The Megyn Kelly Show - Trump Indicted AGAIN, Now For January 6, with Andy McCarthy, Julie Kelly, Dave Aronberg, and Mike Davis ｜ Ep. 600

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

00:00:11.800 Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show.

00:00:15.200 Another week, another criminal indictment of former President Donald Trump,

00:00:19.600 and yet again it comes on the heels of bad news for Joe Biden.

00:00:24.620 Three indictments now since March, and we are going to dig into this one today

00:00:28.420 with a whole host of guests to look at all the angles.

00:00:31.260 We have the best guests today, from the legal to the political to the media coverage.

00:00:36.220 Plus, we are going to take a trip down memory lane to see how the media covered the fake electors idea

00:00:41.820 back in 2016 when Hillary Clinton lost.

00:00:47.120 It's absolutely incredible, and we've got the receipts.

00:00:50.600 Later today, I'm going to want to hear from you.

00:00:52.560 So I hope you listen to the show, and I hope you're fired up to call in,

00:00:55.240 because I would love to get some callers on at the end of the show today

00:00:57.740 with how you are reacting and feeling in the wake of yet another indictment

00:01:03.340 against the GOP frontrunner for the Republican nomination.

00:01:06.740 But we begin today with one of the people I turn to whenever there are big legal stories,

00:01:12.260 and that is Andy McCarthy of National Review.

00:01:14.560 He's a former assistant U.S. attorney.

00:01:16.480 He's a best-selling author.

00:01:17.940 He's got his own podcast, which doesn't come out nearly often enough,

00:01:22.000 but usually on Fridays, and he's with us now on what really is a historic day.

00:01:28.460 Andy, great to have you back.

00:01:29.260 How are you doing?

00:01:30.760 Megan, it's a pleasure.

00:01:32.040 I'm doing great, and I'm even greater now.

00:01:36.120 I'm like, thank God for you, because you knew this was coming for a long, long time,

00:01:41.000 and you've been preparing people like me who listen to you avidly for what to expect,

00:01:46.280 and you nailed it.

00:01:48.220 Your overall thoughts, from what I've read, seem to be this is a political hit job.

00:01:53.220 This is not a legal masterpiece, as some of the left are describing it.

00:01:57.700 But you tell me, how do you see what Jack Smith filed with this grand jury last night?

00:02:03.160 It's kind of law tucked into a political sandwich on two ends.

00:02:09.040 On the one end, what's really happening here is they are masquerading an impeachment proceeding,

00:02:18.940 which is a political proceeding, as a criminal justice process.

00:02:23.640 And it doesn't really work, because it's just the criminal process, for a lot of reasons we can talk about,

00:02:29.940 is just not an apt substitute for the impeachment process.

00:02:34.260 And then on the other end, Megan, I think what they're doing is, and this is blatantly political,

00:02:39.980 they're going to try to push this to trial in the run-up to the 2024 election.

00:02:48.900 So the real purpose of it is to do that precise thing,

00:02:53.600 that is to have all of the evidence about this come out while voters are considering their vote.

00:02:59.500 And insidiously on that score, I think the most egregious part of the indictment,

00:03:05.240 and there's a lot that's really not good in this,

00:03:08.780 but the worst part is toward the end of the narrative section,

00:03:14.540 I think it's around page 39 of this 45-page screed,

00:03:20.040 he talks about, Smith alleges,

00:03:23.720 this business about how Trump exploited the violence of the Capitol riot.

00:03:28.320 This is under circumstances where he hasn't charged him with the Capitol riot,

00:03:34.660 nor could he, because they don't have enough evidence to tie Trump to the violence of the day,

00:03:41.960 which is why the Justice Department, in prosecuting, is it 1,100 people, or at least over 1,000 people,

00:03:49.460 they've never accused Trump of that,

00:03:52.940 they've never labeled Trump an unindicted co-conspirator,

00:03:55.740 and they've actually fought back against defendants who tried to shift blame to Trump for their own behavior.

00:04:03.240 And yet, Smith has put that in, and that's obviously his marker in the indictment,

00:04:08.960 so he can argue to this judge that he should get the Capitol riot evidence into this trial,

00:04:14.700 even though he's not charged Trump with it,

00:04:16.720 even though it doesn't advance the proof of the things he actually has charged.

00:04:20.400 And the whole obvious point of it, to me, is to get that in front of the voters right before the election.

00:04:27.060 I know that, and I've heard you say, and I agree, the fact that he told Trump on a Sunday,

00:04:33.140 you've got four days to decide whether you want to appear before this grand jury,

00:04:36.840 showed his urgency in trying to get this thing started.

00:04:40.260 And why is there urgency in trying to get the January 6th federal trial of Trump started before a D.C. jury, Andy?

00:04:47.360 Yeah, well, obviously to get it in front of them before the election,

00:04:53.680 because he thinks he'll not only get the proof out, he'll get a conviction from that jury.

00:04:59.400 I do think, though, Megan, he's probably been too clever by half,

00:05:04.620 because even if he has an Obama judge who may be like the worst draw that he could have gotten from the District of Columbia.

00:05:14.360 Yeah, she's not going to be a Trump fan.

00:05:17.360 No, no.

00:05:18.520 But, you know, even with that, if you're Smith and you really want to get this case tried before the election,

00:05:26.640 you don't indict the Mar-a-Lago case first.

00:05:30.600 Because now I think Trump has a very powerful argument to make to any decent judge

00:05:35.740 that what Smith has done is tactically tried to undermine his right to prepare his defense.

00:05:44.440 Because the Mar-a-Lago case is very complicated.

00:05:47.600 This case is very complicated.

00:05:49.000 And what Smith did here was lock in another case with a May trial date,

00:05:56.200 and now he's going to indict Trump on this thing and tell a judge that we have to get this to trial before November 2024.

00:06:02.400 I think that's a that's a really tough road to hoe. 1.00

00:06:06.540 What would be the normal length from indictment to trial on a case like this?

00:06:11.560 Normally, if you're not talking about Donald Trump, like what's the average lag time between indictment and trial?

00:06:16.840 Well, I would think around eight months if he didn't have anything else going on his dance card,

00:06:23.480 because the case is, you know, the I think there's going to be a lot of pretrial litigation in this case,

00:06:29.900 because I don't believe the counts are, as we say in the biz, I don't think these are cognizable offenses.

00:06:38.500 I think he stretched statutes that Congress enacted that were not meant to address this behavior.

00:06:45.620 And he's done it in the face of the Supreme Court just in May, warning prosecutors that, you know, don't get creative.

00:06:52.480 You can only charge what Congress has actually codified.

00:06:57.100 Well, can we talk about that?

00:06:58.360 Because the cases that the charges against him are mostly fraud counts.

00:07:04.320 And one is conspiracy to defraud the United States.

00:07:07.580 One is conspiracy to obstruct an official proceeding.

00:07:10.300 They're referring to the congressional counting and certification of the votes.

00:07:14.260 One is obstruction of an attempting to obstruct an official proceeding.

00:07:18.860 And one is conspiracy against rights.

00:07:22.940 That's a post-Civil War statute that is meant to stop people who are trying to make it impossible,

00:07:29.220 in this case, for blacks to get to the polling station and so on.

00:07:33.000 He's trying to say that Trump violated that by trying to disenfranchise voters and getting things changed.

00:07:39.540 But at the heart of, you know, the case is this allegation that Trump defrauded people.

00:07:45.400 It was a conspiracy to defraud.

00:07:47.900 And the three specific criminal conspiracies that Trump allegedly perpetrated, as outlined in the indictment, are as follows.

00:07:56.460 There's a conspiracy to defraud the U.S. by using dishonesty, fraud and deceit to impair, obstruct and or defeat the federal government's function, meaning the certification of the vote.

00:08:07.720 They're talking about what happened on January 6th, trying to prevent that from happening.

00:08:12.560 Number two is a conspiracy to corruptly obstruct and impede the January 6th congressional proceeding.

00:08:17.620 They spell it out more specifically about that day.

00:08:20.320 The other one could encompass his attempts prior to that day to stop the vote and then a conspiracy against the right to vote or have one's vote counted, which is what I just said.

00:08:29.640 So they do have to talk about Trump's state of mind and whether he believed genuinely that he won that election.

00:08:39.620 They are positing he knew he lost and and therefore it was dishonest and fraudulent for him to run around telling everybody he didn't lose and that they should behave accordingly.

00:08:50.060 That's a high bar, Andy.

00:08:52.740 Yeah, it sure is.

00:08:53.860 And I think it it goes to what's a pretty interesting legal question and would be very interesting, even if it wasn't so politically fraught, which is what really is intent and proof of intent in a criminal proceeding?

00:09:09.860 Because, you know, you know, you prove intent by objective evidence, generally speaking, meaning, you know, most people you deduce that they they what they meant by what they did.

00:09:27.160 And it's not all that often that you get, you know, you know, there's a lot of criminal cases where the defendant doesn't testify and you don't get actual direct testimony about what the person what was running through the person's mind.

00:09:40.880 What they're going to say here is that there were a number of reliable people who at least the prosecutor thinks was were reliable and the January 6th committee thought were reliable.

00:09:54.180 Of course, the question in a criminal case is what the defendant thought.

00:09:59.100 But they have a lot of people like, you know, Bill Barr and some people in the intelligence community, some other people who were around Trump and in the know who told him that there was not material fraud that could have overturned the election.

00:10:15.240 And I think what Trump is going to come back and say is he was hearing a lot of other things from a lot of other people.

00:10:19.780 He says, in fact, that he intends to relitigate whether there actually was fraud.

00:10:25.020 I think, Megan, frankly, by the end of this, if Smith actually does get this to trial, Trump's going to talk about this on the campaign trail so much that by the end of this exercise, there will be more people in the United States who believe the election was stolen than currently there are.

00:10:40.560 I agree.

00:10:41.140 I think that'll be the upshot of it.

00:10:42.680 Jack Smith's examples of how he knows Trump knew that he lost the election, page seven, Trump knew that these representations were false, are as follows.

00:10:53.700 The vice president told the defendant he'd seen no evidence of outcome determinative fraud.

00:10:57.900 The senior leaders of justice appointed by defendant told the defendant on multiple occasions that various allegations of fraud were unsupported.

00:11:05.140 The director of national intelligence disabused the defendant of the notion that its findings regarding foreign interference would change the outcome of the election.

00:11:12.100 The Department of Homeland Security, Cybersecurity and Infrastructure Security Agency, or CISA, put out a statement that there was no evidence any voting system had been compromised.

00:11:20.720 OK, that's fine.

00:11:21.520 So what they're basically saying is you had to believe them.

00:11:24.780 You must have believed them as opposed to the reality, which we know anecdotally, which is Trump more than likely did not believe any of those people.

00:11:33.220 Well, it appeared to us all that he believed Rudy Giuliani and Sidney Powell, his lawyers who were telling him they had fraudulent examples, be it at voting stations or at Dominion voting machines, and that they were going to release the Kraken.

00:11:50.260 And that's what Trump wanted to hear, wanted to believe.

00:11:52.460 So we're now at the point where you have to believe certain officials over other officials, including your own lawyers, or you're a criminal.

00:12:01.180 Yeah, well, I love the way you framed that, because as you were saying, I'm thinking philosophically, and you could see where this would be just up somebody like Jack Smith's Alley.

00:12:13.560 But what we're talking about is, you know, do you believe the elected official who the public actually elected to vote, or do you believe the administrative state?

00:12:23.360 And as far as a lot of people in this construct are concerned, if the administrative state is spoken, nobody gets to counterman that, even the elected official.

00:12:33.960 But, you know, that's an interesting point for a political science class.

00:12:39.960 But this is a criminal trial.

00:12:41.540 So what matters is what Trump's state of mind was.

00:12:45.360 I think he's going to have a very hard time proving that Trump believed or didn't believe what he was saying.

00:12:55.120 But I think, Megan, even before you get to that, I'm not sure these counts are firm.

00:13:01.640 I think that, you know, there are a lot of legal problems such that even if you assume for argument's sake that Trump knew everything he said was false,

00:13:09.180 which, by the way, would not remove it from being unprotected speech.

00:13:12.740 I know that's an inconvenience point as well.

00:13:15.420 Right.

00:13:15.860 You get to do that.

00:13:17.040 The line you have to stay on the right side of is violence.

00:13:20.300 You know, violence is our bright line.

00:13:22.600 But if it's aggressive speech or obnoxious speech or false speech, and it's in the core of the First Amendment, you know,

00:13:29.060 it's speech that's attached to politics and electoral politics, you get to say things that aren't true.

00:13:34.500 And thank God for it, because everybody in Washington would be, you know, looking at a federal indictment if that weren't true.

00:13:41.220 I remember when Barack Obama told me if I like my plan, I could keep my plan.

00:13:45.020 Are we criminalizing that now?

00:13:46.440 Like he he used that to try to get more votes for his next election.

00:13:50.260 No, we don't criminalize political lies.

00:13:54.000 It's to your point, even if it is a lie and he's not going to be able to prove it was a lie, though.

00:13:58.080 It does.

00:13:58.400 I do wonder whether he's got to prove it was a knowing lie or whether it was just a reckless disregard of the facts, you know, because if you're if it's a defamation case, you can prove reckless disregard.

00:14:09.320 I don't know in a criminal fraud case that you could get away with that as opposed to just proving he truly knew what he was saying was false.

00:14:16.400 I'm not sure, but that'll all be good.

00:14:19.640 Yeah.

00:14:20.260 But the thing is, whether he's whatever his state of mind was, the objective has to be a crime.

00:14:28.980 So you don't even get to you don't even need to get into his state of mind unless you can prove that the thing he did was criminal.

00:14:37.900 And let me jump in on that.

00:14:41.060 Let me jump in.

00:14:41.500 So I get it.

00:14:42.340 Yeah, we're saying you've been saying that in, I think, May, the U.S. Supreme Court issued a ruling or a pair of rulings involved.

00:14:50.600 No, one ruling involving two guys from the Cuomo administration in New York, Andrew Cuomo's administration that speaks directly to this and speaks to these statutes and says when you're trying to it's one thing if you're trying to criminalize speech that leads to a fraud, a financial fraud.

00:15:06.860 Like, hey, give me your thousand dollars and I promise I'll give you this ointment that's going to take away all your problems.

00:15:13.760 You know, the snake oil salesman thing.

00:15:15.260 But it's very different to try to use these traditional federal fraud statutes to criminalize politics.

00:15:22.560 Right.

00:15:23.820 Yeah, that's exactly right.

00:15:25.320 I mean, what what the court.

00:15:27.260 They said, I think, Megan, for these purposes is two things.

00:15:31.880 That are crucial, one to the fraud count and one, a greater point about what the job of prosecutors is on the fraud point.

00:15:41.040 What the court emphatically said, and I should point out to people, this is not a five to four decision.

00:15:46.560 This is basically a unanimous decision by the Supreme Court.

00:15:49.500 It's a very one sided.

00:15:50.500 It's a pair of decisions, but they're very one sided on this point.

00:15:55.560 But what they pointed out is and this is a textual Supreme Court now.

00:15:59.600 Right.

00:15:59.760 So it's a little bit different from the freewheeling days of the mid 20th century.

00:16:04.240 What they say is what fraud meant when it was enacted into federal law in the 1870s is what commonly people think fraud means, which is a scheme to swindle people out of money or tangible property.

00:16:18.120 Period.

00:16:19.120 Now, what happened in the progressive era was that.

00:16:24.140 Lower courts and prosecutors.

00:16:27.280 Applied fraud or stretch fraud to cover deceptive schemes that undermined the government's legitimate functions.

00:16:39.180 So, for example, you know, Mueller prosecuted Paul Manafort on one count of conspiracy to defraud the United States on a theory that because he hadn't registered as a foreign agent, he had undermined the government's ability to have a comprehensive registry of government agents.

00:17:02.380 The inconvenience for Mueller was Congress hadn't enacted a conspiracy statute like that.

00:17:08.020 He's like, no problem.

00:17:09.000 I'll just use fraud.

00:17:10.620 So what the Supreme Court is telling prosecutors in May in these two cases that we're talking about is you can't do that.

00:17:18.480 You know, this whole idea that we can stretch fraud to mean somebody's idea of good government has been undermined is not something that prosecutors have it in their bailiwick to do.

00:17:31.040 What the court has said is that Congress, if it can enact a clear, non-vague statute, can criminalize it.

00:17:38.700 But prosecutors don't get to make it up as you go along because criminal statutes have to be sufficiently clear that a person of average intelligence knows what they forbid.

00:17:49.180 Right. And if you start with these vague concepts, you can't know what the law is.

00:17:54.340 Progressives like that because then the threat of prosecution hovers over everything.

00:17:58.620 And what the court is saying, they don't get to do that.

00:18:00.960 They have to be clear.

00:18:01.880 And that's really had Donald Trump getting the advice of counsel.

00:18:06.800 You can say what you want about the counsel, but getting the advice from Giuliani and who was then Sidney Powell, a respected Third Circuit appellate attorney who had a very good winning record, telling him not to mention the John Eastman letter, telling him this is all available to you.

00:18:22.260 This is the way we can challenge it. This is the fraud that we see. These are the legal claims that we have and that we still think are viable.

00:18:29.260 And even in the statement that Trump put out yesterday on Truth Social, Andy, he says, among other things, referring to himself in the third person, President Trump has always followed the law and the Constitution with advice from many highly accomplished attorneys.

00:18:42.860 So he's going to go in there and say these statutes were not meant to encompass anything I've done.

00:18:49.040 And by the way, I relied throughout on the advice of counsel.

00:18:52.860 And wouldn't this in the normal case just result in motion practice, a motion to dismiss this whole case that that a nonpartisan judge would have to seriously entertain?

00:19:02.980 Megan, I think that's not only true, but what you've just described takes us directly to the second thing you want to talk about, which was the obstruction count, those two counts that you described earlier, because what in effect they do in the obstruction count is try to criminalize a frivolous legal theory.

00:19:27.800 And I've been telling people that when I was a prosecutor, you know, defense lawyers are very creative people.

00:19:33.020 If a frivolous legal theory is a felony now, I could have been died at five of them a day when I was a prosecutor.

00:19:41.160 Right, right. That's half of what lawyers do is offer BS legal theories to their clients. 0.95

00:19:46.640 You must have dealt with better lawyers than I did. I would say it was more than half.

00:19:50.360 But, you know, it's just me. But but I just, you know, look, think of whatever you want to think about.

00:19:56.740 But Eastman's theory, you know, I've I've always thought it was cockamamie, this idea that like the vice president can invalidate votes.

00:20:06.200 On the other hand, when John explains it, it's like one of these things where, you know, he's such he's he's sufficiently persuasive that it's like a five part theory.

00:20:16.380 And you hear the first part, you go, yeah, OK. Second part. Yeah.

00:20:20.680 And by the end of the rainbow, like the vice president is canceling out the election.

00:20:24.720 So, you know, it's some somewhere along the line. It was it was it was for cockta.

00:20:29.440 But in any event. Our legal system has never criminalized bad legal theories.

00:20:39.740 And I think it's just as dangerous, if not more dangerous to start doing that now than it is to to screw around with political speech, which they do elsewhere in this indictment, because people's ability to defend themselves when they're accused of things, whether it's criminally or civilly, depend on lawyers understanding that they're allowed to make fringy and creative legal arguments.

00:21:06.040 Which every now and then turn out to have persuasive force, you know, you would have thought a year ago if I argued that Roe versus Wade was unconstitutional, that was frivolous until it wasn't right.

00:21:18.720 So every now and then, you know, you you have to argue against a precedent and it may be a long established precedent.

00:21:26.040 But if it's wrong, it's wrong. You get to make that argument.

00:21:28.340 And our legal system has always figured that the best way to deal with frivolous legal arguments is to make better legal arguments, not to criminalize them.

00:21:37.740 So I just think going down this path is disastrous.

00:21:41.480 And it's like not even I mean, they are criminalizing the lawyers.

00:21:45.040 Rui Giuliani and Johnny's been appear to be unindicted co-conspirators yet to be indicted.

00:21:49.520 Almost certainly will be. But but the client, the client for listening to the lawyers and enacting the scheme and not for nothing.

00:21:59.520 But we're going to get into this a little later. But this whole let's let's get the electors to sub out, you know, the ones who have been designated and are going to go in there and vote for Biden.

00:22:10.700 Let's sub them out and get new ones who are going to vote for Trump. Let's sub them in.

00:22:14.620 This has been pushed for by Democrats election after election after election, saying the electors need to disregard the actual vote.

00:22:23.600 Do what's right. That's written into the Constitution that you don't have to just follow what the popular vote is.

00:22:29.820 Use your discretion. It was all well and good when George W. Bush was reelected back in 20 2004.

00:22:38.120 It was all well and good when Hillary Clinton lost to Trump in 2016, Andy.

00:22:42.880 But now because it's part of a Trump Trump lawyer scheme, right, like let's let's get the electors to do something else based on the fraud and the shenanigans we're seeing.

00:22:53.280 Now it's this unprecedented thing that has to be criminalized.

00:22:57.280 Jack Smith has got to get involved and we're all just going to pretend that the Democrats didn't push for this time and time again when they were on the losing side.

00:23:04.560 Oh, that's totally right. And, you know, look, if you strip out the Capitol riot, which is very hard to do.

00:23:10.980 Right. But Capitol riot is the prism through which we see all of this.

00:23:14.960 And by the way, Smith is banking on that. Right.

00:23:17.500 The he absolutely wants you to see it that way.

00:23:21.120 That's why he put the stuff about the Capitol riot into the indictment, even though he didn't charge it.

00:23:26.080 But if you could strip it out, what Trump did may be a degree, but in kind, it's no different from what Jamie Raskin did in 2017 when he objected to he got up, even though it was against the rules because he didn't have a senator to sign on with him.

00:23:40.180 So he knew it was lawless. And he claimed that, you know, Trump's electoral votes in in Florida or was it for I think was Florida shouldn't be counted.

00:23:48.300 They should be invalidated, you know, completely lawless. But nobody's filed a felony indictment against Jamie.

00:23:56.160 And he might actually have a state of mind defense, actually listening to to him.

00:24:01.060 But but I think the the other thing about this electors, if we could just like splash a little bit of reality on this for a second, Megan, on January 6, we were all whipped up for this proceeding in front of Congress.

00:24:17.040 There had been a lot said about it in the lead up to it. I argued, you know, I covered pretty closely the South to steal stuff that didn't do my heart any good to say, you know, this is just nonsense.

00:24:28.020 But it was it was nonsense from beginning to end. So we're all watching very closely about what they were going to argue on January 6.

00:24:36.680 But nobody thought there were alternative slates of electors. You know, we've had occasions in American history where you had alternative slates of electors, where a state like in 1960 in Hawaii, where, you know, they originally certified the slate for Nixon and then they certified it for Kennedy.

00:24:56.180 I think that was the that was the order had submitted an alternate set of electors.

00:25:00.080 Right. And but the state had certified it so that there was you know, you could actually legitimately say there were two slates of electors.

00:25:07.920 Nobody thought that these people that Trump had come in and go through that exercise were actually legitimately state certified alternative slates.

00:25:18.340 That was not going to come up in the argument. So if you talk to these electors, what they understood was they were not fake electors.

00:25:26.800 They were contingent electors. So the idea was that if Trump succeeded in getting the legal process, whether in court or through the legislatures to to remand the election back to the disputed states,

00:25:40.680 and then they could talk the legislatures into substituting their vote for Trump for the popular election for Biden, then those electors, if those things all happen, they'd be prepared to stand as a substitute for the for the electors who had been certified by the states.

00:25:57.460 But nobody was arguing on January 6th that those were state certified electors.

00:26:02.740 And in fact, Trump's position wasn't that those electors should be recognized.

00:26:06.500 It was that the election should be remanded back to the state for for further consideration.

00:26:12.860 So I've always thought this thing was the biggest bunch of B.S. in a whole bundle of it that we have, because nobody believed that on January 6th.

00:26:22.240 But it's right at the heart of Jack Smith's complaint. I mean, it's the it's the biggest piece, I would say, of his complaint.

00:26:28.380 Yeah, it reminds me of electors. It reminds it reminds me of Trump during the Russiagate stuff where they kept saying, remember when Trump said to, hey, Russia, I hope you're listening, because if you're listening, I'd like you to.

00:26:41.880 And I mean, at that point in time, the FBI had had Hillary server, you know, for a couple of years. 0.87

00:26:48.700 The thing was offline. There was no way it could have been hacked.

00:26:51.340 But they put it in every indictment like Trump tried to direct Putin to pack the.

00:26:56.200 And I'm sitting there thinking I covered Russia gay pretty carefully. 0.91

00:26:59.440 I thought it was Putin who was giving Trump directions.

00:27:01.980 You guys, I can't even keep up with what what goes on here.

00:27:06.020 Who's the puppet? Who's the puppeteer? All right. Last question.

00:27:08.700 So this judge is going to hate Trump and she is not going to be she's not going to dismiss this case on the papers, I think.

00:27:16.020 And I think you agree. So then it's going to go up to the D.C. Circuit Court of Appeals, which is a respected court.

00:27:20.560 But I don't know that I like his chances there much better.

00:27:23.120 And then it's going to go up to the U.S. Supreme Court where he's going to have a much better chance of finding a reasonable panel.

00:27:30.420 So do you how do you think this ends that the judge says the case stands?

00:27:34.700 The D.C. Circuit says we affirm that. And the Supreme Court says these are bogus charges.

00:27:40.460 They're done. There will be no trial of Donald Trump on any of this.

00:27:45.060 Yeah, I'd be interesting, interested to know what you think on this.

00:27:48.000 I what I've been straining my brain to figure out is, is there a way he can get this up to the appellate courts prior to trial?

00:27:55.960 And I haven't come up with it yet. It's easy to come up with that with Mar-a-Lago because that's all controlled by the Classified Information Procedures Act, which actually has provisions in it for appeal.

00:28:08.180 This doesn't. So you run into the normal presumption that the case has to be tried before the district court to completion before it goes up on appeal.

00:28:17.600 And I think Trump really needs to be able to appeal prior to trial.

00:28:22.460 The dynamic, Megan, if this is as political as I think it is, it could very well be that Jack Smith basically said, I'm going to file these charges no matter how infirm they may be.

00:28:35.060 I'm going to get a D.C. jury. I'm going to get him convicted.

00:28:38.320 And then I'll dare the Supreme Court to reverse it.

00:28:41.100 And that would only be what he's up to if he if they can't get an expedited hearing that happens to three years down the line.

00:28:49.380 He's already it's we're post November 2024. So the whole thing has worked the way they intend.

00:28:54.900 Right. Andy McCarthy, you're brilliant. Thank you so much for everything you write and say.

00:28:58.940 Follow him. Go listen to his podcast. Listen to him at National Review.

00:29:02.820 Read Andy at National Review. You'll be a lot smarter.

00:29:05.220 And you'll thank him and me for referring you. Thank you, my friend.

00:29:08.880 And thanks, Megan. You're the best. Thank you.

00:29:12.420 All right. Up next, our Trump indictment legal dream team is back to break this new one down.

00:29:16.320 And we will play you a little soundbite of these lefties before and after on this issue of the alternate electors.

00:29:27.880 Another indictment, another chance to hear from our lawyers on both sides who've been following this case very closely.

00:29:32.860 Mike Davis is the founder and president of the Article Three Project, which defends constitutionalist judges and the rule of law.

00:29:38.880 Also with us, Dave Ehrenberg. He's the state attorney for Palm Beach County, Florida, where Mar-a-Lago is located.

00:29:45.280 Guys, so great to have you back. Just a little walk down memory lane on these whole, quote unquote, fake electors or alternate electors.

00:29:52.360 We talked about it the last time. This is really at the heart of this indictment that Trump had this whole scheme.

00:29:58.180 He was going to have these, quote, fake electors put in there and he tried to convince others to go along with it.

00:30:04.540 I'll just give you a little a little sampling. Let's take a look at Chris Hayes and Michael Moore back in 2016 after Donald Trump won.

00:30:15.040 There are people who are pushing very hard who think that because of some of the constitutional perils of the emoluments clause, because of the popular vote margin, because of fundamentals, they think threat to liberal democracy, that that that electors should be persuaded and pressured on Monday to to part with what their pledges and vote and vote against Donald Trump.

00:30:35.780 Yes, they absolutely should do that. Absolutely. I believe right now that there are electors.

00:30:40.080 They only need 38 of them who have a conscience or who are worried about a man who won't attend the daily security briefings, who who we now know Russia was trying to help get elected.

00:30:52.140 Just a little sampling more of the celebrities who chimed in on it in SOT 7.

00:30:57.240 Republican members of the Electoral College, this message is for you.

00:31:01.180 The Electoral College was created specifically to prevent an unfit candidate from becoming president.

00:31:07.760 There are 538 members of the Electoral College. You and just 36 other conscientious Republican electors can make a difference.

00:31:15.900 I'm not asking you to vote for Hillary Clinton.

00:31:18.380 I'm not asking you to vote for Hillary Clinton.

00:31:20.540 I'm not asking you to vote for Hillary Clinton.

00:31:22.600 As you know, the Constitution gives electors the right to vote for any eligible person.

00:31:26.780 Any eligible person, no matter which party they belong to.

00:31:30.020 But it should certainly be someone you consider especially competent.

00:31:33.840 By voting your conscience, you and other brave Republican electors can give the House of Representatives the option to select a qualified candidate.

00:31:43.520 What is evident is that Donald Trump lacks more than the qualifications to be president.

00:31:48.380 He lacks the necessary stability.

00:31:50.900 And clearly the respect for the Constitution of our great nation.

00:31:55.300 You have the position.

00:31:56.860 The authority and the opportunity to go down in the books as an American hero.

00:32:03.320 Weird, Mike Davis.

00:32:04.480 I don't remember anybody trying to indict them or anyone around them like Hillary who contested those results.

00:32:11.180 It used to be all the rage to try to sub out an elector or get an elector to switch his vote, notwithstanding what the popular vote was.

00:32:17.660 Yeah, that's exactly right.

00:32:19.880 It's only illegal to object to elections in third world Marxist hell holes. 0.83

00:32:25.400 Otherwise, Democrats would be in prison for objecting to Republican presidential wins in 1968, 2000, 2004 and 2016. 0.99

00:32:35.200 This is a very laughably stupid case by Jack Smith. 0.85

00:32:40.660 It's almost certainly going to get overturned by the Supreme Court like Jack Smith was overturned unanimously when he brought a bogus corruption case against another potential Republican presidential candidate, Bob McDonald. 0.99

00:32:53.660 Back in 2016, but the damage was already done.

00:32:57.040 They eliminated Bob McDonald as a potential presidential candidate.

00:33:00.920 I think they're trying to run the same play here.

00:33:02.820 They don't care if the Supreme Court ultimately reverses this bogus conviction.

00:33:07.720 They want to take out President Trump for November 5th, 2024.

00:33:12.400 Dave, I imagine you disagree.

00:33:14.680 But what do you what was your reaction after having read it?

00:33:16.560 Because you've been honest about the ones you think are lame.

00:33:18.420 You're not so impressed with that New York prosecution, but you think Mar-a-Lago that that's got some teeth.

00:33:22.680 How about this one?

00:33:24.300 Yeah, it's good to be back with you, Megan, and with my friend Mike.

00:33:27.340 I think this one is important because we all saw this unfold live on TV and involves the peaceful transfer of power.

00:33:35.940 But I think as far as the strength of the case, I'd rank it third out of the four behind Mar-a-Lago documents, which to me is a lock solid case.

00:33:46.340 The second I would say we haven't seen yet, but I'm predicting it's going to be the Fulton County case because you have Trump on tape.

00:33:52.500 That's going to be a very strong case under state law.

00:33:56.080 But this one has some issues in that it does give Trump some defenses.

00:34:02.180 And by the way, if I can, can I respond to the clips you showed from Martin Sheen and all those?

00:34:06.800 You were showing, Megan, the faithless elector issue where you have people who are voted in as electors and they are pressured to vote against the person who won the state.

00:34:19.300 Do you know that's actually happened about 165 times as of 2020?

00:34:24.460 I looked it up and as of 2020, 33 states and the District of Columbia have laws that require electors to vote for the candidates for whom they pledged to vote.

00:34:34.320 So it is not unheard of and it is not illegal unless you violate state law with enforcement.

00:34:39.540 So this is different.

00:34:40.240 When you're talking about the fake electors here, you're talking about something that is illegal because they are claiming to be the real electors.

00:34:48.140 It is not illegal to be an alternate elector to say in case the real electors aren't counted, here is an alternate slate.

00:34:55.200 That's what happened in Pennsylvania and I believe in New Mexico.

00:34:58.120 And that's why charges will not be brought in those states.

00:35:00.400 But in a state like Michigan, for example, where they said we met on this date in the state capitol, lie, we are the official electors, lie, here is the state seal.

00:35:11.420 Well, that's a forgery because you can't be sending that to the Congress to pretend that you're the real deal.

00:35:17.940 That's the crime.

00:35:19.420 Go ahead, Mike.

00:35:20.320 What do you make of that?

00:35:20.880 In order to show fraud, you have to show that you intentionally made a false representation that someone else relied upon to their detriment.

00:35:31.840 And no one was duped here.

00:35:33.740 Everyone knows that these electors were not fake electors.

00:35:38.280 They were alternative electors that Trump was going to have go to the electoral college if his claims won in court through the legal process.

00:35:48.760 And so this idea that no one knew what was going on and just random people showed up on January 6th and, you know, apparently tied up the real electors and put them in the trunk.

00:35:58.480 Like, who are you here?

00:36:00.640 Right. That's not what happened.

00:36:01.900 What about that, Dave?

00:36:02.720 Because that's not it's not like anybody got confused when Michigan cast its electoral votes on January 6th.

00:36:08.340 That that didn't happen.

00:36:09.680 Everybody understood exactly who the real electors were.

00:36:11.820 And the vote went off as scheduled.

00:36:13.740 Well, it was part of the whole scheme to have two sets of electors only in those seven swing states, although New Mexico really wasn't a swing state.

00:36:22.840 But in the states where they wanted to overturn the election, they sent him up to Mike Pence.

00:36:27.100 And the goal was to have Mike Pence look at both and say, there's a dispute.

00:36:30.940 Send this back to the states.

00:36:32.660 And so that's part of the scheme.

00:36:34.460 And so when Jack Smith says.

00:36:35.680 Fraud, how is that fraud?

00:36:37.040 It was it's only fraud if Donald Trump did not believe in any way, shape or form that he actually could prove fraud in those in those states.

00:36:43.900 And that goes back to the discussion I had with Andy talking about how how is he going to prove that Trump did not believe that he actually won the case, Dave, won the election?

00:36:53.540 Right. Well, first, it is a conspiracy to obstruct the counting of the votes.

00:36:58.720 When you're trying to tell Mike Pence not to count the votes, to send it back to the states, that's a crime.

00:37:05.820 In fact, how is it a crime if you genuinely believe that you that there was fraud in these states and that this is going to be a travesty of justice for this fraudulent vote to be counted?

00:37:16.460 I agree with you.

00:37:17.240 It it didn't pan out.

00:37:19.080 There was no proof that, you know, any level of fraud would have changed the electoral votes.

00:37:22.940 But we're talking about what's in his head.

00:37:24.420 OK, well, two ways to establish what's in the defendant's head.

00:37:29.480 It's what he says and what he's told.

00:37:31.640 And in this case, he was told by all these Republican officials that his own attorney general.

00:37:37.620 We went through that with Andy, but he was also told by Giuliani and Powell and Eastman that this was three respected lawyers, that this is a legitimate avenue for for contesting the results.

00:37:48.120 Eastman, that was the first he was told by Powell and Team Crazy and Giuliani.

00:37:52.400 And I think that's part of Jackson's case.

00:37:54.400 You're told by legitimate people and you're told by kooks.

00:37:57.780 But but he's not going to make that.

00:37:59.840 He's not going to make that.

00:38:00.720 Those were Trump's lawyers.

00:38:02.120 You can't.

00:38:02.840 But you're going to say Trump should have known that they were nutcases, that they were wrong.

00:38:06.020 Well, in that case, they're going to use Trump's own words in the indictment. 0.95

00:38:09.140 It says that Trump said that Sidney Powell was crazy.

00:38:11.580 So he knew.

00:38:12.580 So that's part of it.

00:38:13.720 Eastman, though, in the meetings, did not say that this is an established legal theory.

00:38:18.260 He admitted that this would get thrown out by the courts.

00:38:21.780 And at best, he said that it's untested.

00:38:24.280 So in that sense, that's the best they could do.

00:38:27.180 But also, I personally don't think, Megan, that you even have to prove that Donald Trump knew the election was legit because there is a process to go through.

00:38:36.220 If you think the election was stolen, you go to the courts, you know, you ask for recounts, you ask for audits.

00:38:40.960 All those things happen.

00:38:42.240 But what you can't do is establish fake electors.

00:38:44.440 You can't go rally your troops or your foot soldiers to go to the Capitol and then then go to the Capitol and pressure Mike Pence.

00:38:51.000 You can't call up local officials and say, find me 11,780 votes.

00:38:55.360 Mike, you tell me why that.

00:38:56.740 Why can't you pressure Mike Pence?

00:38:58.200 What you're what pressure means is your words.

00:39:00.900 You basically said the wrong things to Mike Pence.

00:39:03.600 Why?

00:39:03.860 Why is that illegal?

00:39:04.780 And if you can't propose an alternate set of electors, how did Kennedy get away with doing that back in 1916?

00:39:11.760 I realize it worked out in his favor then, but he didn't know that when he was filing it.

00:39:15.540 You know that like if that's illegal, if that's criminal, how did he get away with it?

00:39:19.860 It's it's not illegal.

00:39:21.200 It's allowed by the Electoral Count Act of 1887.

00:39:24.720 Twisting arms politically is allowed by the First Amendment.

00:39:27.780 It doesn't need to be pretty or, you know, respectable.

00:39:31.580 The First Amendment protects a lot of speech and a lot of conduct, including conduct that many people might might seem unseemly.

00:39:39.780 Right. And the political process is ugly at times.

00:39:42.580 It doesn't mean that you're a felon because you twisted arms politically.

00:39:45.940 Mm hmm. So that's the thing.

00:39:48.240 I mean, I'll I'll I'll just go through some of like what Jack Smith is saying he actually did.

00:39:54.920 Hold on. These are the five acts that equal his unlawful conspiracy.

00:39:59.140 One, he pushed state electors to change their votes and put in illegitimate electors.

00:40:04.600 Number two, we just discussed that.

00:40:06.020 Number two, we recruited fake electors.

00:40:08.380 That's the same different side of the same coin.

00:40:11.340 Number three, he used the DOJ or at least tried to to fuel his lies.

00:40:14.820 He went to the I think it was the deputy AG and tried to convince him to write threatening letters to certain states about, you know, we're seeing all sorts of fraud.

00:40:22.700 You shouldn't sort of certify these results.

00:40:24.860 That's kind of an interesting one to me.

00:40:26.520 Number four, you pressured Pence.

00:40:27.820 That's free speech.

00:40:28.560 If you ask me, number five, you exploited.

00:40:32.760 Oh, this is where he tries to get January 6th right into it.

00:40:34.880 You exploited the disruption caused by the Jan 6th riot to convince members of Congress to further delay the certification.

00:40:40.400 Andy explained how number five is really just an excuse to try to get in all the riot footage and the riot facts because that's an emotional appeal.

00:40:47.380 But one in two are the electors.

00:40:49.780 The four is pressuring Pence.

00:40:51.400 That's free speech.

00:40:52.180 So let's talk about number three, using the DOJ, trying to use the power of the Justice Department to fuel election conspiracy lies.

00:41:00.220 Mike, what's that one about?

00:41:02.480 That's an interesting question.

00:41:03.780 You can have the Justice Department, the Civil Rights Division of the Justice Department, investigate election irregularities around the country.

00:41:13.820 And that's what happens here.

00:41:15.020 Whether that's, you know, people may say, oh, Trump should not have had his Justice Department do it.

00:41:20.040 That's one thing.

00:41:21.240 But it's not criminal for President Trump to have his Justice Department investigate here.

00:41:26.360 And that's the problem.

00:41:27.280 They're taking conduct that is political, but it's not a felony.

00:41:32.160 And they're trying to wrap this all up into a felony.

00:41:34.900 And that's why the Supreme Court is never going to uphold this conviction.

00:41:40.180 Dave, they allege on page 27 of the indictment in late December 2020, Trump attempted to use the Justice Department to make knowingly false claims of election fraud to officials.

00:41:49.460 Again, this goes back to Trump's state of mind.

00:41:51.080 He'll see that as wiggle room.

00:41:52.080 But they say knowingly false claims of election fraud to officials in the targeted states.

00:41:56.300 These are the swing states that he needed to go into his column to win through a formal letter under the acting attorney general signature.

00:42:03.540 This is the proposal that Trump wanted this AG to do, thus giving the defendants lies, the backing of the federal government and attempting to improperly influence the targeted states to replace legitimate Biden electors with the defendants.

00:42:17.320 Now, let me just ask you back to this one, Dave, is this illegal that he you know, let's say he did go to pressure the AG or the the assistant AG at the time.

00:42:27.820 And this we understand he did because the the assistant AG said, I'm not doing that.

00:42:33.200 Is it illegal if Trump genuinely believed he should do it, that there had been fraud, that he was the rightful winner?

00:42:39.780 I mean, doesn't this once again come back to Trump's state of mind because he, according to his own indictment, has to prove that Trump made a knowingly false claim of fraudulent behavior and so on?

00:42:49.980 Yeah, Meg, I think the problem for Trump is a statement in the indictment that says, hey, just say there was fraud and leave the rest to me and the congressional Republicans.

00:42:59.980 That's going to come back to bite him.

00:43:01.780 Now, if that was it and he can get on the stand and testify that he honestly believed the election was stolen, he'd have a shot.

00:43:09.720 But is he really going to testify?

00:43:11.320 I think Jack Smith's got him a trick bag here because to establish a state of mind defense, he's got to take the stand.

00:43:16.860 His other possible defense is advice of counsel.

00:43:19.540 He was relying on lawyers, whether it's Eastman or Sidney Powell.

00:43:23.200 He's got to take the stand for that one, too.

00:43:24.920 So that's a problem.

00:43:25.980 But I do think that you and Mike have a point in that it will be harder, I think, to prosecute Trump for the DOJ matter than other things because the letter was never sent.

00:43:37.480 So the conspiracy was never effectuated.

00:43:39.660 And that's a defense that, look, Trump ultimately rejected the letter.

00:43:43.680 I think Jeff Clark is toast.

00:43:45.400 I mean, he's the one who drafted the letter.

00:43:47.060 He put lies in there.

00:43:48.140 He's ready to go.

00:43:49.540 Jeff Clark is the low-level environmental lawyer in there who was elevated by Trump because he went to Trump behind the backs of his superiors to say, hey, name me.

00:44:01.360 Yeah, DOJ.

00:44:02.360 Name me acting AG.

00:44:03.540 And I will send this letter to the state saying you've got to redo it because there's fraud in the election.

00:44:10.240 And so his superiors found out about it and said, stop going around our backs.

00:44:14.240 Stop talking to the boss.

00:44:16.120 And he.

00:44:17.480 Yeah.

00:44:17.860 And we're not about to be fired by an underling.

00:44:21.480 That's actually in the indictment.

00:44:22.540 From the environmental group.

00:44:25.400 In fact, Eric Hirschman said, hey, you know what?

00:44:29.360 Go back to where you belong.

00:44:30.700 And if there's an oil spill, we'll call you.

00:44:33.200 So he's now unindicted co-conspirator number four.

00:44:36.620 Just as a quick FYI, are these unindicted co-conspirators like Giuliani, Powell, Clark and others?

00:44:43.220 Eastman.

00:44:43.700 We don't know who the last one is.

00:44:45.460 Are they going to be indicted co-conspirators soon, do we think, Dave?

00:44:48.380 Yes, I think they will all be indicted.

00:44:52.280 The reason why Jack Smith didn't indict him now is that he wants this thing expedited.

00:44:56.080 He knows that if they added the other six, it would slow things down.

00:44:59.700 He wants this case tried before the election.

00:45:02.440 My big question is, Megan, and to Mike, I don't know who conspirator number six is.

00:45:06.600 On my Twitter page, I asked the folks to say, who is it?

00:45:09.980 Because I still don't know whether it's Roger Stone or Steve Bannon or even Boris Epstein.

00:45:14.240 I don't know.

00:45:16.160 Yeah, I don't know either.

00:45:17.340 I mean, we'll find out.

00:45:18.940 But, Mike, the other thing that the left is loving about the indictment is there's an allegation

00:45:23.600 for the first time, I think this is new, that Trump said to Pence, and very clearly Pence

00:45:28.480 cooperated with this indictment and with Jack Smith.

00:45:31.060 That's if one thing's obvious from this indictment, it's that he makes a hero out of Mike Smith

00:45:35.460 in this in these papers that Trump allegedly said to Mike Pence, you're too honest.

00:45:40.700 You're too honest to the vice president.

00:45:43.380 I don't know.

00:45:44.140 What do you make of that statement?

00:45:44.900 I think that Jack Smith is, it shows that Jack Smith's indictment is very political.

00:45:51.820 He's trying to divide and conquer the Republican Party here.

00:45:55.360 He's meddling in the Republican presidential primary.

00:45:59.200 He's meddling in the general election.

00:46:01.240 And let me just jump in and defend Jeff Clark really quickly here.

00:46:04.040 He was the assistant attorney general in charge of a litigating division at the Justice Department,

00:46:10.820 a Senate-confirmed official, a very senior official.

00:46:14.680 And, you know, he works for the attorney general.

00:46:17.520 He also works for the president of the United States.

00:46:20.260 And so as a lawyer working for the president of the United States, if he asks you to look

00:46:24.680 into a legal matter, you do it.

00:46:26.120 And that's what you're supposed to do as a political appointee and a and an attorney.

00:46:32.280 And I would say that any allegation that Jeff Clark did anything illegal here is just it's

00:46:39.240 not going to bear fruit when it when this trial is over.

00:46:41.280 Well, it's pretty extraordinary to see what we've got now for lawyers who are about to

00:46:46.420 be indicted for lawyers who, you know, as Andy was pointing out, came up with novel legal

00:46:51.440 theories and, you know, even fringy legal theories.

00:46:54.400 But we're all in a lot of trouble, guys, if the lawyers get indicted now for fringy legal

00:47:00.220 theories to try to get around, you know, the thorny issues that they're trying to navigate

00:47:07.140 for the first time.

00:47:08.020 I mean, it's just this is this the whole thing makes me very uncomfortable.

00:47:12.320 I mean, certainly they're indicting a former president and the leading GOP contender.

00:47:15.340 But all of his lawyers who are trying to find novel ways forward for the guy, that's that's

00:47:20.260 a political matter.

00:47:21.560 That's for us to say Trump behaved badly. 1.00

00:47:24.020 The lawyers suck. 1.00

00:47:24.820 I'm definitely not going to hire Sidney Powell. 0.98

00:47:26.940 But is this really a matter for a jury and what a jury it's going to be?

00:47:30.660 It's not going to be a Trump loving one.

00:47:32.180 Mike and Dave, Dave, stay with me for just a bit more after this break.

00:47:35.480 We'll squeeze one in and then come right back.

00:47:38.020 And don't forget, Julie Kelly's coming up, too.

00:47:40.260 She's like there's nobody better on January 6th issues.

00:47:42.720 And she's got a lot of thoughts on this judge.

00:47:44.660 You can find the Megyn Kelly show live on Sirius XM Triumph Channel Channel 111 every weekday

00:47:49.300 at noon east full video show at YouTube dot com slash Megyn Kelly or the podcast for free

00:47:54.620 wherever you get your podcast.

00:47:56.420 Now that more than 600 shows in our archives, check it out.

00:47:59.480 Let's hear from Jack Smith and a bit of what he sounded like yesterday in his brief statement

00:48:06.980 announcing the indictment.

00:48:08.220 The attack on our nation's capital on January 6th, 2021 was an unprecedented assault

00:48:15.240 on the seat of American democracy.

00:48:18.180 As described in the indictment, it was fueled by lies.

00:48:22.840 Lies by the defendant targeted at obstructing a bedrock function of the U.S. government,

00:48:29.260 the nation's process of collecting, counting, and certifying the results of the presidential election.

00:48:35.160 Since the attack on our capital, the Department of Justice has remained committed to ensuring

00:48:40.640 accountability for those criminally responsible for what happened that day.

00:48:45.740 This case is brought consistent with that commitment.

00:48:49.260 And our investigation of other individuals continues.

00:48:53.060 In this case, my office will seek a speedy trial and must emphasize that the indictment is

00:48:59.060 only an allegation and that the defendant must be presumed innocent until proven guilty and

00:49:05.160 justified.

00:49:05.660 Mike, what did you make of the full statement from Jack Smith and his push for, quote, a speedy

00:49:11.280 trial?

00:49:12.080 I didn't see that full statement in the indictment.

00:49:15.440 What Jack Smith is trying to do is take a protest that was permitted by the National Park

00:49:21.500 Service on January 6th.

00:49:23.020 It got out of control.

00:49:24.580 It turned into a riot.

00:49:26.120 And Jack Smith is trying to turn that into some grand conspiracy that that he's put in

00:49:33.520 this indictment that is not going to hold up in court.

00:49:36.440 And the fact that Jack Smith waited 31 months and Merrick Garland waited 31 months to bring

00:49:42.220 these charges.

00:49:42.920 And now all of a sudden they want a speedy trial before the November 2024 election shows

00:49:48.280 what this is all about, which is election interference.

00:49:51.260 Hmm, Dave, he he tries to get January 6th in this indictment so that he can show the videotapes

00:49:58.040 and he can blame the riot on Trump.

00:49:59.880 And this is what he says about it.

00:50:01.520 Only really the final few pages of the indictment are even about January 6th.

00:50:04.560 And he writes beginning at 1156 a.m.

00:50:07.060 that day, the defendant made multiple knowing false statements integral to his criminal plans

00:50:12.160 to defeat the federal government function, obstruct the certification and interfere with

00:50:16.940 others' right to vote and have their votes counted.

00:50:19.840 The defendant repeated false claims of election fraud.

00:50:23.100 He's talking about a speech.

00:50:24.540 He repeated false claims of election fraud.

00:50:27.700 How is it unlawful for Trump to say what he wants to the crowd of people that was out

00:50:30.960 there?

00:50:31.420 He gave false hope, Dave, that the vice president might change the election outcome.

00:50:37.140 What the hell are we criminalizing here?

00:50:39.160 And directed the crowd in front of him to go to the Capitol as a means to obstruct the certification.

00:50:43.800 He did nothing of the sort.

00:50:45.300 He did not say that.

00:50:46.300 I mean, he's taken some real liberties here, Jack Smith, and I would argue undermining his

00:50:51.240 credibility with this paragraph.

00:50:52.600 What do you think?

00:50:54.500 Well, I think it's important to know he did not charge insurrection or incitement of a

00:50:58.640 riot or seditious conspiracy, because that would really run into serious First Amendment

00:51:02.880 issues.

00:51:03.780 And I think he knew it would be very difficult to prove that.

00:51:07.000 But you can still charge under obstruction of an official proceeding because hundreds of

00:51:11.540 the actual rioters were charged with that.

00:51:13.280 So what Jack Smith is doing is saying, hey, if hundreds of, in fact, over a thousand people

00:51:17.840 have been charged and hundreds of them have been charged with obstruction, then the leaders

00:51:21.700 can be charged, too.

00:51:22.980 You don't have to be in the Capitol that day.

00:51:25.300 And I agree with you that his words are well.

00:51:28.840 If Trump said you go over to that Capitol and you stop that certification right now, you go

00:51:34.560 in there and you make sure that doesn't happen.

00:51:36.460 You were good.

00:51:37.100 But what he actually said to that speech does not get to Trump directed it.

00:51:41.480 Trump.

00:51:42.660 Where's the line?

00:51:43.980 Directed the crowd to go to the Capitol as a means to obstruct the certification and pressure

00:51:48.600 like that.

00:51:49.200 That's too much of a reach.

00:51:51.360 Megan, it's more than his words at the rally.

00:51:55.480 Jack Smith quotes him in the White House refusing to call off the dogs saying, and there's some

00:52:02.400 new information that we weren't aware of before, where he looked in glee with this like he was

00:52:07.160 approving of this and refused to do his duty to say, hey, guys, leave.

00:52:11.860 Stop doing this.

00:52:12.640 It's like a political matter, Dave.

00:52:14.760 That's a political matter.

00:52:16.280 He sat there.

00:52:17.160 He did nothing.

00:52:18.000 Why would you put him back in the Oval Office, members of the American electorate?

00:52:22.360 That's not it was criminal for you to sit there and watch this.

00:52:26.700 How?

00:52:27.020 That's not a crime.

00:52:28.840 Well, I think it is a crime to obstruct an official proceeding, though.

00:52:32.120 And when you when you unleash your your troops onto the Capitol and, you know, you can

00:52:37.280 quarrel to protest, didn't I just hear three years of that in connection with BLM?

00:52:42.580 You're allowed to protest.

00:52:43.820 But when you see them committing violence and you refuse to call them up and you act

00:52:48.640 approvingly of them, yeah, that'll get you.

00:52:51.060 He is not their daddy.

00:52:52.980 No, I don't believe you.

00:52:54.360 You know, this isn't true.

00:52:55.620 You're just arguing.

00:52:56.380 When you come up, when you combine it.

00:52:57.980 But Megan, but Megan, when you combine all that with the plot, with fake electors, with

00:53:03.720 the DOJ, with calling local officials, when you combine all that together, that's what

00:53:08.460 gets you obstruction of an official proceeding and conspiracy to defraud the United States

00:53:12.220 and the other crime of conspiracy to deprive people of their voting rights.

00:53:16.880 I I do not believe for one second that Trump was upset by what he saw on January 6th.

00:53:24.240 I will concede that point.

00:53:26.300 You know, I bet he was sitting there in the Oval like, good.

00:53:29.540 You know, I that's what I believe, because he didn't have any use for, you know, the Democrats

00:53:33.840 and what they were doing.

00:53:34.660 He did think the election was fake and fraudulent.

00:53:37.120 I believe that, too.

00:53:38.860 But that doesn't make it a crime.

00:53:40.380 That's a matter for me to decide as a voter.

00:53:42.100 Would I put him back in the Oval?

00:53:43.520 That Jack Smith has no business.

00:53:45.340 Right.

00:53:45.480 This is free speech for he repeated false.

00:53:49.020 Can you defend he gave false hope that the vice president might change the election outcome?

00:53:54.960 Can you actually defend that as a crime?

00:53:58.020 Well, I'm not going to talk about the specific false hope because I'm with you because I don't

00:54:02.360 think that is.

00:54:03.060 Well, I don't think that's that gets you there, but I think the other stuff does.

00:54:07.740 I do think plus the fact that after he reacted with glee that the capital is being taken over

00:54:12.020 and the proceedings were delayed, he then worked the phones, he and his folks to try

00:54:16.180 to change the vote, taking advantage of the delay.

00:54:19.000 When you instigate the delay, when you approve of the delay and when you take advantage of

00:54:22.360 the delay, you can be charged with the delay obstruction of an official proceeding.

00:54:26.920 This thing is going to fall apart.

00:54:28.380 What do you make of that theory that this judge, Obama appointed judge, is not going

00:54:33.300 to kick it on the papers?

00:54:35.000 You know, they'll try get a motion to dismiss this thing.

00:54:37.240 She won't grant it.

00:54:38.680 And then it would go up to the D.C.

00:54:39.840 Circuit Court of Appeals.

00:54:41.760 And I don't know how they'll rule, but then it will wind up before a conservative leaning

00:54:46.620 U.S. Supreme Court.

00:54:47.500 And it's not just leaning.

00:54:48.280 It's six three.

00:54:49.000 So how do you like Trump's chances once it goes up in terms of motion practice to get

00:54:53.180 the whole thing kicked?

00:54:53.840 So far, Trump has failed on everything before the Supreme Court, whether it's to shield his

00:54:59.760 taxes, whether it's to shield the documents of the January 6th committee.

00:55:04.800 And I don't see-

00:55:05.840 Can I just say, Dave, I agree with that.

00:55:07.920 But I think the courts had a legitimate-

00:55:10.760 I mean, I think they decided those correctly.

00:55:13.200 But this is a different story.

00:55:15.140 These are tenuous legal claims.

00:55:17.400 And I think they're probably going to decide this correctly, too, and say this is a bridge

00:55:21.640 too far.

00:55:22.060 Well, when it comes to obstruction of an official proceeding, the courts have recognized you

00:55:26.680 can charge the rioters with that.

00:55:29.060 So that's why I think the Supreme Court is going to say, yeah, you don't have to actually

00:55:31.780 be there, especially because people who weren't there have been charged with that crime.

00:55:35.420 The Proud Boys and Oath Keepers who weren't at the Capitol have been charged with that

00:55:39.420 crime and found guilty.

00:55:40.560 So I don't see the Supreme Court overruling a court's decision to charge Trump with that

00:55:46.020 crime.

00:55:46.280 And as far as conspiracy to defraud the United States, I heard the conversation you had with

00:55:50.000 Andy McCarthy.

00:55:50.600 It wasn't just Paul Manafort that was successfully charged with that crime.

00:55:54.920 Mueller also charged those Russian trolls who came in to try to muck up the election.

00:56:00.360 He charged them with that same crime, although they hit in Russia, so it was never put on

00:56:04.400 trial.

00:56:04.820 So there is precedent for using that crime beyond the economic scope.

00:56:09.780 You can use it for something like this.

00:56:11.320 So I don't see this being overturned by the Supreme Court if he's found guilty or even before

00:56:16.960 a case actually happens.

00:56:18.540 All right.

00:56:19.320 Now, a couple more.

00:56:19.980 Mike had to run.

00:56:20.700 So I'm going to finish up with you, Dave.

00:56:22.140 A couple of quick legal questions before I bring in Julie Kelly. 1.00

00:56:24.580 And she's the perfect person to ask about the Proud Boys thing and seditious conspiracy.

00:56:27.440 She's been all over that stuff.

00:56:29.160 But as a legal matter, let's just get down to brass tacks.

00:56:32.380 If he if he were to have a trial prior to November 2024 and if he were to be convicted, he could

00:56:41.420 still he could still run.

00:56:43.340 He could still run for the presidency.

00:56:45.140 Could he not?

00:56:45.540 He can he can run from a jail cell if he has to.

00:56:50.000 Lyndon LaRouche ran for president many times from a jail cell.

00:56:52.660 So did Eugene Debs.

00:56:54.360 So there is precedent for that.

00:56:56.760 The I think that the mistake that the DOJ made was to delay this far.

00:57:02.960 I don't blame Jack Smith.

00:57:03.880 He came in right in and just lit a fire under the Department of Justice.

00:57:07.400 But Merrick Garland, I think, was a bit timid in going after the former president.

00:57:12.040 And so he allows Donald Trump to now say, hey, you waited this whole time until I became

00:57:17.140 a presidential candidate.

00:57:18.580 And I think the DOJ gave him that argument by waiting this long.

00:57:22.100 I do think, Megan, that this case will be tried before the documents case.

00:57:26.760 The documents case, I think, is going to get delayed till after the election.

00:57:29.780 I think that's the strongest case.

00:57:30.940 And you and I agree on that.

00:57:32.340 This case is not as strong.

00:57:33.980 But I think they've got a much more favorable jury panel in Washington, D.C., where Trump

00:57:37.720 got only five percent of the vote.

00:57:39.040 So if you're moving to dismiss because I never practiced criminal law.

00:57:42.440 So if you're if you move to dismiss an indictment based on it, it failed to say state of crime,

00:57:46.680 you know, that's all this is is defensible on legal grounds that you wouldn't put in front

00:57:50.100 of a jury, but you want to judge to decide they'll do that right away.

00:57:54.120 Right.

00:57:54.520 And like, will they will they allow that whole motion practice to play out before a jury ever

00:57:58.980 sees this case, Dave, or how will that go down?

00:58:02.720 Trump will and his lawyers will challenge the sufficiency of the indictment on the the fact

00:58:08.640 that he'll he'll say First Amendment grounds and these charges should not be applied to

00:58:13.140 us and it will be denied by the court.

00:58:15.800 It'll go up to the D.C.

00:58:17.780 appellate court.

00:58:18.380 They'll deny it.

00:58:19.060 And then it could go to the Supreme Court.

00:58:20.340 They could make a ruling on it before.

00:58:22.240 But, you know, generally what happens is you go to the trial, you get convicted and then

00:58:27.560 you appeal it all the way up.

00:58:29.820 I think in this case, because it's an issue of real importance to the country that the Supreme

00:58:34.840 Court could actually hear this.

00:58:37.140 I don't think it's going to establish many delays, though, because I think they realize

00:58:42.160 that this thing next needs to get done before the election.

00:58:44.860 Jack Smith didn't even indict the other six people because he wants this before the election.

00:58:49.720 So I think that they will hear the sufficiency of the legal case before he gets put on trial.

00:58:55.700 Now, three of those judges, justices were appointed by Trump and the three conservatives who are

00:59:02.100 not appointed by Trump are Alito, Thomas and Roberts.

00:59:07.220 Roberts, who knows?

00:59:08.120 But Alito, Thomas, plus the three Trump appointed justices.

00:59:11.540 I mean, don't you think he's got a better than average chance of getting them to say this case

00:59:16.920 is B.S.?

00:59:17.700 Well, he lost every single case in the courts relating to the election fraud, and he lost

00:59:23.900 before the Supreme Court pretty quickly.

00:59:26.440 I think that this is heading to a seven to two opinion where the two justices will side

00:59:31.360 with Trump, will be Thomas and Alito.

00:59:34.200 Trump's three justices he appointed to the Supreme Court have never ruled for him on any

00:59:38.000 of these things, whether it's his taxes, whether it's sending documents to the January 6th

00:59:41.640 committee, or whether it's election stuff.

00:59:44.360 Well, that is an interesting prediction.

00:59:45.700 My goodness.

00:59:48.080 OK, so is there and just a little final thing, if he's convicted, I agree with you, this case

00:59:53.020 is going to get tried before the Mar-a-Lago documents case, and it's probably going to

00:59:57.060 happen before November 2024.

00:59:58.920 So if he were to be convicted by this D.C. jury, which is not going to like him under

01:00:02.880 this D.C. judge who probably doesn't like him, does he go right to prison?

01:00:07.300 Does he get to stay out of prison?

01:00:08.740 Because this is a we're talking about 20 plus years potentially on these charges.

01:00:13.100 What happens then if he gets convicted?

01:00:14.740 You know, I thought Steve Bannon would go right to jail when he was convicted, but he

01:00:20.660 was given another year and a half to appeal.

01:00:23.300 So I can envision that Trump gets convicted and then stays out on appeal and then the election

01:00:28.380 happens and then we are in uncharted territory.

01:00:31.860 What happens then?

01:00:32.800 Does he actually go to prison after he's if he's elected president?

01:00:35.620 I can tell you if he's not elected president, he'll go to the Huskow or at least get house 0.95

01:00:39.920 arrest.

01:00:40.320 But this is so impossible to predict because we've never been through this before, Megan.

01:00:45.560 Oh, my God.

01:00:46.980 So this is alarming.

01:00:48.840 Dave, always appreciate hearing from you.

01:00:50.760 Thanks for coming on.

01:00:51.640 And Mike Davis, thanks to you as well.

01:00:53.640 He had a run, but appreciate both of these guys with honest analysis.

01:00:56.620 We were just joking in the break that Dave was just on MSNBC and Mike was just on Fox

01:01:01.420 and both of them come on together only here on the Megan Kelly show because we want to bring

01:01:04.620 you both sides.

01:01:05.580 It's a pleasure to talk to you, my friend.

01:01:07.520 Thank you, Megan.

01:01:08.080 Coming up right after this break, Julie Kelly.

01:01:14.160 I am going to get to Julie Kelly.

01:01:15.880 She is truly I mean, I think she's the most knowledgeable person in America when it comes

01:01:20.740 to January 6th.

01:01:22.360 What's being done to the defendants, those thousand plus who have already been charged

01:01:25.900 the thousand plus that the DOJ is bragging it's yet to charge.

01:01:29.660 In fact, she wrote a whole book on it.

01:01:30.940 Um, she writes declassified with Julie Kelly on Substack and is the author of January 6th.

01:01:39.160 Julie, great to have you back on the program.

01:01:41.400 Um, so I know you were listening to Dave Ehrenberg.

01:01:44.360 What was your reaction to what he was saying?

01:01:46.120 Well, we could spend the entire our entire segment here unpacking what Dave said.

01:01:52.400 But I will tell you, first of all, I don't think that this trial that this case will go

01:01:58.460 to trial before the election for a number of reasons, which is Megan, this is not going

01:02:04.400 to be the first and only indictment in this case.

01:02:07.620 In fact, there's recording today that the DC grand jury is already looking at handing down

01:02:13.160 indictments for those six unindicted co-conspirators who are listed in Jack Smith's indictment.

01:02:19.200 As you said, I've been following January 6th now for two and a half years.

01:02:22.300 This is what they do.

01:02:23.860 And you know, this is an attorney.

01:02:25.500 And we just saw this happen in the classified documents case last week, where Jack Smith

01:02:29.980 brought a superseding indictment.

01:02:31.920 He added charges to Donald Trump.

01:02:34.020 He added a co-defendant.

01:02:35.620 And what that does is it sets back the Speedy Trial Act clock.

01:02:41.720 So I would suspect, Megan, that there will be at least two or three superseding indictments

01:02:46.900 in this case.

01:02:48.120 And eventually, Jack Smith, I believe, will bring seditious conspiracy charges against

01:02:53.640 Donald Trump, those six conspirators and possibly others as well.

01:02:58.360 But why would he do anything, given that this is likely political?

01:03:01.960 I believe that.

01:03:02.680 I know you believe that.

01:03:03.560 Why would he do anything to slow down the trial, which is much better for him if it happens

01:03:07.760 right before the election and all the bad news is on the front page of the paper every

01:03:12.680 day?

01:03:13.360 And ideally, a conviction in his mind would be, you know, on the paper before the election.

01:03:19.700 Well, that's a really good question.

01:03:21.320 And I think because they want for both of these cases and then, of course, what's coming in

01:03:26.380 Fulton County, Georgia, it will be death by a thousand cuts.

01:03:29.760 So it will be to override any negative coverage or anything happening with the Biden presidential

01:03:37.060 campaign.

01:03:38.460 This will be the focus of the media.

01:03:41.060 And once the trial happens, you know, then there will be appeals, et cetera.

01:03:45.500 But as they continue to add charges, continue to add defendants, not just in the January 6th

01:03:51.400 case, but also classified documents, this sucks out all the oxygen.

01:03:55.660 A trial would be very dramatic.

01:03:58.440 It will be extremely problematic for Donald Trump in Washington, D.C., as you just pointed

01:04:03.300 out, not just the biased jury pool.

01:04:06.020 But I'll tell you, you'd be hard pressed to find a worse judge for Donald Trump than

01:04:10.420 Judge Tanya Chutkin.

01:04:11.440 I sat in one of her I sat in a court hearing, sentencing hearing with her, the open contempt

01:04:18.040 she has for Donald Trump in January 6th and Trump supporters.

01:04:22.500 I felt it was just oozing out of her in this hearing.

01:04:26.100 And she sentenced a man and she was mad that he went to trial on four misdemeanors. 0.55

01:04:30.920 And she scolded him for going to trial instead of taking a plea because she has like the most

01:04:36.020 plea arrangements because no one wants to go before her in court.

01:04:40.540 And he had the audacity to go to trial.

01:04:43.060 Of course, he was convicted and she sentenced him to a year in prison on four misdemeanors.

01:04:47.420 He was inside the Capitol for 11 minutes, Megan.

01:04:50.600 So this is what Donald Trump is going up against, not just Jack Smith, but now Tanya Chutkin as

01:04:56.040 the judge is really bad news for Team Trump.

01:04:58.840 D.C. went 92 percent plus for Joe Biden in the last election, 2020, only five plus percent

01:05:05.680 for Donald Trump.

01:05:06.780 Five.

01:05:07.180 I mean, he's going to be looking at a jury pool that's likely still going to be

01:05:10.500 wearing masks that read vote.

01:05:12.600 I mean, they are terrifying.

01:05:16.460 And a lot of people saying, well, you know, you move for a change of venue, saying I can't

01:05:20.860 possibly get a fair trial here.

01:05:22.600 You've been following that very closely, too.

01:05:24.280 How's that likely to go?

01:05:26.400 Every single judge has denied every change of venue motion in every case.

01:05:31.060 And Megan, this includes high profile cases like the Proud Boys and the Oath Keepers, who

01:05:36.800 think about this as they were getting nationalized, national televised attention from the January

01:05:42.960 6th committee.

01:05:44.560 Basically, Congress blaming them for what happened on January 6th in televised nighttime hearings.

01:05:51.260 They're undergoing jury selection in those trials.

01:05:55.740 And even then, especially the Proud Boys, because the J6 committee really focused in on the

01:06:01.220 Proud Boys, when the defense team brought that to Judge Tim Kelly, a Trump-appointed judge,

01:06:06.620 by the way, he said that there was no conflict.

01:06:10.160 The J6 committee report dropped, I think it was the day after jury selection began in the

01:06:16.460 Proud Boys case.

01:06:17.260 I mean, they just are nothing more than a rubber stamp for this DOJ.

01:06:23.220 And so that's why it'll be interesting to see how this proceeds.

01:06:28.560 Of course, he will file a change of venue motion.

01:06:30.800 He might have a stronger case.

01:06:32.400 She will deny it, of course.

01:06:34.200 But if he appeals it, not just based on the jury pool, but based on her own comments in

01:06:40.240 sentencing hearings, and especially to your point, that ruling denying him executive privilege,

01:06:46.960 in the January 6th committee, and forcing him to produce all of his documents.

01:06:53.420 It just looks so bad for Trump.

01:06:55.740 It looks so bad for him, irrespective of the merits.

01:06:59.220 You and I both know this judge is going to be against him.

01:07:02.440 The jury is going to be against him.

01:07:03.980 And if he doesn't get a favorable ruling from the D.C. Circuit Court of Appeals or the Supreme

01:07:09.460 Court on the motion practice, he's looking at an almost certain conviction on a charge or

01:07:15.860 charge is that could put him in prison for the rest of his life.

01:07:20.560 Megan, one thing that Dave was talking about, and I think it's important to address, is this

01:07:25.060 obstruction of an official preceding felony, this 1512C2 that is a post-Enron statue that

01:07:32.440 deals with tampering with evidence and witnesses.

01:07:35.320 Now, this is the first time in 20 years that it's been applied in this manner, but over 300

01:07:42.560 individuals have been charged with it.

01:07:44.660 There have been numerous convictions, but it did go to the appellate court.

01:07:49.120 Actually, there was only one D.C. judge who dismissed this count against a few defendants.

01:07:54.020 And after he did it the second time, DOJ appealed this judge's dismissal of the obstruction of an

01:08:00.140 official preceding count.

01:08:01.680 It went to the appellate court, a three-judge panel, in what one judge called a splintered

01:08:07.400 ruling.

01:08:07.900 It certainly was not clear at all.

01:08:10.480 You had Judge Florence Pan, who was a Biden-appointed judge.

01:08:13.780 She wrote what was basically the majority opinion, saying that, yes, it does apply.

01:08:18.880 Another judge was kind of in between.

01:08:21.920 And then George Gregory Katzis, who was a Trump-appointed judge, outright dissented.

01:08:27.020 The full appellate court refused to hold another hearing.

01:08:31.420 And now two counsels for defendants, J6 defendants, have filed a petition before the Supreme Court

01:08:39.700 to look at this.

01:08:41.180 So this important charge obstruction, which has nothing to do with interrupting a congressional

01:08:47.560 proceeding.

01:08:48.340 I mean, Megan, that's sort of what people view it as a right, as long as it's not done violently.

01:08:54.180 A lot of people were charged after Congress adjourned their joint session that day anyway.

01:09:01.040 It's been weaponized.

01:09:02.300 It's been exploited in this case.

01:09:04.860 And it will be at the Supreme Court.

01:09:06.700 The timing of that, if they do grant cert in that case, the timing of that will be very

01:09:12.880 interesting, not just for Donald Trump's case, but of course, many defendants who have

01:09:17.780 already been convicted.

01:09:18.580 What you're saying is that we've got four counts to relate to a conspiracy to obstruct

01:09:24.580 an official proceeding or obstruction of an official proceeding.

01:09:28.880 And so what you're saying is right now, some of the existing J6 defendants have an appeal.

01:09:33.560 They're asking the Supreme Court to hear that could rule that this statute, 18 U.S.C.

01:09:39.120 Section 1512, it does not apply to the behaviors of January 6th, that you cannot use that statute

01:09:45.280 to criminalize what we watched on January 6th.

01:09:47.700 And so the Supreme Court could get out of issuing for or against Donald Trump in the

01:09:53.840 big McGillic case by deciding something that goes in favor of the J6 defendants arguments

01:09:59.720 in this other case that isn't getting anywhere near as much attention.

01:10:03.620 That's exactly right.

01:10:06.320 So that's sort of the backdrop.

01:10:08.280 In fact, the appellate, one of the appellate attorneys, defense attorneys, Nick Smith,

01:10:13.620 filed a lengthy petition just yesterday on the docket.

01:10:18.280 I read it.

01:10:18.700 So the timing is interesting.

01:10:20.780 Yeah.

01:10:21.000 I did think it was interesting because you've been calling attention to 1512C.

01:10:24.380 And so I looked it up and I let me down a rabbit hole, which brought me to his brief.

01:10:27.720 So that's that's two of the four.

01:10:30.960 The fourth of the four is you've a conspiracy against rights.

01:10:35.340 This post, you know, reconstruction statute trying to say you're you know, if you're depriving

01:10:40.160 black people of their rights to vote, you're going to get in trouble. 1.00

01:10:43.140 I mean, I think that's a legal stretch. 0.88

01:10:45.560 And then the first one is the really the one I was talking to Andy McCarthy about at the

01:10:49.140 top of the show, conspiracy to defraud the U.S.

01:10:52.300 And Andy's pointing out there was an there was a ruling in May and in a pair of cases

01:10:56.740 that went up to SCOTUS in which the involving Andrew Cuomo minions where they said you can't 0.63

01:11:03.240 just criminalize bad politics and political dumb decisions.

01:11:07.640 Fraud means money. 0.97

01:11:09.920 Whose money did you steal through false pretenses?

01:11:13.440 Not what Jack Smith is alleging here.

01:11:16.040 Do you agree with that based on what you've seen?

01:11:18.740 Yes, absolutely.

01:11:19.760 Of course, and if you go through this indictment, first of all, this indictment, Megan, is largely

01:11:27.040 a cut and paste job from the January 6th Select Committee.

01:11:31.080 What have we been paying almost a million more than a million dollars a month to Jack Smith?

01:11:36.120 What has he been doing?

01:11:37.100 I mean, I could have written that indictment and just cribbed what out of this 837 page

01:11:42.280 document that Adam Schiff and Liz Cheney put together.

01:11:46.420 So it's sort of laughable on its face.

01:11:48.880 But to think that this all is the then results in this criminal for perpetrating a fraud on

01:11:57.900 the American people is just beyond a stretch.

01:12:02.200 But unfortunately, Megan, as you know, we've discussed and you cover my work.

01:12:06.440 It doesn't matter.

01:12:07.800 I have sat through these trials.

01:12:09.940 I see what these judges allow and don't allow a jury to hear.

01:12:16.620 I see how these prosecutors can just come up with anything, not just to conceal evidence, 0.99

01:12:23.180 but made up evidence in group chats or stupid memes that they posted on social media. 0.98

01:12:29.360 This is what qualifies for evidence before these D.C. 0.99

01:12:33.380 juries.

01:12:34.280 So unfortunately, Jack Smith has a very low burden of proof before these juries.

01:12:41.260 And especially, as I said before, Judge Chudkin.

01:12:44.760 They're going to do what he wants them to do.

01:12:47.820 He may have looked a little wobbly and nervous in that statement he made because he's not exactly

01:12:52.640 a public speaker.

01:12:53.400 But when he gets in front of a jury, that's his home turf and he will come alive in a compelling

01:12:59.680 way.

01:13:00.180 And he goes in there with the air of authority and the imprimatur of the state, you know,

01:13:05.280 the federal government.

01:13:06.460 And the feds don't normally bring any case unless they know it's a lock legally.

01:13:12.740 That's, you know, one of the advantages he has on his side here.

01:13:16.280 I wanted to say this because we've been looking at the timeline.

01:13:21.480 Donald Trump Jr. tweeted this out and he's not wrong.

01:13:24.220 I don't know that Jack Smith is this reactionary.

01:13:27.620 I mean, I think he's been on course to bring these charges for a long time.

01:13:31.260 But tell me what you think of this.

01:13:33.360 It's been circulating on Twitter.

01:13:34.780 It was shared by Junior.

01:13:36.540 June 7th, the FBI releases that document to Congress, allowing them to see Congress to

01:13:41.640 see that 1023 forum alleging that the Bidens took a $10 million bribe from Burisma.

01:13:47.820 The very next day, Jack Smith indicted Trump in the Mar-a-Lago case.

01:13:51.760 July 26th, Hunter Biden goes into court and rejects that sweetheart plea deal after it was

01:13:57.380 it fell apart after the DOJ tried to give him blanket immunity from all future prosecutions.

01:14:02.200 The very next day, Jack Smith added new charges against Trump in the Mar-a-Lago case.

01:14:08.320 July 31st, Hunter Biden's former business partner testifies to Congress that Joe Biden was in

01:14:13.960 on over 20 calls with his son's business partners and that Burisma execs pressured them to fire

01:14:21.500 the prosecutor, which Joe Biden then did.

01:14:24.080 The very next day, Jack Smith indicts Trump again, this time for January 6th.

01:14:29.840 When you see it laid out like that, Julie, it's pretty chilling.

01:14:32.640 Well, this sort of goes back to what I was saying, Megan, about Jack Smith not wanting

01:14:37.840 these to go to trial before the election, because this is the perfect foil for any bad

01:14:43.760 news coming out of not just the Biden campaign, but Democrats in general.

01:14:48.180 I mean, this is going to be the squirrel, the pivot for the next, what, 14 or 15 months.

01:14:55.120 And so this is a very useful tool.

01:14:56.940 Well, let's keep in mind who Jack Smith is also.

01:15:01.300 He worked at DOJ for years.

01:15:03.960 He worked alongside Lisa Monaco for at least two and a half years when Jack Smith was head

01:15:10.080 of the Public Integrity Unit and Lisa Monaco was an assistant attorney general.

01:15:15.680 They were together at Maine Justice for two and a half years.

01:15:18.240 Well, who's Lisa Monaco? 0.99

01:15:19.880 She is now the deputy attorney general.

01:15:22.480 She's the one who really launched both of these investigations into Donald Trump, which

01:15:27.400 were then taken over by Jack Smith in November as special counsel.

01:15:31.100 So he has a long history tied to he worked in Obama's DOJ from August of 2010 until February

01:15:39.420 of 2015.

01:15:41.440 So he is not some independent prosecutor, Megan, as you know, who was just plucked out of, you

01:15:45.900 know, the middle of the hinterlands to take over this case.

01:15:50.100 He is a political figure.

01:15:52.240 He understands exactly what his mission is.

01:15:55.180 And it's to your point, what you just said and what what Don Jr.

01:15:58.500 just posted.

01:15:59.380 It is to use this as a foil, as a ruse, as a diversion for all of the bad news that will

01:16:05.060 be coming out about the Biden family crime racket.

01:16:09.240 And I mean, realistically, this is going to dominate the news for the next year and a half,

01:16:15.980 at least it's going to.

01:16:17.380 You know, and Trump can't really spend too much time getting his message out on how he's

01:16:22.420 going to make America great again.

01:16:24.400 Never mind the other Republican candidates.

01:16:27.080 You know, I'll just give you one example.

01:16:29.580 Yesterday I was about to do a hit and we were going to talk about DeSantis and the interview

01:16:33.340 that I did with him last Friday, the news that was made.

01:16:35.820 Of course, that got all thrown out the window.

01:16:37.500 Right.

01:16:37.880 Trump just got indicted a third time.

01:16:39.460 And this time it's the big McGill of January 6th that the Democrats have been salivating over.

01:16:43.440 We didn't talk about DeSantis.

01:16:44.460 It's just impossible for these other candidates to get any airtime.

01:16:48.780 And that's, I think, also part of the Democrats plan.

01:16:52.280 They know very well.

01:16:54.420 Do you tell me what you think?

01:16:55.220 But they know very well Trump's numbers keep going up as they indict him more.

01:16:58.000 They've seen that. 0.94

01:16:58.700 They're not dumb. 0.99

01:16:59.560 You can say a lot of things about them, but that they're dumb is not one of them. 0.99

01:17:03.420 They like that. 0.98

01:17:04.500 They're planning on driving his numbers up in the primary process.

01:17:07.820 They believe he's beatable.

01:17:08.960 They believe he's the only one, I think, that they can beat.

01:17:12.740 They may or may not be right.

01:17:14.280 But I'm talking about what they think.

01:17:16.180 They think get him across the line with the GOP nomination process, and then we'll crush

01:17:19.840 him in the general because all these trials are going to be happening.

01:17:24.340 Right.

01:17:24.900 That could be part of their calculus.

01:17:27.320 I think that I know a lot of people believe that I haven't really thought about it that

01:17:32.100 much, but, you know, this is going to be not just the top story in the general, but to

01:17:38.720 your point, the primary as well.

01:17:40.840 But for Republican voters, how the candidates, the primary Republican presidential candidates

01:17:47.080 respond is going to be very important.

01:17:49.700 And you already see blowback from some of the tepid responses that we saw yesterday from

01:17:56.940 Governor DeSantis, Mike Pence basically endorsing this indictment.

01:18:01.700 Yes.

01:18:02.320 So it won't just be, you know, sucking the air out of other candidates trying to get their

01:18:08.460 message across.

01:18:10.180 This will be the clarifying issue between Donald Trump and all of these candidates, how they

01:18:16.440 respond, what their plan is, how they react to all of this news, death by a thousand cuts,

01:18:23.840 as I said, not necessarily death, just thousand cuts will be very looming to Republican voters.

01:18:30.920 It's such a no brainer.

01:18:31.740 You don't have to endorse anything Trump did around January 6th in order to say this is

01:18:35.440 a BS legal prosecution.

01:18:36.700 As I was saying to my earlier guests, this is a political matter.

01:18:39.520 It's for you to decide as a voter, Julie, for me to decide as a voter.

01:18:42.820 Do I think that this is a deal breaker between me and Donald Trump or don't I?

01:18:46.440 This is not criminal there.

01:18:49.280 It is lawfare that they're using against him, same as you've seen done against so many of

01:18:54.520 these J6 defendants who, OK, yes, some of them broke the law and we should be held accountable. 0.99

01:18:59.200 But the sentences, as you point out with this judge, she's on her own imposing longer sentences 0.51

01:19:05.980 than even the prosecution wanted in these cases, which nobody else would be going to jail

01:19:11.540 for if it didn't involve the January 6th set of facts.

01:19:16.620 That's right.

01:19:17.320 And another article that I have on my sub stack that people should read and prepare for.

01:19:22.400 I'm not so sure that Jack Smith will pursue it now, but if he is charged with seditious

01:19:27.200 conspiracy and he really could do this based on the obstruction allegation is seeking pretrial

01:19:33.200 detention for Donald Trump.

01:19:34.840 The next big bombshell, aside from additional indictments, will be what sort of release conditions

01:19:41.660 will special counsel Jack Smith ask for in this case or future indictments?

01:19:47.620 I mean, Megan, I've seen men held in jail for over a year simply based on being charged with

01:19:53.700 obstruction of an official proceeding and a few misdemeanor accounts.

01:19:57.140 So there is not just case precedent, but Chief Judge Beryl Howell in February of 2021 handed

01:20:04.560 down what is basically special no bail rules that apply only to January 6th defendants.

01:20:11.740 And I talk about that in my piece.

01:20:14.060 Jack Smith has all the ammo he needs to go to Tanya Chutkin and ask either to detain Donald

01:20:20.300 Trump awaiting trial. 0.68

01:20:22.100 And if anyone thinks that's farfetched, just watch Jack Smith's ridiculous statement yesterday.

01:20:27.140 But also could put very strict release conditions on him, home detention, home confinement,

01:20:34.100 a curfew, travel limitations, wearing a monitoring device.

01:20:39.220 This is also where I believe, not just with this indictment, but certainly future indictments,

01:20:44.500 if it is seditious conspiracy that Jack Smith would ask for and he would get before this judge.

01:20:52.480 I mean, there's no way they can lock Trump up pending trial.

01:20:54.960 No way.

01:20:55.440 And I mean, you know, as you know, normally the reason to lock somebody up is fear of flight.

01:20:59.320 There's zero chance of that with Donald Trump.

01:21:01.240 And if they put him in jail, what are they going to do?

01:21:02.720 Put the Secret Service agents in there?

01:21:04.440 You know, like they're all sitting in there together like that's not going to happen.

01:21:07.500 I realize they've done it to others and they shouldn't have, but they have.

01:21:10.780 There's just no way they can do that with the former president of the United States

01:21:15.920 slash likely nominee for the Republicans.

01:21:18.840 I wish I could agree with you and I totally respect your opinion and I understand the absurdity

01:21:26.040 and, you know, far-fetched nature of something like that.

01:21:28.880 But after watching these prosecutors, watching these judges, seeing what they get away with

01:21:33.560 and the bloodlust, Megan, that the Democrats and this DOJ has created on the left among the

01:21:42.600 Democratic Party base, the bloodlust to see Donald Trump, not just in handcuffs, behind bars.

01:21:49.500 They want him to suffer.

01:21:51.080 They want him in prison.

01:21:52.280 They don't care how he gets there.

01:21:54.480 They have created this for over six years.

01:21:57.360 And this is a way to deliver because, as I said, it's unlikely either one of these cases

01:22:01.220 go to trial before the November election.

01:22:03.000 I would not put anything past this DOJ, Jack Smith, or Judge Chudkin, as I said.

01:22:09.560 Have you been looking at the Georgia case at all?

01:22:12.580 You know, I'm trying to.

01:22:15.240 So I don't know the details.

01:22:17.540 It does look like it relates to the fake elector scheme, which was a big part, of course, of

01:22:22.800 Jack Smith's indictment.

01:22:24.580 So, but I'm not as well-versed in that, unfortunately.

01:22:28.780 That one could be coming any day now, too.

01:22:30.780 And they're all going to have to get in line, you know, for who's going to try for Trump

01:22:34.860 first.

01:22:35.200 I mean, I do think in some ways it inures to his benefit because he can say none of these

01:22:39.560 things can be rushed.

01:22:40.880 I've been hit at every turn by all Democrat prosecutors, a Democrat attorney general in

01:22:47.640 New York who's brought a civil trial trying to shut down his entire business that goes

01:22:51.380 to trial in October, a Democrat DA in New York, a Democrat prosecutor in Georgia, a Democratic

01:22:58.440 administration in the federal charges as I'm the Republican, you know, most likely Republican

01:23:02.600 nominee.

01:23:03.080 Like there's just got to be some court that will entertain that reality and say, we're

01:23:09.260 going to pump the brakes on this and we are not going to subject the American people that

01:23:12.740 this is not fair.

01:23:14.040 This is it's not fair.

01:23:15.960 I mean, it's a miscarriage of justice to have even brought these charges, never mind

01:23:20.000 to actually convict and put him in jail and make him run for president from there.

01:23:24.500 Julie Kelly, thank you for all the great work you've been doing.

01:23:27.020 It's not just on Trump.

01:23:27.920 If you really want to know what's happening with the J6 defendants, and you should, because 1.00

01:23:31.360 man, you want to talk about two systems of justice.

01:23:34.020 Some of these people did next to nothing, nothing, and have had the full book thrown

01:23:39.060 at them.

01:23:39.800 She's been chronicling it all.

01:23:41.720 Great to see you again.

01:23:43.080 Thanks so much for having me on, Megan.

01:23:45.000 So grateful for you guys and tuning into the show and making it possible.

01:23:48.780 We're going to pick it up again tomorrow.

01:23:50.260 You can email me in the meantime at Megan, M-E-G-Y-N, at MeganKelley.com.

01:23:55.620 And in the meantime, do me a favor and go ahead and download the show on your podcast, subscribe,

01:23:59.700 and go subscribe at YouTube.com slash Megan Kelly.

01:24:03.660 We will stay on it, honestly, for you.

01:24:06.520 Thanks for listening.

01:24:10.280 Thanks for listening to The Megan Kelly Show.

01:24:12.440 No BS, no agenda, and no fear.

01:24:20.260 Thanks for listening to The Megan Kelly Show.

The Megyn Kelly Show - August 02, 2023

Trump Indicted AGAIN, Now For January 6, with Andy McCarthy, Julie Kelly, Dave Aronberg, and Mike Davis ｜ Ep. 600

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