Major SCOTUS ＂Birthright Citizenship＂ Case, with Aronberg and Davis, and Charlie Kirk Murder Trial Bullet Questions, with Branca and Geragos ｜ Ep. 1286
00:02:26.140But there's, of course, a ton of people who come from south of the border and they want
00:02:30.000their kid to be an anchor baby and they want the kid to get the entire family here and
00:02:34.000they want to take advantage of the American taxpayers generosity.
00:02:37.200And it's not just Mexicans, it's Somalians in Minnesota and elsewhere who know that thanks
00:02:44.100to our Constitution and the 14th Amendment in particular, if they have a baby here,
00:02:50.240they've got the glories of American citizenship. And what happened was this guy named John Eastman,
00:02:57.860who writes for Claremont Institute and is a lawyer in his own right, started really writing a lot
00:03:03.120about this. And I think he got in the ear of the president that this is not what the intent of the
00:03:07.18014th Amendment ever was. And President Trump clearly was sold on it and millions of Americans
00:03:13.300are sold on it. He's made a different kind of argument that the 14th Amendment has another
00:03:21.460clause in it, that you have to be born in the United States and subject to the jurisdiction
00:03:26.100thereof, and that that second clause basically creates a loophole that we can drive a truck
00:03:31.760through to say illegals having babies on American soil doesn't actually convey U.S. citizenship.
00:03:40.340OK, 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.
00:04:02.460We'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.
00:04:10.840Now, 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.
00:04:19.380That 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.
00:04:30.640And the Trump administration won that case with this high court holding that.
00:04:35.460In most circumstances, these district courts do not.
00:04:39.740And now, as a result of that case, they can no longer issue nationwide injunctions.
00:04:45.040So that was one piece of this whole litigation that the Trump administration won, but that
00:04:51.080did not constitute a decision on the merits of what Trump did there.
00:04:55.400All right, so that did not stop the ACLU and others from trying to block the law in substance, the executive order in substance.
00:05:05.740And 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.
00:05:14.540Because they knew we have to have this procedural piece of it play out.
00:05:17.940And then as soon as we get a decision on it, now we have to fight it.
00:05:21.320Now we have to see whether Trump has the right to do this.
00:05:23.920In 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.
00:05:49.880that court finding that the people challenging the law or the executive order had a substantial
00:05:57.880likelihood of success and so he entered a preliminary injunction against its enforcement
00:06:03.240the trump administration then took the unusual step of taking the case directly to the u.s supreme
00:06:08.780court before a court of appeals decision was reached like that interim level and today at the
00:06:15.080High Court. Chief Justice John Roberts, speaking of George W. Bush, he too was a George W. Bush
00:06:21.080appointee, seemed skeptical of the Trump administration's position early on in the
00:06:28.300hearing. Listen here. You obviously put a lot of weight on subject to the jurisdiction thereof,
00:06:33.540but the examples you give to support that strike me as very quirky. You know, children of ambassadors,
00:06:41.620children of enemies during a hostile invasion,
00:07:32.680So there's a clear repudiation in the Civil Rights Act.
00:07:35.600The Civil Rights Act is this breakwater which makes it very, very clear that they are not
00:07:39.500thinking about allegiance in the terms of like the British common law. They've adopted the
00:07:43.000Republican conception of allegiance. So it's from non-subjects to any foreign power.
00:07:48.720So that's John Sauer, who is our chief appellate argument for the administration. And he's trying
00:07:55.760to keep Trump's executive order alive, saying, you know, if your allegiance is to a foreign
00:08:01.540country, because, you know, that's basically where your parents are from and where you should
00:08:06.880have citizenship from, then your allegiance is not to the United States. There's no question
00:08:12.520the administration has an uphill battle on this. I think most legal experts looked at the argument
00:08:18.360from the beginning and thought it wasn't going to fly. But as time has gone by and as people
00:08:24.000have taken a closer and closer look at the argument, I have watched as more and more legal
00:08:29.160scholars have said, you know what, they could be onto something. They actually could be onto
00:08:34.060something. But to say that the overwhelming weight of legal scholars is on the side of
00:08:40.600the administration would be to mislead you. It's not. And today at the high court so far,
00:08:45.860I mean, what we've been hearing, I haven't listened to the entire argument myself, but
00:08:50.000the reports from reporters I trust who cover the court have suggested we have a very skeptical
00:08:56.620bench looking at Trump's argument. Joining me now are our favorite legal analysts on things like
00:09:04.460this. And I care about their opinions more than I care about anybody else's on this. And that
00:09:08.660includes Article 3 Project and founder Mike Davis and MK True Crime host, former Palm Beach County
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00:10:15.380Cozy Earth from this show. Guys, welcome back. So let me start with you on it, Mike. How do you
00:10:22.840think it went? Well, if the justices do their job and follow the very simple law, this executive
00:10:32.700order should be upheld. The issue is that there's this whole thing called politics.
00:10:39.740And I am concerned after listening to today's oral arguments that these justices didn't wear their robes today, they wore their capes today.
00:10:51.860Because 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.
00:11:08.500And 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.
00:11:25.760That was extended in the 19th Amendment to the female black Americans.
00:11:30.820But part of the 14th Amendment provided birthright citizenship to the to the freed slaves and their kids.
00:11:38.860And it talks about it talks. There's a key phrase in there that says subjects to the jurisdiction.
00:11:45.240And 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.
00:11:53.300Yeah, 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.
00:12:05.260And this is the dispositive question that these Supreme Court justices need to answer.
00:12:11.240The 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.
00:12:25.480Congress later fixed that and gave birthright citizenship to American Indians through statutes.
00:12:31.640So 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.
00:12:46.960here's how justice thomas clarence thomas raised this issue in discussing uh it with the aclu
00:12:57.480they're obviously on the other side they're they're litigators cecilia wing listen to clarence
00:13:01.880thomas get into that soft four there are five exceptions uh to citizenship that you do accept
00:13:09.480yes depending on how many you count justice thomas how you count them uh what is the uh
00:13:16.760underlying uh rule of law that you use to connect these five exceptions sure so as i just said all
00:13:25.260of the exceptions involve situations where that u.s born child is not subject to the jurisdiction
00:13:31.500of the united states and the one i think that's the easiest to understand dave is the children
00:13:39.380of diplomats, like a diplomat comes over here from Saudi Arabia or the UK. And we've all seen
00:13:49.020this happen, like in the movies, if they commit a crime, they run a red light, they can't get a
00:13:55.920ticket because they've got diplomatic immunity. They're not subject to the jurisdiction thereof.
00:14:00.900They may live here and they may have a baby here, but that baby will not be an American citizen
00:14:08.620If it's two diplomats from the U.K., it will be a U.K. citizen.
00:14:14.500And that's because of subject to the jurisdiction thereof.
00:14:17.780And 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.
00:14:33.600So can you explain why, why it's not the same?
00:14:36.160Megan, good to be back with you and Mike.
00:14:37.920And 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.
00:14:45.820And 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.
00:14:55.580But the text that they wrote, and this addresses your point too, Megan, was intentionally broad.
00:15:00.340They didn't write, all former slaves shall be citizens.
00:15:03.520What they wrote was all persons born or naturalized.
00:15:09.020And the 14th Amendment's framers were smart enough to use the word persons, not former slaves.
00:15:15.720And so if we only applied constitutional amendments to the specific people they were intended to protect, the 14th Amendment wouldn't protect anyone today.
00:15:23.480And 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.
00:15:32.040And by the way, that court back then wasn't a liberal court.
00:15:35.260That's the same court around the same time that enacted Plessy versus Ferguson, which is separate but equal.
00:15:43.340I 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?
00:15:52.980Well, are you I'm a little confused with the question because are you saying that you mean political allegiance?
00:16:00.040So 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.
00:16:07.600The argument is that you can understand it simply when you think about the diplomats, right?
00:16:12.300They're not subject to the jurisdiction thereof. They're not. They don't have to abide by our laws here.
00:16:16.680It'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.
00:16:27.880that was kind of why diplomatic immunity started.
00:16:30.680So it would make sense to me that two diplomats having a baby on U.S. soil would not be an American citizen.
00:16:35.660No one's ever submitted to the jurisdiction of the United States.
00:16:38.220And what the Trump administration is saying is the kids of illegals are the same
00:16:42.300because those parents are kind of in a similar position to the diplomats.
00:16:47.340OK, I understand where you're coming from, Megan.
00:16:49.540And the reason that children of foreign diplomats are treated differently
00:16:54.120is that their parents carry that diplomatic immunity.
00:17:11.780Well, and here's the question that Dave needs to answer.
00:17:14.580You said the 14th Amendment applies to all persons.
00:17:18.180How come the 14th Amendment didn't apply to American Indians?
00:17:22.340OK, you're you're talking about there was that case, that elk case, right?
00:17:26.620Is 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.
00:17:40.120And 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.
00:17:48.300That's the act you referred to, the 1924 Indian Citizenship Act.
00:18:07.320They don't need a separate law to make them subject to the laws of our country.
00:18:11.180Well, 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.
00:18:26.480And 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.
00:18:37.860How are illegal aliens subject to the jurisdiction of the United States?
00:18:43.240How 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?
00:18:58.940Do you think that's what the proponents and the public understood the 14th Amendment to mean or any subsequent statute?
00:19:07.860After the 14th Amendment, is that is that what birthright citizenship means to you, Dave?
00:19:13.240Well, you mentioned that in the Wong Kim, our case, that the court mentioned that the parents were lawful and permanent and they did.
00:19:20.060You're right about that. But that's because those were the facts in the case before then.
00:19:24.920The court's legal reasoning, though, did not depend on their visa status.
00:19:30.460And, you know, we don't want to be confused between a fact and a rule.
00:19:34.380In that Wong Kim Ark case, the court noted the parents were legal residents because that was their specific story.
00:19:40.460But 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.
00:21:20.120Given 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.
00:21:39.240And yet Congress repeats that same language knowing what the interpretation had been.
00:21:44.480For 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.
00:22:00.340I think if you look at the structure of that statute, where it's 1401 A, and then B through H,
00:22:07.020it says these are the people who are entitled to birthright citizenship.
00:22:10.720A is the constitutional standard, and then B through H are all the categories that Congress has superadded to that.
00:22:16.380I think the natural inference is that Congress is codifying, which it was consciously doing in 1941,
00:22:21.700pulling all the naturalization rules and immigration rules together into one statute.
00:22:25.580It said, you go to one place, here's who is a birthright citizen.
00:22:28.740A, those who are guaranteed that right by the citizenship clause, and B, through A,
00:22:33.080to the ones that Congress has added through its naturalization power.
00:22:35.640So that inference to me says, A, is merely, it's not trying to change or alter the constitutional
00:22:41.500standard, just saying, hey, the baseline is what the Constitution says, and we codify
00:22:45.140that, and then we move on to the new Kavanaugh.
00:22:47.620So that to me, Mike, is Kavanaugh sounding a little skeptical, saying, look, we had the
00:22:54.62014th Amendment, and then we had a statute enacted that would dictate who's a citizen, and that if
00:23:02.780Congress wanted to change or do anything different around this issue after that Wang
00:23:10.660King Ark case, which was decided in 1898, then that statute would have read a little differently,
00:23:16.960that they wouldn't have just kept repeating the same language. Just for the audience,
00:23:20.620I know this is dense. Try to hold on. But in that case, the Supreme Court upheld the American
00:23:25.860citizenship of a child born in San Francisco to Chinese immigrant parents, as our panelists
00:23:30.980pointed out. Those parents, however, were both here lawfully. They were legal resident aliens.
00:23:39.880But those who are still using it as evidence that it would apply to illegals point out that at the
00:23:46.080time in 1898, we weren't really doing the legal alien, illegal alien thing here in the United
00:23:53.800States. We weren't really looking at aliens in those categories yet. So that's why it wasn't
00:23:58.200really, that's why Dave's side said it's not a real point of distinction on this case. But you
00:24:03.220could hear Kavanaugh there saying, look, if Congress wanted to change what subject to the
00:24:07.600jurisdiction thereof meant or wanted to get a little bit more exacting when they enacted the
00:24:11.680civil rights law that kind of get to this, they would have been more explicit, Mike.
00:24:16.660Well, I think that Wong Kim Ark actually helps President Trump's executive order. It laid out
00:24:21.460the test and it's subject to the jurisdiction means allegiance to the United States. It means
00:24:26.880you're here lawfully and you're here permanently. And that is the opposite of illegal aliens. That
00:24:32.260is the opposite of Chinese earth tours. That is the opposite of foreign ambassadors because that's
00:24:37.700the opposite of invading armies. I would just say this to these Supreme Court justices who are
00:24:44.000waffling a little bit, you know, these more political types who are, you know, maybe looking
00:24:48.680at the polling on this. I would say this, that our most crucial sovereign power as we the people,
00:24:55.060the sovereign citizens of America, is to control our border and to control our populace. And we
00:25:03.140never agreed to give birthright citizenship to illegal aliens, not at the 14th Amendment and not
00:25:10.500any statute since then. So they can play their little political games to try to get to the result
00:25:16.580that they think is politically palpable. But that is not the law. Their job is to follow the law.
00:25:23.020They wear robes, not capes. There's a little bit more of a clue here, Dave Ehrenberg. Gorsuch,
00:25:30.200We got to check in with him. So so far, I feel like Roberts and maybe Kavanaugh are leaning against the administration.
00:25:38.140That would be enough to do it. That would only leave four conservatives, assuming Barrett, Gorsuch, Alito and Thomas go with Trump.
00:25:45.840So let's check in. What did Gorsuch sound like today? He just gave us that great decision yesterday.
00:25:51.460I 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.
00:26:08.920You can only tell them affirm, affirm, affirm you are gender confused.
00:26:12.280And that's because you really are this sex that you're not.
00:27:33.900Sure. Let me try to help you out with that.
00:27:36.440So, 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.
00:27:50.220The 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.
00:28:01.160OK, 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.
00:28:15.500That'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.
00:28:22.660I'm sure Mike is beaming. But it's interesting. I'm going to try to distill it down because it is confusing.
00:28:28.520But here, in plain language, Justice Gray wrote both the Elk and the Wong Kim Ark of Pitinens.
00:28:34.460So it's interesting that they're quoting him back to him, like, how do you distinguish these two opinions?
00:28:41.180And 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.
00:28:52.980And that's, I think, the distinction between Elk Wilkins and Wong Kim Ark.
00:28:58.660So 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.
00:29:09.180Like I was saying, the subjects of the king, the diplomats come over, they're still loyal to the king, not to the United States.
00:29:15.380Whereas 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.
00:29:40.000Exactly. 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.
00:29:50.860Well, 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.
00:29:56.980You know, but I'm not confident if you were betting about money on it.
00:30:01.440I think this is going to go against Trump.
00:30:04.380I think the Supreme Court is going to rule against Trump because I think these justices are being politicians in robes.
00:30:09.680they're being weak. They're not going to follow the law. And I would say this, if Dave said that
00:30:16.060he was trying to distinguish those cases between the Chinese lawful permanent residents who get
00:30:21.520birthright citizenship versus the American Indians who don't because of their allegiance to a
00:30:27.940separate tribe, to a sovereign tribe, what the hell, what happened to these Chinese birth
00:30:33.200tourists who come to America, have their kids, their Chinese foreign nationals, their kids go
00:30:38.620back to China, there are Chinese foreign nationals with American birthright citizenship under your
00:30:43.760interpretation. They never step foot in America, but they can mail in their votes. I don't think
00:30:48.760that's what the people who proposed the 14th Amendment sold to the public. And I don't think
00:30:53.900that any Congress since then sold that to the public. And if the Supreme Court rules that way,
00:31:00.260that Chinese birth tourists get birthright citizenship and can vote in our elections from
00:31:06.140China and get welfare sent to China, the Supreme Court's going to lose its legitimacy.
00:31:13.660Here's the thing. I'm going to stay with you on this, Mike. Our pal John Yu wrote an editorial
00:31:19.280on this, and he's an originalist, like most of the conservatives on the high court. And he
00:31:26.180made the following point. He's on Dave's side, which you don't always say about John Yu. He's
00:31:33.320a very conservative guy and legal scholar. He's the one who authored the memo that would justify
00:31:40.120the torture that was unleashed on Al Qaeda during the post 9-11 years. He argued, as Dave is
00:31:47.040arguing, and said, you can't argue this about the 14th Amendment. Unfortunately, it does protect or
00:31:53.980include the children of illegals. And he ended his piece as follows. If the American people are
00:31:59.360dissatisfied with aspects of their constitution. The remedy lies in their hands. Amend it.
00:32:05.000Pretending it says something it does not can only undermine the constitution and the rule of law.
00:32:10.860That's a great principle, Mike, and you and I both agree with that as more Federalist type
00:32:17.500constitutional people, because it's that principle that we use to say Roe versus Wade is made up.
00:32:25.520You can't read rights into the Constitution that aren't there, and you can't read prohibitions into it that aren't there either.
00:32:34.180Look, I love John Yu. Maybe this is personal for him, but I would say this, that no, you don't misinterpret the law.
00:32:42.820You 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.
00:32:54.660That 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.
00:33:16.820That 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.
00:33:34.820Megan, unfortunately, Dave, we're not going to. Yeah, go ahead.
00:33:37.800Well, 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.
00:33:48.700There'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.
00:33:59.860Yeah, they actually said, they said, you're going to give citizenship to the Chinese and the gypsies.
00:34:04.260And yet Congress passed it anyways, because they chose a bright line rule so we wouldn't have this kind of debate in the future.
00:34:11.780And that's why every court has decided in that way.
00:34:13.840Even conservative justices and judges are saying that because if you want to change the Constitution, you can't do so through executive order.
00:34:21.200The Supreme Court has not decided this issue on illegal aliens.
00:34:24.720They've decided the issue of lawful and permanent residents, people who have who are subject to the jurisdiction of the United States,
00:34:32.700which means they have allegiance to the United States.
00:34:35.960It's not Chinese birth tourists who get to come here.
00:37:30.560I would say that I don't know any Democrats who say, hey, the key to future electoral success
00:37:35.860is we're going to have open borders so that we can flood the voting booths with the legals who owe it to us.
00:37:42.000I know that that's how Republicans think.
00:37:44.280I haven't heard that on the Democratic side.
00:37:45.780Maybe it's part of the DSA, the Democratic Socialists of America, which I'm definitely not a part of.
00:37:50.300But I haven't heard that talking point on our side of the aisle.
00:37:54.480Mike, let's just switch for a minute, if you guys don't mind, because I do want to follow up on the SAVE Act.
00:37:59.860It's the number one thing being debated right now on Capitol Hill and amongst every Republican I know.
00:38:05.020I 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.
00:38:17.140and that this it's so important to most Republicans that there's a serious pitch to get rid of the
00:38:25.380filibuster in the Senate so that it can pass this Senate, which only has 52 Republican or 53
00:38:31.860Republicans, and we can get it through. You know, the House obviously is Republican controlled.
00:38:36.780The Senate is Republican controlled. We have a Republican in the White House. And many people
00:38:40.660believe we don't do it now. What will happen, guaranteed, is the Democrats will come back
00:38:45.480in a power in the Senate, whether it's 2026 or 2028, and they'll do it. They'll do it for their
00:38:51.100side and hoping that they'll get a Democrat president in. I've had my own serious doubts
00:38:56.120about whether this makes sense because I like minority rights in the Senate because I've just
00:38:59.040seen too many good Republican minorities stop crazy ass Democratic legislation. And also, Mike,
00:39:05.920because it seems to me that generally when you have a Democrat trifecta, House, Senate and White
00:39:13.100House, they go nuts on the legislation. Whereas Republicans are more, you know, we're conservatives.
00:39:19.660We're more like we conserve the status quo. We don't we're not huge on like and another law and
00:39:24.940another law. So I think it'll help the Dems more than it helps the Republicans. Senate Republicans
00:39:29.720are giant pussies is what I think you're trying to say there, Megan. Look, I would say this about
00:39:35.240the Save America Act. It requires proof of citizenship and voter ID. This has the support
00:39:41.740of over 80% of Americans, including a supermajority of Democrats and even a supermajority
00:39:49.920of minorities. The Democrats pretend that women who get married or minorities don't have the
00:39:55.860wherewithal to get a voter ID like everyone else. It's nonsense. The reason they oppose this
00:40:01.000is because they know with our motor voter laws that these illegal aliens are getting
00:40:07.600driver's licenses, and they're getting automatically signed up to vote, and they're
00:40:12.600voting in our elections. And this Save America Act would stop this. We don't need to have 60
00:40:20.280votes to pass the Save America Act. You need 60 votes to invoke cloture and stop unlimited debate
00:40:27.760in the Senate. You just need to make the Senate Democrats stand on their feet and debate until
00:40:33.520they run out of gas, right? And so at the Article III project, we are getting people
00:40:38.720to light up, they go to our webpage and light up both of their home state senators and tell them
00:40:44.260to pass the Save America Act. And if John Thune and Senate Republicans can't pass a piece of
00:40:50.860legislation with 80% support among Americans, including a super majority of Democrats and a
00:40:56.480super majority of minorities, they are in the wrong line of work. Go get a real job in real America.
00:41:02.840Are you worried, Mike, at all about the elimination of the filibuster?
00:58:24.640I 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.
00:58:37.080In 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.
00:58:47.020We 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.
00:59:03.680And the media's lawyers were able to see this ATF summary.
00:59:08.320And 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.
00:59:27.520Okay, so they see that there's been a comparison between, they say, a bullet jacket recovered and the rifle.
00:59:33.240The filing quotes one sentence directly from the ATF report, quote, the result of the comparison was inconclusive.
00:59:41.220Okay, so maybe not as dramatic as we were led to believe by the Daily Mail, but interesting.
00:59:47.000I mean, inconclusive is not the same thing as did not match.
00:59:51.220I mean, I think a lot of people were very confused.
00:59:53.660but we are no longer confused because we've done some investigation with our
00:59:57.680gun experts and our legal experts, and you're not going to be confused after you hear this
01:00:02.760segment either. Andrew Branca is an attorney and self-defense law expert who has significant
01:00:08.420experience with firearms and criminal defense attorney, and MK True Crime host Mark Garagos
01:00:13.860is also with us. He knows a thing or two about what he would do with this evidence and whether
01:00:19.780it is or is not a significant deal. Andrew, let me start with you as somebody we've gone to
01:00:25.120repeatedly on firearms and self-defense and so on. Your take on what this, put aside the Daily
01:00:31.340Mail headline, but what does this actually mean? What is the ATF trying to tell us?
01:00:37.180Well, I mean, it's mostly a big nothing to tell you the truth. It's not an all unusual to have
01:00:41.680difficulty making a match between a bullet recovered on autopsy and a firearm. You don't
01:00:46.360actually even need the bullet, of course, to find someone guilty of having fired the bullet.
01:00:52.020So it's nice. It would have been nice for the prosecution if they could have had a high
01:00:56.360probability definitive match with the rifle. They would have liked that. It would have been
01:00:59.900great for the defense if some grotesque characteristic of the round, like the numbers
01:01:05.140of lands and grooves, the rifling on the bullet were distinctly different than in the rifle. So
01:01:10.360you would have a definite exclusion. But all we have here is an inconclusive result. And frankly,
01:01:16.060it doesn't surprise me. It's not unusual to fire a bullet, especially a high power rifle bullet
01:01:21.100into a human body, end up with a lot of fragmentation. The jacket strips off of the
01:01:27.460lead core. It fragments into a bunch of pieces that are some of which are recovered from the
01:01:31.820body. Others are not. They're just dispersed within the tissue. And it's just unable to
01:01:36.120come to a definitive conclusion of identifying a match between that round and the firearm.
01:01:42.240Mark, the defense seems to be objecting to the ATF having another bite at the apple, going at this again.
01:01:51.840They'd like it, I think, to stand where it is.
01:01:54.160When you read that, not the Daily Mail headline, but when you found out that this is what the ATF has said,
01:02:00.600this is the government saying that in its summary report that the ATF was unable to identify the bullet
01:02:07.640recovered at autopsy to the rifle allegedly tied to Mr. Robinson. What was your reaction?
01:02:14.480My reaction was very similar to yours. I mean, the reason I went and looked at the motion because
01:02:19.480I thought the headline had excluded it. Once I saw or took and read the motion, then I realized
01:02:28.660that it was not an exclusion. However, this is a criminal case. Criminal case requires proof
01:02:34.740beyond a reasonable doubt. Anytime as a defense lawyer you see something that says inconclusive,
01:02:40.760you're going to jump all over that, number one. Number two, one of the problems with this kind
01:02:47.660of testing and the testing that may be done here and why the defense would be objecting is they
01:02:53.740want to do the testing themselves at this point. They don't want the ATF or FBI or some outside lab
01:03:00.060destroying the remaining sample if it's microscopic before they've had a chance to do their own
01:03:06.260testing. There are other tests that can be done. I've done other tests. I haven't done it, but I've
01:03:11.380had experts do other tests where they can match up metallurgical kinds of analysis, other kinds
01:03:18.000of analysis that will attempt to exclude this bullet fragment. I would not be dismissive here
01:03:27.340of the ability of the defense to use this and use this well. Because what you pointed out to
01:03:34.340some of these text messages to me just sound fake and they sound kind of, I don't know,
01:03:43.560almost like they were AI created. And if I've got a Gen Z young man, it does not in the least. It
01:03:51.520does not. It does not sound authentic for a term that everybody likes to throw around.
01:03:56.740And 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.
01:04:09.420And I'm sure they've already hired a ballistics expert who's all over this thing.
01:04:14.540Andrew, what can you explain what's going on here?
01:04:40.420Now, 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.
01:04:52.020They 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.
01:05:04.920In fact, again, it's not at all unusual.
01:05:06.960Anyone 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.
01:05:15.900The bullet was captured within the body.
01:05:18.920You 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.
01:05:28.000Now, 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.
01:05:36.640But that's not a certainty, and it's not unusual that the bullet does weird things as soon as it hits.
01:05:44.320They can enter horizontally a neck and go down into the body.
01:05:48.420It's not what you would expect to happen, but it happens often enough that it's not shocking, and it's certainly not impossible.
01:05:56.760Do 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?
01:06:06.820By the way, there are two reports here.
01:06:08.340One says that it was the bullet that they, unable to identify the bullet, recovered at autopsy to the rifle.
01:06:17.420And then that media filing referencing this same ATF summary described it as a bullet jacket fragment that was compared to the rifle.
01:06:27.880We 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?
01:06:38.060And they told us, no, the media motion and the defense motion are talking about the same thing.
01:06:42.620There 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.
01:06:55.800But 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?
01:07:13.660Because the state indicates that the FBI is in the process of conducting a second comparative bullet analysis, as well as a bullet-led analysis.
01:07:23.220Now, 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.
01:07:34.920Well, I mean, there's a tension here, right?
01:07:36.740So as a prosecution, you're obligated to turn this material over to the defense at some point.
01:07:42.320Certainly, the judge won't like it if you delay excessively in getting this material.
01:07:46.600So with the prosecution, I mean, they do like to delay, right?
01:07:50.720There'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.
01:07:58.660That makes it very difficult for the defense to do an adequate evaluation or challenge of the evidence.
01:08:04.080I'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.
01:08:15.820At some point, the prosecution has to turn it over.
01:08:18.040The exact timing of that, they don't want to be castigated by the judge for not having turned it over in a timely manner.
01:08:24.420That 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.
01:08:34.440And it's not good for the prosecution.
01:08:36.220Of course, Mark, they have an obligation to turn it over to the defense if it's exculpatory, if it would help Tyler Robinson.
01:08:42.860But you tell me whether you think this is unusual, that they turned over the thing that was going to be exploited by the defense.
01:08:49.280And 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.
01:09:01.440well what's going on here i and this i've been down this road i can't tell you how many times
01:09:07.440they want they have to turn it over because it is exculpatory people can diminish it people can say
01:09:13.880well it doesn't mean this you can you can do whatever you want in terms of couching it it's
01:09:18.980exculpatory evidence they've got a duty under brady to turn it over that's number one number
01:09:23.740two you're dealing with a fragment what i always do in this situation and i've learned this from
01:09:29.220others who are very well schooled in this, I then say, I want my expert present when you do any
01:09:37.260further testing, because I'm not going to sit here and wait for you to do the testing. My expert is
01:09:43.340going to be present, number one, or number two, you can't do any more testing until I make sure
01:09:48.580that my expert has taken a sample or has reviewed your bench notes and all of your work, because
01:09:54.900You 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.
01:10:03.360You knew that you did that. And then there's going to be subject to a motion to dismiss.
01:10:10.560How is it exculpatory, Mark, when, you know, what Andrew is saying is you had a bullet go in.
01:10:17.000it fragmented you know i think andrew's basically saying of course you're not necessarily going to
01:10:22.100be able to tie a bullet fragment to this rifle in particular like you you might be able to say oh
01:10:29.180this is the bullet fragment of a nine millimeter that's not what was used by tyler robinson so
01:10:33.200that's very exculpatory but that's not what they have here that they're just saying this bullet
01:10:37.400was so torn up we can't positively say it came from this weapon so my question is how is it
01:10:44.600look under brady and then it's yeah under brady and to some degree lesser degree giglio
01:10:51.960anything that diminishes the case remember that the prosecution has to prove this case
01:10:57.560beyond a reasonable doubt when you have a forensic test that is done that comes back and it's
01:11:04.140inconclusive by definition that's a lesser standard than beyond a reasonable doubt which is certainty
01:11:10.920to some degree. And so that, by definition, is exculpatory. That is why they turned it over.
01:11:18.240That is why, by the way, all you need to know about the prosecution is the fact that they've
01:11:23.460already turned that over to another agency, namely the FBI, to do secondary testing.
01:11:29.620They recognize the fact, no matter how they couch it, no matter how forward-facing or public-facing
01:11:35.880They try to diminish it. They recognize that it's exculpatory. That's why they're doing further
01:11:41.140investigation, further testing. And that is that, to my mind, is exactly why the defense is honing
01:11:50.080in on this. Yeah, I agree with Mark. I do agree with Mark in the sense that, of course, it's not
01:11:57.180the job of the defense to prove Tyler Robinson innocent. There's no innocence in court. It's
01:12:03.600their job to prevent the state from proving him guilty beyond a reasonable doubt. So in that sense,
01:12:08.220anything that does not advance the prosecution's movement towards proof beyond a reasonable doubt
01:12:14.220is helpful to the defense, of course. And what do you know anything? They're doing a second
01:12:21.560comparative bullet analysis as well as a bullet lead analysis. Do you know what a bullet lead
01:12:26.720analysis is, Andrew? Is that toward trying to figure out whether this came from the 30-06
01:12:31.320or whether it's, like I said, maybe a nine millimeter or a 357 Magnum, which would be
01:12:36.860helpful to Tyler Robinson if it's not? Well, I mean, bullet leads come in a lot of different
01:12:40.940alloys. Some are harder, some are softer, and you can differentiate those with laboratory testing.
01:12:45.780So they they'll test the lead from the bullet and then they'll test inside the barrel of the gun and
01:12:50.020see if those leads can be matched up. And that would that would be helpful, obviously, for the
01:12:54.580prosecution. Again, whether you're likely to be able to do that or not, lots of different bullets
01:13:00.080can be fired through a single gun. You get lots of different leads. Much lead is common among many
01:13:05.680different types of bullets. So it's very difficult to get an exact match that way. But they're looking
01:13:09.740for anything they can use to try to tie this bullet to the gun. If they can get that, that's
01:13:14.760very helpful for the state. Mark, we talked to our pal Sean Davis over at The Federalist, who knows
01:13:20.760a thing or two about guns. And he knows a bit about these ATF documents, too. And he suggested
01:13:27.220that the these sort of barrel matching matching this whole process, it's questionable as a valid
01:13:36.460forensic science at all. He doesn't believe it is. And he said multiple courts are now concluding
01:13:40.860the same thing. And he said, at best, the forensics can tell you whether this bullet
01:13:45.040was fired from this particular make and model of gun. But it absolutely cannot conclusively
01:13:51.380determine that this bullet from gun is from gun A and not gun B when gun A and B are the same
01:13:57.540make and model of gun. So I think he's suggesting we're asking too much of the ATF here. Yeah. And
01:14:04.400for those who are in the weeds, there's something called the Daubert analysis in California. We call
01:14:10.060it Sargon. We've got Sanchez, where you challenge the science in these kinds of cases. We've been
01:14:16.780doing that on ballistic style evidence for a while. You may remember, Megan, years ago,
01:14:23.020because I think you covered a couple of these cases out of Texas, the arson, so-called arson
01:14:28.420evidence, which was thought of as state of the art, which was admitted into many different
01:14:34.100murder prosecutions, was later found to just be junk science. And so that is the same kind
01:14:40.860of analysis has been used for a number of years in various jurisdictions, challenging this
01:14:46.440ballistics evidence, because there are those experts who will say this is junk science and
01:14:52.080the idea of making it akin to fingerprints, which also has some of its own issues, is something that
01:14:58.900is a hotly contested topic. I want to keep going. Candace does have, she says, law enforcement,
01:15:07.120good sources involved in this case. And she has reported, Andrew, that police dogs did not alert
01:15:14.400to the rifle that, you know, the rifle was found in a grassy knoll not far from the campus and
01:15:20.340allegedly it had been fired. Allegedly, it had been shot, you know, by Tyler Robinson to kill
01:15:24.640Charlie, which would involve gunpowder. Right. And the reporting, the suggestion is that law
01:15:31.660enforcement was found that curious, too, that the dogs would not alert to the weapon. Your thoughts
01:15:35.660on it. Dogs are imperfect. I mean, you know, they're really good at what they do, but they're
01:15:41.560not perfect and they miss things on a regular basis, it doesn't. Again, it's a matter of
01:15:46.080probability. If you ask me what I have expected the dog to find the rifle, I'd say yes. Does it
01:15:51.220surprise me that it didn't happen? It really doesn't. Is that the kind of thing that could
01:15:56.580ever come into evidence, Mark? Could the defense ever get that into evidence that the dogs did not
01:16:00.700alert? Absolutely. I was just chuckling because I remember doing a one week hearing on dog evidence
01:16:07.640in the scott peterson case i think you were actually there and at the time or at least
01:16:13.240surrounding it we actually covering it yeah we had um extensive hearings about the dog sent
01:16:21.020evidence about the dog's ability whether the handler was guiding it whether the handler was
01:16:27.020kind of projecting onto the dog and all of that it is something that the defense will use um
01:16:33.740I think, significantly. And you mentioned the term grassy knoll. I think part of the problem
01:16:40.500here, you know, the late, great Searle Wecht spent almost five decades talking about JFK and
01:16:49.120a lot of the ballistic evidence there and about whether or not there was a conspiracy and things
01:16:55.560of that nature. To your point that you originally made, if there are no cameras in the courtroom,
01:17:01.120This is a recipe for conspiracy gone wild. And that's why there has to be cameras in the courtroom.
01:17:09.560Speaking of Peterson, my biggest regret in that case is that that I agreed with the prosecution not to have cameras in the courtroom.
01:17:17.180It'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.
01:17:25.980I mean, there's a lot of ambiguity around a lot of this evidence, right?
01:17:29.860And by the way, my perspective is from criminal defense, of course.
01:17:33.520So I think the defense here is doing everything they're supposed to be doing.
01:17:36.240There's a lot of evidence in this case consistent with the guilt of Tyler Robinson.
01:17:39.660And the job of the defense is to attack every piece of that as aggressively as they can.
01:19:34.760And that was his gun that he, you know, that we've all seen that picture of, that old
01:19:39.460fashion gun is a bolt action that would hold onto the casing. If you didn't cycle the bolt,
01:19:45.060the case stays inside the action. And they go on the rifle, ammunition rounds and towel were sent
01:19:50.860for forensic processing. DNA consistent with Robinson's was found on the trigger, other parts
01:19:57.240of the rifle, the fired cartridge casing, two of the three unfired cartridges and the towel.
01:20:05.440And now, Mark, I imagine if you're looking at that last piece as a defense lawyer, you're not
01:20:09.400loving it you're not loving it but you tell me what you do with that that they can prove tyler
01:20:15.260touched some of this stuff but they have to go past that they have to prove that he actually
01:20:20.000fired the shot the actual shot and that's why we have to look at the bullet and try to tie that to
01:20:24.120him right correct but you know ironically if i'm defending this case the thing that gives me the
01:20:31.440most pause about the gun and the bullets and everything else are if you believe the texts
01:20:37.260that they have about worrying whether his dad is going to see it or recognize it or it's his
01:20:44.240grandfather's done those are the things that give me the most pause because in order but if those
01:20:49.740are fake if those are fake right then you get you by the way if those are fake everything else
01:20:56.980falls by the wayside because you can argue very good point right i mean that's the that's kind of
01:21:02.960the wedge if you get past that then then you're off to the races if you're the defense right
01:21:09.820because let's keep my what we're really well we i mean if they're fake we'd like to know but
01:21:13.760we're really kind of arguing if the defense can convince the jury that they're fake
01:21:18.600then the whole case could go away because if the defense can convince the jury they're fake then
01:21:23.540the defense is convincing the jury that the case is fake news go ahead yeah well i was going to
01:21:27.920say, one of the greatest instructions you get in a criminal case, talking about either reasonable
01:21:35.140doubt or a witness willfully false, if you can show that some material, something that's important,
01:21:42.520something that matters to the prosecution is false, and that a witness falsely produces that
01:21:49.000evidence, testifies to that evidence, there's an instruction that you get in almost every
01:21:53.780jurisdiction that says you can disbelieve everything. So that is, you know, that's
01:21:59.920generally a witness willfully false is a the centerpiece of a defense case. And that's why I
01:22:06.340say if you can pull on a string and you can get them to admit or get a witness to concede that
01:22:12.160they were false about something, everything else can go can fall apart. It's a house of cards
01:22:17.240instruction. But Andrew, we one of the things that we have now learned from this same defense
01:22:22.680filing that spoke about the bullet, wrote about the bullet, is that the defense has revealed
01:22:30.260that the prosecution is going to be calling as its witnesses Tyler Robinson's parents
01:22:37.700and his lover, the furry, the trans-furry Lance Twiggs. And let's just, let's start with the
01:22:46.040trans-furry lover. That's the one with whom Tyler Robinson was allegedly texting, the weird-sounding
01:22:52.140texts that sound like sort of old English almost. I mean, it just doesn't sound like a Gen Z
01:22:58.060young man. But Lance Twiggs will presumably, if he's going to get called by the prosecution,
01:23:05.660stand up there and say, not only do I confirm those are my texts with Tyler, but let me show
01:23:13.340you a litany of other texts between me and Tyler, where we often sound like we are old English or
01:23:19.720we are from a renaissance fair and speak like this to one another. You got to laugh where you
01:23:26.560can. And that'll be very helpful. Like if that's what he's going to do, if he's not like some sort
01:23:31.340of hostile witness, but he's really cooperating and at a bare minimum authenticates those texts,
01:23:36.080then isn't this whole debate about whether they're real done?
01:23:40.860Well, I mean, we have to keep in mind, of course, in any criminal prosecution,
01:23:45.040nobody knows what actually happened with absolute certainty, especially not the jury,
01:23:49.420right? The jury's supposed to come in like a blank piece of paper. What the jury's hearing
01:23:53.820is two stories in the courtroom. They're hearing a story of guilt from the prosecution and a story
01:23:58.740of not guilt from the defense. And you read the information before. And listen, anytime you read
01:24:03.540an information that's, of course, created by the state, that's their narrative of guilt. It always
01:24:08.020sounds great until it's challenged in court. This kid is going to come and he's going to testify.
01:24:13.760He's going to be subject to direct examination by the state and will probably be a good witness
01:24:17.760for the state if they've prepared him properly but then he's subject to cross-examination and
01:24:23.680it's not at all common to see a fantastic witness on direct completely collapse on cross and of
01:24:30.540course that's the job of the defense so we won't know that until it happens again that's a reason
01:24:34.720why this needs to be televised so we can observe that for ourselves and not rely on you know media
01:24:40.380reports on what's happening the other thing i wanted to mention is you talked about this this
01:24:44.860motion of the defense that we're all discussing, to me, the really interesting part wasn't actually
01:24:50.720the rifle stuff per se, the ballistic stuff. It was the DNA stuff. I mean, obviously, it would
01:24:56.580be very helpful for the state to have this DNA connection between Tyler Robinson and the rifle.
01:25:01.480But in fact, there's only very tiny amounts of DNA that they're able to test, and they're using
01:25:07.120a technique to test it that is relatively new and novel and not demonstrated as being robust.
01:25:13.880It's been rejected by a whole bunch of federal and state courts.
01:25:17.880And 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.
01:25:25.160It's great for the defense if they can get that evidence excluded so the jury never hears it in the first place.
01:25:34.300Let me just read you in part what they say about the DNA in the motion.
01:25:36.480Um, Robinson says DNA reports by the FBI and ATF will take time for the defense to analyze
01:25:44.320because the reports indicated that multiple quantities of DNA were found on some of the
01:25:48.120items of evidence. Quote, the summary DNA reports produced to date by the FBI and ATF indicate that
01:25:53.980both agencies recovered minute quantities of DNA on various items of evidence, which the reports
01:26:00.740opine consist of mixtures of up to five or more individuals. Five or more is in quotes. So this
01:26:09.380is the defense quoting from the government's summary report. And then they go on to say,
01:26:16.220as these cases indicate, determining the number of contributors to a DNA mixture and determining
01:26:21.120whether the FBI and the ATF reliably applied, validated, and correct scientific procedures
01:26:24.980is complicated. It requires time. So they're saying themselves that they gleaned from the
01:26:29.780government's report that some of the DNA has mixtures of up to five or more individuals,
01:26:36.200and they describe the amounts as, quote, minute mark. So there's two problems. And Andrew
01:26:41.780ably pointed out the first one when it comes to DNA is there is going to be a have to be a hearing
01:26:50.280that is done onto the admissibility number one, because what the the report itself and I'm to
01:26:57.380some degree speculating because we're only getting selective quotes out of the report.
01:27:01.920But I will speculate wildly that there's going to be a very contested, heated battle over
01:27:10.240the admissibility of any of this DNA evidence, number one.
01:27:14.100Then if it gets admitted and somebody says, OK, this is reliable or it's something that
01:27:21.380should be admitted, there's going to be a further battle over whether or not there is
01:27:27.420transference or whether or not this is a adequate safeguards were taken for the chain of custody.
01:27:34.700The other problem with the witness that they put on the list, which is the roommate, lover,
01:27:41.880whatever you want to characterize, I don't think for a second, I would be shocked if this person
01:27:47.200did not invoke the fifth amendment if i'm representing that guy i'm saying go pound sand
01:27:52.640you're you want to you want this person to testify i'm not testifying absent immunity
01:27:58.080and then the prosecution has to make the decision are we going to give uh transactional we're going
01:28:04.860to give use immunity to this person uh before we know what they're going to say and by the object
01:28:11.300to the use of the word person yes we're not sure it's a furry of some sort i was actually going to
01:28:17.140say ironically transfer for dna and here but i didn't want a bad dad joke so wait let me ask you
01:28:26.320on a procedural matter then because the reason we know that lance twigs is going to be called by the
01:28:30.340prosecution i mean i think we assumed it since he was corresponding with tyler in the moments after
01:28:34.720the crime and obviously in the days prior that doesn't mean he's agreed to testify for the
01:28:40.980prosecution though the reports are that he is cooperating with them those are the reports
01:28:44.480But you're saying that none of that means he's not going to take the stand and assert his Fifth Amendment.
01:28:51.180He 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?
01:29:00.700He's going to figure out pretty soon or pretty quickly that the defense is going to be challenging his role in all of this.
01:29:08.180And 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.
01:29:18.260Well, I think he's cooperating so far.
01:29:20.780And 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.
01:29:31.400Can you guys stick around for a few more minutes?
01:29:32.900We're going to take a quick break and come right back to Andrew and Mark.
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01:31:54.060and no apologies. Along with The Megyn Kelly Show, you're going to hear from people like
01:31:57.660Mark Halperin, Link Lauren, Maureen Callahan, Emily Jashinsky, Jesse Kelly, Real Clear Politics,
01:32:03.260and many more. It's bold, no BS news, only on the Megyn Kelly channel, Sirius XM 111,
01:32:09.960and on the Sirius XM app. Andrew Branca and Mark Garagos are back with me. So the other big
01:32:20.600The 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?
01:32:31.560They 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.
01:32:43.000So 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.
01:32:52.680And here is what we know from earlier on in this case, from, again, the criminal information, which is the charging document for Tyler.
01:33:00.740It describes him as turning himself in with his parents.
01:33:03.860All right, this is verbatim what the state alleged.
01:33:05.820On 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.
01:33:21.480Robinson's mother stated the following to police.
01:33:23.960On 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.
01:33:31.140Robinson's mother called her son and asked him where he was.
01:33:34.120He said he was at home sick and that he had also been at home sick on September 10th.
01:33:39.320Robinson's mother expressed concern to her husband that the suspected shooter looked like Robinson.
01:33:47.460His 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.
01:33:55.760She stated that Robinson began to date his roommate, a biological male, who was transitioning genders.
01:34:02.880OK, this resulted in several discussions with family members, but especially between Robinson and his father, who have very different political views.
01:34:10.120In 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.
01:34:20.280Robinson'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.
01:34:26.660He also believed that the rifle that police suspected the shooter used matched a rifle that was given to his son as a gift.
01:34:34.300As a result, his father contacted the son and asked him to send a photo of the rifle.
01:34:58.280When asked why he did it, Robinson explained there's too much evil and the guy, Charlie, spreads too much hate.
01:35:05.560They 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.
01:35:13.880The family friend met with Robinson and his parents and convinced Robinson to turn himself in.
01:35:23.160The 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.
01:35:33.280The family friend also asked Robinson if he had any clothes that were related to what he did.
01:35:37.760Robinson replied that he had disposed of the clothes in different areas.
01:35:41.580So 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.
01:36:02.500They texted Tyler. He didn't have an alibi. They then talked to Tyler and he confessed to them or came as close as possible.
01:36:12.400And 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.
01:36:20.440And 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.