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

Episode Date: June 28, 2023

Megyn Kelly is joined by Ric Grenell, former acting DNI director, to talk about the potential that AG Merrick Garland committed perjury in front of Congress, allegations about his attempts at interference by the IRS whistleblower, the way it works in the swamp of D.C., new information that the supposed classified Iran documents are not involved in the Trump indictment, Trump's new defense about the audio tape, former Trump administration staff attacking Trump now, the Trump path to beat Biden in 2024, California legislature members walking out after Grenell received a Pride month honor, and more. Then legendary lawyers Marcia Clark and Mark Geragos join the show to discuss what we're learning about crime scene evidence in the Bryan Kohberger Idaho murders case, new details about the defense’s strategy, the potential death penalty on the table in the trial, a potential new murder trial for the Menendez brothers, how a former Menudo member plays into the case, a new charge against Daniel Penny in the death of Jordan Neely, and more.Grenell: https://fixcalifornia.comClark: http://marciaclarkbooks.com Geragos: https://geragos.com 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, your home for open, honest, and provocative conversations. Hey everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show. We have reached a very clear choice. Either Attorney General Merrick Garland is lying, or the IRS official who oversaw the investigation into Hunter Biden, who's now speaking out on the record as a whistleblower, is misleading us. That is how the choice appears. And only one can be true. The implications to this are huge. And there's new reporting on it today from The New York Times. Joining me now to dig into it all is Rick Grinnell, a close

confidant of former President Trump. Rick, of course, served as acting director of national intelligence and U.S. ambassador to Germany during the Trump administration. Rick, welcome back to the show. Great to have you here. Thanks for having me, Megan. Always a pleasure. So this is a stunner. Here we go again in The New York Times, of all places, confirming what this whistleblower from the IRS investigation into Hunter Biden told Congress. The whistleblower from the IRS investigation into Hunter Biden told Congress the whistleblower came through. He was the chief investigator on the Hunter Biden case and said this was mishandled time and time again, that the U.S. attorney for Delaware, David Weiss, who was in charge, had told this whistleblower, Shapley and several other FBI agents and other law enforcement agents that he, Weiss, was empowered or sorry, was was not empowered to bring charges in any jurisdiction other than Delaware and that he was going to need the cooperation of the DOJ and others within the DOJiss to bring charges wherever and on whatever he saw appropriate. It's a clear diversion between what Weiss allegedly told the whistleblower and other FBI and related law enforcement agents and what Merrick Garland's saying. So we don't know what

is true. But if what the whistleblower is saying is true, then it explains why Hunter Biden didn't get charged with more. Why this stopped it. Slap on the wrist charges about tax incidents and so on. And today we have The New York Times confirming what the whistleblower said. All right. So we'll get it. We'll get into it. All of it. Let me just start with this. So the whistleblower comes forward and says they tied this guy's hands. Merrick Garland was tying this guy's hands. And then you have Merrick Garland coming out and saying, that's a lie. He told Congress under oath in March, Merrick Garland did, that he had empowered David Weiss to do everything and anything. Here's that testimony.

It's important because it's under oath and it's probably going to come back to haunt him. Here's Merrick Garland in March. This indicate that the Justice Department and the FBI had at one time over a dozen sources that provided potentially criminal information relating to Hunter Biden. So as the committee well knows from my confirmation hearing, I promised to leave the matter of Hunter Biden in the hands of the U.S. attorney for the District of Delaware, who was appointed in the previous administration. So any information like that should have gone, or should or should have gone, to that U.S. attorney's offices and the FBI squad that's working with him.

I have pledged not to interfere with that investigation and I have carried through on my pledge. I pledge not to interfere. Now, that is not at all what the whistleblower is saying happened here. He's saying that David Weiss was shut down at every turn by Merrick Garland's U.S. attorneys and other jurisdictions saying, I'm not touching it, I won't do it. And that that stopped the investigation, among other ways in which he alleges Merrick Garland's U.S. attorneys and other jurisdictions saying, I'm not touching it, I won't do it. And that that stopped the investigation, among other ways in which he alleges Merrick Garland interfered. Here's the second thing. Merrick Garland comes out on Friday to respond to the whistleblower. And here's what he said. Mr. Weiss, who was appointed by President Trump as the U.S. attorney in Delaware and assigned this matter during the previous administration,

would be permitted to continue his investigation and to make a decision to prosecute any way in which he wanted to and in any district in which he wanted to. The only person with authority to make somebody a special counsel or refuse to make somebody a special counsel is the attorney general. Mr. Weiss never made that request to me. The whistleblower alleges the opposite, that Weiss told him he had asked to be labeled special counsel so he could just bring the charges everywhere, wouldn't be limited to Delaware, and that Merrick Garland denied the request. There's a clear divergence between what the whistleblower is saying, what Merrick Garland is saying, and the New York Times is now reporting that they too can confirm

this IRS investigator's testimony is absolutely at odds with what Merrick Garland said. They've done their own investigations of the whistleblower's claims and also confirming here that David Weiss went to at least two other U.S. attorneys, one in California, one in Washington, asking if they would bring charges that they would help with an investigation against Hunter. And he was turned down. So what happens now? Because there's been talk by Kevin McCarthy of possible impeachment proceedings against Merrick Garland. And I'll tee up one other soundbite for you, Rick. And that is Ted Cruz, Senator Ted Cruz, who went so far as to say if this whistleblower's claims are actually true. And The New York Times now advancing it, saying we see the same divergence in testimonials here.

There should be absolute penalties to Merrick Garland. Here's Ted Cruz a couple of days ago. Every word he said there is a lie and the self-righteousness with which he says it. Ben, I got to say it's time. It is time. The Department of Justice needs to appoint a special counsel to investigate Merrick Garland for obstruction of justice and perjury. Wow. There's a reason he's saying don't ask these questions. Let's be clear, it is his integrity. And I want to walk through it because that is a very serious statement. But at this point, the evidence that Merrick Garland personally committed multiple felonies is growing greater and greater. And the chances that the Merrick Garland Justice Department will

fairly investigate evidence of his wrongdoing are zero. Wow. Asking for criminal charges, saying we need a special counsel to investigate the attorney general of the United States for crimes, including obstruction of justice and perjury in connection with this case. So what do you make of all of it? Well, first of all, two quick points. One, thanks for Senator Grassley and his team. They are phenomenal. They are digging deep. I know personally that they are doing really good detailed work before they come out with charges. So

thanks to them. Secondly, I'm really struck, Megan, with, you know, we talk a lot about the two tiers of justice, this two standards of justice in Washington, D.C. But I'm struck with the two differences in how leaks happen in Washington, D.C. Look what CNN did all day yesterday. We don't even know what the outcome of this Donald Trump investigation is on the classified information charges. But they're already leaking before we have any charges before the finality. They are leaking information. CNN seems to get it all the time to kind of spin before we let the justice kind of system move forward. Contrary to that, you got to give it to this whistleblower. He waited. He waited until the charges were filed. He waited to see. He didn't try to weigh in beforehand and push the process. He did exactly what he's supposed to do, which is become a whistleblower after there is an outcome that seems to be a problem. He didn't go out and leak beforehand. I think we've got to ask ourselves, why are leaks in Washington,

D.C. from the bureaucracy always trying to slam against Republicans before justice is delivered or before what seems to be the process is finished. And so I want to point that out, because I think it's really relevant to the whistleblower's credibility. The second, the third point that I would say is I disagree with Ted Cruz a little bit of no more special counsels. I mean, if he lied, let's look at the evidence and let's have Congress step up and do something. Let's impeach him. Let's hold him to account. But, you know, a special counsel means a whole bunch of more money for the U.S. taxpayer. It means a whole bunch of more time and justice delayed. I'm so sick and tired of justice delayed.

We've got to get to the point where if we're going to lecture other countries on the rule of law, that we got to clean up our rule of law. I'm sick and tired of having justice delayed, because it's really justice denied. Look at the Durham report, look what they did to Trump multiple times. You've got to ask yourself, why do they keep coming after Trump constantly, but then you see the Biden family completely get away with a whole bunch. So I'd like to see Congress step up and move a little bit quicker than just appointing another investigation. How would they even appoint a special counsel to investigate the attorney general of the United States when it's the attorney general's job to appoint special counsels? Like, that's how you get a special counsel is the AG has to appoint him or her,

which is not going to happen from Merrick Garland to investigate himself. So you're right. I mean, I'd love to ask Ted Cruz that. I'll ask him when he comes on soon. But you're right that the most fruitful means of exposing what's happening in this whole lane thus far has proven to be those House Republicans. And Comer, the guy who heads up the Oversight Committee has been saying, same as you, no more special counsels for any of this because all they do is take the ball, hide the ball, manage to keep everybody from being able to talk to Congress because they can just say, it's being handled by the special counsel and then they bury things at the end. So Comer so far has proven very

adept at getting us the information that's out there. Yeah, look, politicians in Washington, D.C. have got to move away from just voting, showing up and voting and then fundraising and saying, oh, look what I did. I voted on something and take their responsibility of oversight a little more seriously. When you have responsibility for oversight, then you've got to use the power of subpoenas, and you've got to get to the bottom, and you've got to call it out and vote on an actual action. So impeachment, or censorship, or something, give us action. I don't want to see this process kind of, you know, continue on, continue on. That's the ways of Washington. But one other

point, just because I know Washington, D.C., and I know the swamp pretty well, there is a system in place where if you get appointed to a job by somebody, you have to remember that they're writing your annual review, those people. And so the only way that you move up in Washington is to get a good annual review, please your bosses, don't rock the boat too much, get rewarded with a bigger office, a bigger title and more money on the GS scale. And so no career person is going to try to investigate their bosses because Washington, D.C. bureaucrats are filled with a bunch of fear that they are going to not be able to be promoted. It's one of the reasons why I believe wholeheartedly we got to start moving these agencies out of D.C. because people go from the Department of Justice to the FBI to the Department of Commerce as bureaucrats.

And it's all the same pool of people in Washington. They live together. They work together. They go to church together. Their kids go to school together. You're asking them to completely implode their lives by stepping out. You know, there's very little reason to suspect that the Senate is going to do anything about the lies that may have been told by Merrick Garland. Right. I mean, I was just thinking about this the other day. Victor Davis Hanson had a great column about how, you know, Trump's right hand man, his sort of valet. That's how the Brits would say it. his valet, Walt Natchewa, I can't remember how you pronounce his last name, but he's also been indicted as Trump's alleged co-conspirator in connection with the whole documents thing.

And what's he being indicted for? Well, for allegedly saying when asked by investigators, did you move the documents? Were there documents here? Were there documents there? I can't remember. I don't know. I'm not sure. I can't remember. And Victor Davis Hanson pointing out that, you know, you had James Comey saying those things hundreds of times in his testimony. It turned out not to be true.

Nobody believes that you had James Clapper testifying before Congress that he did not wittingly, you know, participate in the NSA spying program, that there was no such program. So no, absolutely no penalties for any of that. So now they but it's a different story if you're connected with Trump. Right. This is what happened. It's a different story if your name is Merrick Garland, even though you may have provided obviously untruthful testimony before Congress. I mean, the double standard is obvious, Rick. It's obvious. It's right in front of us. And that's why I think a lot of people are frustrated with Congress. They've got to start acting. Look at the evidence. Stop the process. Analysis, paralysis. And let's let's move on. I have to be careful on the documents case, the Jack Smith case, because I've been called in front of the grand jury. I can say that because it's

been reported by CNN. But I just want to tell you how crazy the system is, is that when I was hauled in front of the grand jury to testify, I wasn't even in Washington, D.C. when they packed up the boxes. I was already back in Los Angeles, which they knew, but they didn't care. They wanted to put all of the Trump people through the ringer, make us pay for lawyers, try to take time away from your business, just harass you. That's exactly what they're doing. There's no question about that. But I got the finger waving to me at the end of my grand jury testimony from the prosecutors. Don't you dare leak anything. Don't you dare talk about this. We'll come at you.

They try to scare you with telling you to shut up. Don't talk about anything that was discussed or planned. Megan, this is the truth. I'll put my hand on the Bible. By the time I walked to my car, which was underneath the courthouse, I got into the car. And the driver said, Oh, you're on cnn.com your whole testimony. I look at the story, they have the exact, literally exact questions and exact documents that they showed me to ask me questions for all on cnn.com. Now, there's only one possible way that that happens somebody inside the the prosecutor's office leaked everything while i was inside the grand jury because somebody had had to have time to get all of that up by the time i finished the testimony and walked

down to my car which took about three. It's really outrageous what happens in Washington and people need to wake up. This is the system in Washington that is not about the rule of law. It's about the rule of DC. And we've got to stop this. We've got to move the power base outside of Washington, move it back to the American people. And I will say this to all the people watching, you have a responsibility to get involved and to dig deep. Don't just watch one podcast or one newscast or just read the New York Times. You have a responsibility. You can't just sit back and watch Washington, D.C. types dupe you because that's exactly what they're doing. That reminds me of what happened to James O'Keefe. Remember when his home got raided at 5 a.m., as the feds do when they're going to raid you? And that morning, I mean, almost simultaneously, the New York Times had an article about it. Well, how did that happen? It wasn't James O'Keefe calling the New York Times,

who's obviously the feds trying to embarrass one of the president's critics over this, you know, or more than embarrassed about whether to publish Ashley Biden's diary. Yeah, I think look, I think more than embarrassed, they want to intimidate. They want to send a message to everybody else that we're coming for you. Look, this is the ways of Washington. And as you know, I've said this a million times, worked at the State Department for 11 years. I've worked on all of the human rights reports that come out. I work on all of the reports that, you know, finger wag from the State Department to other countries train their judges and train the legal processes, people involved, so that you have a upstanding rule of law. I have to say that we've lost our moral compass underneath the Democrats. They cannot finger wag about the rule of law to other countries when we see what's happening in DC, selective leaks,

and a clearly double standard. Everybody sees this. When I travel to the Balkans, I hear people, leaders, others saying to me, what's going on in the United States? Why are you guys telling us to clean up our act or stop corruption? Clearly, it's happening right in our country and not a lot is being done about it. All right. Now, understanding that you're limited in what you can say on the documents case against Trump because you were called as a witness. Let me ask you about the latest on that tape recording that was leaked to CNN by by whom whomever could have leaked it. We have no idea. So this gets leaked to CNN.

And it's interesting to note, I mean, it doesn't exactly make Trump sound good. It sounds like he's got a classified document there, though he's denying it. But Catherine Herridge points out, she reports for CBS News now, that it actually doesn't relate to one of the 31 documents he's accused of improperly keeping. It's not one of the 31 classified documents he's accused of keeping. Even whether whether we know the feds don't have the document, they didn't find it in any of his Mar-a-Lago documents. But it is kind of curious. So why is it relevant? Well, I guess it's relevant because they're going to show see see members of the jury. He knew that he had classified material, confidential national security defense information. He was reckless

with it. He was careless, which, as I understand it at this point, the case would be, you know, part of the story, but not a requirement to make the case against Trump. And in any event, it's dominated the news cycle now for a couple of weeks. So CNN releases the audio tape. Trump's allegedly waving a document around saying these are plans submitted to me by the Defense Department, by the military that have a draft attack on Iran outlet outlined. Now, his first defense to Brett Baier when he commented on this last week was there was no document. There was no document. Here's a little bit of what he said to Brett. Ready? You were recorded in a document. OK, I had lots of paper. I had copies of newspaper

articles. I had copies of magazines. When I said that I couldn't declassify it now, that's because I wasn't president. I never made any bones about that. When I'm not president, I can't declassify. There was no document. That was a massive amount of papers and everything else talking about Iran and other things. And it may have been held up or may not. But that was not a document. I didn't have a document per se. There was nothing to declassify. These were newspaper stories, magazine stories and articles. I don't think I've ever seen a document from Milley. Okay, so that's what he told Brett, but the actual audio recording suggests he's saying, here's something that was given to me by the military. Well, now he's saying something kind of similar, a little different. I'll let the audience decide. This is what he told Fox News on Tuesday, Sat 1.

And I said it very clearly. I had a whole desk full of lots of papers and mostly newspaper articles, copies of magazines, copies of different plans, copies of stories having to do with many, many subjects. And what was said was absolutely fine and very, very perfectly. We did nothing wrong. I'm covered by the Presidential Records Act. I'm covered also by the Clinton Sox case. It's a very important case. It's law. You're not concerned then with your own voice on those recordings? My voice was fine. What did I say wrong in those recordings? I didn't even see the recording.

In fact, you could hear the rustle of the paper, and nobody said I did anything wrong other than the fake news, which, of course, is Fox, too. Are there any other recordings that we should be concerned of? I don't know of any recordings that you should be concerned with because I don't do things wrong. I do things right. I'm a legitimate person. I'm not like Biden. And then just to add to that, Rick, he goes on. He spoke to Semaphore, which is a relatively new news organization, saying it was bravado. If you want to know the truth, it was bravado. I was talking and just holding up papers and talking about them. But I had no documents asked about his use of the word plans. He said he was referring to building plans and plans for golf courses strewn about his desk,

which does contrast to what's in the recording where he says the military gave this to me. How do you reconcile it? Yeah, look, first of all, let me just speak directly to Jack Smith that I know nothing about this. I wasn't there. And if you're going to drag me in to talk about it, I'm just going to give you the exact same line, which is I don't know anything.

But let me just speculate here because I know President Trump and I heard the recordings and I've seen this. To me, it's pretty simple. There was a New Yorker piece that really got people riled up. And it was a piece that said that Milley presented this plan, General Milley presented this plan to attack Iran and, we in the Trump

administration thought about it and we're making plans for it. Obviously, that is salacious. It's big. It goes to the heart of the Trump doctrine, which is use diplomacy and tough diplomacy, sanctions, et cetera, isolation to get your enemies to do something rather than war. You remember Donald Trump is all about, I didn't start any war, didn't plan to start any war. We were prepared, but that goes to the heart. And I can tell you that that New Yorker piece was outrageous to me. I was thinking, how dare they do this? I never saw those plans. I could talk to other people in the administration. We never saw plans. If Milley had something, then he did it on his own, and then he pitched it to the New Yorker. That piece had just come out

when they were having this talk. And to me, it would be very obvious to hold up the New Yorker piece and say, you know, see this, this is like them saying documents, this is saying that the documents existed and him talking about it. Again, I don't know anything. Specifically, I wasn't there. But to me, this all makes complete sense in trying to bat down the narrative that somehow we were planning to attack Iran. And the New Yorker piece goes not only to say that there were there were plans, but that Milley presented those plans to Trump and that we were considering that. I think that's hogwash. I mean, the thing is, like I he does get specific in the audio tape that making it sound like he's got the document in hand.

But I said from the beginning before we even heard the recording, what Trump is now saying, essentially, they could have been bluster. It could have been Trump being like, I've got it right here. Trust me. Mark Milley was the one pushing war, not me. We don't know whether Trump actually had the document in hand or not. Yeah, look, I listened to the recording a couple of times. And if you put in your mind that he's holding up the New Yorker piece, it makes total sense. It's like, look, this is,

because the New Yorker piece was very specific. And when you're holding it up, you're like, look, this is the plans that they said that we had. And so to me- But then he talks about how I have to declassify. That's the part that suggests it is. Well, we'll play it. We have we have a we'll play the shorter version because we played the full version yesterday. But here's a here's a clip of that alleged meeting. Well, there

was a meeting between Trump and it was about Mark Meadows book. And this is the one that has caused so much trouble here. Well with Millie, let me see that. I'll show you an example. He said that I wanted to attack Iran. Isn't it amazing? I have a big pile of papers. This thing just came up. Look, this was him. They presented me this is off the record, but they presented me this. This was him. This was the Defense Department and him. Isn't that amazing? This totally wins my case, you know. Except it is like highly confidential, secret.

This is secret information. Look at this. This was done by the military, given to me. I think we can probably see. Yeah, we'll try to see. As president, I could have. No, I can't. You know, but this is.

Yeah. So, I mean, that doesn't sound like he's holding up a newspaper article, but it doesn't prove he's holding up the actual document either. Yeah, look, I wasn't there. I have no idea. But the reality is, to me, is that Donald Trump gets emotional about a lot of these articles. And it goes at the heart of what we were trying to say is that we didn't do war. And it makes perfect sense to me that this very detailed New Yorker piece, which lays out plans and says that we were, I mean, it's literally General Milley, who was our guy who was supposed to make war plans and be prepared saying, oh,

no, we I did this and I presented this to the president and they were going to go to war. That goes to the heart of our messaging. And to me, it makes perfect sense that he's holding up something that says this is so outrageous. The whole plan is in this New Yorker piece. But again, I don't know. I wasn't there. I do wonder. I've been listening to Alan Dershowitz a little on this and I love Dershowitz, but he's been raising questions about this. Like, is this even going to Alan Dershowitz a little on this, and I love Dershowitz, but he's been raising questions about this. Like, is this even going to be admissible? I know you're not a lawyer, but I don't even know whether this is going to be admissible

if it doesn't prove one of the 31 documents that were allegedly improperly handled and they never found the document. So what does this prove? Right? That's a key point. What actually does this prove? Because what Catherine Herridge was saying, and now I take your word that Dershowitz was saying it's a very big deal because if they don't have the this audio tape, because they just want to, you know, push like they did on on the Russia, Russia document could come in, given that it doesn't speak directly to one of one of the charges in the indictment or in one of the documents he's alleged of improperly holding onto, then why did it?

Why is it leaked? Right, exactly. To win the PR war, not to win the PR war. But look, I would present to you sized and I criticize him to, you know, just's a lawyer. I'm like, shut up, shut up, shut up, shut up. Don't tie your lawyer's hands. You know, let the lawyer go in there and argue it however he or she wants. But the more the client speaks about it, the less he's able to be nimble. So as a lawyer, never want my client to speak. But Trump's got two wars to fight here. He's got a legal war. And that's a very scary and important one because he could go behind bars. But he's also got a PR war because he's running for president. So it's he's almost in the position of having to say something because otherwise he's laying down on the PR war, which leads directly to

the presidency potentially. I can promise you we're not going to lay down on the PR war. That's not something that President Trump will do. But look, I would submit to you, I think that's what you lawyers say. I would submit that the reason why that document is not in the indictment is because maybe they know that it was a New Yorker piece. Maybe they know that it wasn't the classified information. And they're so furious that they didn't get this moment that they're going to fan the flames of innuendo and half-truths. And so they're so furious that they didn't get this moment that they're going to fan the flames of innuendo and half-truths. And so they're going to leak it out now. They certainly aren't waiting to have this in the courtroom when the case is going forward. You have to ask yourself, why? Why is the prosecution not waiting to present this when it's their turn? Why are they using it,

not in the legal sense, but in the PR sense. That to me answers your question. And we don't know for sure that it was DOJ that leaked it. It could have been one of the other attendees at the meeting. Megan, Megan, Megan. No, no, I hear you. I hear that. They certainly... I would just say I've got a lot of proof of the swamp in Washington that I would I would almost bet your house in my house.

So what does any of this matter? OK, because Trump has not been hurt in the polls. We covered that yesterday in the wake of this indictment. Never mind the Alvin Bragg one. But I'll give you this take. Peggy Noonan hasn't been exactly a fan of President Trump. Had a piece on June 15th in The Wall Street Journal that reads in part as follows. This will hurt him. Maybe not a lot,

but some. Maybe not soon, but in time. I mean the quiet Trump supporters, not big mouths and people making money on the game, but honest people. She thinks long term people are going to be bothered by what Trump did with those documents. I know Peggy Noonan. I think I would go so far as to say she likes me. She's complimented me publicly. There's videos of her complimenting me publicly. I'm an honest person and I would say that she's wrong. I'm also somebody who lives outside of Washington, DC, travels the country and talks to a lot of people. There is no question and hear me, I am 100% positive about this statement. There is no question that people who fear Washington, DC and fear the radical left are looking at the situation and saying they are

overreaching again. They're just beating up on this guy. People who don't even like Trump are like, this is, to me, black and white. We have to control the out-of-control Washington, D.C. We see more people coming over saying this is now proof that they're radical, just going at it. They've lost their mind. They're just going after him with anything and everything. Remember, we've got more indictments coming. I ask you, ask the audience again to think about why are they just hellbent on going after Trump? Why is that system in Washington, D.C DC going after Trump? I live in Los Angeles. There's a whole system surrounding Hollywood and production companies. And if you take them on, they will crush you. I think the same as in New York on the banking system. Why is it that every

Democrat senator is falling over themselves for Wall Street and getting Wall Street money? Because that's the industry of the city. And I would say that the industry of Washington, D.C. is don't rock the boat. We've got our own rules. It's not the rule of law. It's the rule of D.C. And we will kill anyone, not physically, but we will make sure anyone who tries to come here and change the changes, the rules does not succeed. All right. We're going to take a quick break.

But when we come back, we're going to talk about how some of the leftists out in California are going after Rick as he got honored. And his response was absolutely perfect. All right, that's next. Stand by. So, Rick, before we get to what happened with you out in California, let's talk a little 2024 and drops a hit piece on him at the hill dot com saying Donald Trump has a 2024 math problem and talks about how he may be very good at subtraction, subtracting voters in various states, but he's not very good at addition, adding them. He goes on to say that Trump lost Arizona in 2020 because he didn't heed Mulvaney's advice to stop ripping on McCain. And he lost Arizona as a result, he suggests, by 10,000 votes in 2020. He says in Georgia, he repeatedly said Stacey Abrams would make a better governor than the popular Republican incumbent Brian Kemp. And people don't forget that kind of thing, says Mulvaney, quoting an

official he knows in Georgia. And he points out that Trump lost Georgia by the now infamous 11,000 and change votes. Florida could be next, he says, because Trump suggested that Andrew Cuomo in New York did a better job than DeSantis in dealing with the COVID pandemic. And these are not ways to win Republican votes in any of these key states. What's your what are your thoughts on Mulvaney and his piece? You know, my friend, Mick, I disagree with him vehemently. And let me give you my spin. And I admit that it's spin, but I think it's pretty good basis for somebody who's well traveled to these states. But look, Mick is right that it was razor thin in Georgia, razor thin in Arizona, razor

thin in Nevada, and razor thin in a couple of Midwestern states. I would say that the fact is in 2020, there wasn't a Green Party candidate pulling votes away from the Dems. That alone right there would have made a huge difference, probably absolutely flipping. But we haven't had in modern history an election where the two candidates are no longer about promising what they would do to the economy and global affairs. There's no more assumption from the voters to say, oh, I hope that they're right. And I like that promise of what they would do. We are going to actually see a Biden world economy, world affairs and US economy, and a Trump US economy and world affairs,

we're going to be able to compare apples to apples, not promises to actual performance, but performance to performance. And I think that it's so razor thin in these states, that you're going to tell me that there's not 10,000 people in Arizona who wouldn't prefer no wars, no Ukraine war, no tens of thousands of people dead, no conflict everywhere in the Balkans, in the Middle East, and high gas prices? You think 10,000 people are going to stick to that vote? I think that there are plenty of people who say, we're not voting for a priest, we're voting for somebody who's going to get our country back on track. That's the first point.

The second point is, is that the far left, the Democrats, the radical wokeness, the lack of common sense is convincing even way more people. I think this race is already over. The Republican is going to win. And that Republican clearly is going to be Donald Trump. The media is doing its part to make sure that doesn't happen. And to watch them run cover on the Hunter Biden story is to see it very, very clearly. If you hadn't already. The latest example is how sorry everyone feels for a poor hunter and his drug problem. And it was captured very well by the Daily Wire's Tim Meads, who writes leftists to rediscover importance of fatherhood, thanks to Joe and Hunter Biden's

scandals, and goes through to talk about pieces like from the Associated Press writing that that pride has been accompanied by pain. Joe Biden's pride in Hunter and for the president's family, both have been on public display. Republicans have worked to use Hunter Biden's actions and his acknowledged struggle with addiction as an anchor to try to drag down his father. They go on to say the most fatherly of things he could do, advise a son going through a hard time, isn't exactly available for a man whose administration commands the office that was investigating his son and political rivals simultaneously. Single tear, Rick, single tear. Joe was he was prohibited from being the shoulder for Hunter to cry on because he was president. This is how it's getting spun. And any criticism of Hunter refuses to acknowledge what addiction is like. And you're a meanie if you

call out Joe Biden for saying anything less than or for saying only that he loves his son and is proud of him. Two quick points. One inherent in that whole relationship between Joe Biden and Hunter Biden is an acknowledgement by Joe Biden that he has a child. I think that should be step one, when you acknowledge that you have children and you value them, and then you can help them grow up. Hunter Biden is no example. Joe Biden should be ashamed of himself that his grandchild is not being recognized the same way that he's recognizing his child. That's the first point. The second point is that I just with this stripper who he denied paternity of and then she proved it and now he's paying 20 grand a month to

support the kid, but they won't let him the kid have Biden's name. Biden won't acknowledge the granddaughter that Jill Biden wanted. Nobody will acknowledge the granddaughter. Go ahead. And Hunter doesn't want to pay the child support, so he's not going to even acknowledge the responsibility of owing the money. So, look, if we're going to climb up on this high horse of moralism, I think we should start there by recognizing a child that that deserves to be recognized. The second point I would just say is, you know, the whole idea of The View and Twitter somehow determining swing states, it just, the media and the elites are at their lowest point ever, and it's getting worse. Washington, DC types do not understand this,

but people are dismissing them. They're just not watching. They're not caring. People want long form information. They want both sides. They want to be able to tolerate different opinions. We don't say that a dissenting opinion is disinformation and that we, you know, have a corner on what fact is. There's always, you know, this adage of there's three sides to every story, his side, her side, and the truth. And so we need to be able to have a debate. And you need to be able to sit and listen to a dissenting viewpoint. And I think the left is proving that they don't know how to do that. And they're losing the American people. First and second generation Americans, Megan, are some of the most pro-Trump people ever. This whole immigration thing has been switched.

And it's because they're the canaries in the coal mine. They've seen fascism. They've seen totalitarianism. They don't want anything to do with it. They came to the United States to get away from it. It's so true. I talked to so many people who are like anybody who got here from Cuba or has ties. They can't believe what's happening in the country. But the media will be there to lick the boots and provide cover. One of the reporters questioning President Biden last week came up with this this soundbite in order to really press on the Hunter Biden issue. You can't really hear it well, but we'll try. It's number eight. The question was, how's Hunter feeling? And Joe Biden gives a thumbs up that way to nail it down. I mean, honestly, like Edward R. Murrow would be proud. Mike Wallace is

rolling over in his grave, Rick. It's really unbelievable that the other reporters allow this to happen and that there's some sort of an editor sitting somewhere that says, yeah, good job. I don't understand that how people are able to like call themselves a journalist, but literally be an advocate for one side. Well, this is what the Republicans are up against because they're obviously they've got a thumb on the scale. OK, so we've got to talk to you about what's happening in California. This is one of the most interesting things I've seen in recent history. What's happening with this bill? And you kind of are directly involved in this thing. So as you point out, you're in Los Angeles.

You've been living in California a long, long time and it being Pride Month and you being the first. Is it the first openly gay man to ever be a cabinet official? It's the first. It's the first openly gay person. Okay, person. And although they try to take that away from you and pretend you didn't exist and that it's actually Pete Buttigieg. OK, but the Republicans in California did something nice. They tried to honor you as you should be. And if you weren't a Republican, you'd be getting honored all the time. But no, that's not the way it works. So the House Republicans in the State Assembly, I saw the House Democrats in the State Assembly and the Senate Democrats and the Senate walked off the floor during these honors that were being paid to you. Let's just start there and then I'll expand on who your detractors were and why they're

so controversial in a second. What did you make of that? Look, you know, I'm not surprised. I mean, they're so lightweight. There are people who really cannot have a discussion anymore. They run out of the room with their fingers in their ears. They just can't take dissenting information. You know, I said at this press conference afterwards, in 1993, Megan, I marched on Washington with gays and lesbians. And I remember holding a sign as I walked with a whole bunch of people, a million people in Washington demanding equal rights. My sign was diversity and tolerance. We were the minority back then. And what we were asking the majority to do was just listen to us. You don't have to accept us. Inherent in the word tolerance is tolerate. It doesn't mean you like me, clap for me, approve of anything, but you tolerate me. You don't try to cancel me. You don't try to walk out. My dad used to say, shut up and listen. You might learn something. And so I just expect people to be different in this world and to have different opinions. The gay left is not about that. If you are not for abortion and

for open borders and for the unions, you cannot get the endorsement of gay groups. And this is the fact, the Victory Fund, GLAAD, HRC, all of them, they've lost touch because rank and file gays and lesbians, regular gays and lesbians across this country, they've had it. There's at least four out of 10 or I would almost argue five out of 10 gay and lesbian Americans who are voting for Republicans and Trump. They just have had had it with this left of not being able to sit and listen. Yeah, they've lost their mission. To say mission creep is too generous because they've lost the original core mission entirely.

This guy, Scott Weiner, state senator out in California from San Francisco, comes out and says, this is their way of celebrating pride by bringing in a guy who is truly a self-hating gay man who takes tons of anti-LGBTQ positions. He is a particularly vile person. He too is a gay man. You responded in part, it's an honor to be your enemy. That is so short and simple and perfect. I'm definitely going to use that. It's perfect.

But can you just give the audience a flavor in the time we have left of why it's an honor to be the enemy of Scott Wiener? Well, look, this is a guy who represents San Francisco in the most radical ideas. He hates parental rights. He thinks that if you're under 18, you should be able to cut your breasts off, change your genitalia, and do it without having your parents' knowledge. And he somehow makes that and tries to tell gays and lesbians that if you are not for that, then you're not a good gay or a lesbian. And to me, Megan, this issue is so simple. If you're under the age of 18, we don't allow you to get a tattoo, go to an R movie, a smoke. Why would we allow a kid to make this decision? I think it's child abuse. We should have laws in every single state or a

national law that says if you're under 18, no, this is not acceptable. My position is if you're over 18, knock yourself out. I'm not going to get involved with somebody else's life as long as you're not hurting somebody else. But this guy is out there right now pushing legislation that would criminalize parents who refuse to affirm their child's gender confusion. Rick Grinnell has an has a knack. He's the one who came on and said, you can't vote. And he wants abortion all the way.

I can't even tell you. He said they can't even tell you what a woman is like. And now this it's an honor to be your enemy. You're you're very good at the short, pithy comeback that is memorable. One of your many talents. We'll talk more about Scott Wiener tomorrow when Carrie and Britt come back on the show. They live in California, too. And our moms who are very concerned about what's happening there being told by other Republican lawmakers flee, flee. That's how bad it's gotten. Rick Grinnell, we've got to flee. Thank you for coming on. All the best. Thank you. Always a pleasure. And we're coming back in one minute

with Kelly's court and an unbelievable update on, among other things, the Brian Kohlberger case out of Idaho. Prosecutors will seek the death penalty. Don't go away. Today we have an excellent, excellent top-notch panel for Kelly's court and lots of legal news to get to, including the latest in the Brian Kohlberger murder trial out in Idaho. He has been accused of killing four college students in November. Plus, Daniel Penny was arraigned this morning in connection with the death of subway rider Jordan Neely after a grand jury indicted him earlier this month. A second charge has been added. We'll get into what it is. Joining us now to discuss it all, bestselling author and lead prosecutor in among other cases, the People vs. O.J. Simpson, Marsha Clark, and famed trial attorney and principal of Garagos and Garagos, Mark Garagos. Love this panel. Welcome back to the show.

Not only I love this panel, I was just telling your producer who was trying to get me to shut up because I was talking to Marcia. I said, this is the only time I get to see her. And it's so much fun for me. And welcome back, Megan. Thank you. We're going to put a camera in the green room while you guys are waiting to come on air because those are some of the best conversations. Yes. If you had heard, I was just telling her, and I know it's off topic, but I'll tell you, we're handling the Menendez case in the office. And I was complaining that there's nobody I can talk to who has the institutional memory of what was happening in real time, except Marcia. And so I was like, I was spilling out stuff. And she was in the middle of all of that and in real time except Marsha. And so I was like I was spilling out stuff. And she was in the middle

of all of that and in real time and knows all the players and everything else. Oh, I mean, the thing is getting very interesting. But wait, put a pin in that because that's up. That's up second. I want to kick it off with Kohlberger because that case is just so compelling, fascinating, horrifying, and some significant developments have gone down in the past couple of days. Number one, prosecution seeking the death penalty. Is anyone surprised by this? Marcia, as the former prosecutor, I'll start with you on that. Not really. And all of the, you know, you have to remember, and I guess one of the critics, people who are critical of the death penalty are going to point this out as well. You're in Idaho. Idaho has different mores and different standards in terms of what is death worthy than, say, California

does. That said, the horrific murder of four young people in this manner that clearly appears to be premeditated, if true, you know, it's now alleged, but if proven, really does show a very serious, the kind of offender where you would expect the death penalty to be on the table for sure. And now they can they have said in their letter they can withdraw the intent because at this time they don't have any evidence of mitigation. Mitigation being the defense effort to show why his life should be spared. So it's early days yet. But if when a crime jumps off the page at you like this, that is the kind of crime where you if you have a death penalty, you would imagine the case would be death eligible. So I can't say I'm surprised, but I do say, let's wait and see if they hang on to this. I don't know that they will. Mark, does this raise the challenge for prosecutors going in front of a jury? You know, that some theorize it makes juries more reluctant to convict if they know the death penalty, not because they wanted the death penalty, but because they wanted to get pro or I should say death penalty eligible jurors.

One of the reasons that Scott's death penalty was reversed unanimously by the California Supreme Court was precisely because the judge was kicking off everybody on that jury who didn't want to, or was uncomfortable with imposing the death penalty. Most of the studies have shown death penalty jurors are more pro-prosecution. You combine that with the fact that, and I don't want to get ahead of ourselves, but with a circumstantial evidence case like this, you want somebody, if you're a prosecutor who is going to be more pro-prosecution. This is genealogy to figure out where did this DNA found on the knife sheath that had been left by the murderer at the murder scene? Where did it come from? They were told that they had done a regular search in the FBI's database. You know,

does this match a perp who we have in the system? And it did not. So they went to genetic genealogy where you can use public databases and in this case, private databases as well of not not private to you and me. But in other words, a special database that they went to figure out whether it has a governmental rental to figure out whether this DNA we have matches anybody whose DNA is publicly available. And that's how they zeroed in on Kohlberger. It wasn't his. But they said, we can definitely link it to the dad who lives in the Poconos, someone related to that dad. And then the circles got more

concentric around the son, Brian, who was 10 miles away from the murder scene. Marsha, we now know that they retested the son himself, Brian Kohlberger. They took a cheek swab and they are now saying it showed a direct match, Brian Kohlberger's they took a cheek swab and they are now saying it showed a direct match Brian Kohlberger's DNA on that knife sheath. So we're going to get into how a lot of the other evidence is circumstantial. That's not circumstantial. Well, it is actually, isn't it? People have this notion that circumstantial means something much more removed, but circumstantial evidence is a fingerprint. Circumstantial evidence is DNA. I used to tell the juries all the time, you know, I mean, I would say this is largely a circumstantial evidence case. And then they'd say, well, you're out. Never mind. I'm not interested. I said, well, how about the fact that there's a fingerprint and the victims on the victim's shoulder? And oh, oh, well, but that's not circumstantial. Oh, it is. It is. So is DNA. Same thing. The limitation of circumstant selected person unrelated. So, I mean, that's virtually, that is a match. But you don't know when that DNA got on there. And you don't know

how that knife sheath got on there. So it leaves room for the defense to say someone else dropped the knife sheath. Of course, it was mine at one time. I had my fingerprints on it. I had my DNA on it from months ago. So in that sense, it is circumstantial, but it is very damning. I mean, what is your knife sheath doing under the body of one of the victims when you have no known natural or uncalpable reason for being there? They didn't know each other. They didn't party together. So just the fact the knife sheath was there and then of course the DNA on it, you put it all together, but it's all circumstantial. Well, let me ask you a question because that's interesting. If, if his bloody fingerprint were found at the scene or if DNA from the victims were found in his car, would that also be

circumstantial? Yes. Same thing. You can't say when it got put there. No one saw it got get put there. Direct evidence is me seeing if you go and shoot somebody and i watch you do it that is direct evidence but um of course i would argue that whoever you shot deserved it so that's a whole other issue but if i don't see it you know if you're coming up with um evidence that is deposited at some point in time that is not observed by anyone even a bloody fingerprint though course, a bloody fingerprint gets a lot closer to something you could call like direct evidence. It's still circumstantial. That's interesting. I didn't know that. I never practiced criminal law, so that's interesting to me. To follow up on that, it's interesting because with the Innocence

Project, most of the evidence against people who were condemned and sent to death row was as a result of direct evidence, and they were exculpated by the circumstantial evidence of DNA, which is one of the things I talk to jurors about in Vore Dyer to point out the differences of what we always think. It turns out that many of the studies show that direct evidence, eyewitness identification, is much more fallible than circumstantial evidence. Well, the genetic genealogy link that started it off before they got the actual cheek swab from the defendant and they were looking more at who in the universe could this DNA and this knife sheath belong to is becoming an

issue in the case, Mark. The defense lawyer is asking the court to compel prosecutors to turn over additional discovery materials and info on the genetic genealogy techniques investigators used before labeling Kohlberger their suspect. They're also asking for information on why the FBI expanded the range of model years on a white Hyundai Elantra they were looking for in connection with the case. Now, those two items that they want discovery on might have nothing to do with each other, but they might have something to do with one another in that initially the police said they were looking for a Hyundai Elantra of certain years that would not have included Brian Kohlberger's. And then they expanded the years to a year. His was 2015. That would have been included. And there's been some questions raised about whether that expansion

happened after they got the hit on Kohlberger's dad and started to zero. So what what what's the defense attorney doing here? What's he trying to set up? This is a brilliant strategy by the defense, and I'll tell you why. You've hit exactly on what they think. They're creating a timeline to show that the expansion of the Elantra after the FBI had given an opinion that it would have excluded Kohlberger. And then he – we talked about this. They then went back to them once they had Paul Berger, and they expanded the number of years to include his car. But this is also a very subtle kind of a gray male, because that is a technique in classified documents cases, where you say,

okay, we're going to go forward, I'm not going to get a classification. You've got to show me the classified documents publicly. And then the prosecutor backs down. We know that the FBI and investigative agencies do not want to reveal how they use or how they get to this genetic testing that then takes them to one of the relatives. So they're saying on one hand, show us that, hoping that they say we're not going to do that. If they turn out and they say, we're going to turn that process, that investigative technique over, but it's under a protective order, that's fine. Because then what you're going to do is the defense. You're going to take the two unidentified males that were found at the scene,

the DNA, and you're going to use the same testing protocol and see who you come up with in the databases based on their very own protocol. And God forbid that you hit somebody who is a potential other suspect, because then you're going to ask all kinds of questions about why their DNA was there or that universe of alternative suspects, third party liability. Oh, so interesting, Martha. Yeah, because they are, Marcia, because they're saying the defense attorney is saying exactly that, that there's other DNA from other random people, not inside the crime scene, but around or outside the house that they're suggesting the prosecution didn't look into. And I suppose there's an argument that if somehow the genetic genealogy was wrong, flawed, improper, everything that stemmed from it was improper, which could

include the expanded years on the Hyundai, which suddenly came about. Right. So it's he's trying to set up a chain that would knock down most of this evidence we've been discussing. Yeah, we'll probably fail. I mean, it's a good idea. I think it's their best idea. I think Mark is right. It's a good strategy. Does it work? Well, no, because they have the direct DNA from the suspect. That is a complete match. Five, five octillion in one to one. So, I mean, they actually have the guy. And that's inside the house. Remember, this is kind of a group house.

A lot of people came and went. And the fact that you have some peripheral DNA from other males around the exterior of the house or in other rooms that are not where everyone was sleeping and killed is, I think, ultimately going to be washed out as, okay, so what? It's not like it was some private person who lived alone with no real relatives and no visitors. A lot of people came and went. The Elantra, the story with the car is that they had a kind of identification that indicated

various details regarding the car. When they see that that doesn't include Kohlberger, and I think this is where actually the defense might have a better claim in terms of trying to say, oh, they zeroed in on Kohlberger to the exclusion of everybody else and therefore ignored all the evidence that would have proven a third party was guilty. But what they're really doing is saying, look, if that car did not include the one belonging to K is saying, look, if it didn't include,

if that car did not include the one belonging to Cole Berger, who else could it have belonged to? It's actually good police work. And they're going to have to turn it all over eventually anyway. I mean, under protective order is fine too. But I really don't think that the genealogy testing they early did is going to hurt anything because after all, the suspect, the ultimate suspect's DNA was not in the system. It's called CODIS, the combined index for DNA profiles that they use nationwide. If you have not been arrested, if you have not been fingerprinted for some reason because of your job, your fingerprints will not be there. Mine would be there, Mark's would be there, but somebody who has not been involved in the system or has not been arrested will not be there. Mine would be there. Mark's would be there. But somebody who has not been involved in the system or has not been arrested will not be there. So you have to find other

means to try and narrow the scope of your search, which is what they did. But that all becomes pretty irrelevant when you actually match the person with a DNA swab from his cheek. Yeah, exactly. And even if there was something odd or unusual about the genetic genealogy, there's nothing illegal about it such that it would not be admitted or everything that stemmed from it would be kept out as fruit of the poisonous tree, Mark. I don't understand why this is going to help them. I hearken back again to about 22 years ago. In California, for instance, mitochondrial DNA was not admissible. And under the standards here, at least, you had to have a hearing. It had to then go to the Court of Appeal before it could become admissible. I do not believe that in Idaho it is an admissible

technique yet. So there is going to be an attack. Marsha is probably right. I mean, generally, these things end up going the prosecution's way. But they in a, especially in a case that is death penalty eligible, if you're not challenging that right now at the beginning, you're setting up an IAC claim. Absolutely true. They have to go after it. They do. Whether they win or lose, a different story.

And if Idaho, as Mark suggests, doesn't allow in that kind of evidence, then there is some argument to be made, and they better make it, for sure. Very important that they lay that foundation and make that claim, make every claim in a case like this. Howard Bloom, who's an award-winning reporter, who's been doing really interesting pieces on this for Air Mail, the new Graydon Carter subscription publication. He had a piece just this May. He's been doing sort of part one, part two, and he just writes so beautifully. We had him on the show one time. It was fascinating. Couldn't peel your ears and eyes away. This is

what he said about them expanding the years of the Hyundai they were searching for, right? Because originally they said they were looking for 2011 through 2013 and Kohlberger's car was 2015. This is how he explains it. The FBI forensic examiner first deduced that suspect vehicle one was a 2011 to 13 Hyundai Elantra. This is from looking at the videos on scene around the house. This is this guy's looking at, hey, what cars are around the murder scene? Hey, there's this white Hyundai. Maybe we're interested in that. He guesses it's between a 2011 and 2013 Hyundai Elantra. Then upon further review, to use the chagrined phrase of the candid Idaho authorities, he decided the mysterious Hyundai might very well be a 2011

through 2016 vehicle. And when he poured over the image of a car consistent with the Hyundai near the murder scene that was caught on camera not long after the killings racing toward Pullman, Washington, he deduced that it was a 2014 to 2016 Hyundai. That is, he cast a pretty broad net, and he cast it three times to boot. So this seems to be laying out an investigator, the defense will argue, Mark, who is trying to color the evidence to fit the evolving crime scene and facts around it. I would be arguing and screaming, this guy is reverse engineering his so-called expertise to fit the suspect as opposed to the facts.

And I think we discussed this early on when they did and the affidavit was real revealed, I said they this is one of the reasons, I said, there are holes that the defense is going to drive a truck through in this case. And it doesn't, it hasn't, at least what has been leaked so far, this case has not gotten better for the prosecution since that affidavit was unsealed. He says, Marsha, the defense attorney is writing in one of his motions to the court. Number one, there's no connection between Brian Kohlberg and the Idaho students. So that's interesting, saying on the record that there's no connection between them. And that would seem to undermine some unconfirmed reports we've gotten, single source reports we've seen in

various publications that maybe he was stalking them on social media, etc. I think the defense attorney wouldn't say that if that evidence were about to come out. Could be wrong. But then he writes, quote, there is no explanation for the total lack of DNA evidence from the victims in Mr. Kohlberger's apartment, office, home or vehicle. That's the first time I've seen that too. Somebody stating affirmatively that all those searches did not produce any DNA evidence from the victims anywhere around Kohlberger's living or working quarters. Yeah, my response as a prosecutor, so what?

So what? Why do you expect to see him carrying stuff from the victims? He's got so much time in between leaving the crime scene and going into his house so much time to destroy whatever he might have thought might carry something in destroy the clothes destroy take a shower i mean wash yourself off the police didn't get to him right away it's not as though the police were hot on the trail and busted him the minute he walked in the door there was quite a time gap and so the fact that there isn't from stuff from him to the victim from the victims to his house is much less surprising than finding something that does come from him in their house and the fact that the defense is admitting there

is no con there's no particular known contact between them um doesn't play as well for the defense as i think they wanted to. The fact that you have single source information, especially in a widely known case like this, indicating, oh, he was stalking them on social media and whatnot, there's going to be a lot of that kind of what I call peripheral stuff floating around in the ecosphere, but I do not think it necessarily means there was any known contact. That doesn't mean he wasn't stalking them. That doesn't mean he didn't have his eye on them. Certainly, you know, his knife sheep is there under someone's body,

where someone's body was laying. So, I mean, that's a very powerful piece of evidence, that said. As Mark pointed out, it doesn't appear, at least from what we know, things have gotten any better. And that, to me, I'm not sure what to make of that, except that they are playing this very close to the vest. They're doing a lot of projective orders, they're being very careful about the release. I understand why it's tough when you have a case that is this high publicity and high profile, it can get out of control very quickly. So

they have to reveal it to the defense at some point. But that said, the fact that they don't find evidence of the victims in the defendant's house under these circumstances is much less compelling to me. You know what's interesting? Is this, I mean, it's just now dawning on me that this guy actually might get off. a legal nerd, but building on our circumstantial evidence discussion, you get a jury instruction in almost every jurisdiction that says if it's circumstantial evidence and you have two reasonable interpretations, one that points towards guilt, one that points towards innocence, they don't have to be of the same level. But if you have one reasonable explanation that points towards innocent, you must acquit the defendant. Now, what do we have here? We have them saying the lack of evidence or no evidence about cell

phone triangulation or cell phone towers. So we have no evidence there. The lack of evidence, with the exception, I agree with Marcia, they've got to deal with the one touch, or what I call the one touch DNA, touch on the sheath. But they don't have any DNA. And I've had countless murder cases where they pulled the DNA from the victim from the inside of somebody's truck, the inside of somebody's car, on the bed frame of a mattress that they found someplace else. But they don't have that as well. So if you have that, and you have no other connection to these people, and if the defense can just suggest based on the two unexplained male DNAs that they found, and ironically, one piece from a glove that was

found outside of the location, There is a substantial reasonable doubt, at least based on the evidence we know about. And I say that because I agree with you, Megan. We don't know what's under seal, what they're keeping close to their vest. But there is a reasonable doubt argument here that could carry the day. Well, there is one here. I mean,

as we've all acknowledged, it's early days. Wait, wait, let me get, I'll give you the floor. But if there's no bloody DNA from the victims in his car, how, I mean, like, is it possible this guy almost did commit the perfect crime? He comes out of murdering four people in the span of 18 minutes and gets in this white Hyundai Elantra. This is the prosecution's theory. And not a single blood drop of the victims is found anywhere. I mean, I know I'm talking to Marsha Clark. You know, you know how tough it is to not have a trail of blood follow a murderer in a double murder, never mind a quadruple. It depends on all how it's done. It depends on so many factors that it would take us way too long.

But you have to remember something. Standing behind somebody and stabbing them does not create a lot of blood spray on you necessarily. It depends on where you're stabbing the person, where you're standing when you're stabbing them, what you're wearing. I don't think anybody had a chance in this case. And I really wish we had more evidence. But unless there's a pool of blood for him to step through, unless there is blood on a surface that he's likely to touch and carry with him, you're not going to find it. I mean, 18 minutes is a long time. And depending on what he's wearing and what he's able to shed of what he's wearing on the way out and on the way home no you're not going to find anything that comparing it to the Simpson case it was a mess I mean there was pooling blood everywhere that he walked through

that splashed on him because there was a big fight there was no fight here there was no struggle shown here so you have a very different set of circumstances. And when that happens, especially depending on whether he's standing behind them and where he's stabbing them, he's not going to come away with a whole lot of transfer from the victims. Takes off his clothes, takes off whatever outer clothing, dumps it somewhere, burns it, buries it, whatever. No, you're not going to find it. So, you know, and of course there was a time gap between when the murders occurred and when the police got to his house or his car. So there's a lot of there was a lot of time and many, many circumstances in between that could prevent anybody from finding anything from the victims. So until we know more, it's really hard to say that this is doomed for the prosecution. They let him clean his car. You know, as the FBI was following him back in the Poconos, we know that they watched him take his car and have it cleaned and detailed and didn't step in to stop it because I think they were still pursuing the DNA and all that other things that

they wanted to get the arrest warrant. So who knows whether they managed to get something from the trash. Back to my circumstantial evidence. You could take it to the prosecution. Did he commit the perfect crime as the defense is going to say, or is it reasonable they've got the wrong guy? They don't. I don't. By the way, your honor, we thank and excuse Megyn Kelly from this jury. Good call. I'm definitely much more prosecution oriented. All right. Let me squeeze in a quick break here because I don't want to break up our Menendez discussion. A quick break and we'll come back with Menendez, which Mark is handling. And these two brothers

could potentially get a new trial. Unbelievable. Stand by. So, Mark, this is crazy. The Menendez brothers who were accused of, well, that we know that they killed their parents, but their defense was that they had been abused by the father repeatedly. He cried on the stand. They had him in like the sweater vest. The jury didn't buy it and wound up convicting both of these guys. I've spoken to I spoke to Lyle Menendez in a courthouse or a jailhouse interview when I was at NBC. It was fascinating stuff. But now there's new evidence in the case. You're representing them. And it's actually not just Mark Garagos, defense attorney saying, reopen the trial. I have another trial, which defense attorneys do all the time with all due respect. The judge himself is looking at the prosecution saying, you need to explain yourselves

as to the job you did and why some of this stuff was not brought out in connection with this trial. So explain what are the two best things that have you arguing for a new trial here? First, the best thing about being on your show today is being able to talk to Marsha in the green room because she has the institutional knowledge of what was happening in the DA's office at the time. Because basically what we have argued is,

trials, number one, because there were two juries the first time around, both of those juries hung on whether it was murder or manslaughter. That was based on imperfect self-defense. Fast forward to trial number technically three, but the second wave or jury number three. What happened in the interim? Marsha remembers there was the O.J. Simpson case in between. The same trial judge in both cases, not in the O.J. Simpson, but in the Menendez cases, same trial judge basically invited the late great David Kahn to rethink imperfect self-defense. David, to his credit, did not take the bait, at least initially. Just can you just explain what that is, Mark? Explain what imperfect self-defense is.

Imperfect self-defense is basically where the law says what you did may not have been objectively reasonable, but we basically understand why you do it. And we're going to let that be mitigation. We're going to have it negate the malice element, which is required for murder. So you didn't murder your father in the midst of him allegedly molesting you, but you did it understanding that you were afraid of him and the next punishment could be coming your way, that kind of thing. Correct. And all you're doing is negating the element of malice. You're not saying I'm not guilty. You're saying if I am, I'm admitting guilt, but guilt of manslaughter. So what happens? They do the trial. The judge starts excluding evidence that they did not

or that he did not exclude in the first trial. And then after they rest, he allows them to withdraw or he withdraws the imperfect self-defense. By that time, the prosecutor had gotten the message. And then David, who was the prosecutor, argues in closing that it was an abuse excuse. These were entitled kids. There was no evidence of the abuse, which is astonishing because when you argue that and you know you got the evidence excluded, it's really the height of chutzpah. Now, fast forward to now, we then get the peacock documentary we get the declaration of the other young man who was then wait stop let me stop you there because the audience doesn't know about this yet so a member of the boy band menudo uh comes out in this documentary about his band, I guess, and says he too was molested by Eric and Lyle's father,

Jose Menendez, who the boys were saying during the trial was a molester. Who was the president of the record company for Menudo. Okay, wait, and let me just add one other thing. We have a soundbite of this. The accuser's name is Roy Rosello, again of Menudo. And this is just a quick soundbite of this. The accuser's name is Roy Rosello, again, of Menudo. And this is just a quick soundbite of him in the piece. That's the man here. That raped me. This guy, that's the pedophile. How old were you there? 14 years old. He's pointing to Jose Menendez, this RCA executive. And he said that the band's founder brought him to the Menendez, this RCA executive. And he said that the band's founder brought him to the Menendez home in New Jersey to broker a deal between the band and RCA. That's when Jose

Menendez allegedly drugged him and raped the then teenager twice. I won't get into the details, but he was only 13 or 14 when he says it twice, I guess a total of three times he molested and raped him. Go ahead, Mark. Okay. Now, you now have also, in addition to that, you have Kitty's sister, Marta, whose son has passed away, Kano. She's going through his things a number of years ago. In those things, she finds a letter that predates the murder by, I want to, or the killing, because it's not a murder. Yeah. And by about eight months. And in the letter, he's describing to his cousin,

Marta's son, the fact that this is going on and- Eric Menendez is telling his cousin he's being molested by his father months in advance of the killings. Right. And she finds it. She then gives it, I believe, to ABC. We're still working through the Providence. But that letter combined with the declaration now that he was also doing the same thing to a third party has now caused the judge in the reaction to, if you will, or the aftermath of the writ of habeas corpus to issue an order asking the prosecution to respond. Interestingly, I was also telling this to Marsha in the green room there in talking with the Kitty's sisters. There was a rule that was known in the family that if Jose, the father, was in the room with Eric, that nobody was allowed to go down the hallway, which to me is one of the creepiest things I've ever heard. But that was known. And so. All right. So let me jump in. So the alleged letter, Eric's letter writes as follows.

This is again, his mother's sister had a son who would have been Eric's cousin to whom Eric wrote this letter eight months before the killings. And Eric writes, I've been trying to avoid dad. It's still happening, Andy, but it's worse for me now. I can't explain it. He's so overweight that I can't stand to see him. I never know when it's going to happen. It's driving me crazy. Every night I stay up thinking he might come in.

I need to put it out of my mind. I know what you said before, but I'm afraid. You just don't know dad like I do. He's crazy. He's warned me a hundred times about telling anyone, especially Lyle. Am I a serious wimpus? He continues. I don't know.

I'll make it through this. I can't handle it, Andy. I need to stop thinking about it. Um, so, and then the cousin's name was Andy Kano. So Marsha, now the judge, he's, they've gotten the judge's attention. The judge, Superior Court Judge William Ryan, demanding answers from L.A. County District Attorney George Gascon about the explosive evidence that was kept from a jury, quoting here from Los Angeles Magazine. Judge issued an order on June

24th requesting Gascon, whose office prosecuted the Menendez brothers in two different trials, to explain whether his lawyers exercised due diligence in pursuing evidence that the father, Jose, was in fact abusive. The judge points to this letter I just read from and wants Gascon to explain how diligently his office dug into claims of abuse or Jose Menendez behavior at the time. This is so interesting. So what is that extraordinary for the judge to do that? And what do you make of the DA's conduct in all of this? So I knew the prosecutors for both trials and I was aware of the prosecution of the case, the trials going on at the time. I have to say I want to make it very clear that what the defense is saying and what the judge is saying is not that the prosecution knew about this evidence and hid it from them, which is important. It's that, well, did you try hard enough to find it? Based on what I've seen,

they tried very hard to find it. They spoke to everyone. I know that in the first trial, they interviewed all kinds of members of family. In fact, there was a whole motion based on teachers, friends, family, and coaches that had something to say about Kitty and Jose Menendez and the family dynamics. And then as I understood it, David Kahn, who retried the case, did the same thing, went out and talked to all of them and then prepared a motion saying there is no valid basis for this. These are not credible accusations and explained why. I did not see these motions. So I want to make it clear I'm basing this on what I heard and discussed with them at the time. So it's not that they weren't trying to find this information. They certainly did. I know that. Why they didn't is going to be the subject of the discussion now and why the

judge has issued what you asked for, an informal reply from the prosecution as to why they didn't uncover it. I'd like to know that too, because given what I know about the efforts that the DA's made in both trials, I'm very surprised this letter didn't come out. What took so long? Where was it? And why does it only come out now? And what about the Menudo witness? I mean, does the judge, I'm only reading an excerpt here for the Los Angeles Magazine piece, but is the judge interested in that too? Mark, I mean, can that actually get a case reopened when you have, you know, a third party come forward and say he did it to me too when the whole defense was based on my dad's a molester and that's what led me to do this horrible thing.

Yes, I think that's precise. I think when you have the combination, to my mind, a third party coming forward at this point and given what we know about the trauma and the repression and everything else that these kinds of things cause on victims, I think that that's, to my mind, an extremely compelling piece of evidence. The one thing I will, building on what Marsha was talking about, you know, the politics of the DA's office was very interesting at the time of what was happening. There are those like me who are very cynical that say one of the reasons that David Kahn was assigned to the second trial is because David Kahn coming on the heels of the OJ

loss was probably the biggest threat to the then current DA in the next election. And this was a way to take him off the chessboard, so to speak. And why were they doing that in the machinations? There's just a whole lot going on in terms of why all of this happened. And I always go back to there was a, I listened to the audio, the Ninth Circuit heard this appeal 20 years ago. And one of the then judges on the Ninth Circuit, in questioning the attorney general, has a very telling line. He says, isn't this unfair that trial number one, you had a certain set of rules. Trial number two, you change the rules midstream in order to get the result you want. And I always invoke this other quote, I wish I had come up with it. If these had been the Menendez sisters, they would not be in custody. Can I add one more thing, Megan? I think it's important to focus, legally speaking, on another aspect of the crime, and that is imminence. When it comes to the claim of

imperfect self-defense, what they're saying is self-defense itself, the regular self-defense that we all know, is that you shoot at someone, you kill them because you legitimately, reasonably believe that your life was in imminent danger. You are in imminent danger of death or great bodily injury. The imminence factor is still required for imperfect self-defense. So even though you unreasonably believed that your life was in danger, you nevertheless must prove you genuinely believed at that moment that your life was in imminent danger. And that is one of the problems for the defense as well. Now, this is not to say that, and I'm completely taking apart the issue

of whether or not they were molested, taking that to one side. They still have to prove that in the moment they shot, both their mother and father shot them to death, they believed in that moment that their lives were in imminent danger. And that's going to still be something to prove. Certainly the molestation is going to come into play here. And there's going to be PTSD aspects and issues to deal with in terms of how that affected their state of mind. But that is nevertheless an important aspect, as a juror will probably think if they do go back to trial on this, which may not happen. It may get resolved in another way that Mark and I were talking about. But if it does, a juror is going to say, why don't you just leave? You're

both adults at this point. Walk out the door. So that's going to be a stumbling block. It's so ironic, Marsha, because back then in the 90s, I vividly remember trying a case right around the same time out in Pomona, a murder case with a woman and using one of the first experts for battered women's. I was just going to say battered women's syndrome. Exactly. We ended up having the same thing. It was a hung jury between murder and manslaughter and ended up, she ended up getting a manslaughter probationary sentence at the end of the day. This is not dissimilar in terms of where we've come. Because back then in the 90s, we understood it in the kind of the battered woman's context.

I think now the prism has changed. So most people understand it in this context. Okay, but here's my question. So you're seeking a new trial. A, how do you like your odds, honestly? And B, if you don't get it, is there an option to go? I'm not advocating for this necessarily, but I'm just curious. Could you go to Gavin Newsom, the governor of California, and say,

they've served 30 years, it's time to commute their sentences, look at the overwhelming evidence we have, the Menudo guy, and so on? Look, I'm cautiously optimistic. Could that happen? Could there be a third rail, so to speak? I think there could be, that Marcia kind of hinted at that we were talking about. There's a whole realm of options here. But clearly, to my mind, they've done 33 actual years. By all accounts, they've been model prisoners. Eric has a mitigation packet that I have never seen before in 40 years of somebody doing the kind of great work in the prison. And frankly, I think he had resolved himself over 10 years ago that this was going to be where he spends the rest of his life. And given even with that resolution,

it didn't mean that he went off a tangent, became incorrigible. He just doubled down on his efforts to help others in there. So I think there's a compelling case to be made, whether, you know, I don't know that Gavin Newsom would be my pathway, but there are other options that can be utilized. But we're focused like a laser right now on the habeas. I'll give you the last word on it, Marsha. What do you think is going to happen here? I think that's a really good question, Megan. I had questions about the, I didn't get to see the TikTok, the video, excuse me, of the victim who was talking about his attack by Jose Menendez. I did read, however, that he had been drugged. And so I wound up wondering whether he was sure it was Jose who attacked him. Someone attacked him. There's no question. And that may come into play. I don't know. But first of all,

when you file a habeas petition and there is a question of credibility, the judge almost has to ask for an informal reply to find out what's going on here, because you can't just dismiss a credibility issue out of hand. That said, there is some meat on the bones here, as they say. And I think that it's hard to know how this all shakes out. But I think when they answer the question as to where this statement came from, why it wasn't discovered before, the legitimacy of it, as well as the other victim from the Menudo ban, it may very well wind up with a new trial. Wow. Oh, my gosh, that would be something we'd all be glued and we'd have Garagos again in front of the jury on one of the biggest trials in the nation. I would buy a ticket to that. All right. Let's finish quickly with Daniel Penny, the man charged now with taking the life of Jordan Neely, who had gotten onto a subway train and threatened the passengers. Daniel Penny was now

he pleaded not guilty this morning to now two charges. We expected him to be charged with second degree manslaughter. He was. They've added the charge of criminally negligent homicide. He says he's not guilty. He could be facing five to 15 years in prison if a jury finds otherwise. He's spoken out on this publicly because it's become such a public case saying, well, I'll just play the soundbite and him trying to correct some of what he says is the misinformation about what happened on board that subway train that day, SOT 14. A man came on, stumbled on, he appeared to be on drugs. The three main threats that he repeated over and over

was, I'm going to kill you. I'm prepared to go to jail for life, and I'm willing to die. I was scared for myself, but I looked around. I saw women and children. He was yelling in their faces, saying these threats. I couldn't just sit still. Some people say that I was holding onto Mr. Neely for 15 minutes. This is not true the whole interaction less less than less than five minutes some people say i was trying to choke him to death which is also not true i was trying to restrain him and some people say that this is about race which is absolutely ridiculous i didn't see a black man threatening passengers i saw a man threatening passengers that's a lot of whom were people of color. Marsha, what do you make of this case and the additional lesser charge of criminally negligent homicide? Well, the prosecution is making sure that they've covered all bases and giving the jury

a lesser charge to consider. And that's appropriate under these circumstances that are tough to pin down. There have been a lot of conflicting reports. But the journalist who first was present, an eyewitness, and I think, I thought, even recorded some of the interaction, maybe not. But he certainly described it as a very threatening thing and a threatening behavior in which he did threaten to kill someone, didn't care if he went to jail, threw down his jacket. I can see that others would say less so, but there were two others that helped him pin the man down. This was obviously then pretty scary behavior. We also know that Jordan Neely, unfortunately, was someone with severe mental issues and problems, and among them, assaulted behavior, four charges of assault, most recently in 2021, punched a 67-year-old woman in the face, a stranger in the subway. So this is not to say that Penny knew about this history, but he certainly saw behavior by someone that we now

know based on the history did pose a a threat and probably then therefore was incredibly threatening at that time. So I can see a jury actually walking him or at least finding him guilty of a lesser charge. I mean, Mark, to me, it would be just a travesty if this guy goes to prison for one day. It's a travesty that he was indicted. I still I have not been able to confirm whether he went in front of the grand jury or not. This would be one of the three times in my career that I would put somebody in front of the grand jury. That tape you just showed on its street. Because unfortunately, we live in New York and LA in some outdoor insane asylums. And you see these people in the midst, you see how people are scared out of their mind. And it's astonishing to me that we're criminalizing this

behavior. I mean, at a minimum, you go for a jury nullification. I just I don't think a jury is going to a New York jury is going to convict this guy. I really don't. I don't think the race card is going to work here. New Yorkers know the subways have gotten downright dangerous and we need more Daniel Pennies, not fewer of them. Marsha Mark, so great to have the gang back together. And until the next time. Thank you. Thank you so much. What a pleasure. Tomorrow, don't forget to tune in. We've got Carrie and Britt back with us.

We'll talk to you then. Thanks for listening to The Megyn Kelly Show. No BS, no agenda, and no fear.