The Megyn Kelly Show - Epstein Docs Released, Idaho Murders House Destroyed, and Trump's ＂Immunity＂ Claim, with Nancy Grace, Dave Aronberg, and Mike Davis

00:00:00.640 Welcome to The Megyn Kelly Show, live on Sirius XM Channel 111 every weekday at New East.

00:00:12.020 Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show. Oh, we have a packed show for

00:00:16.060 you today. In just a bit, we're going to be joined for the first time ever by Nancy Grace. I've

00:00:21.140 spoken with her before during my Fox News year, but never on this show. She's my neighbor on

00:00:27.300 Sirius XM and has a podcast, which is produced by the same folks who helped me produce mine,

00:00:33.460 Red Seat Ventures. So we have some real estate in common, but we also have a commitment to justice

00:00:38.960 in common. And I just love how fierce and fearless she always is in going after bad guys. She spent

00:00:46.540 her career trying to set the record straight and has an amazing record. Is it a hundred percent

00:00:53.260 perfect in the courtroom? It is, uh, as a commentator, you know, some right, most right,

00:00:57.760 couple wrong, but a very stellar record. And, uh, I've long been her fan. So she's coming on in just

00:01:03.280 a bit. Uh, there are updates in the Brian Kohlberger Idaho murder case, as well as Casey Anthony. Uh,

00:01:09.820 plus we'll get a little bit into Nancy's life story, which is absolutely fascinating. She talks

00:01:13.680 about herself a bit on her podcast, which I do listen to. Um, and I I'm looking forward to the

00:01:19.320 chance to just talk to her about herself. So we'll do that in just a bit. And then after Nancy,

00:01:25.400 we're going to be joined by our Trump legal all-stars, uh, from two very different perspectives,

00:01:30.840 Dave Ehrenberg and Mike Davis. And there are some very big developments in Trump trial land that are

00:01:37.440 going to be affecting all of our lives over the next year. So we'll highlight what to look out for

00:01:41.260 and what to watch for. But, uh, I'm wanting to begin, uh, with the story that set the internet on fire

00:01:48.340 last night, the Jeffrey Epstein document release. Here's what happened in case you weren't paying

00:01:53.740 attention. Last month, the judge ordered nearly a thousand pages to be released in connection with

00:01:58.360 a defamation case. And nearly all names are unredacted. They include more than 100 names,

00:02:05.160 including many high profile individuals. Now this is not, Oh, all these individuals had sex with

00:02:09.260 young girls. Thanks to Jeffrey Epstein. It's witnesses who are around Jeffrey Epstein or

00:02:14.480 exploited by Jeffrey Epstein in some cases, repeating what Jeffrey Epstein said about certain

00:02:21.360 individuals or so on. Uh, so it's not clear indictments of people's character. You have to

00:02:26.980 sort of really delve into it. We'll give you just some highlights here. Uh, most of the names have

00:02:32.880 previously been reported on, but we are learning some new information as well. The biggest and the

00:02:37.360 biggest piece of news to come out last night is about former president Bill Clinton in what is,

00:02:42.080 you know, it's one of those shocking, but not surprising revelations, uh, in a deposition of

00:02:47.380 a woman who accused Prince Andrew of groping her. She says Epstein told her quote that Bill Clinton

00:02:53.380 likes them young, referring to girls. All right. So there's, there's a couple of women involved with

00:03:00.280 this allegation. There's Virginia Giuffre and then there's this other gal. Uh, and they say that

00:03:06.380 Jeffrey Epstein claimed Bill Clinton likes me young. I mean, I don't know.

00:03:12.080 Are we surprised? Like, you know, it's shocking, but not surprising. Like I said,

00:03:16.780 we've seen this history of his for a long, long time. We elected him president. We almost elected

00:03:21.680 his wife president. That didn't happen. But remember that point in 16, where you had Trump

00:03:25.980 with all these women coming out and accusing him at the same time you had Hillary who was married to

00:03:30.060 a man who'd been accused by, I was like, this is America. Uh, that same woman in these depositions

00:03:35.960 also talked about meeting magician, David Copperfield, who she says asked her if she was aware that

00:03:41.020 girls were getting paid to find other girls, famous celebrities like Leonardo DiCaprio, Cameron Diaz

00:03:50.080 and Bruce, Bruce Willis are mentioned in the documents, but only in relation to an accuser

00:03:54.680 denying having met them. That's important that she denies having met them, but noting that Epstein

00:04:02.540 had brought them up as part of his name dropping habit. There's no evidence that they actually did meet

00:04:09.020 any victims of Jeffrey Epstein separately. And interestingly, Epstein's brother, Mark is

00:04:17.180 speaking out, telling the New York post for the first time that his brother, Jeffrey Epstein told

00:04:22.380 him in 2016, quote, if I said, what I know about both candidates, they'd have to cancel the election

00:04:28.880 referring to Donald Trump and Hillary Clinton back to my earlier point. But Mark said his brother

00:04:35.640 never revealed to him exactly what he knew about Trump or Clinton. Do I believe that? I'm not sure

00:04:42.820 I do. I'm not sure I do. Mr. Trump told New York magazine in 2002 that he had known Epstein for 15

00:04:50.040 years, but he later distanced himself from Epstein around 2004. Jeffrey Epstein, as you know, is reported

00:04:56.720 to have taken his own life in his New York jail cell in 2019 while he was awaiting trial on sex trafficking

00:05:04.100 charges. Many people to this day believe that was not a suicide, but some sort of planned execution

00:05:10.960 by those who stood to lose a lot. Former Attorney General Bill Barr, who was AG when this all happened,

00:05:19.580 told me on this show he does not believe this was anything other than Jeffrey Epstein taking his own

00:05:24.760 life. And he was wide open to that possibility, but he'd reviewed a bunch of videotapes and so on.

00:05:29.720 Uh, it's all fascinating and we're not done with Jeffrey Epstein. I can tell you that for a fact.

00:05:34.580 Can't tell you how I know, but I can tell you for a fact, we're going to hear a lot more about Jeffrey

00:05:38.800 Epstein in the coming year. Uh, and you may be even hearing from him directly more on that as I'm

00:05:46.580 allowed to tell you. Okay. But for now we turn to Nancy Grace. She has a decades long career in the

00:05:55.520 media. She's the host of the crime stories, crime stories with Nancy Grace podcast, and is here on

00:06:02.360 the show. As I mentioned for the first time, Nancy, so great to have you. Thank you for inviting me.

00:06:06.860 It's a real honor. I love not only how you talk about all the crimes that I want to hear your

00:06:12.120 opinions on and your analysis of, but I do love how you mentioned your family life on your podcast.

00:06:18.100 Like, I feel like I know your twins, um, just because you're, you know, you're free about sometimes

00:06:23.240 talking about them and what's going on in your life. And for me, Nancy, I has a personal connection

00:06:27.320 because I know you got married in 2007, right? And I got married in 2008 and we both started having

00:06:34.480 children right around the same time. You had the twins. I had my first child in 2008 and another

00:06:39.800 in 2011, then another in 2013. So I almost feel like I've, in a way I've been going through motherhood

00:06:46.820 with you. And I did not realize, forgive me for bringing up age, but I did not realize that you

00:06:52.980 were 48 when you had the twins, which is amazing. That is amazing. I am so tired having had my first

00:07:00.740 child at 38. I can't imagine getting started at 48. And I wonder how they're doing and how you're

00:07:09.920 feeling with like, I feel like this world we're in now, the digital world is a lot easier to have

00:07:13.900 balance and see your children than our old world of you were on HLN and I was on Fox than that world

00:07:20.100 was. How do you see it? Well, you know, Megan, my children are really miracles. Um, after the

00:07:30.560 murder of my fiance shortly before our wedding, many, many years ago, um, I never thought that I would

00:07:39.240 ever be a wife, much less a mother had no interest in it at all. It hurt me personally, but I think it

00:07:49.240 helped a lot of crime victims because all those years, I mean, I started off planning to be a

00:07:56.540 Shakespearean literature professor. That didn't happen after Keith was murdered. I just didn't think

00:08:02.980 I could be in a, in a classroom ever. I didn't know what I was going to do, but something I had to do

00:08:08.240 something. And that something was to go to law school. And Megan, you're going to laugh. I had

00:08:15.940 to look up the definition of plaintiff and defendant in Black's Law Dictionary and wrote it down. I still

00:08:22.600 remember writing it down. I had moved to Philadelphia from my sister as a professor at Wharton at that

00:08:27.780 time. And I kept writing and writing. It was a whole page of the definition of plaintiff and a whole

00:08:32.580 page of the definition of defendant. But I did get into law school. I had one recommendation, Megan,

00:08:39.200 one recommendation to get into law school, my Sunday school teacher, Ms. Jeanette Johnson. And guess what?

00:08:46.080 I got in. I don't know how I got in, but I got in. Um, I never looked back. I was a machine. All I cared

00:08:57.700 about was putting the next guilty guy behind bars. And yes, they're usually guy, although I had my

00:09:03.020 share of women behind bars too, but that's all I cared about. I would send one jury out to deliberate.

00:09:08.700 And while they were out deliberating, we'd bring in the next panel. That is a very tense lifestyle.

00:09:16.740 It's a very hard way to make a living, but that's all I cared about, Megan. And anything else,

00:09:22.260 a personal life meant nothing to me at all, hence gaining a very bad reputation as being

00:09:30.260 mean, evil, heartless, ruthless, blah, blah, blah. So as many, many years later that I married my

00:09:38.540 longtime love, David, who had stuck by me through thick and thin, I really don't think I would have

00:09:44.700 lived physically if he had not gotten me through those years. When I met him, I was down to 89 pounds.

00:09:51.660 I didn't want to eat. I didn't want to drink. I didn't want to do anything. And he stuck by me

00:09:58.300 through all those years. Just before the door closed, we got married. And in a miracle, I got

00:10:06.080 pregnant. Lucy was born at two pounds, smaller than a kitten, Megan. And, uh, we were all in intensive

00:10:13.920 care for a really long time. Oh, there, there she is. And him babies. So that is the story. And

00:10:21.360 yes, thank heaven for the new world, other than, you know, racing around the way we did to being

00:10:30.900 able to be moms and work. I'm just so happy. My mom did not have that luxury, nor did my dad.

00:10:38.160 No, mine either. Um, not that my mom would have wanted to be home with a small time. She would

00:10:46.360 feel like it's too much, but, uh, I don't feel the same. I'm, I love having the balance that I have

00:10:51.880 now. And I never could have made it in the Fox news prime time for longer than I did. It was just,

00:10:55.640 wasn't seeing them at all. Now you were before, before you really, you know, your kids were young,

00:11:01.500 but I remember in 2011, that's when the Casey Anthony case was out and I was at Fox and I was,

00:11:08.080 I was live in the middle of the day at that point. But what I remember is you were crushing it. You,

00:11:13.840 I mean, you were the main reason that story went national and people started to pay attention

00:11:19.640 to what she had, I believe, 100% done and now got away with. And what I remember Nancy is you started

00:11:28.220 to beat Bill O'Reilly. He was on at eight on Fox. You were on his competition at eight. And normally

00:11:36.080 headline news did not give Fox a run for its money. Just, you know, it was just not the same

00:11:40.480 juggernaut, but you were about to take a month off of the King of cable, uh, Bill O'Reilly, because

00:11:48.280 your case, it was just, everybody was tuning in to hear what you had to say. And Fox was maneuvering

00:11:54.000 like there was no tomorrow to try to get his numbers up. And so what they would do is they

00:11:58.820 kept designating his, his shows on Friday, which were not strong, you know, Friday night ratings are

00:12:04.060 never very good, um, as specials so that they wouldn't count. I don't even know if you knew

00:12:09.260 this was happening. So this was the first time hearing of this. It was so that they wouldn't

00:12:13.800 tell Bill O'Reilly. I think that man can hold a grudge.

00:12:17.080 So I hear, and that was the only way they managed to stave off your ratings victories. But my point

00:12:25.140 is you were a juggernaut. And when you got your hands into a case, the whole nation paid attention

00:12:31.140 and really, this is a funny story. And I'm sure similar things happen to you, but, um, I had just

00:12:39.620 given the twins a bath, right? And we knew all day long since early that morning, as I still do,

00:12:46.980 uh, my EP, uh, Dean and I would get up around five in the morning and start looking at what's

00:12:52.580 happening around the country the night before in that morning. And we had our, our program set.

00:12:58.540 There was a missing person, a child. That's what we were going to devote the night to. So I went about

00:13:05.160 the day working. I gave the twins a bath. I had to crawl out the back window because if I put on

00:13:13.060 shoes or regular clothes, they would know I was leaving and Lucy and John David would cry. So I

00:13:19.360 would give them a bath and go, I'll be right back. And I climb out the playroom window, put on my shoes

00:13:25.800 and go get in the car and go to work. So I was wet from the bath. I had just put my shoes on, was

00:13:30.840 driving to work. And I was starting a conference call about what sound do we have? What chyrons

00:13:36.340 are we putting up? What's all that. And lo and behold, Megan, I find out that the child had been

00:13:43.480 found. Well, there goes the hour. I'm like, Oh dear Lord in heaven. And I said, what else has happened?

00:13:49.100 And they told me that a little girl had been reported missing. And I say, when was she reported?

00:13:54.300 And they said 30 days ago. And I'm like, stop. What? And that's how it started. They told me

00:14:00.960 Kelly had been missing for 30 days before she was reported missing. And I went, uh, uh, no lead with

00:14:09.880 that. That's all I knew. And I said, who reported her missing? And they said the grandmother. I said,

00:14:16.660 well, where's the mother? And that's how the whole thing started in the back, in that car on the way to

00:14:22.580 work. All right. So I'm, I'm getting ahead of myself because I want to stay back for a minute

00:14:27.320 in your prosecutorial years, because I do think it's amazing. Very few prosecutors have a perfect

00:14:33.760 record, a, a 100% perfect record of conviction. This is what I love about you. I love that you did

00:14:40.360 this. This is one of the reasons I went to law school. I wanted to be a prosecutor, but I never did

00:14:45.520 it. I sold out. The big law firms came with big money. I was poor. I know you were poor.

00:14:52.560 You know, but like I sold out and I didn't do it. And I, oh, to this day, I have a Jones to go back

00:14:58.520 and do it. Like I, I've considered it, you know, even now, like maybe I could still do it, but I

00:15:03.060 love that you did it. And I know it was, as you mentioned, linked to the murder of your fiance,

00:15:08.260 but how do you see your career in law enforcement as a prosecution now as a prosecutor? Because I feel

00:15:15.880 like not to say anything that was justified that happened to Keith, but there was a purpose for you on

00:15:22.120 this earth. Like you think of all the people you helped while you were a prosecutor and then beyond

00:15:27.260 if that one event hadn't happened, I don't know what you'd be doing. I guess you'd be teaching

00:15:32.360 English literature and at the college level. I would be. And I would be living in Colorado with

00:15:37.420 Keith or he already had a job lined up and maybe even teaching high school. I don't know what I would

00:15:41.620 have been teaching. Sometimes I think about that, but I try not to because, you know, when you have

00:15:50.360 depression, when someone has depression, sometimes you get so deep into it, you can't get out of it.

00:15:58.400 And I lived in that deep state for a long time after Keith's murder. And I'm one of those people

00:16:06.420 that once I get in it, I can't get out of it. So whenever I get close to it, I back off as quickly

00:16:12.280 as possible. So I try not to think about what may have been. And I focus on what is now.

00:16:20.680 My years as a felony prosecutor were the hardest, most demanding job I have ever had. And I would do it

00:16:31.820 again in a minute. I've often thought of, you know, on those nights I was sitting across the

00:16:38.320 table from Johnny Cochran during Cochran and Grace, I thought and beyond many times. And I'd be

00:16:44.580 arguing with some lawyer on the other end of the camera. I'm like, why am I here? Why am I not back

00:16:49.020 in court making a difference in this world and doing something really worthwhile? It's, you know,

00:16:54.820 at the end of every trial, you have a victim's family that you know you have helped or a victim

00:17:01.720 that lived. And you know, you've done the right thing and you get immediate gratification. And I

00:17:08.780 knew that I was helping in some way. You know, in our world now, we don't ever really know unless,

00:17:15.660 you know, somebody is found or a case is solved because of our program, which has happened many times.

00:17:21.460 Then I know that it's making a difference. You know, I had to have two night jobs when I was a

00:17:27.620 prosecutor to pay the house note and the car note. And I would drive that beat up Honda and I would

00:17:37.080 sit in a red light making you're going to laugh on the way to court and there would be just smoke

00:17:41.080 coming out from under the hood. And I'm like, you know what? Screw it. I'm going to the courthouse

00:17:44.780 if I have to walk. So yeah, that was the hardest job I've ever had. And it is sometimes very much

00:17:53.880 like you see on TV. I never really had second chairs. Sometimes I did, but I had to think I

00:18:03.400 couldn't talk to anyone during a trial. In fact, I would make my investigator write me notes and hand

00:18:09.000 it to me because I had to hear every word. And even now I ask people to say, will you say that again?

00:18:16.020 Because even one word matters. But I would say that was the best and worst job I've ever had.

00:18:23.620 You, did you always have the ability you have now to be, I mean, you're very clear in your

00:18:29.900 presentation. And one of the things I love listening to you talk about these big cases is

00:18:34.060 you ask the best questions. They're not the always the obvious questions. You'll say like,

00:18:40.580 why would somebody who was telling the truth about this have done that? You can see the truth lane and

00:18:47.160 you can see the falsity lane. And like, I can see your radar going off when someone is in the wrong lane

00:18:54.900 and you just will hammer the story or the person, if they're there on the inconsistency, the poor logic

00:19:02.080 of the lie they're trying to tell. But not everybody has that ability. So have you always

00:19:07.520 had it? Was this a skill you honed? And where did, where did it come from? Like, did you, were you

00:19:12.840 raised to do this thing? I think I've got a very sensitive BSO meter, but as far as speaking publicly

00:19:20.140 for the longest time, I could not say an R, which is not good if your name is Nancy Guace. And I,

00:19:27.100 we didn't have, I mean, my dad worked for the railroad, then Southern Central Railroad,

00:19:32.540 now Norfolk Southern. My mom was a bank teller that worked her way up to be a CFO of a company,

00:19:38.360 but we didn't have a speech therapist. And I can remember my parents saying, just,

00:19:44.600 just work on your R's. Okay. And I remember playing outside and I climbed a tree and I was

00:19:53.520 practicing my R's. And I can remember Megan, the first time I said river and I could hear it. I'm

00:20:00.500 like river. And I knew I had said it correctly. And I jumped out of the tree, ran in the house,

00:20:06.480 all through the house, screaming river, river. So, you know, it, I think that to be a prosecutor,

00:20:14.960 you don't just win the case. You have to do it ethically. You can't cheat.

00:20:21.140 You have an additional burden. You have to be the good guy or else you lose it all. That's a very big

00:20:30.280 burden. So it wasn't just about winning for me. It was about putting the right person behind bars

00:20:39.240 on a felony. And at the end, I was focusing on serial killing, spree killing, serial molestation,

00:20:49.140 serial rape, and any sort of arson. So I guess I was removed in a way, but when I would be

00:20:58.560 with the family of these victims, I mean, I remember them like it was yesterday and I'm still

00:21:07.100 in touch with many of my friends that I made in the district attorney's office.

00:21:11.820 That is so heavy. That is like the heaviest stuff to deal with day in and day out. And unlike,

00:21:19.100 you know, people in news like me, we get to the darkest cases. I can choose now with my audience

00:21:24.840 to omit, you know, the darkest details, right? People are trying to follow the news, but they

00:21:29.760 don't necessarily want to have their heart crushed on a Monday, you know, when they're trying to catch up

00:21:34.020 when you're the prosecutor, there's no out. You've got to immerse yourself in it. You have to live it.

00:21:40.180 You have to present it. The poor jurors have to see it. And your response, like it's a dark life

00:21:46.400 in many ways. And you did it for how many years?

00:21:49.240 Oh gosh. Let's see. When I got out of school, first I was a clerk to a federal judge. Then

00:21:55.280 they wouldn't take me at the district attorney's office because I had no experience.

00:21:59.160 So I went to antitrust and consumer protection with the federal government. So I was a fed for

00:22:05.000 three years. Finally, finally, I got in at the Fulton County district attorney's office. I'd been

00:22:13.000 trying for three years. I finally got in. My first case was a shoplifting and more accurately put an

00:22:21.720 attempted shoplifting because poor little guy, he's very pale and sickly looking and pitiful and

00:22:29.100 about as short as I am. And he actually didn't steal anything, Megan. And that was my first case.

00:22:35.500 I won on attempted shoplifting. And I remember arguing and I looked up at the judge and he was

00:22:41.540 like, what? But somehow I managed to eke out an attempted shoplifting. And from there,

00:22:48.000 I went straight into violent felonies.

00:22:51.760 Wow. So that was years. I mean, I don't like, was it five years, nine years? I can't remember what I

00:22:56.960 read. 10 years in the district attorney's office, almost to the day. And I would have stayed, but my

00:23:02.980 elected DA, Mr. Slayton, then the longest serving district attorney in the country, I think it was

00:23:07.640 37 years. It was like a grandfather to me. I loved Mr. Slayton and his wife, Jackie, so much. And that

00:23:16.280 was at a time where women and minorities did not get to go in front of juries, Megan. We very often were

00:23:25.760 relegated to drawing up indictments or presenting to a grand jury or prosecuting in juvenile hall,

00:23:34.060 which is basically you sit around a table with a judge and talk about what's best for the defendant

00:23:39.020 that committed a murder. He, however, was very advanced. He handled the Wayne Williams case. He

00:23:47.940 handled so many high-profile cases. Great, great person. And if you could win a case, you would be

00:23:55.360 a trial lawyer. So I managed to, along with a few other women and many, many minorities,

00:24:02.240 become a trial lawyer. And those were some of the best years of my life until I had the twins.

00:24:10.820 Mm-hmm. And just so the audience knows not to bring it up and linger on it, but Keith was,

00:24:16.960 Keith, the thing that set this off, Keith, your fiancee was murdered. So I understand it was a

00:24:21.000 workplace violence situation where somebody came and shot him while he was driving a truck and multiple

00:24:28.640 times he died. And then you actually testified at that criminal trial, which, my God, I mean,

00:24:37.320 people already know you're strong. I don't think that takes a special level of strength while you're

00:24:43.340 in that level of grieving to go testify at the trial, but you did it. Well, Megan, it's parts of,

00:24:50.640 much of it is like a blur. And, you know, for people often, poo-poo, lost recollection or recollection

00:25:03.160 regained. But I can say that for a chunk of time before Keith's murder and a chunk, a big chunk of time

00:25:12.280 after his murder, I don't remember so much. The things I do remember, I was at school

00:25:20.560 in a statistics exam. And I came out of the exam. And I remember it was so dark in the building.

00:25:28.460 And I opened the doors going out. I was at Mercer University. I later went to Mercer Law School

00:25:33.160 and NYU for my LLM in criminal and constitutional law. But at that time, I was just finishing my

00:25:40.060 undergrad degree. And it was so dark in the building and so bright and beautiful and sunny.

00:25:48.240 And I walked out and I stopped halfway, didn't have a cell phone and used a pay phone to call my job.

00:25:54.220 I worked at the university library to say, I'm on foot. I'm going to be there. I'm 10 minutes late,

00:26:00.940 but I'm coming. And they told me to call Keith's sister, Judy. And I knew then something was horribly

00:26:07.700 wrong. And I remember, Megan, that when I tried to dial the numbers, my hand wouldn't work. Have

00:26:18.340 you ever seen a moth around the light outside, how it flitters around like that? I looked at my hand,

00:26:25.660 and that's what I couldn't get to the numbers. But I did get to them. And I don't know how,

00:26:31.880 Megan, but I knew. And she picked up the phone and said, where are you? And I said, is Keith gone?

00:26:44.460 And I knew. And she said, yes. And after that, it was a blur. I dropped the phone and left it just

00:26:52.640 hanging, as I recall. And I remember driving by our little Methodist church. There's nobody at home.

00:27:04.120 Both my parents weren't. I had just transferred back home to Mercer from where I met Keith in Valdosta.

00:27:10.700 And I stopped at our church because I saw a car park there. And I went in and my pastor was there,

00:27:15.280 Dr. Oliver. And I said, Keith is dead. And I sat down at his desk. And then I decided, Megan,

00:27:26.660 that he wasn't dead, that he had been in a crash and he was alive. And if I could figure out where

00:27:31.300 he was, I could get to him and I could fix it. And so suddenly I was in a hurry. And then I saw

00:27:37.360 upside down reading Billy Roach Bernstein Funeral Home. And then I, I knew. And that's what happened.

00:27:49.440 And everything else was just kind of a blur. But yes, I, I hardly remember much about the funeral,

00:27:56.180 except the pastor kept calling me Mary. And then I remember the trial. That was the first time I'd

00:28:04.180 ever been in a courtroom. And I went in and I don't remember this. My mother and father would

00:28:11.340 take off of work and drive me every day. But I hardly remember that. And that was hard to get off

00:28:17.580 of work. And it was a long drive, I understand. Yeah, it was. It was a long drive, about two hours each

00:28:23.680 way. And I got there and everything was so quiet. I remember I had on my boots, my cowboy boots,

00:28:32.620 and I could hear each foot going up the stand. The witness sat right beside the bench, elevated.

00:28:40.160 And I spoke to the jury. And I remember coming down off the witness stand. And I looked at the

00:28:48.160 council table, and I saw Keith's bloody shirt there. And I had not seen that before.

00:28:59.860 And I kept walking. And I saw the defendant. And he looked at me. And then he looked down.

00:29:07.120 He wouldn't look at me. And then I looked at his lawyers. There was a couple of lawyers

00:29:11.700 sitting there. And they looked at me. And they looked down. They wouldn't look at me.

00:29:16.460 And I didn't know what any of that meant. And I walked out. I could hear my feet.

00:29:21.260 And then the door shut behind me. And I don't remember anything else. But what happened to Keith

00:29:27.720 is this. He had a summer job. He was a geology major. And his dad knew some guy that owned a

00:29:35.360 construction company. And he had a summer job at construction, way out in the middle of nowhere,

00:29:40.140 very rural building, I guess a commercial building. And at lunchtime, they were so far away,

00:29:45.520 somebody had to drive into town to get sodas. And Keith volunteered. As I recall it, the perpetrator,

00:29:54.820 the killer, had been fired off the job and was angry. And Keith drove back in in the company truck.

00:30:01.880 And he opened fire and shot Keith five times in the face, the neck and the head. Keith lived. He was

00:30:11.020 an athlete. He had been on baseball scholarship. And he was alive when he got to the hospital,

00:30:17.200 but then died. That's what happened. Wow. He, the man who did it was convicted.

00:30:25.080 And how long did he serve? And where is he now?

00:30:31.880 I remember I was at Court TV. And I can place it at about 90. Oh, gosh.

00:30:42.540 I guess he did. Oh, gosh, he did well over 20 years. But I had been on the air. I did the morning

00:30:49.520 shift that morning for some reason, and went back to my office. And I was looking out at Third Avenue.

00:30:55.900 My office then was at the corner of 40th and 3rd. And I was reading emails that had been sent to me on

00:31:02.220 the public forum. And somebody had written, did you know Keith's killer has been released?

00:31:07.720 I couldn't believe it. That's how I found out. And I just remember, I didn't even try to look it up. I

00:31:15.440 just sat there and looked out at Third Avenue. So that would have been around 2000, I guess.

00:31:24.540 Where is he now? I don't know. I don't know where he is now. I don't know if he's dead or alive.

00:31:29.260 And would it matter? It won't change anything that happened. Except if I knew where he was,

00:31:35.740 I might want to go kill him, Megan, and then you'd have to defend me.

00:31:39.880 I would.

00:31:41.200 And then I'd only see the twins on visiting day behind barbed wire.

00:31:45.320 Like I really, I can't imagine that. I do not have anything in my past that helps me relate to

00:31:50.600 this, but the one sliver I can, because I had a very bad stalker at one point. And the guy wound

00:31:57.500 up going behind bars and into a mental institution for 10 years. And, you know, as the victim quote of

00:32:05.820 his crime, they had to let me know when he got out. And I remember my stomach dropping. Like, you

00:32:11.000 don't, you don't know what it means. Does it, does it mean things are going to start back up again?

00:32:15.200 Am I in danger? And I'm sure you had to at least think about that. Like, what has he been in any

00:32:20.260 way reformed? Is he still wrought with anger? He knows your name. You were not a public figure

00:32:25.980 when you testified, but of course he knows your name. And then you went on to become a big star.

00:32:30.880 So I'm sure it had to raise a lot, a lot.

00:32:33.660 What bothers me more is the people I put behind bars happily. And Megan, I would look them right in

00:32:42.860 the eye when they got dragged out of court. I mean, no mercy. I don't care if it's attempted shot

00:32:52.900 lifting or triple homicide to hell with them. But what about my children? They're getting out now.

00:33:01.320 I do think about that a lot. Yes. And that is honestly the one reason I can't go back to the

00:33:08.880 business until they're off in college in a way. I just can't put them and David, who's like the

00:33:15.300 best person I've ever known. Well, maybe second to my dad and mom, but I can't put them in that kind

00:33:23.180 of a danger. Yeah. It's already risky enough just being a public person, nevermind a public person

00:33:30.520 who's putting criminals behind bars for a living. All these prosecutors, I feel for the ones who are

00:33:34.960 making $33,000 a year in these local DA's office who are in danger. And unlike you today or me today,

00:33:43.760 they cannot afford a security guard. 32, 32,000 bucks at my height.

00:33:50.020 Yes. 32. Hence the two. I believe it.

00:33:54.280 No, that this is why I didn't do it because when I graduated law school in 95, I had a hundred,

00:33:58.620 a hundred thousand dollars in debt and I wanted to work in the Manhattan DA's office. I'm from New York

00:34:02.780 state and it was $35,000 a year. And I would have been below the federal poverty level.

00:34:08.220 And then along came the big white shoe law firms, you know, and they were like, here's 85,000. I was

00:34:14.960 like, Oh my God, that's a life changing offer. You know? And so I did, I went the corporate route.

00:34:21.700 It worked out in the end, but one of these days, don't be surprised if I leave the media business and

00:34:26.560 there I am working in the Manhattan DA's office prosecuting crime.

00:34:32.000 It was great, Megan. It's great.

00:34:35.500 We were lucky to have you. The country was lucky. Georgia was lucky.

00:34:38.880 I would say one of the closest people to me now is my former investigator because he saved my life

00:34:48.280 for many other reasons. But we were out investigating a triple homicide that went down

00:34:54.200 on a Sunday night around 1130 in a housing project. And I couldn't, nobody wanted to be a witness,

00:35:00.380 of course. And we were out during the day, which of course, you're not going to find like dopers.

00:35:07.520 They're like vampires. They wake up, you know, at three and four in the afternoon,

00:35:10.460 but we were out looking for a witness and we went to one door, Megan, and it was hot and bright outside

00:35:17.600 during the investigation. And they were inside a dark apartment with a screen, a rusted screen door.

00:35:23.120 That door opened. The first thing I saw was a double barrel pointing right at my face and he grabbed

00:35:29.560 me and we both dove off the side of the porch. And on another occasion, a defendant took a lunge at me

00:35:38.160 in the courtroom, which I later, you know, reinterpreted and put in a book. And my investigator

00:35:47.220 was there to help me. But I like one of the things I like about listening to your show is you bring

00:35:53.340 back a lot of those folks from your prosecutorial career and you go back over stories and you'll

00:35:57.700 tell some of the stories. I remember one you told not too long ago was about, um, all I remember is

00:36:02.820 you were talking about how used to, you'd bring out a big jug of water in the courtroom, right?

00:36:07.880 That was great. Yes. Yes. And I would have it sitting there on the table, the entire trial

00:36:16.720 next to the Bible, of course. And, um, except the jug of water was a prop. I needed the Bible,

00:36:23.440 but the jug of water at the beginning of the trial, I'd shake it and it would get all muddy,

00:36:31.040 a big jar, like a big mason jar. And then in closing arguments, I'd shake it at the beginning

00:36:38.400 and set it down and then go through all the evidence and talk about how it is defense's job

00:36:45.720 to muddy the water, to make it unclear. But once you focus on the facts and the law,

00:36:54.360 everything becomes clear. And I would hold up the water that by the end of my hour long closing

00:37:01.520 argument had settled. Right. That's perfect. No, there's one thing Georgian jurors know it's muddy

00:37:08.560 waters. They're familiar with that. So it works. Yes. But that's just one example of your, your trial

00:37:13.760 gifts. I would have loved to have seen you in action. All right. Stand by. When we come back,

00:37:18.980 we're going to hit on a couple of the big cases of the day that Nancy's been covering in depth,

00:37:22.460 including Kohlberger in Idaho. Nancy, one of the biggest cases that we've been looking at and will

00:37:31.860 be looking at, we think that in 2024 is the Brian Kohlberger trial for the four murders that happened

00:37:38.320 in Idaho. And I know you've done specials on it and I want to talk about some of the news you broke,

00:37:44.240 but can we start with the fact that they did indeed tear down the house in which those roommates

00:37:51.580 were living over the objection of at least two of the victim's families who felt it should be preserved

00:37:58.340 in case it could be useful at trial. And I thought they raised some good points about how it might be

00:38:04.820 useful at trial in case the prosecution wanted to show jurors certain aspects of the murder scene.

00:38:11.080 But here you see the video of them tearing it down. The University of Idaho felt strongly it should go

00:38:15.240 site of trauma. People didn't want to look at it. What do you make of it?

00:38:18.860 People didn't want to look at it. I can't believe they did this. I can't believe that the interest

00:38:26.460 of the beautification of the campus outweighed the interest of justice. Now, practically speaking,

00:38:34.540 no jury is entitled to go to the crime scene. They're not. We hear about it quite often, as you know,

00:38:41.300 Megan, from being a trial lawyer yourself. We hear it about it a lot because it's rare. And when it does

00:38:47.540 happen, it makes the news. We know about OJ Simpson, rot in hell, taking the jury to his home, led by my

00:38:55.000 former co-anchor, Johnny Cochran. May he rest in peace. And of course, they had the chance, they,

00:39:01.140 the defense, to completely redo the inside and then take down all the pictures of sexy blondes and put

00:39:08.140 up pictures of Simpson with his mother and pictures of, I think, like a Norman Rockwell painting of the day

00:39:15.200 of Brown v. Board of Education, when the little girl goes for the first time to a now integrated

00:39:22.520 school. Images that would strike the jury at their heart as it would anyone. I mean, I walk into a

00:39:31.760 guy's home, I see a picture of him with his mother, and I think, wow, if he's that close to his mother,

00:39:36.740 how bad can he be? That was all staged. So I don't know that visits to the crime scene

00:39:44.400 help the state. On the other hand, look at Alex Murdoch, that POC, technical legal term.

00:39:53.980 The jury goes to scenes, the hunting lodge, where Maggie and Paul Murdoch were murdered by Alex

00:40:02.280 Murdoch. Don't anybody jump up and say he didn't do it because he did. They went there and they came

00:40:07.800 back with a guilty verdict. So, you know, it's like flipping a coin and I don't like flipping a coin

00:40:13.820 in court. It's akin to asking the question you don't know the answer to. When you do that, you are

00:40:20.620 going to get the blowback right in your face. You need to know exactly what's going to happen and

00:40:27.120 control it. Whatever the other side wants, you don't want. You don't have to think about it.

00:40:33.040 All you need to know is that's what the defense wants and then you know you do not want it to

00:40:37.100 the core of your being. Now, again, do they have to see the scene? No. It's a constitutional violation

00:40:43.740 if they don't see the scene. No. Is it rare that juries see a crime scene? Yes. However, in this day

00:40:50.780 in age, jurors expect DNA. They expect fingerprints. They expect a really advanced dog and pony show

00:41:00.880 and they expect to go to the scene if they so choose. That's not going to happen. More important,

00:41:06.820 Megan, I think that's a major mistake because very often it's alleged police wrongdoing,

00:41:14.720 whether it's some sort of misconduct or the gathering of evidence. I think it's really

00:41:21.660 important that the jury be able to see what happened and then combine it as an overlay with

00:41:28.760 whatever was on the body cams so they know that there was no police wrongdoing, no planting of

00:41:36.160 evidence, so to speak. I would like them to see the room where that knife sheath was found

00:41:44.240 bearing Brian Koberger's DNA in the snap. That's pretty strong evidence, right? But that's going

00:41:53.720 to be subject to an argument of contamination, of planting, and I'd like the jury to be able to see

00:41:59.500 that. 3D imaging, BS. There's nothing like the real thing. Well, and one of the points that the

00:42:06.900 families were raising was, what about these two roommates who were there who didn't call 911 or at

00:42:13.980 least make 911 get called through a friend until the next day? Wouldn't it be helpful to the jury

00:42:20.020 to see what could you hear from their rooms versus where the other rooms were? How far away were they?

00:42:25.720 I mean, these are all things that will become big issues. All of it's lost now. I want to move on to

00:42:31.520 one of the pieces of news that you made in your special. Your show airs on Fox Nation, in addition

00:42:36.880 to here on SiriusXM and the podcast, and you took a hard look at Brian Koberger, colon, I am blank.

00:42:43.660 It's aired in August, and this is one of the most interesting things. You had a guest who served as

00:42:49.140 Koberger's former administrator at a career and technical institute he worked at, and she called

00:42:56.580 attention to his issues even back then with women. Here's the clip.

00:43:01.680 Some of the issues that arose were based on having a mixed population in that classroom.

00:43:10.740 One of those incidents ultimately resulted in him being removed from that program.

00:43:15.280 She says Koberger's kicked out of Protective Services, the program he works so diligently to

00:43:21.340 get into in the first place. The school transfers him into the HVAC program, heating, ventilation,

00:43:28.420 and air conditioning. This program has no female students. We were also a little bit more comfortable

00:43:36.100 knowing that any possible continuation of negative behaviors would not occur in a situation

00:43:42.260 where there were no females. Has either of those women, have any of the women he had the problems

00:43:48.980 with come forward, you know, to say what he did or what it was about him?

00:43:55.700 Not in that particular instance as of yet, but I believe that by the time of trial that will be

00:44:01.740 ferreted out. But I can tell you this, I very carefully watched and listened and wrote down every

00:44:08.540 significant word of his confrontation with a female police officer. What he did is he went out into a

00:44:15.600 crosswalk and didn't come to a full stop as I recall it before he turned. Something maybe didn't put on

00:44:23.580 his blinker. Something you would normally think was fairly minor. Nobody was hurt. He gave her so much

00:44:31.580 grief. And I only hope he takes a stand and acts the same way on the stand. You know, he would not have

00:44:37.940 talked to a male officer the same way. And actually, we do know that because he was pulled over twice

00:44:45.340 in route with his father in the car from where he was, you know, Idaho, all the way back home to the

00:44:52.820 Poconos. And he stood up and saluted. Let me tell you, he gave those officers when he was pulled over,

00:44:58.580 the male officers, all the respect they could possibly hope for. But not only that, I'm very curious about

00:45:05.320 a co-worker where he was a teaching assistant getting his PhD in criminology. He befriended her,

00:45:11.520 convinced her she needed a surveillance system in her home. Then he set it up so he could have full

00:45:18.720 access to her home and watch her. What? Changing clothes, sleeping, watching TV. Not only that,

00:45:26.320 he had several altercations at the school. He was actually reprimanded about the way he treated

00:45:32.360 women students. But, you know, it's a good, good note to self, like all young women, if you need

00:45:37.820 help with the security system, hire a professional. You don't go to somebody who you barely know.

00:45:43.960 Right. Mistake.

00:45:44.820 Not the perv named Brian Koberger. Hey, and you know another thing which is not going to get brought

00:45:48.560 up at trial, I guarantee you, because the defense is going to argue it's too incendiary and prejudicial,

00:45:53.660 blah, blah, blah, blah. Incel, the theory that Brian Koberger is, in fact, an incel, involuntary,

00:46:00.440 celibate, and hates women because he can't be with women. And remember, he was also banned from a bar

00:46:07.440 because he would go up to women and say things like, what's your home address? I would run for

00:46:13.040 the hills as if I had seen a monster. If some creepy dude comes up to me in a bar and says, what's your

00:46:17.420 home address, lady? Uh-uh. N-O. He had to get thrown out of that bar. And I'm sure that there are other

00:46:22.800 examples. What do you think is going to happen with him? Because, you know, so far the prosecution

00:46:29.100 hasn't shown its hand about how much DNA evidence they have, but the defense at least is telegraphing

00:46:36.000 none. The defense wants us to believe there's nothing more than that one dot of touch DNA on

00:46:41.320 the knife sheath. So if you had to predict where they are now, chances of conviction in the two minutes

00:46:47.320 we have left. Well, I do know that discovery has been handed over to the defense.

00:46:52.800 Which means if there was more DNA, we likely would have heard about it. But there's more than just

00:46:58.380 that one bit of DNA. There's him buying the knife on Amazon and the knife sheath. We are still,

00:47:08.100 he bought it, but we can't find it. So where is it? We know he was anal compulsive. So what did he do

00:47:14.100 with that knife? And why was he in the vicinity there at the time of the murders? Megan, I drove

00:47:19.220 his route. Pitch dark. An hour home when he could have gotten there in 11 minutes. It's complete and

00:47:25.540 total BS. I can't wait to see how the defense handles that.

00:47:29.140 Mm-hmm. And then you also went and you spoke to the neighbor. Didn't I saw that on your show?

00:47:33.520 You spoke to the neighbor, but then the defense is going to use that, right? Oh, he loved to go out

00:47:37.820 for rides at night. He just, in the middle of the night, this is his stress relief. Look, he's a

00:47:42.880 wackadoodle, to put it euphemistically. The neighbor told me that he tried to befriend Koberger because

00:47:49.060 Koberger's dad said, hey, he has a hard time communicating. Can you befriend him? But the

00:47:55.520 neighbor's wife, after meeting Koberger, said, don't bring him back in our apartment. There's

00:48:00.320 something wrong with that guy. Yeah, she had the sixth sense. And when I think of those four,

00:48:05.940 yeah, those four beautiful students now dead and their families grieving, that guy, if we're going

00:48:16.180 to have the death penalty, which is a whole nother can of worms, he's the one. He is the one.

00:48:22.380 Couldn't agree more. This has been such a pleasure. Please come back.

00:48:26.200 I would love to. And thank you very much for inviting me. And hey, I saw you went on an RV

00:48:32.540 trip. I love RV trips. I want to find out all the details. Thank you. Got to run. All the best to be

00:48:40.560 continued. I've been telling my team this all show. I'm going crazy in my head right now. I'm literally

00:48:48.120 like driving myself nuts. My 10-year-old is learning the capitals of the States and my 14-year-old

00:48:55.520 recommended this song on YouTube that helps you learn them. And you cannot get this damn thing

00:49:02.540 out of your head. I mean, all I can think of as I'm doing these interviews with Nancy, and I'm sure

00:49:07.060 with our next guest, all I can think of is Baton Rouge, Louisiana, Indianapolis, Indiana, and Columbus

00:49:15.620 is the capital of Ohio. And we can keep on going. We're only like a quarter of the way through. You guys

00:49:22.380 are going to be stuck with this if I have to be stuck with it. But I will give you one tip. Give

00:49:26.300 you one tip. When you have the earworm in your head, you need a cleansing song, a cleansing song

00:49:32.320 that's catchy enough that it will erase it, but not so catchy that it becomes your new earworm.

00:49:38.100 And for me, that song is, and has always been, and really does work.

00:49:42.360 When this old world starts getting you down and people are just too much for you to take or me to

00:49:51.260 take, they're up on a roof. I don't know why, but it works. Okay, back to real news. It's a big time

00:49:57.740 in the 2024 election. Even before a single vote has been cast, the lawfare is on fire. Late yesterday,

00:50:05.540 former president Donald Trump appealed to the U S Supreme court as expected as asking it to overturn

00:50:12.500 Colorado's attempt to remove him from the ballot as an alleged insurrectionist under the 14th

00:50:20.400 amendment. We knew he would appeal. He did appeal. The Republicans in Colorado had already appealed

00:50:24.720 the Republican party. This is all about the primary ballot, but it's also going to relate to the general.

00:50:29.380 And now Trump has filed his own appeal to SCOTUS asking for them to overturn Colorado's ruling.

00:50:37.400 It is not hyperbole to say that if the high court takes up this case, it will be historic,

00:50:43.000 impacting the entire country and indeed the future of the presidency itself.

00:50:47.560 Who better to walk us through it than our Trump legal trouble, all stars, Mike Davis,

00:50:52.280 founder and president of the article three project and Dave Ehrenberg state attorney for Palm

00:50:57.220 Beach County, Florida, where Mar-a-Lago is located. You can find Mike on Fox news and Dave on MSNBC,

00:51:02.720 but only together here on this show, Mike and Dave, welcome back.

00:51:08.980 Thank you. Great to be back. Yeah. Happy new year.

00:51:12.200 Thank you. I apologize for putting that song into your heads. It's, it's so damn catchy,

00:51:16.140 but you do at least learn something. Um, okay. So Trump is appealing to SCOTUS,

00:51:22.740 the Colorado ruling. He's also filed his appeal of what the main secretary of state did. That's got

00:51:29.500 to play out in the main state courts first. And, but really the Supreme court will have the final say

00:51:35.340 on whether an administrator or a judge can kick a presidential candidate off of a ballot by declaring

00:51:44.040 either by a, you know, guys in robes, or in this case, an unelected secretary of state,

00:51:49.880 who's not even a lawyer, that he's an insurrectionist. The Supreme court will have

00:51:53.860 the final say. And we think that they're going to take the immunity case while we'll get to the

00:51:57.920 immunity case. Sorry. We think they're going to take the case about whether he's an insurrectionist

00:52:02.220 and can be kicked off the ballot. The question is when, and how will they rule? So Mike, what's

00:52:07.020 your prediction on what the Supreme court's likely to do on these rulings out of Colorado and Maine?

00:52:12.720 So I think the Supreme court will take this case and take this case quickly, even though these

00:52:17.700 cases are stayed by the Colorado Supreme court. Uh, once Trump filed his appeal, the Colorado

00:52:23.500 Supreme court said, we're going to stay the decision to go ahead and put them, go ahead and

00:52:27.340 put them on the primary ballot. Same in Maine. The reason the Supreme court needs to take this

00:52:31.680 case is because this, this bad precedent in Colorado with the four wacky, uh, Democrat appointed

00:52:39.380 Supreme court justices in this four to three ruling in this, like you said, unelected non-lawyer,

00:52:44.480 a wacky Maine Democrat secretary of state who thinks that they did just get to decide for

00:52:50.280 millions of voters who's on the primary ballot. That is a terrible precedent. And that needs to

00:52:55.540 be nipped in the bud immediately. So it doesn't get used in other States of the only way you can

00:53:00.720 disqualify under section three of the 14th amendment passed after the civil war to chase out of office

00:53:09.080 insurrectionist, uh, uh, Confederate insurrectionists who engaged an insurrection or rebellion during the

00:53:15.680 civil war. The only way you can disqualify. And there's a case from like 1869 on this from chief

00:53:21.280 justice, uh, Salmon chase is Congress has to pass a federal criminal statutes. You have to bring

00:53:28.140 federal criminal charges for insurrection or rebellion. The grand jury has to indict the jury has

00:53:34.380 to find the defendant guilty with evidence beyond a reasonable doubt, unanimously guilty. The federal

00:53:40.100 judge has to convict under this specific federal criminal statute for insurrection or rebellion.

00:53:45.960 And then that conviction must be upheld on appeal. That is the only way you can disqualify. You can't

00:53:51.860 have partisan judges on a state Supreme court with an expedited election challenge proceeding where you

00:53:58.220 don't have due process where you're letting, letting in a boatloads of hearsay evidence. You don't have a

00:54:04.260 fair trial or you especially don't let an unelected non-lawyer judge just decree that there's an

00:54:10.320 insurrection and take someone off the ballot. The thing in Maine is really, I realized that this,

00:54:14.820 the Colorado case being appealed to SCOTUS is in its own lane, but the thing in Maine, Dave is really

00:54:20.460 outright like some, some non-lawyer secretary of state is like, she's appointed, not elected. It's like,

00:54:26.540 feels very insurrection-y, really insurrection-y to me. So he's off. Yeah. He's not going to be

00:54:31.320 able to run for president in Maine. Come on. Even you have to see that that's, that is brought with

00:54:35.920 peril. Well, first off, it's great to be back with you, Megan and my friend, Mike. Uh, I'll, I'll say

00:54:42.020 this last time I was on, I said that the Supreme court is going to overturn any ruling that kicks

00:54:48.400 Trump off the ballot. So I'm in agreement that the Supreme court is going to overturn Colorado and

00:54:52.600 Maine. But I must say that I think what we've seen in Colorado, Maine is exactly how the process

00:54:58.260 is supposed to work, where the States are in charge of administering elections. It's in the

00:55:03.300 constitution and they interpret this clause that is somewhat vague in the 14th amendment that is

00:55:09.800 rarely used. And in Colorado, although Mike will say they're wacky judge justices, the three justices

00:55:17.280 that that dissented that ruled for Trump were also appointed by Democrats, but in Maine, it's true.

00:55:22.440 It's not an elected official, but that's state law. That's how it works. And the state law then goes

00:55:28.440 to the U S Supreme court to determine whether it is constitutional. I think the Supreme court is going

00:55:33.140 to overturn it based on due process grounds. They may latch onto that chief justice, uh, salmon chase's

00:55:39.840 opinion that Mike Davis refers to. Although I must add that, uh, salmon chase reverse himself when it came to,

00:55:47.160 uh, the case of Jefferson Davis, when he had to leave the, to the, uh, trial of Jefferson Davis,

00:55:52.820 he said that the order, the, uh, 14th amendment was self-executing. So he, he reversed himself on

00:55:59.580 that. Uh, but in the end, I do think the, the high court is going to rule that Congress needs to act.

00:56:05.960 You can't have 50 different States acting in 50 different ways, perhaps with partisan Benson,

00:56:10.360 and, uh, going after your political enemies. And so let's have Congress rule, by the way,

00:56:15.680 on that note, section five does give Congress the power to enforce the 14th amendment, but it does

00:56:22.400 not give Congress the power to exclusively enforce it, which is why states, wait, wait, you're losing

00:56:27.320 people. Wait, we're losing people. Let's, let's make it simple because you know, most people are

00:56:31.680 not studying this clause of the 14th amendment, uh, day to day, but essentially the argument is that

00:56:36.320 the 14th amendment has a prohibition against insurrectionists from holding federal office.

00:56:43.000 If you swore an oath to support the constitution and then you engage in an insurrection, you can

00:56:48.720 be banned from federal office. And the, one of the questions that's being raised in this is,

00:56:55.340 is that clause, as you point out, self-executing or do you need, as Mike is saying, Congress to pass a

00:57:02.500 law and more due process for the alleged insurrectionist, or can it just be like,

00:57:06.900 we can all see you were insurrectiony and it's self-executing. And therefore I don't have to

00:57:12.460 get any official body other than me, the secretary of state to say you did it. Well, here's something,

00:57:17.720 here's what Trump is arguing before SCOTUS. And I'd love to get your take on this. They say,

00:57:22.280 all right, first of all, they point out that the sentence, two sentence clause in the 14th

00:57:25.660 amendment says anyone has sworn oath to support the constitution and then engaged in insurrection

00:57:29.760 cannot hold office unless a two thirds vote of Congress allows it. That's them saying,

00:57:34.300 you got to have Congress. It's not self-executing. Then they argue that this provision is not intended

00:57:40.500 to apply to the presidency. Now we've heard this from team Trump and their surrogates before that

00:57:45.300 this really only applies to lower officials, not to the president. And they say, this is kind of,

00:57:50.880 I thought to me, this was a new one. They say the oath for the presidency, by the way, is not even to

00:57:57.040 quote, support the constitution. It is to quote, preserve, protect, and defend it. Now we've all heard

00:58:03.440 that on various TV shows, right? Where they, they show you the president swearing in, preserve,

00:58:08.360 protect, and defend the constitution. It's true. The word support is not in there though, you know,

00:58:14.680 seems like preserving and protecting and defending it would be to support it. Uh, they also argue

00:58:20.660 that the presidency is not explicitly mentioned in the amendment, uh, only quote, an officer of the

00:58:27.940 United States. They say that's a legal term that does not apply to the president. However,

00:58:36.040 when Trump was dealing with the Manhattan DA's office and this, you know, Stormy Daniels hush money

00:58:43.860 case, he argued that this case should be moved to federal court because the president is quote,

00:58:51.040 an officer of the United States. So he argued something different in the Manhattan trial court

00:58:57.720 than he's arguing to the Supreme court about whether the president is quote, an officer

00:59:03.360 of the United States. So let me give you a crack at that one first, Mike, since

00:59:07.680 you're more in the defense of Trump place. Well, I mean, it's, that's an open question. It hasn't

00:59:13.800 been decided, but there are people, including the Denver district court judge in this case,

00:59:18.060 this biased Denver district court judge who, you know, she was judicially biased. She donated to

00:59:23.340 an anti-Trump January 6th PAC to chase Republicans out of office. And then she sat on the anti-Trump

00:59:30.020 January 6th trial to chase Trump out of office. So I don't know how she was able to do that. She

00:59:34.500 said she could be fair, but regardless, even that judge, even that Democrat appointed judge in

00:59:38.880 Colorado said that the 14th amendment does not apply to the president of the United States because

00:59:43.820 he's not an officer of the United States under the 14th amendment. Uh, you know, there are scholars

00:59:48.300 on both sides of that. I would say this, you know, it's an important argument and maybe the Supreme

00:59:53.120 court will ultimately have to decide that if the Supreme court finds that there is an insurrection

00:59:57.900 finds that Trump incited that insurrection and finds that the main secretary of state can

01:00:03.080 unilaterally disqualify him or the Colorado Supreme court can disqualify him. I don't think the

01:00:08.780 Supreme court will have to decide that question because they can decide not narrower grounds where

01:00:14.000 they don't have to decide the constitutional question. Like what, what do you think they're

01:00:16.980 going to say? Well, I think the Supreme court could say very easily that, Hey, if you want to

01:00:22.540 disqualify, it has to be through a federal criminal statute and Jack Smith and, you know, January 6th

01:00:28.540 Democrats who spent tens of billions of dollars hunting for evidence of insurrection could not find

01:00:33.920 evidence of insurrection because Jack Smith did not charge Trump with insurrection or rebellion under

01:00:38.640 that federal criminal statute. And think about it this way. January 6th was a lawful protest

01:00:43.980 that permitted by the national park service that devolved into a riot. And how many insurrectionists

01:00:50.560 go unarmed into a nation's Capitol, uh, walk through velvet ropes, follow police direction,

01:00:57.540 take selfies on the Senate floor and don't burn down the damn place.

01:01:01.720 It can't be. That's the, he, he's raising a good point, Dave, about how there's been no finding

01:01:06.920 of insurrection. He hasn't been charged with insurrection by Jack Smith. It's really like a gut

01:01:12.460 feeling. It feels insurrection. How can that be enough to, to ban a presidential candidate from a

01:01:18.740 ballot? Megan, the wording of the 14th amendment does not require a charge or conviction for

01:01:26.320 insurrection. It's just, did you engage in insurrection or provide aid or comfort to one? And

01:01:32.960 here, Trump, you could make the case that he engaged in insurrection and provided comfort

01:01:38.240 to the insurrectionists, even if no one is ever charged. And that's why it needs to go through

01:01:42.860 the courts. And that's why the Colorado courts were right to at least examine the issue. And I thought

01:01:47.620 they had a pretty well-reasoned 133 page opinion. And in Maine, this is the calculation that they're

01:01:53.020 making. And so I agree with Mike though, that I don't think you need to go to whether the president

01:01:59.240 is covered under the 14th amendment to overturn it. I think it's going to be overturned on procedural

01:02:03.820 grounds, on due process grounds, but on the question of whether Trump is covered as president

01:02:09.260 by the 14th amendment, of course he is. Because can you imagine that the framers of that amendment

01:02:14.340 did not want insurrectionists to be elected to the house, the U S Senate, but okay, if you're

01:02:20.480 elected president, no way. So I think that's a loser argument. That's why all seven justices of the

01:02:25.520 Colorado Supreme court rejected the district court determination. She was just trying to find a way

01:02:30.060 out and they rejected that. But I think the bigger issue is procedural due process.

01:02:34.760 The Supreme court, I do think will overturn this decision. And I think it's, it has the potential

01:02:39.680 to be a nine zero ruling. Um, I don't think it's going to be a six three, but at a minimum,

01:02:44.320 it'll be a six three. I just, I really think they're going to find a way to get out of saying

01:02:48.860 that he is or is not an insurrectionist. They'll pick a procedural ground. They'll punt.

01:02:54.300 They don't want anything to do with another Bush V Gore situation, but this isn't their only lane

01:03:00.440 of peril. The people at the U S Supreme court, those nine justices, they've already taken a case that

01:03:06.960 could have greatly impact one of the big cases against Trump. And this is the one I want to

01:03:12.340 spend most of our time on. And that is, I mistakenly mentioned the word immunity. When we

01:03:17.280 were talking about the ballot challenge, the immunity case, the immunity case is very interesting

01:03:22.640 to me on a couple of levels that basically we're talking about the January 6th prosecution against

01:03:28.400 him by Tanya Chutkin in Washington, DC, which is based on his, she's the judge of it's Jack Smith,

01:03:33.920 the prosecutor based on his alleged insurrection stuff. And that's the case that has a lot of

01:03:39.620 peril for Trump because she wants a March trial date. She could put him in jail before the election.

01:03:44.580 I mean, he really needs to start getting some wins on the board in that case.

01:03:48.720 And so he's got a couple of avenues. Now the main avenue right now is to say,

01:03:53.880 I am immune from this entire prosecution because all the stuff you're saying I did,

01:03:58.400 I did while I was president. And in the same way, we don't allow civil lawsuits for the most part

01:04:03.220 against a sitting president or acts he did while, while he was president, we should not allow criminal

01:04:08.080 charges against somebody who is a sitting president for, for acts he was doing while the sitting

01:04:13.820 president would just lead to chaos in the United States. And he shouldn't allow it.

01:04:17.340 And that case has never been decided by the U S Supreme court. So I think the Supreme court will

01:04:25.540 have to decide it. And what's happening right now in the immunity case is judge Chutkin ruled against

01:04:33.300 Trump saying, you don't have immunity for this nonsense. No, it does not. It does not help you

01:04:38.900 here, sir. And Trump was going to appeal this to the DC circuit court of appeals, but instead Jack Smith

01:04:45.580 said, forget it, I don't want to waste time with them. I want Supreme court to hear it right now.

01:04:49.800 So he, even though he was the winner, he leapfrogged the DC circuit court of appeals,

01:04:55.060 went right to Supreme court and said, Hey, please hear this case right now. And the Supreme court gave

01:04:59.520 him the boot on the forehead and said, get out of here. Now it's not time for you. Like go back to the

01:05:05.200 DC circuit and follow procedure. That's how things go. No matter how much of a rush you're in,

01:05:10.140 sir. So he did. So now he's bringing that case to the DC circuit court of appeals and the, uh,

01:05:19.240 the argument, the arguments are scheduled for Tuesday, January 9th. I mean, it's happening fast.

01:05:26.740 That's actually going to be really interesting. I can't wait to hear how that goes. So he's going

01:05:31.000 to argue and Trump's team is going to argue that the president had immunity for everything he's being

01:05:35.160 prosecuted for in the DC, uh, trial court. Uh, in the meantime, whatever the DC circuit court rules

01:05:44.160 will be appealed by the loser. And at that point, the Supreme court will have to decide once again,

01:05:49.120 whether it wants to take it now that it's procedurally ripe for the Supreme court. So

01:05:53.540 that's where I want to start. What forget what the DC circuit court does for now. I don't care how it

01:05:59.800 goes. Supreme court, it would be the most interesting. So will they take it or will they find a way

01:06:05.140 to weasel out of taking it and just say review denied? Like we re like we deny review in virtually

01:06:11.160 all cases. We deny review here and leave it with the DC circuit. Dave, your thoughts.

01:06:16.420 I think they're going to deny review Megan. I think they're going to defer to the appellate court ruling

01:06:21.500 that's going to come out. That's going to be ruled in an expedited way. In contrast to our last

01:06:26.360 discussion about, uh, the 14th amendment, I think this one is clear cause a slam dunk. There is no way

01:06:32.460 that a president gets absolute immunity because if that were the case and Joe Biden could arrest

01:06:38.400 Donald Trump could cancel the election and say, Hey, look, I have absolute immunity. See, it's not

01:06:43.540 so funny when the shoe's on the other foot. And that's why I think that the appellate court is

01:06:48.020 going to reject it quickly and outright. And the U S Supreme court is going to say, we defer to their

01:06:52.920 ruling. And then it's game on in Washington, DC. It's so comfortable Mike for the Supreme court to be

01:06:58.740 like, we didn't do it. It was the DC circuit. We're busy.

01:07:03.480 Look, the Supreme court, if the DC circuit does not hold that the president of the United States

01:07:09.000 at a baseline level, any president has immunity from criminal prosecution for what that president

01:07:16.120 does in his official capacity as the president of the United States or in the outer perimeter of his

01:07:22.180 official capacity, which is the Supreme court precedent for civil immunity. Uh, the Supreme

01:07:27.420 court is going to have to take that case because think about it this way, Congress, members of

01:07:32.220 Congress under the speech or debate clause are immune both civilly and criminally for their official

01:07:38.120 conduct, right? Judges are immune civilly and criminally for their official conduct right now,

01:07:44.140 presidents are immune civilly. And the reason the courts have not established that presidents are

01:07:49.400 immune criminally is because no president has ever been charged with a crime until then. So the

01:07:55.400 Democrats brought this unprecedented lawfare against president Trump, where they've indicted him now

01:08:00.500 four times, right? So the issue is going to be, does the Supreme court establish at a baseline minimum

01:08:07.220 that the president of the United States is immune from criminal prosecution for his official acts

01:08:12.900 or the outer perimeter of his official acts, like the other two branches of government,

01:08:17.180 they are going to going to have to decide that case, right? And they can decide that

01:08:21.260 very narrowly, narrowly that yes, the president of the United States is immune criminally from

01:08:27.060 prosecution for his official conduct, because if he's not think about it this way, president Trump

01:08:31.600 gets back into office. President Trump's, uh, orders his attorney general to arrest and prosecute for

01:08:38.780 murder president Obama for the drone strike of two American citizens, including a 16 year old American

01:08:46.020 citizen. Next extrajudicial drone strike. He did not go to Obama did not go to a court. He did not

01:08:52.220 did it any order. He just ordered a drone strike under his commander in chief power as the president

01:08:57.880 of the United States. Does the president have the power to kill American citizens abroad under his

01:09:03.720 commander in chief power? Do the Democrats really want to go down this path where they argued that the

01:09:08.920 president of the United States is not immune criminally for his official acts? Why would the president

01:09:14.720 not be immune criminally, but he's immune civilly? It doesn't make sense. Okay. But here's the

01:09:20.740 wrinkle. Here's the wrinkle for president Trump. And I'm really interested to hear what you guys think

01:09:25.660 about this. As we said in the civil lane, it is well established that in virtually all cases, you can't

01:09:32.860 sue the president for acts he was doing while president. It's we don't want our presidents distracted

01:09:37.440 with this with very narrow exceptions, but there is a DC circuit opinion. That's the case. That's,

01:09:45.040 you know, the circuit court right above judge Chutkin. There's a DC circuit opinion in a civil case

01:09:51.620 that recently came down in, in the civil lane again. And here's what they said. It was a December

01:09:58.380 30th opinion, but they were quoting an earlier rule ruling by themselves. And here's the quote,

01:10:02.720 whether president Trump's actions involved speech on matters of public concern bears no inherent

01:10:10.360 connection to the essential distinction between official and unofficial acts. This is the critical

01:10:17.580 sentence quote when a first term president opts to seek a second term, his campaign to win reelection

01:10:24.160 is not an official presidential act. The office of the presidency as an institution is agnostic

01:10:32.360 about who will occupy it next. And campaigning to gain that office is not an official act of office.

01:10:40.160 So what they're saying there, Dave, is that we see a distinction between president Obama launching a

01:10:47.760 drone strike or Trump taking out Soleimani. And when the guy is acting more, not as president,

01:10:55.820 but as candidate for reelection, which is not an official duty of the president.

01:11:01.700 Exactly. And that's why I think this is a slam dunk. I mean, we don't have a king,

01:11:07.380 we have a president. And if you give him absolute immunity, we're going to have a king. I mean,

01:11:11.200 according to Donald Trump, he cannot be impeached for his conduct. And now he can't be charged after

01:11:16.960 he gets out of office. And we know while he's in office, he cannot be criminally charged because

01:11:20.380 that's the policy of the DOJ. So we'd have a king. And yes, that ruling, I think says all you need to

01:11:25.800 know that elections are in the province of the states, not the federal government. It's in the

01:11:31.620 Constitution. The federal government does not run elections, not even federal elections. So it's not

01:11:36.380 up to the president to start digging into whether there was illegality in a state's election. So

01:11:41.760 that's why this case is going to be rejected on presidential immunity grounds. And then the

01:11:46.000 Supreme Court, I think, is not even going to review it.

01:11:47.540 What about that, Mike? If the court finds, as it did in this, the DC Circuit Court of Appeals,

01:11:52.920 as it did in this case, it just decided that campaigning for reelection or objecting

01:11:59.120 to the procedure that happened in a vote because it didn't benefit you or you think it was unfair

01:12:04.020 as the candidate for reelection, that's not the official duties of a president that would lead to

01:12:10.900 immunity. And so we don't need to even get to any other larger question. All we're going to say

01:12:17.300 is very clearly, challenges to the way the vote went down are in your capacity as an individual

01:12:24.040 seeking reelection, not your official presidential responsibilities.

01:12:29.780 Well, President Trump on January 6th acted in two different capacities. He acted as the president

01:12:35.260 of the United States with the constitutional duty to take care that the laws are executed. That's

01:12:40.820 in his presidential capacity. He also acted as a presidential candidate that day advocating

01:12:46.760 for the Congress to reject the vote, to not certify the vote. That's in his personal capacity.

01:12:53.740 First of all, it's not illegal to object to presidential elections. And that's where

01:12:58.020 Jack Smith and Democrats are getting this all wrong. It's not illegal to object to presidential

01:13:03.320 elections. It is specifically allowed by the Electoral Count Act of 1887. If it were illegal,

01:13:09.280 Democrats would be in jail for objecting to Republican wins in 1968, 2000, 2004, 2016. We don't see Al Gore and

01:13:19.520 John Kerry and I don't even know who lost, the three Democrats who lost in jail, Hillary Clinton,

01:13:27.060 for losing the presidential election and objecting like they did, right? And so what happened was they

01:13:33.160 objected to the election. That was in his personal capacity that was allowed by the Electoral Count Act

01:13:37.640 of 1887. It's also allowed by the First Amendment. The riots that occurred, that was in the president's

01:13:44.620 official capacity. The Democrats are alleging that as the president of the United States,

01:13:48.580 he did not stop the right. They're saying that he did not stop it in time. He did not order

01:13:52.980 the D.C. National Guard into the Capitol to stop the right. And as the president of the United States,

01:13:58.320 he's the commander-in-chief. He runs the D.C. National Guard. Unlike the states where the governors

01:14:03.540 run the National Guard, the president runs the National Guard. So they're saying that he did not

01:14:08.680 send, they're saying he did not send in the National Guard fast enough. Okay, well, can a

01:14:13.760 presidential candidate send in the National Guard, the D.C. National Guard? Can a private citizen

01:14:18.720 send in the D.C. National Guard? No, only the president of the United States can send in the National

01:14:24.600 Guard. So Dave, can you speak to that? Because Mike's first argument was separate and apart from

01:14:30.460 immunity, there was no crime here. There's no crime. He's allowed to challenge the election.

01:14:35.400 It doesn't make him an insurrectionist. But that's a later question. First, we have to get past whether

01:14:41.600 he can be prosecuted at all or whether he has presidential immunity. And his second argument

01:14:45.400 spoke to that. I haven't actually gone back recently to look at Jack Smith's allegations

01:14:49.840 against Trump. He's got four claims against him. And I know that at least in the Colorado case,

01:14:55.780 it came up that he not only raised all these challenges, but he also sat by while the riots

01:15:02.200 were happening for too long. Is that part of Jack Smith's case? And do you concede that if that's

01:15:06.840 part of Jack Smith's case, he is challenging for sure Trump's behavior as president while he was

01:15:11.160 sitting in the Oval? It goes back to what he did making. He is allowed to object to an election

01:15:17.800 and challenge it. You go through the courts. That's what you do. You could make challenges during the

01:15:21.880 counting of the votes in the Senate. But what you can't do is you can't put up fake electors.

01:15:28.220 You can't call the Secretary of State and say, fine me 11,780 votes. You can't encourage people

01:15:35.600 to go to the Capitol and talk to your friends about, hey, it's OK if they're armed. Let's take

01:15:42.060 down the magnetometers. That's the kind of thing that Jack Smith is compiling in the whole. Now,

01:15:46.740 if you look at it just in isolation, where Mike is correct in saying, hey, the president has the

01:15:52.640 power to call the guard. Yeah, but Jack Smith's not looking at an isolation. He's looking at

01:15:56.540 everything and saying he tried to obstruct the counting of the votes. That's a crime.

01:16:00.980 He had a conspiracy to defraud the United States. That's a crime. He tried to deprive people of the

01:16:05.600 rights to get their votes counted. That's a crime. And that's what he's being charged with in D.C.

01:16:09.680 All right. Well, I want to get back to that in one second. You're taking on Mike's first point,

01:16:14.280 which is he did do more than just challenge the vote. He did more. I mean, we have a gut feeling

01:16:19.380 that Trump did more to challenge this vote than we've seen in the past. But this trial will come

01:16:23.560 down to what exactly more was it? And was that conduct illegal? But before we get to that,

01:16:28.420 let's stay on immunity for a second. And Mike's second point, which is, you know, if you're if you're

01:16:32.280 coming after him for not acting quicker as commander in chief the day the riots broke out,

01:16:37.160 you're coming after him for decisions he made as commander in chief.

01:16:42.440 If that's all he did and all he did was he was too slow to call up the guard, he didn't take the

01:16:47.560 threat seriously enough, then I don't think that Jack Smith would have a strong case. But that's

01:16:52.220 not what he's being alleged of doing. It's a lot bigger than that. That's part of this whole scheme.

01:16:57.560 OK, I got it. That's a concession. I got it. But that's that gives us where we where we need.

01:17:01.320 Now we know where we need to argue. And I do want to spend another minute on the allegations that

01:17:05.280 you just laid out, because, you know, you make it sound bad. And listen, I know one here is

01:17:09.400 defending Trump's behavior around January 6th in the election. I'm not defending that. But but

01:17:13.840 is it illegal? And does and does Jack Smith have a crime alleged adequately here? You know,

01:17:19.520 you mentioned the phone call, whatever, to the Georgia secretary of state. OK, he's got a defense

01:17:24.140 for that. He's going to take the stand or somebody is going to to say, I thought I had been cheated out

01:17:28.240 of one hundred thousand votes. I was only saying, look, all you need to find when you're doing your

01:17:32.200 searches and reviewing the votes is eleven thousand because that would put me over the

01:17:35.780 edge. You don't have to keep counting after you get to eleven thousand and change. That's

01:17:39.420 what we're going to hear. And the speech at the Capitol, you know, he said, be peaceful,

01:17:46.040 peacefully, march peacefully. He didn't tell anybody to go breach the Capitol or assault police officers

01:17:51.060 to the country. He said, remain peaceful. And on the magnetometers, I mean, I have heard,

01:17:57.720 for example, I heard Molly Hemingway, who covered Trump on the trail quite a bit for the Federalist

01:18:01.200 during his presidency. And she was saying, you've got to understand, Trump and you guys know this

01:18:05.500 is obsessed with crowd sizes. He wants crowds. If he's going to give a speech, he wants a lot of

01:18:10.700 numbers there. And he repeatedly said throughout his presidency, get him around the magnetometers,

01:18:17.240 let him in. The Secret Service takes too long. These are my people. They're not armed. It's fine.

01:18:23.180 So that was a pattern. And I think that they will be able to show it wasn't about Trump trying to get

01:18:27.920 armed insurrectionists on campus so they could storm. It was about Trump is saying,

01:18:32.900 Mike, no one's here to hurt anybody. Like, stop it. It's taking too long. And I'm going to give

01:18:37.420 my speech. And I want the people in, which changes what you just said, Dave, from something that sounds

01:18:42.080 nefarious and terrible to, oh, that's Trump.

01:18:47.220 The problem, Megan, is that when you look at it in totality, when you look at his comments

01:18:50.580 about Mike Pence, for example, sending out that inflammatory tweet that really did enrage people

01:18:56.020 about Mike Pence. And then after this is going on for hours, for having him sit in the White House

01:19:01.860 approvingly of what's going on and not calling off the dogs, when you put it all in totality,

01:19:08.200 that's where it's a crime. If you just look at it in isolation, and that's what Trump's lawyers are

01:19:12.300 going to do, what Mike did, which is to say, hey, as president, he may have made a mistake in not

01:19:17.760 calling the National Guard. Okay. But if you look at it in the context of the reason why he didn't call

01:19:22.920 the Guard, it was because he wanted that mob to storm the Capitol to obstruct the counting of the

01:19:27.420 votes, and that's the crime. Go ahead, Mike.

01:19:31.380 I mean, under that theory, could you charge President Biden with manslaughter for the American

01:19:37.160 troops being killed during the Afghanistan withdrawal? I mean, do you really want to go down

01:19:41.720 this path where if you're saying that the president did not do his job quickly enough,

01:19:47.060 or he was negligent in doing his job, that he could be charged with a crime? There is a reason

01:19:52.300 we have government immunity for judges, for members of Congress, and apparently for presidents,

01:20:00.280 unless it's President Trump, because apparently there's a Trump derangement syndrome exception

01:20:04.420 to every protection for every president. Okay. Now, I want to shift to yet another angle

01:20:12.020 that could get this. And the January 6th case, to me, it's huge, because even though the Mar-a-Lago

01:20:17.360 case is the case in which he's probably facing the most actual trouble, I would not be giving Dave

01:20:23.760 this hard a time about the facts alleged against Trump on the Mar-a-Lago case, because if it's true

01:20:29.500 and he defied a federal subpoena, it's no bueno. But sticking with J6, it's a very important case,

01:20:38.680 because again, the D.C. jury's going to hate him. And it appears Judge Chutkin is not his fan.

01:20:45.080 And this is a case that's being fast-tracked and that could wind up in, you know, putting Trump

01:20:51.040 in jail before November. So this is the case we really need to be paying very close attention to.

01:20:56.520 And the one that's going to be affected by this immunity ruling that may stop with the D.C.

01:21:01.760 circuit or may go up to SCOTUS, et cetera. And there is another case percolating through the

01:21:07.400 D.C. circuit, the federal courts in D.C., including the D.C. Circuit Court of Appeals and now up to

01:21:12.760 SCOTUS, that could wipe out half, at least, of the case against Trump. It's very interesting.

01:21:21.980 And this is a case involving other J6 defendants, not Trump. SCOTUS took the case. So it's going to go

01:21:29.320 up. And we don't they haven't scheduled oral arguments yet, but it's January. The Supreme

01:21:34.120 Court, its term ends in June. So it's going to happen sometimes in the next in the next six months.

01:21:39.160 It's going to get decided. And we'll have to wait at the latest till June to find out their ruling.

01:21:45.140 Now, usually, in my experience, the trial court, if it's dealing with half of the government's case,

01:21:53.020 could get thrown out because the Supreme Court's about to issue a ruling that two of the counts here

01:21:58.420 may not be constitutional. They may not be criminal charges at all that you can bring.

01:22:04.040 You would wait. Most prudent federal district judges would say, I'm not getting ahead of my

01:22:09.340 skis on this. Supreme Court's got it. And my docket's full enough. We'll do we'll kick this

01:22:14.340 thing to July after I got a ruling from my big bosses on whether half of the government's case is going

01:22:19.240 away. That's not happening so far. Jack Smith wants to go full speed ahead. The prosecutor and

01:22:24.880 it seems like Judge Chetkin's. So to me, that's just smells of partisanship. Why? What's the rush

01:22:30.280 other than to get him in jail before November? All right. So here's the case.

01:22:35.980 One of the J6 defendants has appealed this his conviction or his chart is being charged with this

01:22:44.580 crime under federal statute. They call it 1512, which accuses defendants of obstructing

01:22:49.740 an official proceeding. Now, this was part of the Sarbanes-Oxley Act. You guys know this.

01:22:56.400 I was still practicing law when that thing was passed and it was passed because of Arthur Anderson,

01:23:02.320 which in connection with Enron got subpoenaed and it was getting investigated by the SEC for being

01:23:09.300 complicit in Enron's crimes and started shredding a bunch of boxes and documents. So they passed this

01:23:16.220 statute saying you obstruct an official proceeding like that. You're going to jail. Well, Jack Smith

01:23:22.280 is trying to use it against Trump and federal prosecutors are trying to use it against J6

01:23:28.040 defendants and have been using it successfully against a bunch of J6 defendants saying you tried

01:23:34.380 to obstruct an official proceeding. You tried to interfere with Congress doing its duty and voting

01:23:39.380 that day. And it's working. CBS News with a report. The Justice Department has charged more than 327

01:23:47.680 defendants with this crime, which carries a maximum of 20 years in prison. More than 50 have pleaded guilty.

01:23:54.740 So now you get the one guy who says, you know what? This is a bullshit crime. You can't. This is not a crime.

01:24:00.600 This is for the Arthur Andersons of the world. This isn't for people who get out of control on the Capitol grounds.

01:24:06.240 And CBS interviewing at least one formal federal prosecutor. The quote is the obstruction charge

01:24:14.340 quote permeated every major J6 trial in the district court in Washington. He went on to say this is Gene

01:24:20.700 Rossi. He represented one of the Oath Keepers charged. He said the 1512 charge for these prosecutors

01:24:26.380 has been their gold standard, their North Star. It was the capstone of their prosecutions.

01:24:31.780 And now they are going to decide, the Supreme Court, whether this is in fact an appropriate use

01:24:42.100 of 1512. Whether you can go after J6 participants for obstructing an official proceeding based on the

01:24:49.940 riot on J6. And if they rule, the lower court ruling said you can. Go for it. And Supreme Court took

01:24:57.680 it. They usually don't take it just so they can affirm it, though they sometimes do.

01:25:03.320 So I'd be feeling pretty good if I were a J6 defendant, that they're going to say this is

01:25:07.880 not a charge and it's going to lead to a whole bunch of new trials for the J6 defendants.

01:25:12.260 And it's going to lead to a bunch of lower pleas, easier pleas, lesser pleas between prosecutors and

01:25:18.400 J6 defendants. And it will, if they overturn these convictions and say this is not an appropriate

01:25:24.680 use of it, wipe out the majority of Jack Smith's case against Donald Trump in that Judge Chutkin,

01:25:33.780 J6, Washington, D.C. federal trial. Long-winded explanation, but it's kind of complicated.

01:25:39.640 So how do you guys see this appeal, which doesn't involve Trump, but will affect him,

01:25:45.040 playing out? And how does it affect the timing of this case, Mike?

01:25:49.120 Well, I don't think that Biden Special Counsel Jack Smith or D.C. Obama Judge Tanya Chutkin

01:25:55.960 are going to be cautious here. They've proven that over and over, that their goal is to get

01:26:00.460 Trump. The Biden Justice Department waited 30 months to bring unprecedented charges against

01:26:07.060 a former president who happens to be the leading presidential candidate, and they timed these

01:26:11.980 charges to interfere in the 2024 election, along with these other Democrat prosecutors.

01:26:17.060 They have four different criminal indictments against Trump, and they have stacked these

01:26:21.380 trials back to back to back in 2024 to interfere in the election. And so what should happen if you

01:26:29.520 had a reasonable prosecutor and a reasonable judge, they would say, wait a second, we are in unchartered

01:26:35.040 territory here. We're dealing with a presidential election. There is no rush to try this case right

01:26:41.920 now, especially after you waited 30 months. Let's wait until the Supreme Court decides this key issue

01:26:48.300 so we know before we move forward with a trial and conviction in D.C., which is certain in D.C.

01:26:54.540 because his name is Donald Trump, and it's in Washington, D.C. with a jury pool that voted 95%

01:27:01.320 against Donald Trump. And these judges on this D.C. district court are Obama judges like Tanya Chutkin

01:27:08.320 or Trump deranged rhinos. I know this. I helped pick and confirm these people. These are the swamp

01:27:15.440 monsters of the judiciary in D.C., right? But what you've seen with Jack Smith in the past,

01:27:21.420 he has horrific judgment, as evidenced by the fact he has been rejected unanimously by the Supreme Court,

01:27:28.000 now twice on these political cases. He brought bogus charges against former Virginia Governor Bob

01:27:34.040 McDonnell, a likely 2016 presidential or vice presidential contender. He won a conviction,

01:27:40.400 and it wasn't until after Bob McDonnell's life was ruined and his political career was ruined that

01:27:46.200 the Supreme Court unanimously reversed him. It is very hard to get a criminal conviction reversed by the

01:27:53.160 Supreme Court. It is nearly impossible for that to happen unanimously. But Jack Smith found the way.

01:27:59.160 We talked about he also found the way when he went right to the Supreme Court. He tried to leapfrog

01:28:03.560 the D.C. circuit to get immunity decided quickly so he could prosecute President Trump before the

01:28:09.440 election. He got rejected unanimously by the Supreme Court. Jack Smith is the Democrats' political scud

01:28:17.020 missile they bring in to take out Republican presidential contenders. He doesn't care if he

01:28:23.080 ultimately loses. He got banished to The Hague. Joe Biden and Merritt Barland brought him back

01:28:27.580 because he is a clown, a partisan clown you bring in to take out Republican presidential contenders.

01:28:33.560 You know, Dave, it does feel like we were just over Christmas and I was looking at my kids' toys

01:28:39.440 and one of the toys is Stretch Armstrong. Yeah, pull him, stretches, stretches. You know, you could make a

01:28:47.200 good case that he looks a lot like our friend Jack Smith who's stretching these statutes in the Bob

01:28:54.560 McDonnell case and now in the Trump case to try to fit conduct he finds politically objectionable.

01:29:01.800 Megan, in that McDonnell case in Virginia, he won at trial and then it did get rejected to the Supreme

01:29:07.060 Court, but he wasn't the lawyer at that time. He was not the solicitor general. So the solicitor

01:29:12.020 general lost the argument. Jack Smith won his conviction.

01:29:14.780 I see. It was a crappy appellate lawyer who lost it.

01:29:19.340 Oh, believe me, appellate lawyer. But you know what? I actually, as a prosecutor, I admire Jack

01:29:24.420 Smith. I think he's, this guy is going full speed ahead. He doesn't care about politics and I'm not

01:29:30.140 going to get you the Jack Smith bobblehead doll anymore, Mike, for your birthday. That was,

01:29:33.780 that's going to be crossed off the list. And I'm amazed.

01:29:36.480 He's going to get you Stretch Armstrong instead.

01:29:38.280 I'll take Stretch Armstrong, Megan. I remember Stretch Armstrong.

01:29:43.140 Yeah, absolutely. You know, Hunter Biden, let's talk about him for a sec. Hunter Biden is being

01:29:46.940 charged with a crime. Well, hear me out here. Hunter Biden is being charged with a crime of

01:29:51.940 possessing or calling for a gun.

01:29:53.800 Wait, no, no, no, no, no. I can't, I can't handle Hunter yet. This is a confusing enough

01:29:57.440 segment as alone. Can you just, before you, before you comment on him, can you comment on my,

01:30:03.860 my long windup about how the January 6th case is probably going away? At least half of it is going

01:30:10.040 to die when SCOTUS decides this J6, the other defendant's case.

01:30:16.060 I don't think SCOTUS is going to overturn that statute's application in this case. It takes four

01:30:21.460 justices to hear a case. I admit, I'm surprised they took it up, but I think they are going to do

01:30:26.680 what every other judge has done in this case, except for one Trump appointed district court judge

01:30:31.360 who found that you can apply 1512 to obstruction of official proceeding in the cases of the

01:30:38.040 rioters. Yeah. So I think they're going to affirm it. And as to whether they should wait and stall

01:30:42.820 until the Supreme court rules, that's why I bring up Hunter Biden. Hunter Biden is charged under a law

01:30:48.540 that has already been overturned as unconstitutional in the fifth circuit. It's making its way in the

01:30:53.100 courts and yet he's still being prosecuted under the gun law. Exactly. So this is-

01:30:57.720 You're such a second amendment advocate. Right? But this is common for prosecutors.

01:31:02.840 We're not going to wait for the Supreme court to perhaps overturn the statute. We're going to keep

01:31:06.340 going forward like every other judge has done. And I think that the Supreme court anyways is going to

01:31:12.580 sustain that statute. That, I mean, if they keep going when half of the case against Trump might

01:31:19.380 collapse at the hands of SCOTUS, it's not like a, it's not even just the DC circuit. It's like the

01:31:24.780 Supreme court might throw out. It just shows to me the partisanship, especially given the stakes and

01:31:29.800 who it is and how they know this is being perceived. All right. Stand by, uh, because we've got more to

01:31:34.420 do with Mike and Dave and we're going to squeeze in a quick last break. I'm Megan Kelly, host of the

01:31:39.020 Megan Kelly show on Sirius XM. It's your home for open, honest, and provocative conversations with the

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01:32:41.200 All right. So let's do some housekeeping on these trials. That March case that we've been talking

01:32:45.840 about is still scheduled for now to start March 4th, the day before Super Tuesday.

01:32:50.840 That's not going to happen because they've got these appeals going up. But the question is,

01:32:55.960 when will it happen? What, Dave, what do you think the timing of that March trial

01:32:59.860 will actually be? I think within 60 days of that March date, I think it's because I see the expedited

01:33:07.260 review at the DC Circuit Court of Appeals. They'll come out with an opinion pretty quickly. And then I think

01:33:12.520 the U.S. Supreme Court is going to defer or deny cert on the immunity issue. And then it goes to trial.

01:33:20.200 And that there'll be no delay as a result of this other J6 case we just talked about.

01:33:26.000 Right. They're moving full speed ahead. I don't think the Supreme Court is going to

01:33:30.480 rule before then. And I don't think it matters because I think they're going to allow that

01:33:34.320 statute to be used anyways. So yes, I don't think that's going to matter.

01:33:37.140 And even if even if Trump wins or the J6 defendants wins and Trump's and there's still two other counts

01:33:43.640 against him in the J6 case. So, you know, Smith and Chuck and Kim will say, well, that's reason

01:33:48.760 enough to let it go forward. Mike, what do you think? Is there any case, any chance that case

01:33:52.700 gets tried as early as May? No. And the reason is, is that the Supreme Court is almost if the DC

01:34:01.000 Circuit doesn't do this, the Supreme Court is almost going to almost certainly going to hold that the

01:34:06.280 presidents are immune from criminal prosecution, like members of Congress, like judges.

01:34:12.120 The Supreme Court will have to remand the case back down to Judge Chuck, and she'll have to have

01:34:16.780 an evidentiary hearing on that immunity issue, on what to establish the facts, to figure out where

01:34:23.400 the immunity lies and where it doesn't lie. And you're going to have to do this while Trump has

01:34:27.840 back to back to back trials and other jurisdictions, whether it's the civil fraud trial that's going on

01:34:33.500 now in the four criminal trials. And so I don't know how you can rush this and get this done.

01:34:39.080 Separate from that, there's a lot of discovery, right? So they're just not going to be able to

01:34:43.140 get this done. And you have to ask, Jack Smith waited 30 months to bring these charges. What's

01:34:48.240 the rush other than election interference?

01:34:50.340 Mm hmm. We did go back and look under count one in the Jack Smith case, conspiracy to defraud the U.S.

01:34:57.240 He, Jack Smith, detailed Trump's actions on J6 and noted he, quote, repeatedly refused to approve a

01:35:03.800 message directing rioters to leave the Capitol as urged by his most senior advisors. Also noted his

01:35:11.020 4.17 p.m. video message that day saying the election was stolen, finally asking people to leave,

01:35:15.600 saying they were, quote, very special. So the court could be told to decide whether those were

01:35:21.980 commander in chief decisions or those were Trump, the candidate decisions. But the more Trump can put

01:35:28.020 in the commander in chief camp, the more likely he is to get immunity for it. Okay. And so that's,

01:35:34.880 that's the January 6th case. He's also pushing to have that case televised, which federal court trials

01:35:40.780 are not. Is there any chance Judge Chuckin allows that, Dave?

01:35:45.600 No, unfortunately not. This is one area I agree with Trump. I want these cases televised. There

01:35:51.200 needs to be more transparency in federal court. There's none. And perhaps Chief Justice Roberts

01:35:56.220 can change that, but I don't see that happening anytime soon. All right. And then very, very quickly

01:36:02.340 before we go, is Trump going to jail before November of 2024, Mike? Well, if they try to do that,

01:36:09.440 it's going to guarantee you that he's back in the White House and they're going to have to clear out

01:36:13.340 a cell block and put his secret service agents in the jail with him. So that shows you how dangerous

01:36:18.760 these unprecedented indictments of a former president and a leading presidential candidate

01:36:23.960 are. Dave, yes or no. Is he going to jail before November? No, I think he'll be convicted,

01:36:29.380 but I do not expect him in an orange jumpsuit before November. Okay. Thank you, gentlemen.

01:36:33.920 Always a pleasure. Don't forget, we've got Jesse Kelly here tomorrow.

01:36:40.700 Thanks for listening to The Megan Kelly Show. No BS, no agenda, and no fear.

The Megyn Kelly Show - January 04, 2024

Epstein Docs Released, Idaho Murders House Destroyed, and Trump's ＂Immunity＂ Claim, with Nancy Grace, Dave Aronberg, and Mike Davis ｜ Ep. 695

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