three liberal judges argues it is unconscionable and unconstitutional to punish people for being homeless. >> homelessness and poverty is dangerous. it does not work and it will not stand in los angeles county. >> we cannot arrest our way out of homelessness and these kinds of actions actually exasperate homelessness. we know what the solutions are. people need affordable housing. >> the bottom line is some cities will ban outdoor camping. others will not. back to you, bret. >> bret: okay, william. thank you. >> dana: here we go. make or break time for former president donald trump at the supreme court. any moment now the justices are set to rule on presidential immunity. this is a blockbuster decision that could reshape the political landscape this year and beyond. welcome to a brand-new hour of "america's newsroom," i'm dana perino. good morning, bret. >> bret: i'm bret baier in for bill hemmer. this case could have a major impact on special counsel jack smith east prosecution on trump on charges he conspired to overturn the 2020 presidential election. at stake whether the former president will be forced to spend even more time in a courtroom in the weeks before election day or can instead hit the campaign trail during the homestretch. >> dana: that's not the only high profile upon released. they'll talk about political censorship. she has a preview for us this morning, good morning, shannon bream. >> we're waiting on the cases. we got the first case. four to get off the docket today. of course immunity we expect will be come last. social media cases are important for florida and texas. they passed law that said to social media companies if you want to sensor someone you can't do it. if you try to do it you have to notify the useier, the poster and tell them what it was all about. that will come today. a pair of cases there. the immunity case looking back over my notes over the arguments this morning it broke down into two camps. you had those worried if we give some type of blanket immunity anyone who is elected could come into office and have the worst possible intentions and think they won't pay a price or be held accountable for criminal liability. on the other hand, how does a president take office make difficult life and death situations and decisions and feel that there isn't any covering of immunity? it really felt like they were trying to find middle ground and some level of immunity but only apply probably to what you can very clearly define as an official act. the courts, do they do that today? give us a definition of an official act or send it back to the lower court as you have talked about? that lengthens that timeline for the trial already delayed for months. bret and dana today. >> bret: let's bring in the rest of our legal team to analyze all this. andy mccarthy, jonathan turley and trey gowdy. jonathan, your thoughts as we get ready for this big day? >> all eyes are on chief justice roberts. you had four justices that were highly skeptical about the lower court decision. roberts shared a lot of that criticism. at one point he openly dissed the analysis of the lower court seeming to say a president can be prosecuted because he is being prosecuted in a type of circular logic. so you have five justices that were very skeptical about the lower court decision. but most of the judges also expressed an unwillingness to embrace absolute immunity the type of sweeping argument made by the trump team. what will be really quite important is whether the court gives any concrete guidance as to how we define official acts, if they do remand this. and whether they make any reference to donald trump's speech or what occurred on january 6th. the details we'll be looking for. >> dana: let me turn to you, andy mccarthy and find out from your perspective who you think might join all together here. are we looking at split decision for sure? this is not something that will be 9-0? >> i think it may be more complicated than two different camps because there are so many moving objects here and the oral argument, it seemed that all the justices, as they were narrowing the dispute, which was quite interesting to watch during the argument, they are all sensitive to the idea if you affirmatively acknowledge there is presidential immunity, which was something that was kind of understood as a norm for 230 years. but if you write it down as a rule you are inviting potentially a lot of dangerous excessive activity on the part of the executive. on the other hand, the other thing that has emerged in the last ten years or so is this idea of politicized prosecutions. it seemed kind of unreal to hear the justice department arguing to the court as if it was something that didn't exist. so it would be nice if we still lived in a world where you didn't need an express immunity, but the fact is if you are going to have political prosecutions, this has to be part of the menu. and i think what the court is trying to strike a balance in is where do we find what are actually official acts of the executive branch that are comfortably within executive power where we aren't signaling to presidents that they can go wild and do things that are unpresidential and illegal, but at the same time protect the presidency from politicized attacks? >> bret: trey, really this comes down to how this ruling breaks out depends on what happens before the election, whether these other cases do go forward, whether there is one, two, what happens with jack smith's, right? >> i think the court is tired of being involved in presidential politics. their reputation has taken a hit. i am looking for an opinion that is beautifully vague like the constitution is beautifully vague. we all know there are certain express powers a president has. there may be implied powers, but there is a reason we have this word that only lawyers like, it is that space between light and darkness where you kind of know it when you see it. there is going to be tremendous debate over whether or not an act is an official act. and because the constitution is vague, it's a case-by-case analysis. i think they will send this thing back to the district court for more facts. >> dana: so then, jonathan turley, what happens? i want to pull this up for everybody. call for number two if you can. if we can get it up there. this is the court versus the campaign calendar and you can see if this were to happen, you have the sentencing on july 11th, that's the next big thing after this. but you could see the president having to maybe actually sit in a courtroom before election day depending on how this goes, jonathan? >> well, that remains a possibility because you have not only a special counsel in jack smith who has made a trial before the election his overriding priority but you have a motivated trial judge. the judge was doing all she could to meet that objective. she had rejected these claims earlier and she would likely still be a highly favorable judge towards the special counsel. the problem is just how much runway do you have to take this plane off? if they remand this for looking at what these individual acts or statements qualify as, that will take some time even if the judge tries to make fast work of it. there is also the possibility of an appeal. and as we get closer to the election, a lot of people are going to begin to look more -- this case has moved much more quickly than anything i've seen in my career. if the judge then puts the pedal to the metal to try to get a trial before the election it will raise some eyebrows whether the court is trying a bit too hard. any remand will require findings of fact, argument and potential appeals. so the odds are against smith having a trial if it's on a remand. it is not impossible. >> dana: andy maccarthy. >> with great trepidation do i disagree with my friend, john. look, i think after the immunity, after the obstruction decision last week, they made quite clear that while this theory of obstruction based on forcible intimidation is out, evidence -- the impairment of evidence is still in. i think that lays the ground work for the fake elect tours scheme laid out in seven pages of the indictment. i expect that the supreme court will green light that today because justice barrett got trump's lawyers at the oral argument to agree that's not covered by immunity. it seems to me that if you wanted to, that case could be tried in probably about three weeks. i agree that you will have a very motivated judge. a very motivated prosecutor. i think after president biden's performance in the debate, frankly, there is going to be additional angst to try to get that case to trial. so i expect we'll see another trial around labor day. >> dana: i know the court doesn't necessarily want this but it does seem that they themselves or the judicial branch is on the ballot as well this year. >> who would have ever -- alexander hamilton worried it would be the weakest of the three branches. who would have ever thought this? i just don't see how this can be tried between now and election day. but as you all know, i'm the slow wildebeest of this trio, andy and jonathan, nobody has ever called me a law professor before. so i may not. i was a trial lawyer. i can cry in front of a jury but not much more than that. it will be hard to get this case tried before election day. >> bret: we appreciate your anecdotes here. hold on, panel, we have the rulings coming down in a few minutes. >> dana: today's blockbuster opinion makes another trump trial before election day highly unlikely. so we were just having a debate about that. bryan llenas, you are in palm beach, florida. that is where president trump has mar-a-lago and where the other case is based. let's talk to you about all of that. hi, bryan. >> yeah, as we await this decision and subsequent reaction by former president trump, he is here in mar-a-lago. it is important to remind folks where the former president stands on this. he has said that presidents should have total immunity. he thinks he has said this is not about him, but rather about future presidents and whether or not they are going to be paralyzed, in his words, and not make difficult decisions because they are afraid of future prosecutions. here is the former president a few months ago. listen. >> a president has to have immunity. you don't have a president or most you could say would be a ceremonial president. that's not what the founders had in mind. we're not talking about ceremonial. we want presidents that can get things done and bring people together. >> of course, the former president does have his self-interest in the outcome today. short of the supreme court ruling entirely against or for trump or absolute presidential immunity, today's decision is expected to further delay the start of this case which you have just discussed. remember, this case has been frozen since december with no trial start date. it now appears very unlikely any of trump's three remaining criminal trials will begin before election day. the georgia election interference case has been delayed until at least october. the florida classified documents case has been indefinitely delayed. and now we all wait to see what the decision will be today and how that will impact the judge who will have this case in her hands potentially about how she wants to proceed. but in the meantime the trump campaign has been laser focused on the presidential debate over the weekend. listen. >> this is like a rocky knock-out. they should build a statue to donald trump at georgia tech. everyone is talking about should joe biden even stay in the race. that has never happened in our history. >> he obviously won that hands down and not just because joe biden was so far gone and so embarrassing. >> not only did he deliver, it was the greatest performance in debate history. >> the former president and his campaign wanting this to be more about the fact that the former president won the debate and not so much that biden lost the debate. the former president posting on truth social this morning that he thinks there is a combo of three reasons as to why president biden, quote, failed so badly at the debate. one, it was trump was the greatest performance in debate history, two, biden choked and three, the president is a cognitive mess. a combination of all three according to the former president is why we're still talking about the debate today. >> dana: if you were going to take the step of arguing with jonathan turley but you wisely stepped around it. leave it for our political panel. thanks, bryan. >> bret: the biden and trump campaigns going on a fundraising blitz following last week's debate. both sides now boasting about raking in cash after their showdown on the national stage. the money trail this morning. good morning, madison. >> good morning. according to the two campaigns debate night was a jackpot for presidential candidates. president trump's team reported the former president raked in $8 million on debate day. swinging over to the biden camp, they said their debate performance, while it cast doubt, they said they pulled in $33 million since thursday through the weekend and notched their most successful single hour of fundraising ever between 11:00 and midnight and debate day. now, the president reportedly told donors this weekend that he understands their concerns during a fundraiser. he is staying in the race. the biden/harris campaign entered june with $212 million on cash on hand after bringing in $85 million in may. the question is where does that money go if there is a change at the top of the democratic ticket? if harris were to move to the top of the ticket she would have access to all of the funds. she and biden were running together. however, if someone else were to be nominated at the dnc, biden's cash cannot simply be transferred to another candidate. but this weekend blue brass spent the weekend assuring america that biden is fit for office and that the debate has helped not just him, but the whole party. >> it may come as a surprise to you, but when they saw the performance of trump donors doubled down and said we absolutely have to have the congress. members are always concerned about the top of the ticket. >> fundraising momentum has recently been in former president trump's favor. his campaign and rnc raised $141 million in may outpacing the democrats and joe biden's campaign who raised $85 million. still waiting for the latest cash on hand numbers. we won't get those for the next couple of weeks. >> bret: thank you. we are keeping close eyes on the supreme court. we're told justice jackson is reading the oral dissent from the previous case from the bench and taking time. we're waiting on presidential immunity set to come down any moment. we'll bring that to you live as it happens. >> dana: president biden's bad debate night dividing democrats. how some are trying to sell him, believe it or not, as the comeback kid. >> one of the people i talked to expressed an opinion that joe biden should drop out. everybody else said we need to make some calibrations here going forward and that's what we need to do. when people switch their dog's food to the farmer's dog, the effects can seem like magic. but there's no magic involved. 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some people taking otezla had depression, suicidal thoughts, or weight loss. upper respiratory tract infection and headache may occur. live in the moment. ask your doctor about otezla. >> dana: the supreme court issues a ruling on whether social media platforms handling of user content is protected by the first amendment. this is one of the big cases we've been waiting for. shannon bream is there, our chief legal correspondent outside the court on a pretty day, 71 degrees in washington, d.c. as we speak. what is the court deciding on this? >> this is interesting. it is unanimous. a lot of different conquer curenss. they are sending these cases back to the lower courts. we've seen that a lot with the court. you don't get to something on the merits, it goes back to further attention at the lower court, with direction from the supreme court. essentially what they're saying is net choice, the company in these cases where they were laws out of florida and texas that were telling social media companies that you either can't censor or modify someone's post you have to contact that poster and tell them why. what they've said here is the way that net choice challenged this law was done prematurely. we'll send it back. there will be a full finding of exactly how both laws would play out and then they can actually get to the case on the merits. it feels like another decision where we aren't getting the answer but we know this case then continues for another day. these florida and texas laws at this point the court is saying the way the case has come to us we won't decide. you have to send it back. a whole other analysis that has to go on. no dissenters on this one. even the justices as they read from opinions on the bench inside the courtroom today are saying we know this isn't the one you are here for but we have to get through these as we wait for immunity that could be minutes away. >> bret: let's bring in our panel again. you wrote the book about the first amendment, jonathan. that case deals with this. just as predicted it sounds like they are punting. >> yeah, it does look that way. this is not a surprise when you consider the oral argument. the parties were all over the field as these justices tried to probe them for concrete answers on where to draw the line. they were particularly concerned with the sweeping scope of the laws and the fact that some things that the social media companies do are very different from other things about content moderation and placement decisions. so all of the justices were expressing frustration. so what they want here is a clean and clear record on those quesonbecause they want to get it right. this case and the earlier social media case could not be more important. justice alito was bitter in his descent in the earlier case but he said the court punted there as well in what he considered one of the most important cases in the court's history. as you note my book does talk about this social media censorship that we've seen. the most extensive censorship system in our history. for those of us with deep concerns we'll have to wait and see this record perfected. it will go right back towards the supreme court. >> dana: i wanted to ask you about that, trey gowdy. there are americans coming out of covid and the 2020 election and even let's go back to 2016 heading into another election and you have americans who are becoming more distrustful of many different types of institutions. when it comes to the freedom of speech, when it comes to being able to comment on social media, they feel that their rights aren't being protected. they won't get a good answer on that today. does it add to the level of worry and frustration in the country? >> i'm sure it does, dana. i would remind my fellow citizens the first amendment applies to government, doesn't apply to private companies. you have to show some nexus between these private companies and government. i'm not surprised that they punted on it. i know justice gorsuch talks about it and ruled for the ages but you have to have similar facts to have these bright line rules. when this fact is different, you are going to get a different result. it reminds me of my youth. i would do anything possible to get out of work. that's what these justices are doing. they're doing anything possible to get out of ruling on that bright line test. >> dana: trey and jonathan and andy, thank you so much. we'll take it over to bret for a moment. a little quick break. >> bret: we're waiting on the big one. the supreme court's highly anticipated opinion on presidential immunity could be a game changer for former president trump both on the campaign trail and in the courtroom. stay with us. we're expecting that ruling imminently. saying in the navy that the toughest job in the navy is a navy wife. and if you've made the deployments and you've been the wife at home, or you've been the spouse at home, you understand what i'm talking about. your spouse has earned the right to apply for a va home loan. the newday 100 loan allows you to borrow up to 100% of your home's value. so if you're in a situation where you need some help financially, give us a call. hey, i just got a text from my sister. you remember rick, her neighbor? sure, he's the 76-year-old guy who still runs marathons, right? sadly, not anymore. wow. so sudden. again -- i think trey underscored this before is, what is an official act. there will be a lot of litigation about that and what is close to the core of clear executive constitutional authority versus the outer bank of it. >> bret: do we have shannon? is she going through the paperwork? are you there? >> yes. yes, i am here if you can hear me. let me read you a little bit of what we have from the court. it does find this. under the constitutional structure of separated powers the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and precluesive constitutional authority. he is entitled to presumptive immunity from prosecution for official acts. no immunity for unofficial acts. thats the first blurb we have on this. it looks like a 6-three split. dissent by justice sotomayor, kagan and jackson joined that. a split decision on somebody joins in one part, not another part. but the overall holding of the court. what it means now we'll have to dig into this and see if they tell us now how do you decide an official act versus an unofficial act? that will be critical having said the president does have absolute immunity from criminal prosecution for actions within his conclusive and precluesive constitutional authority . we'll dig in and see how they define the official acts and look for more from the opinion. at first blush a within for the argument of presidential immunity. >> dana: if you are the biden white house you're paying close attention to this as well. in the situation we find ourselves in in the utelydations of the justices in politics. let's go to you, jonathan turley, for reaction to this decision so far. >> this is along the lines of what many of us anticipated. that the court did not go with absolute immunity on everything. but did say there is absolute immunity when it comes to core constitutional powers. we're still going through the opinion to see if there is any assistance on where that line is to be drawn. this case is going to have to go back to the district court which will have to try to thread this needle to determine what in the case would not fall under these protections. but this is obviously a win for president trump in the sense that the special counsel was arguing, as with the lower court, that there was very little immunity here to be concerned with. the counsel for the government has assuring the court they didn't have much to be concerned with here in terms of any changes in the status of the case. that's clearly not what won the day. the court is saying we do need lines drawn to protect presidents. so they have some breathing room. you have to wonder how the context affected the justices. if they want to look at the implications of leaving presidents without protection, they just need to look around the country. even though manhattan was not a federal case, it was a political prosecution in the view of many of us that was rather raw and open. so this is a context that must have concentrated the minds of the justice as they did what justice gorsuch said to have something not for this case but for future cases and future presidents. >> bret: trey gowdy, how do we think this impacts jack smith's cases currently? do we have a sense yet how it could, you know, this interpretation of official or unofficial acts, what that means, whether it delays these cases, whether it pushes them back? >> i don't think we know yet. it is certainly not a victory for him. i don't think it is a tie for him. i don't see how you can sort out -- our constitution is majestically vague about what presidential powers. we know the president has pardon power but honestly, commander-in-chief. what other powers are there? so you have express, implied, and then you have the word what's in the shadows of those expressed powers? that can only be fleshed out in litigation. the supreme court doesn't handle litigation. so if he wants to proceed on what is unequivocally a private act, he is welcome, i guess, to proceed with that prosecution. but that is still going to take time to assert that it is unequivocally private. this is not a win for jack smith. how close to a tie it is depends on what the remainder. when john roberts was confirmed he said he was a minimalist. the word he used. talking about judicial humility and a minimalist. it is not surprising to me that he wrote the majority opinion. he wants to write it in a minimal way. so there is no bright line rule. it will be fact specific. >> dana: i want to bring in alina haba, a lawyer in court with him in many different scenarios and your initial reaction to this ruling as we have just been handed it and we're kicking the tires here. want to get your thoughts, alina. >> yes, i have haven't read the decision as it just came out. i have read little parts of it. i think the justices made the right decision. nixon versus fitzgerald outlined this. absolute immunity is important for all presidents time and time again and argued on immunity for president trump. he recognize absolute immunity exists. another thing that i do think needs to be pointed out is they said presumptive immunity exists for acts within the outer perimeter of his official acts. so what is going to happen now is that they basically have said sorry, jack smith, you don't get to just impede and intrude on the executive branch. we get to have protections for presidents who are doing things while they are in office so they don't come out and get targeted and criminally and civil sued. it was a good decision. i believe absolute immunity should exist for the executive branch. the presumptive immunity will get kicked back down to the courts and look at it. the presumption that any president and president trump was acting within the perimeter, the out of perimeter is clear of this decision what i've read so far. i will examine it and speak further on the network. i think it was a very good decision for us. >> bret: a.p. said they send trump's case. dimming prospect of a pre-election trial. is that what you are hoping for and that will be the end result is that anything gets past the election on any of these cases that are pending? >> you know, bret, let me first start by saying that the team here, the legal team for president trump -- i think the american people think these cases should never have existed. let's be clear. now we're in this political attack on a leading candidate because they can't win with their candidate. so we are where we are. as a legal, attorney, legal spokesperson i would say this. of course it is a good day when the supreme court recognizes constitutional rights of presidents and the executive branch. we should never have been in in situation to start with. this is a disgrace to america. so yes, the lower courts again will have to hear it. it will in my opinion slow down jack smith's persecution and selective prosecution of president trump. and i don't see how this case could go forward before the election. but again i would say there are still issues to be discussed. how jack smith even got into this position. how we allowed our democracy and the republic to become one that targets political opponents. we should -- the fact that we have been in front of the supreme court so many times is a sad day for the american people. election interference at its finest. i'm happy today. i think chief justice roberts made a good decision for what i'm seeing. i need to read it fully. recognizing nixon versus fitzgerald and stating absolute immunity does exist for presidents is an important thing for all americans both democrat and republicans. >> dana: judge jeanine pirri is here with us as well. i love watching lawyers take notes and watch and he do it during impeachment. what are they writing down i need to know? >> first of all, dana, what is so important about this, there is nothing about immunity in the constitution or in federal statutes. so we've had to rely for a couple of centuries on how the courts interpret this. this is in a sense, as gorsuch said, a decision for the ages. the immediate impact of this is clearly to slow down jack smith not that that was their intent. but the effect is that. and the idea that prosecutors who may have another agenda want to go and indict a president or ex-president for actions while he was president, this court is basically saying there is presumptive immunity. they mention absolute immunity but right now within this case there is presumptive immunity. so it will go back to the district court as to whether or not the official act, what it is specifically, and it will slow the whole thing down but i think alina habba is right. there are a lot of issues even before we get to that. if you recognize the supreme court decision it downgraded some of the obstruction charges regarding the rioters. and so i think that impacts some of the charges against the president as well. there is confirmation there is absolute immunity when there is an official act of the president. >> bret: looking at this further there is some talk of january 6th in this opinion and whether the communications by president trump during that time involve official conduct and they essentially say it needs to be determined by the district court. the court therefore remends to the district court to determine whether it's official conduct or unofficial conduct. >> exactly. that really slows it down as the judge was just talking about the idea of presumptive immunity. the court says it is ultimately the government, jack smith's burden, to rebut the presumption of immunity and goes back down because it's factual. they say the parties had seen this in a very different way and there were all kinds of expeditious handling of this case. you remember how the special counsel has said numerous times we have to get a decision, of public importance. the court said what's the rush? they don't decide things on a political calendar. they said we had the concerns the lack of analysis by the low courts and absence of relevant briefing which means you tried to short circuit to try to get here. now it will bring this thing to a halt as it kicks back down and everything is reconsidered there. want to read you a little bit from the dissent as well by justice jackson. she was one who was very worried during the arguments about setting somebody up in the presidency and leaving them with the idea that they wouldn't have criminal liability possible. she says to the extent the majority's new accountability paradigm allows presidents to evade punishment. absolute power for presidents have been planted and without a doubt absolute power corrupts absolutely. that's always been her worry here that there would be some kind of pass. there is not a full pass here. blanket immunity against criminal issues if they're part of the core of what a president does. and now because they are sending this back to the district court to say all these allegations in the indictment against president trump, you have to now make a determination about all of those things. it will take a lot of time. >> dana: and to that point let's bring in andy mccarthy looking through the opinion. fast analysis. >> i actually think the most important thing that i have seen in the opinion, and this is for the presidency, not so much for president trump, is that no mind reading is allowed. what the court is very explicit in saying is that they are not going to look behind the -- if a president's activities are in the objective part of his executive power they aren't going to try to figure out what his motive was in taking them. so if a president acts in a way that is within his legitimate executive power, then the court is not going to look behind that to see if he had a corrupt motive. concretely for example the clearest example of this is the justice department scheme that is outlined in the indictment where what smith wanted the prove was that trump was using his control of the justice department to try to further this objective of getting the biden electoral votes canceled out and the trump electoral votes submitted in their stead. it seems to me the indictment is very clear that scheme is out. that trump clearly as president was the head not only of the executive branch but specifically of the justice department and therefore even if you think he had a corrupt motivation, even if you think he was acting in a misleading fashion, he is allowed to run the justice department and he is allowed if he wants to switch out the attorney general, he can do that. >> bret: judge jeanine, a quick question. you look at this and it will be bounced down to the lower court to determine what is official and what's not. probably appeals that that and eventually the supreme court will like to decide. looking at in in reality it gets done before november, the trial. it doesn't seem like there is a path now. >> bret, i don't think there is any possible way this goes to trial before the november election. there are too many issues to be litigated. the question is whether or not there will be interim appeals during that litigation. and this will not go forward before the election. but if i can just comment one thing that andy was just talking about here. it is so unusual for us as prosecutors, as lawyers, andy and i were prosecutorall pals, to hear a court say specifically you may not inquire into the motive of the person that you are investigating. that is almost antithetical to what we as prosecutors do. but they felt so strongly about this, so strongly about the issue of presidential immunity, that they said you know, we aren't going to let you play around in this gray area and say he had a bad motive and we'll presume this and go forward and indict. i haven't read the decision yet. it seems like a compelling decision and one that has never been written before on the issue of presidential immunity, we had fitzgerald on civil immunity but now we know where the court stands. >> dana: jonathan turley is still with us. i notice a senior biden campaign advisor on immunity saying that today's ruling doesn't change the facts. let's be clear about what happened on january 6th. donald trump snapped after he lost the 2020 election and encouraged a mob to overthrow the results of a free and fair election saying he is already running for president as a convicted felon for the same reason. he sat idly by. he thinks he is above a law and do anything to hold onto power. the biden campaign realizes it is loss on the politics from their perspective. >> they should be. in reading through this opinion, i can't see how this doesn't induce cardiac arrest with the special counsel. at one point in the opinion they say look, this is a quote, the indictment's allegations that trump attempted to pressure the vice president to take particular acts in connection with his role with the certification proceeding, thus involve official conduct. and trump is at least presumptively immune from prosecution for such conduct. the court then goes on to say that the burden is on jack smith. he has to show this does not pose any intrusions into the executive branch. and the court says that there -- that this may well hinder the president's ability to perform his constitutional functions. so here the court is imposing a very significant burden on jack smith when it goes back to the judge. we talked about how this trial judge has proven to be very favorable toward jack smith and certainly been motivated to try to get an elect -- trial before the election. but the court here is giving much more clear lines than some people expected. they are saying that there is a presumption here that you have to deal with. the burden is high and the court indicates it may view this as something that could hinder a president's authority. >> bret: trey, the biden campaign is indicating they think it is a loss. at least in the way they wrote that statement that dana read. i want to just read for one second about the dissent from justice sotomayor, who writes the dissent with kagan and jackson. today's decision to grant former president as criminal immunity reshapes the institution of the presidency and makes a mockery to our system of government that no man is above the law. whatever happens as you read through this decision, it does expand the power of the executive. it is pretty consequential. >> who else has plenary pardon power and order the killing of an american citizen overseas. it's the president. they always enjoyed powers the rest of us do not. they must not have read the majority opinion. it's simple. unofficial acts have no immunity at all. official acts there is immunity. we will presume it was official and motive is irrelevant. i will also say this, bret. motive is never required to be proven. no prosecutor ever has to prove motive. sometimes they try to but they never have to. so what the court is saying is we're not going to allow you to go inside the mind of a president to try to figure out whether it was -- what president does not act in his or her own best political interest? what president has ever said you know what? this will cost me re-election but i'll do it anyway. motive should not be part of this. it's a loss for anyone who wanted to see donald trump back in the courtroom between now and november. >> dana: i was going to bring in maybe zoom out a little bit, judge, and actually we could ask anybody about this. bret's opinion as well. this has been an incredible week for former president trump if you think about last week, some of the rulings especially the chevron deference one and i'm not saying it was specifically for trump. but if you are looking at the consequences and benefits of having a conservative court if you are republicans that chevron deference case was a big one in terms of regulations. you had the debate, which obviously went in his favor, and now you have the january 6th case from last week and now this. i imagine that the democrats this is not how they saw this all playing out. >> you will see the democrats talking about the importance of appointing justices that align with their party. i think that the chevron case, the deregulation issue is one that donald trump was very much fighting for and i keep going back to the narrowing the scope of the obstruction charges for january 6th and a few months back saying colorado could not take donald trump's name off the ballot. this is a conservative court but i think the decisions are so based upon, you know, solid constitutional foundations. >> bret: the special counsel -- go ahead. >> i was going to say the statement that you read from the biden spokesman, dana, that goes to the absurdity and pointlessness of all of this. if they can say look, everybody knows this already. everybody knows what happened on january 6th. we all sat home and watched it on television. then the question is, then why the bum's rush by jack smith to get to trial? why is it so desperate that they have to have a trial prior to election day? down in florida jack smith told judge cannon that they deem that the 60-day rule. unwritten rule where the justice department says it won't take overt action that might influence an election, that it doesn't apply to trump. and when the judge asked why is that? she was told because he has already been indicted. everybody already knows this. that's the point. why do we need to do this before election day? >> bret: that's really what special counsel jack smith had argued, that is there is no immunity as a president or post president. the supreme court is knocking all of that down and now what is an official act and not an ophth act will have to be decided by a judge in a lower court and may be appealed. >> the court to the fact this was an expedited case. because of that, this being an expedited case they didn't have findings of fact an all of those things. a lower court should have handled this. we wouldn't be in this place where we don't have the information we need. it was hustled along to make a decision on all these things. it goes back to the district court. you are seeing multiple dissents here. the justices not on the winning part of this are very frustrated. we have seen this schism. a lot of dissents and people upset the court leaving here very divided for summer break. more from justice jackson. she calls out the majority said they don't have caution or humility. they transfer power from the political branch eaves to itself to decide when a president can be held accountable. she says what's left in its wake a is a greatly weekened congress that stands idly by as the president uses the powers of his office to push the envelope. while choosing to follow or not follow existing laws as he sees fit. again, the language from the majority said you can't criminalize core functions of the presidency but yes presidents can be held liable for criminal activity that falls outside of their official duties. while the dissent seems to lay meant that somebody taking office will be able to run amuck without a lot of accountability. not what the majority is saying. they are saying for the core functions of the presidency and facts yes the presumption will be on jack smith to show there was a violation of that but not that no president can ever be held criminally liable for something they do in office. it's if outside the executive and core actions it will be like any of us subject to criminal liability. >> dana: onto the timing of all of this, president trump has given a statement to fox news digital in the wake of this decision. i'll read it for you here and jonathan turley your take on the other side. former president trump said i have been harassed by the democrat party, joe biden, obama and their thugs, fascists and communists for years. and now the courts have spoken. this is a big win for our constitution and for democracy. now i am free to campaign like anyone else. we are leading in every poll. by a lot. and we will make america great again. so that's his take. although i mentioned earlier there is another date on the calendar. july 11th sentencing in new york. and i agree, jonathan, with him when he says i'm free to campaign like anyone else. will that be true at the end of the day on july 11th as well? >> well, i would hope that the judge in new york would not impose a jail sentence. i don't think it is warranted under new york law. but this case is not over, jack smith is not going to go quietly into the night. i want to note two other aspects of this opinion to complete this circle. the court deals with the so-called fake electors issue and it says that question in dealing with state officials is not something that we see as falling within these core areas. and so the district court will have to look at those communications to determine to what extent there is this immunity, presumptive or not that might apply. then it also talks about president trump's january 6th speech. and all of his tweets. the language there seems quite favorable towards president trump and says that presidents are expected to speak forcibly on issues that are important to citizens. and it really puts an emphasis on the fact that this is something that presidents do. many of us believe, certainly i do, that president trump's speech was entirely protected under the first amendment. but the court is also saying this is a function of what presidents do on matters that divide the public. so on that you have another section that will help out the trump team dramatically in front of district court. the one area that might be a sticky point is going to be the electors issue. even trump's counsel in front of the court acknowledged it would be a tougher one. but otherwise this is a very good day for the former president. this opinion is quite favorable on most points. >> bret: as you read this, shannon -- let's go to trey gowdy. as you read this further, it is a pretty much slap to jack smith that essentially you haven't formed these charges effectively and now you have to make a case whether it is official or unofficial. >> yes, which is what he should have done all along. this rush to get this case to trial just wreaks of politics. i would also point out to the dissent, justice roberts could not have been more clear. unofficial acts provide no immunity whatsoever. what will be fascinating to watch, bret, as you know, the alleged fake elector scheme also involves members of the house and senate, who have their own immunity and privileges. as we litigate the fake elector scheme at the trial level you have members of house and senate called as witnesses and litigate what their own immune tease and privileges are. my grandkids may be talking about this case. i may be long gone before it reaches a jury. >> dana: we hope that's not true. let's give the last 20 seconds each to the judge and to andy here as we wrap up. >> if i can start. i think this is a good day for the country to have the supreme court rule on an issue that has been vague and not defined. and i also think that the message to jack smith is clear. i think the supreme court has ruled against him in the past. i think 8-0 at one point. he is known as a prosecutor who doesn't dot his is and cross his ts, not the most ethical guy out there. >> most important thing this was for the ages and i think they did the right thing by the presidency and the executive branch going forward for future presidents. how it works out for president trump will be another story but they had to protect the presidency and they did. >> dana: we have had a bumper crop of a day with all these decisions. bret, thank you for joining me today and to our legal panel. historic day right before the nation's birthday in three days. "the faulkner focus" is next. sandra smith is in today for harris, hi. >> sandra: thank you