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Decisions without being inhibited without the fear of criminal prosecution, but it seems to me that there are other article 2 implications here prevailing. it seem under article 2, there is an executive vested clause, and that the executive branch as an institution to have constitutional executive power vest in a newly elected president. there's also an executive interest as an institution in law enforcement in enforcing criminal laws, and so it seems to me that if we are weighing executive interests versus public interests, and public interests like the integrity of an election that president...

That is unconstitutional. the supreme court has held that that is illegal and unconstitutional. so tha my organization, america first legal, sent a warning letter to every single a law school in america. and next, we're going to do medical schools. and after that , we're also going to do undergraduate schools. and we've said if you continue ra to use a racial balancing test by hook or crook, by any to try to stack the deck towardsission one race in admissions, then we are going to take you tos, cour, because in this country, it doesn't matter what your skin colokin color is. racial bigotry is ...

-- the question i imagine is, what was going on in daniel penny's mind when he made that decision to get involved. >> this will be -- an old saying in law, facts win cases. this will be a balancing test based upon the facts, those facts will be as follows, what was the demeanor of jordan neely on that train, you are in a closed environment, he yells i'm done, take offers that jacket, that is clear -- he throws that jacket down, it comes down to balancing test of whether or not what mr. penny did is reasonable in light of the threat that he perceived from jordan neely. did he go too far in miti...

The penal law said a person can use the amount of physical force he recently believes is necessary to defend himself or others reasonably be too believed to be the imminent use of force or illegal use of force. the question i would imagine is what was going on in daniel penny's mind when they made the decision to get involved? >> exactly. there's an old saying in law which is when cases and this is going to be a test based upon the facts. those facts will be as follows, what was the demeanor of jordan neely on that train in an enclosed environment that he yells gun and takes off his jacket and...

Balancing test meaning it is probative, meaning illuminate an issue, and what is unduly prejudicial. that is a part of this, i think, will be most consequential in appeal. >> i want to bring you in, patrice sultan, you're also an attorney. what do you make of what you heard? and more importantly, what you make of the impact we saw in the new york? >> i think laura framed the legal issues well, those are the rules of evidence that i think will be most relevant to the court of appeals' determination. the impact of what i saw today is in part informed by what else we have seen in this same news c...