a consensus now that both are deaf. here we have to each other. >> tell us about what you've learned about justice and everything else. >> there is a grade command of language and deeply spiritual and a great civil servant. one of the startest persons i've ever met in my life. >> you had a chance to sit down with him and you met him? >> i did. >> what was that like? >> it was extraordinary. it

and he close justice scalia's favorite clerk.s justice kennedy comfortable to leave or spend a year or two working with the former clerk who is now his colleague. and why did justice scalia change a reunion of all of his clerks scheduled for october of 2018 to this past weekend? i'm dropping you all kinds of hints. i don't know what's going to happen, but he has the floor when the court comes out at 10:00, and he may say nothing or the chief justice may say, justice kennedy wants to say a few words and the whole world-- >> everybody looks to see, well, could this be the second justice appointed by president trump. >> so our d.c. colleagues have packed to that already. and plenty of hand signals to tell me and you and the world. stuart: i'll see you shortly. check the markets, where are we going to open? we closed last week shy of 21,500. we'll be up today. here is the story. the amazon story of the day, you're going to love this. it's filed for a patent for delivery drone towers. let me explain, this is compared to a beehive for

people forget that scalia's role wasn't just a conservative vote but he provided sort of intellectualws that captured people's attentions and framed the debate and gorsuch gives a hint that he may be as good. >> bill: he was built that way. >> very rare that conservative appointees pan out to be what they were billed as. >> one of the other issues that's interesting, the travel ban issue recognizes the government has a likely win but a lot of people are calling for justice ruth bader ginsburg to recuse herself because she was so outspoken against the ban and president trump during the campaign related to that. it will be interesting to watch that and see whether she refuses or whether it matters. >> the 120 day temporary ban where the administration wanted to pull back from the six countries. now we may not have a decision on this for ten, 11 months. >> the timeline is going to expire. i think it still validates the policy today and he's going to take the victory today. they haven't begun the extreme vetting they promised. it's not a perfect s i didn't really know anything about my fa

he certainly more conservative than justice scalia.ng reactionary and an unmitigated disaster for the progressive product team at constitutional project and will likely serve on the court for at least three more decades. this country is in terrible trouble." it's only been a few months, but it sounds like a president made an inspired choice when it short-circuits the progressive constitutional project. whatever that was. that's about it for us tonight. tune in every night at eight for the shows is the sworn enemy of lying and possibly smugness and groupthink. do you get the art if you don't already. we will be back tomorrow,, but first the five from new york city. ♪ >> hello everybody, i'm jesse watters. richard fowler, greg gutfeld, eric bolling, kimberly guilfoyle. it is 9:00 in new york city, and this is "the five." what did he know and when he did know it? that's the question many are asking about president obama after the bombshell report last night about how back in october, mr. obama said it was basically impossible to rig the p

justice scalia refused to step aside.005, supreme court justices have recuse themselves for more than 90 cases, usually for a financial reason. recusal raise rarely occurs based on the merits of a case. >> bill: from overseas the european union has slapped google with a monster fine, record $2.7 billion. saying that the internet giant took advantage of its dominance in online searches. directing customers to its own online shopping businesses at the expense of other companies. google says it's considering an appeal of the ruling. back here in the u.s., a california is a step closer toward becoming the first state to require roundup to come witha new warning label. roundup's main ingredient will appear on a list of potentially cancerous chemicals. roundups maker monsanto appealing back, denies the cancer link. state health regulators will decide if there's a high enough amount of the main ingredient to pose a risk to human health. on the market, stocks were down. across the board, dow lost 99. s&p was off 20 points. nasdaq

to the supreme court of the united states, a man in the mold of the late and great justice antonin scalia, justice neil gorsuch. [applause] v.p. pence: my friends, life is winning in america. life is winning through the steady advance of science, that continues to illuminate more and more when life begins. life is winning through the generosity of millions of adoptive families who open their hearts and homes to children in need. life is winning through the compassion of caregivers and volunteers at crisis pregnancy centers and faith-based organizations like project rachel. to give hope and healing to women in cities and towns across america. and life is winning in america because all of you have stood with those who stand, from the congress to the white house, to state houses across the land, for the sanctity of human life. you know, i believe we've come to a pivotal moment in the life of our nation and indeed the life of the world. the catholic community in america has made an enormous difference in the life of this nation. at this moment, i urge you to continue to stand up, to speak out

i was also critical of scalia a great deal.aid things publicly talking about cases and issues. >> bill: is there a case where scalia recused himself because of that? >> the thing people don't really get. the justices don't fall under the judicial ethics code. it is completely voluntary and something that i argued for years should change. the justices position is we're supreme so you can't have other judges rule on our ethics. they judge what is ethical and what should be a matter of recusal. >> bill: you know some of these comments she has made has been very sharp and fresh in the memories of so many. but you're still torn as to whether she should say. >> bill: if you were a lower court judge these would be problematic in terms of judicial ethics. i think it's wrong and have denounced in writing saying this is not what a jurist should do. the rise of the celebrity justice. there are justices that maintain their base. scalia was like that. he loved and audience and he also loved throwing grenades into rooms. he would go to a law

much more, i appointed and confirmed a supreme court justice in the mold of the late great justice scalialause] and to now just to score such justice courses each has a seat on united states supreme court we have also proposed a historic tax cut the biggest in the history of our country by the way we're fighting for fair trade with a level playing field for all american companies and american workers but it's fair by the day to bring back our jobs and to protect the sovereignty of freedom of the united states to follow through overpromise to withdraw from the of paris climate accord. [cheers and applause] you understand. you'll understand how bad that was for our country to strip us of our jobs involve the company's and to keep saying it is not binding like that is so innocent between that deal and the iran deal and a nafta. [laughter] you'll see some good ones coming about. very soon. you will see some great ones coming about very soon. america will continue to lead the world on environmental protection with clean water crystal clean and clean air but what we want to was the other countr

the last seven pages of morrison v olson dissent they are instructive on this because justice scalia didn't just analyze the history and he said here's what's going to happen. here's is going to happen and laid it out in the next ten years it was like he had written the script for what was going to happen. then everyone realize, this is a problem. i want to try to put myself in the shoes of figure out what will happen. president trump will appoint someone 2018, july 2018 and that person serves till july of 2023, the new president might be a different party, might have run on a platform of consumer protection, maybe the person who created the person protection agency and will not have the authority to do anything about that for three years contra how he or she would be able to handle all these other independent agencies. that's the reality. let's say he goes to terms and then it goes to 2028 so the president comes in in 2024 and might've run on a policy of consumer protection and can't do it for four years until right before the 2028 election. i look at that reality and i say, that so

justice scalia said that, i quote, "behold. of democracy is that majority rules. that is the whole.f it -- theory of it." well, if that is the whole theory of democracy, then democratic. is not very interesting. what then is interesting is what should begin after this theory is accepted. what should begin is reflection about the institutional and cultural measures necessary to increase the likelihood that majorities will be reasonable. and about what things should be protected by a judiciary is beyond the reach of majorities. populism seeks to reverse this. giving majority rule priority over liberty. and overwrites. and overdue process when these things conflict, as they frequently and an evitable he will with majority impulses. democracy and distrust should always be braided. american constitutionalism and its necessary corollary, judicial review, amount to institutionalized distrust. the temperature of american politics is high today in part because the stakes of today's debates are high. we are not just arguing as we always do about the proper scope and actual competence of gover

she is a member of the dignitary protection center and was there scalia. -- was treated for minor injuries and was released from the hospital. cap thats shot in the was released from the hospital. overnight, the hospital -- president paid a surprise visit to the hospital to visit steve scalise. he said -- steve scalise is in tough shape but is a fighter. pray for steve scalise. the hospital says they will give updates. reporting live, i am suzanne kennedy. autria: thank you. tonight's charity baseball game, what they were practicing for comment is going on. larry: congress member's a it is going on in spite of the violence. congress is refusing to be shaken. >> that's right. organizers for the game y it is one of the best ways to honor the us. security is always front and center here at national park. you can see where the metal detectors are usually at and they will be here tonight. the side that says to move your cell phones, batteries, laptops. the first pitch will be at 7:05 -- this game has been going on since 1909. they unite on the ball field to play for charity and fun. more than 6

klein served as a law clerk for justice scalia and is a graduate of northwestern university and columbia law school. codirects the brennan center for justice, liberty, and national security program, new york university school of law. she served as counsel to russell feingold, chairman of the constitution subcommittee on the senate judiciary committee. gotein served as a trial committee in the civil division of the department of justice. she graduated from yale law school. elizabeth collins is serving her second term as board member of the privacy and civil liberties oversight board. previously she was an attorney at two international law firms and served as the republican chief counsel for supreme court nominations for senate judiciary aommittee mrs. collins was council on legal policy at doj where she provided advice and counsel related to national security and other issues. mrs. collins is a graduate of the university of chicago and harvard law school. we will proceed from my left to my right. mr. olsen: it is an honor to be here this morning. let me put the bottom line upfront, as for

he's trying to be scalia. we'll see. i'm sorry. >> of course, we talk russian on the program. >> it's the republican -- >> this is not msnbc. >> i speak russian. i'm part of the conspiracy. >> when is the last time you've been there? >> a few years ago. >> if they don't have 300 miles of the wall, if they don't have obamacare repeal and replaced and the tax cuts in place for the middle class, corporate america, if they don't have energy independence, they're risking losing everything. true or false? >> absolutely. i think at that point the democrats go in for the kill. they have no agenda, but they can say, look, at least we were passing stuff. at least we were trying to pass stuff. we'll fix what we screwed up. these people are in the majority and they can't get the ball across the finish line. they can't even punt at 40 yards. no two-point conversion. they have to start delivering for the american people. we have good servants on capitol hill. mitch mcconnell is a master of all the procedure. he's got to stop with the

he's trying to be scalia. we'll see. i'm sorry. >> of course, we talk russian on the program. >> it's the republican -- >> this is not msnbc. >> i speak russian. i'm part of the conspiracy. >> when is the last time you've been there? >> a few years ago. >> if they don't have 300 miles of the wall, if they don't have obamacare repeal and replaced and the tax cuts in place for the middle class, corporate america, if they don't have energy independence, they're risking losing everything. true or false? >> absolutely. i think at that point the democrats go in for the kill. they have no agenda, but they can say, look, at least we were passing stuff. at least we were trying to pass stuff. we'll fix what we screwed up. these people are in the majority and they can't get the ball across the finish line. they can't even punt at 40 yards. no two-point conversion. they have to start delivering for the american people. we have good servants on capitol hill. mitch mcconnell is a master of all the procedure. he's got to stop with the

when it was antonin scalia for gorsuch, it was a one for one ideological swap.ne who wrote the mantle opinion in the same-sex case and citizens united. truly at the center of the court. you don't know which way he will go. >> there has never been, in my lifetime, a justice as important as anthony kennedy, given the ideological splits on the court. he is a hero to liberals for his embrace of gay rights. and, particularly, last year he voted in favor of an abortion rights case in 1992. he voted to reaffirm roe versus wade. he wrote citizens united, a case that liberals -- he is a crucial, crucial figure. given what donald trump has promised during the campaign, given neil gorsuch it seems likely that trump would appoint a strongly conservative candidate, which would really throw all the cards up in the air in the court. >> it would be his legacy. >> it would be a big one. >> thank you. >> keep an eye on your watch. >> don't go too far. i think we have a lot maybe ahead from the supreme court this hour. >> all right. >>> battle lines are drawn over the slashing of

. >> eric: what she did versus what justice scalia would do as a conservative justice, he would talkut ideology, about "i believe in this or that." she went one step further and pointed at donald trump specifically, the man, not his policies. therein lies one opportunity for her to say hat tip to impartiality and i will step down. >> shelby: it makes it tough for her. if she recuse herself from this one case, that sets a precedent for other cases. >> eric: one can only hope. i have a better idea. ruth bader ginsburg, it's time to retire. go relax and hang out in florid florida. >> eboni: one of the country's biggest news organizations now efficiently claiming president trump can't be trusted. stay with us. accident forgiveness, liberty mutual won't raise your rates due to your first accident. liberty mutual insurance. brtry new flonase sensimists. allergy relief instead of allergy pills. it delivers a gentle mist experience to help block six key inflammatory substances. most allergy pills only block one. new flonase sensimist changes everything. >> eric: media bias against president

talking about scalia -- scalise, excuse me, he also gave flowers to officer griner and met with doctorseted about it after. >> okay. >> said they're strong. >> let's don't use his name but learn about the shooter. there is jenny joyce. >> yes, good morning, mike and alex. so an old friend of the shooter spoke to him as happy go lucky, he was surprise today hear what happened yesterday. but, the 66 year old's brother told the new york times that hodgkinson was upset over the election, if you look at his face back page, see posts criticizing trump and other members of the republican party. he was a bernie sanders supporter. hodgkinson's brother told reporters that he left illinois several weeks ago, he wanted to go to dc to protest yesterday, he went to simpson field in alexandria, and according to witnesses there, there was a brief exchange, before the man pulled out his rival. >> through the years, he didn't back down from stuff. i mean, he was in a few fights and stuff like. that but nothing that would demonstrate violence, as far as what he did. >> what do you mean by, fight with peop

it could be that justice scalia had reason to treat them -- been on marital children. nonmarital children were much more -- class. they didn't have the same rights until 1940 they didn't have the statutory rate to citizenship. so there could be logical reasons for it. >> and you think that was the intent to 1952. >> in 1940 you think that was congress' intent? >> from the historical record in 1940 it was concerned about non- met marital children being separate from their guardian parents. the problem is the assumed that the guardian parent would always be the mother. >> and you can conceive 1940 and 1952, we need to discriminate against the children of married parents. >> no, i don't think that's what was going on. >> the one thing is that they were given the benefit to the unmarried mother. >> that's correct. >> they presume that an assumption that the mother -- i don't think it's history today that the mother was going to be the guardian parent. they wanted to make sure that the requirements that they would not have the impact of separating that nonmarital child. >>

supreme court justice r gorsuch , the oath after being sworn in, he filled the vacancy left by antonin scalia on the supreme court. rob: the best story of the morning, these two picked the wrong guy to mess with, a homeowner catches a pair of dangerous escaped prisoners and holds the mat gunpoint until police arrived. donnie rowe and ricky dubose busted trying to steal a car near nashville, tennessee, they are accused of escaping the prison bust in georgia and killing two corrections officers with their own guns. they had been serving time for armed robbery but looks like they will now face murder charges. >> starting next month you don't need agenda to apply for an oregon driver's license, the state the first to not specify option, instead of m or f, those people will have a x. rob: los angeles becomes gotham city in honor of a fallen superhero, hundreds of people watching as the official switched on the bat signal. >> the yellow oval glowing at city hall in honor of the late batman actor adam west, his wife and children were in attendance. heather: west known for the batman tv series died l

rhetoric a little bit and when some on the conservative side are trying to blame the shooting of steve scaliapublican baseball practice on trump hater and didn't like republicans and bernie sanders volunteer, it's almost as if the times need to say, wait a minute, six years ago gabby giffords was shot and sarah palin was involved which was ludicrous at the time and even more ludicrous in retrospect. trish: you're right and i saw that in news cycle and we had a lib commentator on the show who really wanted to point fingers at the right and say that, you know, the right has incited all of the violence. i would like at it and say, objectively, everybody can do a little better here. we all need in the spirit of unity to work together to make sure that this rhetoric doesn't get out of hand. it has. there's certainly desensization right now. i'm not saying that the right is necessarily free of any guilt either. howie: i have seen both sides exploit tragedies. the guy that brought rifles hated republicans. in the case of sarah palin, it was her committee that made up a map, standard political thing,

constitution issues, one time headed by william rehnquist, chief justice coming and one time anthony scaliant offices. the memorandum in 1973, proceeded to this issue, examining whether criminal proceedings against a sitting president should be barred by the doctrine of separation of powers. but they conclude it is, it is barred by the separation of powers. here is the reason. there is only one person who runs the executive branch, the commander in chief, the president of the united states. it is not like congress where you have 435 members of the house, or the senate where you have 100 members of the senate. or the courts where there is one house and federal judges and so forth. the president is it. one national election, one president, specific duties under article one of the constitution of the united states. and what they have explained, is this, you cannot have a prosecutor who was responsible to nobody digging into the background, charging the president of the united states, debilitating the presidency, making it impossible to constitute -- follow the constitutional responsibilities,

it was the late justice scalia who said that one of his famous opinions for the supreme court, he saidgine having an independent counsel look at your life, no time limit, no money limit." >> brit: no money can survive at first. let me get to another question here that bob and i have talked about. we have had a extravaganza of coverage of this investigation, not the piece of it but what we imagined to be the criminal piece of it. the collusion piece of it. are we looking at a style and form of news coverage regarding this president that is a very different from what we in journalism who came into this business came to expect? jennifer. >> i think we are seeing really opinionated journalist and what is happening, part of a country that voted for donald trump are not buying it. they are not believing it because there are too many unnamed sources. what we saw this week with the russian story which was a blockbuster in terms of what the, administration and what they did, we are seeing more of the obama administration come forward with names on the record and that changed when jeh johnson ha

issues at one time it was headed by william rehnquist, who had been chief justice and one time antonin scaliaat's how important this office is. i memorandum in 1973. proceeded to this issue examining whether criminal proceedings against a sitting president should be barred by the doctrine of separation of powers. what they concluded is it is barred by the doctrine of separation of powers. here's the reason. there's only one person who runs the executive branch was the commander-in-chief, the president of the united states. it's not like congress, we have 40 -- we have 100 members of the senate, or the courts where there's a thousand federal judges and so forth, the president is it, one national election, one president, specific duties under article one of the constitution of the united states. what they explained in the memoranda is this. you cannot have a prosecutor who is responsible to nobody digging into the background, charging a president of the united states, debilitating his presidency, making it impossible for him to focus on his constitutional responsibilities, domestic and foreign.

for folks who thought he was going to be another scalia, he is far to the righght of him.me cases there was thought he would be a centrist. thus far, hehe has really staked outt the most t extreme conservative positions, both on the church-state case we talked about. he would have gone much farther than even the mamajority went, t also he dissented from a decision not to hear a major case o out of arkansas about putting same-sex parents, both of their names on birth certificates, and wrote a scorching dissent suggesting sex decision did not control in this instance. time after time we have seen him emerge as quite a bit further to the right than even we expected. amy: on even the issue of gay rights, anthony kennedy, you say there is a whispering campaign he might step down, came down forcefully in 201313 in favovorf marriage equality, was the swing vote in the court's landmark decision striking down a key portion of the defense of marriage act. the significance of the rise of gorsucuch, who was a law clerk f justice kennedy? >> it cannot be said often enough, in issue aft