The Megyn Kelly Show - Dems New Abortion Push, and SCOTUS Leaker Fallout, with Sen. Josh Hawley, Glenn Greenwald, and Jay Sekulow

00:00:00.460 Welcome to The Megyn Kelly Show, your home for open, honest, and provocative conversations.

00:00:11.720 Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show.

00:00:14.960 There is new political and legal fallout after the leak of a draft decision indicating the U.S. Supreme Court is set to overturn Roe v. Wade

00:00:24.000 and the decision that affirmed it in part, Casey v. Planned Parenthood.

00:00:30.340 Recognizing the constitutional right to abortion.

00:00:33.780 The court prepared to now say there is no such right and the court never should have found otherwise.

00:00:38.980 And we have an amazing lineup of guests to cover it all.

00:00:42.600 Next hour, Jay Sekulow will be here.

00:00:45.200 My old pal Jay Sekulow used to talk all the time on Fox whenever he had a big case going up to the Supreme Court.

00:00:51.120 He has argued before the Supreme Court more than a dozen times.

00:00:54.500 And two of the cases are actually cited in Justice Alito's leaked opinion.

00:01:02.020 So Jay's had a pretty big hand in what this decision wound up being.

00:01:07.100 And we'll talk to him about where he sees this going and whether he thinks any of these justices may waver in light of the leak.

00:01:14.700 He says if the decision becomes final, it will be gratifying.

00:01:17.820 But he also calls the leak an internal insurrection.

00:01:20.960 And he knows the Supreme Court very well.

00:01:23.440 And by the way, this morning, there's an interesting new theory about who the leaker is.

00:01:28.220 Yesterday on our program, former Attorney General Bill Barr made news when he suggested the leaker should face criminal charges and that the FBI should get involved in this.

00:01:38.140 Glenn Greenwald does not agree.

00:01:39.400 He's here to explain why he's also a lawyer, in addition to being a journalist, Pulitzer Prize winner.

00:01:44.200 But first, Vice President Harris is the latest Democrat with an over-the-top reaction screaming last night, how dare they?

00:01:51.320 Those Republican leaders who are trying to weaponize the use of the law against women.

00:01:58.700 Well, we say, how dare they?

00:02:02.420 How dare they tell a woman what she can do and cannot do with her own body?

00:02:06.960 How dare they try to stop her from determining her own future?

00:02:16.360 How dare they try to deny women their rights and their freedoms?

00:02:25.960 Okay, so she's pulling a page out of the Greta Thunberg book.

00:02:31.120 How dare you?

00:02:32.340 How dare you?

00:02:33.060 Here to respond to that and also to J.D. Vance's big win in Ohio's Senate primary is Senator Josh Hawley of Missouri.

00:02:46.040 Welcome back to the show, Senator Hawley.

00:02:47.940 Great to have you here.

00:02:48.820 Thanks so much for having me, Megan.

00:02:50.460 Well, you're the perfect guest because not only did you back J.D. Vance in Ohio, so I'd love to get your reaction on that,

00:02:55.520 but you clerked for Justice Roberts, Chief Justice Roberts, when you got out of Yale Law School and you know what it's like to be a Supreme Court clerk.

00:03:03.220 So that's who the speculation is may have leaked this.

00:03:06.660 So, okay, let's get into it.

00:03:08.120 Let's start with Kamala Harris because she says that what the Republicans are trying to do and listen, maybe if she's talking about the court, she's dead wrong.

00:03:14.700 The Supreme Court isn't weaponizing the use of law against anyone.

00:03:18.420 They're deciding what the Constitution says or doesn't say.

00:03:22.140 But it is true that at least 13 states have a trigger law that would make abortion illegal in those states if this decision comes down pretty much as it was written in the draft.

00:03:32.800 So to those Republicans in those states who are behind that trigger legislation, who do want to regulate what a woman can and cannot do with her body, is she wrong?

00:03:44.560 What say you?

00:03:44.960 Well, I think the people who are behind any laws that are in the states, that are on the books or that have been in the constitutions, the state constitutions, Megan, or have been passed by state referenda is the voter, the people.

00:03:57.040 So, you know, if she wants to say that the people should not have a voice in this issue, in this, it's a great moral issue of our time, the issue of abortion.

00:04:06.220 I would hope everybody would be able to recognize that and to continue to say that the American people should have no voice.

00:04:10.860 That's what Joe Biden said yesterday.

00:04:12.480 He said that this is too important an issue to be entrusted to the whims of the people.

00:04:16.560 You know, the people, those folks who actually run this country, you know, the sovereigns of this nation.

00:04:21.220 I think the Democrats forget they're not the sovereigns of the nation.

00:04:23.680 The people are.

00:04:25.000 And overturning Roe, if that's indeed what the Supreme Court does, and I hope they do, that is about allowing the people to actually have a say in all 50 states in this country.

00:04:35.460 And I think that's what should happen.

00:04:37.000 The people are so annoying.

00:04:38.000 The people always want to be heard.

00:04:40.880 God, it must drive you nuts.

00:04:42.400 Democracy is such a drag, Megan.

00:04:43.600 I mean, you know, when the people won't do what you want them to do, it's all such a drag.

00:04:47.300 That's basically the line of this administration.

00:04:49.140 It must drive you nuts as an elected representative.

00:04:52.260 Okay, so now there's talk in Democratic circles of, okay, we know this is coming.

00:04:58.640 Let's assume nobody's going to fold and it's going to be a 5-4, you know, sort of five in the majority, at least, opinion.

00:05:05.060 We don't know what Roberts is going to do.

00:05:06.220 CNN supplemented the political report that had the draft opinion by saying, our sources tell us you got the five conservatives against the three liberals.

00:05:14.400 And then you got Chief Justice John Roberts, your old boss, trying to find a middle ground, saying let's uphold the Mississippi law, which said can't have an abortion after 15 weeks, but not strike down Roe.

00:05:24.920 There's no reason to overrule these precedents.

00:05:28.660 Anyway, it doesn't look like he's got the votes on his side.

00:05:30.900 So now there's a push by the Dems to codify Roe.

00:05:34.840 That's what they're saying, codify Roe.

00:05:37.080 So you in the Senate and your brethren in the House need to pass a federal law that would recognize abortion as legal at the federal level, which would basically mean the states can't counterman that.

00:05:53.260 Is that going to happen?

00:05:55.320 No, it's not going to happen.

00:05:56.920 And, Megan, I'm not sure that there's a constitutional basis for it happening anyway.

00:06:00.380 I mean, the Supreme Court actually has been clear on this, that the Congress does not get to determine the bounds of the Constitution.

00:06:06.960 The Supreme Court is the final say in the judiciary on what the Constitution means.

00:06:12.920 Now, obviously, the people can change the Constitution, absolutely, certainly, but Congress can't change the Constitution.

00:06:19.220 So I don't know that there's any basis for Congress to come in and say, oh, we'll tell you.

00:06:23.500 We'll tell you what the states can and cannot do.

00:06:25.860 We'll tell you what voters can and cannot say with regard to abortion.

00:06:29.280 I just don't think that Congress has that kind of power.

00:06:32.840 All right.

00:06:32.960 But let me ask you, let me jump in and ask you this.

00:06:34.620 So what's to stop Congress from saying abortion affects interstate commerce?

00:06:39.980 So, you know, women now, if it's illegal in 13 states plus, because it'll be more than 13 eventually, they're going to have to travel across straight lines and so on to get abortions if they want them.

00:06:50.840 And so it's in our power to regulate this issue.

00:06:53.740 And we would like to regulate it by saying it's legal.

00:06:56.420 It's that there is a national right to an abortion.

00:06:59.620 Yeah, that's certainly something they could try, Megan.

00:07:03.860 But if you can do that, then there is no right that Congress can't redefine.

00:07:09.500 There is no right that Congress can't come back and say that, well, we don't like the Supreme Court's opinion on this, so we're just going to change it just by legislative fiat.

00:07:16.640 I mean, the court famously, infamously, in my view, had a ruling years ago, the Smith case, religious liberty case, in which the court, I think, wrongly narrowed the rights of religious liberty in this country.

00:07:27.300 Congress passed legislation to try to expand the right, and the Supreme Court struck that down and said, no, no, no, no, no.

00:07:33.860 You can't come in and say that now the amendment means something different.

00:07:37.680 So I think the Democrats are going to run into that problem with abortion.

00:07:40.240 But regardless, Megan, here's my bottom line.

00:07:41.780 I'd obviously vote no on any attempt to mandate abortion on demand across this country.

00:07:47.660 I think that's the wrong policy.

00:07:49.160 I think it's immoral.

00:07:50.460 I think it's up to the people.

00:07:51.900 The bottom line is, is that the people ought to have an opportunity now to weigh in on this in all 50 states and actually have their voices heard.

00:07:59.960 And that's what overturning Roe would mean.

00:08:02.760 The truth is, they don't have the votes to do it.

00:08:05.880 So they can have, I mean, senator after senator and a Democratic pundit after another has come out saying, codify Roe, codify Roe.

00:08:15.140 They don't have the votes, as even Jen Psaki admitted, I think it was this morning, on Air Force One.

00:08:21.820 Listen to her.

00:08:22.340 The president's position is that we need to codify Roe, and that is what he has long called on Congress to act on.

00:08:30.420 What is also true is that there has been a vote on the Women's Health Protection Act, which would do exactly that.

00:08:36.720 And there were not even enough votes, even if there was no filibuster, to get that done.

00:08:41.860 So I would note in his written statement that we released this morning, I'm just going to reiterate what he said in this statement.

00:08:48.280 He said if the court does overturn Roe, it will fall on our nation's elected officials at all levels of government to protect a woman's right to choose.

00:08:57.440 So much for Chuck Schumer, who's out there, you know, the Democratic majority leader in the Senate saying it's our intention for the Senate to hold a vote on legislation to codify the right to an abortion in law.

00:09:10.140 Yeah, I mean, we've done this.

00:09:11.960 He's done this before.

00:09:12.800 We've taken votes on it before, Megan.

00:09:14.980 It has failed.

00:09:16.060 It's going to fail.

00:09:17.060 And his own party has been clear that they're not willing, on the Senate side, to blow up the filibuster in order to take this down to a 50-vote threshold.

00:09:25.280 And that's as it should be.

00:09:26.120 I mean, the rules of the Senate say you need at least 60 votes here to break a filibuster.

00:09:29.500 They don't have those votes.

00:09:31.020 And it is wrong to try and bully the Supreme Court.

00:09:34.900 Let's be clear about what's going on here, Megan.

00:09:36.200 This is an attempt by the Democrats to bully the Supreme Court into changing their opinion.

00:09:41.620 They know the vote will fail in the Senate.

00:09:43.200 The idea is to try and create public pressure on the court now to switch midstream and change the opinion.

00:09:49.840 That's wrong.

00:09:50.800 That is an attempt to interfere in the judicial process.

00:09:53.020 And I hope the justices will resist it.

00:09:54.760 I think they will.

00:09:55.360 Well, she's saying Jen Psaki's admission is significant because she's acknowledging even if we got rid of the filibuster, which would be an act even more extreme than the leak of a Supreme Court opinion, it would change America fundamentally.

00:10:09.280 Even with that, if we eliminate the filibuster, we don't have the votes to pass a national codification of Roe versus Wade.

00:10:18.760 So, you know, let's talk Turkey.

00:10:20.780 And that's why Joe Biden was out there yesterday saying elect Democrats, elect pro-choice Democrats to the Senate, to the House.

00:10:26.860 That's what we need to do.

00:10:27.600 We need to flood the field with more pro-choicers.

00:10:30.320 So that's step one.

00:10:31.640 We'll get the people in there who would vote for this.

00:10:34.000 And step two is we'll try to get around the Supreme Court telling us we don't have this power.

00:10:37.820 Yeah, this is clearly what they want to talk about.

00:10:40.540 They think, Megan, going into these next few months and into the midterm elections, they were going to want to make it an abortion referendum.

00:10:46.720 I just I don't think that's going to work for them.

00:10:48.940 I mean, because, listen, the American people, those who are opposed to abortion or who vote for Republicans, by the way, are going to welcome this decision.

00:10:56.200 If this is, in fact, the decision of the court, I hope it is.

00:10:58.760 They're going to welcome this decision.

00:11:00.180 This will be the culmination of decades, decades of fighting for the innocent unborn.

00:11:05.220 They're going to be really energized.

00:11:06.280 Those on the Democrat side who are in favor of abortion, they're obviously going to be very depressed by this.

00:11:12.920 And they'll probably be energized to get out and vote.

00:11:14.720 But they weren't going to vote for Republicans anyway.

00:11:16.640 So I think that the Democrats idea that somehow they'll turn this into a referendum on abortion.

00:11:21.240 I mean, fine, go right ahead.

00:11:22.520 But I don't think it's going to work.

00:11:24.340 I think that the American people see this for what it is.

00:11:26.480 What the Democrats are really saying is, let us tell you what to think on this issue.

00:11:30.880 If you disagree and want to have a say in this issue, you're wrong.

00:11:34.460 You should shut up and you should allow nine justices to make up their minds, your mind for you.

00:11:40.200 And I just don't think that's what most Americans want.

00:11:42.600 Yeah, you're somehow anti-democratic.

00:11:45.000 Meanwhile, just so the audience understands, when they tried to pass that Women's Health Protection Act,

00:11:49.280 which would have not exactly codified Roe, but kind of, you had Manchin and Sinema, two Democratic senators, refusing to lift the filibuster.

00:11:58.260 They were saying, look, we don't those the filibusters there to protect minority rights.

00:12:02.460 And even Kyrsten Sinema, who's very pro-choice, was saying, I've used the filibuster.

00:12:07.720 I've seen it used many times by Democrats to prevent Republicans from pushing through more abortion restrictions than we'd like.

00:12:14.920 So careful what you wish for. That's this is not the solution to this current problem.

00:12:21.580 And yet you get, you know, Elizabeth Warren and the filibuster codify Roe versus Wade, expand the Supreme Court.

00:12:28.320 We're back to that. Just for the record, is there any way they could actually do that between, I don't know, now and the end of Joe Biden's term?

00:12:36.980 No, not without breaking the filibuster, Megan.

00:12:39.100 The only way they could expand the Supreme Court, you can do it by law.

00:12:42.060 I mean, Congress has the ability to change the number of justices, but you'd have to break the filibuster to do it.

00:12:49.280 And I just say to my Democrat colleagues out there, if you break the filibuster, it's gone forever.

00:12:54.220 And I got news for you. You ain't going to be in the majority after November.

00:12:57.300 So I'd be careful. I'd be real careful what you wish for, because once it's gone, it is gone.

00:13:02.800 There is not a world in which you can eliminate it for this thing or for that thing.

00:13:06.520 Once it's gone, it's gone.

00:13:07.880 So this is a dangerous game that they're playing.

00:13:11.560 But I come back to the fact, Megan, what they're really doing right now is threatening the court.

00:13:16.000 That's what all this rhetoric is about.

00:13:17.760 They know that they're not going to be able to break the filibuster.

00:13:20.180 Their own party won't go along with it.

00:13:22.500 What they want to do is threaten the justices.

00:13:24.920 What they want to do is bring public pressure to bear on the justices, including protesting them, including threats made to them and their families.

00:13:32.280 You see that stuff from leftist activists online.

00:13:35.620 That's what they're trying to do here.

00:13:37.340 And that's wrong.

00:13:38.200 That is an assault on the independence of an Article III branch, of an independent branch of government.

00:13:43.060 It's wrong.

00:13:44.040 Now, what do you make of the criticisms now by people like Susan Collins of Maine saying,

00:13:49.800 I was lied to Brett Kavanaugh, I think Justice Gorsuch was the other one saying they misled me in my private office and during the confirmation hearings about their respect for precedent.

00:14:02.380 I mean, to me, I kind of laughed because it's like, OK, first of all, they all have to mislead a little because they're not supposed to tell you how they're going to vote on something that's going to come before the court.

00:14:11.980 So they all do a little dance there.

00:14:14.040 But I thought it was kind of rich that she was saying it led to an attack by AOC kind of saying, hey, you don't get to play the victim now.

00:14:21.580 You listen to them and you put them on the court and you can't.

00:14:24.360 You know, the first time in my life, I agreed with AOC.

00:14:26.780 You know, you you voted for it.

00:14:28.000 You knew exactly what they were going to do.

00:14:29.440 We all knew what they were going to do for her to now be like, I'm shocked, shocked.

00:14:33.560 Who is she kidding?

00:14:34.880 Well, I can't speak to what these justices said or at the time, I guess they were they were just nominees.

00:14:40.380 But what they said to any senator in private meetings, and I wasn't there for that.

00:14:43.800 But I have seen what they said in public and seen what they said during their hearings, what they said to the whole country.

00:14:49.520 And what Justice Kavanaugh and Justice Gorsuch said to the country in their hearings is, is that, sure, they'd have respect for precedent.

00:14:55.520 And you're a lawyer, Megan.

00:14:56.420 You know this.

00:14:56.940 That means that you have to go through the tests for stare decisis.

00:15:00.280 That means you have to ask, well, what are the reliance interests?

00:15:03.400 You know, who would be harmed?

00:15:04.620 Who would benefit from overturning the decision?

00:15:06.580 You have to ask about what's the what was the legal reasoning?

00:15:09.300 Was it good?

00:15:09.960 Was it weak?

00:15:10.980 There's a whole series of tests.

00:15:12.420 And guess what?

00:15:13.280 This opinion does that at length.

00:15:15.580 This draft opinion we saw linked, it has page upon page of analysis about the stare decisis factors.

00:15:22.920 And to my mind, that's exactly what Justice Kavanaugh and Justice Gorsuch promised in their hearings.

00:15:27.680 And again, what they said to individual senators in their offices, I don't know.

00:15:31.440 But in their hearings, I think what they're doing now is totally consistent.

00:15:35.020 There's no way they said to her, I promise you I won't overrule Roe versus Wade, or I will treat it as, quote, a super precedent that cannot be overruled.

00:15:45.560 I'm sure they said respect for precedent.

00:15:48.280 Yes, Roe versus Wade is a super precedent.

00:15:50.740 You know, that's one thing.

00:15:51.700 That doesn't mean it can never go away.

00:15:53.180 That just doesn't mean that there are no promises, as Ruth Bader Ginsburg said.

00:15:57.020 You know, no hints, no forecasts, and no guarantees.

00:16:00.660 We all know that.

00:16:01.840 So she's her feigning indignance over this is just kind of falls on deaf ears.

00:16:07.440 Let's talk about the leaker.

00:16:09.620 We don't know who it was, but I think the vast majority of people have concluded that the most likely candidate is a Supreme Court clerk.

00:16:17.040 I just can't see any one of the nine justices doing this.

00:16:20.720 Let me ask you, because you're a lot closer to them than I ever have been.

00:16:24.180 I'd be shocked if it's a justice.

00:16:26.100 I mean, that would really shock me, Megan.

00:16:27.400 I just I suppose anything is possible, but I doubt it.

00:16:30.800 My thought would be it probably is a clerk.

00:16:32.700 There are 36 clerks on the court, as you know, and those clerks have would have access to this draft opinion.

00:16:39.220 Also, notice in the original report from Politico that the person who leaked all this material also knew what the vote count was on the day the justices took the vote, which is way back in December.

00:16:49.800 I mean, most people don't know that you take the justices take the vote right after the argument, either immediately after, depending on what day of the week it is, or on the Friday that follows.

00:16:59.720 So very close in time.

00:17:01.340 The point is, is that for months now, people close inside the court have known what the working count is on that vote.

00:17:08.400 But there are only a few people who would know that the justices would know and the clerks would know.

00:17:13.840 So I think it's likely it's a clerk.

00:17:15.980 Obviously, I don't know.

00:17:16.860 Hope that we find out.

00:17:17.800 I mean, it's important that this be stopped, because if the court is going to constantly leak its decisions, if the courts is going to turn into if this is going to be a referendum on every major opinion.

00:17:26.320 Well, let's set it out to the public and let's let's bring public pressure to bear.

00:17:29.760 Then we don't really have an independent judiciary anymore.

00:17:33.740 The who would know what the vote count was?

00:17:36.420 Is there any way a administrative staffer would know that?

00:17:40.280 Possible, but unlikely, I think.

00:17:42.320 And the other telling piece of information, Megan, was that the individual who leaked this to the press also knew what the vote count was as of this week.

00:17:50.480 Right.

00:17:50.640 So this is somebody who's following the back and forth of the draft opinions.

00:17:54.220 And again, you know, the way this works inside the court is that opinion draft opinions get circulated and the justices look at those.

00:18:00.540 And sometimes they do change their votes.

00:18:02.360 And it sounds like Justice Roberts, the chief justice, didn't commit himself.

00:18:07.720 Again, this is just based on the reporting.

00:18:09.000 It doesn't sound like he committed himself to one side or another very clearly.

00:18:13.300 And this person knew that and said that as of this week, he had not yet joined either side.

00:18:18.900 I mean, that's that is pretty closely held information.

00:18:21.600 And again, the person who the people who are most likely to know that besides the justices would be the clerks.

00:18:27.600 How does it work?

00:18:28.340 Because the clerks are not in the meeting that the nine justices go into.

00:18:33.280 They don't that only the nine go in there, which is why the most recently confirmed justice has to fill the water bottles.

00:18:39.800 And it's so fun that you think about the youngest justice going in there.

00:18:43.780 Most recent, I guess I should say, and being sort of the low person on the totem pole.

00:18:48.180 Soon it'll be Ketanji Brown Jackson who's got to do it.

00:18:50.420 But they all go through it.

00:18:52.260 So nobody else is in there, not even somebody who could fill up the water bottle.

00:18:57.280 So what happens?

00:18:58.360 They go back to chambers and would like when it was chief justice and John Roberts and you, would he then say, OK, here's what happened?

00:19:04.540 Like, how do the clerks get their info?

00:19:05.980 Usually, you know what the justices would tell the clerks what the vote was on a given case, because you would need to know that in order to help draft the opinion.

00:19:16.160 And so you would say that, well, OK, on this case, the Dobbs case that we're talking about, the vote was five to three, five, three, one with the chief justice, you know, not committed to either side.

00:19:26.620 So that means that the most senior justice in the majority will assign the opinion.

00:19:31.760 In that case, that'd be Justice Thomas.

00:19:33.080 And so it'd be natural for Justice Thomas to go back to his clerks and say, all right, well, the vote was five to three.

00:19:37.620 That means we get to assign the opinion.

00:19:39.660 I've decided to assign it to Justice Alito.

00:19:42.200 So he'll be doing the first draft.

00:19:44.220 So the clerks that are working on this, you know, prepare to see a draft from his chambers on this.

00:19:48.940 And so it's that kind of a back and forth.

00:19:50.660 The clerks kind of have to know if they're going to help with the opinion drafting.

00:19:54.020 They've got to know who's writing and why they're writing.

00:19:57.240 And so that's how the information gets shared.

00:19:59.140 But, Megan, that is very closely held information.

00:20:01.860 I mean, the clerks understand.

00:20:03.260 They are told explicitly that they are not to discuss this with anyone.

00:20:07.000 They're not to share it with anybody.

00:20:08.920 And obviously, votes can change and they do change.

00:20:11.580 So this kind of a leak is really unprecedented for those reasons.

00:20:15.820 There's one clerk.

00:20:16.600 I'm not going to get into names or anything like that.

00:20:18.340 But there's one clerk today who's who's been clerking for Breyer, who's outgoing.

00:20:22.060 He's the one that Ketanji Brown Jackson will replace.

00:20:24.480 And she's apparently married to a reporter who used to work at Politico.

00:20:28.920 Are you allowed to share any information with your spouse?

00:20:32.840 No, no, no, you're not.

00:20:34.560 And, you know, I've seen all kinds of speculation, Megan, similarly, about different clerks.

00:20:38.920 And I don't want to I don't want to point fingers at anybody.

00:20:41.580 Because I don't know.

00:20:42.700 I don't have any information whatsoever.

00:20:44.460 None of us do.

00:20:45.180 None of us know.

00:20:45.840 But I'm glad the chief justice is going to have an investigation to find out.

00:20:49.880 I mean, we need to find out and listen.

00:20:51.300 If this was a clerk or any member of the bar, they need to be disbarred.

00:20:55.340 This is a very serious breach of confidentiality and of your duties as a lawyer.

00:21:00.620 And they should be disbarred, whoever it was.

00:21:04.060 Explain why it matters.

00:21:04.980 There's an article.

00:21:06.900 Who is it?

00:21:07.540 Jack Fowler?

00:21:08.100 I'm trying to remember today.

00:21:09.900 Saying, so what?

00:21:11.580 So it was a leak.

00:21:12.780 You know, why should the Supreme Court?

00:21:14.320 Who is Jack Schafer?

00:21:15.040 Not Fowler.

00:21:16.800 Who said, why should the Supreme Court be treated any differently than Congress?

00:21:20.840 You know, who cares if we see one of your draft bills?

00:21:22.820 Who cares if we see the draft opinion?

00:21:24.160 Why should why are they in such ivory tower that we have to freak out over a leak to the

00:21:27.620 press?

00:21:28.840 Well, because it's a court.

00:21:29.940 It's not a legislative assembly.

00:21:31.400 It's made up of judges who are determining what the law means, what it's going to say and what

00:21:36.040 it's going to hold, not representatives who are elected by the people and accountable.

00:21:41.300 Here's why that matters, Megan.

00:21:42.220 Imagine a case.

00:21:43.100 Imagine the Obamacare case, which would have a major effect on health care, on the insurance

00:21:49.260 industry, on the daily lives of everyday Americans.

00:21:53.220 Imagine if an opinion there leaked early and it had an effect on the markets.

00:21:58.140 It had an effect on the availability of health care.

00:22:00.360 It had an effect on health insurance.

00:22:02.040 You can imagine if this became normal, then the Supreme Court, it would be really hard

00:22:08.080 to do its basic job.

00:22:09.800 And the amount of, frankly, power that the Supreme Court has, which I'd like to say for

00:22:13.540 the record, I think is way too much, but the power that they have to determine the law

00:22:18.340 ultimately in case after case is really enormous.

00:22:21.720 And if that's going to be a matter of public discussion, A, but then also public debate and

00:22:26.200 pushback, then we're looking at a whole new court.

00:22:28.760 And that's the last point I would make on this, Megan, is that having a national referendum

00:22:32.960 on every opinion the court has while it's in draft, I mean, that's a really dangerous

00:22:38.100 thing.

00:22:38.600 If we're going to do that, then we may as well elect the justices so that we know exactly

00:22:42.180 what they're doing and there's some accountability.

00:22:44.560 And that's really, I think, why all of this is so dangerous.

00:22:46.920 It's an attempt to shift the court.

00:22:49.020 It's an attempt to influence the court and to do it outside of the legal channels of argument

00:22:54.940 and submitting briefs and actual deliberation.

00:22:58.080 And it's actually even worse because in the process of doing it, it endangered the court.

00:23:03.780 It endangers the sitting justices.

00:23:05.900 It's just such an egregious breach of ethics and a moral compass that this person apparently

00:23:10.500 doesn't have.

00:23:11.380 Here's a last point here before I ask you about J.D. in Ohio.

00:23:15.320 Former Attorney General Bill Barr was on the program yesterday.

00:23:18.160 Andy McCarthy of National Review, a former federal prosecutor, shares the same opinion.

00:23:22.260 This person should be prosecuted.

00:23:23.520 The FBI should be appointed immediately to investigate this as a potential obstruction

00:23:28.280 of justice, perhaps theft of government property, which the opinion would be, because it's that

00:23:33.920 serious and the consequences are that dire of what this person has done to the Supreme

00:23:38.880 Court and the trust and so on.

00:23:40.480 Do you agree?

00:23:41.060 I'd say I'm not real crazy about what the FBI has been doing with its power recently.

00:23:46.120 And I'm not real crazy about its track record right now in terms of what it has done to

00:23:50.300 courts, how it has misled courts, including in the 2016 campaign.

00:23:55.280 So I'm a little cool to that suggestion, I have to say.

00:23:57.940 I do think there needs to be an investigation.

00:24:00.320 The court has its own security force.

00:24:02.240 It has its own police force.

00:24:03.100 U.S. Marshals, the marshal of the court, several hundred officers strong, dedicated just to

00:24:09.020 the court.

00:24:09.580 And my understanding is the chief justice has asked them right now to stand up an investigation.

00:24:13.980 I know, but the marshal, like the marshal who's supposed to oversee it, like her duties

00:24:18.740 are like she yells, oye, oye, oye, before the court starts.

00:24:23.280 I realize it goes beyond that.

00:24:24.620 It's not just that.

00:24:25.300 But I'm thinking I'd be a lot more scared of the FBI than I would be of, oye, if I were

00:24:32.600 the leaker.

00:24:34.080 There are, though, Megan, beneath the marshal in terms of on the org chart, so to speak,

00:24:38.920 there are several hundred police officers, law enforcement officers, U.S. Marshals, or

00:24:45.460 Marshals of the court, who are law enforcement officers.

00:24:49.000 And I think having them in the first instance, my bottom line is-

00:24:52.600 So you're open to looking at it as a criminal matter.

00:24:55.800 You just don't need the FBI.

00:24:57.160 Oh, absolutely.

00:24:58.040 Listen, I think you've got to follow this wherever it goes.

00:25:00.880 And I think you've got to figure out who, first of all, who is it?

00:25:03.560 And what did they do?

00:25:04.700 What are the circumstances?

00:25:05.960 Once we know the circumstances, we'll know whether or not there was a federal crime or

00:25:09.320 some other kind of crime.

00:25:10.160 At the very least, as I said, if you're a member of the bar, this is grossly unethical

00:25:14.900 behavior, and they should be disbarred.

00:25:16.720 That's the starting point.

00:25:18.100 I'm just saying on the FBI, like maybe it's just that I don't trust the FBI.

00:25:21.420 Find a different cop, you're saying.

00:25:23.220 All right, I know you got to go because you got important work to do, but can I just ask you

00:25:25.640 quickly your thoughts on J.D.'s victory last night?

00:25:28.220 Huge victory.

00:25:29.020 Huge victory.

00:25:29.800 I mean, listen, I encouraged J.D. to get in this race to begin with.

00:25:33.460 I'm proud to have supported him, and I'm just proud of him.

00:25:35.580 This is a big deal for the future of the Republican Party.

00:25:38.500 J.D. represents, I think, what the party has to become, Megan.

00:25:42.740 We've got to be a party of working people, working class people from all ethnic backgrounds,

00:25:49.380 from all geographic backgrounds.

00:25:51.620 But we have got to be a party that speaks out again, as we were historically, by the

00:25:56.300 way, Megan.

00:25:56.760 This is historically in our DNA as Republicans.

00:25:59.160 We are the party of working people who believe in having working class jobs in this country,

00:26:05.040 not in China, not in Mexico or anywhere else, in this country, and also a coalition of families

00:26:10.640 and people of faith.

00:26:11.640 And J.D. really represents that.

00:26:13.740 And I think he spoke to that out on the campaign trail.

00:26:16.260 Now, listen, he's not done.

00:26:17.060 He's got to go run the general election now, so I don't want to jinx him.

00:26:19.620 He's got work to do, but I just am so happy for him, and I'm happy about what it represents.

00:26:25.220 The other guy, the Democrats, got a big war chest, but Ohio's been leaning red for a while

00:26:29.340 now, so you'd have to put your money on J.D. Vance.

00:26:32.040 It's exciting to see, just as a human story, to him, if you read Hillbilly Elegy, you know

00:26:37.260 how he grew up.

00:26:38.500 It remains my favorite interview I did while I was at NBC.

00:26:41.920 It's just such a pick yourself up by the bootstraps and try to make life happen despite so many

00:26:46.480 things being thrown at him story, so it can't help but cheer him on and to be thinking about

00:26:51.800 his family today.

00:26:52.620 His sister, Lindsey, so sweet.

00:26:54.300 Anyway, thanks for coming on, and thanks for your thoughts on all of it.

00:26:57.960 Thanks for having me, Megan.

00:26:59.960 Okay, so we're going to come right back with our pal Glenn Greenwald, who's got different

00:27:03.300 thoughts about the leaker.

00:27:04.260 Let's not forget this is a guy who won a Pulitzer Prize for his reporting based on leaked

00:27:08.560 documents.

00:27:09.620 So he's got a different view, which we want to hear.

00:27:14.360 Welcome back to The Megyn Kelly Show.

00:27:15.840 Joining me now, our friend Glenn Greenwald, Pulitzer Prize winning journalist and now on

00:27:20.860 Substack for your enjoyment.

00:27:23.180 Glenn, so much to go over with respect to this story, and we'll get to the leaker and

00:27:28.000 all that.

00:27:28.340 Now, I want to talk about your opinions on the actual freak out on the opinion by the

00:27:32.080 left as well, because I know you've got thoughts on that.

00:27:34.800 So, but let's just start with whether you think this is a crime.

00:27:37.840 You're a lawyer, I'm a lawyer.

00:27:39.700 I had Bill Barr on the show yesterday who said, I think this could be a crime.

00:27:42.660 He said, I'd want to pour over the obstruction statute more, more closely.

00:27:46.900 But he said, you know, my instincts say this is obstruction of justice.

00:27:49.860 And then Andy McCarthy, who I really respect, you know, I don't agree with everything he

00:27:53.560 writes, but I really respect his opinion.

00:27:55.540 He's like, absolutely, this is obstruction.

00:27:58.960 And this is, he says, I'll just give you what he says.

00:28:01.440 He says, it's a crime to embezzle government records or to convert them to one's own use.

00:28:05.700 The leaker, he says, has stolen a record and converted it to his or her own use for political

00:28:12.840 purposes.

00:28:13.480 That is a crime.

00:28:15.840 Deceptive acts that are intended to have and can have the effect of undermining government

00:28:19.640 processes are illegal.

00:28:21.500 It's a conspiracy to defraud as well, he says.

00:28:24.960 And the leak was intended to undermine Supreme Court opinions or the process for its opinions

00:28:30.620 and so on.

00:28:31.140 So he's he thinks it's it's a crime on multiple levels, not just obstruction.

00:28:35.520 What do you think?

00:28:36.620 That seems like a huge stretch to me.

00:28:39.000 They're both obviously very smart and well-qualified lawyers.

00:28:43.420 They're also both prosecutors and tend to see the criminal law in particular in a broader

00:28:49.700 way than perhaps others who say would be defense lawyers or well, Alan Dershowitz was on the

00:28:55.060 show after Barr and he said it's not a crime to your point.

00:28:58.640 Yeah.

00:28:58.940 And I would say I find it very, very difficult to see it as being one.

00:29:03.560 Obviously, the classic case when a leak is a crime is when someone who's inside the government

00:29:08.200 leaks classified information that is explicitly a crime.

00:29:11.960 I think a lot of times it's justifiable to do that, but it's nonetheless illegal under the

00:29:17.620 clear terms of the law.

00:29:19.540 I think you have to use a lot of penumbras and interpretive tricks to read the criminal

00:29:26.860 law to say that any time a government employee leaks any government record to the media for

00:29:32.900 whatever purposes, that becomes a crime.

00:29:34.980 Think about how much of an abuse that could lead to.

00:29:38.520 That would mean that most leaks on which we rely for transparency in our government, not

00:29:43.440 just leaks classified information, but almost any time a government employee leaks a draft

00:29:48.600 or a memo or anything that reveals wrongdoing or criminality or corruption or deceit on the

00:29:52.700 part of government officials, that would now become a crime.

00:29:56.100 I think it's a very dangerous interpretation.

00:29:58.840 Now, this brings me to the DOJ apparently has offered some guidance on when it thinks one

00:30:05.000 should go after a leaker.

00:30:06.560 Um, you know, the statutes are the statutes, but what its guidance says is quote, it's ill

00:30:12.160 advised to prosecute anyone who obtained or used the property primarily for the purpose

00:30:19.880 of disseminating it to the public.

00:30:22.840 This is when you're talking about what, what is theft of government property and when should

00:30:26.840 you go after them?

00:30:27.620 Uh, and they say the reason is to protect whistleblowers, people whose primary purpose is public

00:30:35.280 exposure.

00:30:36.520 So that's, they're trying to get to that.

00:30:38.340 Like if, if there's some person who wants to expose something bad, the government's doing,

00:30:42.600 they're not going to go prosecute that person just because they technically violated a theft

00:30:46.980 law.

00:30:47.880 But I'm not sure this person's going to fall within that policy.

00:30:52.700 How is this person a whistleblower?

00:30:55.260 Well, so as I understood, and I haven't read that memo.

00:30:58.700 So, but I bet having listened to what you just said, I don't think it used the word whistleblower,

00:31:03.520 at least in the past.

00:31:04.880 If you read me and talk about the motive, didn't it?

00:31:07.220 It does.

00:31:07.520 It has, it says like for an example, a whistleblower.

00:31:10.320 So it's, it is in there.

00:31:12.160 Um, I think they're thinking about that.

00:31:14.440 This is, this is the distinction I think they're trying to draw and I'll just use my experience

00:31:18.300 with the Snowden case.

00:31:19.600 Yes.

00:31:19.960 Obviously.

00:31:20.620 Can you just remind people about, remind people what?

00:31:22.920 Sure.

00:31:23.140 So in 2013, um, Edward Snowden was working inside the national security agency, actually

00:31:28.960 for a private contractor, uh, that had been contracted to work for the NSA.

00:31:33.220 And he heard James Clapper go before the Senate and falsely deny that the NSA was collecting

00:31:39.360 dossiers and records on millions of American citizens.

00:31:42.160 And he was holding in his hand, the information that proved that Clapper lied.

00:31:45.340 And even though those documents were classified, meaning it was a crime to disseminate them or

00:31:50.420 leak them.

00:31:50.940 He nonetheless, uh, called me and, uh, provided me with these documents along with my colleagues

00:31:56.040 so that we could alert the world to what the government was doing in terms of spying.

00:31:59.180 Now the, the, obviously there was a lot of controversy over what Snowden did.

00:32:04.300 A lot of people think he's a criminal or a traitor.

00:32:06.520 A lot of people think he's a hero and a whistleblower.

00:32:08.460 But the key distinction to me here was, you know, what the kind of classic spies, the cold

00:32:14.480 war spies used to do would be if you were an American working within a spy agency and you

00:32:21.580 wanted to harm the United States and say, help the Soviet union, you didn't go to a reporter

00:32:25.760 and ask them to publicize the information, you would pass it to an enemy government or

00:32:30.320 sell it to an enemy government.

00:32:32.380 That was always, I emphasize, not so does motive.

00:32:35.420 He could obviously have sold the documents and become very rich to the Iranians, the Russians

00:32:40.780 or, uh, the Chinese or private hacker groups or terrorist groups.

00:32:45.120 But instead he wanted to show it to the public.

00:32:47.580 He wanted it to disseminate it to the public because he thought it was important that the

00:32:50.680 public know what the government was doing.

00:32:52.240 I think this is the dichotomy of intent that memo is describing.

00:32:57.420 If you're somebody who works inside the government and you find a memo and you don't sell it for

00:33:02.640 your private use or for nefarious purposes, but you believe the public should see it to learn what

00:33:07.960 their government is doing about an important matter like Roe versus Wade and abortion.

00:33:11.660 I think they're saying that given that intent, that should not be prosecuted as a crime when

00:33:17.700 it's not classified information as this wasn't, if though that person were to sell it, you know,

00:33:23.260 to say a news outlet or to some political operatives, the motives then would be different.

00:33:29.040 And this, and I take all of what you said, and I actually agree with everything you said,

00:33:32.520 and you are the perfect person to discuss it with it because you've lived it.

00:33:35.540 I mean, Snowden was in such a different position than this leaker.

00:33:39.800 I mean, he really was a whistleblower and thought we were being lied to and thought this

00:33:45.180 controversial program needed to be exposed and we were being lied to.

00:33:48.260 There was no question that our leaders were lying under oath to our elected representatives.

00:33:52.620 This is nothing like that.

00:33:55.620 This is the Supreme Court working as exactly as it's supposed to work with the confidentiality

00:34:00.340 that it's always insisted upon and that this clerk, if that's who it was, agreed to protect.

00:34:05.440 And it was a decision that was coming out anyway.

00:34:08.400 There was no cover up.

00:34:09.620 There's no, everything's working the way it was supposed to be working.

00:34:12.720 This person just wanted to leak.

00:34:14.580 They were excited to paint themselves as my speculation as the heroine or hero of the left

00:34:21.400 who was going to give people an advanced peek at something they found controversial.

00:34:25.480 It's a possibility it was a conservative who was trying to

00:34:28.000 jar a wobbly moderate into staying on Team Alito.

00:34:32.620 I make room for that too.

00:34:33.860 Either way, it was somebody who was trying to manipulate the process.

00:34:38.780 Hence, the obstruction of justice claim is a little bit more attractive because you and

00:34:42.560 I were discussing theft of government property.

00:34:45.100 And that thing I read to you where they do mention whistleblower and if the purpose was

00:34:48.700 really just to expose to the public this document as opposed to keeping it for themselves

00:34:52.900 or whatever, they're saying we won't go after that.

00:34:55.380 So that was in the theft crime.

00:34:57.260 But when it comes to obstruction, Andy's point is this is literally the attempt to obstruct

00:35:03.760 justice.

00:35:05.240 You know, he says they don't call it justice justice for nothing.

00:35:08.240 Like this is the Supreme Court trying to tell us what the law of the land is.

00:35:12.240 And there's no reason for this person to have exposed this document other than to try to

00:35:16.340 change the outcome.

00:35:18.540 Right.

00:35:18.640 So I think there's validity in that.

00:35:20.520 I guess I would emphasize two points.

00:35:23.180 One is there's a big distinction in my mind and an important one between describing an act

00:35:30.520 as unethical or ill-advised or harmful and saying, let's call in the FBI because this was a major crime.

00:35:38.220 Those are two different things.

00:35:39.420 Lots of unethical acts are not crimes under the U.S.

00:35:42.700 code.

00:35:43.800 And so when I say I don't think it's a crime, it doesn't mean I support or endorse what the

00:35:51.020 person did.

00:35:51.780 The other thing is, I do think the fact that we don't know who the person was who leaked

00:35:56.420 and therefore obviously don't know the motives can only speculate makes the discussion even

00:36:01.400 more difficult.

00:36:02.040 But I agree with you that it's it's very hard for me to see how this person could be a whistleblower

00:36:08.100 exactly for the reason that you said.

00:36:10.160 We're going to find out what the ruling is in two months and the Supreme Court should be

00:36:13.860 allowed to follow its normal process.

00:36:15.700 And they did kind of subvert that by either trying to generate political pressure against

00:36:21.820 one of the justices in the majority to change their mind or conversely to lock them in by having

00:36:26.660 people know that if they do jump ship, they will have they were originally in the majority.

00:36:30.660 So I think either way, it's hard to see this person as a whistleblower.

00:36:34.140 They clearly seem intent on manipulating the process to their liking.

00:36:39.940 I just I'm going to have a very hard time calling that a crime because, you know, Megan,

00:36:43.960 from your work as a journalist that so often sources have very mixed motives, you know,

00:36:48.600 like the sources that leaked The Washington Post about Watergate weren't really that noble.

00:36:53.420 They were angry that they were passed over for a promotion and are angry that some person,

00:36:57.440 you know, was put into line in front of them and were trying to get vengeance.

00:37:01.180 And that's a lot of the motives often have mixed or impure motives.

00:37:05.200 Leakers do.

00:37:05.800 And I think it's very dangerous to expand when leaking becomes a crime, given how important

00:37:12.340 leaks are for us to know about a government that often hides behind secrecy.

00:37:17.260 Hmm.

00:37:18.060 No, these are all good points.

00:37:19.640 You know, I I the thing that gets me, Glenn, is this person endangered the lives of the

00:37:24.560 sitting justices?

00:37:25.660 It's unforgivable.

00:37:26.880 And there's no question that this person leaked this.

00:37:29.760 Tell me why that is.

00:37:30.620 Tell like why.

00:37:31.720 Because this endangered their lives in a way that the decision itself in two months would

00:37:35.940 it because they weren't prepared for it because because it just got sprung on them.

00:37:40.360 Because when when a decision like this is going to come down, you know, the justices layer

00:37:45.360 up in terms of their security and making sure that they're adequately protected.

00:37:48.980 That's why they have all the marshals and so on that Josh Hawley was just talking about

00:37:52.680 that, you know, they understand what the business they're in for this to be dropped at 845 on

00:37:58.100 a on a whatever night, Monday night, Sunday night unexpectedly by a political reporter.

00:38:03.240 That's they didn't have time.

00:38:05.140 They didn't have even if they had a moment's heads up like, hey, this is me from Politico.

00:38:10.340 I want to let you know I've got your opinion.

00:38:11.780 Any comment?

00:38:12.700 How long does that give them?

00:38:14.040 It's it's totally irresponsible.

00:38:16.300 And I do think that it actually does endanger in particular the conservative justices who are

00:38:21.620 joining the majority, but but potentially all of them.

00:38:24.660 Megan, do we doing?

00:38:25.700 Yeah, I mean, there's obviously a lot of, you know, passion on both sides.

00:38:29.960 I mean, doctors who perform abortions have been killed before by pro-life activists.

00:38:33.880 There's exactly there's a lot of passion on both sides.

00:38:36.200 Right.

00:38:36.480 So I think it's a danger to everyone on one way there.

00:38:40.540 Do we know for sure that Politico did not inform the court or seek comment from the court

00:38:45.900 prior to publishing?

00:38:47.400 I don't know either way.

00:38:48.160 I can't remember whether they said in their report we reached out for comment.

00:38:51.120 And I mean, it would be extraordinary for them not to reach out for comment.

00:38:54.040 Right.

00:38:54.560 But either way, I mean, that's not the kind of thing you do a day in advance.

00:38:59.880 I'm sure it was shortly before a publication and and everybody's left scrambling.

00:39:05.160 There's no question in my mind that he he or she, whoever the leaker is, endangered them.

00:39:08.620 And that that needs to be met.

00:39:11.060 That to me, that goes higher than disbarment.

00:39:12.880 Just the disclosure is disbarment.

00:39:15.100 And so that's the thing I think is most persuasive in the treated like a crime column.

00:39:18.420 But I'm not totally sold yet either.

00:39:19.960 I'd like to pour over the statutes more closely and look at precedents like who else has been

00:39:23.700 prosecuted and what what did they do?

00:39:26.160 Right.

00:39:26.560 And theoretically, you know, every time there's a leak that's important and that makes the

00:39:31.880 public informed about a matter they care about, theoretically, it could create the same

00:39:36.600 danger.

00:39:37.040 You know, if you expose that a particular official lied to the public about the Vietnam War, say,

00:39:43.360 the way the Pentagon papers did, it told the country you've been sending your sons to a

00:39:47.040 war that Pentagon officials are publicly saying we're going to win, but privately are acknowledging

00:39:53.720 they're never going to win.

00:39:54.620 At most, they can fight to a stalemate and, in fact, will probably lose this kind of deceit

00:39:58.060 that probably generates a lot of anger, severe anger, especially on the part of people who

00:40:02.180 lost their kids in a war that the government was lying about.

00:40:07.060 So, again, I'm just I'm just concerned that if you create theories for this one case, which

00:40:11.680 does seem pretty egregious, my concern is that the theory then becomes so broad that it starts

00:40:17.920 to have the potential to engulf any kind of leaker who can become criminalized, because

00:40:22.620 as we know, government officials hate leakers precisely because often they do play a valuable

00:40:27.920 role in shining a light on what the public should know.

00:40:30.140 I just feel like the combination, though, of like justice, obstruction of justice there,

00:40:36.640 it's like and the endangerment of justice and justices.

00:40:39.980 That's literally what's happened here.

00:40:41.500 And the nerve of it, Glenn, think about this.

00:40:43.960 This person not only cared not at all for the safety of these justices who gave him or

00:40:48.040 her, if it's a law clerk, the opportunity of a lifetime of a lifetime, but they have effectively

00:40:54.940 smeared all of their other law clerks and the justices and even the staff that work at the

00:41:01.300 U.S. Supreme Court because everyone's a suspect now.

00:41:03.800 There's some smarmy, little, disgusting, spineless, pathetic soul walking around the Supreme Court

00:41:09.720 who didn't have the balls to say it was it was I, you know, crack hour.

00:41:14.460 My executive producer goes, I feel like we're like one week away from the op ed.

00:41:18.000 I leaked the draft Dobbs decision and here's why I did it.

00:41:22.440 And he may be right, which is also gross.

00:41:24.800 But to let it linger right now and let the stank go all over everyone is equally gross.

00:41:30.960 No, you know, it's funny that you say that because one of the things I most respected

00:41:34.060 about Snowden from the beginning was it's customary when someone leaks classified information

00:41:39.580 that subjects them to a life in prison, they obviously want to hide what they did.

00:41:43.160 And from the beginning, he said, I'm not hiding in part because I don't feel like I've done

00:41:47.760 anything wrong.

00:41:48.360 I owe the public an explanation.

00:41:49.580 I want to come forward immediately and say, here's who I am and here's why I did it.

00:41:53.720 But he also was very worried that if he didn't do that, if he did hide, it was going to subject

00:41:58.000 his colleagues to all kinds of suspicion and intrusive investigations, having their lives

00:42:02.520 turned upside down, maybe someone being falsely accused.

00:42:05.540 And he assumed responsibility for what he did.

00:42:08.400 He actually wanted to do it in the very first story.

00:42:10.220 We persuaded him to let us wait a few days just so the attention stayed focused on the

00:42:14.420 revelations and not him.

00:42:15.880 But I always found that very noble for that reason.

00:42:18.560 And I think you're right.

00:42:19.320 In this case, you know, this person definitely put the entire institution in jeopardy.

00:42:24.700 Let me just quickly say, I think in part, this is part of this new ethos where people believe

00:42:29.740 that, you know, the Trump presidency, the Trump movement poses such an existential threat

00:42:36.080 to all things decent.

00:42:36.980 We've talked about this before, that norms no longer need to be observed, that everything

00:42:42.000 and anything a person does to fight against what they regard as a bad political event, maybe

00:42:47.960 such as, say, overturning Roe versus Wade, becomes justified because the cause and their

00:42:52.800 benevolence outweighs all other considerations.

00:42:55.480 And it seems very likely that that mentality was at play here.

00:42:59.140 You may have seen on Twitter at Yale Law School where several of these clerks, current clerks,

00:43:05.160 went.

00:43:05.880 There is graffiti on the wall there that reads, we are the law, not your effing court.

00:43:11.640 And that is truly the mindset of a lot of these young people today.

00:43:15.040 Like, we don't care.

00:43:16.060 Like, we'll tell you what the law is.

00:43:18.380 We'll, you know, violence.

00:43:20.080 Words are violence in the whole bit.

00:43:22.360 We'll see about that.

00:43:23.480 I think this person is, they're lucky if they don't wind up in prison, they're definitely

00:43:27.060 going to lose their law degree.

00:43:28.640 And then they're going to have to lament that as they take their MSNBC contributorship.

00:43:32.540 Yeah, I mean, again, I still, I mean, maybe I'm assigning more probability than you are

00:43:39.860 to the potential that it is a conservative trying to lock in a wobbly, you know, Brett

00:43:44.880 Kavanaugh or somebody.

00:43:47.860 But if I had to bet my money, it would be on a liberal trying to alert the public to something

00:43:51.640 they regarded as so hideous and awful that nothing was unjustifiable in the name of stopping

00:43:57.360 it.

00:43:57.700 That would be my bet.

00:43:58.600 All right, let's get to the total misunderstanding of democracy.

00:44:03.640 The majority supports Roe versus Wade.

00:44:08.120 They don't want to see it reversed.

00:44:10.780 Here's a sampling of that.

00:44:12.900 The majority of Americans do not want 69% of people across this country.

00:44:18.820 A majority of Americans do not want to see Roe v.

00:44:21.240 Wade overturned.

00:44:22.400 I've heard from nonstop from people who are very anxious about their future.

00:44:26.520 People who are scared and frustrated, people who, like the majority of Americans, want

00:44:31.460 to protect Roe.

00:44:32.640 75% of Americans believe that this decision should be made between a woman and her doctor.

00:44:40.080 75% of Americans.

00:44:41.480 Red states and blue states, old people and young people want Roe versus Wade to maintain

00:44:47.400 the law of the land.

00:44:49.860 We need to do that.

00:44:51.660 The majority wants it, Glenn.

00:44:53.720 The majority wants it.

00:44:54.680 I mean, first of all, Megan, the whole narrative collapses on itself.

00:44:58.180 If the overwhelming majorities of everybody, red state, blue state, old, young, are all

00:45:02.420 in favor of abortion, then why are they afraid of putting it back into the democratic process?

00:45:07.020 How can they simultaneously insist that everybody favors abortion and at the same time tell women

00:45:11.800 that this decision means they're all going to be back in the handmaid's tale?

00:45:15.020 It makes no sense.

00:45:16.140 It's a good point.

00:45:16.640 And the other point of it, of course, is the whole reason there's a Supreme Court and a

00:45:21.880 constitution is because sometimes what the majority wants is wrong and not just wrong,

00:45:26.940 but a violation of basic rights.

00:45:28.500 So some of the decisions that the Supreme Court has issued that are considered the most shameful,

00:45:33.680 like Pussy versus Ferguson or approving FDR's internment of Japanese American citizens were

00:45:39.840 very popular at the time.

00:45:41.260 But the Supreme Court is expected to be the bulwark against majoritarian tyranny.

00:45:46.560 That's the reason Supreme Court justices have life tenure.

00:45:49.760 So they're immunized from political pressure.

00:45:52.140 They don't they're not supposed to worry about polls because they are expected to uphold

00:45:56.420 minority rights and minority views against majority will.

00:46:01.240 And so the people support it lie.

00:46:05.500 That doesn't work with the Supreme Court, even if it's true, even if you have huge numbers

00:46:09.940 supporting it, it doesn't matter.

00:46:11.380 It's not the Supreme Court's job.

00:46:13.080 Yeah.

00:46:13.220 I mean, if you were to put if you were to ask people, for example, do you think in the

00:46:17.940 1950s that communists should have the right to politically organize and to speak?

00:46:22.240 Many people would say, no, I think communists are such a danger and a threat that they don't

00:46:25.600 have free speech rights.

00:46:26.580 And yet the Supreme Court overruled the minority, the majority will for people on the left for

00:46:31.280 a long time.

00:46:31.820 Those decisions were considered heroic, protecting minority rights.

00:46:34.840 Or if you were to say, should we shut down Fred Phelps's church because he holds signs

00:46:39.080 saying God hates fags?

00:46:40.800 People would say like, yeah, let's shut down that religion.

00:46:42.840 It's nothing but hateful.

00:46:43.840 And yet the Supreme Court said, we don't care if you all hate that religion.

00:46:47.020 He has the right, like everybody else, to the free exercise of religion.

00:46:49.780 That's the role of the court.

00:46:51.340 It's the reason there's a Bill of Rights.

00:46:52.820 The only point of the Bill of Rights is to say, if these laws get passed with majority

00:46:58.160 support, they're still invalid because they violate basic fundamental rights, which the

00:47:03.300 majority doesn't have the right to do.

00:47:04.820 You don't have the right to put terrible criminals in prison without due process and subject them

00:47:08.940 to cruel and unusual punishment.

00:47:10.100 Even if you think their crimes are uniquely atrocious, because the Constitution is there

00:47:14.640 to protect people, people's rights from being infringed that way.

00:47:17.880 That's the whole point of why we're a Republican, not a democracy.

00:47:21.740 That's exactly it.

00:47:22.960 That's exactly it.

00:47:24.100 That last line says everything.

00:47:26.180 Glenn Greenwald, always a pleasure.

00:47:27.820 Thank you so much.

00:47:29.320 Good to be with you, Megan.

00:47:30.160 Coming up, Jay Sekulow, a man who was on the inside of this whole case.

00:47:35.260 Don't miss him.

00:47:39.140 Welcome back to The Megyn Kelly Show.

00:47:40.760 We are excited to have an attorney with a connection to the Supreme Court story and how

00:47:44.680 in the news this week.

00:47:46.620 Jay Sekulow is chief counsel for the American Center for Law and Justice.

00:47:50.880 Two cases he argued before this U.S. Supreme Court were cited in Justice Alito's draft opinion.

00:47:59.240 He's been before the Supreme Court more than a dozen times as counsel.

00:48:02.860 Impressive lawyer, impressive guy.

00:48:04.640 Jay, great to have you.

00:48:05.700 How are you?

00:48:06.560 Hey, thanks for having me, Megan.

00:48:07.540 I appreciate it.

00:48:08.520 Must have been quite a thing to read.

00:48:10.800 First of all, we'll get to like the reaction to seeing that it was leaked.

00:48:12.840 But it must have been quite a thing to see your cases.

00:48:15.880 I mean, you've been advocating against abortion as a constitutional right for a long,

00:48:19.380 long time to see your cases, your arguments cited in the decision overturning Roe.

00:48:26.920 You know, it was interesting because I, you know, with all the news with the leak and whether

00:48:30.500 it was real or not, I was very, I mean, I think you and I talked or text, I was very concerned

00:48:36.040 about saying anything about this opinion because it wasn't verified or authenticated that it

00:48:40.500 in fact was the draft opinion, which we could have changed many times since then.

00:48:44.460 So at about 1130 at night, I said, well, I'm just going to read it.

00:48:46.960 And, um, it's, it's 68 pages plus about a 30 page appendix.

00:48:51.400 So I re I'm reading through the pages and as I get to, I'm right, I think it was page

00:48:54.440 17 or 18.

00:48:55.220 And they're talking about the underlying right.

00:48:57.240 And the argument being that the pro abortion groups have been arguing that opposition to

00:49:01.840 abortion constitutes invidious discrimination against women.

00:49:05.600 Well, I argued a case, I mean, a long time ago, 1992, uh, case that I had argued twice.

00:49:11.360 Uh, and actually John Roberts was my co-counsel and he represented the United States.

00:49:15.200 We're on the same side of the case.

00:49:17.360 And, um, we won that case.

00:49:19.780 And it, the court specifically said that, uh, men and women of good conscience are on

00:49:24.520 both sides of the abortion debate.

00:49:25.780 And that opposition to abortion does not constitute invidious discrimination against women as a

00:49:31.200 class.

00:49:31.760 And then I'm reading the opinion and there it is.

00:49:34.480 Um, so that was, it was, yes, it was, I mean, who knows if it's still in there.

00:49:38.040 That's the court.

00:49:38.580 You hope it still is.

00:49:39.580 I don't know if that's the case, but it was nice that it was there.

00:49:43.340 That was a, that was a positive, uh, and then on another case, it gets actually a lost

00:49:47.920 at the Supreme court.

00:49:49.080 Nobody likes to talk about cases that didn't win, but we don't win this case with free speech

00:49:51.920 case.

00:49:52.500 And later in the opinion, uh, justice Salido talks about that, the effect that the abortion,

00:49:56.820 um, decisions have had on other areas of the law.

00:50:00.900 And it's how it's distorted other areas of the law.

00:50:03.380 And he says, like in the first amendment, see Hill versus Colorado.

00:50:07.040 And that was a free speech case.

00:50:08.200 I had where a five, four majority ruled against my client, but it wasn't distorted.

00:50:12.660 And since then it's kind of been tacitly overturned over the years, but yeah, it was,

00:50:16.880 that part was great.

00:50:17.780 I I'm, you know, we'll get into the leak aspect, which is horrifying to me that this has happened.

00:50:22.180 But, uh, no, it was, it was an interesting read and it's a well-reasoned opinion.

00:50:26.360 And of course, you know, what's going on right now outside that court.

00:50:29.160 Yeah.

00:50:29.720 Well, it's, I mean, there's so much to go on, to go over with and you're, you know, you

00:50:35.160 actually know what you're talking about.

00:50:36.000 You've actually been living this case and litigating this case and filed, as I understand

00:50:39.380 it, three amicus briefs, meaning friends of the court, uh, briefs in this case.

00:50:43.420 And so, you know, unlike most of these people, you actually understand what's at issue, what

00:50:47.360 the arguments were, what the meaning of this draft opinion really is.

00:50:51.120 Um, so let's kick it off.

00:50:52.500 We'll just get the leaker out of the way, but it's an important piece of the story.

00:50:55.980 Well, you know, one of the things we're not discussing, and I realize it's not the most

00:50:58.820 important piece, but I think about guys like you devoted your whole life to fighting

00:51:03.320 for, to, to get rid of this.

00:51:06.080 It really is a made up right in the constitution.

00:51:07.800 It just is.

00:51:08.340 Even if you're pro-choice, if you're honest, you, you admit it's not in there.

00:51:11.700 They made it up and run.

00:51:12.420 And Lawrence said it was not grounded in the, in the, in the privacy claims that, uh,

00:51:16.780 Justice Blackmun found.

00:51:18.100 Exactly.

00:51:18.560 And he's, he's as far left as they come.

00:51:20.620 And he's cited in the U.S.

00:51:21.740 Supreme Court opinion by Alito, the draft as well.

00:51:23.980 But anyway, kind of took away the, you know, the moment, at least for now of like celebration,

00:51:29.700 you know, it's like, you could still have the football pulled away from you by little

00:51:34.260 Lucy, you know, you could still be Charlie Brown.

00:51:36.200 And so it's, it's kind of a confusing time, I'm sure for people like you.

00:51:40.480 Well, you know, it's a decision is not a decision until the, the ink is on the paper and it's

00:51:45.600 distributed and announced from the bench, uh, or released if the court's not in session

00:51:50.060 released by the, uh, clerk of the court.

00:51:52.300 So I don't, uh, look, I've had plenty of five, four cases where I know after the fact, you

00:51:57.220 learn that justice is switched at the last minute, sometimes my advantage, sometimes

00:52:01.320 not.

00:52:01.780 So it happens.

00:52:02.600 So I, I don't think, uh, you can celebrate this, uh, draft decision, draft opinion of

00:52:10.980 the court.

00:52:11.460 I was very skeptical the first day because I've, I mean, in our lifetime, and then I researched

00:52:15.720 it, this has never happened where an opinion has been leaked to the court leak, meaning someone

00:52:21.100 stole this inside the court and gave it to a reporter and it says draft.

00:52:28.720 Uh, so that was February.

00:52:30.260 This is may, I mean, three months, a lot of things can change.

00:52:33.560 Although in the political report, it says that, I guess it said that the five justices

00:52:38.420 are still lined up that way.

00:52:39.520 That's not particularly shocking based on the oral argument, but the fact that it was,

00:52:44.560 this has been done this way has a, I think a very sinister motivation on, on three different

00:52:49.940 levels, actually.

00:52:50.540 What do you think it is?

00:52:51.920 I think number one, it's to, uh, put pressure on justices that maybe aren't on the fence.

00:52:56.480 For instance, it it's, it's striking that there's no mention in the, we don't have anything

00:53:01.720 indicating, uh, where the chief justice is, chief justice Roberts.

00:53:05.960 Uh, some have said, well, he must be with the dissent.

00:53:08.140 I don't tend to take that view.

00:53:09.620 I mean, I don't know only, only his office knows, or maybe other, other members of the

00:53:13.860 court now know, but I tend to think he's going to probably find that the law in Mississippi

00:53:17.760 was constitutional, but you didn't have to overturn Roe to get there.

00:53:21.100 I could be wrong on that.

00:53:22.440 So you don't know where he is on this.

00:53:24.200 So that's, that's kind of the number one thing.

00:53:25.700 So it's a pressure point.

00:53:27.280 Can they put pressure on justices that are either on the fence or indicated when they

00:53:32.320 voted, they're going one way.

00:53:33.920 Uh, but now maybe put this kind of pressure on them, show these protests, which immediately

00:53:37.540 ginned up.

00:53:38.280 I mean, within hours of this happening, the barricades go up, the protesters come out and I

00:53:43.100 understand the protesters are still out as you and I are talking about this.

00:53:46.740 So that's number one, put pressure on the justices.

00:53:49.560 Number two, motivate the Congress to try to federalize, uh, statutorily a constitutional

00:53:55.980 right to abortion, which may, or not a constitutional right, a statutory right to abortion, which may

00:54:00.700 mean, uh, getting rid of the filibuster.

00:54:03.020 They would basically take the, what's called the nuclear option and end the legislative filibuster

00:54:07.520 to do it.

00:54:08.140 You have to have 60 votes to get legislation to the floor.

00:54:10.760 There's not 60 votes on this, but would they, would they get rid of the filibuster in order

00:54:15.840 to do this?

00:54:16.700 And if you listen to Chuck Schumer and if you listen to Bernie Sanders, uh, and if you

00:54:20.900 listen to the, uh, Nancy Pelosi, it sounds like they might well do that.

00:54:25.140 So I think the, whoever did this, the, the saboteur who did this is thinking also, well,

00:54:32.780 yeah, I can get legislation through.

00:54:34.280 They think they're a hero.

00:54:35.140 I'm sure.

00:54:35.660 And number three is going to be a, you know, attempt to say, okay.

00:54:39.760 And it's already being discussed, of course, again, we need to stack the court.

00:54:43.640 In other words, pack the court to get justices more aligned with president Biden's judicial

00:54:48.420 philosophy or a left-leaning judicial philosophy, even though justice Ginsburg, the late justice

00:54:52.740 Ginsburg said nine was a good number.

00:54:54.660 But I think, look, I think the person that did this wanted all three of these things to

00:54:59.960 happen.

00:55:00.340 And in a sense they are, we don't know the extent that the justice, I think it's going

00:55:03.380 to backfire.

00:55:04.060 I think it's going to double down on the justices, but, uh, I, I think what's happened

00:55:08.500 here is her rent.

00:55:09.780 Megan, I think it's an institutional insurrection inside the institution itself.

00:55:16.460 How so?

00:55:17.000 Why, why do you use that word?

00:55:19.240 Because they, the, the, this was the one bastion of, of branch of government that operated with

00:55:25.440 rules and regulations that everybody abided by.

00:55:28.160 Whether you were on one side of the case or another, you still called the lawyer on the

00:55:33.220 other side, my friend.

00:55:34.960 I mean, this is just, there's a lot of tradition that goes with the Supreme court.

00:55:37.940 You start your arguments with, with Mr. Chief Justice and may it please the court.

00:55:42.380 I mean, this is, there's a lot of tradition here.

00:55:44.320 One of those traditions is, and the chief justices over the years have said this to the clerks,

00:55:48.600 don't give out information.

00:55:50.820 This is confidential.

00:55:51.880 You are an officer of the court.

00:55:55.140 You and I are officers of the court as lawyers.

00:55:57.460 Right.

00:55:58.060 That's right.

00:55:58.460 So we can't do this.

00:55:59.820 So this is someone inside is trying to cause basically a delegitimization of the Supreme

00:56:06.120 court of the United States.

00:56:07.240 And apparently inside the, it has to be inside.

00:56:09.880 There's no one outside the court that would have this, but I can imagine.

00:56:12.240 So, you know, I'm sure by now they probably know who it is.

00:56:15.440 I, they're 100% catching the person.

00:56:17.580 I have zero doubt.

00:56:18.760 I was saying yesterday to Bill Barr when he's on the show.

00:56:21.260 If you told me this person, like they, that they chose the Supreme court clerks from like,

00:56:25.020 you know, the Bronx or Yorktown Heights, I'd be like, we're dead.

00:56:28.420 Those people know how to street fight.

00:56:29.640 They can cover their tracks.

00:56:30.540 I used to date a guy.

00:56:32.120 No way would he get caught.

00:56:33.680 These ivory tower, little Yale graduates, they're going down.

00:56:37.640 They may know.

00:56:38.680 As a guy born in Brooklyn, I will say, I'll take that as a kind of compliment, but totally

00:56:42.700 that my dad was from Brooklyn.

00:56:44.220 That's the old Brooklyn though, Jay, the current Brooklyn.

00:56:46.240 No, they'd get caught in two minutes.

00:56:47.920 No, I get, I know it's a whole different ballgame, but here's the thing.

00:56:51.540 Just think about what has happened here, that they did this.

00:56:54.620 And the left is not saying anything about the horrendous nature of what took place here.

00:56:59.600 They're talking about this purported opinion, which may not even be the final opinion.

00:57:03.140 Yeah.

00:57:03.540 But this is what's happened.

00:57:04.780 Yeah.

00:57:05.560 So, um, I do wonder whether you see a difference between, I just had a long debate with Glenn

00:57:10.880 Greenwald on whether, is this just a whistleblower?

00:57:14.940 Is this a, somebody who is, you know, shining a light on a very powerful institution and,

00:57:22.240 you know, it's not nice when somebody leaks, but it's really not criminal.

00:57:26.580 And maybe she's like a, or he is like a Snowden type, or is this in its own category?

00:57:33.620 Well, I think it's in its own category because this person apparently, um, is an officer of

00:57:39.540 the court if they're a lawyer or a law clerk.

00:57:41.260 So they had to follow, they took an oath to defend the constitution of the United States,

00:57:46.340 to follow the rules and regulations of the institution.

00:57:48.680 And as an officer of the court there to respect the court's institutions, rules, regulations,

00:57:53.220 and traditions.

00:57:54.620 And this person did not.

00:57:56.100 And you can call them a whistleblower if you're being nice or a saboteur, uh, if you're being

00:58:00.380 honest.

00:58:00.740 And I think they're a saboteur.

00:58:02.280 Um, if this came from whatever side it came from, it's, this is totally wrong.

00:58:07.000 First of all, as you know, it's a deliberative process that goes on inside the court.

00:58:11.120 So they voted after the oral argument in December, this opinion then evidently gets signed by

00:58:17.540 whoever the presiding, the highest ranking, most senior justice.

00:58:21.020 So if it was in, if, if, if John Roberts was not writing the opinion, it would have gone

00:58:25.360 to Clarence Thomas.

00:58:26.040 He decides he, he then gives it to justice Alito, justice, justice lead over about a two

00:58:30.820 month period, writes a first draft that is circulated among the chambers.

00:58:35.480 And then come May, six weeks before the court, seven weeks before the court probably ends

00:58:41.880 its term, somebody leaks the draft of the opinion and states at the same time that, by the way,

00:58:48.240 that five, four, five, that five justices that are in, that Alito's working with to overturn

00:58:54.580 Roe are still with him on this as of this week, as of two days ago when this came out.

00:58:59.900 So look, I don't think you can, a whistleblower would be way too kind in my view on what happened

00:59:06.260 here.

00:59:06.440 I would be aggravated on this.

00:59:08.280 Listen, according to this opinion, my side won the case.

00:59:12.800 We should be rejoicing, right?

00:59:14.480 Of course, I know number one, things change.

00:59:16.260 Number two, that this is an early opinion.

00:59:18.980 So who knows what it's going to look like at the end.

00:59:20.620 And number three, you don't do this.

00:59:23.620 Well, and number four, let's not forget, you know, John Roberts infamously or famously,

00:59:28.520 depending on your point of view, switched on Obamacare.

00:59:31.380 The reports were that he was getting ready to strike it down altogether as the other

00:59:36.300 conservatives on the court were ready to do, saying there's no Commerce Clause power to

00:59:39.480 pass this law.

00:59:40.520 The law fails.

00:59:41.700 And then at the last minute, the reports are that John Roberts decided, OK, I'll go along

00:59:45.540 with that.

00:59:46.020 But but there's the taxing power and they have the right under the taxing power.

00:59:51.100 And I remember I was reporting live for Fox News the day this happened.

00:59:54.120 I was on the set and everybody was like, no, no power under the Congress under the Commerce

00:59:58.060 Clause.

00:59:58.280 No power, no power.

00:59:59.440 They're throwing out Obamacare.

01:00:00.600 And, you know, from years of doing what we do, I kept reading and alive on the air, I

01:00:06.460 said, hold on.

01:00:08.940 There's another thing here.

01:00:10.380 There's another piece of the opinion where they're saying Justice Chief Justice Roberts

01:00:14.140 has saved it because he says they can do it under the taxing power.

01:00:16.440 So he did switch.

01:00:18.240 And according to the reports, he switched at the last minute.

01:00:20.440 And because he's an institutionalist and he wants to uphold the Supreme Court, is not doing

01:00:23.740 anything radical to change the will of the people.

01:00:25.720 So who knows?

01:00:27.380 They do switch and they switch at the last minute.

01:00:29.960 And the reasons that are unpredictable.

01:00:32.100 I mean, I had it happen.

01:00:33.360 We know it after the fact, because Justice Blackmun's papers later came out and I had

01:00:37.100 a case where Justice Brennan was writing the majority opinion on a free speech case in

01:00:41.240 my favor.

01:00:41.700 And you looked at the who had opinions left that term.

01:00:47.280 Everybody thought it was Brennan.

01:00:49.340 And apparently it was Justice Brennan was writing the majority.

01:00:53.060 And then it looks like Sandra Day O'Connor switched at the end.

01:00:55.740 I mean, like a week before it came out and my majority opinion became a dissent.

01:01:01.000 It's so I mean, yes, it does happen.

01:01:02.900 That's why you can't.

01:01:04.220 I mean, I think the celebration factor on this should be really muted right now.

01:01:08.440 Yeah, it's a very well drafted opinion.

01:01:11.820 It's very Alito like in its tone.

01:01:14.500 Clear.

01:01:15.040 It's very direct.

01:01:16.320 It's clear, concise and thorough.

01:01:18.040 Covers every area.

01:01:19.200 It gets rid of some of these arguments about how this is going to affect other rights and

01:01:22.480 clearly says it does not because this is a unique situation where there's another life

01:01:27.240 involved.

01:01:28.180 These other cases, all the social cases they talk about, the main issues, they don't they

01:01:33.320 don't have the same impact.

01:01:34.700 So I think that, you know, again, it's it's what has happened here.

01:01:38.820 Now, it's also a political point.

01:01:41.380 And that is, you know, if you're a Democratic consultant right now, you're thinking we got

01:01:45.960 a really tough midterm coming up.

01:01:47.340 I mean, really bleak inflation war in Eastern Europe.

01:01:51.560 I mean, unrest.

01:01:53.180 But now they've got a potential abortion overturning of Roe and they're going to run on that and

01:01:59.320 they're going to try to galvanize their base.

01:02:00.900 It also galvanizes the Republican base, too.

01:02:03.120 So, again, we're not going to know until we know.

01:02:06.080 I would hope and I know this is a difficult situation for the court.

01:02:09.560 I mean, I can't even imagine what's going on internally right now.

01:02:12.360 But I would hope that what they would do, and including the judges that are in dissent,

01:02:16.760 if they still are in dissent, would be to get this opinion out.

01:02:19.840 The country doesn't need to be stirring this up for eight weeks.

01:02:24.000 So if they can get that opinion out, it's been it was argued December, early December,

01:02:28.300 December 1st, it's May.

01:02:31.260 Get the opinion out.

01:02:32.360 You don't have to wait till the end of June.

01:02:34.660 You could get if it's ready, get it out, get the opinion out.

01:02:37.700 And this way it'll be the news it'll be.

01:02:40.180 And then hopefully settles down and people will react, whether at the ballot box or any

01:02:44.040 way they want.

01:02:44.820 Well, the timing of it is curious because, you know, you point out that the opinion that's

01:02:49.300 been leaked.

01:02:49.740 The draft was dated February.

01:02:51.380 They would have had their vote in December.

01:02:54.140 Now here we are, May, and the person finally leaks it.

01:02:56.980 So why now?

01:02:57.960 I mean, given your years of experience litigating these cases, how does now make sense?

01:03:04.040 Like if we had a midterm coming up at the end of May before we expected this Supreme

01:03:10.840 Court decision to come out, which would typically be in June, then I'd kind of get it, right?

01:03:16.340 Like this person wants the voters to know this before that.

01:03:19.780 But like, what's the difference between May 1st and June 1st?

01:03:23.880 Like, I don't totally get it.

01:03:26.300 Megan, Congress is still in session.

01:03:28.520 We know they leave for their summer recess in, what, August.

01:03:31.340 Things slow down drastically, as you know, in June.

01:03:34.880 So they're going to try.

01:03:36.460 They're talking about getting legislation on the books next week.

01:03:39.540 So the desired effect of the saboteur here could take place next week.

01:03:45.060 Yeah.

01:03:45.220 But is the saboteur an idiot?

01:03:46.540 Because like you don't get to be a Supreme Court clerk by being an idiot.

01:03:49.440 Because, I mean, literally today, Jen Psaki said on Air Force One, we don't have the votes

01:03:54.460 to codify Roe at the federal level, even without the filibuster that came.

01:03:59.300 She said, we'd love to do it.

01:04:00.280 Believe me, we'd love to.

01:04:01.620 I don't know if she's right on that.

01:04:03.640 I mean, Murkowski and Collins have introduced legislation that would have codified Roe.

01:04:08.420 It did not pass last time.

01:04:10.060 But again, there's been changes to it now.

01:04:13.440 I wouldn't rest so sure on that.

01:04:15.440 But I think that the person that did this, look, the desired result's already happening.

01:04:20.580 You and I are talking about this on your large broadcast.

01:04:23.880 It's being discussed almost wall to wall.

01:04:26.620 It's almost replaced the war in Eastern Europe, as the lead news story probably has.

01:04:31.520 It's drowning out everything else, and understandably.

01:04:35.540 And so the person that he or she that did this, they may be really smart.

01:04:40.900 They may be a real ideologue, obviously.

01:04:44.640 But you know what they did?

01:04:46.320 Besides putting their entire legal career, if it's a law clerk, in jeopardy,

01:04:49.580 because I would say they should be disbarred wherever they're barred.

01:04:52.780 Yep, they have to be.

01:04:54.860 But look what it's done to the country.

01:04:57.140 And now look what it's done to the institution of the Supreme Court.

01:04:59.860 So if you want to cause kerfuffle, if you want to cause unrest,

01:05:05.200 if you want to cause a questioning of the institution,

01:05:08.760 they've been very effective.

01:05:10.500 Burn it down.

01:05:11.240 That's what they say.

01:05:11.780 These young kids today, they say, burn it all down.

01:05:14.240 And these far leftists say it.

01:05:15.160 You know, these law clerks, you know, they're 23, 25 years old.

01:05:18.740 Yeah, exactly right.

01:05:19.620 So, I mean, yeah, that's the tragedy of all this.

01:05:22.200 So when you say, and also, it would make sense to release it now

01:05:24.920 if you do want to exert pressure on one of those justices.

01:05:27.480 It's like, okay, I thought, I hoped maybe they would change

01:05:30.320 between February and May.

01:05:32.000 Now, here we go.

01:05:33.160 Decisions are getting finalized.

01:05:35.020 You know, at this point, you've got the dissenters.

01:05:36.420 Yeah, I think that's probably a lot to do with it.

01:05:37.740 Yeah, you got the dissenters writing their draft saying that we dissent,

01:05:40.440 and this is why.

01:05:41.020 And so it's getting close to game time, and nothing's changed,

01:05:45.080 and the person could be freaking out that nothing's changed.

01:05:47.960 Of course, it's all speculation.

01:05:49.060 That person should be freaking out that their law license,

01:05:51.240 if they're a law clerk, is now gone.

01:05:52.880 It's done.

01:05:53.200 It's in jeopardy.

01:05:53.940 But you know what?

01:05:54.480 They may not care, because the new left, the new ideologue,

01:05:59.360 doesn't look at the consequences,

01:06:01.040 because they think they'll be idolized as a hero

01:06:02.880 for leaking this information.

01:06:05.260 And they might be for 10 minutes or 10 weeks,

01:06:08.220 but they're not going to be three years from now.

01:06:09.620 Nobody's going to know about them.

01:06:10.820 And that's the thing.

01:06:11.740 They've given up their entire career.

01:06:13.220 That's part of the stupidity.

01:06:14.480 And back to the reason of why.

01:06:16.040 If they manage to sway somebody,

01:06:19.320 if, you know, Kavanaugh jumps ship

01:06:21.800 and suddenly is a dissenter,

01:06:23.600 and it goes the other way,

01:06:25.060 then yes, then the person's going to run

01:06:27.100 to the microphones and say,

01:06:28.720 I was the one.

01:06:30.640 But she'll already have been caught, he or she.

01:06:33.600 But if nobody switches,

01:06:35.400 and I believe no one's going to switch.

01:06:37.140 I know, you know, you don't want to really opine on it

01:06:38.840 because you got a case before them.

01:06:39.820 This is your case.

01:06:40.320 But I will say,

01:06:42.200 I doubt any of these justices will switch.

01:06:44.040 I believe all five of these are ideologically committed

01:06:46.260 to reversing Roe,

01:06:47.620 which most conservatives

01:06:48.640 or people who are of the Federalist Society

01:06:50.240 think was an absolutely absurd decision.

01:06:52.440 It's not even, I hate abortion.

01:06:54.420 It's, this is an abomination of a peace.

01:06:56.480 We made up a constitutional right

01:06:57.860 that doesn't exist.

01:06:58.940 So I don't think they're going to be scared

01:07:00.820 by the Georgetown cocktail party

01:07:02.800 out of this one.

01:07:03.840 I think this one is too important.

01:07:06.740 So then what does she get?

01:07:08.200 Or what does he get?

01:07:09.160 Like, they get nothing.

01:07:10.120 You leaked it.

01:07:11.260 So we got like an advanced peak

01:07:13.120 when you lift up the skirt a little.

01:07:15.420 Then that's it.

01:07:16.280 Nothing changed.

01:07:18.300 No, and, you know,

01:07:19.740 but I'm not sure they're thinking

01:07:20.740 about the consequences of this.

01:07:22.200 I think this was an act of,

01:07:24.140 in one sense,

01:07:24.660 it had to be an act of desperation.

01:07:26.480 I think you hit something

01:07:27.200 very important here, Megan,

01:07:28.220 that not a lot of people

01:07:28.900 are talking about.

01:07:29.760 Probably what has happened,

01:07:30.720 this is,

01:07:31.400 we know this individual

01:07:32.260 has probably had this,

01:07:33.220 you know, we don't know this,

01:07:33.920 but I suspect this individual

01:07:34.980 has had the draft opinion

01:07:36.880 for a while.

01:07:38.320 And why in May?

01:07:39.800 Well, because now we are getting

01:07:41.060 near the end of the term

01:07:41.840 of the Supreme Court,

01:07:42.520 like you said.

01:07:43.440 And the dissenters

01:07:44.440 are probably writing,

01:07:45.400 probably circulating

01:07:46.240 their dissents right now.

01:07:47.380 I'm sure that's going on

01:07:48.500 within the chambers.

01:07:49.960 And this act of desperation

01:07:51.900 is I'm running out of time.

01:07:53.840 If there's any chance

01:07:54.900 of swaying a justice

01:07:55.820 or if there's any chance

01:07:56.700 of getting legislation

01:07:57.640 or if we're really going to talk

01:07:58.900 about adding justices

01:07:59.780 to the court,

01:08:00.380 this is going to be the moment

01:08:01.540 because it's going to be out

01:08:03.100 and then people go for the summer

01:08:04.120 and they're gone.

01:08:05.360 So, but again,

01:08:06.240 I mean, to put your career

01:08:07.680 at jeopardy

01:08:09.180 over this,

01:08:11.080 you're right.

01:08:11.380 If it is in fact a clerk

01:08:12.540 of the Supreme Court,

01:08:13.340 we don't know that yet.

01:08:14.380 But if it's a clerk

01:08:15.300 of the Supreme Court

01:08:15.940 of the United States,

01:08:17.000 first of all,

01:08:17.400 think about what that does

01:08:18.320 to the justices involved

01:08:19.820 and their colleagues,

01:08:21.920 the other justices,

01:08:22.780 even the ones

01:08:23.280 that they disagree with,

01:08:24.600 they generally have a very,

01:08:26.040 as you know,

01:08:26.560 a cordial relationship

01:08:27.540 with each other.

01:08:28.280 Yes.

01:08:28.680 And this has got to have

01:08:29.760 put a tremendous strain

01:08:31.220 on the institution.

01:08:32.300 And that is not healthy

01:08:33.480 for a constitutional republic

01:08:34.800 to have the judiciary

01:08:35.900 at the highest level

01:08:37.440 this dysfunctional

01:08:39.260 at this point.

01:08:39.940 Yeah, they've got

01:08:40.420 some very big cases

01:08:41.660 yet to decide.

01:08:42.960 Oh, yeah.

01:08:43.360 All the big cases

01:08:43.740 come out in June.

01:08:44.480 They don't need this distraction

01:08:45.940 just as a minor point.

01:08:47.300 That's why I think

01:08:47.920 they've got to get the opinion.

01:08:48.980 If it's ready,

01:08:49.660 get it out.

01:08:50.520 Get it over.

01:08:50.980 What about, you know,

01:08:51.980 you mentioned,

01:08:52.520 so forgive me

01:08:52.980 because you literally said,

01:08:54.020 I have no idea

01:08:54.920 what's going on

01:08:55.520 internally there right now,

01:08:56.600 but I'm going to ask you

01:08:57.500 to speculate anyway.

01:08:58.880 I can't imagine

01:08:59.700 they're all so distinguished,

01:09:02.200 right?

01:09:02.380 They don't live

01:09:03.060 the same general kind of life

01:09:04.580 the rest of us do,

01:09:05.740 but they're human beings.

01:09:07.900 They're of our world.

01:09:10.180 And so I do wonder,

01:09:11.680 like,

01:09:12.400 would you think

01:09:13.740 this is a grizzled,

01:09:16.220 tough,

01:09:17.540 you know,

01:09:18.080 we're not going to be cowed

01:09:19.260 out of our opinions

01:09:19.980 kind of group right now?

01:09:21.100 Or do you think

01:09:21.620 there's some,

01:09:22.240 you know,

01:09:23.540 fingernail biting,

01:09:25.120 like,

01:09:25.380 oh my God,

01:09:26.200 you know,

01:09:26.400 what do you,

01:09:26.700 how do you,

01:09:27.300 what do you think

01:09:28.040 is happening internally?

01:09:29.300 Well,

01:09:29.440 I know,

01:09:29.980 I know you do too.

01:09:30.820 I know a number

01:09:31.320 of these justices

01:09:32.100 and I,

01:09:33.260 and because of the Supreme

01:09:33.920 Court bars,

01:09:34.500 not that large.

01:09:35.500 And,

01:09:35.880 and so,

01:09:37.500 you know,

01:09:37.840 you know,

01:09:38.200 they're human beings though.

01:09:39.920 So I think number one

01:09:40.740 on the first level

01:09:41.400 is this is a tremendous

01:09:42.380 betrayal of trust.

01:09:43.580 And I think that's both

01:09:44.740 within the,

01:09:45.320 if it is back

01:09:46.020 within the chamber,

01:09:46.880 within one of the chambers,

01:09:47.920 one of the justices chambers,

01:09:49.760 there is,

01:09:50.820 I mean,

01:09:51.160 I'm sure that each justice

01:09:52.360 is going to find out

01:09:53.820 to the best they can

01:09:54.740 if it's in their chamber.

01:09:56.320 So a tremendous

01:09:57.420 breach of trust

01:09:58.480 by the individual

01:09:59.560 that did this.

01:10:00.840 Then you have now

01:10:02.200 the distrust factor

01:10:03.440 that goes on now

01:10:04.700 how people are going

01:10:05.420 to communicate drafts.

01:10:06.880 You know how they,

01:10:07.300 they circulate these drafts

01:10:08.780 usually by messenger.

01:10:10.240 Here's my draft

01:10:11.160 and they go to all nine chambers.

01:10:12.320 In fact,

01:10:12.580 in the draft of this one,

01:10:13.540 it says,

01:10:14.040 you know,

01:10:14.680 Alito and then has lists

01:10:15.800 all the other justices.

01:10:17.160 You know,

01:10:19.220 to the most current,

01:10:20.380 it goes in seniority

01:10:21.420 and Amy Barrett

01:10:22.880 is the last one

01:10:24.000 because she's the most

01:10:24.580 recently confirmed justice.

01:10:25.940 So,

01:10:26.860 you know,

01:10:27.500 the distrust factor

01:10:28.420 is huge.

01:10:29.360 You know,

01:10:30.280 the tensions are high

01:10:31.460 because the chief justice

01:10:32.740 said in his statement

01:10:34.200 that he has instructed

01:10:35.500 the marshal's office

01:10:36.880 to investigate

01:10:38.360 and determine

01:10:39.020 what happened.

01:10:39.760 They will

01:10:40.320 and they will determine it

01:10:41.900 because,

01:10:42.700 you know,

01:10:43.740 it's not going to be that hard.

01:10:44.820 They,

01:10:44.920 I can't imagine

01:10:46.100 they're not going to know.

01:10:46.920 If they don't know by now,

01:10:47.680 they're going to know.

01:10:48.660 I can't imagine

01:10:49.520 they don't know by now,

01:10:50.320 frankly.

01:10:50.840 They know.

01:10:51.800 Yeah,

01:10:52.120 yeah,

01:10:52.300 they do.

01:10:53.020 And then how that's handled publicly,

01:10:55.240 I don't know.

01:10:56.040 What it does to that chamber

01:10:57.220 and that justice

01:10:57.900 is a whole nother question.

01:10:59.560 I mean,

01:10:59.800 somebody suggested

01:11:00.580 sending the FBI over

01:11:01.940 to investigate this.

01:11:03.360 Now,

01:11:03.580 I balk at that

01:11:04.980 because,

01:11:05.580 number one,

01:11:05.920 separation of powers.

01:11:07.200 I don't think the FBI

01:11:08.520 serving the executive branch

01:11:09.820 has the right

01:11:10.520 to go over

01:11:10.960 to the judicial branch

01:11:11.980 and start questioning

01:11:13.040 Supreme Court justices.

01:11:14.280 Now,

01:11:14.380 I'm a defense lawyer,

01:11:15.300 so that's going to be my reaction.

01:11:17.000 But also,

01:11:17.600 the institution itself,

01:11:18.800 the Supreme Court,

01:11:19.700 has its own

01:11:20.920 marshal service,

01:11:22.480 has its own

01:11:23.340 police department.

01:11:24.940 They can handle this.

01:11:26.260 But it needs to be handled

01:11:27.040 expeditiously.

01:11:28.120 Can I ask you about that?

01:11:28.860 Because I'm,

01:11:29.660 with all due respect

01:11:30.260 to the marshals

01:11:30.820 at the U.S. Supreme Court,

01:11:31.740 like,

01:11:32.040 this isn't exactly

01:11:32.860 what they do.

01:11:33.860 Like,

01:11:34.040 they don't have a ton

01:11:34.600 of experience

01:11:35.280 investigating something like this.

01:11:37.640 And Andy McCarthy's argument,

01:11:39.320 I know he's on the same side

01:11:40.320 of the aisle as you are,

01:11:41.060 but his argument is

01:11:42.620 they work for us.

01:11:44.360 Whoever leaked this document

01:11:45.460 is our employee.

01:11:46.580 And that document

01:11:47.200 belonged to us

01:11:48.100 and we paid a lot

01:11:48.920 of money for it.

01:11:49.920 And we have other employees,

01:11:51.480 employees who are specialists

01:11:52.700 at investigating crime,

01:11:53.940 whether it's the executive branch

01:11:55.200 and the FBI

01:11:55.700 or it's Congress

01:11:56.960 with its subpoena power

01:11:57.860 and so on.

01:11:58.740 So let's get somebody

01:11:59.580 with some teeth

01:12:00.400 to show up

01:12:01.540 and say,

01:12:01.900 excuse me,

01:12:02.420 Mr. Marshall,

01:12:03.180 I know that you,

01:12:04.380 Ms.,

01:12:04.620 I should say,

01:12:05.260 you're very good

01:12:05.900 at the OEA,

01:12:06.580 OEA,

01:12:07.020 OEA,

01:12:07.440 but you need to step over there.

01:12:08.840 And with all due respect,

01:12:10.020 we're going to get

01:12:10.900 to the bottom of this.

01:12:12.420 Well,

01:12:13.060 Andy's a friend of mine.

01:12:14.660 I have tremendous respect

01:12:15.560 for him.

01:12:16.080 But I spent four years

01:12:17.880 in the last administration

01:12:19.080 defending the president

01:12:20.400 of the United States.

01:12:21.740 And a lot of it

01:12:22.540 had to do with the FBI

01:12:23.580 and these law enforcement agencies.

01:12:26.060 So call me jaundice.

01:12:27.960 You know,

01:12:28.660 the truth is,

01:12:29.800 I just don't like the idea

01:12:31.440 of federal agents,

01:12:32.700 you know,

01:12:33.880 maneuvering through

01:12:34.720 and fouling through.

01:12:36.260 What about special counsel?

01:12:36.900 Bill Barr said

01:12:37.420 maybe special counsel.

01:12:38.540 He thinks Roberts can do that.

01:12:39.680 I think John Roberts

01:12:40.040 is the chief justice

01:12:41.500 of the United States,

01:12:42.600 not just the Supreme Court.

01:12:43.800 He's the chief justice

01:12:44.580 of the United States,

01:12:45.400 chief judge

01:12:45.860 of the United States.

01:12:47.060 I think let him,

01:12:48.300 if he needed outside help

01:12:50.020 to determine this,

01:12:51.340 that would be his call.

01:12:53.020 That would be the judiciary

01:12:53.940 saying to the executive,

01:12:55.700 we need your assistance

01:12:56.800 to do this.

01:12:58.360 But I think you got to let

01:13:00.080 the justice,

01:13:00.980 the Supreme Court itself

01:13:03.580 handle this initially.

01:13:05.800 I cannot believe,

01:13:07.080 Megan, for a minute,

01:13:07.880 that they're,

01:13:08.480 I had trouble believing

01:13:09.440 they don't know now.

01:13:10.320 I'm just being honest.

01:13:11.400 I can't believe

01:13:12.140 they don't know right now.

01:13:15.080 They've definitely

01:13:15.540 got their suspects.

01:13:16.440 I'm telling you,

01:13:16.960 look, I've been saying this

01:13:17.920 for two days now.

01:13:18.800 There's a guy,

01:13:19.460 his name is Phil Houston.

01:13:20.600 He's a human lie detector.

01:13:21.820 He ran the CIA

01:13:22.740 deception detection unit.

01:13:24.540 He created the policy

01:13:27.040 on how to,

01:13:28.100 he has a book called

01:13:28.980 Spy the Lie.

01:13:30.020 He created it

01:13:30.960 and he ran it

01:13:31.620 for the CIA

01:13:32.100 for 25 years,

01:13:33.080 half of which he spent

01:13:33.920 trying to figure out

01:13:34.920 whether terrorists

01:13:35.580 were terrorists

01:13:36.060 and half of which he spent

01:13:37.020 trying to figure out

01:13:37.620 whether our agents

01:13:38.460 had become double agents

01:13:39.760 for somebody else.

01:13:40.980 And I took his

01:13:41.800 eight hour class,

01:13:42.920 Jay,

01:13:43.140 which I highly recommend to you.

01:13:44.280 In fact,

01:13:44.500 I'm going to have you

01:13:45.020 over to my house

01:13:45.540 when we offer this

01:13:46.600 because we're going to do it

01:13:47.480 for some friends.

01:13:48.860 And he sits you down

01:13:50.620 at the beginning

01:13:50.980 of this class

01:13:51.580 and he shows you

01:13:53.320 himself

01:13:54.320 and his CIA partner

01:13:55.420 interrogating

01:13:56.780 five employees

01:13:58.280 suspected of,

01:13:59.180 one of whom embezzled

01:14:00.140 from their company.

01:14:01.320 And he asks the same

01:14:02.280 five questions

01:14:03.160 of each of these

01:14:03.900 five employees

01:14:04.560 and then he asks you

01:14:05.500 to vote.

01:14:06.160 Who's the liar?

01:14:07.040 There's one who did it

01:14:07.900 and all the rest

01:14:08.400 are innocent.

01:14:09.120 And our answers

01:14:09.900 are all over the board.

01:14:11.020 This is like a smart

01:14:11.980 news group,

01:14:13.100 savvy.

01:14:13.380 This is all my staff

01:14:13.980 on the Kelly file

01:14:14.520 that he offered

01:14:15.000 to do it for.

01:14:15.500 So we did it

01:14:16.080 all over the board.

01:14:17.620 It was the guy

01:14:18.240 with the blue shirt.

01:14:19.040 It was the lady

01:14:19.520 in the red dress.

01:14:20.300 It was,

01:14:20.520 you know,

01:14:20.620 whatever.

01:14:21.400 Take the whole class

01:14:22.200 eight hours later.

01:14:23.180 Same tape is shown.

01:14:24.440 We all write.

01:14:25.080 Everyone knew who it was.

01:14:26.640 There are ways

01:14:27.460 of detecting lies

01:14:29.060 without a hookup

01:14:30.000 to a polygraph

01:14:30.780 and he's an expert.

01:14:32.520 I'm,

01:14:32.880 you know,

01:14:33.340 tongue in cheek

01:14:33.760 a little bit,

01:14:34.240 but seriously,

01:14:34.820 this guy could figure it out.

01:14:36.860 I think that,

01:14:37.720 look,

01:14:37.940 I tend to think

01:14:39.300 and maybe it's because

01:14:40.280 just knowing the institution

01:14:41.220 like I do,

01:14:41.760 I tend to think they know.

01:14:44.020 And I think the justices

01:14:45.260 in the individual chamber

01:14:46.740 probably know now.

01:14:47.800 I don't think they knew before.

01:14:48.800 I don't think this was,

01:14:49.700 I don't think the justices

01:14:50.580 would have ever done this.

01:14:51.940 I would be shocking.

01:14:53.240 I mean,

01:14:53.420 I can't imagine the situation.

01:14:55.080 So that's what I'm saying.

01:14:56.120 I think hold off on the FBI.

01:14:58.020 Hold on on the,

01:14:58.920 you know,

01:14:59.260 Secret Service.

01:15:00.500 Let's let,

01:15:01.460 let the Supreme Court

01:15:02.180 handle it institutionally

01:15:03.540 themselves,

01:15:04.140 at least here

01:15:04.580 in the initial stage.

01:15:05.700 But if I'm John Roberts,

01:15:06.960 I'm telling those justices,

01:15:08.460 get your opinions done.

01:15:09.820 We are not going to keep

01:15:10.780 the country

01:15:11.240 in this eight week suspense

01:15:13.160 while this has happened.

01:15:15.440 You've had a breach.

01:15:16.540 Look,

01:15:16.940 when you contacted me

01:15:17.800 the other day,

01:15:18.280 I said,

01:15:18.520 I'm not saying anything

01:15:19.160 until somebody authenticates it.

01:15:20.660 Right?

01:15:20.900 I just want to make sure

01:15:21.860 this is not just some hoax.

01:15:24.900 And then,

01:15:25.380 of course,

01:15:25.500 they authenticated

01:15:26.160 to the next day.

01:15:27.560 And,

01:15:27.740 you know,

01:15:28.700 when you now realize

01:15:30.040 what's happened,

01:15:30.660 this has been a heist

01:15:31.360 of a Supreme Court

01:15:32.180 draft opinion

01:15:32.920 that was circulated

01:15:34.360 among the chambers.

01:15:35.260 this is a really big deal

01:15:36.760 that's happened here.

01:15:37.580 And I think the danger here

01:15:38.720 is,

01:15:39.500 again,

01:15:40.040 it's the institutional

01:15:40.780 credibility.

01:15:41.740 And that's what you're

01:15:42.480 seeing in front of

01:15:43.000 the Supreme Court,

01:15:43.720 the pro-life protesters,

01:15:44.680 the pro-choice protesters.

01:15:46.080 We see that all the time.

01:15:48.060 This goes much deeper

01:15:49.000 than the protesters.

01:15:50.080 It goes much deeper

01:15:50.760 than the opinion.

01:15:51.920 It's somebody thought

01:15:52.640 that they should do this

01:15:53.880 to influence an outcome,

01:15:55.680 whether it's in the court,

01:15:56.840 in the legislature,

01:15:57.800 whether it's getting

01:15:58.640 Joe Biden,

01:15:59.600 the president of the United States,

01:16:00.540 more court picks

01:16:01.220 by court packing.

01:16:01.900 I believe that all nine

01:16:05.440 of these Supreme Court

01:16:06.560 justices have much higher ethics

01:16:08.740 than whoever leaked

01:16:10.080 this opinion.

01:16:10.960 And this person

01:16:11.920 will be proven wrong

01:16:12.960 and no one will flip

01:16:14.220 because of whatever

01:16:15.220 pressure comes.

01:16:16.120 To your point,

01:16:16.700 hopefully there will be

01:16:17.300 as short a period

01:16:18.280 as possible

01:16:18.740 because we don't want

01:16:19.420 anybody questioning it.

01:16:21.120 And this person

01:16:21.980 will learn that

01:16:22.900 this did nothing

01:16:23.800 other than rattle

01:16:25.040 a bunch of good people

01:16:26.320 who are doing their best

01:16:27.040 to serve the country

01:16:27.740 and endanger them

01:16:29.300 and get a lot of people

01:16:30.300 upset or elated

01:16:31.720 prior to the time

01:16:32.600 they were going to have it

01:16:33.200 happen a month later.

01:16:34.260 All right,

01:16:34.480 stand by because

01:16:35.080 I really want to talk to you

01:16:36.580 about what's in the opinion

01:16:37.720 and what it means.

01:16:39.060 You referenced it

01:16:39.880 a second ago,

01:16:40.460 the hysterics

01:16:41.380 about where this

01:16:42.060 is going to take us.

01:16:43.440 I know you'll be

01:16:44.160 a straight shooter on it

01:16:44.920 and that's where

01:16:45.240 we're going to pick it up

01:16:45.680 after I squeeze in

01:16:46.320 a quick break.

01:16:47.400 Jay Sekulow stays with us

01:16:48.480 over this quick break.

01:16:53.440 Welcome back

01:16:54.000 to the Megyn Kelly show.

01:16:55.020 President Biden

01:16:55.660 just a short time ago

01:16:56.820 stoking fear

01:16:57.980 that if Roe versus Wade

01:16:59.840 is indeed overturned

01:17:02.000 when the final version

01:17:03.000 of this opinion

01:17:03.600 comes out,

01:17:04.900 it could lead to

01:17:05.780 LGBTQ children

01:17:07.740 being barred

01:17:09.300 from classrooms

01:17:10.300 and reverse

01:17:11.680 a 1965 decision

01:17:13.100 by the high court

01:17:13.780 that allowed privacy

01:17:14.660 when using

01:17:15.500 contraceptives

01:17:16.400 between married couples.

01:17:19.500 Okay,

01:17:20.320 that's where he says

01:17:21.000 this is going.

01:17:22.000 He also called

01:17:22.940 hardcore

01:17:23.660 Trump-supporting Americans

01:17:25.320 quote,

01:17:26.560 the most extreme

01:17:27.880 political organization

01:17:29.220 in history.

01:17:31.080 Listen to this.

01:17:31.820 Griswold

01:17:32.320 was thought

01:17:33.400 to be a bad decision

01:17:34.520 by Borkin.

01:17:35.420 My guess is

01:17:36.480 the guys

01:17:36.940 on the Supreme Court

01:17:37.700 now.

01:17:38.580 What happens

01:17:39.440 if you have

01:17:40.240 a state

01:17:41.340 change the law

01:17:42.420 saying that

01:17:43.100 children who are

01:17:45.200 LGBTQ

01:17:45.880 can't be in classrooms

01:17:47.240 with other children?

01:17:49.980 Is that

01:17:50.480 legit

01:17:51.320 under the way

01:17:52.260 the decision

01:17:53.160 is written?

01:17:53.540 What are

01:17:55.280 the next things

01:17:56.060 that are going

01:17:56.420 to be attacked?

01:17:57.680 Because this

01:17:58.400 MAGA crowd

01:17:59.100 is really

01:17:59.920 the most extreme

01:18:00.800 political organization

01:18:02.200 that's existed

01:18:03.180 in American history.

01:18:05.520 Wow.

01:18:06.180 Wow.

01:18:06.900 President Unity

01:18:07.640 with some thoughts

01:18:08.680 for you today.

01:18:09.820 Back with me now

01:18:10.420 Jay Sekulow,

01:18:11.340 an attorney,

01:18:12.040 Supreme Court litigator

01:18:12.860 and host of

01:18:13.660 Sekulow,

01:18:14.780 his own podcast

01:18:15.960 which you should

01:18:16.380 check out.

01:18:16.880 Jay,

01:18:17.160 that's extraordinary

01:18:18.180 that soundbite

01:18:19.100 we just heard.

01:18:19.820 Well,

01:18:20.260 don't worry

01:18:20.840 because the president

01:18:22.320 has now through

01:18:22.920 his Department

01:18:23.340 of Homeland Security

01:18:24.240 instituted a ministry

01:18:25.600 of truth

01:18:27.100 or a governance

01:18:28.440 board for misinformation

01:18:29.500 and disinformation

01:18:30.400 which should be going

01:18:31.820 after his disinformation

01:18:33.040 which,

01:18:33.640 by the way,

01:18:34.360 talking about

01:18:34.660 something unconstitutional,

01:18:36.220 I can't think of anything

01:18:38.140 more unconstitutional

01:18:38.980 than that.

01:18:39.800 Well,

01:18:40.280 you know,

01:18:40.820 look,

01:18:41.040 with all due respect

01:18:41.620 to the president,

01:18:42.180 he didn't read the opinion.

01:18:43.420 Justice Alito

01:18:43.860 went out of his way

01:18:44.660 to point out

01:18:45.140 how it doesn't affect

01:18:46.040 these other issues

01:18:46.760 and it doesn't

01:18:47.580 because those other issues

01:18:48.660 don't involve

01:18:49.900 the termination

01:18:50.920 of another life.

01:18:53.100 Okay,

01:18:53.540 wait,

01:18:53.760 before you get to that,

01:18:55.240 let me set it up

01:18:55.960 because Griswold

01:18:57.120 versus Connecticut

01:18:57.760 is the first case

01:18:58.720 in which the high court

01:18:59.620 said,

01:19:00.000 you know what,

01:19:00.380 we think there's

01:19:00.840 a right to privacy.

01:19:01.840 We think that's in here.

01:19:02.880 It's not used

01:19:04.260 in those terms

01:19:05.060 but if you look

01:19:05.520 at the right to liberty

01:19:06.340 and sort of extrapolate,

01:19:08.200 we think there's

01:19:08.720 a right to privacy

01:19:09.380 such that you can't

01:19:10.420 tell a married couple

01:19:11.200 what kind of contraception

01:19:12.480 they can use

01:19:12.940 or cannot use

01:19:13.640 inside the marital bedroom.

01:19:15.440 And from that,

01:19:17.340 Roe eventually,

01:19:18.640 years later,

01:19:19.120 would be born

01:19:19.920 like this right

01:19:20.840 to privacy

01:19:21.580 got expanded

01:19:22.560 and that's sort of

01:19:24.840 like the underpinnings

01:19:26.960 for a case like

01:19:28.480 Lawrence v. Texas

01:19:29.380 that talked about

01:19:30.140 you can't legislate

01:19:31.740 gay relationships

01:19:33.060 inside of the bedroom

01:19:34.080 either

01:19:34.520 and so on.

01:19:35.640 They're all linked

01:19:36.500 back to Griswold.

01:19:37.340 So this is why

01:19:37.900 the left is now saying

01:19:39.020 now that the Supreme Court

01:19:40.520 has said the right

01:19:41.200 to quote right to privacy

01:19:42.460 doesn't give us

01:19:43.880 abortion rights,

01:19:45.100 the next step

01:19:45.960 is to say,

01:19:46.640 well,

01:19:47.420 there's no right

01:19:48.600 to contraception

01:19:49.500 and there's no right

01:19:50.120 to marital sex privacy

01:19:51.200 whether you're gay or straight

01:19:52.200 and there's no right

01:19:53.160 to gay marriage.

01:19:54.040 They're linking it all back

01:19:55.500 because it does have seedlings

01:19:56.780 in Griswold v. Connecticut

01:19:58.880 and right to privacy.

01:19:59.820 So that's the argument.

01:20:01.440 Yeah,

01:20:01.540 but you said something

01:20:02.360 right in that little colloquy

01:20:04.680 just then

01:20:05.120 that is really what it was.

01:20:06.480 Those interests

01:20:06.960 actually come out

01:20:07.500 of liberty interests

01:20:08.220 that are recognized

01:20:09.460 in the Constitution.

01:20:10.660 They may not be spelled out

01:20:11.980 per se.

01:20:12.840 Remember,

01:20:13.740 the right to abortion

01:20:14.760 came from the,

01:20:15.980 this is Justice Blackman's language,

01:20:18.000 the penumbras.

01:20:18.840 Penumbras.

01:20:19.420 It emanates out of.

01:20:21.000 So there was no

01:20:21.940 constitutional text

01:20:23.160 supporting it.

01:20:24.460 These other issues

01:20:25.780 are very,

01:20:26.820 very different

01:20:27.260 and Justice Alito,

01:20:28.340 again,

01:20:28.920 in this draft opinion

01:20:29.880 goes to great length

01:20:31.520 to point that out

01:20:32.460 that these are different

01:20:33.680 interests at stake.

01:20:36.620 So I do think

01:20:37.540 you cannot ignore the fact

01:20:38.860 that what we are talking about

01:20:40.480 is unique,

01:20:41.220 as Justice Alito's draft says,

01:20:42.980 a unique situation

01:20:43.920 and that is,

01:20:44.960 there's a life here

01:20:46.120 that's involved

01:20:46.740 and that is the life

01:20:47.700 of the unborn child

01:20:48.620 and that gives the states

01:20:51.380 a more compelling

01:20:52.360 governmental interest.

01:20:54.160 I do not expect

01:20:55.180 that there would be

01:20:56.200 any votes

01:20:57.040 to undo

01:20:58.840 any of,

01:20:59.840 Loving,

01:21:00.300 any of these cases

01:21:01.320 and the fact is,

01:21:04.420 Loving is the case

01:21:05.120 that said

01:21:05.660 interracial marriage

01:21:06.660 is okay.

01:21:07.140 Right.

01:21:07.480 And they are using

01:21:08.100 that one too

01:21:08.800 and yet,

01:21:09.220 you know,

01:21:09.440 Justice Thomas

01:21:10.060 who is married

01:21:10.800 to Jenny Thomas,

01:21:11.980 so quote,

01:21:12.500 an interracial marriage,

01:21:13.680 whatever that means anymore

01:21:14.900 in our culture.

01:21:15.680 I mean,

01:21:15.880 I'm not even sure,

01:21:17.480 I don't like labeling

01:21:18.500 things like that anymore

01:21:19.440 because,

01:21:19.840 you know,

01:21:20.280 we are a nation

01:21:21.180 of so many cultures

01:21:22.980 and I mean,

01:21:23.460 my family's,

01:21:24.400 you know,

01:21:24.960 part of my family's Russian,

01:21:26.560 some of it's Ukraine,

01:21:27.500 some of it,

01:21:27.960 and of course,

01:21:28.360 that time it was Poland.

01:21:29.660 I mean,

01:21:29.980 you know,

01:21:30.280 this is just the world

01:21:31.100 we live in,

01:21:31.620 which is good.

01:21:32.260 That's the diversity

01:21:33.140 of the country.

01:21:34.440 That's right.

01:21:34.760 And the fact

01:21:35.400 that they're trying

01:21:36.060 to scare people

01:21:37.920 by saying this,

01:21:39.740 I laid out a lot

01:21:40.560 of those cases,

01:21:41.140 as you know,

01:21:41.800 on the marriage cases

01:21:44.000 because as a constitutionalist,

01:21:46.660 I wasn't sure

01:21:47.280 the federal government

01:21:48.120 should be in the business

01:21:49.080 of dictating any of this.

01:21:50.800 Again,

01:21:51.380 it kind of falls back

01:21:52.300 to the states

01:21:52.920 and there's liberty interests

01:21:54.160 which are different

01:21:55.280 than privacy interests

01:21:56.520 and again,

01:21:58.440 the unique nature

01:21:59.860 of any of these

01:22:01.200 other interests

01:22:01.780 that you have,

01:22:02.400 you have two consenting

01:22:03.540 adults in those situations.

01:22:06.480 Here you have

01:22:07.340 a person,

01:22:09.020 unborn,

01:22:10.080 but a person

01:22:10.680 that has

01:22:11.900 no constitutional protection

01:22:13.900 unless this opinion

01:22:15.280 becomes the law

01:22:16.420 until now

01:22:17.700 because it was not deemed

01:22:19.100 to be a person

01:22:19.700 under the Constitution.

01:22:21.020 So it's very different

01:22:22.040 than every one

01:22:23.200 of these other cases.

01:22:24.600 Justice Alito

01:22:25.200 in his draft opinion

01:22:26.420 goes out of his way there.

01:22:27.680 Let me read that.

01:22:28.460 Point that out.

01:22:29.120 Let me read that

01:22:29.720 so people know.

01:22:30.420 This is from the draft opinion.

01:22:32.060 Unable to show

01:22:32.700 concrete reliance

01:22:33.580 on Roe and Casey

01:22:34.280 themselves.

01:22:35.020 The solicitor general

01:22:36.260 suggests that's

01:22:36.960 the chief appellate officer

01:22:38.460 for the United States

01:22:39.440 arguing for the Biden

01:22:40.140 administration,

01:22:41.120 suggests that overruling

01:22:42.220 those decisions

01:22:42.800 would threaten

01:22:43.520 the court's precedence

01:22:44.720 holding that the

01:22:45.960 due process clause

01:22:47.140 protects other rights.

01:22:49.440 And in parentheses,

01:22:50.640 they cite the case

01:22:51.500 Abergefell,

01:22:52.280 which is the gay marriage,

01:22:53.140 Lawrence v. Texas,

01:22:53.880 which I mentioned,

01:22:54.500 Griswold,

01:22:54.900 which I mentioned.

01:22:55.800 That is not correct

01:22:56.980 for reasons we've

01:22:57.980 already discussed.

01:22:58.700 And he goes on to say

01:22:59.300 as even the Casey

01:23:01.040 plurality recognized

01:23:02.560 because Casey upheld

01:23:03.380 Roe with the vote

01:23:04.640 of just three justices

01:23:05.680 because they couldn't

01:23:06.080 agree on anything.

01:23:07.120 As even the Casey

01:23:08.100 plurality recognized,

01:23:09.400 abortion is a unique act

01:23:11.200 because it terminates

01:23:12.640 life or potential life.

01:23:15.700 And to ensure

01:23:16.740 that our decision

01:23:17.720 is not misunderstood

01:23:18.560 or mischaracterized,

01:23:19.940 we emphasize

01:23:20.860 that our decision

01:23:22.200 concerns the constitutional

01:23:23.380 right to abortion

01:23:24.280 and no other right.

01:23:27.000 Nothing in this opinion

01:23:27.860 should be understood

01:23:28.580 to cast doubt

01:23:29.380 on precedents

01:23:30.360 that do not concern

01:23:31.620 abortion.

01:23:32.920 Now, the other side

01:23:33.660 knows that that's in there,

01:23:34.660 Jay.

01:23:34.860 They've read it

01:23:35.300 same as you and I have.

01:23:36.720 Their argument is,

01:23:38.140 oh, you just wait.

01:23:39.460 He may say that here,

01:23:40.840 but that will 100%

01:23:42.540 be used by people

01:23:44.780 who objected

01:23:45.400 to those decisions

01:23:46.080 and those, quote, rights.

01:23:47.440 In the future,

01:23:48.340 the reasoning

01:23:48.980 of this opinion

01:23:50.020 will be used

01:23:51.480 to try to challenge

01:23:52.600 those rights

01:23:53.120 and get a reversal

01:23:54.100 either with this court

01:23:55.500 or a future court.

01:23:56.400 Yeah, and I think

01:23:58.020 that's ridiculous.

01:23:58.820 Number one,

01:23:59.660 the opinion itself,

01:24:00.820 if that ends up

01:24:01.600 being the opinion,

01:24:02.320 Megan,

01:24:02.900 with that language

01:24:03.440 still in it,

01:24:04.240 says exactly the opposite

01:24:05.700 of what these people

01:24:07.020 are advocating.

01:24:07.880 It says it cannot

01:24:08.540 be used for that

01:24:09.200 because of the unique

01:24:10.140 nature of the procedure

01:24:11.900 involved here,

01:24:12.780 which is also,

01:24:14.120 to many people,

01:24:14.780 the taking of human life.

01:24:16.440 So all of these

01:24:17.440 other cases,

01:24:18.420 he specifically says

01:24:19.920 this context

01:24:21.340 cannot apply

01:24:21.920 to that context.

01:24:22.980 So in that sense,

01:24:24.780 it ends that debate.

01:24:25.800 They don't want

01:24:26.660 that debate to end

01:24:27.400 because they want it

01:24:28.120 to,

01:24:28.320 because abortion

01:24:28.960 is still,

01:24:30.620 you know,

01:24:30.960 an issue where

01:24:32.060 even though there

01:24:33.400 are people on,

01:24:34.660 as the Supreme Court

01:24:35.280 said,

01:24:35.640 on both sides

01:24:36.400 of the issue,

01:24:37.240 people are pretty firm

01:24:38.060 in their view

01:24:38.560 on which way

01:24:39.220 they go on this.

01:24:40.060 And people,

01:24:40.860 you know,

01:24:41.080 understand exceptions

01:24:41.920 and all of this,

01:24:43.220 but the fundamental

01:24:44.340 is just to return

01:24:45.400 this to the states.

01:24:46.700 So everybody

01:24:47.360 needs to remember that.

01:24:48.400 But he specifically

01:24:49.320 writes in this opinion,

01:24:50.580 assuming it becomes

01:24:51.340 the final opinion,

01:24:52.400 that those other issues

01:24:53.840 are not at stake

01:24:55.640 because this case

01:24:57.040 applies to

01:24:57.900 a unique situation,

01:24:59.700 the termination

01:25:00.360 of life.

01:25:01.500 And I think

01:25:02.320 it would not be any clearer.

01:25:03.940 Alito and the other

01:25:05.140 justices joining

01:25:05.820 the majority,

01:25:06.760 they may not be

01:25:07.600 institutionalists

01:25:08.480 like Chief Justice Roberts

01:25:09.540 is,

01:25:09.900 but they care about

01:25:10.580 the court.

01:25:11.220 And they understand

01:25:12.140 the court only has

01:25:13.040 authority because

01:25:13.700 we give it authority.

01:25:15.120 We listen to them.

01:25:15.980 You know,

01:25:16.220 they don't have

01:25:17.320 a police force

01:25:17.920 that goes out

01:25:18.440 and enforces

01:25:18.920 these decisions.

01:25:19.500 And so they'd

01:25:21.420 have to be

01:25:22.100 like the young kids

01:25:23.300 burn it all down

01:25:24.260 if at any point

01:25:26.200 in the next 20 years

01:25:27.460 they ignored

01:25:28.300 this specific paragraph

01:25:29.480 and said,

01:25:30.260 never mind,

01:25:31.360 that stuff we said,

01:25:32.300 we don't mean any of that.

01:25:33.220 We're going to start

01:25:33.740 burning it all down.

01:25:34.680 We're going to burn down,

01:25:35.460 you know,

01:25:35.720 a Bergevall.

01:25:36.200 We're going to get rid

01:25:36.640 of Lawrence.

01:25:37.100 We're going to get rid

01:25:37.500 of Griswold.

01:25:38.240 That would be insane.

01:25:40.380 No,

01:25:40.540 and it's not going to happen

01:25:41.680 because number one,

01:25:43.440 this opinion

01:25:44.220 kind of in a sense

01:25:45.640 reinforces those cases.

01:25:47.240 I mean,

01:25:47.380 you have to really look

01:25:48.000 at what it's saying.

01:25:49.500 And Alito may not

01:25:50.520 have agreed

01:25:50.860 with some of these

01:25:51.380 other cases.

01:25:52.060 I don't think he's

01:25:52.520 serving on the time

01:25:53.580 of the Lawrence case,

01:25:55.520 but I think on Oberfeld,

01:25:56.660 I know he was there.

01:25:57.580 So here's the thing.

01:25:59.440 He is saying,

01:26:00.580 in this opinion,

01:26:01.240 again,

01:26:01.480 if it becomes the opinion,

01:26:02.860 you cannot apply

01:26:03.960 this area of law

01:26:05.340 to this area of law,

01:26:06.780 which should not actually

01:26:07.520 be that complicated.

01:26:09.300 But look,

01:26:09.900 that doesn't serve

01:26:10.480 the political motives

01:26:11.560 of the saboteur here

01:26:13.500 who was trying

01:26:14.600 to gin up

01:26:15.500 all of this unrest,

01:26:16.580 which has happened.

01:26:17.700 Look,

01:26:17.860 there would have been

01:26:18.300 unrest the day

01:26:18.920 the opinion came out

01:26:19.680 if that,

01:26:20.000 in fact,

01:26:20.180 was the opinion.

01:26:21.040 But it would have been

01:26:21.700 done in an orderly way

01:26:23.020 than it normally is.

01:26:24.100 Now,

01:26:24.540 you're not seeing

01:26:25.220 mass rioting

01:26:25.980 in the streets.

01:26:26.740 You're not seeing

01:26:27.480 what we saw,

01:26:28.140 you know,

01:26:28.320 last summer

01:26:29.000 or two summers ago.

01:26:29.980 So we're not seeing

01:26:30.520 that kind of reaction.

01:26:32.760 Hopefully,

01:26:33.340 the country's mature enough

01:26:34.520 to not put itself

01:26:35.540 through that again.

01:26:36.960 But look,

01:26:37.540 this is a legal system.

01:26:38.540 This is a unique case

01:26:39.520 because it involves

01:26:40.220 a unique situation,

01:26:41.660 and that is unborn life.

01:26:43.140 And when you've got

01:26:43.960 Elizabeth Warren

01:26:45.020 screaming yesterday

01:26:46.240 as she was walking

01:26:47.020 over to talk

01:26:48.380 in front of the Supreme Court

01:26:49.900 and is screaming

01:26:50.740 about how the Republicans

01:26:52.340 have been planning this,

01:26:53.420 the Republicans were

01:26:54.280 very late to this game

01:26:55.380 on life.

01:26:56.820 Okay?

01:26:57.220 Let's face it.

01:26:57.980 It was the religious community

01:26:59.040 that spoke out

01:26:59.740 against this

01:27:00.300 in the late 60s

01:27:01.800 as it was maturing already,

01:27:03.200 and then certainly

01:27:03.840 after Roe,

01:27:04.660 and then eventually

01:27:05.300 the Republican Party

01:27:07.000 took on a pro-life platform.

01:27:08.300 But as you know,

01:27:09.400 there were plenty

01:27:09.900 of pro-life presidents

01:27:10.780 that did nothing

01:27:11.560 on this issue.

01:27:12.680 And then there were

01:27:13.560 others that did.

01:27:14.800 And the fact is,

01:27:16.660 Joe Biden yesterday

01:27:18.000 said about

01:27:19.880 the Supreme Court decision,

01:27:21.120 he said,

01:27:21.500 you cannot let

01:27:22.500 the Supreme Court decide

01:27:23.840 whether someone

01:27:24.680 can abort a child.

01:27:25.800 I mean,

01:27:26.020 I want people to think

01:27:26.920 about what he just said.

01:27:28.580 You can't let

01:27:29.580 the Supreme Court decide

01:27:31.060 if someone can abort,

01:27:33.440 terminate a child.

01:27:35.460 Unless he called it a child.

01:27:36.820 He used the term baby.

01:27:37.900 He said a baby.

01:27:38.860 Yeah, he used the term baby.

01:27:40.140 So a baby.

01:27:40.920 The left will only say fetus

01:27:42.180 at best.

01:27:43.380 Which means,

01:27:43.960 by the way,

01:27:44.440 the same thing,

01:27:45.080 but right.

01:27:46.000 Yep.

01:27:46.660 But the idea that they,

01:27:47.560 this is the thought process.

01:27:49.080 So I think,

01:27:49.880 again,

01:27:50.260 it's going to affect

01:27:51.180 all these other rights,

01:27:52.380 I think is,

01:27:53.000 again,

01:27:53.560 another one of these.

01:27:54.940 Get it out there,

01:27:55.680 get people riled up

01:27:56.800 as if they're not riled up

01:27:57.960 already by having

01:27:58.800 this opinion leaked.

01:27:59.520 Well,

01:27:59.740 and it's like,

01:28:00.180 it makes the argument

01:28:01.220 almost easier for them

01:28:02.640 because the closer

01:28:03.420 you get to the actual

01:28:04.820 abortion debate,

01:28:05.640 the more uncomfortable

01:28:06.400 it becomes for

01:28:07.560 the pro-choice side.

01:28:09.180 Like,

01:28:09.320 if you just keep it

01:28:09.900 in the abstract,

01:28:10.620 my body,

01:28:11.380 my choice,

01:28:12.080 stay away from me,

01:28:12.900 big government,

01:28:13.840 you know,

01:28:14.200 regulators.

01:28:15.240 That is appealing.

01:28:16.580 When you actually

01:28:17.580 start to think about,

01:28:18.680 wait,

01:28:18.820 what are we arguing about?

01:28:19.880 Like,

01:28:20.080 what's in there?

01:28:20.840 What's in your body

01:28:21.720 that's become an issue?

01:28:23.100 It gets a lot more

01:28:24.460 uncomfortable.

01:28:25.220 And this is one of the

01:28:26.200 reasons why

01:28:26.940 I think a lot of the

01:28:28.500 country is,

01:28:29.520 you know,

01:28:30.080 they may not want

01:28:31.320 to see abortion

01:28:32.000 outlawed altogether,

01:28:33.560 but they certainly

01:28:34.960 are not on the side

01:28:36.440 of those people

01:28:37.160 like from the big group,

01:28:38.820 quote,

01:28:39.180 shout my abortion,

01:28:40.920 shout your abortion.

01:28:41.900 Like,

01:28:42.500 that's literally

01:28:43.160 one of the biggest groups

01:28:43.880 on the other side now.

01:28:44.740 They want you to shout it,

01:28:45.780 say it loud,

01:28:46.260 say it proud.

01:28:46.920 Just yesterday,

01:28:47.760 Tish James,

01:28:48.580 the attorney general

01:28:49.360 of New York State,

01:28:50.240 the one who,

01:28:50.860 to her credit,

01:28:51.240 brought down Harvey Weinstein.

01:28:52.500 Okay,

01:28:52.880 I like that.

01:28:54.640 Went after Andrew Cuomo.

01:28:56.240 I wasn't opposed

01:28:56.840 to that either.

01:28:58.720 Sent out a tweet

01:28:59.800 talking about

01:29:00.560 how proud she was

01:29:02.840 when she walked

01:29:03.480 into Planned Parenthood

01:29:04.520 to have her abortion.

01:29:07.580 I just think

01:29:08.140 most Americans

01:29:08.660 are turned off by that.

01:29:09.740 You're proud,

01:29:10.280 like you didn't,

01:29:11.360 you felt no compunction

01:29:12.580 about the child you create.

01:29:13.740 I get,

01:29:14.220 okay,

01:29:14.520 I get it's your choice,

01:29:15.840 but you're proud of it.

01:29:16.600 I don't believe

01:29:17.060 that she felt proud

01:29:17.880 when she went in there.

01:29:18.620 I don't know her

01:29:19.320 and I don't know,

01:29:20.700 and maybe she did,

01:29:21.920 but you know

01:29:22.540 this is a traumatic moment

01:29:23.920 in any person's life

01:29:25.380 that they know what,

01:29:26.100 especially they know

01:29:26.760 what they're doing.

01:29:27.320 You know what has changed

01:29:27.940 this debate more than anything,

01:29:29.120 more than the legal,

01:29:29.960 arguments,

01:29:30.400 more than the political rhetoric?

01:29:32.320 Imaging.

01:29:32.760 Ultrasounds.

01:29:33.660 Oh yeah,

01:29:33.980 see,

01:29:34.120 we're saying the same thing.

01:29:34.840 Oh,

01:29:35.120 it's more than ultrasounds.

01:29:36.200 Now I've got,

01:29:36.560 you know,

01:29:36.780 I've got six grandkids now.

01:29:38.640 So I have pictures

01:29:39.280 of my grandkids

01:29:40.180 at,

01:29:42.100 you know,

01:29:42.360 21 weeks,

01:29:43.200 18,

01:29:43.680 it's unbelievable.

01:29:45.380 So this whole argument,

01:29:46.740 it used to be

01:29:47.280 they'd just argue

01:29:47.880 it's just a bunch of cells,

01:29:49.240 it's not a person yet,

01:29:50.580 and now I'm looking

01:29:51.180 at my granddaughters

01:29:52.600 and grandsons

01:29:53.420 and I'm looking at,

01:29:54.740 you know,

01:29:54.940 in 20 weeks

01:29:55.800 with these pictures

01:29:56.940 that are,

01:29:58.040 it's not like the old days.

01:29:59.220 I mean,

01:29:59.580 it's very clear.

01:30:00.880 The 3D images

01:30:01.740 are spot on

01:30:02.880 and they look like

01:30:03.820 what your child looks like.

01:30:05.820 Yes,

01:30:06.320 I'm seeing it

01:30:07.600 as you're saying

01:30:08.180 and I'm seeing the one

01:30:08.900 that can get emotional

01:30:09.560 about this.

01:30:10.000 I mean,

01:30:10.180 I'm seeing the pictures

01:30:11.080 of my own grandkids,

01:30:11.940 but I'll tell you

01:30:12.380 to take it a step further.

01:30:13.660 The doctors,

01:30:14.620 okay,

01:30:15.620 that are performing surgery

01:30:16.960 in utero now

01:30:18.100 are using

01:30:18.880 more than 3D imaging.

01:30:20.380 They're using

01:30:20.980 9D type imaging.

01:30:22.980 They can see all the way

01:30:23.640 around the child.

01:30:25.220 And I think we just have to,

01:30:26.460 you know,

01:30:26.720 that has changed

01:30:27.520 this debate drastically.

01:30:29.040 So yes,

01:30:29.360 like you said,

01:30:29.780 you can say it

01:30:30.520 and in the abstract,

01:30:31.980 but when it comes down to it,

01:30:33.060 I don't think anybody

01:30:33.540 walks in there

01:30:34.160 and thrilled about this.

01:30:35.560 I mean,

01:30:36.060 I think that's,

01:30:36.700 I think that's,

01:30:37.020 I should hope not.

01:30:37.820 I don't know.

01:30:38.320 I would hope not.

01:30:38.740 I mean,

01:30:39.160 I'm not,

01:30:39.580 you know,

01:30:39.780 obviously.

01:30:40.140 There's some women

01:30:40.660 who are like,

01:30:41.140 I'm on my ninth abortion.

01:30:42.600 Like,

01:30:42.920 okay,

01:30:43.700 so that person

01:30:44.360 has absolutely

01:30:44.840 no moral compass

01:30:45.760 and feels no compunction

01:30:47.220 about it.

01:30:47.700 And I mean,

01:30:48.320 they're out there.

01:30:49.200 Okay,

01:30:49.380 so they should go,

01:30:49.980 they should stay

01:30:50.520 in the Northeast

01:30:51.380 where I am

01:30:52.380 and they should never move

01:30:53.120 to one of these 13 states

01:30:54.180 because that's not

01:30:55.200 going to be possible anymore

01:30:56.260 in states like that.

01:30:57.840 Now,

01:30:58.000 and by the way,

01:30:58.700 like the thought

01:30:59.420 that you won't be able

01:30:59.920 to get an abortion at all

01:31:00.840 is not true either.

01:31:01.680 It will become more difficult

01:31:02.720 in the states that outlaw it.

01:31:04.400 But this,

01:31:04.920 the FDA approved

01:31:05.820 like the mail,

01:31:06.940 the abortion drug

01:31:07.880 that women are going to be able

01:31:09.060 to get mailed to them.

01:31:10.200 And if you can't get it

01:31:10.840 mailed into your red state,

01:31:12.100 you probably get it

01:31:12.720 at the neighboring state.

01:31:13.640 It's a P.O. box.

01:31:14.820 I mean,

01:31:14.960 women,

01:31:15.700 it's not,

01:31:16.160 we're not,

01:31:16.460 we're past the days

01:31:17.160 of the back alley

01:31:18.200 horrible procedures.

01:31:20.460 But can I just,

01:31:21.220 I want to touch on this

01:31:22.020 because I know

01:31:22.880 this is something you argued

01:31:24.180 and it's all over

01:31:25.160 the court's decision

01:31:25.840 and it's an important argument.

01:31:29.020 Talk about Europe

01:31:30.080 and versus us

01:31:32.020 when it comes to balancing

01:31:33.460 because you mentioned

01:31:34.320 the balance of like,

01:31:35.120 do we account for the fact

01:31:35.980 that there's a human life

01:31:36.820 in there

01:31:37.140 and the way they've approached it?

01:31:38.600 They're more liberal

01:31:39.100 than we are.

01:31:40.200 And so how do they treat this?

01:31:41.260 But not,

01:31:42.200 they're not more liberal

01:31:42.840 on this than we are.

01:31:43.880 And we have an office

01:31:44.700 in Strasbourg,

01:31:45.420 France,

01:31:45.720 our European Center

01:31:46.280 for Law and Justice.

01:31:47.240 And they've been very active

01:31:48.420 on the life issue.

01:31:50.040 And the United States

01:31:52.600 is with,

01:31:53.180 you know,

01:31:53.600 North Korea and China

01:31:55.120 on our abortion policies.

01:31:56.940 And in Europe,

01:31:58.080 the restrictions on abortions

01:32:00.720 after,

01:32:01.700 I mean,

01:32:02.560 most of the time,

01:32:03.300 after 12 weeks,

01:32:04.140 15 weeks,

01:32:05.260 it's very restrictive.

01:32:07.160 So Europe

01:32:07.920 has taken a much more cautious

01:32:10.260 view of the right to abortion.

01:32:12.480 I think also,

01:32:13.500 in part,

01:32:14.220 because what Europe

01:32:15.140 has experienced

01:32:16.080 with genocides

01:32:17.560 and things like that

01:32:18.380 we haven't experienced

01:32:19.060 in the United States,

01:32:20.220 I think that the ethical

01:32:21.580 and moral implications

01:32:22.660 of that have affected

01:32:23.560 the European jurisprudence

01:32:24.960 and the European parliaments

01:32:26.740 in the various countries

01:32:27.980 and within the European Union itself

01:32:30.100 have been very,

01:32:31.660 very resistant

01:32:32.540 to an expansive abortion right

01:32:34.920 like in the United States.

01:32:36.060 They think we're barbaric.

01:32:38.240 I mean,

01:32:38.600 this is a,

01:32:39.220 in the United States,

01:32:40.080 we're one of six countries

01:32:41.220 that allow late-term abortion.

01:32:43.320 And as you and I

01:32:43.960 have talked many years ago,

01:32:45.660 late-term abortion means

01:32:46.720 while that child

01:32:47.880 is being delivered,

01:32:49.620 I have deposed

01:32:50.520 those doctors.

01:32:52.380 And they are,

01:32:53.780 they give you

01:32:54.160 a clinical explanation

01:32:55.180 as they are,

01:32:56.240 and I don't want

01:32:56.580 to get gruesome here,

01:32:57.660 basically taking the child apart

01:32:59.220 limb by limb,

01:32:59.940 which is pretty gruesome

01:33:00.840 and with no,

01:33:03.000 and it's just

01:33:03.520 a clinical view to them.

01:33:05.040 I mean,

01:33:05.700 I tried those cases.

01:33:07.560 I have,

01:33:07.740 I've deposed those witnesses,

01:33:09.580 those experts.

01:33:10.520 It's,

01:33:11.080 it's sick.

01:33:12.260 Just so people know,

01:33:13.140 85,

01:33:13.640 this is from your brief,

01:33:15.020 85% of European states

01:33:17.060 that allow abortion.

01:33:18.900 Okay,

01:33:19.040 so 85% of those

01:33:20.380 that the vast majority

01:33:21.480 allow it.

01:33:22.140 I'm sorry,

01:33:23.220 13% outright ban it.

01:33:25.460 And then of those

01:33:26.760 that allow it,

01:33:27.560 there are 47 member states,

01:33:28.660 so 13 ban it outright.

01:33:29.880 And of the rest,

01:33:31.000 the vast,

01:33:31.580 vast majority of them,

01:33:32.340 85% limit it to

01:33:34.640 at most 12 weeks in.

01:33:37.080 A lot of them

01:33:37.560 have earlier limitations,

01:33:39.060 10 weeks,

01:33:39.840 so on.

01:33:40.340 So at most 12 weeks.

01:33:41.700 So you've got the vast majority

01:33:42.660 of our friends over in Europe.

01:33:43.500 Mississippi law,

01:33:44.080 by the way,

01:33:44.840 which would be law

01:33:45.620 in Mississippi.

01:33:46.620 Oh my God,

01:33:47.000 right,

01:33:47.380 they say 15 weeks.

01:33:48.220 Europe was not a model

01:33:48.920 where we,

01:33:49.360 where the court

01:33:50.080 who likes to sometimes

01:33:50.960 go looking at international law,

01:33:52.260 which can be a bit dangerous

01:33:53.460 because we have a constitution,

01:33:54.900 they don't.

01:33:56.420 That doesn't help them.

01:33:57.640 Europe does not help them there.

01:33:58.640 Alita points that out

01:33:59.480 in Putnam.

01:34:00.580 Yeah,

01:34:00.880 and then,

01:34:01.240 and you also point out

01:34:02.320 that over there in Europe,

01:34:03.960 they don't exclude

01:34:05.260 in principle

01:34:05.920 the unborn child

01:34:07.220 from the scope

01:34:08.440 of human rights,

01:34:09.460 including the right to life.

01:34:10.680 There's a real recognition

01:34:11.920 that this is a life.

01:34:14.880 Yeah,

01:34:15.120 so it's personhood,

01:34:16.140 which this opinion

01:34:17.620 by Justice Alita,

01:34:19.180 I think does that

01:34:20.600 without explicitly

01:34:21.840 saying the word personhood.

01:34:24.140 But one of the things

01:34:25.360 we argued is

01:34:26.160 a person is protected

01:34:27.720 under the constitution

01:34:29.000 and is that unborn child

01:34:30.500 a person.

01:34:30.920 Our view is that it is,

01:34:32.160 and I think this opinion

01:34:33.240 recognizes that.

01:34:34.280 But in Europe,

01:34:34.900 it's a given.

01:34:36.840 And even the countries

01:34:37.760 that allow abortion,

01:34:38.980 like you said,

01:34:39.460 the most restricted

01:34:40.100 at about the end

01:34:40.940 of the first trimester,

01:34:42.200 but even the countries

01:34:42.940 that do,

01:34:43.520 they still say it's a person.

01:34:45.280 It's just saying

01:34:45.800 that the interests

01:34:47.060 there weigh the other way.

01:34:48.960 But none of those

01:34:49.980 compared to what

01:34:50.500 the United States

01:34:51.240 has on abortion laws.

01:34:52.820 We are the most aggressive.

01:34:54.900 We have people

01:34:56.160 over here on the left

01:34:56.980 that have literally

01:34:57.760 referred to unborn babies

01:34:59.560 as clumps of cells,

01:35:01.200 clumps of cells,

01:35:01.840 and that's it.

01:35:02.480 They're the same people

01:35:03.080 who are referring to us

01:35:03.840 as bodies that give birth.

01:35:05.880 Like,

01:35:06.020 they won't say women,

01:35:07.380 except now we're hearing

01:35:08.620 a lot of women

01:35:09.340 if suddenly they remembered

01:35:10.340 what women are.

01:35:11.500 Jay,

01:35:11.860 thank you so much.

01:35:13.180 I hope we can talk again

01:35:14.100 once we learn more,

01:35:15.300 but I really appreciate it.

01:35:16.360 Hopefully we get an opinion soon.

01:35:17.920 Yeah,

01:35:18.200 exactly.

01:35:18.560 Fingers crossed.

01:35:19.720 And the leaker's name.

01:35:21.180 I love that show.

01:35:22.120 I hope you love that show.

01:35:23.420 It was like elevated discussion

01:35:25.080 that's still easily digestible

01:35:26.740 by everybody,

01:35:27.640 but with some of the greatest minds.

01:35:29.160 Right?

01:35:29.360 Josh Hawley,

01:35:29.940 my God.

01:35:30.660 Not only did he clerk

01:35:31.940 for Chief Justice John Roberts,

01:35:34.020 but he's a U.S. Senator,

01:35:35.040 and you know,

01:35:35.400 the J.D. Vance,

01:35:36.600 all of it,

01:35:37.360 like totally on point.

01:35:39.080 Glenn Greenwald,

01:35:39.780 Pulitzer Prize winning,

01:35:40.580 brilliant lawyer,

01:35:41.900 totally fair

01:35:42.860 and fascinating guy,

01:35:44.280 isn't he?

01:35:44.520 Comes at every story

01:35:45.140 from a different angle.

01:35:46.740 And then Jay Sekulow,

01:35:47.820 you could ask for no better.

01:35:49.180 I could listen to him

01:35:49.780 talk for another hour.

01:35:51.280 He's lived it.

01:35:52.200 He's the real deal,

01:35:54.380 not some Supreme Court faker.

01:35:56.200 So,

01:35:56.600 I hope you enjoyed it

01:35:57.580 as much as I did.

01:35:58.440 And we're going to do it

01:35:59.140 all over again for you tomorrow.

01:36:00.560 We're going to stay on

01:36:01.320 this leaker story

01:36:02.620 with Rich Lowry

01:36:03.820 of National Review

01:36:04.680 and we're going to stay on

01:36:05.620 the Left Meltdown story as well.

01:36:07.580 Senator Ted Cruz will be here

01:36:08.880 and our pal Michael Knowles

01:36:10.760 of The Daily Wire.

01:36:11.580 He's always so fun.

01:36:12.700 I love Michael Knowles.

01:36:14.460 Speaking of the way

01:36:15.940 their minds work, right?

01:36:16.960 It's like Glenn and Michael,

01:36:18.680 they just,

01:36:19.160 you can't predict

01:36:19.900 what they're going to say,

01:36:21.340 which is part of the fun.

01:36:22.640 Anyway,

01:36:22.900 in the meantime,

01:36:23.380 go ahead and download

01:36:24.100 The Megyn Kelly Show

01:36:25.760 on Apple, Pandora,

01:36:26.700 Spotify, and Stitcher.

01:36:27.480 Leave me a comment

01:36:28.140 over there on Apple.

01:36:29.360 Oh,

01:36:29.620 and a five-star review.

01:36:31.180 I never forget,

01:36:32.260 I always forget to ask

01:36:33.680 for a five-star review,

01:36:35.120 but that would be nice.

01:36:36.460 Also,

01:36:36.900 follow us at

01:36:37.340 youtube.com

01:36:38.300 slash Megyn Kelly

01:36:39.100 and thank you so much

01:36:40.340 for listening.

01:36:42.780 Thanks for listening

01:36:43.600 to The Megyn Kelly Show.

01:36:44.700 No BS,

01:36:45.840 no agenda,

01:36:46.780 and no fear.

01:37:02.260 I'm heyn Kelly.

01:37:04.400 Thank you.

01:37:05.120 Goodbye.

01:37:05.500 Thanks for listening.

01:37:05.700 Bye.

The Megyn Kelly Show - May 04, 2022

Dems New Abortion Push, and SCOTUS Leaker Fallout, with Sen. Josh Hawley, Glenn Greenwald, and Jay Sekulow ｜ Ep. 314

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