The Megyn Kelly Show - Merrick Garland's Potential Felonies, and New Evidence in Idaho Murders Case, with Ric Grenell, Marcia Clark, and Mark Geragos ｜ Ep. 577

00:00:00.420 Welcome to The Megyn Kelly Show, your home for open, honest, and provocative conversations.

00:00:12.020 Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show.

00:00:15.560 We have reached a very clear choice.

00:00:18.140 Either Attorney General Merrick Garland is lying,

00:00:21.180 or the IRS official who oversaw the investigation into Hunter Biden,

00:00:26.080 who's now speaking out on the record as a whistleblower, is misleading us.

00:00:29.720 That is how the choice appears, and only one can be true.

00:00:34.220 The implications to this are huge, and there's new reporting on it today from The New York Times.

00:00:38.580 Joining me now to dig into it all is Rick Grinnell, a close confidant of former President Trump.

00:00:43.260 Rick, of course, served as Acting Director of National Intelligence and U.S. Ambassador to Germany during the Trump administration.

00:00:49.880 Rick, welcome back to the show. Great to have you here.

00:00:52.460 Thanks for having me, Megyn. Always a pleasure.

00:00:54.680 So this is a stunner.

00:00:55.640 Here we go again, in The New York Times, of all places, confirming what this whistleblower from the IRS investigation into Hunter Biden told Congress.

00:01:05.320 The whistleblower came through.

00:01:07.520 He was the chief investigator on the Hunter Biden case and said this was mishandled time and time again,

00:01:12.080 that the U.S. Attorney for Delaware, David Weiss, who was in charge, had told this whistleblower, Shapley, and several other FBI agents and other law enforcement agents,

00:01:24.600 that he, Weiss, was empowered, or sorry, was not empowered to bring charges in any jurisdiction other than Delaware,

00:01:32.600 and that he was going to need the cooperation of the DOJ and others within the DOJ to make those charges happen and so on.

00:01:37.740 Merrick Garland says exactly the opposite was true, that he had empowered Weiss to bring charges wherever and on whatever he saw appropriate.

00:01:48.740 It's a clear diversion between what Weiss allegedly told the whistleblower and other FBI and related law enforcement agents and what Merrick Garland's saying.

00:01:59.720 So we don't know what is true, but if what the whistleblower is saying is true, then it explains why Hunter Biden didn't get charged with more,

00:02:07.400 why they stopped it, slap on the wrist charges about tax incidents and so on.

00:02:12.680 And today we have The New York Times confirming what the whistleblower said.

00:02:19.140 All right, so we'll get it.

00:02:19.920 We'll get into it, all of it.

00:02:21.440 Let me just start with this.

00:02:22.340 So the whistleblower comes forward and says, they tie this guy's hands, that Merrick Garland was tying this guy's hands.

00:02:31.940 And then you have Merrick Garland coming out and saying, that's a lie.

00:02:36.080 He told Congress under oath in March, Merrick Garland did, that he had empowered David Weiss to do everything and anything.

00:02:42.340 Here's that testimony.

00:02:43.240 It's important because it's under oath and it's probably going to come back to haunt him.

00:02:46.780 Here's Merrick Garland in March.

00:02:47.860 Let's indicate that the Justice Department and the FBI had at one time over a dozen sources that provided potentially criminal information relating to Hunter Biden.

00:03:02.100 So as the committee well knows from my confirmation hearing, I promised to leave the matter of Hunter Biden in the hands of the U.S. Attorney for the District of Delaware,

00:03:13.120 who was appointed in the previous administration.

00:03:15.960 So any information like that should have gone or should or should have gone to that U.S. attorney's offices and the FBI squad that's working with him.

00:03:26.820 I have pledged not to interfere with that investigation and I have carried through on my pledge.

00:03:33.740 I pledged not to interfere.

00:03:34.960 Now, that is not at all what the whistleblower is saying happened here.

00:03:38.240 He's saying that David Weiss was shut down at every turn by Merrick Garland's U.S.

00:03:41.820 attorneys and other jurisdictions saying, I'm not touching it.

00:03:43.960 I won't do it.

00:03:45.000 And that that stopped the investigation, among other ways in which he alleges Merrick Garland interfered.

00:03:49.920 Here's the second thing.

00:03:51.400 Merrick Garland comes out on Friday to respond to the whistleblower.

00:03:54.320 And here's what he said.

00:03:55.080 Mr. Weiss, who was appointed by President Trump as the U.S. attorney in Delaware and assigned this matter during the previous administration,

00:04:05.640 would be permitted to continue his investigation and to make a decision to prosecute any way in which he wanted to and in any district in which he wanted to.

00:04:15.960 The only person with authority to make somebody a special counsel or refuse to make somebody a special counsel is the attorney general.

00:04:24.480 Mr. Weiss never made that request to me.

00:04:26.400 The whistleblower alleges the opposite, that Weiss told him he had asked to be labeled special counsel so he could just bring the charges everywhere,

00:04:37.540 wouldn't be limited to Delaware, and that Merrick Garland denied the request.

00:04:41.240 There's a clear divergence between what the whistleblower is saying, what Merrick Garland is saying, and the New York Times is now reporting that they too can confirm this IRS investigator's testimony is absolutely at odds with what Merrick Garland said.

00:04:57.860 They've done their own investigations of the whistleblower's claims and also confirming here that David Weiss went to at least two other U.S. attorneys, one in California, one in Washington,

00:05:12.120 asking if they would bring charges that they would help with an investigation against Hunter, and he was turned down.

00:05:19.000 So what happens now?

00:05:21.440 Because there's been talk by Kevin McCarthy of possible impeachment proceedings against Merrick Garland.

00:05:27.700 And I'll tee up one other soundbite for you, Rick, and that is Ted Cruz, Senator Ted Cruz, who went so far as to say if this whistleblower's claims are actually true in The New York Times,

00:05:36.640 now advancing it, saying we see the same divergence in testimonials here, there should be absolute penalties to Merrick Garland.

00:05:43.940 Here's Ted Cruz a couple of days ago.

00:05:45.320 Now, every word he said there is a lie and the self-righteousness with which he says it, man, I got to say it's time.

00:05:56.480 It is time.

00:05:59.340 The Department of Justice needs to appoint a special counsel to investigate Merrick Garland for obstruction of justice and perjury.

00:06:11.380 Wow.

00:06:11.520 Now, there's a reason he's saying don't ask these questions.

00:06:16.380 Let's be clear.

00:06:17.380 It is his integrity.

00:06:18.940 And I want to walk through it because that is a very serious statement.

00:06:22.960 But at this point, the evidence that Merrick Garland personally committed multiple felonies is growing greater and greater.

00:06:31.780 And the chances that the Merrick Garland Justice Department will fairly investigate evidence of his wrongdoing are zero.

00:06:41.520 Wow.

00:06:44.120 Asking for criminal charges, saying we need a special counsel to investigate the attorney general of the United States for crimes, including obstruction of justice and perjury in connection with this case.

00:06:55.620 So what do you make of all of it?

00:06:58.580 Well, first of all, two quick points.

00:06:59.780 One, thanks for Senator Grassley and his team.

00:07:03.000 They are phenomenal.

00:07:04.400 They are digging deep.

00:07:05.480 I know personally that they are doing really good, detailed work before they come out with charges.

00:07:11.260 So thanks to them.

00:07:12.700 Secondly, I'm really struck, Megan, with, you know, we talk a lot about the two tiers of justice, the two standards of justice in Washington, D.C.

00:07:24.380 But I'm struck with the two differences in how leaks happen in Washington, D.C.

00:07:32.520 Look what CNN did all day yesterday.

00:07:34.600 We don't even know what the outcome of this Donald Trump investigation is on the classified information charges.

00:07:44.620 But they're already leaking before we have any charges, before the finality.

00:07:51.540 They are leaking information.

00:07:54.340 CNN seems to get it all the time to kind of spin before we let the justice kind of system move forward. 0.88

00:08:04.060 Contrary to that, you've got to give it to this whistleblower.

00:08:07.940 He waited.

00:08:08.620 He waited until the charges were filed.

00:08:10.880 He waited to see he didn't try to weigh in beforehand and push the process.

00:08:17.080 He did exactly what he's supposed to do, which is become a whistleblower after there is an outcome that seems to be a problem.

00:08:26.280 He didn't go out and leak beforehand.

00:08:28.400 I think we've got to ask ourselves, why are leaks in Washington, D.C. from the bureaucracy always trying to slam against Republicans before justice is delivered?

00:08:39.800 Or before what seems to be the process is finished?

00:08:44.240 And so I want to point that out because I think it's really relevant to the whistleblower's credibility.

00:08:49.520 The second, the third point that I would say is I disagree with Ted Cruz a little bit of no more special counsels.

00:08:57.420 I mean, if he lied, let's look at the evidence and let's have Congress step up and do something.

00:09:02.600 Let's impeach him.

00:09:03.560 Let's hold him to account.

00:09:06.040 But, you know, a special counsel means a whole bunch of more money for the U.S. taxpayer.

00:09:09.840 It means a whole bunch of more time and justice delayed.

00:09:13.540 I'm so sick and tired of justice delayed.

00:09:16.360 We've got to get to the point where if we're going to lecture other countries on the rule of law, that we've got to clean up our rule of law.

00:09:23.660 I'm sick and tired of having justice delayed because it's really justice denied.

00:09:29.640 Look at the Durham report.

00:09:31.060 Look what they did to Trump multiple times.

00:09:33.400 You've got to ask yourself, why do they keep coming after Trump constantly?

00:09:39.600 But then you see the Biden family completely get away with a whole bunch.

00:09:44.020 So I'd like to see Congress step up and move a little bit quicker than just appointing another investigation.

00:09:51.420 How would they even appoint a special counsel to investigate the attorney general of the United States when it's the attorney general's job to appoint special counsels?

00:10:01.100 Like that's how you get a special counsel.

00:10:02.600 As the AG has to appoint him or her, which is not going to happen from Merrick Garland to investigate himself.

00:10:09.540 So you're right.

00:10:10.200 I mean, I'd love to ask Ted Cruz that.

00:10:11.920 I'll ask him when he comes on soon.

00:10:13.480 But you're right that the most fruitful means of exposing what's happening in this whole lane thus far has proven to be those those House Republicans.

00:10:23.300 And Comer, the guy who heads up the Oversight Committee, has been saying, same as you, no more special counsels for any of this, because all they do is take the ball, hide the ball, manage to keep everybody from being able to talk to Congress because they can just say, oh, it's being handled by the special counsel.

00:10:40.800 And then they bury things at the end.

00:10:42.600 And so Comer so far has proven very adept at getting us the information that's out there.

00:10:48.300 Yeah, look, politicians in Washington, D.C. have got to move away from just voting, showing up and voting and then fundraising and saying, oh, look what I did.

00:10:56.820 I voted on something and take their responsibility of oversight a little more seriously.

00:11:02.660 When you have responsibility for oversight, then you've got to use the power of subpoenas and you've got to get to the bottom and you've got to call it out and vote on an actual action.

00:11:13.960 So impeachment or censorship or something.

00:11:17.440 Give us action.

00:11:19.120 I don't want to see this process kind of, you know, continue on, continue on.

00:11:23.720 That's the ways of Washington.

00:11:24.920 But one other point, just because I know Washington, D.C. and I know the swamp pretty well, there is a system in place where if you get appointed to a job by somebody, you have to remember that they're writing your annual review, those people.

00:11:44.100 And so the only way that you move up in Washington is to get a good annual review, please your bosses, don't rock the boat too much, get rewarded with a bigger office, a bigger title and more money on the GS scale.

00:12:00.100 And so no career person is going to try to investigate their bosses because Washington, D.C.

00:12:09.160 bureaucrats are filled with a bunch of fear that they are going to not be able to be promoted.

00:12:14.740 It's one of the reasons why I believe wholeheartedly we've got to start moving these agencies out of D.C.

00:12:20.140 because people go from, you know, Department of Justice to the FBI, to the Department of Commerce as bureaucrats.

00:12:27.540 And it's all the same pool of people in Washington.

00:12:30.740 They live together.

00:12:31.940 They work together.

00:12:32.780 They go to church together.

00:12:33.820 Their kids go to school together.

00:12:35.240 You're asking them to completely implode their lives by stepping out.

00:12:39.180 You know, there's very little reason to suspect that the Senate is going to do anything about the lies that may have been told by Merrick Garland.

00:12:50.840 Right.

00:12:51.220 I mean, I was just thinking about this the other day.

00:12:53.180 Victor Davis Hanson had a great column about how, you know, Trump's right hand man, his sort of valet.

00:13:00.940 That's how the Brits would say it.

00:13:02.700 His valet, Walt Natchewa.

00:13:05.060 I can't remember how you pronounce his last name.

00:13:06.720 But he's also been indicted as Trump's alleged co-conspirator in connection, nada, in connection with the whole documents thing.

00:13:13.940 And what's he being indicted for?

00:13:16.560 Well, for allegedly saying when asked by investigators, did you move the documents?

00:13:20.680 Were there documents here?

00:13:21.620 Were there documents there?

00:13:22.720 I can't remember.

00:13:23.660 I don't know.

00:13:24.360 I'm not sure.

00:13:24.920 I can't remember.

00:13:25.800 And Victor Davis Hanson pointing out that, you know, you had James Comey saying those things hundreds of times in his testimony.

00:13:32.460 It turned out not to be true.

00:13:33.380 And nobody believes that.

00:13:34.280 You had James Clapper testifying before Congress that he did not wittingly, you know, participate in the NSA spying program, that there was no such program.

00:13:44.960 So no, absolutely no penalties for any of that.

00:13:47.760 So now they but it's a different story if you're connected with Trump.

00:13:51.020 Right.

00:13:51.260 This is what happened.

00:13:51.920 It's a different story.

00:13:52.760 If your name is Merrick Garland, even though you may have provided obviously untruthful testimony before Congress.

00:14:01.080 I mean, the double standard is obvious, Rick.

00:14:02.660 It's obvious it's right in front of us.

00:14:05.800 And that's why I think a lot of people are frustrated with Congress.

00:14:08.520 They've got to start acting.

00:14:10.140 Look at the evidence.

00:14:11.380 Stop the process.

00:14:12.600 There's analysis paralysis and let's let's move on.

00:14:16.560 I have to be careful on the documents case, the Jack Smith case, because I've been hauled in front of the grand jury.

00:14:25.060 I can say that because it's been reported by CNN.

00:14:28.160 But I just want to tell you how crazy the system is, is that when I was hauled in front of the grand jury to testify, I wasn't even in Washington, D.C. when they packed up the boxes.

00:14:38.180 I was already back in Los Angeles, which they knew, but they didn't care.

00:14:42.540 They wanted to put all of the Trump people through the ringer, make us pay for lawyers, try to take time away from your business, just harass you. 1.00

00:14:51.080 That's exactly what they're doing.

00:14:52.560 There's no question about that.

00:14:53.960 But I got the finger waving to me at the end of my grand jury testimony from the prosecutors.

00:15:01.880 Don't you dare leak anything.

00:15:03.920 Don't you dare talk about this.

00:15:05.820 We'll come at you. 0.99

00:15:07.040 They try to scare you with telling you to shut up.

00:15:10.500 Don't talk about anything that was discussed or planned.

00:15:14.880 Megan, this is the truth.

00:15:16.120 I'll put my hand on the Bible.

00:15:17.140 By the time I walked to my car, which was underneath the courthouse, I got into the car and the driver said, oh, you're on CNN.com, your whole testimony.

00:15:29.560 I look at the story.

00:15:31.460 They have the exact, literally exact questions and exact documents that they showed me to ask me questions for.

00:15:40.040 All on CNN.com.

00:15:42.240 Now, there is only one possible way that that happens.

00:15:45.200 Somebody inside the prosecutor's office leaked everything while I was inside the grand jury because somebody had to have time to get all of that up by the time I finished the testimony and walked down to my car, which took about three minutes.

00:16:03.000 It's really outrageous what happens in Washington, and people need to wake up.

00:16:07.400 This is the system in Washington that is not about the rule of law.

00:16:11.480 It's about the rule of D.C.

00:16:13.000 And we've got to stop this.

00:16:15.140 We've got to move the power base outside of Washington, move it back to the American people. 0.67

00:16:20.420 And I will say this to all the people watching.

00:16:22.940 You have a responsibility to get involved and to dig deep.

00:16:27.040 Don't just watch one podcast or one newscast or just read The New York Times.

00:16:33.000 You have a responsibility.

00:16:34.620 You can't just sit back and watch Washington, D.C. types dupe you because that's exactly what they're doing. 0.99

00:16:42.600 That reminds me of what happened to James O'Keefe.

00:16:45.360 Remember when his home got raided at 5 a.m. as the feds do when they're going to raid you?

00:16:51.520 And that morning, I mean, almost simultaneously, The New York Times had an article about it.

00:16:57.280 Well, how did that happen?

00:16:58.700 It wasn't James O'Keefe calling The New York Times.

00:17:01.020 It was obviously the feds trying to embarrass one of the president's critics over this, you know,

00:17:07.040 or more than embarrassed about whether to publish Ashley Biden's diary.

00:17:11.180 Yeah, I think look, I think more than embarrassed, they want to intimidate.

00:17:14.100 They want to send a message to everybody else that we're coming for you.

00:17:18.700 Look, this is the ways of Washington.

00:17:20.240 And as you know, I've said this a million times, worked at the State Department for 11 years.

00:17:24.660 I've worked on all of the human rights reports that come out.

00:17:27.620 I work on all of the reports that, you know, finger wag from the State Department to other countries about the rule of law.

00:17:35.040 We spend lots of money, tens of millions of dollars, hundreds of millions of dollars, U.S.

00:17:41.000 tax dollars to help other countries train their judges and train the legal processes,

00:17:47.300 D.C.'s people involved, so that you have a upstanding rule of law.

00:17:53.520 I have to say that we've lost our moral compass underneath the Democrats.

00:17:57.880 They cannot finger wag about the rule of law to other countries.

00:18:02.040 When we see what's happening in D.C., selective leaks and a clearly double standard, everybody sees this.

00:18:09.260 When I travel through the Balkans, I hear people, leaders, others saying to me, what's going on in the United States?

00:18:16.060 Why are you guys telling us to clean up our act or stop corruption?

00:18:21.120 Clearly, it's happening right in our country and not a lot is being done about it.

00:18:26.500 All right.

00:18:27.560 Now, understanding that you're limited in what you can say on the documents case against Trump because you were called as a witness.

00:18:33.200 Let me ask you about the latest on that tape recording that was leaked to CNN by by whom, whomever could have leaked it.

00:18:41.740 We have no idea.

00:18:43.460 So this gets leaked to CNN.

00:18:45.580 And it's interesting to note.

00:18:47.360 I mean, it doesn't exactly make Trump sound good.

00:18:51.200 It sounds like he's got a classified document there, though he's denying it.

00:18:54.080 But Catherine Herridge points out she reports for CBS News now that it actually doesn't relate to one of the 31 documents he's accused of improperly keeping.

00:19:03.720 It's not one of the 31 classified documents he's accused of keeping, even whether whether we know the feds don't have the document.

00:19:11.100 They didn't find it in any of his Mar-a-Lago documents.

00:19:13.380 But it is kind of curious.

00:19:14.420 So why is it relevant?

00:19:15.300 Well, I guess it's relevant because they're going to show see see members of the jury.

00:19:18.400 He knew that he had classified material, confidential national security defense information.

00:19:24.560 He was reckless with it.

00:19:25.660 He was careless, which, as I understand it, at this point in the case would be, you know, part of the story, but not a requirement to make the case against Trump.

00:19:35.040 In any event, it's dominated the news cycle now for a couple of weeks.

00:19:38.420 So CNN releases the audio tape.

00:19:40.480 Trump's allegedly waving a document around and saying that these are plans submitted to me by the Defense Department, by the military that have a draft attack in Iran outlet outlined.

00:19:53.940 Now, his first defense to Brett Baer when he commented on this last week was there was no document.

00:19:59.860 There was no document.

00:20:00.660 Here's a little bit of what he said to Brett.

00:20:02.020 Ready?

00:20:03.900 You were recorded.

00:20:04.760 It wasn't a document.

00:20:05.500 Okay.

00:20:05.840 I had lots of paper.

00:20:07.220 I had copies of newspaper articles.

00:20:09.260 I had copies of magazines.

00:20:10.700 I know it.

00:20:11.040 When I said that I couldn't declassify it now, that's because I wasn't president.

00:20:14.880 I never made any bonds about that.

00:20:17.100 When I'm not president, I can't declassify it.

00:20:19.700 Brett, there was no document.

00:20:21.360 That was a massive amount of papers and everything else talking about Iran and other things.

00:20:27.500 And it may have been held up or may not.

00:20:29.680 But that was not a document.

00:20:30.840 I didn't have a document per se.

00:20:32.560 There was nothing to declassify.

00:20:34.080 These were newspaper stories, magazine stories and articles.

00:20:37.020 I don't think I've ever seen a document from Millie.

00:20:40.900 Okay.

00:20:41.480 So that's what he told Brett.

00:20:42.600 But the actual audio reporting recording suggests he's saying, here's something that was given to me by the military.

00:20:49.860 Well, now he's saying something kind of similar, a little, little different.

00:20:53.860 I'll let the audience decide.

00:20:55.660 This is what he told Fox News on Tuesday.

00:20:58.620 Satwan.

00:20:58.940 And I said it very clearly.

00:21:01.540 I had a whole desk full of lots of papers and mostly newspaper articles, copies of magazines, copies of different plans, copies of stories, having to do with many, many subjects.

00:21:11.960 And what was said was absolutely fine and very, very perfectly.

00:21:15.800 We did nothing wrong.

00:21:16.900 I'm covered by the Presidential Records Act.

00:21:20.220 I'm covered also by the Clinton-Soxx case.

00:21:22.800 It's a very important case.

00:21:24.040 It's law.

00:21:25.080 You're not concerned, then, with your own voice on those recordings?

00:21:28.300 My voice was fine.

00:21:29.820 What did I say wrong on those recordings?

00:21:31.500 I didn't even see the recording.

00:21:32.860 In fact, you could hear the rustle of the paper.

00:21:35.720 And nobody said I did anything wrong other than the fake news, which, of course, is Fox, too.

00:21:40.680 Are there any other recordings that we should be concerned of?

00:21:42.940 I don't know of any recordings that you should be concerned with because I don't do things wrong.

00:21:49.540 I do things right.

00:21:50.800 I'm a legitimate person.

00:21:52.140 I'm not like Biden.

00:21:53.120 And then just to add to that, Rick, he goes on.

00:21:56.360 He spoke to Semaphore, which is a relatively new news organization, saying it was bravado, if you want to know the truth.

00:22:02.700 It was bravado.

00:22:03.360 I was talking and just holding up papers and talking about them, but I had no documents.

00:22:10.240 Asked about his use of the word plans.

00:22:12.380 He said he was referring to building plans and plans for golf courses strewn about his desk, which does contrast to what's in the recording, where he says the military gave this to me.

00:22:24.040 How do you reconcile it?

00:22:27.080 Yeah, look, first of all, let me just speak directly to Jack Smith that I know nothing about this.

00:22:32.340 I wasn't there.

00:22:34.200 And if you're going to drag me in to talk about it, I'm just going to give you the exact same line, which is I don't know anything.

00:22:39.540 But let me just speculate here because I know President Trump and I heard the recordings and I've seen this.

00:22:46.260 To me, it's pretty simple.

00:22:47.520 There was a New Yorker piece that really got people riled up.

00:22:54.860 And it was a piece that said that Milley presented this plan.

00:23:00.760 General Milley presented this plan to attack Iran and that, you know, we in the Trump administration thought about it and were making plans for it.

00:23:09.300 Obviously, that is salacious.

00:23:13.320 It's big.

00:23:15.220 It goes to the heart of the Trump doctrine, which is use diplomacy and tough diplomacy, sanctions, et cetera.

00:23:24.080 You know, isolation to get your enemies to do something rather than war.

00:23:30.220 Remember, Donald Trump is all about I didn't start any war, didn't plan to start any war.

00:23:35.040 We were prepared.

00:23:35.940 But that goes to the heart.

00:23:37.460 And I can tell you that that New Yorker piece was outrageous to me.

00:23:42.460 I was, you know, thinking, how dare they do this?

00:23:46.960 I never saw those plans.

00:23:48.620 I could talk to other people in the administration.

00:23:50.920 We never saw plans.

00:23:52.960 If Milley had something, then he did it on his own and then he pitched it to the New Yorker.

00:23:57.280 That piece had just come out when they were having this talk.

00:24:02.280 And to me, it would be very obvious to hold up the New Yorker piece and say, you know, see this?

00:24:07.960 This is like them saying documents.

00:24:10.400 This is saying that the documents existed and him talking about it.

00:24:14.360 Again, I don't know anything specifically.

00:24:16.780 I wasn't there.

00:24:18.000 But to me, this all makes complete sense in trying to bat down the narrative that somehow

00:24:24.540 we were planning to attack Iran. 0.82

00:24:27.200 And the New Yorker piece goes not only to say that there were there were plans,

00:24:33.300 but that Milley presented those plans to Trump and that we were considering that.

00:24:37.240 I think that's hogwash.

00:24:38.960 I mean, the thing is, like I he does get specific in the audio tape that making it sound like

00:24:44.240 he's got the document in hand.

00:24:46.300 But I said from the beginning, before we even heard the recording, what Trump is now saying,

00:24:51.120 essentially, they could have been bluster.

00:24:52.980 It could have been Trump being like, I've got it right here.

00:24:55.440 Trust me.

00:24:56.160 Mark Milley was the one pushing war.

00:24:58.120 Not me.

00:24:58.800 We don't know whether Trump actually had the document in hand or not.

00:25:03.160 Yeah, look, I listened to the recording a couple of times.

00:25:06.840 And if you put in your mind that he's holding up the New Yorker piece, it makes total sense.

00:25:11.040 It's like, look, I this is because the New Yorker piece was very specific.

00:25:15.020 And when you're holding it up, you're like, look at this.

00:25:17.100 This is the plans that they said that, you know, we had.

00:25:21.300 And so I have to declassify that.

00:25:24.700 That's the part that suggests it is.

00:25:26.700 Well, we'll play it.

00:25:27.260 We have we have a we'll play the shorter version because we played the full version yesterday.

00:25:30.600 But here's a here's a clip of that alleged meeting.

00:25:33.860 Well, there was a meeting between Trump and it was about Mark Meadows book.

00:25:37.900 And this is the one that has caused so much trouble here.

00:25:40.260 It is.

00:25:41.420 Well, with Milley, let me see that.

00:25:44.220 I'll show you an example.

00:25:45.180 He said that I wanted to attack Iran.

00:25:51.760 Isn't that amazing?

00:25:52.880 I have a big pile of papers.

00:25:54.080 This thing just came up.

00:25:55.180 Look, this was him.

00:25:58.680 They presented me this off the record, but they presented me this.

00:26:03.440 This was him.

00:26:04.880 This was the Defense Department and him.

00:26:07.780 Isn't that amazing?

00:26:09.520 This totally wins my case, you know, except it is like highly controversial.

00:26:15.840 This is secretive.

00:26:17.800 Look at this.

00:26:18.940 This was done by the military, given to me.

00:26:22.760 I think we can probably.

00:26:26.020 We'll have to see.

00:26:27.420 Yeah, we'll have to try to figure out this president.

00:26:31.580 I couldn't be less.

00:26:32.540 Yeah, no, I can't.

00:26:33.580 You know, but this is.

00:26:35.860 Yeah.

00:26:38.520 So, I mean, that doesn't sound like he's holding up a newspaper article, but it doesn't prove he's

00:26:42.740 holding up the actual document either.

00:26:45.980 Yeah, look, I wasn't there.

00:26:47.300 I have no idea.

00:26:48.240 But the reality is, to me, is that Donald Trump gets emotional about a lot of these articles.

00:26:56.280 And it goes at the heart of what we were trying to say, is that we didn't do war.

00:27:01.900 And it makes perfect sense to me that this very detailed The New Yorker piece, which lays

00:27:08.160 out plans and says that we were I mean, it's literally General Milley, who was our guy who

00:27:14.560 was supposed to make war plans and be prepared, saying, oh, no, we I did this and I presented

00:27:20.380 this to the president and they were going to go to war.

00:27:23.420 That goes to the heart of our messaging.

00:27:26.640 And to me, it makes perfect sense that he's holding up something that says this is so

00:27:33.640 outrageous.

00:27:34.960 The whole plan is in this New Yorker piece.

00:27:37.180 But again, I don't know.

00:27:38.280 I wasn't there.

00:27:38.800 I do wonder.

00:27:40.420 I've been listening to Alan Dershowitz a little on this and I love Dershowitz, but he's been

00:27:45.400 raising questions about this.

00:27:46.680 Like, is this even going to be admissible?

00:27:48.660 I know you're not a lawyer, but I don't even know whether this is going to be admissible

00:27:51.860 if it doesn't prove one of the 31 documents that were allegedly improperly handled and

00:27:58.100 we they never found the document.

00:28:00.380 So what does that do?

00:28:01.780 Right.

00:28:02.000 That's a key point.

00:28:02.740 Because what Catherine Herridge was saying and now I take your word that Dershowitz was

00:28:08.580 saying it's a very big deal because if they don't have the document or proof, then they

00:28:17.240 didn't put it in the charge.

00:28:18.700 It's not there.

00:28:19.460 And that, to me, is clear evidence why they're leaking this audio tape, because they just

00:28:25.380 want to, you know, push like they did on on the Russia, Russia, Russia hoax with innuendo

00:28:32.100 half, you know, information and then have everybody jump to the conclusion who's political.

00:28:39.180 Well, this is getting actually more and more interesting as we talk about it, because so

00:28:42.620 if there's a question about whether this document could come in, given that it doesn't speak

00:28:47.000 directly to one of one of the charges in the indictment or in one of the documents he's

00:28:50.920 alleged of improperly holding on to, then why did it why is it leaked?

00:28:57.240 Right.

00:28:57.640 Exactly.

00:28:58.200 To win the PR war.

00:28:59.420 Not the legal in the PR war.

00:29:01.260 But but look, I would present to you sized and I criticize him, too.

00:29:05.340 You know, she's a lawyer. 1.00

00:29:06.140 I'm like, shut up, shut up, shut up, shut up. 1.00

00:29:07.740 Don't tie your lawyers hands. 1.00

00:29:09.180 You know, let the lawyer go in there and argue it however he or she wants.

00:29:12.060 But the more the client speaks about it, the less he's able to be nimble.

00:29:15.260 So as a lawyer, never want my client to speak.

00:29:18.060 But Trump's got two wars to fight here.

00:29:20.300 He's got a legal war.

00:29:21.580 And that's a very scary and important one because he could go behind bars.

00:29:25.340 But he's also got a PR war because he's running for president.

00:29:27.740 So it's he's almost in the position of having to say something because otherwise he's laying

00:29:32.540 down on the PR war, which leads directly to the presidency, potentially.

00:29:36.780 I can promise you we're not going to lay down on the PR war.

00:29:40.380 That's not something that that President Trump will do.

00:29:42.380 But look, I would I would submit to you.

00:29:44.700 I think that's what you lawyers say.

00:29:47.260 I would I would submit that the reason why that document is not in the indictment is because

00:29:53.900 maybe they know that it was a New Yorker piece.

00:29:57.180 Maybe they know that it wasn't the classified information.

00:30:00.300 And they're so furious that they didn't get this moment that they're going to fan the flames

00:30:07.020 of innuendo and have truths.

00:30:08.540 And so they're going to leak it out now.

00:30:10.220 They certainly aren't waiting to have this in the courtroom when the case is going forward.

00:30:15.500 You have to ask yourself, why?

00:30:17.340 Why is the prosecution not waiting to present this when it's their turn?

00:30:23.180 Why are they using it?

00:30:24.460 Not in the legal sense, but in the PR sense.

00:30:28.140 That, to me, answers your question.

00:30:29.740 Mm hmm.

00:30:30.540 And we don't know for sure that it was DOJ that leaked it.

00:30:32.940 It could have been one of the other attendees at the meeting.

00:30:35.500 Megan, Megan, Megan.

00:30:36.780 Yeah, no, no, I hear you.

00:30:38.940 I hear that they certainly.

00:30:40.780 I would just say I've got a lot of proof of the swamp in Washington that I would I would

00:30:45.740 almost bet your house in my house.

00:30:49.340 So what does any of this matter?

00:30:51.660 OK, because Trump has not been hurt in the polls.

00:30:53.660 We covered that yesterday in the wake of this indictment.

00:30:56.700 Never mind the Alvin Bragg one.

00:30:59.340 But I'll give you this take.

00:31:00.620 Peggy Noonan hasn't been exactly a fan of President Trump.

00:31:04.300 Had a piece on June 15th in The Wall Street Journal that reads in part as as follows.

00:31:09.740 This will hurt him.

00:31:11.260 Maybe not a lot, but some.

00:31:13.100 Maybe not soon, but in time.

00:31:15.820 I mean, the quiet Trump supporters, not big mouths and people making money on the game,

00:31:20.380 but honest people.

00:31:22.300 She thinks long term people are going to be bothered by what Trump did with those documents.

00:31:28.620 I know Peggy Noonan.

00:31:30.860 I think I would go so far as to say she likes me.

00:31:34.780 She's complimented me publicly.

00:31:36.540 There's videos of her complimenting me publicly.

00:31:40.460 I'm an honest person and I would say that she's wrong.

00:31:45.340 I'm also somebody who lives outside of Washington, D.C.,

00:31:48.300 travels the country and talks to a lot of people.

00:31:50.940 There is no question.

00:31:52.300 And hear me.

00:31:53.180 I am 100 percent positive about this statement.

00:31:56.700 There is no question that people who fear Washington, D.C. and fear the radical left

00:32:03.660 are looking at the situation and saying they are overreaching again.

00:32:08.380 They're just beating up on this guy.

00:32:10.380 People who don't even like Trump are like, this is to me black and white.

00:32:15.820 We have to control the out of control Washington, D.C.

00:32:20.140 We see more people coming over saying this is now proof that they're radical.

00:32:25.660 Just going at they've lost their mind.

00:32:27.580 They're just going after him with anything and everything.

00:32:30.380 Remember, we've got more indictments coming.

00:32:32.620 I ask you ask the audience again to think about why are they just hellbent on going after Trump?

00:32:41.340 Why is that system in Washington, D.C. going after Trump?

00:32:46.700 I live in Los Angeles.

00:32:48.140 There's a whole system surrounding Hollywood and production companies.

00:32:54.460 And if you take them on, they will crush you.

00:32:56.940 I think the same is in New York on the banking system.

00:33:00.140 Why is it that every Democrat senator is is falling over themselves for Wall Street

00:33:06.220 and getting Wall Street money?

00:33:07.420 Because that's the industry of the city.

00:33:10.300 And I would I would say that the industry of Washington, D.C. is don't rock the boat.

00:33:15.660 We've got our own rules.

00:33:16.780 It's not the rule of law.

00:33:17.740 It's the rule of D.C. 0.97

00:33:19.340 And we will kill anyone, not physically. 0.88

00:33:23.260 But we will make sure anyone who tries to come here and change the changes the rules does not succeed. 0.98

00:33:31.020 All right.

00:33:31.340 We're going to take a quick break.

00:33:32.300 But when we come back, we're going to talk about how some of the leftists out in California

00:33:36.140 are going after Rick as he got honored and his response was absolutely perfect.

00:33:42.860 All right.

00:33:43.180 That's next.

00:33:43.660 Stand by.

00:33:44.140 So, Rick, before we get to what happened with you out in California, let's talk a little

00:33:51.980 2024 and just a follow up on the Hunter Biden situation.

00:33:57.020 Mick Mulvaney, who was Trump's chief of staff, right, for a short amount of time, comes out

00:34:01.500 and drops a hit piece on him at TheHill.com saying Donald Trump has a 2024 math problem

00:34:08.540 and talks about how he may be very good at subtraction, subtracting voters in various

00:34:14.460 states, but he's not very good at addition, adding them.

00:34:17.740 He goes on to say that Trump lost Arizona in 2020 because he didn't heed Mulvaney's advice

00:34:24.620 to stop ripping on McCain and he lost Arizona as a result, he suggests, by 10,000 votes in 2020.

00:34:31.980 He says in Georgia, he repeatedly said Stacey Abrams would make a better governor than the

00:34:38.860 popular Republican incumbent Brian Kemp.

00:34:41.820 And people don't forget that kind of thing, says Mulvaney, quoting an official he knows

00:34:47.340 in Georgia.

00:34:48.700 And he points out that Trump lost Georgia by the now infamous 11,000 and change votes.

00:34:55.100 Florida could be next, he says, because Trump suggested that Andrew Cuomo in New York did a

00:34:59.900 better job than DeSantis in dealing with the covid pandemic.

00:35:04.140 And these are not ways to win Republican votes in any of these key states.

00:35:09.020 What's your what are your thoughts on Mulvaney and his piece?

00:35:12.860 You know, my friend, Mick, I disagree with him vehemently.

00:35:16.780 And let me give you my spin.

00:35:19.580 And I admit that it's spin, but I think it's pretty good basis for pretty good basis for somebody

00:35:26.780 who's well traveled to these states.

00:35:28.940 But look, Mick is right that it was razor thin in Georgia, razor thin in Arizona,

00:35:33.420 razor thin in Nevada, and razor thin in a couple of Midwestern states.

00:35:39.820 I would say that the fact is in 2020, there wasn't a Green Party candidate pulling votes away from the

00:35:49.180 Dems.

00:35:49.580 That alone right there would have made a huge difference, probably absolutely flipping.

00:35:57.180 But we haven't had in modern history an election where the two candidates are no longer about

00:36:06.220 promising what they would do to the economy and global affairs.

00:36:10.940 There's no more assumption from the voters to say, oh, I hope that they're right.

00:36:14.860 And I like that promise of what they would do.

00:36:18.380 We are going to actually see a Biden world economy, world affairs and

00:36:25.980 U.S. economy and a Trump U.S. economy and world affairs.

00:36:30.300 We're going to be able to compare apples to apples, not promises to actual performance,

00:36:35.740 but performance to performance.

00:36:37.340 And I think that it's so razor thin in these states that you're going to tell me that there's

00:36:43.580 not 10,000 people in Arizona who wouldn't prefer no wars, no Ukraine war, no tens of thousands of

00:36:53.260 people dead, no conflict everywhere in the Balkans, in the Middle East, and high gas prices.

00:37:02.860 You think 10,000 people are going to stick to that vote? I think that there are plenty of people

00:37:09.260 who say, we're not voting for a priest, we're voting for somebody who's going to get our country

00:37:14.780 back on track. That's the first point. The second point is that the far left, the Democrats, the

00:37:20.460 radical wokeness, the lack of common sense is convincing even way more people. I think this race is already 1.00

00:37:26.700 over. The Republican is going to win. And that Republican clearly is going to be Donald Trump.

00:37:34.140 The media is doing its part to make sure that doesn't happen and to watch them run cover on

00:37:39.100 the Hunter Biden story is to see it very, very clearly if you hadn't already. The latest example

00:37:45.340 is how sorry everyone feels for a poor Hunter and his drug problem. And it was captured very well by

00:37:51.980 the Daily Wire's Tim Meads, who writes leftists to rediscover importance of fatherhood,

00:37:57.260 thanks to Joe and Hunter Biden's scandals, and goes through to talk about pieces like from the

00:38:03.260 Associated Press writing that that pride has been accompanied by pain, Joe Biden's pride in Hunter.

00:38:09.980 And for the president's family, both have been on public display. Republicans have worked to use

00:38:14.940 Hunter Biden's actions and his acknowledged struggle with addiction as an anchor to try to drag down his

00:38:20.620 father. They go on to say the most fatherly of things he could do, advise a son going through a

00:38:26.620 hard time isn't exactly available for a man whose administration commands the office that was

00:38:32.220 investigating his son and political rivals simultaneously. Single tear, Rick, single tear.

00:38:37.340 Joe was he was prohibited from being the shoulder for Hunter to cry on because he was president.

00:38:42.540 This is how it's getting spun. And any criticism of Hunter refuses to acknowledge what addiction is like

00:38:49.900 and you're a meanie if you call out Joe Biden for saying anything less than or for saying only that

00:38:56.940 he loves his son and is proud of him. Two quick points. One inherent in that whole relationship

00:39:02.860 between Joe Biden and Hunter Biden is an acknowledgement by Joe Biden that he has a child.

00:39:09.340 I think that should be step one when you acknowledge that you have children and you value them and then you

00:39:15.100 can help them grow up. Hunter Biden is no example. Joe Biden should be ashamed of himself that his

00:39:22.300 grandchild is not being recognized the same way that he's recognizing his child. That's the first point.

00:39:28.540 The second point is, is that I just with this for stripper who he denied paternity of and then she proved

00:39:34.860 it and now he's paying 20 grand a month to support the kid. But they won't let him the kid have Biden's name.

00:39:41.260 Biden won't acknowledge the granddaughter that Jill Biden won't. Nobody will acknowledge the granddaughter.

00:39:46.220 Go ahead. And Hunter doesn't want to pay the child support. So he's not going to even acknowledge

00:39:52.700 the responsibility of owing the money. So, look, if we're going to climb up on this high horse of moralism,

00:40:01.260 I think we should start there by recognizing a child that that deserves to be recognized. The second

00:40:07.420 point I would just say is, you know, the whole idea of the view and Twitter somehow determining swing

00:40:15.020 states, it just the media and the elites are at their lowest point ever. And it's getting worse.

00:40:23.020 Washington, D.C. types do not understand this, but people are dismissing them. They're just not

00:40:28.060 watching. They're not caring. People want long form information. They want both sides. They want to be

00:40:34.940 able to tolerate different opinions. We don't say that a dissenting opinion is disinformation and that

00:40:41.500 we, you know, have a corner on what fact is. There's always, you know, this adage of there's

00:40:49.180 three sides to every story, his side, her side and the truth. And so we need to be able to have a debate

00:40:57.420 and you need to be able to sit and listen to a dissenting viewpoint. And I think the left is proving

00:41:03.420 that they don't know how to do that. And they're losing the American people. First and second

00:41:07.100 generation Americans, Megan, are some of the most pro Trump people ever. This whole immigration thing 0.75

00:41:12.780 has been switched. And it's because they're the canaries in the coal mine. They've seen fascism.

00:41:17.580 They've seen totalitarianism. They don't want anything to do with it. They came to the United

00:41:21.580 States to get away from it. It's so true. I talked to so many people who are like anybody who got here

00:41:26.220 from Cuba or has ties. They can't believe what's happening in the country, but the media will be there to

00:41:30.780 lick the boots and provide cover. One of the reporters questioning President Biden last week

00:41:37.020 came up with this this soundbite in order to really press on the Hunter Biden issue.

00:41:41.100 You can't really hear it well, but we'll try. It's number eight.

00:41:44.220 Speaker 3

00:41:54.460 Speaker 4

00:41:55.660 The question was, how's Hunter feeling? And Joe Biden gives a thumbs up that way to nail it down. I mean,

00:42:02.220 honestly, like Edward R. Murrow would be proud. Mike Wallace is rolling over in his grave, Rick.

00:42:07.980 Speaker 3 It's really unbelievable that the other reporters allow this to happen and that there's

00:42:13.580 some sort of an editor sitting somewhere that says, yeah, good job. I don't understand that how

00:42:19.660 these people are able to like call themselves a journalist, but literally be an advocate for one

00:42:25.660 side. Well, this is what the Republicans are up against because they're obviously they've got a

00:42:29.820 thumb on the scale. OK, so we've got to talk to you about what's happening in California. This is

00:42:33.420 one of the most interesting things I've seen in recent history. What's happening with this bill?

00:42:38.940 And you kind of are directly involved in this thing. So as you point out, you're in Los Angeles.

00:42:44.700 You've been living in California a long, long time and it being Pride Month and you being the first 1.00

00:42:51.020 is it the first openly gay man to ever be a cabinet official? It's the first openly gay person.

00:42:56.620 Speaker 3

00:42:57.260 Speaker 4

00:42:57.380 Speaker 4

00:42:58.460 And although they try to take that away from you and pretend you didn't exist and that it's

00:43:01.260 actually Pete Buttigieg. OK, but the Republicans in California did something nice. They tried to honor

00:43:07.260 you as you should be. And if you weren't a Republican, you'd be getting honored all the

00:43:11.820 time. But no, that's not the way it works. So the House Republicans in the state assembly,

00:43:17.660 I'm sorry, the House Democrats in the state assembly.

00:43:19.660 Speaker 3

00:43:20.620 Speaker 4

00:43:20.660 Speaker 4

00:43:20.700 And the Senate Democrats and the Senate walked off the floor during these honors that were

00:43:28.140 being paid to you. Let's just start there and then I'll expand on who your detractors were

00:43:32.460 and why they're so controversial in a second. What did you make of that?

00:43:36.380 Look, you know, I'm not surprised. I mean, they're so lightweight. There are people who

00:43:43.180 really cannot have a discussion anymore. They run out of the room with their fingers in their ears.

00:43:49.420 They just can't take dissenting information. You know, I said at this press conference afterwards,

00:43:55.180 in 1993, Megan, I marched on Washington with gays and lesbians. And I remember holding a sign as I

00:44:02.300 walked with a whole bunch of people, million people in Washington demanding equal rights.

00:44:07.340 My sign was diversity and tolerance. We were the minority back then. And what we were asking the

00:44:13.980 majority to do was just listen to us. You don't have to accept us. Inherent in the word tolerance

00:44:20.620 is tolerate. It doesn't mean you like me, clap for me, approve of anything, but you tolerate me.

00:44:29.820 You don't try to cancel me. You don't try to walk out. My dad used to say, shut up and listen,

00:44:34.380 you might learn something. And so I just expect people to be different in this world and to have

00:44:40.540 different opinions. The gay left is not about that. If you are not for abortion and for open borders 0.81

00:44:47.820 and for the unions, you cannot get the endorsement of gay groups. And this is the fact, the Victory 1.00

00:44:56.540 Fund, GLAAD, HRC, all of them, they've lost touch because rank and file gays and lesbians, regular 1.00

00:45:03.980 gays and lesbians across this country, they've had it. There's at least four out of 10, or I would

00:45:10.940 almost argue five out of 10, gay and lesbian Americans who are voting for Republicans and

00:45:16.460 Trump. They just have had it with this left of not being able to sit and listen. Yeah, they've lost

00:45:23.580 their mission. To say mission creep is too generous because they've lost the original core mission

00:45:28.300 entirely. This guy, Scott Wiener, state senator out in California from San Francisco, comes out and says,

00:45:35.580 this is their way of celebrating pride by bringing in a guy who is truly a self hating gay man 0.98

00:45:42.140 who takes tons of anti LGBTQ positions. He is a particularly vile person. He too is a gay man. You 1.00

00:45:52.060 responded in part. It's an honor to be your enemy. That is so short and simple and perfect. I'm definitely

00:46:00.540 going to use that. It's perfect. But can you just give the audience a flavor in the time we have left

00:46:05.420 of why it's an honor to be the enemy of Scott Wiener? Well, look, this is a guy who represents

00:46:11.580 San Francisco in the most radical ideas. He hates parental rights. He thinks that if you're under 18,

00:46:17.580 you should be able to cut your breasts off, change your genitalia and do it without having your parents' 1.00

00:46:25.420 knowledge. And he somehow makes that and tries to tell gays and lesbians that if you are not for 0.99

00:46:32.140 that, then you're not a good gay or a lesbian. And to me, Megan, this issue is so simple. If you're

00:46:39.420 under the age of 18, we don't allow you to get a tattoo, go to an R movie, a smoke. Why would we

00:46:46.620 allow a kid to make this decision? I think it's child abuse. We should have laws in every single 1.00

00:46:52.380 state or a national law that says if you're under 18, no, this is not acceptable. My position is,

00:46:58.140 if you're over 18, knock yourself out. I'm not going to get involved with somebody else's life 1.00

00:47:02.540 as long as you're not hurting somebody else. But this guy is out there right now pushing

00:47:08.620 legislation that would criminalize parents who refuse to affirm their child's gender confusion.

00:47:15.980 Rick Grinnell has a knack. He's the one who came on and said, you can't vote for this.

00:47:19.420 And he wants abortion all the way through and tell you. He said they can't even tell

00:47:22.620 you what a woman is like. And now this it's an honor to be your enemy. You're you're very 0.98

00:47:26.620 good at the short, pithy comeback that is memorable. One of your many talents. We'll talk more about

00:47:32.380 Scott Wiener tomorrow when Carrie and Brit come back on the show. They live in California, too.

00:47:36.380 And our moms who are very concerned about what's happening there being told by other Republican

00:47:40.060 lawmakers flee flee. That's how bad it's gotten. Rick Grinnell, we've got a flee. Thank you for coming on.

00:47:45.980 All the best. Thank you. Always a pleasure. And we're coming back in one minute with Kelly's court

00:47:52.860 and an unbelievable update on, among other things, the Brian Kohlberger case out of Idaho. Prosecutors

00:47:59.020 will seek the death penalty. Don't go away.

00:48:01.340 Today, we have an excellent, excellent top notch panel for Kelly's court and lots of legal news to

00:48:11.260 get to, including the latest in the Brian Kohlberger murder trial out in Idaho. He has been accused of

00:48:16.300 killing four college students in November. Plus, Daniel Penny was arraigned this morning in connection

00:48:22.060 with the death of subway rider Jordan Neely after a grand jury indicted him earlier this month. A second

00:48:27.180 charge has been added. We'll get into what it is. Joining us now to discuss it all, bestselling author

00:48:32.460 and lead prosecutor in, among other cases, the people versus O.J. Simpson, Marsha Clark,

00:48:38.300 and famed trial attorney and principal of Garagos and Garagos, Mark Garagos. Love this panel. Welcome

00:48:44.460 back to the show. You're not only I love this panel. I was just telling your producer who was trying to

00:48:49.580 get me to shut up because I was talking to Marsha. I said, this is the only time I get to see her.

00:48:53.820 And it's so much fun for me. And welcome back, Megan. Thank you.

00:48:57.340 We're going to put a camera in the green room while you guys are waiting to come on air,

00:49:00.700 because those are some of the best conversations.

00:49:03.180 Yes. If you had heard, if you had heard, I was just telling her, and I know it's off topic,

00:49:08.140 but I'll tell you, I, you know, we're handling the Menendez case in the office. And I was complaining

00:49:13.980 that there's nobody I can talk to who has the institutional memory of what was happening in

00:49:20.220 real time except Marsha. And so I was like, I was spilling out stuff and she was in the middle

00:49:25.900 of all of that and in real time and knows all the players and everything else.

00:49:30.220 Oh, I mean, the Menendez thing is getting very interesting, but wait,

00:49:33.500 put a pin in that because that's up. That's up second. I want to kick it off with Kohlberger

00:49:38.380 because that case is just so compelling, fascinating, horrifying. And some significant

00:49:44.300 developments have gone down in the past couple of days. Number one, prosecution seeking the death

00:49:49.660 penalty. Is anyone surprised by this? Marsha, as the former prosecutor, I'll start with you on that.

00:49:54.860 Not really. And all of the, you know, you have to remember, and I guess one of the critics,

00:49:59.660 people who are critical of the death penalty are going to point this out as well. You're in Idaho.

00:50:04.540 Idaho has different mores and different standards in terms of what is death worthy than say California

00:50:09.980 does. Um, that said the horrific, uh, murder of four young people in this manner that clearly

00:50:16.780 appears to be premeditated, if true, you know, it's now alleged, but, but it proven, um, really

00:50:22.220 does show a very serious, the kind of offender where you would expect the death penalty to be on the

00:50:29.100 table for sure. And now they can, they have said in their letter, they can withdraw the intent because

00:50:34.380 at this time they don't have any evidence of mitigation, mitigation being the defense effort to show

00:50:38.940 why he's his life should be spared. Um, so it's early days yet, but if, if when a crime jumps off

00:50:45.740 the page at you like this, that is the kind of crime where you, if you have a death penalty,

00:50:50.380 you would imagine the case would be death eligible. So I can't say I'm surprised, but I do say,

00:50:56.460 let's wait and see if they hang on to this. I don't know that they will. Mark, does this raise

00:51:02.060 the challenge for prosecutors going in front of a jury? You know that some theorize it makes juries

00:51:08.460 more reluctant to convict if they know the death penalty may be on the table?

00:51:12.620 No, you know, I take the opposite view and I hearken back to a case I had, which was Scott

00:51:18.540 Peterson. I was complaining in real time that they were seeking the death penalty, not because they

00:51:23.740 wanted the death penalty, but because they wanted to get pro or, uh, I should say death penalty, uh,

00:51:31.260 eligible jurors. One of the reasons that Scott's death penalty was reversed unanimously by the

00:51:38.380 California Supreme Court was precisely because the judge was kicking off everybody on that jury who

00:51:45.340 didn't want to, or it was uncomfortable with imposing the death penalty. Most of the studies have

00:51:51.500 shown death penalty jurors are more pro prosecution. You combine that with the fact that that, and I don't

00:51:58.940 want to get ahead of ourselves, but, uh, with, with a circumstantial evidence case like this, you

00:52:04.220 want somebody, if you're a prosecutor who is going to be more pro prosecution, this is a perfect way to

00:52:11.180 weed out the people who would be more on the fence. Hmm. All right. So speaking of the evidence,

00:52:17.340 now we have learned that we knew before that the prosecution had used something called genetic

00:52:22.380 genealogy to figure out where did this DNA found on the knife sheath that had been left by the murderer

00:52:29.900 at the murder scene. Where did it come from? They were told that they had done a regular search in

00:52:34.780 the FBI's database. You know, does this match a perp who we have in the system? And it did not.

00:52:38.940 So they went to genetic genealogy where you can use public databases and in this case, private databases

00:52:44.300 as well of, uh, not, not private to you and me. Uh, but I'm in other words, a special database that

00:52:50.460 they went to figure out whether it has to figure out whether this DNA we have matches anybody whose

00:52:58.220 DNA is publicly available. And that's how they zeroed in on Kohlberger. It wasn't his, but they

00:53:02.700 said we can definitely link it to the dad who lives in the Poconos, someone related to that dad. And then

00:53:09.340 the circles got more concentric around the son, Brian, who was 10 miles away from the murder scene.

00:53:15.020 Um, Marsha, we now know that they retested the son himself, Brian Kohlberger. They took a cheek

00:53:22.300 swab and they are now saying it showed a direct match Brian Kohlberger's DNA on that knife sheath.

00:53:28.460 So we're going to get into how a lot of the other evidence is circumstantial. That's not circumstantial.

00:53:33.340 Well, it is actually, isn't it? People have this, this notion that circumstantial, um,

00:53:40.220 it means something much more removed, but circumstantial evidence is a fingerprint.

00:53:45.260 Circumstantial evidence is DNA. I used to tell the juries all the time, you know, I mean,

00:53:49.420 I would say, this is largely a circumstantial evidence case. And then they'd say, well, you're out.

00:53:53.100 Nevermind. I'm not interested. I said, well, how about the fact that there's a fingerprint

00:53:57.100 at the victims on the victim's shoulder? And oh, oh, well, but that's not circumstantial. Oh,

00:54:02.860 it is. It is. So is DNA. Same thing. The, the limitation of circumstantial evidence and with DNA,

00:54:09.980 for example, or a fingerprint is you can't tell when it was deposited. So for example,

00:54:14.940 you have this amazing result of DNA, one in a five octillion, uh, chance of that it is him as

00:54:21.980 opposed to a randomly selected person unrelated. So that, I mean, that's virtually, that is

00:54:26.940 a match, but you don't know when that DNA got on there and you don't know how that knife sheath got

00:54:32.140 on there. So it leaves room for the defense to say someone else dropped the knife sheath. Of course,

00:54:36.940 it was mine at one time. I had my fingerprints on it. I had my DNA on it from months ago. So in that

00:54:43.660 sense, it is circumstantial, but it is very damning. I mean, what is your knife sheath doing under the

00:54:48.620 body of one of the victims when you have no known natural or, um, unculpable reason for being

00:54:55.740 there? They didn't know each other. They didn't party together. So just the fact of the knife she

00:54:59.660 puts there. And then of course the DNA on it, you put it all together, but it's all circumstantial.

00:55:04.300 Well, let me ask you a question because that's interesting. If, if his bloody fingerprint were

00:55:09.660 found at the scene, or if DNA from the victims were found in his car, would that also be circumstantial?

00:55:17.260 Yes. Same thing. You can't say when it got put there. No one saw it get put there. Direct evidence

00:55:24.060 is me seeing, if you go and shoot somebody and I watch you do it, that is direct evidence. But, um,

00:55:29.980 of course I would argue that whoever you shot deserved it. So that's a whole other issue.

00:55:33.900 But if I don't see it, you know, if you're coming up with, um, evidence that is deposited at some point

00:55:39.500 in time that is not observed by anyone, even a bloody fingerprint, though, of course,

00:55:43.180 a bloody fingerprint gets a lot closer to something you could call like direct evidence,

00:55:48.300 it's still circumstantial. That's interesting. I didn't, I didn't know that. I never practiced

00:55:52.540 criminal law. So that's, that's interesting to me. You know, to follow up, to follow up on that,

00:55:57.100 the, it's interesting because with the Innocence Project, most of the evidence against people who

00:56:04.140 were condemned and sent to death row was, uh, as a result of direct evidence, and they were exculpated

00:56:12.140 by the circumstantial evidence of DNA, which is one of the, that's one of the things I talked to

00:56:18.620 jurors about in Vore Dyer to point out the differences of what we always think. It turns

00:56:24.380 out that many of the studies show that direct evidence, eyewitness identification is much more

00:56:30.140 fallible than circumstantial evidence. Well, the genetic genealogy link that started it off before

00:56:36.460 they got the actual cheek swab from the defendant and they were looking more at what, who in the

00:56:41.340 universe could this DNA on this knife sheath belong to is becoming an issue in the case, Mark. Um,

00:56:47.260 the defense lawyer is asking the court to compel prosecutors to turn over additional discovery

00:56:52.860 materials and info on the genetic genealogy techniques investigators used before labeling

00:56:59.580 Kohlberger their suspect. They're also asking for information on why the FBI expanded the range of

00:57:07.820 model years on a white Hyundai Elantra. They were looking for in connection with the case. Now those

00:57:13.340 two items that they want discovery on might have nothing to do with each other, but they might have

00:57:17.980 something to do with one another in that initially the police said they were looking for a Hyundai Elantra of

00:57:23.260 certain years that would not have included Brian Kohlberger's. And then they expanded the years, uh,

00:57:28.300 to a year. His was 2015 that would have been included. And there's been some questions raised

00:57:33.740 about whether that expansion happened after they got the hit on Kohlberger's dad and started to zero.

00:57:40.060 So what, what, what's the defense attorney doing here? What's he trying to set up?

00:57:44.540 This is a brilliant strategy by the defense. And I'll tell you why you've hit exactly on what they

00:57:50.220 think they're creating a timeline to show that the expansion of the Elantra after the FBI had given

00:57:56.940 an opinion that it would have excluded Kohlberger. And then he re you, we talked about this. They then

00:58:03.900 went back to them once they had Kohlberger and they expanded the number of years to include his car.

00:58:09.980 But this is also a very subtle kind of a gray male, because that is a technique in classified documents

00:58:18.300 cases where you say, okay, we're going to go forward. I'm not going to get a classification.

00:58:25.260 You've got to show me the classified documents publicly. And then the prosecutor backs down.

00:58:30.940 We know that the FBI and investigative agencies do not want to reveal how they use or how they get to

00:58:39.900 this genetic testing that then takes them to one of the relatives. So they're saying on one hand,

00:58:46.540 show us that hoping that they say, we're not going to do that. If they turn out and they say, okay,

00:58:51.500 we're going to turn that process, that investigative technique over. But it's under a protective order.

00:58:57.740 That's fine. Because then what you're going to do is the defense. You're going to take the two

00:59:02.220 unidentified males that are at the, that were found at the scene, the DNA, and you're going to use the

00:59:09.420 same testing protocol and see who you come up with in the databases based on their very own protocol.

00:59:17.180 And God forbid that you hit somebody who is a potential other suspect, because then you're

00:59:22.540 going to ask all kinds of questions about why their DNA was there or that universe of alternative

00:59:29.260 suspects, third party liability.

00:59:31.100 Oh, so interesting, Martha. Yeah, because they are, Marcia, because they're saying the defense

00:59:35.500 attorney is saying exactly that, that there's other DNA from other random people, not inside the

00:59:42.620 crime scene, but around or outside the house that they're suggesting the prosecution didn't look into.

00:59:48.940 And I suppose there's an argument that if somehow the genetic genealogy was wrong, flawed,

00:59:56.060 improper, everything that stemmed from it was improper, which could include the expanded

01:00:03.020 years on the Hyundai, which suddenly came about. Right. So it's he's trying to set up a chain that

01:00:07.260 would knock down most of this evidence we've been discussing. Yeah, we'll probably fail. I mean,

01:00:12.860 it's a good idea. I think it's their best idea. I think Mark is right. It's a good strategy.

01:00:17.100 Does it work? Well, no, because they have the direct DNA from the suspect that is a complete match

01:00:22.940 five octillion in one to one. So, I mean, they actually have the guy and that's inside the house.

01:00:29.020 Remember, this is kind of a group house. A lot of people came and went. And the fact that you have

01:00:34.300 some, some peripheral DNA from other males around the exterior of the house or in other rooms that are

01:00:42.540 not where everyone was sleeping and killed is, I think, ultimately going to be washed out as, okay,

01:00:48.540 so what? It's not like it was some private person who lived alone with no relatives and no visitors.

01:00:54.060 A lot of people came and went. The Elantra, the story with the car is that they had a kind of

01:00:59.180 identification that indicated various details regarding the car. When they decide, when they

01:01:06.860 see that that doesn't include Cole Burger, and I think this is where actually the defense might have

01:01:11.100 a better claim in terms of trying to say, oh, they zeroed in on Cole Burger to the exclusion of

01:01:17.180 everybody else and therefore ignored all the evidence that would have proven a third party was

01:01:20.860 guilty. But what they're really doing is saying, look, if it didn't include, if that car did not

01:01:26.540 include the one belonging to Cole Burger, who else could it have belonged to? It's actually good police

01:01:31.180 work and they're going to have to turn it all over eventually anyway. I mean, under protective order

01:01:35.900 is fine too. But I really don't think that the genealogy testing they early did is going to hurt

01:01:41.340 anything because after all, the suspect, the ultimate suspect's DNA was not in the system.

01:01:47.020 It's called CODIS, the combined index for DNA profiles that they use nationwide. If you have

01:01:54.620 not been arrested, if you have not been fingerprinted for some reason because of your job,

01:01:58.620 et cetera, et cetera, your fingerprints will not be there. Mine would be there. Mark's would be there.

01:02:02.780 But somebody who has not been involved in the system or has not been arrested will not be there.

01:02:07.820 So you have to find other means to try and narrow the scope of your search, which is what they did.

01:02:13.180 But that all becomes pretty irrelevant when you actually match the person with a DNA swab from

01:02:18.540 his cheek. Yeah, exactly. And it's even if that there was something odd or unusual about the genetic

01:02:25.820 genealogy, there's nothing illegal about it such that it would not be admitted or everything that

01:02:32.060 stemmed from it would be kept out as fruit of the poisonous tree, Mark. Like, I don't,

01:02:35.500 I don't understand why this is going to help them. I harken back again to about 22 years ago.

01:02:42.540 In California, for instance, mitochondrial DNA was not admissible. And under the standards here,

01:02:51.420 at least, you had to have a hearing. It had to then go to the Court of Appeal before it could become

01:02:57.820 admissible. I do not believe that in Idaho it is an admissible technique yet. So there is going to be

01:03:04.860 an attack. Marsha is probably right. I mean, generally, these things end up going the prosecution's

01:03:10.780 way. But they in a, especially in a case that is death penalty eligible, if you are not challenging

01:03:18.380 that right now at the beginning, you're setting up an IAC claim.

01:03:24.780 Absolutely true. They have to go after it. They do, whether they win or lose a different story.

01:03:30.860 And if Idaho, as Mark suggests, doesn't allow in that kind of evidence, then there is some argument

01:03:37.660 to be made and they better make it for sure. Very important that they lay that foundation and make

01:03:42.300 that claim, make every claim in a case like this. Howard Bloom, who's an award-winning reporter who's

01:03:48.300 been doing really interesting pieces on this for Airmail, the new Graydon Carter subscription publication.

01:03:53.820 He had a piece just this May. He's been doing sort of part one, part two, and he just writes so

01:03:58.540 beautifully. We had him on the show one time. It was fascinating. Couldn't peel your ears and eyes

01:04:02.620 away. This is what he said about them expanding the years of the Hyundai they were searching for,

01:04:09.100 right? Because originally they said they were looking for 2011 through 2013 and Kohlberger's car

01:04:13.180 was 2015. This is how he explains it. The FBI forensic examiner first deduced that suspect vehicle one

01:04:20.860 was a 2011 to 13 Hyundai Elantra. This is from looking at the videos on scene around the house.

01:04:26.300 This is this guy's looking at, hey, what cars are around the murder scene? Hey, there's this white 0.98

01:04:30.380 Hyundai. Maybe we're interested in that. He guesses it's between a 2011 and 2013 Hyundai Elantra.

01:04:36.780 Then upon further review, to use the chagrined phrase of the candid Idaho authorities,

01:04:43.340 he decided the mysterious Hyundai might very well be a 2011 through 2016 vehicle. And when he poured

01:04:50.940 over the image of a car consistent with the Hyundai near the murder scene that was caught on camera not

01:04:57.020 long after the killings racing toward Pullman, Washington, he deduced that it was a 2014 to 2016

01:05:04.460 Hyundai. That is, he cast a pretty broad net and he cast it three times to boot.

01:05:11.900 So this seems to be laying out an investigator, the defense will argue, Mark, who is trying to

01:05:19.260 color the evidence to fit the evolving crime scene and facts around it.

01:05:25.660 I would be arguing and screaming, this guy is reverse engineering his so-called expertise

01:05:31.420 to fit the suspect as opposed to the facts. And that I, I think we discussed this early on when

01:05:38.300 the, when the, when the affidavit was real revealed, I said, they, this is one of the reasons I said,

01:05:43.660 there are holes that the defense is going to drive a truck through in this case. And it doesn't,

01:05:49.820 it hasn't at least what has been leaked so far. This case has not gotten better for the prosecution

01:05:58.460 since that affidavit was unsealed.

01:06:00.940 Hmm. He says, Marsha, uh, the defense attorney is writing in one of his motions to the court.

01:06:06.460 Number one, there's no connection between Brian Kohlberg and I and the Idaho students.

01:06:10.700 So that's interesting saying it on the record that there's no connection between them.

01:06:13.660 And that would seem to undermine some unconfirmed reports. We've gotten single source reports.

01:06:18.460 We've seen in various publications that maybe he was stalking them on social media,

01:06:22.940 et cetera. I think the defense attorney wouldn't say that if that evidence were about to come out,

01:06:27.740 could be wrong. But then he writes, quote, there is no explanation for the total lack of DNA evidence

01:06:34.300 from the victims in Mr. Kohlberger's apartment, office, home, or vehicle. That's the first time I've seen that

01:06:43.180 too. Somebody stating affirmatively that all those searches did not produce

01:06:47.900 any DNA evidence from the victims anywhere around Kohlberger's living or working quarters.

01:06:55.660 Yeah. My, my response as a prosecutor, so what, so what, why do you expect to see

01:07:00.460 him carrying stuff from the victims? He's got so much time in between leaving the crime scene

01:07:05.660 and going into his house so much time to destroy whatever he might've thought might carry something

01:07:11.500 in, destroy the clothes, destroy, take a shower. I mean, wash yourself off. The police didn't get

01:07:16.460 to him right away. It's not as though the police were hot on the trail and busted him the minute

01:07:20.460 he walked in the door. There was quite a time gap. And so the fact that there isn't from stuff from him

01:07:27.580 to the victim, from the victims to his house is much less surprising than finding something that does

01:07:33.500 come from him in their house. And the fact that the defense is admitting there is no con,

01:07:37.980 there's no particular known contact between them doesn't play as well for the defense as I think

01:07:43.820 they want it to. The fact that you have single source information, especially in a widely known

01:07:49.420 case like this indicating, oh, he was stalking them on social media and whatnot. There's going to be a

01:07:54.220 lot of that kind of what I call peripheral stuff floating around in the ecosphere. But I do not think

01:08:01.180 it necessarily means there was any known contact. That doesn't mean he wasn't stalking them. That doesn't

01:08:06.460 mean he didn't have his eye on them. Certainly, you know, his knife sheep is there under someone's

01:08:11.500 body, where someone's body was laying. So I mean, that's a very powerful piece of evidence. That said,

01:08:17.580 as Mark pointed out, it doesn't appear, at least from what we know, things have gotten any better.

01:08:22.220 And that to me, I'm not sure what to make of that, except that they are playing this very close to the

01:08:27.180 best. They're doing a lot of projective orders. They're being very careful about the release. I

01:08:31.580 understand why. It's tough when you have a case that is this high publicity and high profile,

01:08:37.340 it can get out of control very quickly. So they have to reveal it to the defense at some point.

01:08:42.940 But that said, the fact that they don't find evidence of the victims in the defendant's house

01:08:47.740 under these circumstances is much less compelling to me.

01:08:50.780 Dr. You know, what's interesting is this is this I mean, it's just now dawning on me that this guy

01:08:55.740 actually might get off. Well, let me just tell you, I hate to be a legal nerd, but on building

01:09:01.660 on our circumstantial evidence discussion, you get a jury instruction in almost every jurisdiction

01:09:08.460 that says if it's circumstantial evidence and you have two reasonable interpretations,

01:09:12.940 one that points towards guilt, one that points towards innocence, they don't have to be the same

01:09:17.340 of the same level. But if you have one reasonable explanation that points towards innocent,

01:09:22.860 you must acquit the defendant. Now, what do we have here? We have them saying the lack of evidence

01:09:30.620 or no evidence about cell phone triangulation or cell phone towers. So we have no evidence there.

01:09:37.420 The lack of evidence, with the exception, and I agree with Marcia, they've got to deal with the one

01:09:42.460 touch or what I call the one touch DNA, the touch on the sheath. But they don't have any DNA. And I've had

01:09:50.780 countless murder cases where they pulled the DNA from the victim from the inside of somebody's truck,

01:09:56.860 the inside of somebody's car, on the bed frame of a mattress that they found someplace else. But

01:10:02.140 they don't have that as well. So if you have that and you have no other connection to these people,

01:10:08.460 and if the defense can just suggest, based on the two unexplained male DNAs that they found,

01:10:16.700 and ironically, one piece from a glove that was found outside of the location, there is a substantial,

01:10:26.540 reasonable doubt, at least based on the evidence we know about. And I say that because I agree with

01:10:33.420 you, Megan, we don't know what's under seal, what they're keeping close to their vest. But there is a

01:10:40.060 reasonable doubt argument here that could carry the day. Well, there is one here. I mean,

01:10:46.780 as we've all acknowledged, it's early days. Wait, wait, I'll give you the floor. But

01:10:51.500 if there's no bloody DNA from the victims in his car, how, I mean, like,

01:10:57.500 is it possible this guy almost did commit the perfect crime? He comes out of murdering four

01:11:02.380 people in the span of 18 minutes and gets in this white Hyundai Elantra, this is the prosecution's theory,

01:11:08.380 and not a single blood drop of the victims is found anywhere? I mean, I know, I'm talking to

01:11:16.780 Marsha Clark. You know, you know how tough it is to not have a trail of blood follow a murderer

01:11:23.180 in a double murder, never mind a quadruple. It depends on all how it's done. It depends on

01:11:28.940 so many factors that it would take us way too long. But you have to remember something standing

01:11:33.820 behind somebody and stabbing them does not create a lot of blood spray on you, necessarily. It depends

01:11:39.180 on where you're stabbing the person, where you're standing when you're stabbing them, what you're

01:11:42.380 wearing. I don't think anybody had a chance in this case, and I really wish we had more evidence, but

01:11:49.980 unless there's a pool of blood for him to step through, unless there is blood on a surface that

01:11:55.020 he's likely to touch and carry with him, you're not going to find it. I mean, 18 minutes is a long

01:12:00.700 time. And depending on what he's wearing and what he's able to shed of what he's wearing on the way

01:12:05.420 out and on the way home, no, you're not going to find anything. Comparing it to the Simpson case,

01:12:11.100 it was a mess. I mean, there was pooling blood everywhere that he walked through that splashed on

01:12:16.540 him because there was a big fight. There was no fight here. There was no struggle shown here. So you

01:12:21.660 have a very different set of circumstances. And when that happens, especially depending on whether he's

01:12:27.180 standing behind them and where he's stabbing them, he's not going to come away with a whole lot of

01:12:31.900 transfer from the victims, takes off his clothes, takes off whatever outer clothing, dumps it

01:12:36.540 somewhere, burns it, buries it, whatever. No, you're not going to find it. So, you know, and of course,

01:12:41.580 there was a time gap between when the murders occurred and when the police got to his house or his car.

01:12:47.100 So there's a lot of, there was a lot of time and many, many circumstances in between that could

01:12:52.540 prevent anybody from finding anything from the victims. So until we know more, it's really hard

01:12:57.980 to say that this is a doom for the prosecution. They let him clean his car. You know, as the FBI

01:13:04.380 was following him back in the Poconos, we know that they watched him take his car and have it cleaned

01:13:09.980 and detailed and didn't step in to stop it because I think they were still pursuing the DNA and all that

01:13:14.700 other things that they wanted to get the arrest warrant. So who knows whether they managed to get

01:13:19.260 something from the trash? I would just say this, Megan. Yeah, go ahead.

01:13:21.580 Back to my circumstantial evidence. You could take as the prosecution,

01:13:25.740 did he commit the perfect crime? As the defense is going to say, or is it reasonable they've got

01:13:31.260 the wrong guy? No, they don't. I don't. I, I, yeah, by the way, your honor, we thank and excuse

01:13:39.260 Megan Kelly from this jury. Good call. I'm definitely much more prosecution oriented. All right,

01:13:46.700 let me squeeze in a quick break here because I don't want to break up our Menendez discussion.

01:13:50.460 Quick break and we'll come back with Menendez, which March Mark is handling. And these two brothers

01:13:54.780 could potentially get a new trial. Unbelievable. Standby.

01:14:00.940 So, Mark, this is crazy. The Menendez brothers who were accused of that we know that they killed

01:14:07.260 their parents, but their defense was that they had been abused by the father repeatedly over the

01:14:13.020 years that the mother had allowed it. And Leslie Abramson so famously got up and, you know, 0.97

01:14:18.860 did the direct exam of of Eric Menendez, the younger brother. He cried on the stand. They had

01:14:23.980 him in like the sweater vest. The jury didn't buy it and wound up convicting both of these guys.

01:14:30.140 I've spoken to why I spoke to Lyle Menendez in a courthouse or a jailhouse interview when I was at NBC.

01:14:35.020 It was fascinating stuff. But now there's new evidence in the case. You're representing them.

01:14:43.260 And it's actually not just Mark Garrago's defense attorney saying reopen the trial. I have another

01:14:48.220 trial, which defense attorneys do all the time. With all due respect, the judge himself as is looking

01:14:53.660 at the prosecution saying you need to explain yourselves as to the job you did and why some

01:14:59.500 of this stuff was not brought out in connection with this trial. So explain what are what are the

01:15:04.380 two best things that have you arguing for a new trial here? First, the best thing about being on

01:15:10.940 your show today is being able to talk to Marsha in the green room because she has the institutional 0.99

01:15:16.940 knowledge of what was happening in the DA's office at the time, because the basically what we have

01:15:24.060 argued is trial trials, number one, because there were two juries the first time around. Both of those

01:15:31.900 juries hung on whether it was murder or manslaughter. That was based on imperfect self-defense. Fast forward

01:15:40.540 to trial number technically three, but the second wave or jury number three. What happened in the interim?

01:15:48.380 Marsha remembers there was the OJ Simpson case in between the same trial judge in both cases,

01:15:57.020 not in the OJ Simpson, but in the Menendez cases, same trial judge basically invited the late great

01:16:04.460 David Kahn to rethink imperfect self-defense. David, to his credit, did not take the bait at least

01:16:12.700 initially. Can you just explain what that is, Mark? Explain what imperfect self-defense is.

01:16:18.220 Imperfect self-defense is basically where the law says what you did may not have been objectively

01:16:25.500 reasonable, but we basically understand why you do it. We're going to let that be mitigation.

01:16:30.460 We're going to have it negate the malice element, which is required for murder.

01:16:35.820 So you didn't murder your father in the midst of him allegedly molesting you,

01:16:40.700 but you did it understanding that you were afraid of him and the next

01:16:45.180 punishment could be coming your way, that kind of thing.

01:16:47.900 Correct. And all you're doing is negating the element of malice. You're not saying I'm not guilty.

01:16:55.420 You're saying if I am, I'm admitting guilt, but guilt of manslaughter. So what happens? They do the

01:17:02.540 trial. The judge starts excluding evidence that they did not or that he did not exclude in the

01:17:09.420 first trial. And then after they rest, he allows them to withdraw or he withdraws the imperfect

01:17:17.100 self-defense. By that time, the prosecutor had gotten the message. And then David, who was the

01:17:23.980 prosecutor, argues in closing that it was an abuse excuse. These were entitled kids. There was no

01:17:31.020 evidence of the abuse, which is astonishing because when you argue that and you know you got the

01:17:37.500 evidence excluded, it's really the height of chutzpah. Now, fast forward to now, we then get

01:17:44.140 the Peacock documentary. We get the declaration of the other young man who was then. Wait, stop.

01:17:51.500 Let me stop you there because the audience doesn't know about this yet. So a member of the boy band,

01:17:57.340 Menudo comes out in this documentary about his band, I guess, and says he, too, was molested

01:18:07.020 by Eric and Lyle's father, Jose Menendez, who the boys were saying during the trial was a molester

01:18:14.380 who was the president of the record company for Menudo. OK, wait. And let me just add one other

01:18:19.980 thing. We have a soundbite of this. The accuser's name is Roy Rossello again of Menudo. And this is just

01:18:25.420 a quick soundbite of him in the piece. That's the man here that raped me. This guy, that's the 0.99

01:18:34.380 pedophile. How old were you there? 14 years old. He's pointing to Jose Menendez, this RCA executive, 0.73

01:18:43.340 and he said that the band's founder brought him to the Menendez home in New Jersey to broker a deal

01:18:51.980 between the band and RCA. That's when Jose Menendez allegedly drugged him and raped the then

01:18:57.740 teenager twice. I won't get into the details, but he was only 13 or 14 when he says it twice,

01:19:05.340 I guess a total of three times he molested and raped him. Go ahead, Mark. OK, now you now have also, 0.98

01:19:12.540 in addition to that, you have Kitty's sister, Marta, whose son has passed away, Kano.

01:19:22.300 She's going through his things a number of years ago. In those things, she finds a letter

01:19:28.380 that predates the murder by, I want to, or the killing, because it's not a murder.

01:19:33.340 Yeah. And by about eight months. And in the letter, he's describing to his cousin, Marta's son,

01:19:41.340 the fact that this is going on. Eric Menendez is telling his cousin he's being molested by his

01:19:47.980 father months in advance of the killings. Right. And she finds it. She then gives it,

01:19:55.420 I believe, to ABC. We're still working through the Providence. But that letter combined with the

01:20:01.900 declaration now that he was also doing the same thing to a third party has now caused the judge in

01:20:09.660 the in the reaction to, if you will, or the aftermath of the writ of habeas corpus to issue

01:20:17.660 an order asking the prosecution to respond. Interestingly, I was also telling this to

01:20:23.420 Marsha in the green room there in talking with the Kitty's sisters. There was a rule that was known

01:20:30.220 in the family that if Jose, the father, was in the room with Eric, that nobody was allowed to

01:20:39.260 go down the hallway, which to me is one of the creepiest things I've ever heard. But that was

01:20:45.020 known. And so. All right. So wait, so let me jump in. So the alleged letter, Eric's letter,

01:20:51.900 writes as follows. This is again, his mother's sister had a son who would have been Eric's cousin

01:20:57.100 to whom Eric wrote this letter eight months before the killings. And Eric writes,

01:21:01.260 I've been trying to avoid dad. It's still happening, Andy, but it's worse for me now.

01:21:05.980 I can't explain it. He's so overweight that I can't stand to see him. I never know when it's

01:21:10.380 going to happen. It's driving me crazy. Every night I stay up thinking he might come in.

01:21:14.060 I need to put it out of my mind. I know what you said before, but I'm afraid you just don't know

01:21:18.700 dad like I do. He's crazy. He's warned me 100 times about telling anyone, especially Lyle. 0.99

01:21:23.900 Am I a serious wimpus? He continues. I don't know. I'll make it through this. I can't handle it,

01:21:29.900 Andy. I need to stop thinking about it. So and then the cousin's name was Andy Kano.

01:21:36.220 So Marsha, now the judge, he's they've gotten the judge's attention. The judge,

01:21:43.020 Superior Court Judge William Ryan, demanding answers from L.A. County District Attorney George

01:21:47.180 Gascon about the explosive evidence that was kept from a jury, quoting here from Los Angeles Magazine,

01:21:54.140 Judge issued an order on June 24th requesting Gascon, whose office prosecuted the Menendez

01:21:58.860 brothers in two different trials to explain whether his lawyers exercised due diligence

01:22:02.780 in pursuing evidence that the father Jose was, in fact, abusive. The judge points to this letter

01:22:08.140 I just read from and wants Gascon to explain how diligently his office dug into claims of abuse

01:22:15.660 or Jose Menendez behavior at the time. This is so interesting. So what is that extraordinary

01:22:21.980 for the judge to do that? And what do you make of the D.A.'s conduct in all of this?

01:22:26.380 So I knew the prosecutors for both trials and I was aware of the prosecution, the case,

01:22:32.220 the trials going on at the time. I have to say I want to make it very clear that what the defense

01:22:39.100 is saying and what the judge is saying is not that the prosecution knew about this evidence and hid it

01:22:44.220 from them, which is important. It's that, well, did you try hard enough to find it? Based on what I've

01:22:50.700 seen, they tried very hard to find it. They spoke to everyone. I know that in the first trial they

01:22:56.220 interviewed all kinds of members of family. In fact, there was a whole motion based on teachers,

01:23:03.180 friends, family and coaches that had something to say about Kitty and Jose Menendez and the family

01:23:09.740 dynamics. And then, as I understood it, David Kahn, who retried the case, did the same thing,

01:23:15.900 went out and talked to all of them and then prepared a motion saying there is no valid basis

01:23:21.900 for this. These are not credible accusations and explained why. I did not see these motions. So I

01:23:27.980 want to make it clear I'm basing this on what I heard and discussed with them at the time. So it's

01:23:33.820 not that they weren't trying to find this information. They certainly did. I know that. Why they didn't

01:23:38.860 is going to be the subject of the discussion now and why the judge has issued what you asked for

01:23:44.620 an informal reply from the prosecution as to why they didn't uncover it. I'd like to know that, too,

01:23:51.260 because given what I know about the efforts that the DA has made in both trials, I'm very surprised

01:23:56.860 this letter didn't come out. What took so long? Where was it? And why does it only come out now?

01:24:01.660 And what about the Menudo witness? I mean, does the judge, I'm only reading an excerpt here of the

01:24:10.300 Los Angeles Magazine piece, but is the judge interested in that, too? Mark, I mean, can that

01:24:15.340 actually get a case reopened when you have, you know, a third party come forward and say he did

01:24:20.140 it to me, too, when the whole defense was based on my dad's a molester and that's what led me to do

01:24:24.460 this horrible thing? Yes, I think that's precise. I think when you have the combination, to my mind,

01:24:30.140 a third party coming forward at this point, and given what we know about the trauma and the

01:24:38.140 repression and everything else that these kinds of things cause on victims, I think that that's,

01:24:45.740 to my mind, an extremely compelling piece of evidence. The one thing I will, building on what

01:24:51.980 Marsha was talking about, you know, the politics of the DA's office was very interesting at the time

01:24:59.900 of what was happening. There are those like me who are very cynical that say one of the reasons that

01:25:05.500 David Kahn was assigned to the second trial is because David Kahn coming on the heels of the OJ loss was

01:25:14.380 probably the biggest threat to the then current DA in the next election. And this was a way to take

01:25:21.820 him off the chessboard, so to speak. And why were they doing that in the machinations? There's just a

01:25:27.820 whole lot going on in terms of why all of this happened. And I always go back to there was a,

01:25:36.220 I listened to the audio, the Ninth Circuit heard this appeal 20 years ago. And then one of the then

01:25:44.140 judges on the Ninth Circuit, in questioning the Attorney General, has a very telling line. He says,

01:25:51.340 isn't this unfair that trial number one, you had a certain set of rules, trial number two,

01:25:57.660 you change the rules midstream in order to get the result you want. And I always invoke this other

01:26:03.980 quote, I wish I had come up with it. If these had been the Menendez sisters, they would not be in 0.96

01:26:09.660 custody.

01:26:11.660 Can I add one more thing, Megan? I think it's important to focus, legally speaking, on another

01:26:17.820 aspect of the crime. And that is imminence. When it comes to the claim of imperfect self-defense,

01:26:24.940 what they're saying is, self-defense itself, the regular self-defense that we all know,

01:26:30.700 is that you shoot at someone, you kill them because you legitimately, reasonably believe

01:26:36.380 that your life was in imminent danger. You are in imminent danger of death or great bodily injury. 0.98

01:26:43.260 The imminence factor is still required for imperfect self-defense. So even though you unreasonably

01:26:49.500 believed that your life was in danger, you nevertheless must prove you genuinely believed at that moment that

01:26:56.380 your life was in imminent danger. And that is one of the problems for the defense as well. Now,

01:27:02.060 this is not to say that, and I'm completely taking apart the issue of whether or not they were molested,

01:27:08.620 taking that to one side. They still have to prove that in the moment they shot, both their mother and

01:27:14.700 father shotgunned them to death, they believed in that moment that their lives were in imminent danger.

01:27:20.620 And that's going to still be something to prove. Certainly,

01:27:23.500 the molestation is going to come into play here. And there's going to be PTSD aspects and

01:27:29.020 issues to deal with in terms of how that affected their state of mind. But that is nevertheless an

01:27:35.180 important aspect. As a juror will probably think, if they do go back to trial on this, which may not

01:27:41.820 happen, it may get resolved in another way that Mark and I were talking about. But if it does,

01:27:47.420 a juror is going to say, why don't you just leave? You're both adults at this point. Walk out the door.

01:27:52.860 So that's going to be a stumbling block.

01:27:54.780 It's so ironic, Marsha, because back then in the 90s, I vividly remember trying a case right around

01:28:02.300 the same time out in Pomona, a murder case with a woman and using one of the first experts for

01:28:09.740 battered women's. 0.78

01:28:10.860 I was just going to say battered women's syndrome.

01:28:12.540 Exactly. We use this all the time.

01:28:15.020 We ended up having the same thing. It was a hung jury between murder and manslaughter and she ended 0.63

01:28:20.540 up getting a manslaughter probationary sentence at the end of the day. This is not dissimilar in

01:28:28.540 terms of where we've come. Because back then in the 90s, we understood it in the battered woman's

01:28:35.340 case context. I think now we've the prism has changed. So most people understand it in this

01:28:42.220 context. OK, but here's my here's my question. So you're seeking a new trial. A, how do you like

01:28:48.940 your odds, honestly? And B, if you don't get it, is there an option to go? I'm not advocating for

01:28:55.820 this necessarily, but I'm just curious. Could you go to Gavin Newsom, the governor of California,

01:29:00.220 and say they've served 30 years? It's time to commute their sentences. Look at the overwhelming

01:29:05.420 evidence we have, the Minuto guy and so on. Look, I I'm cautiously optimistic.

01:29:13.900 Could that happen? Could there be a third rail, so to speak? I think there could be

01:29:18.860 that Marcia kind of hinted at that we were talking about. There's a whole realm of options here. But

01:29:24.700 clearly, to my mind, they've done 33 actual years. By all accounts, they've been model prisoners.

01:29:32.220 Eric has a mitigation packet that I have never seen before in 40 years of somebody doing the kind of

01:29:40.060 great work in the prison. And frankly, I think he had resolved himself over 10 years ago that this was

01:29:47.180 going to be where he spends the rest of his life. And given even with that resolution, it didn't mean

01:29:52.940 that he went off a tangent and became incorrigible. He just doubled down on his efforts to help others

01:29:59.740 in there. So I think there's a compelling case to be made, whether, you know, I don't know that

01:30:04.940 Gavin Newsom would be my pathway, but there are other options that can be utilized. But we're focused

01:30:12.140 like a laser right now on the habeas. I'll give you the last word on it, Marcia. What do you think

01:30:16.700 is going to happen here? I think that's a really good question, Megan. I had questions about the,

01:30:22.220 I didn't get to see the video, excuse me, of the victim who was talking about his attack by Jose

01:30:30.460 Menendez. I did read, however, that he had been drugged. And so I wound up wondering whether he

01:30:36.060 was sure it was Jose who attacked him. Someone attacked him, there's no question. And that may

01:30:42.300 come into play. I don't know. But if there's, first of all, when you file a habeas petition,

01:30:48.380 and there is a question of credibility, the judge almost has to ask for an informal reply

01:30:53.580 to find out what's going on here, because you can't just dismiss a credibility issue

01:30:58.620 out of hand. That said, there is some, there's some meat on the bones here, as they say. And I think that

01:31:05.340 it's hard to know how this all shakes out. But I think when they answer the question as to

01:31:10.540 where this statement came from, why it wasn't discovered before, the legitimacy of it,

01:31:15.420 as well as the other victim from the Menudo ban, it may very well wind up with a new trial.

01:31:21.580 Wow. Oh my gosh, that would be something. We'd all be glued and we'd have Garagos again 1.00

01:31:26.940 in front of the jury on one of the biggest trials in the nation. I would buy a ticket to that. All

01:31:33.100 right. Let's finish quickly with Daniel Penny, the man charged now with taking the life of Jordan

01:31:39.900 Neely, who had gotten onto a subway train and threatened the passengers. Daniel Penny was now,

01:31:46.140 he pleaded not guilty this morning to now two charges. We expected him to be charged with

01:31:51.500 second degree manslaughter. He was, they've added the charge of criminally negligent homicide. He says

01:31:58.060 he's not guilty. He could be facing five to 15 years in prison if a jury finds otherwise. He's spoken

01:32:05.180 out on this publicly because it's become such a public case saying, well, I'll just play the

01:32:10.780 soundbite and him trying to correct some of what he says is the misinformation about what happened on

01:32:15.580 board that subway train that day. Stop 14. A man came on, stumbled on. He appeared to be on drugs.

01:32:23.340 The three main threats that he repeated over and over was, I'm going to kill you. I'm prepared to go to 1.00

01:32:28.380 jail for life and I'm willing to die. I was scared for myself, but I looked around. I saw women and

01:32:33.580 children. He was yelling in their faces saying, saying these threats. I couldn't just sit still.

01:32:39.340 Some people say that I was holding onto Mr. Neely for 15 minutes. This is not true. So the whole

01:32:44.220 interaction less, less than, less than five minutes. Some people say I was trying to choke him to death,

01:32:49.340 which is also not true. I was trying to restrain him. And some people say that this was about race,

01:32:53.740 which is absolutely ridiculous. I didn't see a black man threatening passengers. I saw a man 0.99

01:32:59.340 threatening passengers. A lot of whom were people of color. 1.00

01:33:05.980 Marsha, what do you make of this case and the additional lesser charge of criminally negligent

01:33:11.340 homicide? Well, the prosecution is making sure that they've covered all bases and giving the jury

01:33:17.980 a lesser charge to consider. And that's appropriate under these circumstances that are

01:33:23.500 tough to pin down. There have been a lot of conflicting reports, but the journalist who first

01:33:30.700 was present, an eyewitness, and I think, I thought, even recorded some of the interaction. Maybe not.

01:33:36.220 But he certainly described it as a very threatening thing and a threatening behavior in which he did

01:33:41.580 threaten to kill someone, didn't care if he went to jail, threw down his jacket. I can see

01:33:46.540 that others would say less so. But there were two others that helped him pin the man down.

01:33:51.660 This was obviously then pretty scary behavior. We also know that Jordan Neely, unfortunately,

01:33:58.060 was someone with severe mental issues and problems. And among them, assaulted behavior,

01:34:04.140 four charges of assault. Most recently in 2021, punched a 67-year-old woman in the face,

01:34:10.780 a stranger in the subway. So this is not to say that Penny knew about this

01:34:16.380 history. But he certainly saw behavior by someone that we now know based on the history,

01:34:21.500 did pose a threat, and probably then therefore was incredibly threatening at that time. So I can see

01:34:28.940 a jury actually walking him, or at least finding him guilty of a lesser charge.

01:34:35.820 I mean, Mark, to me, it would be just a travesty if this guy goes to prison for one day.

01:34:40.220 It's a travesty that he was indicted. I still, I have not been able to confirm whether he went in

01:34:45.980 front of the grand jury or not. This would be one of the three times in my career that I would put

01:34:51.500 somebody in front of the grand jury. That tape you just showed on its face. I just left New York. I

01:34:57.980 was there a week ago. I was walking on the street, saw the exact same thing happening on the street.

01:35:05.100 Because unfortunately, we live in New York and LA in some outdoor insane asylums. 0.99

01:35:10.860 And you see these people in the midst, you see how people are scared out of their mind.

01:35:16.700 And it's astonishing to me that we're criminalizing this behavior.

01:35:21.980 I mean, at a minimum, you go for a jury nullification. I just, I don't think a jury is

01:35:26.540 going to, a New York jury is going to convict this guy. I really don't. I don't think the race

01:35:29.740 card is going to work here. New Yorkers know the subways have gotten downright dangerous,

01:35:34.700 and we need more Daniel pennies, not fewer of them. Marsha, Mark, so great to have the gang back

01:35:41.420 together. And until the next time. Thank you, man. Thank you so much. What a pleasure.

01:35:47.340 Tomorrow, don't forget to tune in. We've got Carrie and Britt back with us. We'll talk to you then.

01:35:51.260 Thanks for listening to The Megyn Kelly Show. No BS, no agenda, and no fear.

The Megyn Kelly Show - June 28, 2023

Merrick Garland's Potential Felonies, and New Evidence in Idaho Murders Case, with Ric Grenell, Marcia Clark, and Mark Geragos ｜ Ep. 577

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