The Megyn Kelly Show - Major SCOTUS ＂Birthright Citizenship＂ Case, with Aronberg and Davis, and Charlie Kirk Murder Trial Bullet Questions, with Branca and Geragos ｜ Ep. 1286

00:00:00.520 Welcome to The Megyn Kelly Show, live on Sirius XM Channel 111 every weekday at New East.

00:00:12.240 Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show.

00:00:15.480 Wow, do we have a show for you today.

00:00:17.180 There have been some wild headlines in the Charlie Kirk murder case lately.

00:00:23.400 And we've taken a serious look at what they mean and what they don't mean.

00:00:27.700 and we have two really smart legal experts

00:00:30.080 to break down for you what's really going on.

00:00:33.000 As you know, we're invested in this one

00:00:36.140 and we'll be handling it thoughtfully and carefully

00:00:40.920 and with an open mind.

00:00:44.640 What I want more than anything is for Charlie's killer

00:00:47.380 to be convicted, to go to jail,

00:00:50.720 and for us to make sure we know what's what in that case.

00:00:55.320 So we're going to be taking a deep dive on that in just a little bit.

00:00:58.520 But we have got to begin with major news at the U.S. Supreme Court this morning.

00:01:02.840 And this is a huge, huge case.

00:01:06.340 So huge that the president of the United States went to the argument.

00:01:10.720 I mean, I'm not sure that's ever happened before.

00:01:14.180 We had a president who served as president and then went on to become chief justice at the U.S. Supreme Court.

00:01:19.500 But I don't remember a case where the president of the United States went and sat there for the oral argument.

00:01:25.320 Trump considered doing it on his tariffs oral argument, which, you know, he ultimately lost

00:01:31.020 that case and has been finding workarounds on it since. But this one was so important to him,

00:01:37.560 he wanted them to know. And it's because this morning the high court heard oral arguments on

00:01:43.540 the constitutionality of President Trump's executive order that ends birthright citizenship

00:01:50.400 for children of illegal immigrants

00:01:52.900 and temporary visitors to the United States.

00:01:56.220 This birthright tourism has been an ongoing problem

00:02:00.180 in the United States for some time.

00:02:03.060 You all know that.

00:02:04.580 People come from all over.

00:02:05.940 By the way, it's not just Mexico, it's China.

00:02:08.120 They've got like one and a half million Chinese citizens now

00:02:12.040 who are just, they're not Chinese citizens,

00:02:15.920 they're American citizens because people come over,

00:02:18.240 they have their babies and boom, they're Americans with the right to all the American

00:02:24.120 privileges that you and I have.

00:02:26.140 But there's, of course, a ton of people who come from south of the border and they want

00:02:30.000 their kid to be an anchor baby and they want the kid to get the entire family here and

00:02:34.000 they want to take advantage of the American taxpayers generosity.

00:02:37.200 And it's not just Mexicans, it's Somalians in Minnesota and elsewhere who know that thanks

00:02:44.100 to our Constitution and the 14th Amendment in particular, if they have a baby here, 0.99

00:02:50.240 they've got the glories of American citizenship. And what happened was this guy named John Eastman,

00:02:57.860 who writes for Claremont Institute and is a lawyer in his own right, started really writing a lot

00:03:03.120 about this. And I think he got in the ear of the president that this is not what the intent of the

00:03:07.180 14th Amendment ever was. And President Trump clearly was sold on it and millions of Americans

00:03:13.300 are sold on it. He's made a different kind of argument that the 14th Amendment has another

00:03:21.460 clause in it, that you have to be born in the United States and subject to the jurisdiction

00:03:26.100 thereof, and that that second clause basically creates a loophole that we can drive a truck

00:03:31.760 through to say illegals having babies on American soil doesn't actually convey U.S. citizenship.

00:03:40.340 OK, so I'll get to all of this as our legal panel comes on. But President Trump attended the oral argument. What a thing. The president signed an executive order his very first day in office. But it's never technically gone into effect because immediately he had multiple legal challenges to it, saying we're no longer doing that.

00:04:02.460 We're no longer acknowledging that you're an American citizen just because you're born here if you were born to two illegals or two parents who don't have the right to be here. 0.78

00:04:10.840 Now, as you may remember, the order went up already to the U.S. Supreme Court last year, but it wasn't heard on its merits.

00:04:19.380 That case was only about does a district court, that's the trial court judge at the federal level, have the power to issue a nationwide injunction on a case that comes before him.

00:04:30.640 And the Trump administration won that case with this high court holding that.

00:04:35.460 In most circumstances, these district courts do not.

00:04:38.460 They don't have the power to do that.

00:04:39.740 And now, as a result of that case, they can no longer issue nationwide injunctions.

00:04:45.040 So that was one piece of this whole litigation that the Trump administration won, but that

00:04:51.080 did not constitute a decision on the merits of what Trump did there.

00:04:55.400 All right, so that did not stop the ACLU and others from trying to block the law in substance, the executive order in substance.

00:05:05.740 And in fact, the case that's before the high court today was filed in New Hampshire on the very same day as last year's Supreme Court decision on the nationwide injunction.

00:05:14.540 Because they knew we have to have this procedural piece of it play out.

00:05:17.940 And then as soon as we get a decision on it, now we have to fight it.

00:05:21.320 Now we have to see whether Trump has the right to do this.

00:05:23.920 In the case, U.S. District Judge Joseph LaPlante, a George W. Bush appointee, on July 10th of last summer, issued a preliminary injunction that blocked the Trump administration from enforcing the executive order against a class of babies born after the date of the executive order, February 20th, 2025, who are or would have been denied U.S. citizenship by Trump's order.

00:05:49.880 that court finding that the people challenging the law or the executive order had a substantial

00:05:57.880 likelihood of success and so he entered a preliminary injunction against its enforcement

00:06:03.240 the trump administration then took the unusual step of taking the case directly to the u.s supreme

00:06:08.780 court before a court of appeals decision was reached like that interim level and today at the

00:06:15.080 High Court. Chief Justice John Roberts, speaking of George W. Bush, he too was a George W. Bush

00:06:21.080 appointee, seemed skeptical of the Trump administration's position early on in the

00:06:28.300 hearing. Listen here. You obviously put a lot of weight on subject to the jurisdiction thereof,

00:06:33.540 but the examples you give to support that strike me as very quirky. You know, children of ambassadors,

00:06:41.620 children of enemies during a hostile invasion,

00:06:44.480 children on warships,

00:06:46.480 and then you expand it to a whole class of illegal aliens

00:06:52.020 that are here in the country.

00:06:53.860 I'm not quite sure how you can get to that big group

00:06:57.120 from such tiny and sort of idiosyncratic examples.

00:07:00.780 There are those sort of narrow exceptions

00:07:02.580 for Ambassador of Foreign Public Ships.

00:07:04.720 Tribal Indians is an enormous one 1.00

00:07:06.060 that they were very focused on in the debates as well.

00:07:08.340 But what I do is I invite the court

00:07:09.900 to look at the intervening step, which is the enactment of the Civil Rights Act of 1866.

00:07:15.120 And there they didn't say subject to the jurisdiction thereof.

00:07:17.740 There it says not subject to any foreign power.

00:07:20.640 Now, if you go back to Blackstone and Calvin's case, they say it does not matter if you are

00:07:25.420 subject to any foreign power.

00:07:26.680 If you are born in the king's domains, you have this indefeasible duty of allegiance

00:07:30.780 to the king at any time.

00:07:32.680 So there's a clear repudiation in the Civil Rights Act.

00:07:35.600 The Civil Rights Act is this breakwater which makes it very, very clear that they are not

00:07:39.500 thinking about allegiance in the terms of like the British common law. They've adopted the

00:07:43.000 Republican conception of allegiance. So it's from non-subjects to any foreign power.

00:07:48.720 So that's John Sauer, who is our chief appellate argument for the administration. And he's trying

00:07:55.760 to keep Trump's executive order alive, saying, you know, if your allegiance is to a foreign

00:08:01.540 country, because, you know, that's basically where your parents are from and where you should

00:08:06.880 have citizenship from, then your allegiance is not to the United States. There's no question

00:08:12.520 the administration has an uphill battle on this. I think most legal experts looked at the argument

00:08:18.360 from the beginning and thought it wasn't going to fly. But as time has gone by and as people

00:08:24.000 have taken a closer and closer look at the argument, I have watched as more and more legal

00:08:29.160 scholars have said, you know what, they could be onto something. They actually could be onto

00:08:34.060 something. But to say that the overwhelming weight of legal scholars is on the side of

00:08:40.600 the administration would be to mislead you. It's not. And today at the high court so far,

00:08:45.860 I mean, what we've been hearing, I haven't listened to the entire argument myself, but

00:08:50.000 the reports from reporters I trust who cover the court have suggested we have a very skeptical

00:08:56.620 bench looking at Trump's argument. Joining me now are our favorite legal analysts on things like

00:09:04.460 this. And I care about their opinions more than I care about anybody else's on this. And that

00:09:08.660 includes Article 3 Project and founder Mike Davis and MK True Crime host, former Palm Beach County

00:09:15.200 prosecuting attorney Dave Ehrenberg. Let me tell you about Cozy Earth, which makes relaxing at home

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00:10:09.820 promo code MEGYN for 20% off. And if you see the post-purchase survey, mention you heard about

00:10:15.380 Cozy Earth from this show. Guys, welcome back. So let me start with you on it, Mike. How do you

00:10:22.840 think it went? Well, if the justices do their job and follow the very simple law, this executive

00:10:32.700 order should be upheld. The issue is that there's this whole thing called politics.

00:10:39.740 And I am concerned after listening to today's oral arguments that these justices didn't wear their robes today, they wore their capes today.

00:10:51.860 Because it is very clear that birthright citizenship was included in the 14th Amendment to fix the Dred Scott decision, the Supreme Court decision that said that the children of the freed slaves are not American citizens.

00:11:08.500 And you have to ask, why the hell did we fight a civil war? And so we had the Dred Scott decision. Just about a year later, we enacted the 13th, 14th, 15th Amendments to free the slaves, provide equal protection and due process to the slaves, voting rights to the male slaves.

00:11:25.760 That was extended in the 19th Amendment to the female black Americans. 1.00

00:11:30.820 But part of the 14th Amendment provided birthright citizenship to the to the freed slaves and their kids.

00:11:38.860 And it talks about it talks. There's a key phrase in there that says subjects to the jurisdiction.

00:11:45.240 And as they talked about it, the 14th Amendment basically says you have to be born in the United States and subject to the jurisdiction thereof.

00:11:53.300 Yeah, you have to be both. It's not just one. You have to be both. And there is a key meaning to that. Subject to the jurisdiction means you are you have allegiance to the United States.

00:12:05.260 And this is the dispositive question that these Supreme Court justices need to answer.

00:12:11.240 The Supreme Court previously held that American Indians were not subject to the jurisdiction of the United States, meaning they did not get birthright citizenship under the 14th Amendment to the Constitution.

00:12:25.480 Congress later fixed that and gave birthright citizenship to American Indians through statutes.

00:12:31.640 So ask these justices this dispositive question. If American Indians did not have birthright citizenship under the 14th Amendment, how the hell would illegal aliens? And the answer is simple. They do not.

00:12:46.960 here's how justice thomas clarence thomas raised this issue in discussing uh it with the aclu

00:12:57.480 they're obviously on the other side they're they're litigators cecilia wing listen to clarence

00:13:01.880 thomas get into that soft four there are five exceptions uh to citizenship that you do accept

00:13:09.480 yes depending on how many you count justice thomas how you count them uh what is the uh

00:13:16.760 underlying uh rule of law that you use to connect these five exceptions sure so as i just said all

00:13:25.260 of the exceptions involve situations where that u.s born child is not subject to the jurisdiction

00:13:31.500 of the united states and the one i think that's the easiest to understand dave is the children

00:13:39.380 of diplomats, like a diplomat comes over here from Saudi Arabia or the UK. And we've all seen

00:13:49.020 this happen, like in the movies, if they commit a crime, they run a red light, they can't get a

00:13:55.920 ticket because they've got diplomatic immunity. They're not subject to the jurisdiction thereof.

00:14:00.900 They may live here and they may have a baby here, but that baby will not be an American citizen 0.99

00:14:08.620 If it's two diplomats from the U.K., it will be a U.K. citizen.

00:14:12.840 It will not be an American citizen. 0.99

00:14:14.500 And that's because of subject to the jurisdiction thereof.

00:14:17.780 And the Trump administration is trying to argue the children of two people who are here illegally is the same as that child of the diplomat.

00:14:29.120 And the ACLU says that's not correct.

00:14:31.820 And I think you agree with the ACLU.

00:14:33.600 So can you explain why, why it's not the same?

00:14:36.160 Megan, good to be back with you and Mike.

00:14:37.920 And my belief is that if you want to change the 14th Amendment, pass an amendment to do so, you can't do it through executive order.

00:14:45.820 And to address yours and Mike's point about the Dred Scott case, Mike is right that the impetus for the 14th Amendment was the Dred Scott decision.

00:14:55.580 But the text that they wrote, and this addresses your point too, Megan, was intentionally broad.

00:15:00.340 They didn't write, all former slaves shall be citizens. 0.62

00:15:03.520 What they wrote was all persons born or naturalized.

00:15:09.020 And the 14th Amendment's framers were smart enough to use the word persons, not former slaves.

00:15:15.720 And so if we only applied constitutional amendments to the specific people they were intended to protect, the 14th Amendment wouldn't protect anyone today.

00:15:23.480 And so there's a case on point, the Supreme Court back in the 19th century and that Wong Kim Ark case, they already addressed this argument.

00:15:32.040 And by the way, that court back then wasn't a liberal court.

00:15:35.260 That's the same court around the same time that enacted Plessy versus Ferguson, which is separate but equal.

00:15:43.340 I don't know if you got to my my question about why aren't the kids of illegals the same as the kids of diplomats?

00:15:52.980 Well, are you I'm a little confused with the question because are you saying that you mean political allegiance?

00:16:00.040 So if you are you have to say that you're not subject to the jurisdiction thereof, like that's I'm just saying this is what the argument is.

00:16:07.600 The argument is that you can understand it simply when you think about the diplomats, right?

00:16:12.300 They're not subject to the jurisdiction thereof. They're not. They don't have to abide by our laws here.

00:16:16.680 It's basically a way of honoring the king of another country, saying you've got the allegiance there, that the kings aren't going to send their emissaries over here if they have to be subject to the jurisdiction of American laws.

00:16:27.880 that was kind of why diplomatic immunity started.

00:16:30.680 So it would make sense to me that two diplomats having a baby on U.S. soil would not be an American citizen.

00:16:35.660 No one's ever submitted to the jurisdiction of the United States.

00:16:38.220 And what the Trump administration is saying is the kids of illegals are the same

00:16:42.300 because those parents are kind of in a similar position to the diplomats.

00:16:47.340 OK, I understand where you're coming from, Megan.

00:16:49.540 And the reason that children of foreign diplomats are treated differently

00:16:54.120 is that their parents carry that diplomatic immunity.

00:16:57.880 They're literally outside the law.

00:16:59.460 This is different than if a child of someone who's undocumented commits a crime.

00:17:04.780 They're subject to the laws.

00:17:05.940 They're going to be arrested.

00:17:07.100 So I think you're dealing with apples and oranges here.

00:17:09.740 How about that, Mike?

00:17:11.780 Well, and here's the question that Dave needs to answer.

00:17:14.580 You said the 14th Amendment applies to all persons.

00:17:18.180 How come the 14th Amendment didn't apply to American Indians?

00:17:22.340 OK, you're you're talking about there was that case, that elk case, right?

00:17:26.620 Is that the one you're talking about? The Wilkins v. Elk? That's the right. Well, that was from 1884. Here's the here's the reason. That's because Native Americans were considered members of sovereign, independent nations.

00:17:40.120 And that existed outside the U.S. legal system at the time. They're like foreign diplomats living in their own embassies. And that's why they needed a separate act of Congress.

00:17:48.300 That's the act you referred to, the 1924 Indian Citizenship Act.

00:17:52.620 So that's different.

00:17:54.120 So an undocumented immigrant living in our community isn't a member of a sovereign tribal nation exempt from U.S. taxes or laws. 0.88

00:18:03.280 They're fully subject to our laws every single day.

00:18:06.000 They can be arrested.

00:18:07.320 They don't need a separate law to make them subject to the laws of our country.

00:18:11.180 Well, you talked, you mentioned the Wong Kim case, and that talked about lawful, that was the Chinese exclusion case, and that dealt with lawful and permanent resonance, lawful and permanent.

00:18:26.480 And the key distinction was subject to the jurisdiction there was that the Supreme Court said that they had allegiance to the United States because they were lawful and permanent.

00:18:37.860 How are illegal aliens subject to the jurisdiction of the United States?

00:18:43.240 How are Chinese birth tourists, why should Chinese birth tourists, over a million of them, come to America, have a kid, and then go back to China, never step foot in America again, but can vote in our elections and can take American welfare? 0.97

00:18:58.940 Do you think that's what the proponents and the public understood the 14th Amendment to mean or any subsequent statute?

00:19:07.860 After the 14th Amendment, is that is that what birthright citizenship means to you, Dave?

00:19:13.240 Well, you mentioned that in the Wong Kim, our case, that the court mentioned that the parents were lawful and permanent and they did.

00:19:20.060 You're right about that. But that's because those were the facts in the case before then.

00:19:24.920 The court's legal reasoning, though, did not depend on their visa status.

00:19:30.460 And, you know, we don't want to be confused between a fact and a rule.

00:19:34.380 In that Wong Kim Ark case, the court noted the parents were legal residents because that was their specific story.

00:19:40.460 But the legal rule there is that the court announced it was based on what's called the right of the soil, where the 14th Amendment requires if if that amendment requires lawful status, it would have said all persons born to lawful residents.

00:19:55.720 It doesn't. It says all persons born.

00:20:00.140 Should Chinese birth tourists get American citizenship?

00:20:04.380 I'm sorry, I couldn't hear you. Can you say it again?

00:20:07.700 Should Chinese birth tourists get American citizenship?

00:20:12.420 Well, according to the 14th Amendment, if someone is born here, they're subject to that 14th Amendment, which has all persons.

00:20:21.720 And yes, they get citizenship. That's the way it's always been. 0.93

00:20:24.380 In fact, every single judge has ruled that way, including the judges here in this case.

00:20:30.420 And that's why I think this case, the Supreme Court, is going to be 7-2, maybe 9-0.

00:20:36.580 The Constitution is what it says it is.

00:20:39.280 No, it's not going to be 9-0.

00:20:41.220 Not this one.

00:20:41.900 Thomas and Alito aren't going to go.

00:20:43.800 I think Thomas and Alito might back the administration.

00:20:46.200 You're probably right about that.

00:20:46.780 I don't think they've got Roberts.

00:20:48.760 Are we shocked, Mike?

00:20:50.080 We're not shocked.

00:20:51.800 Kavanaugh, here's a little of Kavanaugh.

00:20:54.500 We're just looking at the conservative justices since we know what the libs are going to do, 1.00

00:20:57.620 but there's only three of them.

00:20:59.440 What typically happens in these swing cases, you got to look at you got to look at Roberts.

00:21:03.840 You got to look at Kavanaugh.

00:21:05.220 You got to look at Coney Barrett and you got to look at Gorsuch.

00:21:08.780 I think Thomas and Alito will be in the president's camp.

00:21:11.220 But here's a little from Kavanaugh asking questions of John Sauer, the administration, the administration's advocate.

00:21:19.780 Listen here.

00:21:20.120 Given Wong Kim Ark, one might have expected Congress to use a different phrase if it wanted to try to disagree with Wong Kim Ark on what the scope of birthright citizenship or the scope of citizenship should be.

00:21:39.240 And yet Congress repeats that same language knowing what the interpretation had been.

00:21:44.480 For example, you could use the language from the Civil Rights Act of 1866 or some similar formulation if your idea in 1940 and 1952 was to not have ambiguity or not have an overly broad scope.

00:22:00.340 I think if you look at the structure of that statute, where it's 1401 A, and then B through H,

00:22:07.020 it says these are the people who are entitled to birthright citizenship.

00:22:10.720 A is the constitutional standard, and then B through H are all the categories that Congress has superadded to that.

00:22:16.380 I think the natural inference is that Congress is codifying, which it was consciously doing in 1941,

00:22:21.700 pulling all the naturalization rules and immigration rules together into one statute.

00:22:25.580 It said, you go to one place, here's who is a birthright citizen.

00:22:28.740 A, those who are guaranteed that right by the citizenship clause, and B, through A,

00:22:33.080 to the ones that Congress has added through its naturalization power.

00:22:35.640 So that inference to me says, A, is merely, it's not trying to change or alter the constitutional

00:22:41.500 standard, just saying, hey, the baseline is what the Constitution says, and we codify

00:22:45.140 that, and then we move on to the new Kavanaugh.

00:22:47.620 So that to me, Mike, is Kavanaugh sounding a little skeptical, saying, look, we had the

00:22:54.620 14th Amendment, and then we had a statute enacted that would dictate who's a citizen, and that if

00:23:02.780 Congress wanted to change or do anything different around this issue after that Wang

00:23:10.660 King Ark case, which was decided in 1898, then that statute would have read a little differently,

00:23:16.960 that they wouldn't have just kept repeating the same language. Just for the audience,

00:23:20.620 I know this is dense. Try to hold on. But in that case, the Supreme Court upheld the American 0.94

00:23:25.860 citizenship of a child born in San Francisco to Chinese immigrant parents, as our panelists

00:23:30.980 pointed out. Those parents, however, were both here lawfully. They were legal resident aliens.

00:23:39.880 But those who are still using it as evidence that it would apply to illegals point out that at the

00:23:46.080 time in 1898, we weren't really doing the legal alien, illegal alien thing here in the United

00:23:53.800 States. We weren't really looking at aliens in those categories yet. So that's why it wasn't

00:23:58.200 really, that's why Dave's side said it's not a real point of distinction on this case. But you

00:24:03.220 could hear Kavanaugh there saying, look, if Congress wanted to change what subject to the

00:24:07.600 jurisdiction thereof meant or wanted to get a little bit more exacting when they enacted the

00:24:11.680 civil rights law that kind of get to this, they would have been more explicit, Mike.

00:24:16.660 Well, I think that Wong Kim Ark actually helps President Trump's executive order. It laid out

00:24:21.460 the test and it's subject to the jurisdiction means allegiance to the United States. It means

00:24:26.880 you're here lawfully and you're here permanently. And that is the opposite of illegal aliens. That

00:24:32.260 is the opposite of Chinese earth tours. That is the opposite of foreign ambassadors because that's 0.98

00:24:37.700 the opposite of invading armies. I would just say this to these Supreme Court justices who are

00:24:44.000 waffling a little bit, you know, these more political types who are, you know, maybe looking

00:24:48.680 at the polling on this. I would say this, that our most crucial sovereign power as we the people,

00:24:55.060 the sovereign citizens of America, is to control our border and to control our populace. And we 0.51

00:25:03.140 never agreed to give birthright citizenship to illegal aliens, not at the 14th Amendment and not

00:25:10.500 any statute since then. So they can play their little political games to try to get to the result

00:25:16.580 that they think is politically palpable. But that is not the law. Their job is to follow the law.

00:25:23.020 They wear robes, not capes. There's a little bit more of a clue here, Dave Ehrenberg. Gorsuch,

00:25:30.200 We got to check in with him. So so far, I feel like Roberts and maybe Kavanaugh are leaning against the administration.

00:25:38.140 That would be enough to do it. That would only leave four conservatives, assuming Barrett, Gorsuch, Alito and Thomas go with Trump.

00:25:45.840 So let's check in. What did Gorsuch sound like today? He just gave us that great decision yesterday.

00:25:51.460 I mean, eight out of the nine justices gave us that great decision yesterday saying you can't Colorado and 23 other states have laws telling therapists they can only tell confused minors around the gender issue that they really are secretly not the not the gender that their biological sex is.

00:26:08.920 You can only tell them affirm, affirm, affirm you are gender confused. 0.69

00:26:12.280 And that's because you really are this sex that you're not. 0.95

00:26:14.380 So that was great.

00:26:15.460 Gorsuch offered authored that opinion.

00:26:17.560 that concerns me frankly as somebody who would like to see today's executive order upheld

00:26:22.440 because he's probably feeling like i gave you a solid trump and now now i'm free to do it

00:26:28.300 whatever the hell i want i know he feels he's free any day but here is one soundbite in which

00:26:34.580 he was given the aclu attorney a little jazz sat six well there's a lot in elk and some of it's

00:26:40.820 not terribly helpful for you, it seems to me,

00:26:43.000 because Justice Gray, again, strikes again,

00:26:48.100 says that they may be subject in some degree or respect

00:26:53.720 to the United States.

00:26:55.000 So there's some jurisdiction.

00:26:56.620 He says they're born in the geographic limits.

00:27:00.060 They are, in a geographical sense, born in the United States.

00:27:05.340 But because they are not completely

00:27:07.880 subject to the jurisdiction of the United States

00:27:10.640 And, oh, allegiance, distinct from the United States.

00:27:14.400 That's what takes them outside.

00:27:17.140 And that language sure sounds a lot like the Solicitor General's presentation today.

00:27:23.600 To the contrary, Justice Gorsuch, I embrace that part of Elk v. Wilkins' holding.

00:27:29.880 Justice Gray, of course, wrote both Wong Kim Ark and...

00:27:32.120 I know, and it's a struggle.

00:27:33.900 Sure. Let me try to help you out with that.

00:27:36.440 So, you know, the government tries to make it seem as though what sets the exceptions apart, what defines the exceptions, is that the government has some maximum theoretical power.

00:27:50.220 The government could have exercised plenary regulatory power over the tribes, and therefore that's the same situation as a foreign national in the United States.

00:28:01.160 OK, no one understands a word that was said there, Dave, but they do understand that Justice Kavanaugh, sorry, Justice Gorsuch was giving the ACLU kind of a hard time suggesting there's wiggle room in the case law for him to find a way to vote for Trump.

00:28:15.500 That's right. And Mike Davis should be proud, I'm sure, because that's his guy, Justice Gorsuch, and it looks like he could go either way on this.

00:28:22.660 I'm sure Mike is beaming. But it's interesting. I'm going to try to distill it down because it is confusing.

00:28:28.520 But here, in plain language, Justice Gray wrote both the Elk and the Wong Kim Ark of Pitinens.

00:28:34.460 So it's interesting that they're quoting him back to him, like, how do you distinguish these two opinions?

00:28:41.180 And the key is that in the Elk case, the 1898 case, Justice Gray was dealing with a Native American who owed immediate allegiance to a sovereign tribe.

00:28:51.720 And so that's different.

00:28:52.980 And that's, I think, the distinction between Elk Wilkins and Wong Kim Ark.

00:28:58.660 So in other words, in Elk, because you're dealing with a Native American who owes allegiance to a sovereign tribe, they're not – they don't get birthright citizenship because there's that allegiance question. 0.81

00:29:09.180 Like I was saying, the subjects of the king, the diplomats come over, they're still loyal to the king, not to the United States.

00:29:15.380 Whereas in the Wong Kim case, you had two Chinese, a mother and a father, who were not citizens of America but were here lawfully, and their child was recognized as an American citizen because they didn't have that lack of allegiance problem that the native person did and that, in my hypothetical, the English diplomats do.

00:29:40.000 Exactly. The an undocumented immigrant is not a member of a sovereign nation within the United States that has its own treaties and laws. They are individuals.

00:29:50.860 Well, I look, I think the bottom line is you tell me, Mike, is that you you kind of dodged on how you think it went today.

00:29:56.980 You know, but I'm not confident if you were betting about money on it.

00:30:01.440 I think this is going to go against Trump.

00:30:04.380 I think the Supreme Court is going to rule against Trump because I think these justices are being politicians in robes.

00:30:09.680 they're being weak. They're not going to follow the law. And I would say this, if Dave said that

00:30:16.060 he was trying to distinguish those cases between the Chinese lawful permanent residents who get

00:30:21.520 birthright citizenship versus the American Indians who don't because of their allegiance to a

00:30:27.940 separate tribe, to a sovereign tribe, what the hell, what happened to these Chinese birth 1.00

00:30:33.200 tourists who come to America, have their kids, their Chinese foreign nationals, their kids go 0.89

00:30:38.620 back to China, there are Chinese foreign nationals with American birthright citizenship under your 0.88

00:30:43.760 interpretation. They never step foot in America, but they can mail in their votes. I don't think

00:30:48.760 that's what the people who proposed the 14th Amendment sold to the public. And I don't think

00:30:53.900 that any Congress since then sold that to the public. And if the Supreme Court rules that way,

00:31:00.260 that Chinese birth tourists get birthright citizenship and can vote in our elections from

00:31:06.140 China and get welfare sent to China, the Supreme Court's going to lose its legitimacy. 0.79

00:31:13.660 Here's the thing. I'm going to stay with you on this, Mike. Our pal John Yu wrote an editorial

00:31:19.280 on this, and he's an originalist, like most of the conservatives on the high court. And he

00:31:26.180 made the following point. He's on Dave's side, which you don't always say about John Yu. He's

00:31:33.320 a very conservative guy and legal scholar. He's the one who authored the memo that would justify

00:31:40.120 the torture that was unleashed on Al Qaeda during the post 9-11 years. He argued, as Dave is

00:31:47.040 arguing, and said, you can't argue this about the 14th Amendment. Unfortunately, it does protect or

00:31:53.980 include the children of illegals. And he ended his piece as follows. If the American people are

00:31:59.360 dissatisfied with aspects of their constitution. The remedy lies in their hands. Amend it.

00:32:05.000 Pretending it says something it does not can only undermine the constitution and the rule of law.

00:32:10.860 That's a great principle, Mike, and you and I both agree with that as more Federalist type

00:32:17.500 constitutional people, because it's that principle that we use to say Roe versus Wade is made up.

00:32:25.520 You can't read rights into the Constitution that aren't there, and you can't read prohibitions into it that aren't there either.

00:32:34.180 Look, I love John Yu. Maybe this is personal for him, but I would say this, that no, you don't misinterpret the law.

00:32:42.820 You don't give away our most crucial sovereign power as we the people by handing out citizenship to Chinese birth tourists and then say, oh, if you don't like it, amend the Constitution.

00:32:54.660 That has the argument backwards. We have the sovereign power as we the people. We decide who comes. We decide who goes. We decide who our citizenry belongs to. And we don't just give that away from some weak justices on the Supreme Court who, you know, maybe they have personal political views on this.

00:33:16.820 That that is not how our Constitution works. This is a glaring red line. This is a violation of our most crucial sovereign power as we the people to control our border and to control our population. So John, you is just dead wrong on this one.

00:33:34.820 Megan, unfortunately, Dave, we're not going to. Yeah, go ahead.

00:33:37.800 Well, you know, when it comes to Mike's argument about Chinese children who come here, and that argument was made actually during the debate on this amendment, the 14th Amendment.

00:33:48.700 There's a Senator Cowan who made this debate saying, hey, if you pass this, you're going to now give citizenship, and the term he used was Chinese and gypsies.

00:33:57.180 And the Congress passed it anyways.

00:33:59.860 Yeah, they actually said, they said, you're going to give citizenship to the Chinese and the gypsies.

00:34:04.260 And yet Congress passed it anyways, because they chose a bright line rule so we wouldn't have this kind of debate in the future.

00:34:11.780 And that's why every court has decided in that way.

00:34:13.840 Even conservative justices and judges are saying that because if you want to change the Constitution, you can't do so through executive order.

00:34:21.200 The Supreme Court has not decided this issue on illegal aliens.

00:34:24.720 They've decided the issue of lawful and permanent residents, people who have who are subject to the jurisdiction of the United States,

00:34:32.700 which means they have allegiance to the United States.

00:34:35.960 It's not Chinese birth tourists who get to come here.

00:34:39.040 Al-Qaeda's kids who get to come here. 1.00

00:34:41.860 ISIS kids get to come here. 0.94

00:34:43.200 You have to have allegiance to the United States.

00:34:45.820 And you can't just throw up your arms and say, well, if you don't like it, just amend

00:34:48.920 the Constitution like that's easy.

00:34:50.700 No, we never agreed to give away citizenship to people who hate us.

00:34:56.820 We agreed to give citizenship to people who have allegiance to the United States.

00:35:03.040 The children of freed slaves and then the Supreme Court extended that to lawful and permanent residents.

00:35:09.160 That's all the Supreme Court has decided.

00:35:11.200 They have not decided illegal aliens.

00:35:13.040 That is a bogus argument.

00:35:14.960 Well, back in 1898, that was the argument that the government tried.

00:35:19.520 They said that Wong Kim Ark's parents owed allegiance to the Emperor of China.

00:35:23.880 They couldn't become Americans, and the Supreme Court rejected that.

00:35:26.320 and permanent residents, Dave. That was the difference. They had allegiance to the United

00:35:29.980 States because they were lawful, permanent residents. They're not Chinese birth tourists,

00:35:35.000 1.5 million of them. They're not illegal aliens, Trendy Aragua, who are going to come into our

00:35:40.400 country illegally. And we have 20 million people here because Biden opened our borders. You think

00:35:45.660 that all of these illegal aliens kids get birthright citizenship? You think these Chinese 1.00

00:35:51.440 birth tourist, birthright citizenship. If you think that, Congress can change the laws like

00:35:57.440 we did for American Indians. But that is not what we agreed to in the 14th Amendment.

00:36:02.820 Well, that's why. Well, Dave. Yeah, go ahead. Yeah. OK. Well, I was just going to say that

00:36:08.100 the reason we can't just amend the Constitution, because I mean, any sane person in 2026 America

00:36:14.240 would understand what Mike is saying. And I mean, the vast, vast majority of people do not want

00:36:18.420 those Chinese residents to come over here, have their babies, bring them home. That kid grows up 1.00

00:36:23.060 to have voting rights in America. No. But the Democrats are the reason that we can't amend the

00:36:29.160 Constitution on this, because the vast majority of red states and Republicans would run to vote

00:36:33.640 for a constitutional amendment that made this perfectly clear. We do not want them. They are

00:36:37.300 not U.S. citizens. That's a privilege that should be bestowed on people who are actual Americans 1.00

00:36:41.820 and intend to live their lives here and have done the work to become naturalized if they're from

00:36:45.820 another country originally. The Democrats don't want that. And they don't even want us to test

00:36:50.740 for citizenship before we can have a vote at the ballot box. And you tell me, Dave, why that is.

00:36:57.960 Why are they why do the Democrats want so badly to have the Chinese babies stay here or come here,

00:37:03.820 get citizenship and then leave? And why do they want so badly for us not to have constitutional

00:37:09.500 or have checks of ID and citizenship before they can vote in November?

00:37:15.460 That's a loaded question, Megan.

00:37:17.500 So why are the Democrats want open borders and all these illegals to come in and vote for them? 0.99

00:37:26.240 That's a political question.

00:37:27.960 Yeah, exactly.

00:37:29.340 I accept your refrain.

00:37:30.560 I would say that I don't know any Democrats who say, hey, the key to future electoral success

00:37:35.860 is we're going to have open borders so that we can flood the voting booths with the legals who owe it to us.

00:37:42.000 I know that that's how Republicans think.

00:37:44.280 I haven't heard that on the Democratic side.

00:37:45.780 Maybe it's part of the DSA, the Democratic Socialists of America, which I'm definitely not a part of.

00:37:50.300 But I haven't heard that talking point on our side of the aisle.

00:37:54.480 Mike, let's just switch for a minute, if you guys don't mind, because I do want to follow up on the SAVE Act.

00:37:59.860 It's the number one thing being debated right now on Capitol Hill and amongst every Republican I know.

00:38:05.020 I mean, honestly, every Republican I know is like, what's going to happen with the SAVE Act, which is this attempt to shore up the requirements before people can vote, to provide proof of citizenship, actual proof of citizenship.

00:38:17.140 and that this it's so important to most Republicans that there's a serious pitch to get rid of the

00:38:25.380 filibuster in the Senate so that it can pass this Senate, which only has 52 Republican or 53

00:38:31.860 Republicans, and we can get it through. You know, the House obviously is Republican controlled.

00:38:36.780 The Senate is Republican controlled. We have a Republican in the White House. And many people

00:38:40.660 believe we don't do it now. What will happen, guaranteed, is the Democrats will come back

00:38:45.480 in a power in the Senate, whether it's 2026 or 2028, and they'll do it. They'll do it for their

00:38:51.100 side and hoping that they'll get a Democrat president in. I've had my own serious doubts

00:38:56.120 about whether this makes sense because I like minority rights in the Senate because I've just 0.75

00:38:59.040 seen too many good Republican minorities stop crazy ass Democratic legislation. And also, Mike,

00:39:05.920 because it seems to me that generally when you have a Democrat trifecta, House, Senate and White

00:39:13.100 House, they go nuts on the legislation. Whereas Republicans are more, you know, we're conservatives.

00:39:19.660 We're more like we conserve the status quo. We don't we're not huge on like and another law and

00:39:24.940 another law. So I think it'll help the Dems more than it helps the Republicans. Senate Republicans

00:39:29.720 are giant pussies is what I think you're trying to say there, Megan. Look, I would say this about 1.00

00:39:35.240 the Save America Act. It requires proof of citizenship and voter ID. This has the support

00:39:41.740 of over 80% of Americans, including a supermajority of Democrats and even a supermajority

00:39:49.920 of minorities. The Democrats pretend that women who get married or minorities don't have the

00:39:55.860 wherewithal to get a voter ID like everyone else. It's nonsense. The reason they oppose this

00:40:01.000 is because they know with our motor voter laws that these illegal aliens are getting 1.00

00:40:07.600 driver's licenses, and they're getting automatically signed up to vote, and they're

00:40:12.600 voting in our elections. And this Save America Act would stop this. We don't need to have 60 0.93

00:40:20.280 votes to pass the Save America Act. You need 60 votes to invoke cloture and stop unlimited debate

00:40:27.760 in the Senate. You just need to make the Senate Democrats stand on their feet and debate until

00:40:33.520 they run out of gas, right? And so at the Article III project, we are getting people

00:40:38.720 to light up, they go to our webpage and light up both of their home state senators and tell them

00:40:44.260 to pass the Save America Act. And if John Thune and Senate Republicans can't pass a piece of

00:40:50.860 legislation with 80% support among Americans, including a super majority of Democrats and a

00:40:56.480 super majority of minorities, they are in the wrong line of work. Go get a real job in real America. 1.00

00:41:02.840 Are you worried, Mike, at all about the elimination of the filibuster?

00:41:06.220 Because that's what you'd have to do.

00:41:07.840 No, no, no, Megan, you don't.

00:41:09.360 You don't have to eliminate.

00:41:10.340 That's that's the that's the misconception.

00:41:12.860 You need 60 votes to stop debate in the Senate's to limit debate.

00:41:17.120 Yeah.

00:41:17.380 But if you just let the senators debate, make them stand on their feet and debate.

00:41:21.400 They can debate two times in one day on one piece of legislation.

00:41:27.960 Right.

00:41:28.200 So just make them debate until they run out of gas.

00:41:31.280 and after they've run out of gas, hold the vote and you can pass the Save America Act with a

00:41:36.500 simple majority vote. This is the requirement. This is the requirement to change the filibuster

00:41:40.280 back to an actual speaking filibuster, which would require them to actually.

00:41:45.060 No, it already is the requirement, but they do the lazy filibuster now in the Senate where the 0.95

00:41:50.800 senators, they're all like 90 years old and they're like, oh, man, we have to get 60 votes.

00:41:55.540 We're just going to go to sleep or we need to we need to take another paid vacation. This this is

00:41:59.680 exhausting, right? The rules are it's continuous. You can have unlimited debate in the Senate,

00:42:06.200 but you actually have to debate. You have to stand on your feet and debate. And if you don't

00:42:10.120 stand on your feet and debate, you call the vote. Standing on your feet and debate is going to rule

00:42:15.260 out half of the U.S. Senate right there. I mean, you're absolutely right. Now, I will not toss it

00:42:21.300 to you. Just make them work past two o'clock on Thursday. And it's amazing what you can get past

00:42:26.340 in the Senate. That I completely believe. Now, Dave, I will not toss it to you with the loaded

00:42:31.800 P word, but you tell me what's going on and what what is going to go on with the SAVE Act,

00:42:37.660 because Mike makes a compelling case. Yeah. President Trump really wants it. And that's

00:42:43.240 why it's still in play. I thought that it was dead and buried, but it's still in play. I'm

00:42:47.080 going to start where we all can agree. All right. The three of us can agree on voter ID. I'm with

00:42:51.020 you on that. I think that's where Mike has his like 80 percent figure from the polls. But the

00:42:56.880 SAVE Act is different because the SAVE Act requires documentary proof of citizenship to register.

00:43:03.120 And that means they're about like, yeah, right. Yeah. Well, you know, there's about 21 million

00:43:07.900 eligible U.S. citizens who don't have access to a birth certificate. I don't know where mine is

00:43:12.740 passport and naturalization papers. So you got to go and you got to go get a paper, a birth

00:43:18.100 certificate passport just to register to vote and then there's women about me a river well and then 0.96

00:43:23.440 there's women who 69 million who have a different name on their birth certificate you're a you're a 0.98

00:43:28.140 newlywed are you not you're i met your beautiful bride uh in the fall and when you get married

00:43:33.640 they require all sorts of things from you you you know like i don't know i think you're jewish but

00:43:39.980 i'm catholic when i got married the first time in a catholic church um you had to go get like your

00:43:46.780 your baptism certificate your confirmation certificate oh so many certificates that was

00:43:52.660 just for the catholic church never mind for the state and i did it because that's life why should

00:43:58.500 i be crying tears for the people who have to provide proof of actual citizenship in order to 0.99

00:44:03.800 get the privilege of voting well why don't we make it like marriage where i just give my driver's

00:44:09.500 license you know why does it have to be that i've got to go reapply because it's so easy to get a

00:44:14.200 driver's license even if you're not a citizenship here's the real answer here's the real answer

00:44:19.260 democrat pretend women and black people don't have the wherewithal to get a voter id because 1.00

00:44:24.980 they want their illegal aliens to vote that's the real answer yeah how many illegal aliens vote 0.98

00:44:30.820 really women are bad directions if it depended on like a directional test to get to the dmv we 1.00

00:44:36.880 might not qualify well speak for myself first of all it's already illegal for illegal aliens to 0.93

00:44:42.040 vote. And there have been audits in states to see how many illegals have been voting. And it's like

00:44:46.960 point zero zero one percent. So this is trying to suppress a vote, not to stop election fraud,

00:44:53.560 which is really non-existent on a widespread basis. And you should have a problem if it's

00:45:01.200 not existing. You should have no problem with the Save America Act if it's if there's not

00:45:05.940 existent illegal aliens voting. Right. But we know that illegal aliens are voting in big numbers.

00:45:12.040 let me get back to this let me get back on the subject of how racist and terrible the republicans

00:45:19.560 are uh mike davis there was a cnn analyst who is on today talking about uh the birthright citizenship

00:45:29.420 argument at the supreme court and her name is sean wu and this is how sean wu frames the issue

00:45:35.840 the very creation of the 14th amendment was meant to combat racism and really implicitly people who

00:45:43.540 are challenging that clause are really espousing a racist viewpoint it's very hard to get around

00:45:48.840 that no matter what sort of legal arguments you want to couch just because you have a legal

00:45:54.280 argument doesn't mean it's not racist so it's race it's i guess it's by definition it's racist

00:46:01.160 Because when you're talking about people born here who aren't American citizens, they're not American. 0.62

00:46:06.800 So maybe it's more xenophobic is that he should have gone with xenophobic.

00:46:10.320 But your thoughts on whether this argument that Trump's raising is racist and the Save America Act to Mike Davis racist.

00:46:18.940 Yeah, because I don't want Chinese birth tours, one point five million of Chinese nationals in Beijing voting in American elections.

00:46:27.160 And I don't want them taking welfare. If that makes me racist, then screw it. 0.74

00:46:30.660 I'm racist. I don't care. I don't think you guys are racist for bringing this up. And I know Shan Wu, 0.98

00:46:37.640 the guy you showed, he's actually a really nice guy. So, you know, you should have him on the

00:46:41.160 show sometime. We should have Shan Wu and John Yoo, and then we could have quite a debate about

00:46:45.680 all aspects of this tough, tough case. Well, you predict 7-2, possibly Dave Ehrenberg. What do

00:46:53.400 you predict, Mike Davis? I think that Dave may be right on that. I think that the Supreme Court,

00:46:59.560 the Trump-appointed Supreme Court justices may very much disappoint on this one. I think they're

00:47:06.820 going to follow the politics instead of the law. Why are the Trump-appointed justices so much

00:47:13.180 wobblier than Alito and Thomas? Can I answer that? Truly, why? They were raised in a different

00:47:20.660 generation. The law schools got a lot more Marxist when they went to law school than when

00:47:28.100 Justice Alito and Justice Thomas went to law school. And so when you're trying to be accepted

00:47:34.060 in these elite Marxist law schools like Harvard, you have to be the acceptable conservative. And

00:47:40.900 I think that's the problem with the Trump justices. They care too much about being the acceptable

00:47:45.380 conservative. Megan? I have another follow up for you. Yeah, go ahead. I'm going to my 30th

00:47:50.740 Harvard Law School reunion next week. And yes, and I'll bet you that none of the alums will have

00:47:57.900 ever watched me on your show i think they watch different networks dave you could anytime you

00:48:02.940 want to come to the republican party dave the democrats hate the jewish people come to the

00:48:07.660 democrat party we'll or the republican party we'll take you i've been very true i've been

00:48:13.460 very concerned independent like me we'll take you too now wait i want to say something about this um

00:48:19.380 the uh the possibility we've been talking on the show this isn't exactly up your alley guys but

00:48:26.520 I'm going to land it. Trump's poll numbers are not doing well for a variety of reasons. But the Iran 1.00

00:48:32.680 war is not helping. And one of the things I've been saying to the audience is, you know, whether

00:48:37.940 you are in favor of the war, you're not in favor of the war. I think most of us over here on this

00:48:42.200 side of the aisle are in favor of Trump having strong poll numbers and maintaining control,

00:48:46.800 Republicans, of the House and certainly of the Senate. And one of the reasons they need to hold

00:48:50.800 on to the Senate is because that's where you get judicial nominees confirmed. And Mike Davis, 0.55

00:48:54.980 I am hearing rumblings of Samuel Alito possibly retiring because he doesn't want to pull a Ruth 1.00

00:49:04.320 Bader Ginsburg. He wants to, to his credit, even though we all love him, he wants to make sure that

00:49:09.660 Trump gets to replace him as opposed to Gavin Newsom. You tell me whether you are hearing the

00:49:16.900 same thing and whether you think we could make that happen before the midterms just in case the

00:49:22.820 worst happens in November. I got in trouble at the beginning of the Trump administration when I

00:49:27.620 joked that Justice Alito was packing his bags. So I'm not going to do that again. I don't want

00:49:33.680 Justice Alito and Thomas to step down because as we saw with birthright citizenship, they are the

00:49:39.980 two most reliable constitutionalists on the court. I hope they live forever. I hope that they stay on

00:49:45.600 the court forever. If they decide they want to step down, I think someone like John Sauer would

00:49:50.820 be a great replacement for them. So the solicitor general, is he, is he wishy-washy now? Hell no,

00:49:57.260 John. He's the guy who made the presidential immunity argument for Trump and one the most.

00:50:01.560 No, I heard, I know who sour is, but, but I just, you know, you never know. Like when I watched

00:50:05.860 chief justice, John Roberts, who was just then just judge John Roberts, I was like central

00:50:11.860 casting. He'll be amazing. I covered his confirmation hearing wall to wall on the air

00:50:15.800 for Fox. And he wound up being rather squishy. Hello, Obamacare. It's a tax. What? That was him.

00:50:24.040 So I do have to worry. But I have to say, like, if if we get closer to November, I mean, we can't

00:50:29.180 wait that long because the confirmation hearings take a while. You got to take a serious look at

00:50:33.780 it. My own information is that Thomas is not thinking of retiring and Alito is. We shall see.

00:50:38.620 Gentlemen, love you. Thank you. We will be right back. If you are looking to make smarter choices

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00:52:08.340 We've got to tell you about big updates in the case against Tyler Robinson.

00:52:12.840 the 22-year-old charged with aggravated murder for allegedly shooting and killing our friend

00:52:18.460 Charlie Kirk back on September 10th at Utah Valley University. It's just, it just still

00:52:24.240 seems so weird. It feels so weird to talk about this like a legal case. You know, it's like

00:52:30.040 the nation is still mourning Charlie. It was literally months ago that he was a regular

00:52:37.340 guest on this program. And we and millions of others turned to him for insights and his genius

00:52:44.740 on so many issues, not to mention the Iran war. You know, have you seen there's sort of like a,

00:52:51.400 there are these proxy fights breaking out over Charlie's legacy. What would he have said?

00:52:56.060 Here's a tweet. Here's a clip. Here's a book. You know, it's like, put aside whether you agree with

00:53:00.640 any of it, it's a testament to his relevance, his brilliance, his hard work, how smart he was and

00:53:07.960 how prepared he always was. You know, he studied, he studied, studied, studied. And it was all taken

00:53:13.020 from him and secondarily from us on September 10th when he was shot brutally in the neck.

00:53:21.300 Um, it's impossible to overstate the impact of Charlie Kirk's loss, right? And he was so powerful

00:53:31.080 that many people had reason to loathe him. You know, it's very strange. I'll just say this on

00:53:39.540 a personal note. I mentioned this to you guys recently, but I confess to you, we've definitely

00:53:46.280 had an uptick in serious security issues in the wake of like this whole Iran stuff and 0.96

00:53:51.760 like the bullshit anti-Semite stuff. And no person should have to die or be threatened, 0.98

00:54:02.600 like have their life threatened because of their opinions. That just shouldn't,

00:54:09.040 you should not have to die because of your opinions. You shouldn't have to die because

00:54:13.060 of your legislating or your executive orders as a politician either. And it's like crazy now

00:54:20.000 that this level of political violence is kind of like, yeah, okay, you got to expect it. Sure. Yeah,

00:54:24.400 you could get shot to death because you feel the following. What? That's why Charlie was murdered. 1.00

00:54:29.360 He was murdered because of his opinions. And while, you know, the police say it was Tyler

00:54:35.500 Robinson, and I believe it was Tyler Robinson, and I do have real questions about whether his

00:54:39.080 trans Tifa friends helped him, or at least knew. They very much seem to know in advance of the

00:54:46.300 murder. From the beginning, I've been open to other questions about whether that's true,

00:54:53.280 whether that's right. The police have the right guy. I believe they do. And also whether anybody

00:54:59.800 else might've played a role in it somehow. Okay. And I think that piece of it, Candace Owens has

00:55:06.660 been asking that question, you know, she's taking a hard look at the investigation, putting aside

00:55:13.000 the stuff with Erica. I've told you a million times how I feel about that. I don't agree with

00:55:16.120 her on Erica Kirk. I think we'd all be better off if Candace used her considerable investigative

00:55:20.980 skills to focus on other things. But her questions about this investigation are fair game.

00:55:29.320 And she does have some sources. And I think that's the reason in part. It's not just Candace. Many

00:55:35.200 others have got questions about the investigation here and about whether what we're being told

00:55:38.720 makes sense. And does Tyler Robinson, you know, those text messages with the boyfriend sounded

00:55:44.700 fake? I mean, they did sound fake, but that doesn't mean they are fake. And that's why I

00:55:50.180 think this Daily Mail headline got so much attention earlier this week, even though it

00:55:54.960 turns out it was somewhat misleading. The quote was, bullet used to kill Charlie Kirk did not

00:56:02.680 match rifle allegedly used by suspect Tyler Robinson, new court filing claims. So they're

00:56:09.980 saying the bullet didn't match Tyler's rifle. And they're citing a new court filing for that.

00:56:16.620 The bullet didn't match the rifle. Well, that's, I mean, did you see, I too, and I'm in the legal

00:56:22.700 business, like, whoa, what? What? It's not, it's not quite what it appears, but it, that doesn't

00:56:32.360 mean it's a nothing. All right. And that's what we're going to get into now. Look, if it's if they

00:56:37.560 can get this to a point where they can definitively say that what they found in the autopsy definitely

00:56:43.420 didn't come from Tyler Robinson's gun, he's going to be acquitted. That's not where we are. All right.

00:56:49.540 That's that's not there's there's more to this story. And we took a look at the filing that that

00:56:56.620 they based this on in the Daily Mail. It comes from Tyler Robinson's defense team, which wants

00:57:02.080 to delay or even vacate an upcoming preliminary hearing so that there's more time for the defense

00:57:08.500 to receive and examine evidence. Here's what they write. Quote, regarding the firearm evidence,

00:57:16.040 the defense has been provided with an ATF summary. You know, that's Bureau of Alcohol,

00:57:20.140 Tobacco and Firearms with an ATF summary report. OK, so this report comes from the government.

00:57:25.120 which indicates that the ATF was unable to identify the bullet recovered at autopsy

00:57:33.680 to the rifle, allegedly tied to Mr. Robinson, unable to identify the bullet to the rifle.

00:57:42.140 It's a weird phrasing. It's not exactly the most articulate way I think you could say this, but

00:57:47.440 the ATF, according to the defense, is saying it could not identify the bullet to the rifle used.

00:57:55.120 That ATF summary report has not been made public, and nor has it been provided in full to the defense.

00:58:00.460 We know from their filing they've only received a summary of it, and so they haven't received the full report.

00:58:07.000 They've only received the summary, and we, the public, have received neither.

00:58:10.860 But there was another filing earlier this month from media organizations who are seeking more access to documents in this case.

00:58:17.900 By the way, still unclear whether we're going to be allowed to have cameras in the courtroom and watch this trial.

00:58:23.180 The judge better allow this.

00:58:24.640 I mean, this is Erica wants it. The media wants it. Charlie was killed on camera. And there's been so many questions swirling around this. If they keep the media out, it's going to be worse than if they let us in.

00:58:37.080 In any event, the media has to fight for every damn brief to get access to the documents in the case. It's ridiculous. Court proceedings are open to the public. We pay for them. 0.96

00:58:47.020 We are the ones who are endangered by the people who are tried inside of these courtrooms, and we have every right as the people's representatives to be inside these courtrooms.

00:58:55.560 But, okay, I digress.

00:58:57.740 So the media has filed a motion, too, seeking more access to documents in the case.

00:59:02.120 That happened earlier.

00:59:03.680 And the media's lawyers were able to see this ATF summary.

00:59:08.320 And they wrote in their brief that it features, quote, a comparison between a bullet jacket fragment, so like the casing of the bullet, not the actual like bullet itself, recovered during an autopsy of Charlie Kirk and a rifle recovered by law enforcement.

00:59:27.520 Okay, so they see that there's been a comparison between, they say, a bullet jacket recovered and the rifle.

00:59:33.240 The filing quotes one sentence directly from the ATF report, quote, the result of the comparison was inconclusive.

00:59:41.220 Okay, so maybe not as dramatic as we were led to believe by the Daily Mail, but interesting.

00:59:47.000 I mean, inconclusive is not the same thing as did not match.

00:59:49.340 So what are they trying to tell us?

00:59:51.220 I mean, I think a lot of people were very confused.

00:59:53.660 but we are no longer confused because we've done some investigation with our

00:59:57.680 gun experts and our legal experts, and you're not going to be confused after you hear this

01:00:02.760 segment either. Andrew Branca is an attorney and self-defense law expert who has significant

01:00:08.420 experience with firearms and criminal defense attorney, and MK True Crime host Mark Garagos

01:00:13.860 is also with us. He knows a thing or two about what he would do with this evidence and whether

01:00:19.780 it is or is not a significant deal. Andrew, let me start with you as somebody we've gone to

01:00:25.120 repeatedly on firearms and self-defense and so on. Your take on what this, put aside the Daily

01:00:31.340 Mail headline, but what does this actually mean? What is the ATF trying to tell us?

01:00:37.180 Well, I mean, it's mostly a big nothing to tell you the truth. It's not an all unusual to have

01:00:41.680 difficulty making a match between a bullet recovered on autopsy and a firearm. You don't

01:00:46.360 actually even need the bullet, of course, to find someone guilty of having fired the bullet.

01:00:52.020 So it's nice. It would have been nice for the prosecution if they could have had a high

01:00:56.360 probability definitive match with the rifle. They would have liked that. It would have been

01:00:59.900 great for the defense if some grotesque characteristic of the round, like the numbers

01:01:05.140 of lands and grooves, the rifling on the bullet were distinctly different than in the rifle. So

01:01:10.360 you would have a definite exclusion. But all we have here is an inconclusive result. And frankly,

01:01:16.060 it doesn't surprise me. It's not unusual to fire a bullet, especially a high power rifle bullet

01:01:21.100 into a human body, end up with a lot of fragmentation. The jacket strips off of the

01:01:27.460 lead core. It fragments into a bunch of pieces that are some of which are recovered from the

01:01:31.820 body. Others are not. They're just dispersed within the tissue. And it's just unable to

01:01:36.120 come to a definitive conclusion of identifying a match between that round and the firearm.

01:01:42.240 Mark, the defense seems to be objecting to the ATF having another bite at the apple, going at this again.

01:01:51.840 They'd like it, I think, to stand where it is.

01:01:54.160 When you read that, not the Daily Mail headline, but when you found out that this is what the ATF has said,

01:02:00.600 this is the government saying that in its summary report that the ATF was unable to identify the bullet

01:02:07.640 recovered at autopsy to the rifle allegedly tied to Mr. Robinson. What was your reaction?

01:02:14.480 My reaction was very similar to yours. I mean, the reason I went and looked at the motion because

01:02:19.480 I thought the headline had excluded it. Once I saw or took and read the motion, then I realized

01:02:28.660 that it was not an exclusion. However, this is a criminal case. Criminal case requires proof

01:02:34.740 beyond a reasonable doubt. Anytime as a defense lawyer you see something that says inconclusive,

01:02:40.760 you're going to jump all over that, number one. Number two, one of the problems with this kind

01:02:47.660 of testing and the testing that may be done here and why the defense would be objecting is they

01:02:53.740 want to do the testing themselves at this point. They don't want the ATF or FBI or some outside lab

01:03:00.060 destroying the remaining sample if it's microscopic before they've had a chance to do their own

01:03:06.260 testing. There are other tests that can be done. I've done other tests. I haven't done it, but I've

01:03:11.380 had experts do other tests where they can match up metallurgical kinds of analysis, other kinds

01:03:18.000 of analysis that will attempt to exclude this bullet fragment. I would not be dismissive here

01:03:27.340 of the ability of the defense to use this and use this well. Because what you pointed out to

01:03:34.340 some of these text messages to me just sound fake and they sound kind of, I don't know,

01:03:43.560 almost like they were AI created. And if I've got a Gen Z young man, it does not in the least. It 0.97

01:03:51.520 does not. It does not sound authentic for a term that everybody likes to throw around.

01:03:56.740 And when you've got techs that seem phony and you've got an inconclusive test, if you're the defense, it's almost malpractice not to be running down that test and doing your own tests.

01:04:09.420 And I'm sure they've already hired a ballistics expert who's all over this thing.

01:04:14.540 Andrew, what can you explain what's going on here?

01:04:17.760 Because there's been a big debate.

01:04:19.200 People who have questions and they're entitled to them about what happened to Charlie that day have met many people.

01:04:26.440 A lot of gun experts online have questioned the absence of an exit wound.

01:04:30.660 You know, we all saw how where the entrance wound was and how badly and grievously Charlie was injured.

01:04:36.340 But there wasn't an exit wound.

01:04:38.580 And I believe that's not in dispute.

01:04:40.420 Now, the Daily Mail did go on to report that this bullet was fragmented inside of Charlie's body and that that also that that can happen.

01:04:52.020 They had experts in there saying that that can happen when even with a bullet that comes from a rifle like this, it can it can basically shatter, I guess, inside of the victim.

01:05:04.420 Yeah, that's right.

01:05:04.920 In fact, again, it's not at all unusual.

01:05:06.960 Anyone can Google or go on Grok or whatever and just ask it to provide examples of high-powered rifle rounds that have been shot in the human bodies and didn't result in an exit wound.

01:05:15.900 The bullet was captured within the body.

01:05:18.920 You know, there's what we call terminal ballistics, how the bullet functions and whatever it ultimately strikes, is really a matter of probability, not of certainty.

01:05:28.000 Now, if someone fired a .30-06 round like this into a human body, the probability is it's going to completely traverse the body, and there'll be an exit wound.

01:05:36.640 But that's not a certainty, and it's not unusual that the bullet does weird things as soon as it hits.

01:05:42.060 They can take 90-degree turns.

01:05:44.320 They can enter horizontally a neck and go down into the body.

01:05:48.420 It's not what you would expect to happen, but it happens often enough that it's not shocking, and it's certainly not impossible.

01:05:56.760 Do you find it strange, Andrew, at all, that the ATF did a test to see what they could match up from the remnants of this bullet, bullet fragments?

01:06:06.820 By the way, there are two reports here.

01:06:08.340 One says that it was the bullet that they, unable to identify the bullet, recovered at autopsy to the rifle.

01:06:17.420 And then that media filing referencing this same ATF summary described it as a bullet jacket fragment that was compared to the rifle.

01:06:27.880 We actually called the authorities and asked whether there's more than one, like was there analysis done on a bullet and analysis done on a bullet jacket and neither one was conclusive?

01:06:38.060 And they told us, no, the media motion and the defense motion are talking about the same thing.

01:06:42.620 There was one fragment found or at least tested. It's not two separate tests, one's from the casing and one's from the bullet. So for whatever it's worth, some fragment, we believe, of the bullet was recovered.

01:06:55.800 But do you find it odd, Andrew, that the ATF being unable to, like, I'll use their word, I guess, identify that to the gun, then didn't do the more testing that they're now doing?

01:07:13.660 Because the state indicates that the FBI is in the process of conducting a second comparative bullet analysis, as well as a bullet-led analysis.

01:07:21.980 But these are not yet complete.

01:07:23.220 Now, I'm just thinking, Andrew, that if I'm the prosecution, I'm probably not going to turn any of this over to the defense until I've done all my tests trying to get the best result possible showing a link.

01:07:34.920 Well, I mean, there's a tension here, right?

01:07:36.740 So as a prosecution, you're obligated to turn this material over to the defense at some point.

01:07:42.320 Certainly, the judge won't like it if you delay excessively in getting this material.

01:07:46.600 So with the prosecution, I mean, they do like to delay, right?

01:07:50.720 There's a lot of evidence in this case, and I've seen many cases in which prosecutors delay as long as possible, get it to the defense late in the process.

01:07:58.660 That makes it very difficult for the defense to do an adequate evaluation or challenge of the evidence.

01:08:04.080 I've seen prosecutors' offices take these enormous volumes of evidence and basically bury things inside all of it because they know the defense isn't going to have time to look through everything.

01:08:15.820 At some point, the prosecution has to turn it over.

01:08:18.040 The exact timing of that, they don't want to be castigated by the judge for not having turned it over in a timely manner.

01:08:24.420 That would tend to drive them towards releasing what they have, what they have it, even if it's not the totally comprehensive analysis that would ultimately result.

01:08:34.440 And it's not good for the prosecution.

01:08:36.220 Of course, Mark, they have an obligation to turn it over to the defense if it's exculpatory, if it would help Tyler Robinson.

01:08:42.860 But you tell me whether you think this is unusual, that they turned over the thing that was going to be exploited by the defense.

01:08:49.280 And also the defense appears to know, because this comes from their brief, that the state, that the FBI is in the process of conducting a second comparative bullet analysis, as well as a bullet led analysis, and that they're not yet complete.

01:09:01.440 well what's going on here i and this i've been down this road i can't tell you how many times

01:09:07.440 they want they have to turn it over because it is exculpatory people can diminish it people can say

01:09:13.880 well it doesn't mean this you can you can do whatever you want in terms of couching it it's

01:09:18.980 exculpatory evidence they've got a duty under brady to turn it over that's number one number

01:09:23.740 two you're dealing with a fragment what i always do in this situation and i've learned this from

01:09:29.220 others who are very well schooled in this, I then say, I want my expert present when you do any

01:09:37.260 further testing, because I'm not going to sit here and wait for you to do the testing. My expert is

01:09:43.340 going to be present, number one, or number two, you can't do any more testing until I make sure

01:09:48.580 that my expert has taken a sample or has reviewed your bench notes and all of your work, because

01:09:54.900 You do not want a situation where there's going to be something called a Trombetta hitch motion where you've destroyed what remaining exculpatory evidence there is.

01:10:03.360 You knew that you did that. And then there's going to be subject to a motion to dismiss.

01:10:07.720 So the defense is all over this.

01:10:10.560 How is it exculpatory, Mark, when, you know, what Andrew is saying is you had a bullet go in.

01:10:17.000 it fragmented you know i think andrew's basically saying of course you're not necessarily going to

01:10:22.100 be able to tie a bullet fragment to this rifle in particular like you you might be able to say oh

01:10:29.180 this is the bullet fragment of a nine millimeter that's not what was used by tyler robinson so

01:10:33.200 that's very exculpatory but that's not what they have here that they're just saying this bullet

01:10:37.400 was so torn up we can't positively say it came from this weapon so my question is how is it

01:10:44.600 look under brady and then it's yeah under brady and to some degree lesser degree giglio

01:10:51.960 anything that diminishes the case remember that the prosecution has to prove this case

01:10:57.560 beyond a reasonable doubt when you have a forensic test that is done that comes back and it's

01:11:04.140 inconclusive by definition that's a lesser standard than beyond a reasonable doubt which is certainty

01:11:10.920 to some degree. And so that, by definition, is exculpatory. That is why they turned it over.

01:11:18.240 That is why, by the way, all you need to know about the prosecution is the fact that they've

01:11:23.460 already turned that over to another agency, namely the FBI, to do secondary testing.

01:11:29.620 They recognize the fact, no matter how they couch it, no matter how forward-facing or public-facing

01:11:35.880 They try to diminish it. They recognize that it's exculpatory. That's why they're doing further

01:11:41.140 investigation, further testing. And that is that, to my mind, is exactly why the defense is honing

01:11:50.080 in on this. Yeah, I agree with Mark. I do agree with Mark in the sense that, of course, it's not

01:11:57.180 the job of the defense to prove Tyler Robinson innocent. There's no innocence in court. It's

01:12:03.600 their job to prevent the state from proving him guilty beyond a reasonable doubt. So in that sense,

01:12:08.220 anything that does not advance the prosecution's movement towards proof beyond a reasonable doubt

01:12:14.220 is helpful to the defense, of course. And what do you know anything? They're doing a second

01:12:21.560 comparative bullet analysis as well as a bullet lead analysis. Do you know what a bullet lead

01:12:26.720 analysis is, Andrew? Is that toward trying to figure out whether this came from the 30-06

01:12:31.320 or whether it's, like I said, maybe a nine millimeter or a 357 Magnum, which would be

01:12:36.860 helpful to Tyler Robinson if it's not? Well, I mean, bullet leads come in a lot of different

01:12:40.940 alloys. Some are harder, some are softer, and you can differentiate those with laboratory testing.

01:12:45.780 So they they'll test the lead from the bullet and then they'll test inside the barrel of the gun and

01:12:50.020 see if those leads can be matched up. And that would that would be helpful, obviously, for the

01:12:54.580 prosecution. Again, whether you're likely to be able to do that or not, lots of different bullets

01:13:00.080 can be fired through a single gun. You get lots of different leads. Much lead is common among many

01:13:05.680 different types of bullets. So it's very difficult to get an exact match that way. But they're looking

01:13:09.740 for anything they can use to try to tie this bullet to the gun. If they can get that, that's

01:13:14.760 very helpful for the state. Mark, we talked to our pal Sean Davis over at The Federalist, who knows

01:13:20.760 a thing or two about guns. And he knows a bit about these ATF documents, too. And he suggested

01:13:27.220 that the these sort of barrel matching matching this whole process, it's questionable as a valid

01:13:36.460 forensic science at all. He doesn't believe it is. And he said multiple courts are now concluding

01:13:40.860 the same thing. And he said, at best, the forensics can tell you whether this bullet

01:13:45.040 was fired from this particular make and model of gun. But it absolutely cannot conclusively

01:13:51.380 determine that this bullet from gun is from gun A and not gun B when gun A and B are the same

01:13:57.540 make and model of gun. So I think he's suggesting we're asking too much of the ATF here. Yeah. And

01:14:04.400 for those who are in the weeds, there's something called the Daubert analysis in California. We call

01:14:10.060 it Sargon. We've got Sanchez, where you challenge the science in these kinds of cases. We've been

01:14:16.780 doing that on ballistic style evidence for a while. You may remember, Megan, years ago,

01:14:23.020 because I think you covered a couple of these cases out of Texas, the arson, so-called arson

01:14:28.420 evidence, which was thought of as state of the art, which was admitted into many different

01:14:34.100 murder prosecutions, was later found to just be junk science. And so that is the same kind

01:14:40.860 of analysis has been used for a number of years in various jurisdictions, challenging this

01:14:46.440 ballistics evidence, because there are those experts who will say this is junk science and

01:14:52.080 the idea of making it akin to fingerprints, which also has some of its own issues, is something that

01:14:58.900 is a hotly contested topic. I want to keep going. Candace does have, she says, law enforcement,

01:15:07.120 good sources involved in this case. And she has reported, Andrew, that police dogs did not alert

01:15:14.400 to the rifle that, you know, the rifle was found in a grassy knoll not far from the campus and

01:15:20.340 allegedly it had been fired. Allegedly, it had been shot, you know, by Tyler Robinson to kill

01:15:24.640 Charlie, which would involve gunpowder. Right. And the reporting, the suggestion is that law

01:15:31.660 enforcement was found that curious, too, that the dogs would not alert to the weapon. Your thoughts

01:15:35.660 on it. Dogs are imperfect. I mean, you know, they're really good at what they do, but they're

01:15:41.560 not perfect and they miss things on a regular basis, it doesn't. Again, it's a matter of

01:15:46.080 probability. If you ask me what I have expected the dog to find the rifle, I'd say yes. Does it

01:15:51.220 surprise me that it didn't happen? It really doesn't. Is that the kind of thing that could

01:15:56.580 ever come into evidence, Mark? Could the defense ever get that into evidence that the dogs did not

01:16:00.700 alert? Absolutely. I was just chuckling because I remember doing a one week hearing on dog evidence

01:16:07.640 in the scott peterson case i think you were actually there and at the time or at least

01:16:13.240 surrounding it we actually covering it yeah we had um extensive hearings about the dog sent

01:16:21.020 evidence about the dog's ability whether the handler was guiding it whether the handler was

01:16:27.020 kind of projecting onto the dog and all of that it is something that the defense will use um

01:16:33.740 I think, significantly. And you mentioned the term grassy knoll. I think part of the problem

01:16:40.500 here, you know, the late, great Searle Wecht spent almost five decades talking about JFK and

01:16:49.120 a lot of the ballistic evidence there and about whether or not there was a conspiracy and things

01:16:55.560 of that nature. To your point that you originally made, if there are no cameras in the courtroom,

01:17:01.120 This is a recipe for conspiracy gone wild. And that's why there has to be cameras in the courtroom.

01:17:09.560 Speaking of Peterson, my biggest regret in that case is that that I agreed with the prosecution not to have cameras in the courtroom.

01:17:17.180 It's a fool's errand. It's it makes no sense. And in this case, it's going to be something we'll talk about for decades if there aren't cameras there.

01:17:25.980 I mean, there's a lot of ambiguity around a lot of this evidence, right?

01:17:29.860 And by the way, my perspective is from criminal defense, of course.

01:17:33.520 So I think the defense here is doing everything they're supposed to be doing.

01:17:36.240 There's a lot of evidence in this case consistent with the guilt of Tyler Robinson.

01:17:39.660 And the job of the defense is to attack every piece of that as aggressively as they can.

01:17:45.620 That's their duty to their client.

01:17:47.560 So all these things, of course, should be challenged by the defense.

01:17:50.880 and the most robust environment for that to happen is in the courtroom. I mean, that's why we have

01:17:56.640 courtrooms, right? It's an adversarial process. The state brings their experts. The defense brings

01:18:01.700 their experts. Everyone's questioned and subject to cross-examination. That's why it absolutely

01:18:06.660 should be televised so that all of us with an interest in this case can view that battle in

01:18:13.120 real time and have confidence that the right decisions are being arrived at.

01:18:17.020 to your point on the evidence against Tyler Robinson, because the reports are that the

01:18:24.140 prosecution feels extremely confident about their chances of a conviction, notwithstanding any of

01:18:28.960 the stuff we're discussing today. And this is some of what they put in the charging document

01:18:33.540 when they charged him with aggravated murder, that law enforcement officers followed his path

01:18:39.580 to the southeast end of the campus, where they believed he left campus and entered a wooded

01:18:45.220 area. In that wooded area, investigators found a bolt action rifle wrapped in a towel. The rifle

01:18:51.100 contained one spent round and three unspent rounds. This is consistent with the facts officers

01:18:57.020 observed at the time of and immediately after the shooting. No shell casings were found on the roof

01:19:02.200 suggesting a bolt action rather than an auto loading weapon. And only a single round was

01:19:08.120 fired. I haven't gotten to their best part here, but Andrew, you being the gun expert,

01:19:11.540 Can you translate that into plain English for the rest of us?

01:19:15.320 Well, I mean, either a semi-automatic rifle would tend to eject the case that you just

01:19:21.420 fired.

01:19:21.800 A bolt action, you'd have to cycle the bolt to get the case ejected.

01:19:25.580 In either case, someone can just pick up the case and take it with them when they leave.

01:19:30.240 So I'm not sure exactly what point they're trying to get to there.

01:19:34.280 Okay.

01:19:34.760 And that was his gun that he, you know, that we've all seen that picture of, that old

01:19:39.460 fashion gun is a bolt action that would hold onto the casing. If you didn't cycle the bolt,

01:19:45.060 the case stays inside the action. And they go on the rifle, ammunition rounds and towel were sent

01:19:50.860 for forensic processing. DNA consistent with Robinson's was found on the trigger, other parts

01:19:57.240 of the rifle, the fired cartridge casing, two of the three unfired cartridges and the towel.

01:20:05.440 And now, Mark, I imagine if you're looking at that last piece as a defense lawyer, you're not

01:20:09.400 loving it you're not loving it but you tell me what you do with that that they can prove tyler

01:20:15.260 touched some of this stuff but they have to go past that they have to prove that he actually

01:20:20.000 fired the shot the actual shot and that's why we have to look at the bullet and try to tie that to

01:20:24.120 him right correct but you know ironically if i'm defending this case the thing that gives me the

01:20:31.440 most pause about the gun and the bullets and everything else are if you believe the texts

01:20:37.260 that they have about worrying whether his dad is going to see it or recognize it or it's his

01:20:44.240 grandfather's done those are the things that give me the most pause because in order but if those

01:20:49.740 are fake if those are fake right then you get you by the way if those are fake everything else

01:20:56.980 falls by the wayside because you can argue very good point right i mean that's the that's kind of

01:21:02.960 the wedge if you get past that then then you're off to the races if you're the defense right

01:21:09.820 because let's keep my what we're really well we i mean if they're fake we'd like to know but

01:21:13.760 we're really kind of arguing if the defense can convince the jury that they're fake

01:21:18.600 then the whole case could go away because if the defense can convince the jury they're fake then

01:21:23.540 the defense is convincing the jury that the case is fake news go ahead yeah well i was going to

01:21:27.920 say, one of the greatest instructions you get in a criminal case, talking about either reasonable

01:21:35.140 doubt or a witness willfully false, if you can show that some material, something that's important,

01:21:42.520 something that matters to the prosecution is false, and that a witness falsely produces that

01:21:49.000 evidence, testifies to that evidence, there's an instruction that you get in almost every

01:21:53.780 jurisdiction that says you can disbelieve everything. So that is, you know, that's

01:21:59.920 generally a witness willfully false is a the centerpiece of a defense case. And that's why I

01:22:06.340 say if you can pull on a string and you can get them to admit or get a witness to concede that

01:22:12.160 they were false about something, everything else can go can fall apart. It's a house of cards

01:22:17.240 instruction. But Andrew, we one of the things that we have now learned from this same defense

01:22:22.680 filing that spoke about the bullet, wrote about the bullet, is that the defense has revealed

01:22:30.260 that the prosecution is going to be calling as its witnesses Tyler Robinson's parents

01:22:37.700 and his lover, the furry, the trans-furry Lance Twiggs. And let's just, let's start with the

01:22:46.040 trans-furry lover. That's the one with whom Tyler Robinson was allegedly texting, the weird-sounding 1.00

01:22:52.140 texts that sound like sort of old English almost. I mean, it just doesn't sound like a Gen Z

01:22:58.060 young man. But Lance Twiggs will presumably, if he's going to get called by the prosecution,

01:23:05.660 stand up there and say, not only do I confirm those are my texts with Tyler, but let me show

01:23:13.340 you a litany of other texts between me and Tyler, where we often sound like we are old English or

01:23:19.720 we are from a renaissance fair and speak like this to one another. You got to laugh where you

01:23:26.560 can. And that'll be very helpful. Like if that's what he's going to do, if he's not like some sort

01:23:31.340 of hostile witness, but he's really cooperating and at a bare minimum authenticates those texts,

01:23:36.080 then isn't this whole debate about whether they're real done?

01:23:40.860 Well, I mean, we have to keep in mind, of course, in any criminal prosecution,

01:23:45.040 nobody knows what actually happened with absolute certainty, especially not the jury,

01:23:49.420 right? The jury's supposed to come in like a blank piece of paper. What the jury's hearing

01:23:53.820 is two stories in the courtroom. They're hearing a story of guilt from the prosecution and a story

01:23:58.740 of not guilt from the defense. And you read the information before. And listen, anytime you read

01:24:03.540 an information that's, of course, created by the state, that's their narrative of guilt. It always

01:24:08.020 sounds great until it's challenged in court. This kid is going to come and he's going to testify.

01:24:13.760 He's going to be subject to direct examination by the state and will probably be a good witness

01:24:17.760 for the state if they've prepared him properly but then he's subject to cross-examination and

01:24:23.680 it's not at all common to see a fantastic witness on direct completely collapse on cross and of

01:24:30.540 course that's the job of the defense so we won't know that until it happens again that's a reason

01:24:34.720 why this needs to be televised so we can observe that for ourselves and not rely on you know media

01:24:40.380 reports on what's happening the other thing i wanted to mention is you talked about this this

01:24:44.860 motion of the defense that we're all discussing, to me, the really interesting part wasn't actually

01:24:50.720 the rifle stuff per se, the ballistic stuff. It was the DNA stuff. I mean, obviously, it would

01:24:56.580 be very helpful for the state to have this DNA connection between Tyler Robinson and the rifle.

01:25:01.480 But in fact, there's only very tiny amounts of DNA that they're able to test, and they're using

01:25:07.120 a technique to test it that is relatively new and novel and not demonstrated as being robust.

01:25:13.880 It's been rejected by a whole bunch of federal and state courts.

01:25:17.880 And I think that's going to be even a more robust avenue of attack for the defense, because it's bad for the defense if they have the DNA link.

01:25:25.160 It's great for the defense if they can get that evidence excluded so the jury never hears it in the first place.

01:25:30.840 No, it's fascinating.

01:25:31.880 This is what they say in the motion in part, Mark.

01:25:33.680 I'll give it to you.

01:25:34.300 Let me just read you in part what they say about the DNA in the motion.

01:25:36.480 Um, Robinson says DNA reports by the FBI and ATF will take time for the defense to analyze

01:25:44.320 because the reports indicated that multiple quantities of DNA were found on some of the

01:25:48.120 items of evidence. Quote, the summary DNA reports produced to date by the FBI and ATF indicate that

01:25:53.980 both agencies recovered minute quantities of DNA on various items of evidence, which the reports

01:26:00.740 opine consist of mixtures of up to five or more individuals. Five or more is in quotes. So this

01:26:09.380 is the defense quoting from the government's summary report. And then they go on to say,

01:26:16.220 as these cases indicate, determining the number of contributors to a DNA mixture and determining

01:26:21.120 whether the FBI and the ATF reliably applied, validated, and correct scientific procedures

01:26:24.980 is complicated. It requires time. So they're saying themselves that they gleaned from the

01:26:29.780 government's report that some of the DNA has mixtures of up to five or more individuals,

01:26:36.200 and they describe the amounts as, quote, minute mark. So there's two problems. And Andrew

01:26:41.780 ably pointed out the first one when it comes to DNA is there is going to be a have to be a hearing

01:26:50.280 that is done onto the admissibility number one, because what the the report itself and I'm to

01:26:57.380 some degree speculating because we're only getting selective quotes out of the report.

01:27:01.920 But I will speculate wildly that there's going to be a very contested, heated battle over

01:27:10.240 the admissibility of any of this DNA evidence, number one.

01:27:14.100 Then if it gets admitted and somebody says, OK, this is reliable or it's something that

01:27:21.380 should be admitted, there's going to be a further battle over whether or not there is

01:27:27.420 transference or whether or not this is a adequate safeguards were taken for the chain of custody.

01:27:34.700 The other problem with the witness that they put on the list, which is the roommate, lover,

01:27:41.880 whatever you want to characterize, I don't think for a second, I would be shocked if this person

01:27:47.200 did not invoke the fifth amendment if i'm representing that guy i'm saying go pound sand

01:27:52.640 you're you want to you want this person to testify i'm not testifying absent immunity

01:27:58.080 and then the prosecution has to make the decision are we going to give uh transactional we're going

01:28:04.860 to give use immunity to this person uh before we know what they're going to say and by the object

01:28:11.300 to the use of the word person yes we're not sure it's a furry of some sort i was actually going to

01:28:17.140 say ironically transfer for dna and here but i didn't want a bad dad joke so wait let me ask you

01:28:26.320 on a procedural matter then because the reason we know that lance twigs is going to be called by the

01:28:30.340 prosecution i mean i think we assumed it since he was corresponding with tyler in the moments after

01:28:34.720 the crime and obviously in the days prior that doesn't mean he's agreed to testify for the

01:28:40.980 prosecution though the reports are that he is cooperating with them those are the reports

01:28:44.480 But you're saying that none of that means he's not going to take the stand and assert his Fifth Amendment.

01:28:51.180 He may yet still do that when he if he's got a lawyer or somebody close to him who's telling him, hey, do you see what the defense is doing here?

01:29:00.700 He's going to figure out pretty soon or pretty quickly that the defense is going to be challenging his role in all of this.

01:29:08.180 And if that's the case and he lawyers up, he'd be foolish to not assert his Fifth Amendment rights and get some kind of immunity.

01:29:18.260 Well, I think he's cooperating so far.

01:29:20.780 And I think the parents, well, I don't know what the parents are doing, in fairness, but there's we got to get into the parents next and what they've done so far and what the defense is now saying about them.

01:29:31.400 Can you guys stick around for a few more minutes?

01:29:32.900 We're going to take a quick break and come right back to Andrew and Mark.

01:29:35.860 OK, don't go away.

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01:31:54.060 and no apologies. Along with The Megyn Kelly Show, you're going to hear from people like

01:31:57.660 Mark Halperin, Link Lauren, Maureen Callahan, Emily Jashinsky, Jesse Kelly, Real Clear Politics,

01:32:03.260 and many more. It's bold, no BS news, only on the Megyn Kelly channel, Sirius XM 111,

01:32:09.960 and on the Sirius XM app. Andrew Branca and Mark Garagos are back with me. So the other big

01:32:20.600 The thing that jumped out at me in this is that the defense says the prosecution's calling Tyler Robinson's parents and their spousal privilege, right?

01:32:31.560 They can't compel you to testify against your spouse in a criminal court of law, but there's no mother-son privilege or father-son or parent-child.

01:32:43.000 So these two, I guess, could be called, and they're not subjected, thank you, to any, they don't have any criminal exposure in this whole thing.

01:32:52.680 And here is what we know from earlier on in this case, from, again, the criminal information, which is the charging document for Tyler.

01:33:00.740 It describes him as turning himself in with his parents.

01:33:03.860 All right, this is verbatim what the state alleged.

01:33:05.820 On the evening of September 11th, this is the day after Charlie was killed, 2025, as law enforcement continued their investigation, Tyler Robinson went to the Washington County Sheriff's Office with his parents and a family friend to turn himself in.

01:33:21.480 Robinson's mother stated the following to police.

01:33:23.960 On September 11th, 2025, the day after the shooting, Robinson's mother saw the photo of the shooter in the news and thought the shooter looked like her son.

01:33:31.140 Robinson's mother called her son and asked him where he was.

01:33:34.120 He said he was at home sick and that he had also been at home sick on September 10th.

01:33:39.320 Robinson's mother expressed concern to her husband that the suspected shooter looked like Robinson.

01:33:45.420 Robinson's father agreed.

01:33:47.460 His mother explained that over the last year or so, Robinson had become more political and had started to lean more to the left, becoming more pro-gay and trans rights oriented.

01:33:55.760 She stated that Robinson began to date his roommate, a biological male, who was transitioning genders.

01:34:01.680 Hold on a second.

01:34:02.320 Yes, yes, yes.

01:34:02.880 OK, this resulted in several discussions with family members, but especially between Robinson and his father, who have very different political views. 0.97

01:34:10.120 In one conversation before the shooting, Robinson mentioned that Charlie Kirk would be holding an event at UVU, which Robinson said was a stupid venue for the event. 0.97

01:34:17.960 He accused Kirk of spreading hate. 0.97

01:34:20.280 Robinson's father reported that when his wife showed him the surveillance image of the suspected shooter in the news, he agreed it looked like their son.

01:34:26.660 He also believed that the rifle that police suspected the shooter used matched a rifle that was given to his son as a gift.

01:34:34.300 As a result, his father contacted the son and asked him to send a photo of the rifle.

01:34:39.180 Robinson did not respond.

01:34:40.860 However, Robinson's father spoke on the phone with Robinson, and Robinson implied that he planned to take his own life.

01:34:47.520 Robinson's parents were able to convince him to meet at their home.

01:34:51.680 As they discussed the situation, Robinson implied that he was the shooter and stated that he couldn't go to jail.

01:34:57.140 He just wanted to end it.

01:34:58.280 When asked why he did it, Robinson explained there's too much evil and the guy, Charlie, spreads too much hate.

01:35:05.560 They talked about Robinson turning himself in and convinced Robinson to speak with a family friend who is a retired deputy sheriff at Robinson's father's request.

01:35:13.880 The family friend met with Robinson and his parents and convinced Robinson to turn himself in.

01:35:23.160 The family friend spoke to police and reported telling Robinson that it would be best if he brought all evidence with him to the sheriff's office to avoid police having to search his parents' home.

01:35:33.280 The family friend also asked Robinson if he had any clothes that were related to what he did.

01:35:37.760 Robinson replied that he had disposed of the clothes in different areas.

01:35:41.580 So that's from the police. That's what they say. The parents told them. And I mean, Mark, I just feel like that's about as damning as you could get. Right. Like the parents saw the image on TV and they were like, that's Tyler. They saw the gun. They were like, that's the gun. His Tyler's grandpa gave him.

01:36:02.500 They texted Tyler. He didn't have an alibi. They then talked to Tyler and he confessed to them or came as close as possible.

01:36:12.400 And he's talking about how he wants to kill himself, about how he thought Charlie spread too much hate, about how he wanted to end it.

01:36:20.440 And you heard, you know, the other the other statements that he allegedly said they convinced him to speak with his friend who was a retired deputy sheriff.

01:36:26.960 And they went from there.

01:36:28.100 so i've had and i'm sure andrew has had this over the years as well i can't tell you countless times

01:36:36.480 where when a parent is confronted with their child who is accused of something the parent either i

01:36:45.420 don't want to bail them out leave them in they've got to learn a lesson or we got to cooperate or

01:36:50.700 we got to do this or that to your point yes i've never understood why there isn't a parent child

01:36:56.720 filial kind of confidential relationship, but there is not. The problem for the prosecution

01:37:05.740 is that, as you saw, people initially, what their reaction is, and later on, can change

01:37:14.700 dramatically. When the parents realize that, hey, we cooperated, and the next thing they know,

01:37:22.460 the prosecution's trying to kill their kid, they may have a completely different take,

01:37:28.480 number one. Number two, look at the language in the charging document. He implied, he said this,

01:37:35.260 there's not a confession. There may be an admission. Those are going to be things that

01:37:40.080 you may find a parent is not so willing to help the government kill their kid when it comes down

01:37:48.040 to it. And the government may say, we don't want to put them in that position at the end of the

01:37:53.280 day. As far as the family friend, I don't know. I'd have to see what the reports are on that.

01:38:00.520 And Megan, I wouldn't be so quick to say the parents don't have potential criminal exposure

01:38:04.720 here. I mean, we've had a number of cases in recent years where a child goes to a school

01:38:09.220 and commits a shooting and the parents are prosecuted and convicted for not preventing

01:38:14.220 their child from accessing the firearm that was used for that school shooting. And the same kind

01:38:18.500 of argument could be made here. Well, I guess it depends. I mean, what we know that the parents

01:38:23.300 knew prior to this shooting, I would base my judgment on the earlier cases that that won't

01:38:29.080 get them in trouble. But if there's more, if it turns out that Tyler was writing his parents over

01:38:33.480 and over, I can't stop myself from having the visions. I want to shoot somebody, you know, 0.98

01:38:37.460 Charlie Kirk, he's full of hate. Yeah, we might be getting there. I don't know. I doubt it. But 1.00

01:38:42.800 But, you know, I think this is very damning, very damning for Tyler Robinson.

01:38:47.420 And you're right.

01:38:48.320 You're not only going to have the parents, potentially, you're going to have the family

01:38:50.480 friend who is potentially going to take the witness stand.

01:38:53.620 And then if Lance Twiggs gets up there and says he did confess, he confessed to me that

01:39:00.180 back and forth, you know, he says to Tyler in the in the email exchange, it wasn't you,

01:39:05.100 was it?

01:39:06.000 And Tyler writes back.

01:39:08.180 Yeah, it was.

01:39:08.800 I can't remember the exact wording, but it's like there was there was some hate can't be negotiated out or whatever you put it.

01:39:15.260 So, look, all of the it's an interesting discussion because this is how defense attorneys make their case.

01:39:20.380 Right, Mark? It's like they don't have some big sweeping normally like the big aha moment.

01:39:24.840 The bullets from a nine millimeter, not from this kind of gun.

01:39:28.560 It's the little seeds of doubt around this tiny bit and that tiny bit.

01:39:33.200 The mixed DNA, the bullet wasn't proven to be a match.

01:39:36.220 The parents didn't actually say on the stand what they said to the police.

01:39:40.820 The lover is weird and not credible.

01:39:44.800 Like, that's how it's done.

01:39:46.840 It's a death of a thousand cuts.

01:39:49.680 Right.

01:39:50.580 And by the way, I haven't seen, has anybody, and I apologize if this has been done,

01:39:57.380 but one of the first things that I'm sure Andrew does, because we do it with great regularity,

01:40:02.640 is we go and obtain cell phone evidence and we get the the tower evidence and we get all of them

01:40:11.700 surrounding because that is, to my mind, some of the most incredible evidence to either overcome

01:40:19.160 an accusation or inculpate you. I can't tell you the number of cases, death penalty cases I've

01:40:26.100 handled where I've actually walked somebody out the door because I had the cell phone evidence.

01:40:30.460 by the way mark do you agree we talked last week about whether this suggestion that you know by

01:40:38.420 joe kent that there were leads about foreign interference in this or foreign involvement

01:40:43.440 in charlie's murder that he believes were not adequately investigated by the fbi our conclusion

01:40:48.780 was that will not come into evidence unless there's more unless there's specifics but how do

01:40:54.360 you see it the mother of the judge has not been born that's going to let you get into that unless

01:40:58.560 you've got something really solid. They're not going to let you make that case unless you've got

01:41:06.140 something that is demonstrable that ties a link there. I mean, it's a great link if you could make

01:41:13.340 it, but you've got to have something more than just wild speculation. Look, you know, there's a

01:41:20.140 whole third-party liability doctrine. Before you can point your finger at a third party,

01:41:27.680 You have to make the case. You have to get over the hurdle of making a plausible case to a judge.

01:41:34.960 He's the gatekeeper for third party liability. And that is a classic. He's not going to allow just random, random.

01:41:42.100 Exactly. Thank you both so much. Great to see you both.

01:41:46.420 Thanks for listening to The Megyn Kelly Show. No B.S., no agenda and no fear.

01:41:57.680 Thank you.

The Megyn Kelly Show - April 01, 2026

Major SCOTUS ＂Birthright Citizenship＂ Case, with Aronberg and Davis, and Charlie Kirk Murder Trial Bullet Questions, with Branca and Geragos ｜ Ep. 1286

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