The Megyn Kelly Show - Epstein Docs Released, Idaho Murders House Destroyed, and Trump's "Immunity" Claim, with Nancy Grace, Dave Aronberg, and Mike Davis | Ep. 695

Episode Date: January 4, 2024

Megyn Kelly begins the show by revealing exactly what's in the new Jeffrey Epstein documents release, the hundreds of unredacted names of celebrities in the documents, what it says about Bill Clinton, David Copperfield, and more. Then Nancy Grace, host of the Crime Stories podcast, joins to talk about her long history of putting away "bad guys" as a prosecutor, the tragic story of her fiance's murder, Grace's strategies in the courtroom, how she knew the Casey Anthony story was going to become a major national case, the way the case affected cable news ratings, how she handled her work while having young kids,the events in the Idaho murders case, the University of Idaho tearing down the home where the crime occurred and how this might affect the trial, Kohberger’s history of creepy behavior toward women, and more. Then attorneys Mike Davis and Dave Aronberg join to discuss Maine and Colorado attempting to remove Trump’s name from the primary ballot, their predictions for the potential Supreme Court case, what the 14th Amendment really says, the important Trump trial in D.C. related to January 6, the key question of presidential "immunity" that may get decided by the Supreme Court, whether Trump was acting in a presidential capacity or as a candidate on January 6, the potential January 6 convictions get overturned, and more.Grace: https://www.crimeonline.com/podcast/Aronberg: https://www.youtube.com/channel/UCZl9z2UMvN9mwpUoU9-E9bADavis: https://article3project.org/ Follow The Megyn Kelly Show on all social platforms: YouTube: https://www.youtube.com/MegynKellyTwitter: http://Twitter.com/MegynKellyShowInstagram: http://Instagram.com/MegynKellyShowFacebook: http://Facebook.com/MegynKellyShow Find out more information at: https://www.devilmaycaremedia.com/megynkellyshow

Welcome to The Megyn Kelly Show, live on Sirius XM Channel 111 every weekday at noon east. Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show. Oh, we have a packed show for you today. In just a bit, we're going to be joined for the first time ever by Nancy Grace. I've spoken with her before during my Fox News year, but never on this show. She's my neighbor on Sirius XM and has a podcast, which is produced by the same folks who helped me produce mine, Red Seat Ventures. So we have some real estate in common, but we also have a commitment to justice in common. And I just love how fierce and fearless she always is in going after bad guys. She spent her career trying to set the record straight and has an amazing record. Is it 100% perfect? In the

courtroom, it is. As a commentator, some right, most right, couple wrong, but a very stellar record. And I've long been her fan. So she's coming on in just a bit. There are updates in the Brian Kohlberger, Idaho murder case, as well as Casey Anthony. Plus we'll get a little bit into Nancy's life story, which is absolutely fascinating. She talks about herself a bit on her podcast, which I do listen to. And I'm looking forward to the chance to just talk to her about herself. So we'll do that in just a bit. And then after Nancy, we're going to be joined by our Trump legal all-stars from two very different perspectives, Dave Ehrenberg and Mike Davis. And there are some very big developments in Trump trial land that are going to be affecting all of

our lives over the next year. So we'll highlight what to look out for and what to watch for. But I wanted to begin with the story that set the internet on fire last night, the Jeffrey Epstein document release. Here's what happened, in case you weren't paying attention. Last month, the judge ordered nearly a thousand pages to be released in connection with a defamation case, and nearly all names are unredacted. They include more than 100 names, including many high profile individuals. Now, this is not, oh, all these individuals had sex with young girls thanks to Jeffrey Epstein. It's witnesses who are around Jeffrey Epstein or exploited by Jeffrey Epstein,

in some cases, repeating what Jeffrey Epstein said about certain individuals or so on. So it's not clear indictments of people's character. You have to sort of really delve into it. We'll give you just some highlights here. Most of the names have previously been reported on, but we are learning some new information as well. The biggest and the biggest piece of news to come out last night is about former President Bill Clinton. And what is, you know, it's one of those shocking but not surprising revelations. In a deposition of a woman who accused Prince Andrew of groping her, she says Epstein told her, quote, that Bill Clinton likes them young, referring to girls. All right. So there's there's a couple of women involved with this allegation.

There's Virginia Giuffre and then there's this other gal. And they say that Jeffrey Epstein claimed Bill Clinton likes him young. I mean, are we like, you know, it's shocking, but not surprising. Like I said, we've seen this history of his for a long, long time. We elected him president. We almost elected his wife president. That didn't happen. But remember that point in 16, we had Trump with all these women coming out and accusing him. At the same time, you had Hillary, who was married to a man who'd been accused. But I was like, this is America. That same woman in these depositions also talked about meeting magician David Copperfield, who she says asked her if she was aware that, quote, girls were getting paid to find other girls. Famous celebrities like Leonardo DiCaprio, Cameron Diaz, and Bruce Willis are mentioned in the documents, but only in

relation to an accuser denying having met them. That's important that she denies having met them, but noting that Epstein had brought them up as part of his name dropping habit. There's no evidence that they actually did meet any victims of Jeffrey Epstein. Separately and interestingly, Epstein's brother, Mark, is speaking out, telling the New York Post for the first time that his brother, Jeffrey Epstein, told him in 2016, quote, if I said what I know about both candidates, they'd have to cancel the election, referring to Donald Trump and Hillary Clinton. Back to my earlier point. But Mark said his brother never revealed to him exactly what he knew about Trump or Clinton. Do I believe that? I'm not sure I do. I'm not sure I do. Mr. Trump told New York

Magazine in 2002 that he had known Epstein for 15 years, but he later distanced himself from Epstein around 2004. Jeffrey Epstein, as you know, is reported to have taken his own life in his New York jail cell in 2019 while he was awaiting trial on sex trafficking charges. Many people to this day believe that was not a suicide, but some sort of planned execution by those who stood a lot to stood to lose a lot. Former Attorney General Bill Barr, who was a G when this all happened, told me on this show, he does not believe this was anything other than Jeffrey Epstein taking his own life. And he was wide open to that possibility, but he'd reviewed a bunch of videotapes and so on. It's all fascinating. And we're not done with Jeffrey Epstein. I can tell you that for a fact. Can't tell you how I know, but I can tell you for a fact, we're going to hear a lot more about

Jeffrey Epstein in the coming year. And you may be even hearing from him directly. More on that as I'm allowed to tell you. Okay. But for now, we turn to Nancy Grace. She has a decades long career in the media. She's the host of the Crime Stories, Crime Stories with Nancy Grace podcast, and is here on the show, as I mentioned, for the first time. Nancy, so great to have you. Thank you for inviting me. It's a real honor. I love not only how you talk about all the crimes that I want to hear your opinions on and your analysis of, but I do love how you mention your family life on your podcast. Like, I feel like I know your twins just because you're, you know, you're free about sometimes talking about them, what's going on in your life. And for me, Nancy, I has a personal connection because I know you got married in 2007, right? And I got married in 2008 and we both started having children right around the

same time. You had the twins. I had my first child in 2008 and another in 2011, then another in 2013. So I almost feel like I've, in a way, I've been going through motherhood with you. And I did not realize, forgive me for bringing up age, but I did not realize that you were 48 when you had the twins, which is amazing. That is amazing. I am so tired having had my first child at 38. I can't imagine getting started at 48. And I wonder how they're doing and how you're feeling with like, I feel like this world we're in now, the digital world is a lot easier to have balance and see your children than our old world of you were on HLN and I was on Fox than that world was. How do you see it? Well, you know, Megan, my children are really miracles.

After the murder of my fiance shortly before our wedding many, many years ago, I never thought that I would ever be a wife, much less a mother. I had no interest in it at all. It hurt me personally, but I think it helped a lot of crime victims because all those years, I mean, I started off planning to be a Shakespearean literature professor. That didn't happen after Keith was murdered. I just didn't think I could be in a classroom ever. I didn't know what I was going to do, but something. I had to do something. And that something was to go to law school. And Megan, you're going to laugh. I had to look up the definition of plaintiff and defendant in Black's Law Dictionary and wrote it down. I still remember writing it down. I had moved to Philadelphia from my sister as a professor at Wharton at that time. And I kept writing and writing. It was a

whole page of the definition of plaintiff and a whole page of the definition of defendant. But I did get into law school. I had one recommendation, Megan, one recommendation to get into law school, my Sunday school teacher, Ms. Jeanette Johnson. And guess what? I got in. I don't know how I got in, but I got in. I never looked back. I was a machine. All I cared about was putting the next guilty guy behind bars. And yes, they're usually guy, although I had my share of women behind bars too. But that's all I cared about. I would send one jury out to deliberate. And while they were out deliberating, we'd bring in the next panel. That is a very tense lifestyle. It's a very hard way to make a living. But that's all I cared about, Megan. And anything else, a personal life meant nothing to me at all. Hence gaining a very

bad reputation as being mean, evil, heartless, ruthless, blah, blah, blah. So as many, many years later that I married my longtime love, David, who had stuck by me through thick and thin, I really don't think I would have lived physically if he had not gotten me through those years. When I met him, I was down to 89 pounds. I didn't want to eat. I didn't want to drink. I didn't want to do anything. And he stuck by me through all those years.

And just before the door closed, we got married. And in a miracle, I got pregnant. Lucy was born at two pounds, smaller than a kitten, Megan. And we were all in intensive care for a really long time. Oh, there she is. Sweet babies. So that is the story. And yes, thank heaven for the new world other than, you know, racing around the

way we did to being able to be moms and work. I'm just so happy. My mom did not have that luxury, nor did my dad. No, mine either. Not that my mom would have wanted to be home with us full time. She would be like, it's too much. But I don't feel the same. I love having the balance that I have now. And I never could have made it in the Fox News primetime for longer than I did. It was just wasn't seeing them at all. Now you were before before you really, you know, your kids were young. But I remember in 2011, that's when the Casey Anthony case was out. And was at Fox and I was, I was alive in the middle of the day at that point. But what I remember is you were crushing it. You, I mean, you were the main reason that story went national and people started to pay attention to what she had, I believe, 100% done and now got away with. And what I remember, Nancy, is

you started to beat Bill O'Reilly. He was on at eight on Fox. You were on his competition at eight. And normally headline news did not give Fox a run for its money. It was just not the same juggernaut. But you were about to take a month off of the King of Cable, Bill O'Reilly, because your case, it was just everybody was tuning in to hear what you had to say. And Fox was maneuvering like there was no tomorrow to try to get his numbers up. And so what they would do is they kept designating his shows on Friday, which were not strong. You know, Friday night ratings are never very good, as specials so that they wouldn't count. I don't even know if you knew this was happening.

So they wouldn't count in the ratings. No, this was the first time I'm hearing of this. It was so that they wouldn't count in the ratings. Don't tell Bill O'Reilly. I think that man can hold a grudge. So I hear. And that was the only way they managed to stave off your ratings victories. But my point is, you were a juggernaut. And when you got your hands into a case, the whole nation paid attention and really have been a game changer. You know how that happened, Megan? This is a funny story. And I'm sure similar things happen to you. But I had just given the twins a bath all right and we knew all day long since early that morning as i still do my ep

dean and i would get up around five in the morning and start looking at what's happening around the country the night before in that morning and we had our our program set there was a missing person a child that's what we were going to devote the night to so i went about the day working i gave the twins a bath i had to crawl out the back window because if i put on shoes or regular clothes they would know i was leaving and lucy and john david would cry so i would give them a bath and go i'll be right back and i climb out the playroom window put on my shoes and go get in the car and go, I'll be right back. And I climb out the playroom window, put on my shoes and go get in the car and go to work. So I was wet from the bath. I had just put my shoes on, was driving to work. And I was starting a conference call about what sound do we have? What chyrons are we putting

up? What's all that. And lo and behold, Megan, I find out that the child had been found. Well, there goes the hour I'm like oh dear lord in heaven and I said what else has happened and they told me that a little girl had been reported missing and I say when was she reported and they said 30 days ago and I'm like stop what and that's how it started they told me Kelly had been missing for 30 days before she was reported missing. And I went, uh-uh, no, lead with that. That's all I knew. And I said, who reported her missing?

And they said, the grandmother. I said, well, where's the mother? And that's how the whole thing started, in the back, in that car on the way to work. All right. So I'm getting ahead of myself because I want to stay back for a minute in your prosecutorial years, because I do think it's amazing. Very few prosecutors have a perfect record, a 100% perfect record of conviction. This is what I love about you. I love that you did this. This is one of the reasons I went to

law school. I wanted to be a prosecutor, but I never did it. I sold out. The big law firms came with big money. I was poor. I know you were poor too, you know, but like I sold out and I didn't do it. And I've only to this day, I have a Jones to go back and do it. Like I I've considered it, you know, even now, like maybe I could still do it, but I love that you did it. And I know it was, as you mentioned, linked to the murder of your fiance, but how do you see your career in law enforcement as a prosecution now as a prosecutor? Because I feel like not to say anything that was justified that happened to Keith, but there was a purpose for you on this earth. Like you think of all the people you helped while you were a prosecutor and then beyond, if that one event hadn't happened, I don't know what you'd

be doing. I guess you'd be teaching English literature at the college level. I guess I would be. And I would be living in Colorado with Keith where he already had a job lined up and maybe even teaching high school. I don't know what I would have been teaching. Sometimes I think about that, but I try not to because, you know, when you have depression, when someone has depression, sometimes you get so deep into it, you can't get out of it. And I lived in that deep state for a long time after Keith's murder. And I'm one of those people that once I get in it, I can't get out of it. So whenever I get close to it, I back off as quickly as possible. So I try not to think about what may have hardest, most demanding job I have ever had. And I would do it again in a minute.

I've often thought of, you know, on those nights I was sitting across the table from Johnny Cochran during Cochran and Grace, I thought, and beyond many times that I'd be arguing with some lawyer on the other end of the camera, I'm like, why am I here? Why am I not back in court, making a difference in this world and doing something really worthwhile? You know, at the end of every trial, you have a victim's family that you know you have helped or a victim that lived. And you know, you've done the right thing and you get immediate gratification. And I knew that I was helping in some way. You know, in our world now,

we don't ever really know unless, you know, somebody is found or a case is solved because of our program, which has happened many times. Then I know that it's making a difference. You know, I had to have two night jobs when I was a prosecutor to pay the house note and the car note. And I would drive that beat up Honda and I would sit in a red light, Megan, you're going to laugh on the way to court. And there would be just smoke coming out from under the hood. And I'm like, you know what, screw it. I'm going to the courthouse if I have to walk. So yeah, that was the hardest job I've ever had. And it is sometimes very much like you see on TV.

I never really had second chairs. Sometimes I did. But I had to think. I couldn't talk to anyone during a trial. In fact, I would make my investigator write me notes and hand it to me because I had to hear every word. And even now, I ask people, will you say that again? Because even one word matters. But I would say that was the best and worst job I've ever had. Did you always have the ability you have now to be, I mean, you're very clear in your presentation.

And one of the things I love listening to you talk about these big cases is you ask the best questions. They're not the, always the obvious questions. You'll say like, why would somebody who was telling the truth about this have done that? You can see the truth lane and you can see the falsity lane. And I can see your radar going off when someone is in the wrong lane and you just will hammer the story or the person, if they're there, on the inconsistency,

the poor logic of the lie they're trying to tell, but not everybody has that ability. So have you always had it? Was this a skill you honed? And where did it come from? Like, were you raised to do this thing? I think I've got a very sensitive BSO meter, but as far as speaking publicly, for the longest time, I could not say an R, which is not good if your name is Nancy Gwace. And we didn't have, I mean, my dad worked for the railroad, then Southern Central Railroad, now Norfolk Southern. My mom was a bank teller that worked her way up to be a CFO of a company, but we didn't have a speech therapist.

And I can remember my parents saying just just work on your r's okay and I remember playing outside I climbed a tree and I was practicing my r's and I can remember Megan the first time I said river and I could hear it I'm like river and I knew I had said it correctly and I jumped out of the tree, ran in the house, all through the house screaming river, river. So, you know, it, I think that to be a prosecutor, you don't just win the case. You have to do it ethically. You can't cheat. You have an additional burden. You have to be the good guy or else you lose it all. That's a very big burden.

So it wasn't just about winning for me. It was about putting the right person behind bars on a felony. And at the end, I was focusing on serial killing, spree killing, serial molestation, serial rape, and any sort of arson. So I guess I was removed in a way, but when I would be with the family of these victims, I mean, I remember them like it was yesterday and I'm still in touch with many of my friends that I made in the district attorney's office. That is so heavy. That is like the heaviest stuff to deal with day in and day out. And unlike, you know, people in news like me, we get to the darkest cases. I can choose now with my audience to omit, you know,

the darkest details, right? People are trying to follow the news, but they don't necessarily want to have their heart crushed on a Monday, you know, when they're trying to catch up on things. When you're the prosecutor, there's no out. You've got to immerse yourself in it. You have to live it. You have to present it. The poor jurors have to see it in your response. So I was a fed for three years. Finally, finally, I got in at the Fulton County District Attorney's Office. I'd been trying for three years. I finally got in. My first case was a shoplifting and more accurately put, an attempted shoplifting because poor little guy, he's very pale and sickly looking and pitiful and about as short as I am. And he actually didn't steal anything, Megan.

And that was my first case. I won on attempted shoplifting. And I remember arguing and I looked up at the judge and he was like, what? But somehow I managed to eke out an attempted shoplifting. And from there, I went straight into violent felonies. Wow. So that was years. I don't like, was it five years, nine years? I can't remember what I read. Ten years in the district attorney's office, almost to the day. And I would have stayed, but my elected DA, Mr. Slayton, then the longest serving district attorney in the country, I I would have stayed, but my elected DA, Mr. Slayton, then the longest serving

district attorney in the country, I think it was 37 years. It was like a grandfather to me. I loved Mr. Slayton and his wife, Jackie, so much. And that was at a time where women and minorities did not get to go in front of juries, Megan. We very often were relegated to drawing up indictments or presenting to a grand jury or prosecuting in juvenile hall, which is basically you sit around a table with a judge and talk about what's best for the defendant that committed a murder. He, however, was very advanced. You know, he handled the Wayne Williams case. He, however, was very advanced. He handled the Wayne Williams case. He handled so many high profile cases. Great, great person. And if you could win a case, you would be a trial lawyer. So I managed to, along with a few other women and many, many minorities, become a trial lawyer. And those were some of

the best years of my life until I had the twins. And just so the audience knows not to bring it up and linger on it, but Keith was, the thing that set this off, Keith, your fiance was murdered. So I understand it was a workplace violence situation where somebody came and shot him while he was driving a truck and multiple times he died. And then you actually testified at that criminal trial, which, my God, I mean, people already know you're strong. I don't think that takes a special level of strength while you're in that level of grieving to go testify at the trial.

But you did it. Well, Megan, it's parts of much of it is like a blur. And, you know, for people often poo poo lost recollection or recollection regained. But I can say that for a chunk of time before Keith's murder and a chunk, a big chunk of time after his murder, I don't remember so much. The things I do remember, I was at school in a statistics exam. And I came out of the exam. And I remember it was so dark in the building. And I opened the doors going out. I was at Mercer University. I later went to Mercer Law School in NYU for my LLM in criminal and constitutional law. But at that time, I was just finishing my undergrad degree. And it was so dark in the building and so bright and beautiful and sunny.

And I walked out and I stopped halfway, didn't have a cell phone and used a pay phone to call my job. I worked at the university library to say, I'm on foot. I'm going to be there. I'm 10 minutes late, but I'm coming. And they told me to call Keith's sister, Judy. And I knew then something was horribly wrong. And I remember, Megan, that when I tried to dial the numbers, my hand wouldn't work. Have you ever seen a moth around the light outside, how it flitters around like that? I looked at my hand and that's what I couldn't get to the numbers, but I did get to them. And I don't know how, Megan, but I knew.

And she picked up the phone and said, where are you? And I said, is Keith gone? And I knew. And she said, yes. And after that, it was a blur. I dropped the phone and left it just hanging, as I recall. And I remember driving by our little Methodist church. There was nobody at home. Both my parents weren't. I had just transferred back home to Mercer from where I met Keith in Valdosta. And I stopped at our church

because I saw a car park there. And I went in and my pastor was there, Dr. Oliver. And I said, Keith is dead. And I sat down at his desk. And then I decided, Megan, that he wasn't dead, that he had been in a crash and he was alive. And if I could figure out where he was, I could get to him and I could fix it. And so suddenly I was in a hurry. And then I saw upside down reading Billy Roach Bernstein Funeral home. And then I knew. And that's what happened.

And everything else was just kind of a blur. But yes, I hardly remember much about the funeral, except the pastor kept calling me Mary. And then I remember the trial. That was the first time I'd ever been in a courtroom. And I went in. And I don't remember this. My mother and father would take off of work and drive me every day.

But I hardly remember that. That was hard to get off of work. It was a long drive, I understand. Yeah, it was. It was a long drive, about two hours each way. And I got there, and everything was so quiet. I remember I had on my boots, my cowboy boots, and I could hear each foot going up the stand. The remember coming down off the witness stand and I looked at the counsel table and I saw Keith's bloody shirt there. And I had not seen that before. And I kept walking and I saw the defendant and he looked at me and then he looked down.

He wouldn't look at me. And then I looked at his lawyers. There was a couple of lawyers in there and they looked at me and they looked down. They wouldn't look at me. And I didn't know what any of that meant. And I walked out. I could hear my feet. And then the door shut behind me and I don't remember anything else

but what happened to Keith is this he had a summer job he was a geology major and his dad knew some guy that owned a construction company and he had a summer job at construction way out in the middle of nowhere very rural building I guess a commercial building and at lunchtime they were so far, somebody had to drive into town to get sodas. And Keith volunteered. As I recall it, the perpetrator, the killer, had been fired off the job and was angry. And Keith drove back in in the company truck and he opened fire and shot Keith five times in the face, the neck, and the head. Keith lived. He was an athlete. He had been on baseball scholarship and he was alive

when he got to the hospital, but then died. That's what happened. Wow. He, the man who did it was convicted. And how long did he serve and where is he now? I remember I was at Court TV and I can place it at about 90. Oh, gosh. I guess he did. Oh, gosh, he did well over 20 years but i had been on the air i did the morning shift that morning for some reason and went back to my office and i was looking out at third avenue my office then was at the corner of 40th and third and i was reading emails that had been sent to me on the public forum and somebody had had written, did you know Keith's killer has been released? I couldn't believe it. That's how I found out.

And I just remember I didn't even try to look it up. I just sat there and looked out at Third Avenue. So that would have been around 2000, I guess. Where is he now? I don't know. I don't know where he is now. I don't know if he's dead or alive. And would it matter?

It won't change anything that happened. Except if I knew where he was, I might want to go kill him, Megan, and then you'd have to defend me. I would. And then I'd only see the twins on visiting day behind barbed wire. Like I really, I can't imagine that. I do not have anything in my past that helps me relate to this, but the one sliver I can, because I had a very bad stalker at one point and the guy wound up going behind bars and into a mental institution for 10 years. And, you know, as the victim quote of his crime, they had to let me know when he got out. And I remember my stomach dropping, like, you don't, you don't know what it means. Does it, does it mean things are going to start back up again?

Am I in danger? And I'm sure you had to at least think about that. Like what has he been in any way reformed? Is he still wrought with anger? He knows your name. You were not a public figure when you testified, but of course he knows your name. And then you went on to become a big star. So I'm sure it had to raise a lot, a lot. What bothers me more is the people I put behind bars happily. And Megan, I would look them right in the eye when they got dragged out of court. I mean, no mercy. I don't care if it's attempted shot lifting or triple homicide to hell with them.

But what about my children? They're getting out now. I do think about that a lot. Yes. And that is honestly the one reason I can't go back to the business until they're off in college in a way. I just can't put them and David, who's like the best person I've ever known. Well, maybe second to my dad and mom, but I can't put them in that kind of a danger. Yeah. It's already risky enough just being a public person, nevermind a public person who's putting criminals behind bars for a living,

all these prosecutors. I feel for the ones who are making $33,000 a year in these local DA's office who are in danger. And unlike you today or me today, they cannot afford a security guard. 32. 32,000 bucks. At my height. Yes. 32. Hence the two night jobs. I believe it. No, this is why I didn't do it. Because when I graduated law school in 95, I had $100,000 in debt and I wanted to work in the Manhattan DA's office. I'm from New York state. And it was $35,000 a year. And I would have been in the Manhattan DA's office. I'm from New York state and it was $35,000 a year. And I would have been below the federal poverty level. And then along came the big white shoe law firms, you know, and they were like, here's

85,000. I was like, oh my God, that's a life-changing offer. You know? And so I did, I went the corporate route. It worked out in the end. But one of these days, don't be surprised if I leave the media business. And there I am working in the Manhattan DA's office prosecuting crime. It was great, Megan. It's great.

We were lucky to have you. The country, Georgia was lucky. I would say one of the closest people to me now is my former investigator because he saved my life for many other reasons. But we were out investigating a triple homicide that went down on a Sunday night around 1130 in a housing project. And I couldn't, nobody wanted to be a witness, of course. And we were out during the day day which of course you're not going to find like dopers they're like vampires they wake up you know at three and four in the afternoon but we were out looking for a witness and we went to one door Megan and it was hot and bright outside during the investigation and they were inside a dark department with a screen a rusted screen door

that door opened the first thing i saw was a double barrel pointing right at my face and he grabbed me and we both dove off the side of the porch um and on another occasion a defendant took a lunge at me in the courtroom which i later you know reinterpreted and put in a book. And my investigator was there to help me. But I like one of the things I like about listening to your show is you bring back a lot of those folks from your prosecutorial career and you go back over stories and you'll tell some of the stories. I remember one you told not too long ago was about all I remember is you were talking about how you used to you'd bring out a big jug of water in the courtroom right that was great yes yes and i have it sitting there on the table the entire trial next to the bible of course and um except the jug of water was a prop i needed the bible but the jug of water at the beginning of the trial,

I'd shake it and it would get all muddy, a big jar, like a big mason jar. And then in closing arguments, I'd shake it at the beginning and set it down and then go through all the evidence and talk about how it is the defense's job to muddy the water, to make it unclear. But once you focus on the facts and the law, everything becomes clear. And I would hold up the water that by the end of my hour-long closing argument had settled, right?

That's perfect. No, there's one thing Georgian jurors know. It's muddy waters. They're familiar with that, so it works. Yes. But that's just one example of your trial gifts. I would have loved to have seen you in action. All right, stand by.

When we come back, we're going to hit on a couple of the big cases of the day that Nancy's been covering in depth, including Kohlberger in Idaho. Nancy, one of the biggest cases that we've been looking at and will be looking at, we think that in 2024, is the Brian Kohlberger trial for the four murders that happened in Idaho. And I know you've done specials on it, and I want to talk about some of the news you broke. But can we start with the fact that they did indeed tear down the house in which those roommates were living over the objection of at least two of the victim's families who felt it should be preserved in case it could be useful at trial. And I thought they raised some good points about how it might be useful at trial in case the prosecution wanted to show jurors certain aspects of the murder scene. But here you see the video of them tearing it down. The University of Idaho felt strongly it should go. A site of trauma. People didn't want to look at it. What do you make of it? Didn't want to look at it. I can't believe they did this. I can't believe that the interest of the beautification of the campus outweighed the interest of justice. Now, practically speaking,

no jury is entitled to go to the crime scene. They're not. We hear about it quite often, as you know, Megan, from being a trial lawyer yourself we hear it about it a lot because it's rare and when it does happen it makes the news we know about oj simpson rot in hell taking the jury to his home led by my former co-anchor johnny cochran may he rest in peace and of course they had the chance they the defense to completely redo the inside and then take down all the pictures of sexy blondes and put up pictures of Simpson with his mother and pictures of, I think, like a Norman Rockwell painting of the day of Brown v. Board of Education

when the little girl goes for the first time to a now integrated school. Images that would strike the jury at their heart as it would anyone. I mean, I walk into a guy's home, I see a picture of him with his mother, and I think, wow, if he's that close to his mother, how bad can he be? That was all staged. So I don't know that uh visits to the crime scene help the state on the other hand look at alex murdoch that poc technical legal term the jury goes to scenes the hunting lodge where maggie and paul murdoch were murdered by alex murdoch Don't anybody jump up and say he didn't do it because he did. They went there and they came back with a guilty verdict. So, you know, it's like flipping a coin and I don't like flipping a coin in court. It's akin to asking the question you don't know

the answer to. When you do that, you are going to get the blowback right in your face. You need to know exactly what's going to happen and control it. Whatever the other side wants, you don't want. You don't have to think about it. All you need to know is that's what the defense wants. And then, you know, you do not want it to the core of your being. Now, again, do they have to see the same? No. Is it a constitutional violation if they don't see the same? No. Is it rare that juries see a crime scene? Yes. However, in this day and age, jurors expect DNA. They expect fingerprints. They expect a really advanced dog and pony show, and they expect to go to the scene if they so choose. That's not going to happen. More important, Megan, I think that's a major mistake because very often it's alleged police wrongdoing, whether it's some sort of misconduct or the gathering of evidence. I think it's really important that the jury be able to see what happened and then combine it as an overlay with whatever was on the body cams.

So they know that there was no police wrongdoing, no planting of evidence, so to speak. I would like them to see the room where that knife sheath was found bearing Brian Koberger's DNA in the snap. That's pretty strong evidence, right? But that's going to be subject to an argument of contamination, of planting. And I'd like the jury to be able to see that. 3D imaging, BS. There's nothing like the real thing. Well, and one of the points that the families were raising was, what about these two roommates who were there who didn't call 911 or at least make 911 get called through a friend until the next day? Wouldn't it be helpful to the jury to see what could you hear from their rooms

versus where the other rooms were? How far away were they? I mean, these are all things that will become big issues. All of it's lost now. I want to move on to one of the pieces of news that you made in your special. Your show airs on Fox Nation, in addition to here on Sirius XM and the podcast. And you took a hard look at Brian Kohlberger, colon, I am blank. It's aired in August. And this is one of the most interesting things. You had a guest who served as Kohlberger's former administrator at a career and technical institute he worked at. And she called attention to his issues even back then

with women. Here's the clip. Some of the issues that arose were based on having a mixed population in that classroom. One of those incidents ultimately resulted in him being removed from that program. She says Koberger's kicked out of protective services, the program he works so diligently to get into in the first place. The school transfers him into the HVAC program, heating, ventilation, and air conditioning. This program has no female students. We were also a little bit more comfortable

knowing that any possible continuation of negative behaviors would not occur in a situation where there were no females. Has either of those women, have any of the women he had the problems with come forward to say what he did or what it was about him? Not in that particular instance as of yet, but I believe that by the time of trial, that will be ferreted out. But I can tell you this i very carefully

watched and listened and wrote down every significant word of his confrontation with a female police officer what he did is he went out into a crosswalk and didn't come to a full stop as i recall it before he turned um something maybe didn't put on his blinker something you would normally think was fairly minor nobody was hurt he gave her so much grief and i only hope he takes a stand and acts the same way on the stand you know he would not have talked to a male officer the same way um and actually we do know that because he was pulled over twice en route with his father in the car from where he was, you know, Idaho, all the way back home to the Poconos. And he stood up and saluted. Let me tell you, he gave those officers when he was pulled over, the male officers,

all the respect they could possibly hope for. But not only that, I'm very curious about a co-worker where he was a teaching assistant getting his Ph.D. in criminology. He befriended her, convinced her she needed a surveillance system in her home. Then he set it up so he could have full access to her home and watch her, what, changing clothes, sleeping, watching TV. Not only that, he had several altercations at the school. He was actually reprimanded about the way he treated women students. But, you know, it's a good note to self, like all young women, if you need help with the security system, hire a professional.

You don't go to somebody who you barely know. Not the perv you're working with. Right. Not the perv named Ryan Koeberger. professional you don't go to somebody you're working with right mistake hey and you know another thing which is not going to get brought up at trial i guarantee you because the defense is going to argue it's too incendiary and prejudicial blah blah blah incel the theory that brian coberger is in fact an incel involuntary celibate and hates women because he can't be with women. And remember, he was also banned from a bar because he would go up to women and say things like, what's your home address?

I would run for the hills as if I had seen a monster. If some creepy dude comes up to me in a bar and says, what's your home address, lady? Uh-uh, N-O. He had to get thrown out of that bar. And I'm sure that there are other examples. What do you think is going to happen with him? Because, you know, so far this prosecution hasn't shown its hand about how much DNA evidence they have, but the defense at least is telegraphing none. The defense wants us to believe there's nothing more than that one dot of touch DNA on the knife sheath. So if you had to predict where they are now, chances of conviction in the two minutes we have left. Well, I do know that discovery has been handed over to the defense, which means if there was more DNA, we likely would have heard about it.

But there's more than just that one bit of DNA. There's him buying the knife on amazon and the knife sheath we are still we see he bought it but we can't find it so where is it we know he was anal compulsive so what did he do with that knife and why was he in the vicinity there at the time of the murders megan i drove his route pitch dark an hour home when he could have gotten there in 11 minutes it's complete and total bs i can't wait to see how the defense handles that. And then you also went and you spoke to the neighbor. I saw that on your show. You spoke to the neighbor, but the defense is going to use that, right? Oh, he loved to go out for rides at night. Just in the middle of the night. This is his stress relief.

Look, he's a wackadoodle, to put it euphemistically. The neighbor told me that he tried to befriend Koberger because Koberger's dad said, hey, he has a hard time communicating. Can you befriend him? But the neighbor's wife, after meeting Koberger, said, don't bring him back in our apartment. There's something wrong with that guy. Yeah, she had the sixth sense. And when I think of those four, yeah, those four beautiful students now dead and their families grieving.

That guy, if we're going to have the death penalty, we just hold another can of worms. He's the one. He is the one. Couldn't agree more. This has been such a pleasure. Please come back. I would love to. And thank you very much for inviting me.

And hey, I saw you went on an RV trip. I love RV trips. I know you did it. And I want to find out all the details. Thank you. Gotta run. All the best. To be continued.

I've been telling my team this all show. I'm going crazy in my head right now. I'm literally like driving myself nuts. My 10 year old is learning the capitals of the States and my 14 year old recommended this song on YouTube that helps you learn them. And you cannot get this damn thing out of your head. I mean, all I can think of as I'm doing these interviews with Nancy and I'm sure with our next guest, all I can think of is Baton Rouge, Louisiana, Indianapolis, Indiana, and Columbus is the capital of Ohio. And we can keep on going. We're only like a quarter of the way through. You guys are going to be stuck with this if I have to be stuck with it. But I will give you one tip.

I'll give you one tip. When you have the earworm in your head, you need a cleansing song. A cleansing song that's catchy enough that it will erase it, but not so catchy that it becomes your new earworm. And for me, that song is, and has always been, and really does work. When this old world starts getting you down and people are just too much for you to take or me to take. They're up on a roof. I don't know why, but it works. OK, back to real news. It's a big time in the 2024 election. Even before a single vote has

been cast, the lawfare is on fire. Late yesterday, former President Donald Trump appealed to the U.S. Supreme Court, as expected, as asking it to overturn Colorado's attempt to remove him from the ballot as an alleged insurrectionist under the 14th Amendment. We knew he would appeal. He did appeal. The Republicans in Colorado had already appealed. The Republican Party. This is all about the primary ballot, but it's also going to relate to the general. And now Trump has filed his own appeal to SCOTUS asking for them to overturn Colorado's ruling. It is not hyperbole to say that if the high court takes up this case, it will be historic, impacting the entire country and indeed the future of the presidency itself. Who better to walk us through it than our Trump legal trouble all-stars, Mike

Davis, founder and president of the Article 3 Project, and Dave Ehrenberg, state attorney for Palm Beach County, Florida, where Mar-a-Lago is located. You can find Mike on Fox News and Dave on MSNBC, but only together here on this show. Mike and Dave, welcome back. Thank you. Great to be back. Yeah. Happy New Year.

Thank you. I apologize for putting that song into your heads. It's it's so damn catchy, but you do at least learn something. OK, so Trump is appealing to SCOTUS, the Colorado ruling. He's also filed his appeal of what the main secretary of state did. That's got to play out in the main state courts first. can kick a presidential candidate off of a ballot by declaring, either by guys in robes, or in this case, an unelected Secretary of State who's not even a lawyer, that he's an insurrectionist. The Supreme Court will have the final say. And we think that they're going to

take the immunity case. Well, we'll get to the immunity case. Sorry. We think they're going to take the case about whether he's an insurrectionist and can be kicked off the ballot. The question is when and how will they rule? So, Mike, what's your prediction on what the Supreme Court's likely to case about whether he's an insurrectionist and can be kicked off the ballot. The question is when and how will they rule? So, Mike, what's your prediction on what the Supreme Court's likely to do on these rulings out of Colorado and Maine? So I think the Supreme Court will take this case and take this case quickly, even though these cases are stayed by the Colorado Supreme Court. Once Trump filed his appeal, the Colorado Supreme Court said we're going to stay the decision and go ahead and put him on the primary ballot. Same in Maine. The reason the

Supreme Court needs to take this case is because this bad precedent in Colorado with the four wacky Democrat-appointed Supreme Court justices and this four-to-three ruling and this, like you said, unelecteded non-lawyer, wacky main Democrat secretary of state who thinks that they did just get to decide for millions of voters who's on the primary ballot. That is a terrible precedent and that needs to be nipped in the immediately so it doesn't get used in other states. If the only way you can disqualify under section three of the 14th amendment passed after the civil war to chase out of office insurrectionist uh confederate insurrectionist who engaged

an insurrection or rebellion during the civil war the only way you can disqualify and there's a case from like 1869 on this from chief justice Salmon Chase is Congress has to pass a federal criminal statute. You have to bring federal criminal charges for insurrection or rebellion. The grand jury has to indict. The jury has to find the defendant guilty with evidence beyond a reasonable doubt, unanimously guilty. The federal judge has to convict under this specific federal criminal statute for insurrection or rebellion, and then that conviction must be upheld on appeal. That is the only way you can disqualify. You can't have partisan judges on a state Supreme Court with an expedited election challenge

proceeding where you don't have due process, where you're letting in boatloads of hearsay evidence, you don't have a fair trial trial or you especially don't let an unelected non-lawyer judge just decree that there's an insurrection and take someone off the ballot. The thing in Maine is really, I realized that the Colorado case being appealed to SCOTUS

is in its own lane. But the thing in Maine, Dave, is really outright. Like some non-lawyer secretary of state is like, she's appointed, not elected, like feels very insurrectionary, really insurrectionary to me. So he's off. He's not going to be able to run for president in Maine. Come on. Even you have to see that that's that is brought with peril. Well, first off, it's great to be back with you, Megan,

and my friend Mike. I'll say this last time I was on, I said that the Supreme Court is going to overturn any ruling that kicks Trump off the ballot. So I'm in agreement that the Supreme Court is going to overturn Colorado and Maine. But I must say that I think what we've seen in Colorado and Maine is exactly how the process is supposed to work, where the states are in charge of administering elections. It's in the Constitution. And they interpret this clause that is somewhat vague in the 14th Amendment that is rarely used. And in Colorado, although Mike will say they're wacky justices, the three justices that dissented, that ruled for Trump, were also appointed by Democrats. But in Maine, it's true. It's not an elected official. But that's state law. That's how it works. And the state law then goes to the U.S. Supreme Court to determine whether it is constitutional. I think the Supreme Court is going to overturn it based on due process grounds. They may latch on to that Chief Justice Salmon Chase's opinion that Mike Davis refers to,

although I must add that Sam and Chase reversed himself when it came to the case of Jefferson Davis. When he had to lead the trial of Jefferson Davis, he said that the 14th Amendment was self-executing. So he reversed himself on that. But in the end, I do think the high court is going to rule that Congress needs to act. You can't have 50 different states acting in 50 different ways, perhaps with partisan Benson and going after your political enemies. And so let's have Congress rule. By the way, on that note, Section 5 does give Congress the power to enforce the 14th Amendment,

but it does not give Congress the power to exclusively enforce it, which is why states like Maine and Colorado can do this. Wait, we're losing people. Let's make it simple because, you know, most people are not studying this clause of the 14th Amendment day to day. But essentially the argument is that the 14th Amendment has a prohibition against insurrectionists

from holding federal office. If you swore an oath to support the Constitution and then you engage in an insurrectionists from holding federal office. If you swore an oath to support the constitution and then you engage in an insurrection, you can be banned from federal office. And one of the questions that's being raised in this is, is that clause, as you point out, self-executing? Or do you need, as Mike is saying, Congress to pass a law and more due process for the alleged insurrectionist? Or can it just be like, we can all see you were insurrectiony and it's self-executing and therefore I don't have to get any official body other than me, the secretary of state to say you did it.

Well, here's something, here's what Trump is arguing before SCOTUS. And I'd love to get your take on this. They say, all right, first of all, they point out that the sentence, two sentence clause in the 14th amendment says anyone is swore an oath to support the Constitution and then engaged in insurrection cannot hold office unless a two thirds vote of Congress allows it. That's them saying you got to have Congress. It's not self-executing. Then they argue that this provision is not intended to apply to the presidency.

Now, we've heard this from Team Trump and their surrogates before, that this really only applies to lower officials, not to the president. And they say, this is kind of, I thought to me, this was a new one. They say the oath for the presidency, by the way, is not even to, quote, support the Constitution. It is to, quote, preserve, protect, and defend it. Now, we've all heard that on various TV shows where they show you the president swearing in preserve, protect and defend the Constitution. It's true the word support is not in there, though, you know, seems like preserving and protecting and defending it would be to support it. They also argue that the presidency is not explicitly mentioned in the amendment, only, quote, an officer of the United States. They say that's a legal term that does not apply to the president.

However, when Trump was dealing with the Manhattan DA's office and this, you know, Stormy Daniels hush money case, he argued that this case should be moved to federal court because the president is, quote, an officer of the United States. So he argued something different in the Manhattan trial court than he's arguing to the Supreme Court about whether the president is, quote, an officer of the United States. So let me give you a crack at that one first, Mike, since you're more in the defense of Trump place. Well, I mean, that's an open question. It hasn't been decided, but there are people, including the Denver District Court judge in this case, this biased Denver District Court judge who, you know, she

was judicially biased. She donated to an anti-Trump January 6th PAC to chase Republicans out of office. And then she sat on the anti-Trump January 6th trial to chase Trump out of office. So I don't know how she was able to do that. She said she could be fair. But regardless, even that judge, even that Democrat appointed judge in Colorado

said that the 14th Amendment does not apply to the president of the United States because he's not an officer of the United States under the 14th Amendment. You know, there are scholars on both sides of that. I would say this, you know, it's an important argument. And maybe the Supreme Court will ultimately have to decide that if the Supreme Court finds that there is an insurrection, finds that Trump incited that insurrection and finds that the main secretary of state can unilaterally disqualify him or the Colorado Supreme Court can disqualify him. I don't think the Supreme Court will have to decide that question

because they can decide not narrower grounds where they don't have to decide the constitutional question. Like what? What do you think they're going to say? Well, I think the Supreme Court could say very easily that, hey, if you want to disqualify, it has to be through a federal criminal statute. And Jack Smith and, you know, January 6th Democrats who spent tens of billions of dollars hunting for evidence of insurrection could not find evidence of insurrection because Jack Smith did not charge Trump with insurrection or rebellion under that federal criminal statute. And think about it this way. January 6th was a lawful protest that permitted by the National Park Service that devolved into a riot. And how many insurrectionists go unarmed into a nation's capital, walk through velvet ropes, follow police direction, take selfies on the Senate floor and don't burn down the damn place?

It can't be. That's the he he's raising a good point, Dave, about how there's been no finding of insurrection. He hasn't been charged with insurrection by Jack Smith. It's really like a gut feeling. It feels insurrection. How can that be enough to to ban a presidential candidate from a ballot? Megan, the wording of the 14th Amendment does not require a charge or conviction for insurrection. It's just, did you engage in insurrection or provide aid or comfort to one? And here, Trump, you could make the case that he engaged in insurrection and provided comfort to the insurrectionists, even if no one is ever charged. And that's why it needs to go through the courts. And that's why the Colorado courts were right to at least examine the issue. And I thought they had a pretty well-reasoned 133-page opinion. And in Maine, this is the calculation that they're making. And so I

agree with Mike, though, that I don't think you need to go to whether the president is covered under the 14th Amendment to overturn it. I think it's going to be overturned on procedural grounds, on due process grounds. But on the question of whether Trump is covered as president by the 14th Amendment, of course he is, because can you imagine that the framers of that amendment did not want insurrectionists to be elected to the House, the U.S. Senate? But OK, if you're elected president, no way. So I think that's a loser argument.

That's why all seven justices of the Colorado Supreme Court rejected the district court determination. She was just trying to find a way out and they rejected that. But I think the bigger issue is procedural due process. The Supreme Court, I do think, will overturn this decision.

And I think it has the potential to be a 9-0 ruling. I don't think it's going to be a 6-3, but at a minimum, it'll be a 6-3. I just, I really think they're going to find a way to get out of saying that he is or is not an insurrectionist. They'll pick a procedural ground. They'll punt. They don't want anything to do with another Bush v. Gore situation. But this isn't their only lane of peril, the people at the U.S. Supreme Court, those nine justices, they've already taken a case that could have greatly impact one of the big cases against Trump. And this is the one I

want to spend most of our time on. And that is, I mistakenly mentioned the word immunity when we were talking about the ballot challenge, the immunity case. The immunity case is very interesting to me on a couple of levels. Basically, we're talking about the January 6th prosecution against him by Tanya Chutkin in Washington, D.C., which is based on his she's the judge of Jack Smith, the prosecutor, based on his alleged insurrection stuff. And that's the case that has a lot of peril for Trump because she wants a March trial date. She could put him in jail before the election. I mean, he really needs to start getting some wins on the board in that case. And so he's got a couple of avenues. Now, the main avenue right now is to say I am immune from this entire prosecution

because all the stuff you're saying I did, I did while I was president. And in the same way, we don't allow civil lawsuits for the most part against a sitting president for acts he did while he was president. We should not allow criminal charges against somebody who is a sitting president for acts he was doing while the sitting president would just lead to chaos in the United States. And he shouldn't allow it. And that case has never been decided by the U.S. Supreme Court. So I think the Supreme Court will have to decide it. And what's happening right now in the immunity case is Judge Chutkin ruled against Trump, saying, you don't have immunity for this nonsense. No, it does not.

It does not help you here, sir. And Trump was going to appeal this to the D.C. Circuit Court of Appeals. But instead, Jack Smith said, forget it. I don't want to waste time with them. I want Supreme Court to hear it right now. So he, even though he was the winner, he leapfrogged. The D.C. Circuit Court of Appeals went right to Supreme Court and said, hey, please hear this case right now.

And the Supreme Court gave him the boot on the forehead and said, get out of here. Now, it's not time for you. Like, go back to the DC circuit and follow procedure. That's how things go. No matter how much of a rush you're in, sir. So he did. So now he's bringing that case to the DC circuit court of appeals and the, uh, the argument, the arguments are scheduled for Tuesday, January 9th. I mean, it's happening fast. That's actually going to be really interesting. I can't wait to hear how that goes. So he's going to argue and Trump's team is going to argue that the president had immunity for everything he's

being prosecuted for in the D.C. trial court. In the meantime, whatever the D.C. circuit court rules will be appealed by the loser. And at that point, the Supreme Court will have to decide once again whether it wants to take it now that it's procedurally ripe for the Supreme Court. So that's where I want to start. What? Forget what the D.C. Circuit Court does for now. I don't care how it goes. Supreme Court, it would be the most interesting. So will they take it or will they find a way to weasel out of taking it and just say review denied like we like we did not review in virtually all cases. We did not review here and leave it with the D.C. Circuit. Dave, your thoughts. I think they're going to deny review, Megan. I think they're going to defer to the appellate

court ruling that's going to come out. That's going to be ruled in an expedited way. In contrast to our last discussion about the 14th Amendment, I think this one is clear-cut, it's a slam dunk. There is no way that a president gets absolute immunity, because if that were the case and Joe Biden could arrest Donald Trump, could cancel the election and say, hey, look, I have absolute immunity. See, it's not so funny when the shoe is on the other foot. And that's why I think that the appellate court is going to reject it quickly and outright. And the U.S. Supreme Court is going to say we defer to their ruling. And then it's game on in Washington, D.C. It's so comfortable, Mike, for the Supreme Court to be like, we didn't do it. It was the D.C. Circuit. We're busy. Look, the Supreme Court, if the D.C. Circuit does not hold that the president of the United States at a baseline level, any president has immunity from criminal

prosecution for what that president does in his official capacity as the president of the United States or in the outer perimeter of his official capacity, which is the Supreme Court precedent for civil immunity, the Supreme Court's going to have to take that case. Because think about it this way. Congress, members of Congress under the speech or debate clause are immune both civilly and criminally for their official conduct, right? Judges are immune civilly and criminally for their official conduct. Right now, presidents are immune civilly. And the reason the courts have not established that presidents are immune criminally is because no president has ever been charged with a crime until the Democrats brought this unprecedented lawfare against President Trump, where they've indicted him now four times, right?

So the issue is going to be, does the Supreme Court establish at a baseline minimum that the president of the United States is immune from criminal prosecution for his official acts or the outer perimeter of his official acts, like the other two branches of government, they are going to have to decide that case, right? And they can decide that very narrowly, narrowly that yes, the president of the United States is immune criminally from prosecution for his official conduct, because if he's not, think about it this way. President Trump gets back into office. President Trump's orders his attorney general to arrest and prosecute for murder President Obama for the drone strike of two American citizens, including a 16-year-old American citizen. An extrajudicial drone strike. He did not go to Obama, did not go to a court.

He did not did it any order. He just ordered a drone strike under his commander-in-chief power as the president of the United States. Does the president have the power to kill American citizens abroad under his commander in chief power. Do the Democrats really want to go down this path where they argued that the president of the United States is not immune criminally for his official acts? Why would the president not be immune criminally, but he's immune civilly? It doesn't make sense. OK, but here's the wrinkle. Here's the wrinkle for President Trump. And I'm really interested to hear what you guys think about this. As we said in the civil lane, it is well established

that in virtually all cases you can't sue the president for acts he was doing while president. We don't want our presidents distracted with this with very narrow exceptions. But there is a D.C. Circuit opinion. That's the case that's the circuit court right above Judge Chutkin. There's a D.C. Circuit opinion in a civil case that recently came down in the civil lane again. And here's what they said. It was a December 30th opinion, but they were quoting an earlier ruling by themselves. And here's the quote, whether President Trump's actions involved speech on matters of public concern bears no inherent connection to the essential distinction

between official and unofficial acts. This is the critical sentence, quote, when a first term president opts to seek a second term, his campaign to win reelection is not an official presidential act. The office of the presidency as an institution is agnostic about who will occupy it next. And campaigning to gain that office is not an official act of office. So what they're saying there, Dave, is that we see a distinction between President Obama launching a drone strike or Trump taking out Soleimani. And when the guy is acting more not as president, but as candidate for reelection, which is not an official duty of the president. Exactly. And that's why I think this is a slam dunk. I mean, we don't have a king. We have a president. And if you give him absolute immunity,

we're going to have a king. I mean, according to Donald Trump, he cannot be impeached for his conduct. And now he can't be charged after he gets out of office. And we know while he's in office, he cannot be criminally charged because that's the policy of the DOJ. So we'd have a king. And yes, that ruling, I think, says all you need to know that elections are in the province of the states, not the federal government. It's in the Constitution. The federal government does not run elections, not even federal elections.

So it's not up to the president to start digging into whether there was illegality in a state's election. So that's why this case is going to be rejected on presidential immunity grounds. And then the Supreme Court, I think, is not even going to review it. What about that, Mike?

If the court finds, as it did in this, the D.C. Circuit Court of Appeals, as it did in this case, it just decided that campaigning for reelection or objecting to the procedure that happened in a vote because it didn't benefit you or you think it was unfair as the candidate for reelection, that's not the official duties of a president that would lead to immunity. And so we don't need to even get to any other larger question. All we're going to say is

very clearly challenges to the way the vote went down are in your capacity as an individual seeking reelection, not your official presidential responsibilities? Well, President Trump on January 6th acted in two different capacities. He acted as the president of the United States with the constitutional duty to take care that the laws are executed. That's in his presidential capacity. He also acted as a presidential candidate that day, advocating for the Congress to reject the vote, to not certify the vote. That's in his personal capacity. First of all, it's not illegal to object to presidential elections. And that's where Jack Smith and Democrats are getting this all wrong. It's not illegal to object to presidential

elections. It is specifically allowed by the Electoral Count Act of 1887. If it were illegal, Democrats would be in jail for objecting to Republican wins in 1968, 2000, 2004, 2016. We don't see Al Gore and John Kerry and I don't even know who lost, the three Democrats who lost in jail, Hillary Clinton, for losing the presidential election and objecting like they did, right? And so what happened was they objected to the election. That was in his personal capacity. That was allowed by the Electoral Count Act of 1887.

It's also allowed by the First Amendment. The riot that occurred, that was in the president's official capacity. The Democrats are alleging that as the president of the United States, he did not stop the riot. They're saying that he did not stop it in time. He did not order the D.C. National Guard into the Capitol to stop the riot. And as the president of the United States, he's the commander in chief. He runs the D.C. National Guard, unlike the states where the governors run the National Guard, the president runs the National Guard. So they're saying that he did not send they're saying he did

not send him in the National Guard fast enough. OK, well, can a presidential candidate send in the National Guard, the D.C. National Guard? Can a private citizen send in the D.C. National Guard? No, only the president of the United States can send in the National Guard. No, only the president of the United States can send in the National Guard. So, Dave, can you speak to that? Because Mike's first argument was separate and apart from immunity. There was no crime here. There's no crime. He's allowed to challenge the election. It's not doesn't make him an insurrectionist. But that that sort of that's a later question. First, we have to get past whether he can be prosecuted at all or whether he has presidential immunity. And his second argument spoke to that. Like he's I haven't actually gone back recently to look at Jack Smith's allegations against Trump. He's got four claims against him.

And I know that at least in the Colorado case, the it came up that he not only raised all these challenges, but he also sat by while the riots were happening for too long. Is that part of Jack Smith's case? And do you concede that. Is that part of Jack Smith's case? And do you concede that if that's part of Jack Smith's case, he is challenging for sure Trump's behavior as president while he was sitting in the Oval? It goes back to what he did make him. He is allowed to object to an election and challenge it. You go through the courts. That's what you do. You could make challenges during the counting of the votes in the Senate. But what you can't do is you can't put up fake electors. You can't call the secretary of state and say, find me 11,780 votes.

You can't encourage people to go to the Capitol and talk to your friends about, hey, it's OK if they're armed. Let's take down the magnetometers. That's the kind of thing that Jack Smith is compiling in the whole. Now, if you look at it just in isolation, where Mike is correct in saying, hey, the president has the power to call the guard. Yeah, but Jack Smith's not looking at it in isolation. He's looking at everything and saying he tried to obstruct the counting of the votes. That's a crime.

He had a conspiracy to defraud the United States. That's a crime. He tried to deprive people of the rights to get their votes counted. That's a crime. And that's what he's being charged with in D.C. All right. Well, I want to get back to that in one second. You're taking on Mike's first point, which is he did do more than just challenge the vote. He did more. I mean, we have a gut feeling that Trump did more to challenge this vote than we've seen in the past. But this trial will come down to what exactly more was it? And was that conduct illegal? But before we get to that, let's stay on immunity for a second. And Mike's second point, which is, you know, if you're if you're coming after him

for not acting quicker as commander in chief the day the riots broke out, you're coming after him for decisions he made as commander in chief. If that's all he did and all he did was he was too slow to call the guard, he didn't take the threat seriously enough, then I don't think that Jack Smith would have a strong case. But that's not what he's being alleged of doing. It's a lot bigger than that. That's part of this whole scheme. OK, all right. I got it. That's a concession. I got it. But that gives us where we where we need. Now we know where we need to argue. And I do want to spend another minute on the allegations that you just laid out, because, you know, you make it sound bad. And listen, I know in here is defending Trump's behavior around January 6th in the

election. I'm not defending that. But but is it illegal? And does and does Jack Smith have a crime alleged adequately here? You know, you mentioned the phone call, whatever, to the Georgia secretary of state. OK, he's got a defense for that. He's going to take the stand or somebody's going to, to say, I thought I had been cheated out of a hundred thousand votes. I was only saying, look, all you need to find when you're doing your searches and reviewing the votes is 11,000, because that would put me over the edge. You don't have to keep counting after you get to 11,000 and change. That's what we're going to hear. And the speech at the Capitol, you know, he said, be peaceful, peacefully march peacefully. He didn't tell anybody to go breach the Capitol or assault police officers to the

country. He said, remain peaceful. And on the magnetometers, I mean, I have heard, for example, I heard Molly Hemingway who covered Trump on the trail quite a bit for the Federalist during his presidency. And she was saying, you got to understand Trump, and you guys know this, is obsessed with crowd sizes. He wants crowds. If he's going to give a speech, he wants a lot of numbers there. And he repeatedly said throughout his presidency, get him around the magnetometers, let him in.

The Secret Service takes too long. These are my people. They're not armed. It's fine. So that was a pattern. And I think that they will be able to show it wasn't about Trump trying to get armed insurrectionists on campus so they could storm the. It was about Trump is saying, Mike, there no one's here to hurt anybody. Like, stop it. It's taking too long. And I'm going to give my speech and I want the people in,

which changes what you just said, Dave, from something that sounds nefarious and terrible to. Oh, that's Trump. The problem, Megan, is that when you look at in totality, when you look at his comments about Mike Pence, for example, sending out that inflammatory tweet that really did enrage people about Mike Pence. And then after this is going on for hours for having him sit in the White House approvingly of what's going on and not calling off the dogs, when you put it all in in a in totality, that's where it's a crime. If you just look at an isolation and that's what Trump's lawyers are going to do, what Mike did, which is to say, hey,

as president, he may have made a mistake in not calling the National Guard. OK, but if you look at it in the context of the reason why he didn't call the guard was because he wanted that mob to storm the Capitol to obstruct the counting of the votes. And that's the crime. Go ahead, Mike. I mean, under that theory, could you charge President Biden with manslaughter for the American troops being killed during the Afghanistan withdrawal? I mean, do you really want to go down this path where if you're saying that the president did not do his job quickly enough or he was negligent doing his job, that he could be charged with a crime? There is a reason we have government immunity for judges, for members of Congress, and apparently for presidents, unless it's President Trump, because apparently there's a Trump derangement syndrome exception to every protection for every president. Okay. Now I want to, I want to shift to yet another angle that could get this in the January 6th case to me. It's huge because even though the Mar-a-Lago case is the case in which he's probably facing the most actual trouble,

like he, I would not be giving Dave this hard a time about the facts alleged against Trump on the Mar-a-Lago case, because if it's true and he defined defied a federal subpoena, it's no bueno. But sticking with J6, it's it's a very important case because, again, the D.C. jury is going to hate him. And it appears Judge Chutkin is not his fan. And this is a case that's being fast tracked and that could wind up in, you know, putting Trump in jail before November. So this is the case we really need to be paying very close attention to. And the one that's going to be affected by this immunity ruling that may stop with the with the D.C. Circuit or may go up to SCOTUS, et cetera. And there is another case

percolating through the DC Circuit, the federal courts in DC, including the DC Circuit Court of Appeals, and now up to SCOTUS that could wipe out half at least of the case against Trump. It's very interesting. And this is a case involving other J6 defendants, not Trump. SCOTUS took the case. So it's going to go up. And we don't, they haven't scheduled oral arguments yet, but it's January. The Supreme Court, its term ends in June. So it's going to happen sometimes in the next six months.

It's going to get decided. And we'll have to wait at the latest till June to find out their ruling. Now, usually in my experience, the trial court, if it's dealing with half of the government's case, could get thrown out because the Supreme Court's about to issue a ruling that two of the counts here may not be constitutional. I mean, it may not be criminal charges at all that you can bring. You would wait. Most prudent federal district judges would say, I'm not getting ahead of my skis on this. Supreme Court's got it. My docket's full enough. We'll kick this thing to July after I got a ruling from my big bosses on whether half of the government's case is going away. That's not happening so far. Jack Smith wants to go full speed ahead, the prosecutor. And it seems like Judge Shetkin's. So to me, that's just smells of partisanship. Why? What's the rush

other than to get him in jail before November? All right. So here's the case. One of the J6 defendants has appealed this, his conviction or his chart is being charged with this crime under federal statute, they call it 1512, which accuses defendants of obstructing an official proceeding. Now, this was part of the Sarbanes-Oxley Act. You guys know this. I was still practicing law when that thing was passed. And it was passed because of Arthur Anderson, which in connection with Enron, got subpoenaed and it was getting investigated by the SEC for being complicit in Enron's crimes and started shredding a bunch of boxes and documents.

So they passed this statute saying you obstruct an official proceeding like that, you're going to jail. Well, Jack Smith is trying to use it against Trump and federal prosecutors are trying to use it against J6 defendants and have been using it successfully against a bunch of J6 defendants saying, you tried to obstruct an official proceeding. You tried to interfere with Congress doing its duty and voting that day. And it's working. CBS News with a report, the Justice Department has charged more than 327 defendants with this crime, which carries a maximum of 20 years in prison. More than 50 have pleaded guilty. So now you get the one guy who says, you know what, this is a bullshit crime. You can't. This is not a crime. This is for the Arthur Andersons of the world. This isn't for people who get out of control on the Capitol grounds. And CBS interviewing at least one formal federal prosecutor, the quote is, the obstruction charge, quote, permeated every major J6 trial in the district court in Washington. He went on to say, this is Gene Rossi. He represented one of the

Oath Keepers charged. He said the 1512 charge for these prosecutors has been their gold standard, their North Star. It was the capstone of their prosecutions. And now they are going to decide, the Supreme Court, whether this is in fact an appropriate use of 1512, whether you can go after J6 participants for obstructing an official proceeding based on the riot on J6. And if they rule, the lower court ruling said you can go for it. And Supreme Court took it. They usually don't take it just so they can affirm it, though they sometimes do. So I'd be feeling pretty good if I were a J6 defendant, that they're going to say this is not a charge and it's going to lead to a whole bunch

of new trials for the J6 defendants. And it's going to lead to a bunch of lower pleas, easier pleas, lesser pleas between prosecutors and J6 defendants. And it will, if they overturn these convictions and say this is not an appropriate use of it, wipe out the majority of Jack Smith's case against Donald Trump in that Judge Chutkin, J6, Washington, D.C. federal trial. Long winded explanation, but it's kind of complicated. So how do you guys see this appeal, which doesn't involve Trump, but will affect him, playing out? And how does it affect the timing of this appeal, which doesn't involve Trump, but will affect him, playing out? And how does it affect the timing of this case, Mike?

Well, I don't think that Biden's special counsel, Jack Smith, or D.C. Obama judge, Tanya Shutkin, are going to be cautious here. They've proven that over and over, that their goal is to get Trump. The Biden Justice Department waited 30 months to bring unprecedented charges against a former president who happens to be the leading presidential candidate. And they timed these charges to interfere in the 2024 election, along with these other Democrat prosecutors. They have four different criminal indictments against Trump, and they have stacked these trials back to back to back in 2024 to interfere in the election. And so what should happen if you had a reasonable prosecutor and a reasonable judge, they would say, wait a second, we are in uncharted territory here. We're dealing with a presidential election. There

is no rush to try this case right now, especially if you waited 30 months. Let's wait until the Supreme Court decides this key issue. So we know before we move forward with a trial and conviction in DC, which is certain in DC because his name is Donald Trump. And it's in Washington, DC with a jury pool that voted 95% against Donald Trump. And these judges on this DC district court are Obama judges like Tanya Shukin or Trump deranged rhinos. I know this. I helped pick and confirm these people. These are the swamp monsters of the judiciary in DC, right? But what you've seen with Jack Smith in the past, he has horrific judgment as evidenced by the fact he has been rejected unanimously by the Supreme Court. Now, twice on these political cases, he brought bogus charges against former Virginia Governor Bob McDonnell, a likely 2016 presidential or vice

presidential contender. He won a conviction, and it wasn't until after Bob McDonnell's life was ruined and his political career was ruined that the Supreme Court unanimously reversed him. It is very hard to get a criminal conviction reversed by the Supreme Court. It is nearly impossible for that to happen unanimously. But Jack Smith found the way. We talked about he also found the way when he went right to the Supreme Court. He tried to leapfrog the D.C. Circuit to get immunity decided quickly so he could prosecute President Trump before the election. He got rejected unanimously by the Supreme Court. He is – Jack Smith is the Democrats' political scud missile they bring in to take out Republican presidential contenders.

He doesn't care if he ultimately loses. He got banished to the Hague. Joe Biden and Merrick Garland brought him back because he is a clown, a partisan clown. You bring it to take out Republican presidential contenders. You know, Dave, it does feel like we were just over Christmas and I was looking at my kids toys and one of the toys is Stretch Armstrong. Yeah, pull him. Stretches, stretches. You know, you could make a good case that he looks a lot like our friend Jack Smith, who's stretching these statutes in the Bob McDonald case and now in the Trump case to

try to fit conduct he finds politically objectionable. Megan, in that McDonald case in Virginia, he won at trial and then it did get rejected the Supreme Court. But he wasn't the lawyer at that at that time. He was not the solicitor general. So the solicitor general lost the argument. Jack Smith won his conviction. I see. It was a crappy appellate lawyer who lost it. Believe me, appellate lawyer. But you know what? I actually, as a prosecutor, I admire Jack Smith. I think he's this guy is going full speed ahead. He doesn't care about politics. And I'm not going to get to the Jack Smith bobblehead doll anymore. Mike, for your birthday, that was that's going to be crossed off the list.

And I'm amazed he's going to get you Stretch Armstrong instead. I'll take Stretch Armstrong. I remember Stretch Armstrong. Yeah, absolutely. You know, Hunter Biden, let's talk about him for a sec. Hunter Biden is being charged with a crime. Well, hear me out here. Hunter Biden is being charged with the crime of possessing or calling for a gun. Wait, no, no, no, no, no. I can't handle Hunter yet.

This is a confusing enough segment as alone. Can you just, before you comment on him, can you comment on my long wind up about how the January 6th case is probably going away? At least half of it is going to die when SCOTUS decides this J6, the other defendant's case. I don't think SCOTUS is going to overturn that statute's application in this case. It takes four justices to hear a case. I admit I'm surprised they took it up, but I think they are going to do what every other judge has done in this case. It takes four justices to hear a case. I admit I'm surprised they took it up, but I think they are going to do what every other judge has done in this case, except for one Trump appointed district court judge who found that you can apply 1512 to obstruction of official proceeding in the cases of the rioters. Yes. So I think they're going to affirm it. And as to

whether they should wait and stall until the Supreme Court rules. That's why I bring up Hunter Biden. Hunter Biden is charged under a law that has already been overturned as unconstitutional on the Fifth Circuit. It's making its way in the courts. And yet he's still being prosecuted under that gun law. Exactly. So this is very common for prosecutors. You're such a Second Amendment advocate.

Right? But this is common for prosecutors. We're not going to wait for the Supreme Court to perhaps overturn the statute. We're going to keep going forward like every other judge has done. And I think that the Supreme Court anyways is going to sustain that statute. That I mean, if they keep going, when half of the case against Trump might collapse at at the hands of SCOTUS, it's not like a, it's not even just the DC circuit. It's like the Supreme Court might throw out. It just shows to me the partisanship, especially given the stakes and who it is and how they know this is being perceived. All right, stand by because we've

got more to do with Mike and Dave and we're going to squeeze in a quick last break. I'm Megan Kelly, host of the Megan Kelly Show on Sirius XM. It's your home for open, honest, and provocative conversations with the most your home for open, honest, and provocative conversations with the most interesting and important political, legal, and cultural figures today. You can catch The Megyn Kelly Show on Triumph, a Sirius XM channel featuring lots of hosts you may know and probably love.

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Subscribe now. Get your first three months for free. Go to SiriusXM.com slash MK show to subscribe and get three months free. That's SiriusXM.com slash MK show and get three months free. Offer details apply. All right, so let's do some housekeeping on these trials. That March case that we've been talking about is still scheduled for now to start March 4th, the day before Super Tuesday. That's not going to happen because they've got these appeals going up. But the question is, when will it happen?

Dave, what do you think the timing of that March trial will actually be? I think within 60 days of that March date. I think it's because I see the expedited review at the D.C. Circuit Court of Appeals. They'll come out with an opinion pretty quickly. And then I think the U.S. Supreme Court is going to defer, deny cert on the immunity issue, and then it goes to trial. And that there'll be no delay as a result of this other J6 case we just talked about. Right. They're moving full speed ahead. I don't think the Supreme Court is going to

rule before then. And I don't think it matters because I think they're going to allow that statute to be used anyways. So, yes, I don't think that's going to matter. And even if even if Trump wins or the J6 defendants wins and Trump's and there's still two other counts against him in the J6 case. So, you know, Smith and Chuck Ingram will say, well, that's reason enough to let it go forward. Mike, what do you think? Is there any case, any chance that case gets tried

as early as May? No. And the reason is, is that the Supreme Court is almost, if the D.C. Circuit doesn't do this, the Supreme Court is almost going to, almost certainly going to hold that the presidents are immune from criminal prosecution, like members of Congress, like judges. The Supreme Court will have to remand the case back down to Judge Chuck, and she'll have to have an evidentiary hearing on that immunity issue, to establish the facts to figure out where the immunity lies and where it doesn't lie. And you're going to have to do this while Trump has back-to-back-to-back trials in other

jurisdictions, whether it's the civil fraud trial that's going on now and the four criminal trials. And so I don't know how you can rush this and get this done. Separate from that, there's a lot of discovery, right? So they're just not going to be able to get this done. And you have to ask, Jack Smith waited 30 months to bring these charges. What's the rush other than election interference? We did go back and look under count one in the Jack Smith case, conspiracy to defraud the U.S. He, Jack Smith, detailed Trump's actions on J6 and noted he, quote, repeatedly refused to approve a message directing rioters to leave the Capitol as urged by his most senior advisers. Also noted his 4.17 p.m. video message that day saying the election was stolen, finally asking people to leave, saying they were, quote, very special.

So the court could be told to decide whether those were commander in chief decisions or those were Trump, the candidate decisions. But the more Trump can put in the commander in chief decisions or those were Trump, the candidate decisions. But the more Trump can put in the commander in chief camp, the more likely he is to get immunity for it. OK, and so that's that's the January 6th case. He's also pushing to have that case televised, which federal court trials are not. Is there any chance Judge Shetkin allows that, Dave? No, unfortunately not. This is one area I agree with Trump. I want these cases televised. There needs to be more transparency in federal court. There's none. And perhaps Chief Justice Roberts can change that. But I don't see that happening anytime soon. All right. And then very, very quickly before we go, is Trump going to jail before November of 2024, Mike?

Well, if they try to do that, it's going to guarantee that he's back in the White House and they're going to have to clear out a cell block and put his Secret Service agents in the jail with him. So that shows you how dangerous these unprecedented indictments of a former president and a leading presidential candidate are. Dave, yes or no. Is he going to jail before November? No, I think he'll be convicted, but I do not expect him in an orange jumpsuit before November. OK, thank you, gentlemen. Always a pleasure. Don't forget, we've got Jesse Kelly here tomorrow.

Thanks for listening to The Megyn Kelly Show. No BS, no agenda, and no fear.