The Megyn Kelly Show - Rittenhouse Trial Heads to Jury and O'Keefe Raided By FBI, with Robert Barnes, Dave Aronberg, Andrew Branca and Harmeet Dhillon ｜ Ep. 204

00:00:00.440 Welcome to The Megyn Kelly Show, your home for open, honest, and provocative conversations.

00:00:11.880 Welcome to The Megyn Kelly Show. I'm Megyn Kelly. What a day we have for you.

00:00:16.560 The jury is now deliberating the case of Kyle Rittenhouse, a now 18-year-old man accused of intentionally murdering one man,

00:00:23.700 attempting to murder another, recklessly killing a third man, and endangering two others.

00:00:31.000 This happened at a Black Lives Matter riot in Kenosha, Wisconsin, in August of 2020.

00:00:37.280 The defense does not dispute that Rittenhouse shot and killed two men that night and shot and injured another.

00:00:42.300 Instead, it claims it was done in self-defense, which, if true, would entirely exonerate Kyle Rittenhouse and require an acquittal.

00:00:49.440 When a defendant asserts a colorable claim of self-defense in Wisconsin, the burden is on the prosecution.

00:00:55.700 To disprove it, not on the defense to prove it, beyond a reasonable doubt.

00:01:00.820 A self-defense claim requires four questions to be answered by the jury.

00:01:04.140 One, was Rittenhouse here facing an unlawful, forcible attack against him?

00:01:09.480 Two, was that attack imminent, meaning in progress or about to occur?

00:01:12.980 Three, was his response proportional, meaning was the defendant, he, Rittenhouse, facing great bodily harm or death?

00:01:18.940 In other words, you can't shoot somebody who's coming at you with a toothpick.

00:01:22.220 And four, was the defendant's response reasonable, knowing him and all of his background, as well as reasonable in the eyes of an objective observer?

00:01:32.260 Here, the assistant district attorney, Thomas Binger, challenged each of these elements.

00:01:36.760 For example, he's arguing that in the case of the first man shot, this is very, very important, the first incident,

00:01:41.740 Joseph Rosenbaum, that Kyle Rittenhouse was not facing an imminent, unlawful, deadly attack.

00:01:48.960 That Rosenbaum was chasing Kyle Rittenhouse, but Rosenbaum had no gun.

00:01:55.780 That Rittenhouse, as the ADA put it, brought a knife to a fistfight.

00:02:00.580 And that Rosenbaum was not lunging for Rittenhouse's gun.

00:02:04.840 The only way that you could possibly justify the murder of Joseph Rosenbaum is if you believe that Joseph Rosenbaum was actually reaching for the defendant's gun.

00:02:19.400 And that a reasonable person in the defendant's position, with that AR-15 strapped tightly to his chest, would think that Joseph Rosenbaum was even capable of taking that gun away as he's falling to the ground with a fractured right pelvis.

00:02:38.160 And then, not only all that, you'd also have to believe that Joseph Rosenbaum was going to turn that gun around and use it to kill the defendant.

00:02:50.200 You have to believe all of those things to justify the murder of Joseph Rosenbaum.

00:02:57.600 Binger argues that once Rittenhouse shot Rosenbaum, Rittenhouse then became an active shooter in the eyes of the mob.

00:03:07.260 And that everyone who attacked him after that had the right to do so, since they all believed Rittenhouse was a threat, all of which the defense disputes.

00:03:16.800 They say Rittenhouse ran toward police.

00:03:19.480 This is the defense countering that Rittenhouse ran toward police after he shot Rosenbaum.

00:03:23.660 That Rittenhouse could have shot many other people after shooting Rosenbaum if he were really an active shooter.

00:03:30.780 And that he clearly was not on some active killing spree.

00:03:33.620 That Rittenhouse only shot the next two men, Anthony Huber and Gage Grosskreutz, when they attacked Rittenhouse.

00:03:40.660 And those attacks are on camera and are rather clear.

00:03:45.720 The problem for the prosecution is that even if we assume those later two guys, Huber and Grosskreutz, in attacking Rittenhouse genuinely believed, as the ADA claims,

00:03:54.280 that Rittenhouse was an active shooter who needed to be stopped, that would not eliminate Rittenhouse's right to self-defense.

00:04:04.860 It's Rittenhouse's state of mind that matters, not that of the men he shot.

00:04:11.000 Did he or did he not reasonably believe that these men were trying to kill him?

00:04:16.160 The ADA knows that he's going to lose on the self-defense elements, I think.

00:04:22.100 So his argument has shifted since the start of this trial.

00:04:25.580 Now he's focused mainly, not entirely, but mainly on convincing the jury that Rittenhouse can't really even claim self-defense because he's the one who provoked this entire thing.

00:04:35.860 Provocation, as we discussed last week, can indeed eliminate one's right to claim self-defense, but only in two circumstances.

00:04:46.160 One, where the defendant intentionally tries to provoke an attack on himself because he wants to murder the person he's provoking.

00:04:55.080 That's not this case.

00:04:56.360 Or two, the defendant engages in an illegal act that is reasonably likely to provoke violence.

00:05:04.280 That's what Binger seems to be arguing, that Kyle Rittenhouse broke the law in a way that was reasonably likely to provoke violence and thus loses the ability to claim self-defense.

00:05:14.500 By the way, you still can claim self-defense, even in that circumstance, if what happens to you is an attack on your life.

00:05:21.540 Get to that later.

00:05:22.160 Binger realized late in the trial he was going to need this argument provocation once he likely realized that Rittenhouse had made the elements of self-defense or rather that he, Binger, had failed to disprove each element of self-defense.

00:05:37.000 And the defense counsel, in his closing argument, pointed all of this out to the jury.

00:05:41.360 Think back to back on November 2nd, when this case started, did you hear one word out of Mr. Binger's mouth about provocation?

00:05:54.680 You didn't, because it was never said.

00:05:57.540 But when his case explodes in his face, now he comes out with provocation.

00:06:03.240 Okay, so the ADA has got to prove then, to prove provocation, which takes away self-defense, that Kyle Rittenhouse provoked this thing.

00:06:29.680 That Kyle Rittenhouse engaged in illegal conduct that was reasonably likely to provoke violence against him.

00:06:36.240 Initially, Binger claimed that Kyle's illegal conduct was that he had a rifle at age 17.

00:06:41.280 That charge got thrown out.

00:06:42.980 And now the alleged illegal behavior, likely to provoke violence, appears to be Rittenhouse's alleged behavior, alleged, of pointing his AR-15 just before all of the mayhem

00:06:56.540 at a guy named Joshua Zeminski, who was either connected to, a friend of, or just near Joseph Rosenbaum, the first man shot.

00:07:08.120 Rittenhouse denies this, right?

00:07:09.680 He denies that he pointed his gun at Zeminski, Rosenbaum, or anybody else, until the moment that was, you know, that led to Rosenbaum's death.

00:07:17.780 But the prosecutor says he's got the moment where Rittenhouse pointed the gun at this guy, Zeminski, on tape.

00:07:23.940 In a last-minute addition to the prosecution's case, the ADA introduced drone video showing this alleged big, big moment.

00:07:32.380 But the video and the screen grab allegedly showing this moment of the pointing of the gun is incredibly sketchy.

00:07:38.000 It's blurry.

00:07:38.960 It is blown up beyond the point of reliability.

00:07:41.340 Here you can see the smaller version and the bigger version.

00:07:43.960 You can't see anything.

00:07:45.060 Even the judge pointed this out.

00:07:47.340 And so it's just past the point of reliability.

00:07:50.100 And even if the jury believes somehow, sees in this blur, somehow that it's a threat, that it's somebody pointing their gun,

00:07:58.100 there's a serious question of whether it's Rittenhouse.

00:08:01.060 You can't even see who it is.

00:08:03.280 It appears at best to show a man holding, perhaps pointing, I don't know, his rifle with his left hand up against his left shoulder.

00:08:11.080 Rittenhouse is right-handed.

00:08:12.520 His gun is for a right-handed person.

00:08:14.480 The defense pointed out in their closing argument that firing a right-handed gun from one's left shoulder would result in the shell casings coming out into the shooter's own eye.

00:08:25.900 It's just not done.

00:08:27.820 The prosecutor nonetheless argues this is Kyle Rittenhouse pointing his rifle at Zeminski before everything got underway.

00:08:34.460 That Zeminski and Rosenbaum would then run after Kyle Rittenhouse.

00:08:39.520 Again, both sides are kind of disputing whether Zeminski and Rosenbaum are tight or not tight or know each other, don't know each other, but at least we're near each other.

00:08:47.840 And these two run after Kyle Rittenhouse, who takes off.

00:08:50.300 The ADA argues essentially that Rosenbaum chased Rittenhouse because Rittenhouse asked for it.

00:08:56.440 Kyle Rittenhouse says Rosenbaum was a threat to him that night.

00:09:00.460 Both Kyle Rittenhouse and another witness testified that Rosenbaum, again, the first man shot, threatened Rittenhouse earlier that night saying he, Rosenbaum, would kill Kyle Rittenhouse if he got him alone.

00:09:13.720 The prosecutor says it's not on tape and that it's a lie that Kyle came up with later to protect his rear end.

00:09:21.200 After Kyle Rittenhouse allegedly pointed that gun at Zeminski, right, as allegedly this blurry shot shows, who's near Rosenbaum, that's when the two of them chase Kyle.

00:09:32.320 And during that chase, Zeminski fires a gun into the air.

00:09:36.560 After Kyle Rittenhouse turns and Rosenbaum, rather than retreating, remember, he's right behind Kyle at this point.

00:09:44.580 A gun goes off.

00:09:45.680 Kyle turns around.

00:09:46.400 Rosenbaum's right there with his AR-15.

00:09:48.820 And rather than retreating, Rosenbaum throws a bag at Kyle Rittenhouse and lunges at him and his gun.

00:09:58.100 Rittenhouse then shoots Rosenbaum four times.

00:10:00.800 The prosecutor takes issue with the four shots.

00:10:02.860 And he says Rosenbaum posed no threat, that there was not only not an imminent threat to Kyle's life, but that there was no threat, that that Rosenbaum was unarmed, that he was incapacitated after the first shot.

00:10:16.460 And that Rittenhouse should have stopped right there after he had injured Rosenbaum's pelvis.

00:10:23.200 And that from that point forward, says the ADA, Rittenhouse was, quote, an active shooter.

00:10:30.640 So what does he do that night?

00:10:34.780 Oh, let me tell you all the awful things Joseph Rosenbaum did.

00:10:38.920 He tipped over a porta potty that had no one in it.

00:10:42.720 He swung a chain.

00:10:44.800 He lit a metal garbage dumpster on fire.

00:10:49.000 Oh, and there's this empty wooden flatbed trailer that they pulled out in the middle of the road and they tipped it over to stop some bearcats and they lit it on fire.

00:10:59.940 Oh, and he said some bad words.

00:11:01.700 He said the N word.

00:11:02.600 If he were alive today, like Joshua Zeminski, I'd probably try and prosecute him for arson, but I can't because the defendant killed him.

00:11:14.380 So that's the D.A. arguing Rosenbaum, you know, cause some trouble.

00:11:20.360 He was sort of a rabble rouser, but that he he didn't deserve to be shot. 1.00

00:11:26.480 Right.

00:11:27.020 That he he posed no real threat to Kyle Rittenhouse.

00:11:31.840 Now, the defense, the defense says they've got it all wrong.

00:11:35.800 So Rosenbaum, who we know, we the jury doesn't know this because the judge excluded it, but we know Rosenbaum was a convicted child molester.

00:11:43.920 I mean, bad stuff, convicted of raping young boys between the ages of five and 11.

00:11:49.600 Bad guy just got out of a mental institution, was off his meds, was looking for trouble. 0.93

00:11:55.380 That piece looking for trouble.

00:11:57.140 The defense was allowed to say there's plenty of evidence admitted that he was no angel on that particular night, but none of the bad criminal stuff.

00:12:05.800 Came in the defense, nonetheless, tried to make the case to the jury that Rosenbaum had been suspiciously behaving all evening.

00:12:15.660 Listen.

00:12:17.260 This case is not a game.

00:12:21.140 It is my client's life.

00:12:24.240 We don't play fast and loose with the facts, pretending that Mr. Rosenbaum was citizen, a number one guy.

00:12:33.800 He was a bad man.

00:12:35.200 He was there.

00:12:36.740 He was causing trouble.

00:12:38.360 He was a rioter.

00:12:39.620 And my client had to deal with him that night alone.

00:12:45.040 Kyle shot Joseph Rosenbaum to stop a threat to his person.

00:12:50.020 And I'm glad he shot him because if Joseph Rosenbaum had got that gun, I don't for a minute believe he wouldn't have used it against somebody else. 0.99

00:12:58.180 He was irrational and crazy. 0.68

00:13:01.420 From that point forward, the ADA's case is pretty much that those who advanced on Kyle Rittenhouse were trying to stop a murderer who was endangering their lives and the lives of others.

00:13:11.220 He has to claim that because Anthony Huber, the man who attacked Kyle Rittenhouse with a skateboard, is on tape doing that.

00:13:19.740 And he reached for Kyle Rittenhouse's gun.

00:13:21.840 It's clear self-defense by Kyle Rittenhouse unless he provoked it.

00:13:26.820 Right.

00:13:27.000 The D.A.'s argument.

00:13:27.880 Gage Grosskreutz, too.

00:13:28.980 That's the man who got his arm shot but lived to tell about it.

00:13:31.780 He approaches Kyle Rittenhouse with Grosskreutz gun drawn.

00:13:35.340 The D.A. tried to argue that Grosskreutz never pointed his gun.

00:13:39.840 It was a handgun, a Glock at Rittenhouse.

00:13:42.280 But Grosskreutz said exactly the opposite at trial in a very big moment that got a lot of press coverage.

00:13:48.540 Watch the contradicting stories told by the prosecutor, followed by his star witness.

00:13:53.480 The bullet has hit Mr. Grosskreutz's right bicep, severing it.

00:14:00.700 At this point, yeah, absolutely.

00:14:04.220 That right arm is probably dangling down towards the defendant.

00:14:07.200 It wasn't until you pointed your gun at him, advanced on him with your gun, now your hands down, pointed at him, that he fired, right?

00:14:18.240 Correct.

00:14:18.720 Just to clarify, what the D.A. is saying to the jury in his closing yesterday is Grosskreutz didn't point the gun at Kyle until after Kyle shot him in the arm and that he didn't mean to point the gun in that moment because it was just that his bicep had been shot off and his arm was dangling and it was an involuntary motion forward.

00:14:39.220 OK, after he'd been shot there, you heard Gabe Gage Grosskreutz contradicting that saying he wasn't shot.

00:14:48.720 Until he pointed pointed his own gun at Kyle Rittenhouse, who was on the ground.

00:14:54.480 OK, so the ADA's closing is completely belied by the testimony of the star witness about whom he's speaking to the jury.

00:15:04.880 Look, the bottom line, in my view, is that the ADA cannot get passed a very viable claim of self-defense by Rittenhouse.

00:15:10.660 His one point on provocation, you know, that Kyle set the whole thing off by pointing his gun at these guys early on, is a blurry, grainy video that shows virtually nothing.

00:15:21.320 All three of these alleged victims are on tape attacking Kyle Rittenhouse.

00:15:26.380 They're on tape attacking him, initiating the attacks.

00:15:30.020 And Rittenhouse has every right to defend himself, and he's not required to hold back if he reasonably felt that his life was in danger.

00:15:38.760 Rittenhouse has been demonized from the beginning of this case by the ADA and by the press because, I believe, of his original sin, showing up at a Black Lives Matter riot with an AR-15 and clearly not on the side of the rioters.

00:15:52.000 The defense summed up the matter as follows.

00:15:54.360 Ladies and gentlemen, this is a political case.

00:16:00.200 We can take politics out of it as in Democrat and Republican, but the district attorney's office is marching forward with this case because they need somebody to be responsible.

00:16:13.660 They need somebody to put and say, we did it.

00:16:17.940 He's the person who brought terror to Kenosha.

00:16:21.180 Kyle Rittenhouse is not that individual.

00:16:24.360 The rioters, the demonstrators who turned into rioters, those are the individuals who bring us forth.

00:16:33.920 They had to do something.

00:16:36.080 They had to charge the white supremacist who isn't a white supremacist.

00:16:41.780 They've never reassessed their case.

00:16:44.900 I think that nails it.

00:16:49.100 I think that nails it.

00:16:50.420 They are under pressure.

00:16:52.260 The DA's office.

00:16:53.880 And now the jury, if they acquit, will have to worry about their safety, the safety of their city, and a lifetime of judgment for being the only ones courageous enough to say this kid did not break the law.

00:17:05.560 Joining me now, Robert Barnes, founding attorney of Barnes Law and Kyle Rittenhouse's former civil attorney, as well as state attorney for Palm Beach County, Dave Ehrenberg.

00:17:16.760 Thank you both so much for being here.

00:17:21.160 Let me just start with this.

00:17:22.600 Let's go broad brush first, Robert.

00:17:25.240 And let me ask you how you thought it went yesterday for because the prosecution got to make its closing.

00:17:32.240 The defense makes its.

00:17:34.000 And then, as we always do, the prosecution gets the last bite of the apple because they have the burden of proof.

00:17:38.080 And they got the first and last word in front of the jury.

00:17:40.180 I thought the rebuttal case, which we didn't show clips of here, was pretty darn strong.

00:17:45.180 And I think the defense might be a little worried because the rebuttal case was strong.

00:17:50.920 My own take is that ultimately, when you have to resort to arguments like Kyle should have taken a beating, then you lost.

00:17:58.740 And that was the argument that the person I call Sour Kraus, Sour Kraus made in his in his rebuttal.

00:18:04.940 And so I think that in the end, they did not have the facts to support their arguments.

00:18:09.440 They came up with a desperate Hail Mary at the end of trying to argue provocation where provocation just did not happen here.

00:18:16.180 And they ended up making other arguments and just saying Kyle shouldn't have been there at all.

00:18:20.620 And that somehow it was a crime for him to have been there at all.

00:18:23.760 And especially once the curfew charge was thrown out and the gun charge was thrown out,

00:18:28.540 their entire basis of arguing that Kyle had done anything unlawfully to be there that night were gone.

00:18:33.160 And so they were stuck with trying to argue what happened in the moment.

00:18:36.980 And what happened in the moment is, as you note clear on video, Kyle only shot when he had to,

00:18:42.660 when he was at imminent risk of great bodily harm in each of the occasions that he shot and showed extraordinary discipline.

00:18:50.220 And then he didn't react to a bunch of other people.

00:18:52.500 People hit him in the back of the head that he didn't shoot at.

00:18:54.720 People were threatening him that he didn't shoot at.

00:18:56.500 People were yelling, craning him the boy that he didn't shoot at.

00:18:59.560 He only shot at people as they were attacking him, as the most momentous event during the entire trial revealed when Grosskreutz on the stand said,

00:19:09.480 yeah, he didn't shoot me until I pointed my gun at him.

00:19:12.160 Mm hmm.

00:19:12.480 I thought the the prosecution did a good job yesterday in its summation.

00:19:17.940 But, Dave, I did not think they did a good job during the trial.

00:19:21.520 I thought the trial went almost uniformly in the in the defense in their in their favor.

00:19:27.460 And so, you know, I don't let me start with that.

00:19:30.080 How can a closing argument save a trial that is probably lost in a case like this for a prosecutor?

00:19:37.200 It doesn't normally, Megan.

00:19:39.840 But the difference here, I think, is that you've got the provocation instruction.

00:19:44.760 And I think that could be a game changer because otherwise I don't see how they could have gotten a conviction on the counts involving Grosskreutz and Huber.

00:19:54.240 I still think even without the provocation instruction, there's a legitimate shot they can get the conviction on the count related to Rosenbaum because he was unarmed.

00:20:02.320 And the video, at least the one I saw, looked like he was not grabbing for the gun.

00:20:07.160 And, yeah, he may have may have made some threats and he threw the plastic bag at the defendant.

00:20:12.780 But is that is that warrant getting shot four times by an AR-15?

00:20:17.980 So I think you're right in that the testimony that came out, especially when they put their key witness on the stand, Grosskreutz, was not what the prosecutors wanted.

00:20:26.040 In fact, Grosskreutz seemed to buy into the defense's theory of the case that Rittenhouse was attacked and he worried about Rittenhouse's safety.

00:20:35.760 But when it comes to the others, when it comes to Rosenbaum, I think that's where the prosecution probably is the strongest case.

00:20:42.500 And if the jury agrees with provocation, then they could possibly get a conviction relating to Huber.

00:20:47.760 Last point is this. I still think the weakest one is the Grosskreutz shooting for the reasons you mentioned.

00:20:54.220 Grosskreutz had a gun and his own words on the stand contradict the prosecutor's comments in his closing.

00:21:00.940 Yeah, it was crazy how the prosecutor, Binger, it just ignored that.

00:21:05.320 He ignored that critical moment and sort of said, no, he you know, he only shot Grosskreutz or Grosskreutz only pointed the gun at him after he'd been shot.

00:21:14.040 It was an involuntary motion forward because his bicep had been shot up.

00:21:18.440 Meanwhile, his witness had already given up the farm. I mean, it was too late for that.

00:21:21.880 The jury. I was surprised the defense didn't make more out of that.

00:21:25.560 I mean, I would have gotten up there and said he just lied to you.

00:21:28.180 I mean, explicitly, you heard you heard Grosskreutz on the stand and now he's trying to clean it up.

00:21:33.420 And what else is he lying to you about? Right. I mean, anyway.

00:21:35.760 OK, we're going to leave it there for one second, squeeze in a quick break.

00:21:38.620 And then I want to pick it up with Rosenbaum, because I really think this is the this is the linchpin.

00:21:43.820 If they don't think that Kyle Rittenhouse had the right to shoot Rosenbaum, it could definitely go south for him on the other two because of this provocation argument.

00:21:51.820 So let's take a closer look at Rosenbaum. We'll do that right after this break.

00:21:55.240 Don't go away with more with Robert and Dave in one second.

00:21:57.780 So let's let's focus on the first man shot, because I do think the other two are easier in a way.

00:22:12.420 Rosenbaum is the first man Kyle shot and he's the he's not a good man.

00:22:17.680 This was not a good man. He was causing trouble all night and chased Kyle.

00:22:24.940 That much we know there. It's disputed why he chased Kyle.

00:22:28.800 The prosecutor's arguing it's because Kyle pointed his gun at Rosenbaum's buddy or just somebody near Rosenbaum.

00:22:35.200 In any event, Rosenbaum comes to approach Kyle. Rosenbaum, it is undisputed, was unarmed.

00:22:41.900 And this is what the prosecution is now seizing on.

00:22:45.260 They're basically suggesting you can't shoot somebody who's unarmed.

00:22:49.280 Here's I mentioned James Krause. He did the rebuttal for the prosecution, which I thought was probably the strongest of the three arguments.

00:22:54.940 Here's how he put it. Listen here.

00:22:58.020 Clearly, if there is provocation, he's guilty.

00:23:01.720 But even outside of provocation.

00:23:06.200 Why do you get to immediately just start shooting?

00:23:10.000 As Mr. Binger said, he brought a gun to a fist fight. 0.98

00:23:15.480 And he was too cowardly to use his own fist to fight his way out. 1.00

00:23:19.020 He has to start shooting. 0.99

00:23:20.120 Robert, can you speak to that argument?

00:23:24.540 I found it an insane argument to say that you're supposed to engage in fist fights now, to welcome fist fights, supposed to put your gun down and engage in a fist fight and see what happens.

00:23:33.220 I mean, Binger actually, in his part of closing, actually said that nobody had ever died from from an unarmed person.

00:23:39.580 Well, we've got a couple of centuries of history that say otherwise.

00:23:42.940 So the I find that argument about he's supposed to take a beating.

00:23:46.600 He's supposed to put the gun down and just get into a fist fight with someone that that is the solution.

00:23:51.240 It's just not a solution.

00:23:52.240 And it's not one required under Wisconsin law.

00:23:54.820 If you fear great bodily harm, you're entitled to use deadly force.

00:23:59.440 And Kyle explained in detail and the video shows in detail and Richie McGinnis, most probably the best witness on the Rosenbaum case for the defense was the state's own witness, Richie McGinnis, who when he was getting hammered on cross-examination or direct examination, redirect by Binger.

00:24:15.080 And Binger said, you have no idea what Rosenbaum was thinking.

00:24:17.860 McGinnis famously said, well, I know he said F you and then lunged for the gun.

00:24:22.580 And that's as good a defense for Kyle as you can possibly get, because here you have a so-called complaining witness, reckless endangerment charge concerning Richie McGinnis, saying that the same thing that Kyle was saying, that this person was yelling at him, screaming at him.

00:24:36.740 I think he called it a blood curling scream right at the time he lunged for the gun.

00:24:40.680 If that isn't self-defense, then we don't have self-defense in America.

00:24:43.300 Mm hmm. And not only that, but this other guy, Ryan Balch, testified that Rosenbaum, the guy who got shot, did threaten Kyle Rittenhouse earlier in the evening.

00:24:53.280 If I get you alone, I'm going to kill you. Here's that soundbite, too. 0.96

00:24:57.740 And he goes, you know, if I catch any of you guys alone tonight, I'm going to fucking kill you. 1.00

00:25:02.300 And he said that to you. Correct. 1.00

00:25:04.440 Did he say that to the defendant as well? The defendant was there. So, yes.

00:25:08.600 Oh, Mr. Binger, I mean, that's the prosecution bringing out that evidence, which is not good for his side.

00:25:16.740 So now the prosecutor is claiming that isn't true, but that's that's the evidence the jury heard.

00:25:21.860 So let me ask you, Dave, because I understand if it's two guys, you know, if you're unarmed and the other guy's unarmed and he comes over and starts beating you, you should fight back with your fists.

00:25:30.280 But if you've got a gun and a guy comes over and threatens you and reaches for your gun, I don't think the law considers him unarmed.

00:25:38.440 I think the the person who has the gun initially is allowed to factor that gun going to the other person in to the equation and deciding what kind of force to use to respond with.

00:25:50.700 Isn't is am I wrong?

00:25:53.240 Yeah, well, this is what the jury is going to have to grapple with.

00:25:55.580 It was Rosenbaum, a real threat to Kyle Rittenhouse.

00:26:00.540 And part of it, though, Megan, is that covered now has had that strap around.

00:26:04.220 So so that reaching for the gun would have been blocked by the strap that he used to keep the gun in his own possession.

00:26:11.980 So that's another consideration.

00:26:13.580 Also, the fact that Kyle Rittenhouse shot four times and a lot's been made on the timing of the shots.

00:26:20.500 Well, he shot pretty quickly.

00:26:22.880 And so that's going to be the defense argument is like, hey, he shot enough to neutralize the threat.

00:26:27.840 Whereas the prosecution saying, well, you know, he started to make it a little more of a of a thinking process that the shots were not in as rapid fire as you would think that he could have stopped after one shot.

00:26:39.260 But he shot four times to kill a guy who was unarmed and who threw a plastic bag at him.

00:26:45.040 And the other thing about lunging video I saw showed that there was distance.

00:26:48.960 And that's what the prosecution focused on.

00:26:50.580 There was enough distance between the defendant and Rosenbaum so that when Rosenbaum was shot, he was not next to Rittenhouse.

00:26:58.080 There was enough distance where he couldn't have grabbed for the gun.

00:27:01.100 And as he's falling after he'd been shot, that's when it looks like he lunged for the gun. 0.84

00:27:05.800 And as far as the witnesses saying, hey, this guy was saying, I'm going to kill you and stuff.

00:27:09.820 Yeah, he was saying a lot of things. 1.00

00:27:11.140 There was another witness on the stand who described Rosenbaum as something like a blathering idiot. 1.00

00:27:15.480 So he was just spewing lots of stuff. 1.00

00:27:18.000 And the question is whether he was a legitimate threat to Rittenhouse's life.

00:27:23.840 And can I jump in there?

00:27:25.460 Let me ask you, is that the question, whether he was, quote, a legitimate threat to Kyle's life?

00:27:29.940 Or is it more whether Kyle reasonably, given who Kyle is and his experiences, whether he reasonably believed that his life was in danger and whether an objectively reasonable person could understate, could also see that?

00:27:44.300 Well, you look through the eyes of Kyle Rittenhouse, but you also have to look through the prism of reasonableness.

00:27:48.600 So when I say legitimate, what I'm saying is that it's not just subjective on Kyle's part.

00:27:53.180 You have to look at the reasonableness of it.

00:27:55.320 Was it reasonable for Kyle to think that Rosenbaum, an unarmed man who threw a plastic bag at him, was going to take his gun away and then use it against him?

00:28:05.240 Well, the gun was strapped to Kyle Rittenhouse.

00:28:07.640 Rosenbaum wasn't right next to Rittenhouse to take the gun away. 0.86

00:28:11.720 And he shot him four times to kill him.

00:28:13.940 So that's what the jury is going to have to consider.

00:28:16.820 Robert, it's funny because when I listen to the ADA's closing, he made it sound like this is just a lovely evening at the lounge.

00:28:22.900 You know, we're like Kyle Rittenhouse got to sit back and it was like, maybe I'll fire a shot.

00:28:26.820 Maybe not. Maybe I'll fire a second one. Let me think about it.

00:28:29.380 Should I fire a second shot? Oh, I think that I've injured his pelvis. 0.99

00:28:32.660 I guess I'm good now. No, I'm going to do it anyway.

00:28:35.180 I mean, it happened in less than seconds.

00:28:38.260 He had to make these decisions.

00:28:39.640 And I realized that now we know that the first shot injured the guy's pelvis, Rosenbaum's.

00:28:44.480 But he didn't. Kyle Rittenhouse didn't know that in the moment.

00:28:46.880 And yes, he wasn't right on top of Kyle when he was coming for the gun.

00:28:51.620 But you just look at the tape. 1.00

00:28:53.140 You know, he was running toward him, according to Richie McGinnis, reaching for the gun, yelling, fuck you. 1.00

00:28:59.140 And it already threatened him. 1.00

00:29:01.200 And he could have stayed on top of him.

00:29:03.640 May not be on top.

00:29:04.500 It may not be on top of Kyle Rittenhouse in the second.

00:29:06.880 But he's about to be right.

00:29:08.500 So it's like to me, this is a 2020 hindsight thing where it's like, sure, we could pretend he had all the time in the world.

00:29:14.360 But you can see on tape, he didn't.

00:29:17.240 And what was happening that night was escalating violence by the various attackers on Kyle that night.

00:29:22.960 You know, it starts off with threats, with small threats.

00:29:25.660 Then the threats get to be big threats. 1.00

00:29:27.600 I'm going to kill you. 1.00

00:29:28.340 I'm going to kill you. 1.00

00:29:29.220 A lot of N-words, that kind of stuff coming from Rosenbaum. 0.99

00:29:32.060 Then it escalates into throwing off, you know, throwing down porta potties.

00:29:35.860 Then it escalates into putting wagons and things in the middle of the road.

00:29:39.760 Then it escalates into small arsons.

00:29:41.660 Then it escalates into attempted big arsons.

00:29:44.480 And the ultimate goal was it was going to escalate into killing Kyle Rittenhouse.

00:29:48.240 Because what happens is he's walking down there.

00:29:50.360 And as there was testimony from the state's own witnesses, where Rosenbaum was, he was right behind two cars waiting for Rittenhouse to come by.

00:29:58.040 And then he springs free.

00:29:59.740 And then you have Zeminski threatening him on one side, Rosenbaum threatening him on another side.

00:30:04.500 And as to the issue of provocation, as an example, there is no evidence he lifted his gun.

00:30:08.520 The compelling evidence says he didn't.

00:30:09.920 But even if anyone believed that, you are allowed under Wisconsin law to get to withdraw and give notice of it.

00:30:16.080 I call it like Leonard Skinner's give me three steps.

00:30:18.660 Kyle does that three different times before he shoots Rosenbaum.

00:30:21.960 First, he tries to step back and go back up Sheridan Road, but he's blocked by the other people.

00:30:26.080 So that's attempt number one.

00:30:28.200 And Rosenbaum runs at him instead of withdrawing.

00:30:31.160 Two, he tries to run across the parking lot, at which point he hears a gunshot behind him and sees the bag thrown at him.

00:30:38.060 Turns around and points at Rosenbaum.

00:30:40.360 Gives Rosenbaum a second chance to withdraw because he turns around and runs away again.

00:30:46.180 And then the third time is right by the cars where he's completely trapped.

00:30:50.360 He's got Zeminski behind him.

00:30:51.920 He's got Rosenbaum about to attack him.

00:30:53.920 He's got a riotous crowd right in front of him.

00:30:56.260 He's stuck between four cars.

00:30:58.480 He turns around and he doesn't fire right away.

00:31:00.880 He waits to see what Rosenbaum does.

00:31:02.780 And what does Rosenbaum do?

00:31:04.180 He yells F you and lunges for the gun, according to Richie McGinnis' independent testimony, who is live and can see it live.

00:31:10.960 We don't have to rely on drone footage from miles away.

00:31:13.720 We have Richie McGinnis seeing it live in live time.

00:31:15.780 And that is compelling evidence that he gave three opportunities for Rosenbaum to withdraw.

00:31:21.100 He gave notice and had himself withdrawn and retreated.

00:31:23.660 So even if anybody believed provocation, the state cannot prove that aspect, which they also have to prove in order to prove him guilty of any crime related to Rosenbaum.

00:31:32.200 So can I just rewind and ask you a question about that drone footage with the blurry photo and the last minute the prosecution is like, look, this is the evidence of him starting the provocation.

00:31:40.300 Kyle with the gun pointing at Zeminski, whatever the guy's name is.

00:31:43.500 Um, I thought that the defense argument on that was that we don't even know if that is Kyle is the defense.

00:31:49.860 It's Kyle, but he's not pointing his gun at anybody.

00:31:52.960 The there is a picture there of Kyle that they've tried to blow up.

00:31:57.000 But what they've actually blown up that they're claiming is Kyle holding a gun is actually the backside of a mirror.

00:32:01.880 So the because if Kyle was holding the gun in the way that Binger was claiming, Kyle would have had to shift from being right handed to left handed, would have had to shift the gun from the right hand to the left hand.

00:32:12.540 And because the way in which his body is turned in the in the photo, the only way their version of events makes sense is he suddenly became left handed overnight.

00:32:19.660 And so that's the reason why it also goes from color to black and white.

00:32:24.620 There's a whole host of other issues with those blurred photos they're trying to project their fantasy land testimony into.

00:32:30.420 And that's why it doesn't fit.

00:32:31.820 And that's why it doesn't meet the standards.

00:32:33.360 And the defense's theory is he absolutely never raised his gun all night.

00:32:37.840 Even yellow pants man, when you see his earlier testimony, the prosecution was pretending was a hearsay testimony that shouldn't have come in, but did about Kyle pointing his gun.

00:32:47.500 He's actually pointing.

00:32:48.580 He's using a gesture like this.

00:32:50.020 So it was not that Kyle was pointing his gun at people, but had his gun down like this all night.

00:32:54.220 So there was no testimony from any prosecution witness that supports any aspect of provocation that night.

00:33:00.420 The yellow pants man was somebody Kyle saw earlier on who claimed that Kyle said to him something like I could shoot you or and you said you were going to shoot me.

00:33:09.880 And Kyle said, yeah, I did something.

00:33:11.580 I know the judge later referred to that as the my cousin Vinny moment, I think, where, you know, he's like, yeah, I shot the clerk, you know, where Ralph Macchio's care is like, yeah, I shot him.

00:33:19.560 But you don't really mean, yeah, I don't know.

00:33:21.540 But that was sort of evidence that the prosecution wanted to use to show Kyle would have used force to protect property, which is not OK.

00:33:27.840 So, Dave, what about that?

00:33:29.760 Because the prosecutors seem to be arguing there was a chance for Kyle to retreat in the shooting of Rosenbaum because Kyle was the one in charge.

00:33:36.240 Kyle was the one leading the run.

00:33:38.100 You know, he was being chased, but he was the one sort of at the forefront of the run.

00:33:41.340 And that Kyle's the one who sort of got them backed into a corner up against these cars and then turned around and fired.

00:33:48.960 Right. That's all important, because if you talk about provocation, the person who provokes it then cannot take advantage of self-defense, but then they can later if they reasonably believe that they're in imminent danger of death or serious bodily injury.

00:34:04.500 At that point, they have a duty to retreat under normal self-defense laws in Wisconsin.

00:34:09.960 You don't have a duty to retreat, but if you have the the provocation aspect, then you do.

00:34:16.940 So if you provoke it, then you do have a duty to retreat if you're going to then later take advantage of self-defense.

00:34:21.900 And that's why his failure to run away is important.

00:34:27.020 And then after all, he used what prosecutors would consider unreasonable force, disproportionate force to a guy who was unarmed.

00:34:35.520 He used AR-15.

00:34:36.860 The other thing about the provocation is that the prosecutors tried to enlarge in it.

00:34:41.200 So instead of just raising his gun, they also tried to say, well, look, he traveled across state lines to a state he did not live in to guard a used car lot that he was not asked to guard.

00:34:53.660 And he said he was a medic and that was a lie that he wasn't a medic.

00:34:57.520 And so they're trying to say, look, this shows you that he provoked the whole thing.

00:35:01.540 The one problem with that argument is that under Wisconsin law, for you to have provocation, you have to be engaged in an unlawful act.

00:35:09.560 So it's not unlawful to travel across state lines.

00:35:12.240 It's not unlawful to guard a used car lot that you are not asked to guard.

00:35:16.060 It's not even unlawful to lie to people to say that I'm a medic.

00:35:19.620 It is unlawful, though, if you possess an AR-15 as an underage individual, but that count was thrown out.

00:35:26.360 So the only remaining area where they can show provocation through an unlawful act would be the raising of the gun, which would be an aggravated assault with a deadly weapon.

00:35:36.960 But it's not against Rosenbaum.

00:35:38.220 It's against Zeminsky.

00:35:39.400 So they're bootstrapping that argument.

00:35:40.880 And that argument is crucial because not only would it help with the Rosenbaum shooting, it helps also with the case on the shooting of Grosskreutz and Huber.

00:35:51.040 That is exactly right.

00:35:52.780 That last.

00:35:53.260 Thank you for that very clear statement of the law.

00:35:55.500 I couldn't have said it better myself.

00:35:57.240 And it's so like the jury might not hear all these things spelled out that way, but they hear the lawyers talking about he provoked it.

00:36:02.760 Did he retreat and so on?

00:36:04.580 And then they're supposed to compare this to the 36 pages of jury instructions and come up with a verdict.

00:36:10.380 One wonders whether that's how they'll do it or whether they already have strong opinions at this point about whether it was self-defense or he's a punk who went on an active shooter's spree.

00:36:22.040 Stand by because we have much more with Robert and Dave and a couple more soundbites I want to ask them about in critical moments in just moments.

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00:37:07.560 So let's talk about the moments after Rosenbaum was shot, because this is the point at which the prosecutor argues if Kyle Rittenhouse wanted to signal to the world that he was not an active shooter, there are many things he could have done that he did not do.

00:37:20.600 And this is why people like Anthony Huber also, I mean, very long rap sheet, Anthony Huber and Gage Grosskreutz.

00:37:29.620 I mean, he's painting these guys as heroes and like wonderful guys, long rap sheet for the second guy, too.

00:37:34.340 Like both of these are not the thing where he talks about them like they were out there, then I just to keep the peace.

00:37:38.580 They just want bull bull. 1.00

00:37:40.460 They were they had a long, long criminal history, all three of them.

00:37:44.320 And that's just that's just relevant because the prosecutor did try to sort of slip in what great guys they were.

00:37:49.000 Like he actually used the word hero.

00:37:52.060 So this is Ada Binger trying to talk about what Kyle Rittenhouse should have done if he didn't want the crowd to misunderstand his his intention.

00:38:02.620 This is Soundbite Seven.

00:38:04.920 He could have stayed at Mr. Rosenbaum's body, helped protect him, helped preserve his life.

00:38:11.280 Call 911.

00:38:12.100 As he's running, he could have announced to the crowd exactly what he was doing, told them he could have fired warning shots to try and help keep him away.

00:38:21.840 He could have dropped the gun.

00:38:23.360 He could have raised his hands and surrendered.

00:38:26.060 He could have signaled to this crowd that he did not pose a threat anymore.

00:38:29.400 So, Dave, what's he trying to get at there?

00:38:33.020 I mean, I know he's he he one of the I think he's accusing Kyle of like not rendering aid when he could have.

00:38:38.500 But there's a larger point he's going for.

00:38:41.260 Yeah, Megan, that's the duty to retreat. 1.00

00:38:43.040 He's trying to say he's surrendering because if you have provocation and then you want to regain self-defense, you can't do that unless you exhausted every avenue.

00:38:52.380 You've got to try to retreat, surrender.

00:38:54.160 And he didn't do that.

00:38:55.360 He kept walking on, which led other people to believe he was a danger, an active shooter, as he said.

00:39:01.580 And that's why they acted in his belief heroically to try to stop it.

00:39:06.360 Now, I think it's it's a compelling argument, but there's a couple issues there.

00:39:10.560 I don't know if the jury is going to buy that he should have just stood there with his hands up and let people come at him.

00:39:17.300 I think that's something that if you're in that situation where you have a really dangerous situation, it's bedlam that you want to stand there after you shot someone and then surrender your gun.

00:39:26.960 And just I don't think that's realistic.

00:39:29.660 It's not like the National Guard showed up.

00:39:32.300 Right. The police were far away.

00:39:33.980 He eventually walked to the police.

00:39:36.060 I do think, though, that if they can show provocation with the pointing of the gun towards the Minsky, then they could make the argument that, yes, these folks were trying to disarm a shooter.

00:39:46.300 Now, the word active shooter rubs me a little the wrong way, because to me, that evokes like Nicholas Cruz, a Parkland shooter who just shot indiscriminately.

00:39:55.020 Rittenhouse was not shooting indiscriminately.

00:39:56.680 He was shooting at people that he believes was a threat.

00:39:59.800 So I think active shooter is overplays that that hand.

00:40:03.640 But I do think it's a legitimate argument to say the reason why that they're charging him for shooting Huber and Grosskreutz is because they were trying to subdue and disarm this guy who just killed Rosenbaum.

00:40:15.900 And in return, they got killed.

00:40:18.400 At least Huber got killed in the process. 0.62

00:40:20.140 And Grosskreutz got his arm shot off.

00:40:23.060 Does it matter, Robert?

00:40:24.540 Like, let's the prosecutor was talking about Huber and Grosskreutz as if they'd been charged with something, you know, like as if he's trying to get them off, saying they had a reasonable belief that he was this active shooter.

00:40:34.500 They are trying to disarm the active shooter.

00:40:36.700 Now, I don't know if that's true or not.

00:40:38.020 I got questions about their behavior, given what I know about their rap sheets.

00:40:41.020 But even if they really did believe that they were acting as good Samaritans, that Rittenhouse was an active shooter and they had to disarm him for the good of the community.

00:40:50.900 Does that matter if if Kyle Rittenhouse is there and thinks he's about to lose his life to this guy beating him with a skateboard or pulling out a Glock at him?

00:41:01.240 Does it matter what what their motives are?

00:41:05.360 No, it doesn't.

00:41:05.860 I mean, frequently what's interesting is he was basically giving a definition that sounded like the McMichael defense in the Arbery case.

00:41:11.780 The problem is they didn't have probable cause of a crime either.

00:41:15.020 They didn't meet the citizen's arrest standard under Wisconsin law.

00:41:17.820 That's why it never came up.

00:41:19.040 But it's also, as you know, not pertinent, not relevant.

00:41:21.500 Their state of mind is completely irrelevant.

00:41:23.760 What matters is what was Kyle's reasonable perceptions for a 17 year old under the circumstances of that night. 0.99

00:41:29.080 And his reasonable perceptions is this guy attacks me and there's a mob screaming, get him, get him, kill him, kill him, cranium him, cranium him. 0.99

00:41:38.140 And it was cranium bashing his brain. 1.00

00:41:39.900 And what does he do?

00:41:41.380 He starts running toward the police line, not trying to engage anybody, not pointing his gun at anybody.

00:41:47.100 People keep chasing him, bashing him over the back of the head with a hand with a rock in it, keep attacking him, bashing him over the head with a skateboard.

00:41:55.160 And he keeps trying to run to that line.

00:41:57.560 And it's only when he's knocked down and even when he's knocked down on the ground.

00:42:01.600 And as Richard's noted, his the most vulnerable position you can be in, that he even lifts the gun at anyone.

00:42:07.340 And even then, he doesn't fire at anyone that's not trying to kick him in the head, bash him in the head, grab his gun or put a gun in his face.

00:42:14.600 That's classic self-defense.

00:42:16.120 And it's something the prosecution simply can't escape the true facts in this case.

00:42:20.520 The prosecution keeps saying to the jury yesterday that that that he lied.

00:42:25.840 Kyle Rittenhouse was asked by this witness, did you shoot somebody?

00:42:29.440 And he said, no.

00:42:31.060 And did you shoot this guy?

00:42:32.360 No.

00:42:33.480 Well, what's he supposed to say?

00:42:35.260 He's like, he makes it sound like he's at an afternoon tea and someone's like, did you try the salad?

00:42:41.420 You know, like he it's an angry mob, some of whom are armed.

00:42:45.860 And the ones asking him the questions are not on the same side as Kyle.

00:42:49.980 Right.

00:42:50.160 It's like the Black Lives Matter rioters and Tifa folks. 0.89

00:42:55.100 I don't know.

00:42:55.920 I thought that was such a flat point, Dave.

00:42:58.060 Like, what's he going to say?

00:43:00.640 Now, I hear you.

00:43:02.140 I don't think that's a huge deal for the jury.

00:43:04.200 But Megan, going back to what you were saying earlier about these folks, whether they're heroes or or not.

00:43:09.600 Yeah.

00:43:09.820 I mean, their background doesn't mean that they didn't try to do the right thing at that time.

00:43:14.920 But it is true that the jury is not going to hear the fact that they had a lot of issues in their past criminal issues.

00:43:20.660 But at the same time, the jury is also not going to hear about Rittenhouse's own issues that he recently had punched a girl who was fighting with his sister or that he appeared at the with the Proud Boys at a bar afterwards, given a white supremacist sign with hand gesture.

00:43:37.560 So it works on both sides as far as the backgrounds and the actions of individuals.

00:43:42.440 That's why you stick to the evidence.

00:43:43.700 That's why you have what's called motions in limine to keep out evidence that could prejudice a jury and get emotions inflamed instead of just looking at the facts on hand.

00:43:53.660 What about that, Robert?

00:43:54.620 Because, you know, you heard the defense lawyer say, oh, they said they're going to that he's a white supremacist and it's not a white supremacist.

00:44:01.500 And no, none of that evidence has come in, but the press went with it because there was some discussion early on about whether he had an affiliation with the Proud Boys and whether that makes him a white supremacist or whether he was caught on camera giving that sort of OK symbol that has now been, you know, sort of co-opted by, I guess, white supremacists.

00:44:17.620 The reason why, like, if you ever have told a story about I was trying to pull in and my doorman was like, OK, you know, come on.

00:44:22.360 And I was like giving him the OK symbol.

00:44:23.680 And I'm like, oh, my God, I didn't I didn't mean to flash a white supremacist, a white power, you know, just trying to pull into the garage.

00:44:29.840 But it's been co-opted. So anyway, what about the evidence that he not in court, but outside that he that he's got this affiliation?

00:44:37.240 Yes. So he doesn't have any affiliation with the Proud Boys. He didn't know who was at that bar.

00:44:40.500 That was other people who brought them there. He never has.

00:44:43.100 They looked at all the social media. They had his entire cell phone. They had all of his records.

00:44:47.380 They didn't find an iota of proof of any kind of racial prejudice of any kind.

00:44:51.800 He has a multiracial family. None of that was ever true. 0.97

00:44:54.660 The and in fact would have been blown up had it even been introduced in the trial and easily counteracted.

00:44:58.840 And of course, the OK sign was 4chan wanted to mean the media into convincing them that the white power sign, which is something totally different, involves two different using both your hands, that the OK sign was secretly a white power sign.

00:45:12.400 And unfortunately, some media people ran with it. I would note I filed suit on that.

00:45:16.120 A federal court found that claiming the the OK sign is a white supremacist sign is actually defamation and libel.

00:45:22.320 And those people who libeled Kyle will face some consequences.

00:45:25.260 Joe Scarborough can't help himself. He keeps libeling him every other day.

00:45:28.080 So I guess he wants to be sued by the kid. And hopefully that will happen after the acquittals come.

00:45:33.120 All right. Need quick answers on this. Robert, your predictions on how this comes down?

00:45:37.760 I think 75 percent chance of acquittals. If they didn't do a good job in jury selection, then there's a risk of mistrials.

00:45:44.040 Dave?

00:45:44.440 I think the lesser charges will lead to a compromise verdict. I think they'll get the conviction, perhaps on some of the endangering others.

00:45:53.700 I think the most likely conviction on a serious charge will be on Rosenbaum, not on Huber or Gross Quartz.

00:46:00.520 Hmm. And he could be facing decades in prison if he's convicted of some of those lesser charges.

00:46:05.520 So it's not necessarily just a slap on the wrist. They matter for sure.

00:46:09.440 You guys, great discussion. Thank you both so much for being here.

00:46:12.360 Thanks a lot. Thanks, Megan.

00:46:13.340 And up next, someone I'm really looking forward to talking to, someone I've been following very closely, reading during this whole trial, Andrew Branca of legal insurrection.

00:46:23.360 If you miss this, you're going to be very sorry because there's no one who knows more about this case than he does.

00:46:28.840 Don't go away.

00:46:29.540 Joining me now, someone I've been dying to talk to, Andrew Branca, attorney in self-defense law and his practice Law of Self-Defense LLC works to help armed law abiding citizens make better and informed decisions.

00:46:47.040 Branca has been closely following this trial and reporting on what he is seeing and his legal take at legalinsurrection.com in must read dispatches.

00:46:57.440 If you are not following him, do so now.

00:46:59.660 And he will still be of great service to you.

00:47:01.180 Andrew, thank you so much for being here.

00:47:03.180 I really appreciate it.

00:47:04.540 It's my absolute pleasure.

00:47:06.180 I've been a fan a long time, Megan.

00:47:07.520 Very happy to be here.

00:47:08.580 Thank you.

00:47:09.100 I mean, I love so much about your posts, but the number one thing is just how clearly you communicate.

00:47:15.200 And I think we both agree that the defense lawyer, Mark Richards, could have used some of that very clear communication yesterday because I felt, as you did, that he was kind of all over the board.

00:47:27.040 It wasn't a linear presentation.

00:47:30.280 It just could have been a lot more forceful and persuasive, like his case was.

00:47:35.740 I mean, I thought that the actual case went in Kyle's direction.

00:47:38.740 But the closing, I don't know.

00:47:40.240 Do you think he lost it on the closing?

00:47:41.500 Well, I think lost it is perhaps a bit strong.

00:47:45.460 I mean, he hit all the essential facts.

00:47:47.380 He did that well.

00:47:49.560 Personally, I would have preferred more of a story arc to the closing because that's how people love to integrate information.

00:47:56.700 Human beings love stories.

00:47:58.580 It's the most compelling way to sell that narrative of innocence.

00:48:01.420 And this is the last chance the defense will ever have to sell that narrative of innocence to the jury.

00:48:06.660 So to my mind, it really needs to be as close to perfect as possible.

00:48:10.320 And it wasn't that close to perfect, I guess.

00:48:13.800 And also the tone.

00:48:15.380 The tone came across as rather angry and belligerent.

00:48:19.040 And there's good reason to be angry about this prosecution.

00:48:22.380 It's a travesty of justice.

00:48:24.900 But that anger only works on people who share that anger, who are already on your side, who are convinced.

00:48:30.580 And that's not who the defense needs to worry about.

00:48:32.620 They need to worry about the juror who might feel some sympathy for the victims in this case, the people who died, Gage Grosskreuz who got maimed, the people who were endangered as the prosecution tells the story.

00:48:45.840 Those are the people you have to convince to come over to your side.

00:48:49.440 And I don't think you do that with anger.

00:48:51.020 I think you do that with sympathy from their perspective to bring them over to you.

00:48:56.480 Just so our listening audience knows, he used the term victims and did the air quotes because that's what the prosecution claims they are.

00:49:03.060 That's up to the jury to decide.

00:49:05.480 Let's talk about the self-defense claim that was made by the ADA binger yesterday. 0.82

00:49:13.800 And I know you are literally the expert in self-defense.

00:49:16.320 So let me play soundbite four and get your reaction to whether this is a misstatement of the law.

00:49:22.780 Vince Hill, that Joseph Rosenbaum was going to take that gun and use it on the defendant because they know you can't claim self-defense against an unarmed man like this.

00:49:35.000 You lose the right to self-defense when you're the one who brought the gun.

00:49:40.380 When you're the one creating the danger, when you're the one provoking other people.

00:49:45.880 Is that true or false?

00:49:47.700 Well, of course, he mixes a few different things in there.

00:49:49.960 If you actually provoke the confrontation, well, then arguably you do lose self-defense.

00:49:54.340 But you don't have no right to defend yourself against an unarmed person.

00:49:59.720 Hundreds of people in America are killed every year with fists and boots.

00:50:03.460 So an unarmed person can readily be a deadly force, right, against which you'd be privileged to use a gun in self-defense. 0.73

00:50:10.000 And you certainly don't lose self-defense if you bring a gun with you.

00:50:13.540 I carry a gun for personal protection every day, have my entire adult life.

00:50:18.320 I have the same privilege of self-defense as anybody else.

00:50:20.680 The provocation for Rosenbaum's killing seems to be this allegation that Rittenhouse pointed his gun against a man named Zeminski earlier in the evening.

00:50:32.800 Zeminski chased Kyle Rittenhouse after that, and so did Rosenbaum.

00:50:39.060 And then that confrontation took place.

00:50:40.880 With respect to the two others that Kyle shot, Grosskreutz and Huber, what's the provocation?

00:50:47.960 Is it simply the killing of Rosenbaum and the failure to lie down right there saying, surrender, surrender, I shot him, get police?

00:50:56.500 Right. That's the state's narrative.

00:50:58.240 So basically it's kind of the fruit of the poisonous tree idea.

00:51:01.500 If the shooting of Rosenbaum was wrong, then every consequence that happened after that is the fault of Kyle Rittenhouse is the state's position.

00:51:11.140 But they had to go to this provocation argument because of the inherent weakness in their case.

00:51:16.340 I mean, there's really two ways to attack a claim of self-defense.

00:51:19.900 And by the way, which the state has to disprove beyond a reasonable doubt.

00:51:23.460 One is to attack the elements of the self-defense claim itself.

00:51:27.200 That's effectively impossible here because all the video, all the evidence is consistent with lawful self-defense for every one of these criminal counts.

00:51:34.840 So that's not likely to work.

00:51:37.080 Well, if you can't attack self-defense that way, you tip over the whole chessboard by arguing provocation.

00:51:42.020 Because if someone provoked, well, then they don't have a privilege of self-defense.

00:51:45.600 You don't have to worry about the legal elements of that legal defense anymore. 0.97

00:51:49.200 But their argument for provocation was, I mean, frankly, it was pathetic. 0.54

00:51:53.500 They have this, as Richard's put it, a very good part of his closing, the hocus pocus out of focus photos that were laughable. 0.58

00:52:00.360 And the only other human being who could have provided evidence about provocation was Joshua Zeminski.

00:52:06.180 And the prosecution very carefully charged him with arson so that he would be on ice, so that he would have a Fifth Amendment privilege not to be called as a witness by the defense in this trial.

00:52:17.940 So there's really no evidence in support of provocation that could prove provocation.

00:52:23.320 Remember, the state has to prove it beyond a reasonable doubt.

00:52:26.420 They're not even close to that threshold.

00:52:27.980 Mm hmm.

00:52:29.060 There's a guy there's one charge relating to this guy who's referred to as jump kick guy, saying he was recklessly endangered because Kyle shot at him but missed.

00:52:37.180 He jump kicked Kyle in the face right before Anthony Huber came up and started beating Kyle with his skateboard. 0.67

00:52:42.860 The shooting of Huber and Huber did die is charged as the intentional homicide.

00:52:47.020 That's the most serious charge of all.

00:52:48.500 And they don't even seem to be arguing that Huber wasn't that that that Kyle didn't have the right to use self-defense against Huber other than just saying Huber was the good Samaritan.

00:53:00.380 Kyle was still an active shooter because like unlike with jump kick guy, they're like, OK, jump kicking doesn't that's not really deadly threat against Kyle.

00:53:07.780 And even on Gage Grosskreutz, they're saying, no, he didn't actually pull the gun on him.

00:53:11.820 It was only once once he was shot that his arm involuntarily went towards Kyle, undermined by the by Gage himself, who took the stand and said, no, I pointed the gun at him.

00:53:21.420 And that's when he shot me.

00:53:22.500 But it seems to me that with Huber, they have no argument that Huber didn't put Kyle in fear for his life.

00:53:30.980 No argument at all that beating Kyle with a skateboard didn't give Kyle justification for believing his life was in danger.

00:53:37.440 Their only argument on their most serious charge seems to be you provoke the whole situation.

00:53:43.620 That's that's right.

00:53:44.920 And there's something else here that I think the defense had really pushed harder on.

00:53:48.180 With all these attacks, the second scene, he was perfectly justified in using force.

00:53:53.000 If those had been individual isolated attacks, any one of them, he would have been entitled to use deadly force and self-defense against those attacks.

00:54:00.740 But they weren't isolated individual attacks.

00:54:03.440 His perception of the threat is based on the totality of the circumstances.

00:54:07.800 So it's the collective threat of all those attacks, even the people who ultimately didn't come in,

00:54:13.320 but appeared initially to be coming in with clubs and other weapons who backed off when they saw that Kyle was still prepared to defend himself.

00:54:20.340 That's all a collective threat, certainly a collective threat capable of readily inflicting death or serious bodily injury.

00:54:27.920 I want to give a soundbite from Binger on that sort of sequence I just discussed about just discussed with you on on Huber, on Jump Kick Man, on Gage Grosskreutz, because we spent a lot of time earlier talking about Rosenbaum.

00:54:39.540 Now, this is the second half of the story. This is Soundbite 9, Binger, and his closing argument.

00:54:45.060 The crowd has the right to try and stop an active shooter.

00:54:50.620 The Anthony Huber comes up with a skateboard and the defendant blocks it with his arm, and then the defendant falls to the ground on his own.

00:54:57.680 No one knocked him down.

00:54:59.560 This man that the defense wants to call Jump Kick Man, he's got no weapons, no gun, no knife, no nothing, comes in and tries to kick the defendant in the face.

00:55:10.660 Anthony Huber comes back and tries to grab the gun, actually does grab the defendant's gun, and tries to pull it away because he's trying to disarm an active shooter.

00:55:20.620 Gage Grosskreutz had his own gun in his own hand.

00:55:22.780 He could have aimed it and fired at the defendant, but he did not.

00:55:27.960 And you heard Gage Grosskreutz testify about that, about how that is a decision that he was not prepared to make at that point in time.

00:55:37.820 He is not the type of person who is just willing to take someone's life in an instant, unlike the defendant.

00:55:47.680 Your thoughts on that?

00:55:48.860 Well, of course, the whole thing is laughable, but here's the risk, and the risk is not that serious people, a genuinely fair and impartial juror would take this seriously.

00:56:00.460 That's not likely to happen.

00:56:02.000 The risk here for Kyle Rittenhouse is that there's somebody on the jury who's what I would call an interested juror.

00:56:09.360 They're interested in convicting Kyle for whatever their own reasons might be, political views, whatever it might be.

00:56:15.240 They're not willing to do it if there's zero rationale to convict, because he'll go to prison for the rest of his life, and you need more than a zero reason to do that.

00:56:23.800 But they'll justify the conviction if there's any reason, the slimmest thread of a reason that they can justify to themselves were coming back with a guilty verdict.

00:56:32.540 And that's what Binger is doing here.

00:56:34.800 He's holding out not something that's substantive, that's proof beyond a reasonable doubt.

00:56:39.260 He's holding out this thin read to that potential interested juror in the hopes he can't convince 12 jurors like that, but if he gets one, he gets a hung jury.

00:56:49.320 And normally, a hung jury is, I would call it a win for the defense, because at least your client didn't get convicted.

00:56:54.960 But normally, your client's not as innocent as Kyle Rittenhouse.

00:56:58.440 A hung jury here is a win for the prosecution, because they'll just do the whole thing again and again and again until they've ground this poor kid into dust.

00:57:08.060 Hmm. You there's, I think, seven women now on the ultimate jury that was selected and five men.

00:57:14.020 Is that that the case?

00:57:15.700 You know, I honestly, I don't know the makeup. I've been working on other parts of the case.

00:57:19.540 Yeah, that's not that's not even our reporting that somebody else is reporting.

00:57:22.420 Yes. And my producers are saying seven women, five men, reportedly only one person of color.

00:57:27.320 Obviously, that'll play into whatever verdict comes down because the media is going to do what is going to do.

00:57:32.840 Um, but how about the lesser included? Because that kind of gives the jury a way to split the baby. 0.93

00:57:39.880 And if they don't believe that they want to send this kid to prison for the rest of his life,

00:57:44.420 you know, they could find him guilty on something smaller, even though I don't I don't think that's

00:57:48.820 justified. They might do it as a political matter just to save themselves and their city.

00:57:53.180 What's coming if in the if they give him a straight out acquittal. So did the defense have to agree

00:58:01.120 to those lesser included charges being offered?

00:58:06.920 You know, to be honest, it's not clear to me the standards for that change from jurisdiction to

00:58:11.860 jurisdiction. It's a highly variable rule. In most jurisdictions, you don't have a choice that the

00:58:17.100 state's entitled to the lesser included. I mean, the lesser included are their own elements of the

00:58:21.140 crime. And if the state's proven those beyond a reasonable doubt to the satisfaction of the jury,

00:58:25.300 you're you're guilty of that crime. But there was some questioning by the judge of Rittenhouse

00:58:30.800 himself personally, if he had an objection to the lessers, which suggests that perhaps there was an

00:58:35.600 option to not have them given to the jury. The truth is that any fair and impartial jury looking

00:58:42.240 at this evidence, it's not even close to a conviction on any of these charges, even the lesser included.

00:58:47.520 But as you point out, compromise verdicts happen. Juries are dangerous and unpredictable creatures.

00:58:54.240 And that's why the risk of conviction is never zero. We tell all our clients, if we put you in

00:58:58.980 front of a jury, there's a 10 percent chance you get convicted. And I don't care how innocent you are,

00:59:03.600 because that's part of the noise and the risk of being put in that position.

00:59:07.520 Yeah, that's right. I mean, this truly is his life on the line right now.

00:59:10.920 And in the meantime, the sort of attempt to delegitimize the entire process, the judge as

00:59:19.040 a racist, anybody who's defending Kyle on the merits as a racist. And they there was a bit of a

00:59:26.940 I think Gravian does these great butted soundbites. And one of the ones they did was sort of trying to

00:59:30.680 attack this judge. Like if he goes free, it's going to be because of the terrible, terrible judge.

00:59:36.220 And I'd love as somebody who's watched all of this, this trial to get your reaction to that

00:59:40.680 narrative. Here's soundbite 15 to set it up.

00:59:44.120 God bless the USA ringtone, which is the Trump rally theme song.

00:59:48.480 It appears that this judge is auditioning for the cameras and looking for his next gig on Fox News.

00:59:53.140 It sounds like he's watched too much Bill O'Reilly. I mean, he's acting like Archie Bunker in there.

00:59:57.640 When the judge asks the entire room if there are any veterans here and demands that the entire room

01:00:02.980 clap for a veteran and the one veteran in the room happens to be the expert witness coming forth to

01:00:07.380 testify on behalf of Kyle Rittenhouse. That's an example of a pretty biased courtroom.

01:00:12.380 How the guy talked about the lunch order. I don't get it.

01:00:15.820 My Asian joke. I don't get it. I don't know that he even made an Asian joke.

01:00:19.580 Well, I know that I'm not allowed to judge it because I'm not Asian.

01:00:25.560 Your thoughts on it, Andrew.

01:00:27.500 Well, I don't think I'll be shocking anybody when I make the observation that most of the mainstream

01:00:31.680 media is little more than a propaganda arm for the political left. So this is just,

01:00:36.160 you know, the propaganda arm doing their propaganda arm stuff. That's what they do.

01:00:41.360 I mean, as you've watched the trial, what were the moments that stand out to you as particularly

01:00:46.400 important?

01:00:49.020 Oh, probably most of the ones we all share. Certainly the Gage Grosskreutz testimony was

01:00:53.080 remarkable that he was not fired on until he had his gun out pointed at Kyle Rittenhouse.

01:01:02.020 Can I stand you by there? Can I hold that? Hold that. But the truth is thought, because I do.

01:01:05.400 I want to play it. I have it ready.

01:01:06.840 Oh, OK, great. Yeah.

01:01:07.900 Heard it. It's soundbite one.

01:01:09.180 When you were standing three to five feet from him with your arms up in the air, he never fired,

01:01:19.100 right? Correct.

01:01:21.160 It wasn't until you pointed your gun at him, advanced on him with your gun, now your hands

01:01:27.500 down, pointed at him that he fired, right? Correct.

01:01:34.080 Go ahead.

01:01:34.660 Yeah, that was a great part of the trial. But one thing I observe in all these politically

01:01:39.600 motivated trials, dating at least back to the George Zimmerman trial, is you see these state

01:01:43.680 cases and the state brings their own witnesses, the witnesses they call to the witness stand,

01:01:47.940 and their testimony either is useless or pointless, or it actually favors the defense. And that was here

01:01:55.160 in this trial as well. Witness after witness after witness that the state brought, provided

01:02:00.560 testimony that supported Kyle Rittenhouse's narrative of self-defense. And it makes you wonder why these

01:02:06.940 prosecutions are brought in the first place.

01:02:08.900 Well, but we don't really wonder in this case, do we? I mean, it's like the amount of political

01:02:14.040 pressure in the wake of the Jacob Blake shooting, which is what set this whole thing off, you know,

01:02:18.500 a legally justified shooting by a police officer of Jacob Blake who pulled a knife on that cop,

01:02:22.620 which Jacob Blake is on camera admitting to Michael Strahan on GMA.

01:02:26.020 Uh, and then Merrick Garland's DOJ found the cop did nothing wrong and didn't go after him.

01:02:32.120 And, uh, before anybody was willing to let any of that play out, they decided they would take to

01:02:36.360 the streets and riot. That's what happened. That's why the whole thing happened that night in Kenosha

01:02:40.700 and why there were riots. And people forget that, you know, there was a rush to judgment by people

01:02:45.200 who just decided to glom onto this narrative that cops are shooting a bunch of unarmed black men in

01:02:49.860 the streets and it isn't true. It happens, but the numbers are very, very low. Um, but the media

01:02:55.800 won't tell you that. And, but I wonder, cause I saw you take issue with this particular piece of the

01:03:00.580 defense's closing. There was a reference, not by name to, to Jacob Blake, uh, who was shot seven times

01:03:07.140 by that police officer. Again, it was found justified, but certainly you seem to be comparing this case

01:03:12.180 to Jacob Blake because Kyle Rittenhouse took guff from the prosecution for shooting the first

01:03:16.860 guy, Rosenbaum, not once to stop him, but four times. Take a listen to Mark Richards, defense attorney,

01:03:22.880 uh, yesterday. And this is soundbite 17. Ladies and gentlemen, other people in this community have

01:03:30.940 shot somebody seven times and it's been found to be okay. And my client did it four times in three

01:03:38.360 quarters of a second to protect his life from Mr. Rosenbaum. I'm sorry, but that's what happened.

01:03:46.340 What did you make of that? Well, I mean, first of all, on the legal merits, it doesn't make any

01:03:51.560 sense. It doesn't matter that somebody else was shot seven times and that was lawful. That's got no

01:03:55.340 relevance to this case, but more important, uh, I think this was actually harmful to the defense

01:04:00.780 because remember what's the mission of the closing. It's not to convince people already on your side

01:04:06.220 to join you among the jurors. It's to convince any members of the jurors who are not yet on your side,

01:04:11.980 who may, who may believe the propaganda about Jacob Blake, believe that was a social injustice

01:04:17.200 murder, uh, of a black man by a police officer. It's not true, but they may believe it. And if 0.96

01:04:23.180 that's the person you need to bring over to your side, I don't think analogizing your client's use of

01:04:28.340 force to the shooting of Jacob Blake is going to accomplish that. Does the law say you have to

01:04:34.600 shoot just once versus four or seven times? No, the law says you can keep shooting until the threat

01:04:41.100 is neutralized. However many shots that takes, of course you get up to a certain extravagant number

01:04:46.280 of shots. It becomes very difficult to justify is still necessary, but four is well within the realm

01:04:50.900 of reason. So your prediction on how this is likely to go, I know it's hard, but just, you know,

01:04:56.340 take a shot. You know, it's my practice not to predict outcomes because of how uncertain juries are.

01:05:02.340 I will say that if we go much into the second day, uh, of deliberations into deep into tomorrow,

01:05:08.160 uh, that's not a good sign for the defense. Right. With each passing hour, uh, Kyle Rittenhouse's

01:05:14.320 chances of an acquittal look worse. Andrew, you've been a delight to follow on this whole case. Again,

01:05:20.620 check them out. Andrew Branca, legalinsurrection.com, indispensable, clear, on point, open,

01:05:26.500 honest. Love it. Thank you again. Thank you, Megan. Coming up, we're going to switch gears and take

01:05:31.780 a close look at the case against James O'Keefe. You know, the Project Veritas founder, uh, his lawyer

01:05:38.300 is here, super smart woman, and she's going to explain to us why the FBI had the nerve to raid 0.99

01:05:45.120 James O'Keefe's home and the homes of two of his staffers to go collect Ashley Biden's diary.

01:05:52.600 Is that appropriate? He wasn't even president, by the way, when she lost it or it got stolen.

01:05:56.660 We don't know what happened. We'll get into it next.

01:06:02.180 We want to switch gears and talk about the James O'Keefe case because it's insane.

01:06:07.520 The FBI raided the homes of James O'Keefe and several Project Veritas employees after O'Keefe says

01:06:15.060 they were looking, uh, the FBI was, for a diary, a diary belonging to President Biden's daughter.

01:06:21.600 Even the ACLU is speaking out against this. And joining me now to discuss it is Harmeet Dillon,

01:06:27.880 attorney and managing partner of the Dillon Law Group, who's representing James O'Keefe. Well,

01:06:32.760 you did it, Harmeet. Somehow you got Project Veritas and the ACLU on the same page.

01:06:39.560 It takes a lot. Um, can you just set it up for us? So James O'Keefe is minding his own business.

01:06:47.760 His staffers are doing their thing. And what's the, how does he get word that something's gone

01:06:53.420 wrong here with the FBI? Right. So as you set up in the, in the preliminary intro here,

01:06:59.860 all of the events at issue took place over a year ago. And so for less than a 30 day period from

01:07:06.360 beginning to end, our client got this tip negotiated with the tipsters who they did not know. And they

01:07:12.400 negotiated through lawyers. They then evaluated the materials. They attempted to verify them

01:07:18.760 with the Biden campaign and had conversations with a lawyer for Ashley Biden, all of whom refused to

01:07:24.980 authenticate this document. And under the circumstances, they decided not to run it, which was, I think, a

01:07:31.060 very ethical decision. It was a very juicy, salacious, uh, piece of material. It was kind

01:07:37.240 of coming out around the same time as the Hunter Biden laptops, which were in fact, uh, contents were

01:07:42.920 in fact published by various publications. So nothing was heard from the DOJ or from any law

01:07:50.100 enforcement after the time that Project Veritas turned this diary into local law enforcement in

01:07:55.400 Florida on election day. Okay. So James O'Keefe learned a little over two weeks, a little less

01:08:01.760 than two weeks ago that two former journalists of his, uh, who had dealt with these tipsters had been

01:08:08.840 raided. Their homes had been raided by the FBI and these pre-dawn raids. That was a Thursday. And so,

01:08:15.780 you know, I immediately got involved. James has a whole battery of lawyers, including lawyers who deal

01:08:20.560 with criminal subpoenas on, uh, on his side. And then two days later, the DOJ sent 10 FBI agents

01:08:29.120 with bright lights, handcuffs, and a battering ram to knock down his door at 6 AM. 6 AM is the time at

01:08:35.540 which, um, the DOJ says it's legal to start, uh, serving search warrants. Um, so on a Saturday morning,

01:08:42.520 you can imagine somebody's asleep and, you know, so he was thrown out of the hallway of his New York

01:08:48.320 apartment and his underwear in handcuffs, uh, for a period of time until the DOJ went in and made

01:08:55.000 sure there weren't any, you know, gang of gangsters there to ambush them. And then they spent several

01:09:01.200 hours trolling through his materials and seized his current phone and his prior phone, which is

01:09:06.700 currently in the possession of the United States department of justice. And the pretext on which they

01:09:10.440 did this was a search warrant issued by a federal judge after the first search, the Thursday search.

01:09:15.520 Uh, and after the video that you've shown, uh, your listeners and your viewers. So minutes after

01:09:21.800 that, you know, another search warrant is issued. Wait a minute. Wait a minute. After James went on

01:09:26.320 camera to explain this whole thing after that, his house was rated quick. Let me, let me show the

01:09:32.300 audience what we're talking about. Cause it was good. And he laid out what happened in a little bit

01:09:35.580 more detail. I didn't realize he got rated after that. Okay. Watch this last year. We were approached

01:09:41.480 by tipsters claiming that a copy of Ashley Biden's diary. We had never met or heard of the

01:09:46.160 tipsters. The tipsters indicated that the diary had been abandoned in a room in which Ms. Biden

01:09:50.480 stayed at the time and in which the tipsters stayed in temporarily after Ms. Biden departed the room.

01:09:57.240 The tipsters indicated that the diary included explosive allegations against then candidate Joe

01:10:02.380 Biden. We took steps to corroborate the authenticity of the diary. At the end of the day,

01:10:07.340 we made the ethical decision that because in part we could not determine if the diary was real,

01:10:12.820 if the diary in fact belonged to Ashley Biden, or if the contents of the diary occurred,

01:10:18.260 we could not publish the diary in any part thereof. We attempted to return the diary to an attorney

01:10:23.900 representing Ms. Biden, but that attorney refused to authenticate it. Project Veritas gave the diary to

01:10:30.040 law enforcement to ensure it could be returned to its rightful owner. We never published it.

01:10:34.220 Now, Ms. Biden's father's Department of Justice, specifically the United States Attorney's

01:10:39.180 Office for the Southern District of New York, appears to be investigating the situation,

01:10:44.860 claiming the diary was stolen. We don't know if it was, but it begs the question,

01:10:50.300 in what world is the alleged theft of a diary investigated by the president's FBI and his Department

01:10:57.860 of Justice, a diary? Yes, that is a, that's a very good question. A diary. And so the response to that

01:11:06.820 was another raid. Very clear. He made that video in response to his former employees and former

01:11:11.260 journalists' homes being raided. And so, you know, Megan, you know, as an attorney, if your argument as

01:11:18.980 the government is, you're going to come in with shock and awe and make sure that these, you know,

01:11:23.900 suspected criminals don't destroy the evidence and flush the drugs down the toilet, you don't do it,

01:11:29.360 you know, two at a time and then do some a few days later because they do talk to each other. One

01:11:33.700 of them even has, has the ability to put out viral videos like that. So the fact that they went and

01:11:39.080 raided his home two days later, what are the exigent circumstances to justify ignoring United States

01:11:46.660 Department of Justice guidelines for how you approach getting information from journalists?

01:11:51.100 And of course, common sense, which is if there's some urgency about this, why not do it earlier?

01:11:56.520 Why not do them at the same time? The whole thing is very, very disturbing to me as a civil rights

01:12:01.100 attorney. And that is why we're so encouraged that not only the American Civil Liberties Union,

01:12:07.340 but two prominent journalists, organizations have made public statements and one has filed a motion in

01:12:14.460 the criminal court in Southern District of New York to seek the underlying search warrant affidavits that

01:12:21.100 that. So in other words, to find out what did the government tell a federal judge to get this

01:12:26.180 extraordinary remedy of a search warrant being executed on a United States journalist?

01:12:31.820 Because it looks, this would be disturbing under any circumstances, but it must be noted that

01:12:35.720 James has been a Biden administration antagonist. And as recently as a month ago or so,

01:12:42.060 he published an explosive video series claiming that there are real problems with these vaccines.

01:12:47.280 And as you know, you're not allowed to touch the vaccines. You can't say anything negative about

01:12:50.220 the vaccines. And so, you know, there's just sort of a history there that would make him

01:12:55.760 perceived in an unfavorable way by Joe Biden and perhaps his administration.

01:13:02.120 Because my understanding is that Ashley Biden lost this diary, whatever happened with his diary.

01:13:08.240 I mean, I understand from James's video, the claim is that she left it behind, which is every woman's

01:13:13.080 worst nightmare, but that she left it behind in some hotel room. And then somebody else going in a hotel

01:13:17.040 room was like, oh, my God, this is Ashley Biden's diary. And there's crazy stuff in here that she

01:13:21.640 left it behind. But she was only then candidate Biden's daughter. So what would the FBI what kind

01:13:29.780 of jurisdiction? Like, why would they be involved at all? Why would they be involved at all under any

01:13:34.160 circumstances, whether it's, you know, you or me or the adult troubled daughter of the current

01:13:42.680 president of the United States? The answer is they shouldn't be involved. And, and, you know,

01:13:47.620 there's Supreme, there's so many threads here, Megan, it would, you know, take hours to go through

01:13:51.800 the problems with this. But just to start at the top, the United States Supreme Court has ruled in

01:13:56.980 multiple cases, and the most recent and well cited of these is Bartnicki versus Vopper in 2001. So 20 years

01:14:03.740 ago, United States Supreme Court ruled that it is perfectly legal for a journalist to be in

01:14:08.320 possession of and to publish stolen property. Yeah, okay. That's what that's why just to jump in.

01:14:15.020 That's why we saw all the press publish the Sarah Palin stolen emails and and defended that, right?

01:14:21.220 Because they weren't the ones who stole them. But if you given stolen emails, and they're newsworthy,

01:14:25.900 you can publish them. That's the position James says he was in. Sorry to interrupt. Go ahead.

01:14:29.720 Absolutely correct. And on top of that, you know, there's a long history of this. And on top of

01:14:34.840 that, the entire press corps in DC, you know, paid its mortgages over the last five years over stolen

01:14:43.660 materials from from the Trump administration. And so nobody ever broke down their doors. And, and so,

01:14:51.680 you know, what's even more ironic is that just this week, one of the main critics of the Project

01:14:57.260 Veritas and opponent in litigation, the New York Times published several legal memos that are from

01:15:03.960 Project Veritas. I don't know how they got their hands on it. I will say, I think that raises a lot

01:15:08.260 of questions about some correspondence happening between the DOJ and the New York Times. But, but,

01:15:14.580 you know, so on the legal front, it's legal to possess and publish stolen material as the press,

01:15:20.380 period, full stop, not an open question. And on top of that, the United States Department of

01:15:25.740 Justice, in a slap to the prior administration, in July of this year, issued very detailed guidelines

01:15:31.720 saying, we will no longer issue search warrants to journalists or subpoenas, except in circumstances

01:15:37.720 involving, you know, their being suspected with probable cause of committing the crime in question.

01:15:44.640 I don't think the DOJ has that evidence. I feel pretty confident they don't have that evidence,

01:15:48.940 because my client did what journalists do every day in the United States and the world,

01:15:52.160 respond to a tip, evaluate the tip, decide not to run the tip, and, you know, turn the material over

01:15:59.540 to somebody else. I will also add that the materials in this diary got published without

01:16:06.860 our client's participation in a different publication called the National File. And they're out there for

01:16:12.380 people to read, and they have been for a year. You know, it's, it's, it's really sad stuff. I haven't

01:16:17.940 read through all of it. You know, I think people would have found it newsworthy, but it could not

01:16:22.160 be verified at the time. What's also disturbing, Megan, is that the New York Times was tipped off

01:16:28.440 to these raids at the same time or in advance of them happening. So both of the raids on the two

01:16:35.520 journalists that happened on the Thursday before James was raided, the New York Times was johnny on

01:16:40.100 the spot, immediately asking for comment within minutes of those raids occurring. No other journalist

01:16:44.360 was. And these people aren't exactly, you know, these raids aren't happening on in Times Square,

01:16:49.560 they're not happening in places where anybody could see them. Same thing with James's raid,

01:16:53.400 you know, James's phones have been taken. But the New York Times is calling the lawyer for comment

01:16:58.140 within minutes of it happening after 6am on the East Coast time. It's clear that the DOJ has a leak

01:17:04.560 to the New York Times. And that's disturbing as well. Imagine if it were you or me, and a legitimate law

01:17:10.640 enforcement operation is happening. And your litigation opponent is getting leaks from the

01:17:15.780 DOJ. So Tom Cotton has demanded an investigation by a letter to Merrick Garland into exactly what

01:17:24.080 happened here, and how the DOJ is ignoring its own guidelines with respect to sending, you know,

01:17:30.360 battering rams to the doors of United States journalists. I think everybody should be worried

01:17:35.080 about this, whether you like Project Veritas or not.

01:17:37.040 That is crazy. It's not like James is accused of running a shop of terror. It's a diary.

01:17:43.940 Who uses a battering ram on the home of a journalistic outfit that it's over, right?

01:17:50.600 He says he already gave it over to law enforcement. He never a year ago, a year ago on election day,

01:17:55.460 a year ago. And so he doesn't have possession of it. They know this. The Biden family, the Biden campaign

01:18:01.180 refused to ever corroborate the authenticity of this document. So what standing do they have?

01:18:06.200 And what is really going on here? I'll tell you what I think is going on. The two telephones that

01:18:11.140 received from our client and probably other materials from his former colleagues include,

01:18:15.660 but are not limited to, numerous attorney-client communications between Mr. O'Keefe and his lawyers,

01:18:21.120 including me. I represent Project Veritas in lawsuits against Twitter and against CNN.

01:18:26.100 And there are about three dozen other lawyers who are listed in our motion for a special master to

01:18:32.700 the Southern District of New York, which the court has ordered a response to. Also, all of Project

01:18:38.120 Veritas' confidential donor information. Project Veritas is a nonprofit journalism outfit, and their

01:18:44.660 donors communicate with Mr. O'Keefe, and their information is private and secure from government inquiry

01:18:53.100 under the First Amendment in a Supreme Court case that was recently ruled on in the Bonta case.

01:18:58.260 And then finally, and probably most troubling, is all of Project Veritas' sources who communicate with

01:19:04.920 James O'Keefe. As you mentioned, he is a critic of the United States government and has been forever.

01:19:10.780 He is a critic of big tech and has executed multiple sting operations on every major American big tech

01:19:17.100 corporation. And finally, big pharma. There are numerous leaks coming out with respect to big pharma.

01:19:22.260 He has had a sting operation on CNN. It goes on and on. The government has the diary, or Ms. Biden has

01:19:31.200 her diary back. But what the government also has now is multiple types of confidential privilege 0.86

01:19:35.980 communications that are protected by the First Amendment and many other laws. And what are they

01:19:40.600 doing with it? I do not know what they're doing with it. When our chief counsel, Paul Calley, who's handling

01:19:46.060 this matter, asked the DOJ to pause the review of those until we could get the court to weigh in on it,

01:19:52.640 they said, no, we're not going to pause it. So now the court has ordered a pause on the review of those

01:19:57.260 materials until a special master can be considered by the court. And the journalism organization I

01:20:03.000 mentioned, the Reporters Committee for Protection of Journalists, I'm getting the name wrong, has also

01:20:08.880 filed a motion with the court to unseal those materials that underlie this, because it should

01:20:14.640 be of concern to every reporter and every journalist in America. What does it take for the government to

01:20:20.500 get the opportunity to seize your notes, your communications with your lawyers, and other

01:20:25.700 private information?

01:20:27.120 And the timing is so suspicious, right? Like what, was there an immediate catalyst right before

01:20:32.520 the raid?

01:20:35.560 I would be speculating, Megan, but like you pointed out, James and his stings on Big Pharma have

01:20:43.960 certainly gotten under the skin of probably Big Pharma, which is very closely allied to Big Biden.

01:20:50.600 And of course, we're suing the New York Times, CNN, Big Tech. I mean, there are a lot of interesting

01:20:58.440 parties who speak directly to people in the White House who are actually running this current

01:21:02.500 three. This is not really the president, in my opinion. But, you know, there are a lot of people

01:21:05.820 who would like to see James O'Keefe sidelined. You take away journalists' source materials. You expose

01:21:12.160 their privileged communications with their lawyers about sources and methods. You start going after

01:21:16.300 and investigating their donors. That's how you take down a critic of the government. That's not American. 0.68

01:21:24.140 This is crazy. This is third world stuff. This doesn't, this should not and cannot be allowed

01:21:29.180 to happen in America. This is deadly serious. This isn't just whatever, whatever you think about

01:21:35.380 James O'Keefe. And I think I love him. This is crazy stuff, what they're doing to him. And it's a

01:21:41.420 incredibly slippery slope. But for all the fears about Trump being authoritarian, right, in his approach,

01:21:48.080 Joe Biden took some lessons from Barack Obama from from the way it seems, because he did this to

01:21:53.960 journalists. He did this to my own colleague, James Rosen at Fox News. Not this exact thing,

01:21:58.540 but but tried to come down on him as an unindicted third party co-conspirator and trying to get his

01:22:03.920 sources for a story, I think, about North Korea. And journalists uprose at the time and said this

01:22:09.340 was outrageous. Now, Trump, he he sent me tweets. They were mean tweets. And really, I've I received

01:22:15.840 some. It wasn't pleasant that this is a totally different ballgame. Where are all the people?

01:22:20.840 All of them. Why isn't this lead? CNN, if it had a heart, would be leading its broadcasts with this

01:22:26.260 story in a way that condemns the Biden administration. I mean, that's the thing is, yeah, like I'm a

01:22:31.460 before I was a lawyer, I was a journalist, Megan. I was a James O'Keefe style gadfly at Dartmouth

01:22:38.120 College. And, you know, I was under the skin of the administration. The administration eventually

01:22:43.680 suspended three of my colleagues. We went into federal court with ACLU lawyers and we got my

01:22:48.180 colleagues reinstated. And the whole, you know, national media on both sides was interested in

01:22:54.320 that story 30 years ago. Today, fast forward, it's like, hmm, you know, who's ox's gourd? If it

01:22:59.280 isn't happening to me, I don't really care. Well, you know, Joe Biden is not going to be the president

01:23:04.420 of the United States forever. And at some point, the tables will turn. And do we really want a

01:23:09.800 Republican administration or even a different Democrat administration having the ability to use

01:23:14.160 the brute force of the Department of Justice to go after journalists for, frankly, trivial

01:23:20.580 matters? And if you look at Tom Cotton's letter, which I've posted on my Twitter profile at PNJABAN,

01:23:28.380 you will see that he is listing out a number of serious questions. The predicates for this search

01:23:33.540 warrant do not appear to comply with, you know, frankly, the circumstances here. And so it will really

01:23:41.420 be interesting to find out. And the court has the ability to order the DOJ to turn over exactly what

01:23:46.900 the DOJ said to a federal judge to warrant invading a journalist's privacy. I can't even imagine or

01:23:55.280 can think of the last time I ever heard of battering rams and 10 FBI agents outside an American

01:24:03.100 journalist's home. This is unprecedented and it's disgusting. Me neither. And I mean, I have to ask you 0.57

01:24:08.220 because, of course, the past two months, less than, we've been dealing with a story about

01:24:13.080 Merrick Garland and his DOJ threatening to prosecute parents who he thinks get out of line at school

01:24:21.120 board meetings, something that was based on a letter from the National School Board Association or whatever

01:24:27.000 the acronym is. Which has been withdrawn. They withdrew it, but he didn't withdraw his threat. He stands by

01:24:33.960 his his threat to go after anybody who commits, quote, violence or threats of violence. But threats

01:24:39.280 of violence are not illegal. They're not illegal. And he has no jurisdiction here. But it's the same

01:24:43.480 guy. I mean, this is it. It's the Department of Justice in both cases going after people they dub

01:24:48.720 enemies of this administration's agenda. Absolutely. And, you know, you said earlier,

01:24:54.880 look at what they're doing to James O'Keefe. In a nominal sense, they're doing it to James O'Keefe.

01:25:00.560 In a very real sense, they're doing it to you and me and every person watching or listening to this

01:25:06.380 broadcast and every American. And what they are doing to us is, number one, depriving us of truthful

01:25:12.220 information about what's happening in our country. Number two, they are silencing journalists who will

01:25:17.640 be cowed by this because not every journalist has the intestinal fortitude to go out and do a live

01:25:23.400 stream after their colleagues have their homes raided by the FBI and, you know, send their lawyers

01:25:29.000 out. They don't have the wherewithal to send their team of lawyers out to talk to the media about what 0.78

01:25:32.640 happened. And they don't have the wherewithal to reach United States representatives to talk about

01:25:37.980 these issues and ask questions. The same thing is happening to these parents. The Merrick Garland

01:25:44.460 may never arrest a single parent, but by making these types of threats, he will intimidate hundreds

01:25:52.040 of thousands of them from coming out to speak at or protest at or make their views heard at school

01:25:58.140 board meetings throughout the United States at a time when it is vitally important that we all

01:26:02.160 exercise that franchise and that right to have our voices heard under the First Amendment. The right to

01:26:07.640 petition your government is a protected right under the First Amendment, just like the right to freedom

01:26:12.620 of the press, freedom of speech and freedom of religion and freedom of association.

01:26:16.840 And the other thing that just to add, you mentioned it earlier that that would chill reporters

01:26:21.280 when they see this is the exposure of your sources. I mean, without your sources, you're dead. You got

01:26:27.220 nothing. Most of these reporters out there doing the beat reporting, and it's already a tough enough

01:26:31.180 job to make it in these days. If you've got sort of the aura of the government's going to seize

01:26:36.080 all of his records and your name's going to be in there, really tough to gather information.

01:26:41.060 But the last question I wanted to ask you, Harmeet, is we know in the school board association thing

01:26:46.000 that it was the White House who ginned this whole thing up with that school board association?

01:26:49.960 They're the ones who were like, let's work together on the letter, then you can send it

01:26:52.940 and then we'll give it off to the DOJ. And the DOJ then took its marching orders,

01:26:57.060 so it appears, from President Biden. And now in this case, you tell me whether it's a coincidence

01:27:02.340 that it all centers around Joe Biden's daughter, who's apparently upset that her diary got stolen.

01:27:09.680 And do you think this does have the White House's fingerprints on it?

01:27:12.740 Well, I don't know that the diary was stolen. I mean, I think it's public record that she has

01:27:18.100 a troubled history with substances like Hunter Biden. And that's sad. And that's something that

01:27:25.040 the family should probably work on. I don't know on what basis. I would find it hard to believe

01:27:32.680 that the Southern District of New York started and moved forward with this investigation without

01:27:38.580 ever running it by main justice. Because main justice's guidelines are that anything involving

01:27:45.440 journalists is treated differently. There's different rules. In fact, in July of this year,

01:27:50.500 Merrick Garland's memo, which is publicly available, it's a three-page memo, it specifically says that

01:27:56.020 we're not going to do this anymore. We're not going to go to journalists' homes and whatever.

01:27:59.480 They have the right to publish stolen material. It even quotes this case, Bartnicki versus

01:28:02.680 Vopper. And so I think that how do multiple protections get overridden by our government?

01:28:11.960 Well, Joe Biden and his White House have the ability to do that and direct the DOJ. They're

01:28:17.620 using the DOJ for political purposes. This is shameful.

01:28:20.680 This is crazy. This is a crazy case. We've got to continue to watch this. Really hope you win your

01:28:27.980 motion to show us what the underlying support was for the government going in there and getting

01:28:33.440 these warrants. That'll be fascinating. And that you get your special master so that it's a third

01:28:36.960 party reviewing James's phone or whatever else they say they get to keep and not the government

01:28:42.380 directly. Harmi, thank you. We really appreciate it. Thank you, Megan. And we will continue the latest

01:28:48.140 Unwritten House tomorrow. Go to youtube.com slash Megan Kelly to see the show. 0.76

01:28:51.640 Thanks for listening to The Megan Kelly Show. No BS, no agenda, and no fear.

The Megyn Kelly Show - November 16, 2021

Rittenhouse Trial Heads to Jury and O'Keefe Raided By FBI, with Robert Barnes, Dave Aronberg, Andrew Branca and Harmeet Dhillon ｜ Ep. 204

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