The Megyn Kelly Show - Roe Protests Grow, and Crime in Chicago, with Judge Andrew Napolitano, John Kass, and Mark Rasch | Ep. 318

Episode Date: May 10, 2022

Megyn Kelly is joined by Judge Andrew Napolitano, host of the "Judging Freedom," podcast, to talk about whether protests outside Supreme Court justices' homes are unconstitutional or illegal, Merrick Garland's "reprehensible" silence on the threats, more upcoming SCOTUS decisions, and more. Then attorney and author Mark Rasch joins to give the scoop on how exactly investigators will be able to track down the SCOTUS leaker. Finally John Kass, columnist at JohnKassNews.com, discusses crime in Chicago, the lack of response and virtue signaling from Chicago's mayor, and more.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. Fresh protests breaking out as pro-abortion demonstrators target the home of yet another Supreme Court justice. The protesters loud, but peaceful, as they marched on the home of Justice Samuel Alito. What does that mean, peaceful? Right. Like they weren't setting anything on fire. But is it really peaceful to even be at the home of a Supreme Court justice trying to threaten him into changing his vote? I think you could make a strong case that it's not. Meantime, in a rare show of bipartisanship, the U.S. Senate has unanimously approved a plan to protect the

justices and their families. The House still has to weigh in. Oh, joy. Oh, joy. Amy Coney Barrett's little 10-year-old is going to get round-the-clock protection now, potentially, if the House approves it and Joe Biden approves it, something made necessary by the lunatics who think it's okay to threaten them. It's okay to place the life of a Supreme Court justice's child in jeopardy with the kind of talk that they're issuing, with the kind of behavior that they're pursuing. Fine. Sure. That's normal. That's totally normal. So glad we're back to norms now under President Biden. The DOJ, meantime, eerily silent. Weirdly silent, right? Merrick Garland, cat got your tongue? This is months after he mobilized the FBI against parents, parents who objected to racist teachings being injected in their schools and far left trans ideology being shoved on their five-year-olds. They were terrorists who the FBI needed to mobilize against. And Merrick Garland felt free to speak out against

them. The people protesting the Supreme Court justices at their homes, the Molotov cocktail set off at a Catholic institution that was trying to help provide support for mothers who chose to have their babies in unexpected pregnancies. I haven't heard him say anything. Nothing. Doesn't seem to be particularly moved by any of them. And in related news, and indeed it is related on every front I just listed, the mayor of one of the most violent cities in America has just issued what can only be described as a truly tone deaf, stupid tweet. Chicago Mayor Lori Lightfoot writing, quote, to my friends in the LGBTQ plus community, the Supreme Court is coming for us next. This moment has to be a call to arms, a call to arms. Why don't you worry about the more than dozen dead children in your city just as of

this year? They've they've they've been the victims of a true call to arms. That's what you need to worry about, Lori Lightfoot. Don't you dare call to arms when it comes to our sitting Supreme Court justices who now have to have round the clock protection because of lunatics like you. We're going to have more on her and the situation in Chicago a little bit later in the show when our friend John Cass joins us, one of our very favorites. But first, we're going to bring in Judge Andrew Napolitano, my old friend from Fox News, host of the Judging Freedom podcast. And you can also find him on YouTube. Judge Knapps, it's great to have you back. I'm so irritated, as you can probably tell. I can't stand this Lori Lightfoot and her irresponsible messaging. She's not alone. I can't stand these protests outside of the justices' homes, many of whom have young children. about the protests, which at least on paper, absolutely violate a law that's in place against

doing that outside of a justice's home, if it's with the intent of obstructing justice, which this appears to be. And we have a White House that now has found the temerity to say, well, violence is bad. It shouldn't be violence. That's bad, but refuses to condemn the actual protests themselves. Well, Megan, it's always a pleasure to be with you, no matter what we're talking about. Remember, we work together every Monday night for about five or six years. No matter where I was on the planet, you always had me on that great show, and it's a joy to be with you again. When Merrick Garland became the Attorney General, I thought there was an adult in the room. I made that judgment from reading the opinions that he wrote as a judge of the United States

Court of Appeals for the District of Columbia Circuit. But as attorney general, he's just as hard left as the people that have been tugging Joe Biden to the left and compelling him into a range of incompetence. How he can remain silent at a time like this is beyond me. So we have a number of issues here. The government can impose what's called time, place, and manner. The time, the place, and the manner of these protests. If the protests are to express outrage, to express disagreement, they're perfectly lawful. They're absolutely protected under the First Amendment, and the protesters must be given the benefit of the doubt. But if they're terrifying children, if they're keeping people from having breakfast, if they're

preventing them from sleeping at night, if they're intended to dislodge whoever is the weakest link in the five-member tentative majority from the April draft that Justice Alito wrote, then they step over the line into the area where that statute that you cited was written to protect the judges. There's one at the federal level and one at the Virginia state level, and that's where Alito lives. Correct. How do you decide which is which? You give the benefit of the doubt to the speakers because the First Amendment trumps everything. But you tell them you can't be here before eight in the morning. You can't be here after eight at night.

And you can't yell so loud that you're preventing people from doing what families normally do inside that house. See, that's what we would normally say. If you want to yell to your heart's content 24-7. That's what we would normally say. But here's the thing. That's what we would normally say. If you want to yell to your heart's content 24-7. That's what we would normally say. But here's the thing. That's what we would normally say. That would be the normal law. Like, you can't, they can't come to my neighborhood and do that.

But these people are not normal. They're maniacs. But I mean, the statutes seem to say, and to the extent this 18 U.S. Code 1507 says you can't pick at somebody's, you can't pick at a court with the intent of instructing or interfering with justice. I don't know. That's not going to be constitutional. You're allowed to go in front of, that's an unconstitutional prescription on the right to protest. Of course you can pick at a court. So you say to these protesters- But wait, but let me just finish it. Let me set it up. Let me set it up and then I'll give it to you. Okay. So the statute says you can't, so it's got two parts. One of which we both agree is it's not going to be upheld as constitution you cannot tell somebody they can't

protest outside of a court they can um but the second piece of this statute says uh whoever with the intent of interfering with obstructed obstructing or impeding the administration of justice or with the intent of influencing any judge, et cetera, in the discharge of his duty, pickets near a residence occupied or used by such judge or resorts to any other demonstration, et cetera, shall be fined under this title or imprisoned not more than one year or both. So that's the federal. The Virginia Title 18.2, Crimes and Offenses Generally, Picketing or Disrupting Tranquility of Homes, says any person who shall engage in picketing before or about the residence or dwelling place of any individual in a manner which disrupts or threatens to disrupt any individual's right to tranquility in his home shall be guilty of a Class 3 misdemeanor. That's a misdemeanor. Boom.

They've violated Justice Alito's right to tranquility in his home. Okay, go ahead. They're probably both unconstitutional. They're probably void for vagueness. The government has to give the benefit of the doubt to the exercise of the First Amendment. However, there is a right to tranquility in the home. That's why I say time, place, and manner, or, hey, you guys, you want to scream your hearts out? You want to scream 24-7? Go over to 2nd Street. Go over to where the Supreme Court is. You can yell all you want. It's not a residential neighborhood. That's where they work, but they're not working there because you made it impossible for them to get there. The government has to bend over backwards to protect the peace and security of its employees, in this case, its highest level

employees, and it has to bend over backwards to protect the First Amendment. That's not a balance. That's a bias in favor of free speech. Why? Because that's how the First Amendment has been interpreted. Those two statutes are probably void for vagueness. I don't know how you can prove what the intent of the demonstrators is. Well, you can. If they really think they're going to change Sam Alito's mind by screaming outside his house, they're idiots and they're crazy. Well, yes, but that doesn't change their intent. I think the piece of it that says you're not allowed to protest outside of a court if your intention is to mess with the judgment.

That's that's not that's not going to be upheld by any court. That's we see that every day at the Supreme Court. Right. Even when there's not an abortion ruling coming down, you always have the pro-Roe and the anti-Roe protesters out there. Every day of my Supreme Court reporter term, they'd be out there. So that's I don't know. But I do think saying you can't go before a justice's home to try to influence him and the Virginia statute saying you can't disrupt tranquility in the home. Those are time, place and manner restrictions that will be upheld. These are these are crimes they're committing. The protesters, they are. This isn't a normal protest. There's so many places you can protest. You don't have to be in front of his home. How about the Washington Post giving the velvet glove treatment to that one lunatic down the street from Alito who won't stop going to his house every day, who's got her blood red hangers hanging out of her home?

She's not breaking a law and doing it at her home, but you go to his home and there ought to be consequences because they are trying to influence the decision of these court, these justices, because it hasn't yet come down. That's exactly what they hope to do. There's a bias in favor of free speech. Look, I've been through this myself. I invalidated thousands of drunk driving convictions because the roadblocks were illegal in New Jersey. They picketed my home and they picketed the courthouse and I had to be escorted in and out. And as I went by them, I waved. They roared because I was smiling at them. I was killing them with kindness. Didn't change my mind. I wouldn't allow anybody to be arrested. And eventually it went away.

The published opinion was published and it was upheld by the appellate court. Part of this is just the occupational hazard that comes with the job. You are one of the nine human beings on the planet who decides what the right to express that antagonism, not to prevent you from sleeping, not to terrify your children, not to prevent you from going to the store, not to prevent you from going to work, but they can make all the noise they want during the daylight hours. I don't think it matters. Sam's going to kill me. You know, he's my buddy. You know, we've known each other since we were 18 years old. I didn't know that, Sam Alito. Yes, I've introduced Sam at speeches by telling funny stories about him. So he's going to kill me that I'm saying this. Listen, there's that laugh I love.

Wait a minute. So Sam, I love you. Here's the thing. There's a distinction between what's in the mind of the protesters and what's in the mind of the judge. So I agree. I'm sure you weren't intimidated by the protesters who bothered you when you were on the bench. And I'm sure Justice Alito is not going to change his mind one bit based on any of this nonsense.

However, the statutes speak to the federal one. with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer. That's all it speaks to. It doesn't say you have to succeed. This is where we get back to Merrick Garland. If they were picketing the House of Justice, Sonia Sotomayor, because of something she wrote that Merrick Garland agreed with, you'd probably see FBI agents out there, just like he despicably, in my view, sent FBI agents to school board meetings to intimidate protesters and prevent them from defending the rights of children, not to hear nonsense about gender identity in kindergarten. So where is the federal government is the issue now. The executive branch, the DOJ should be resolving this. Sam Alito should not be chased out of town

with his wife to stay somewhere else. He should be able to live in the comfort and convenience of his home and get to the comfort and convenience of his chambers every day. There are unconfirmed reports. Yeah. How do you, how do you prove intent? You infer intent from the words they use, the actions they take,

the persistence of their presence. And God forbid, I hope there's none, but if there's any violence, the very fact that it's necessary now for the U.S. Congress, first the Senate, then we presume the House, to have to pass this emergency law, that they can have protection, that their family members can have protection, speaks to the insanity of what's happened here. You know, I had Glenn Greenwald on the show last week, who I love, and he was saying,

well, why is it any different, you know, that the leak has come now versus, you know, the like would the justices be in more danger now because of this leak than they would have when the opinion came out? You know, because they still would have been mad if this is the opinion. And the thing is, judge, they are in more danger because the decision hasn't yet been issued. So some lunatic out there most likely believes they can still change an opinion or, God forbid, take out a judge. That's the evil of the person who leaked this. And the leaker is either on the left hoping that the weakest link in the tentative majority will be scared away or is on the right hoping that the weakest link in the tentative majority will be scared away, or is on the right, hoping that the weakest link in the tentative majority will stay there. Now, look, this opinion was written in January and February. Whatever difference there is between the final opinion and this one

is going to spawn speculation for generations. Why did Alito change this? How did Alito change that? Did he change it because he was afraid? I'll tell you, he's not afraid of anything. He's the personification of courage. I can't imagine that any of the nine of them would change what they plan to do and have planned to do with this case because of the public reaction. The court does not answer to the public. The court is anti-democratic. It's there to interpret the Constitution and the federal laws and any state laws that may interfere with the Constitution or federal laws, though the heavens fall. Yes, that's exactly right. And I don't think that Justice Alito will change for one one second. I think Justice Roberts, Chief Justice Roberts, has shown a willingness to switch at the last minute if he thinks it's in the best interest of the court as an institution. But according to what we read in the papers and who knows whether it's true, he's not even part of the five four.

He's not part of the five majority. He's someplace else. We don't know exactly where, but it sounds like from, well, if you go from what we saw at the oral argument, he is going to uphold the Mississippi law, which says abortion is illegal after 15 weeks, but he's not going to overturn Roe and Casey. I think this is clear politics. This is Merrick Garland and Joe Biden placing their own political fortunes and public positioning over the safety and well-being of the Supreme Court justices. They care more about their own tales. I'm sorry to say that I fully agree with you. I say sorry because this is reprehensible.

But Megan, the Democrats are in for a shellacking this November. This is their last, best hope. I think this is going to explode in their face. These people that are keeping Sam Alito up at night are insane. They're not going to win votes for anybody. I can see the Democratic base being animated by the invalidation of Roe versus Wade, but they're in danger of going too far. And when the Justice Department doesn't do its job in order to encourage the Democratic base, that's horrific. And the Democrats will suffer at the polls because of it. John Cass about that in a bit to take up arms. Right. You're going to have to take up arms now against what? Who? These justices? She, of course, leaves that question hanging in the air. It's a call to arms, she says. And the Supreme Court is coming for us next. The LGBTQ community. Same basically thing that Joe Biden said last week, saying what's next? LGBTQ kids won't be allowed in the classroom.

What is he saying? That's you and I both know that would be totally unconstitutional. And he knows even he knows that. And then here's another example. You've got Chelsea Manning, that lunatic out there tweeting as follows in the wake of this draft decision being released for those. And this is a trans person. For those of you who are just catching up, if you're able to afford it and if it is safe for you to do so, you should consider arming yourselves, then finding others to train with in teams and learn how to defend your community. We may need these skills in the very near future. They're trying to ratchet up the temperatures. This is I don't want to say it's outright fomenting violence, but it's very flirtatious with doing that. Lori Lightfoot, the mayor of Chicago, has come very close. I think under Brandenburg versus Ohio, the leading incitement case where there's time for more speech to rebut the inciting speech, the inciting speech can't be prosecuted.

She's safe. But she is the chief executive officer. She's a former federal prosecutor and she's the chief executive officer. She's in charge of the police department of that city. And she's coming oh so close to inciting violence herself. I don't know if that's an impeachable offense. I don't know how popular the woman is in Chicago, but she's making a bad situation far worse. It's extremely dangerous what she's said. It's not that her speech is illegal. It's that it's irresponsible.

It's that Chelsea Manning's. These are members of the LGBTQ community suggesting they're going to have a target on their backs, that the Supreme Court is coming for them. The Supreme Court doesn't come for anyone. The Supreme Court determines what the Constitution says, what the law is. And this court said that the court 50 years ago and then 30 years ago in Casey made mistakes in interpreting the Constitution. Now it's going, if that's the decision, and we still don't know, to go back to the states. And then Lori Lightfoot and her constituents will have their say. In no world is Illinois going to make abortion illegal. She literally said we're going to make it an oasis for every other woman in the country. Precisely. I wonder if they

don't. I mean, they're idiots. They obviously haven't read the opinion. They're going by Hillary Clinton's talking points. But don't they realize what this tentative opinion has spawned? New Jersey abortions are legal up to the moment before birth. New York and Illinois abortions are legal up to the moment before birth. In California, Megan, there is legislation being debated that will permit infanticide for the first 28 days after birth. What? Yes. Even California is not going to pass that. I mean, that's, that's, I hope, I hope not, but California is the place where a lot of crazy things happen. California will pay for your abortion. California, California will pay for your travel for your abortion. It will pay for your lodging for your abortion.

I don't think these crazies that are trying to keep Sam Alito from sleeping at night even understand that. I mean, it's a bizarre term to use. We're going to make Illinois an oasis for those women who want to terminate their pregnancies. And look, even if you're pro-choice, to use the word oasis, which is just sort of like this, it's got the feeling of an elixir. It's got the feeling of something heavenly. It's got the feeling of something wonderful. Like no one would deny you're killing at least, you know, if not an actual life, something that absolutely has the potential for life in the beginnings of life. There's no disputing that scientifically. I'm trying to be as charitable as possible to the pro-choice side and not misrepresent them. Anyway, it's totally irresponsible. And she and these others, if something, God forbid, were to happen to one of these justices, they're going to have some explaining to do about why they ratcheted up

the temperatures on an already heated issue when it was totally unnecessary to go to these places about LGBTQ having the Supreme Court come for them and it's time to arm up bullshit. Well, I don't know that anybody would take Chelsea Manning seriously, but Lori Lightfoot is the mayor of the second largest city in the country and she has to be taken seriously. But if something happens, as you say, her words are not criminal. The repercussion would be political. She'd be voted out of office unless people in Chicago are so crazy that they want a maniac running the city government. Oh, well, we'll talk to, we'll ask John that when he, when he comes on later in the meanwhile. Uh, and we're going to talk about the Supreme court leaker. We're going to, we have a guy here today who's going to walk us through specifically

what will and must be done to find the leaker. But there's an opinion in USA Today by somebody named Rex Hupke today that says, I'm so glad to hear the leak is being investigated. Maybe they'll do Ginny Thomas next, who thinks 2020 is, quote, the greatest heist in our history. Any good investigation aimed at preserving the reputation of the court, as they say they would like to do might want to make sure that none of that zaniness made it into Justice Thomas's head. So we need to investigate Ginny Thomas's musings in her private texts that the 2020 election was stolen because it may have somehow made it. And we've heard this over the past few weeks. Now, this guy in USA Today reiterates that opinion. Great. Let's do the leak and let's do Ginny Thomas because she has opinions that may have somehow gotten into Clarence Thomas's head. This judge, well, get this. You know, we have a new press secretary at the White House, right? Jen Psaki's out and Korean Jean-Pierre is in. And it just came out today. It was just linked on a website, Mediaite, that she tweeted out the 2016 election was stolen that it was a

stolen election 2016 stolen from hillary clinton 2016 2016 it's only stolen when a republican winds up in office you see and she also thinks that um that stacy abrams had the election stolen from her in georgia so maybe let's investigate her or let's investigate Joe Biden to see whether any of Jean-Pierre's zaniness has somehow made it into the head of her boss. Look, people, people are entitled to their own opinions, whether you're the press secretary to the president or the wife of the Supreme Court justice. we have investigations into the protected, privileged communications between spouses, one of whom was in the highest court of the land, is the day nobody's going to want that job, and the day anything they do is going to be undermined. It is reprehensible. The guy that wrote that article is entitled to his opinion. He's crazy, and nobody can take him seriously, and nothing's going to come of this. The thing is, on the Ginny Clarence Thomas thing, I mean, there's no question Ginny is established right.

I mean, she is definitely conservative. And so is Clarence Thomas. He's 100 percent a conservative guy. There's no question about that either. But let's say he does share her view. Right. Let's let's say he actually does believe, as Ginny wrote, that 2020 was, quote, the greatest heist in our history or of our history. What really matters is what he decides, right? What he writes in his opinions, how he adjudicates cases. He can have whatever private beliefs he has. He's not required to look at the 2020 election and say, I think it wasn't stolen.

He can be like, it was 100 percent stolen. What matters is what his legal opinion says when it finally comes down. Let me take your argument with which I agree one step further. Not only is he entitled to his private views, but no one is entitled to compel him to reveal those private views. That's not me. That's the Supreme Court itself. Supreme Court justices do not have to recuse themselves because they have an opinion about a matter that's before them. That's been the law for 230 years. So what he writes, you're correct, is subject to criticism. What he thinks are his own thoughts and it's nobody else's business. That's right. And what his wife thinks is really none of anybody's business. Shockingly, maybe these people who write these articles don't know this,

but we don't actually just automatically take on all of the opinions of our spouses. It's weird. It's not in the vows. It was never pledged and it doesn't actually happen, which is why couples argue and eventually divorce. Okay. While we're on the subject of the leaker, because I'm going to get a break in in a minute here. Can I ask you, because I haven't had the chance to ask you yet, whether you think the leaker will be caught and put the leak in perspective as far as Judge Napolitano sees it for us. I think the leaker will be caught. There's only 50 people that had lawful possession of this opinion. I don't think this was a computer hacking case. If it's computer hacking, the person committed a federal crime. If it's somebody on the inside, they violated legal

ethics. If they're a lawyer, they'll surely be disbarred. If they're a federal employee, they'll surely be fired. Both of those punishments are relative wrist slaps. However, the disbarment for a lawyer is catastrophic to the lawyer's career, and rightly so, because of what this person did. U.S. Marshals Office does have an investigative unit. It's staffed by ex-FBI agents who know how to ask questions and know how to conduct investigations. They can arrest people. They can charge people. Obviously, they have to bring the person to the DOJ for an indictment and for prosecution. I am glad that Chief Justice Roberts did not ask the FBI to get involved. I'm glad that he's keeping this in-house with the apparatus available to him to conduct this investigation. And I think the person will be caught. You do. Why is it taking so long? Feels like a long time.

It's been over, it's been eight days now since it hit. You know how, Helen, we both know how investigations are. We've both been involved in in criminal cases. They're going to leave no stone unturned. They may already know who the person is and they may be negotiating with that person for all we know. Judge Napolitano is staying with us up next. We're going to discuss a couple of the other big cases, including on gun rights and religious freedom being considered by the court on which we'll have decisions as well within the next month, one presumes could come down within the next 30 days at any point. So the controversy involving these nine justices is far from over.

Contrary to what people may believe, there are a couple of other very big cases on the Supreme Court's docket that are about to come out. It's always exciting when you get to May because June is when they start firing off all the big opinions. They never get them out early, unfortunately. So you always have to wait for June for the big ones, though the leaker, you know, decided he or she would not wait. Let's let's hope that they have more patience on these other cases. Here's one on guns. Now, the big, big gun case was back in 2008.

It was Heller. And in Heller, the Supreme Court said you do have an individual right to bear arms inside of your own house. You do have a constitutional right to have a gun inside of your house for self-protection. And now this is one of, if not the biggest case to go up to the Supreme Court on guns since Heller. It's New York State Rifle and Pistol Association Inc. versus Bruin. And the question is whether in New York State, where I live for most of my life, most of my 51 years, and I know you've been there often, although I think you're a New Jersey guy, whether New York State's denial of applications for concealed carry, the mainstream media says this is an open carry case. It's not. It's about concealed carry.

Can I carry a concealed weapon while walking around New York State, New York City? Is that a right that I have? Or can New York continue to pursue its very restrictive license policy for people seeking firearms? Because in New York right now, you might be able to have in your home, but if you want to go out and walk around New York City with a gun concealed, like in your pocket, you're not walking around with an AR-15 around you. You cannot, unless you can show a special threat. You have to show like you're being stalked. You've got a specific security threat. You got an ex-husband who is whatever,

that kind of thing. And if you're, if you just say like, I live in a bad neighborhood, good luck. You're not getting it. If you just say that I'm a jeweler and I have to carry millions in diamonds to my shop, you're not getting it. If you just say I was on the subway when the shooter was there and he threw a canister of tear gas to immobilize everybody, and I'm an ex-military person, and if I had been allowed to carry a gun, he wouldn't have harmed anybody. You're not going to get it. It has to be a purposeful, direct threat to you. The law is the same in New Jersey and in New York. So during the oral argument, I'm not always a fan of the chief justice because he compromises too much. But during the oral

argument, he basically said, let's see, Heller defined the right to keep and bear arms on the home as a fundamental liberty. You, Solicitor General of New York, are saying that's subject to the wishes and needs of the government in New York. How can a liberty, a natural right, possibly be subject to the capricious wishes of a bureaucrat? The answer, it's not a right if the government thinks it can turn it into a privilege. The government has been wrong since 1934. You have every right to carry that weapon. Again, we're not talking about a rifle. Again, we're not talking about a weapon that advertises that you have it.

But if you're trained and know how to use it, you have every right to carry it. You know who agrees with that? Police agree with that because they know that they can't be everywhere. And they would love the assistance of an ex-military trained person carrying a handgun at the scene of the crime before the cops even get there. We've talked to Dana Lash on this program about, and she's a second amendment expert, and she's talked many times about how all the all the cases where a good guy with a gun stops violence, they don't get published. The mainstream media doesn't talk

about those. But they happen in droves. And if you had more good guys with guns, the predictions are that crime would go down. And we've seen that in city after city, actually, that have more relaxed gun laws that people are afraid of guns think crime will go up, it actually has the opposite effect. But that doesn't necessarily bear on whether it's your right or not. So the Supreme Court got into this. Is it your right? Is it your right to carry around a gun, at least in New York State? You know, gun advocates want them to make this a nationwide ruling. They're not going to. I think they're going to limit it to New York State at first, at least for now. But to your point, here's Chief Justice John Roberts, who's, again, very wobbly on a lot of these swing cases, but doesn't really sound wobbly on this one, versus Barbara Underwood, who's the Solicitor General to the top, like appellate, arguing lawyer in New York State on gun rights, number seven. I can understand, for example, a regulation that says you can't carry a gun into, you know, a giant stadium just because a lot of things are going on there and it may not be safe for people to have guns. On the other hand, if the purpose of the Second Amendment is to allow people to protect themselves, that's implicated when you're in a high crime area.

It's not implicated when you're out in the woods. Well, I think it is implicated when you're out in the woods. It's just a different set of problems. I mean, you're deserted there and you can't, and law enforcement is not available to come to your aid if something does happen. Well, how many muggings take place in the forest? If we... How many do you think? I don't know, but I will tell you that our licensing officer told us that rapes and robberies happen on the deserted bike paths and that he has some concern about that. So, I mean, I take your point that there is a different risk in the city, but there is also a different public safety consideration. And that is why the licensing officer is meant to take into account not just the risk, but also the

population and the availability of law enforcement and all these considerations. So, Judge, the reason she was pushing back on him there is because you can get a license a lot more easily, supposedly, if you're in a rural. Yeah. If you're in a rural area like where I'm from in upstate New York. And he's kind of saying, well, what sense does that make? We all know where you need the gun. And it isn't in my little neighborhood that my mom lives in. Look, you put your finger on it.

And these statistics are inassailable. More guns equals less crime because the criminals are either afraid that their victim or a witness is armed, or they are stopped before they even have time to be afraid. Those poor people in that subway car where the canister was thrown, for people watching us who are not from New York. This is a real story. This happened two weeks ago. This crazy guy threw a canister and blinded everybody in the car. And then he started shooting. Thanks be to God, nobody died, but he seriously injured 16 people because it was like shooting fish in a barrel because he knows it's nearly impossible to carry a gun in New York City. If he had had the fear that somebody in there had a gun, he might not have done that. Or if

somebody in there had a gun, he could have and would have been stopped before he completed his dastardly mission. That's why Madison wrote, not knowing about subway cars in 1791, to keep and bear. Because keeping the gun in the house, ah, it protects you at three in the morning if somebody breaks in. It doesn't protect you at crimes in the woods. Sure, they are. And she's probably not wrong about bike path and women. I mean, every woman I know is afraid at some level to jog by herself on a bike path because you just, you know, you hear too many crime stories about women getting abducted or molested or raped. Never mind children. Sorry to go to the dark place. But the cities are where you really do have to worry.

Yes. OK, so maybe like getting abducted, but like it is more likely to happen on a dark trail in the woods, but like getting held up at gunpoint. Good Lord, half my staff has had that happen to them while we were working at Fox News in the city.

Like it's very common. I remember Mrs. Clinton when she was the secretary of state and had a slew of Secret Service protecting her, complaining about AR-15s, a very strong and very powerful weapon. Guess what the Secret Service were carrying? Collapsible AR-15s under their jackets. Of course.

It's good enough for the elites to have government people carrying this to protect them, but weapons are not good enough for people who know how to use them people carrying this to protect them. But weapons are not good enough for people who know how to use them to protect themselves and their families. And I love the farce. I love the farce of well, okay, in the woods, you know, the response time by the police may be such that you're going to need to have your own gun. Oh, sure. Because in New York City, they get there like that. You know, you know, after they defunded the police by a billion dollars, especially and all the shit that the police have had to take over the past two years and people retiring and so on, not to mention

getting killed. Sure. The police are super quick to arrive when you call when you're being held up. I mean, what a joke. It is a joke. It takes the police far longer to get you into the city than it does in the country because of the obstacles in the city, because of the traffic, because of the traffic patterns, because of the way the city is constructed. These people that write gun laws have never had a gun in their hands, don't know how to use them, don't know how safe they can be, and don't know how protective they can be to human life. I always say a gun is like a criminal defense attorney. You can't stand them until you need them. Right. And you feel very differently. Let's take a listen to Justice Kavanaugh because he questioned the same woman, Barbara Underwood, on on sort of the issue that you were getting at.

Is it is it my right or isn't it? Listen. Why is it good enough to say I live in a violent area and I want to be able to defend myself? Well, what happens in these license hearings is that a question is asked, what exactly do you mean? Because it depends on how large an area you describe. You could say, I live in a violent area, and that could be all of New York City, or it could be your particular neighborhood, and the closer it gets to your particular neighborhood, the better your claim is. What I know happens is that those claims are examined by a licensing officer. Now, this gets to questions about discretion and whether that's effectively handled.

Well, that's the real concern, isn't it, with any constitutional right? If it's the discretion of an individual officer, that seems inconsistent with an objective constitutional right. That's what you were saying, Judge. There you go. There you go. That is telling us the government doesn't treat it as a right. It treats it as a privilege with conditions imposed on it. And one of those conditions is satisfying the government itself that you need this. You don't need to satisfy the government itself for your First Amendment liberties, going to church, expressing your opinion, assembling with people, publishing your views. You don't need the government's permission to enjoy the

right to privacy. Why do you need the government's permission to defend yourself? He said it more articulately and less passionately than I just did. No, he didn't. The thing is, her response about like, well, okay, if you can show a spike in violence in your neighborhood, you're more likely to get a permit. Maybe, you know, as you started saying, it depends on, you know, if you get more localized, your case improves. But we've seen in big cities, New York among them, and we'll talk to John Cass about this about Chicago in a minute. There's no predicting in today's day and age. I lived for 10 years on the Upper West Side with my family judge and a very safe building in a very safe neighborhood. Of course, I was, you know, at Fox, I wasn't going to choose some lunatic neighborhood where we're

strolling my babies down the street. I chose the safest neighborhood I could. And a guy 10 blocks from where I lived was just shot sitting in his car, shot to death and killed. Young man, not like a gang member, just a tourist, somebody there visiting his family, shot to death. You don't know. Times Square, that's been cleaned up. It was under Giuliani and Bloomberg. Somebody got shot just walking through the theater district within the past year. You can't say just because your neighborhood is historically safe that tomorrow or today it will be. That's why, just like the bias in favor of speech or tranquility in the home has to be in favor of speech because it's articulated in the First Amendment, the bias

has to be in favor of the right. It shouldn't be your burden to prove that you need a gun. It should be the government's burden to prove that you can't use a gun or shouldn't have a gun, at least. At best, there should be no burden. You should be able to carry the gun because that's what the Second Amendment says. But at worst, the government should have to prove the case rather than you having to prove yours. It's so true. The right should be presumed because as Scalia wrote, Justice Scalia wrote in Heller, the right to keep and bear arms is a natural extension of the ancient right to self-defense. It's a natural right. So it should be presumed to be yours. And then they make you go down on your knee to these government bureaucrats that don't know anything. And you have to reveal all

these personal details about what's happened to you, that you need a gun, and then you need, you know, some, somebody who's respecting, you know, somebody whose decision there, whatever, what their intelligence, you don't respect is what I'm trying to say. They get to decide how safe you can be, whether you it's like, what am I doing here? Why am I on bended knee to this bureaucrat? I'd like trying to reveal all these personal these details about my life that they have no right to know. OK, moving on. So that's one of the ones we're waiting on. Next one, religious freedom and school choice has to do with it's called Carson versus macon and the question is whether a state violates the religion clauses or the or the or the equal protection

clause of the u.s constitution by prohibiting students participating in an otherwise generally available student aid program from choosing to use that aid to go to a school that provides religious education at least in part so if i live in maine this case comes out of maine and there's no public school in my um district i can get a grant to go to another to go to a private school but basically what maine said oh you can't go to a catholic school though that that you can't use it and i'm saying well why why i can go to some secular private school but i can't use it for a catholic school that's basically what this is about i think the supreme court is going to invalidate that first of all this thing was written with an animus toward catholicism at

the time that it was written because it only applies to to catholic schools and secondly um what business is it of the government what you're learning in the school when the government is giving you the money to pay for the school. So you can go to a secular school where they'll talk to you about gender identification at age five, but you can't go to a Catholic school where they'll keep this type of an education between the child and the parents. I don't think the state can make that decision. I think this case goes to the challengers and the state of Maine loses. This has been the law for a long time in Maine. I'm surprised the challenge is just coming now. You know, Justice Alito actually got right to this and he asked the lawyer for Maine defending this policy. He said, what if

the person wanted to go to a Unitarian Universalist church and that what they teach is something like all people are created equal? And the lawyer seemed to indicate that, well, that school would be eligible to receive the funds, not the Catholic school, but the Unitarian school, that'd be okay. And he said, well, this is, you can't, unless you can treat all the schools the same. He said, I think you've got a problem. And that seemed to be the decision of at least all the conservatives on the court that day. So, look, the First Amendment was written for many reasons, but one of which is to keep

the government out of the business of evaluating fidelity to a particular religion and favoring one religion over another. So the answer that this lawyer just gave to Justice Alito is fatal to the case that the money can go to a universal, a school owned by the universalist church, but not to a school owned by the Catholic church. That means the state is actively, aggressively, and openly discriminating against Catholicism. It can't do that. It has to allow this money to be spent wherever the parents want it, or it has to terminate the program. Another case that was just decided on May 2nd was Shurtleff versus City of Boston. Just so the

audience knows, this is one of those extremely rare nine to zero decisions. You get that as the as the lawyer, you know, on the nine side, you're like, I'm done. I can retire now. But this was an opinion against Boston, which the city had said anybody who wants to fly their little flag in front of like our town hall, they can do it. Just we'll pop it up there in front of City Hall. There's three flagpoles, you know, and we don't care except when it was a christian flag some sort of a christian uh organization camp constitution wanted to fly a um a christian flag and they said no yeah okay it was a cross i'm just now getting that they said a red cross on a blue field and i was picturing like the swiss flag i'm like what is that okay it's just the cross itself

that was the problem they said no and uh in a nine to zero opinion the supreme court said you can't do that you got to fly them all if you're not gonna make you basically if you're gonna fly in you got to fly them all so then uh now they have some satanic cult that wants to fly its flag but they've changed the policy in the meantime saying we're not flying anybody's flag anymore judge well i mean that's the. The problem is they opened up the flag poles for anybody that wanted to fly them, except people they didn't like, like conservative Christians and now Satanists. I'm glad they don't like the Satanists. But quite frankly, who cares what the government's opinion is? They need to open up those flag poles to everybody

or shut them down to everybody, which is now what they're doing. That's right. Such a pleasure, Judge Andrew Napolitano. Loved having you on. Let's do it again soon. Oh, thank you very much. I'd love to have you on Judging Freedom as well, Megan. Anytime. Anytime, my friend. Thank you so much for having me. All the best to you. To be continued. Up next, if the Supreme Court leaker is an employee of the court, how exactly will the investigators go about figuring out who did it? Our next guest worked as a prosecutor for the DOJ for decades, has expertise in hacking and

all of it, and has some thoughts. It has now been over a week since the Supreme Court leak rocked the nation. The Justice Department does not plan to get involved. Merrick Garland has zero interest in going after the leaker, apparently, although he hasn't been asked by the Supreme Court or the protesters who decide to spend their days and nights in front of the justices' homes, including those homes with young children, meaning it's left up to the marshal of the high court to find out who did it and how. Last week, Senator Ted Cruz, who was once a law clerk for then Chief Justice William Rehnquist, laid out some of the intense security procedures that law clerks who work for

the justices must follow. Right when you start, you have very serious training and orientation about confidentiality. You don't take opinion drafts out of the court. Every law clerk has under his or her desk a burn bag and it's a brown bag with red stripes on it. And any draft that you have, anything you have, you put in the burn bag. The burn bag is then sealed. It's shredded. It's actually shredded twice. It's shredded horizontally and vertically. And then it is burned. I mean, the levels that the court goes to make sure that nothing leaks. And you really are limited to the justices and the law clerks, maybe a clerical person or two or a secretary. But a clerical person would be unlikely to know the details about the conference like that. I think it is almost certainly a law clerk. I cannot bring myself to believe that a justice would have anything to do with that. This would be the gravest violation of trust and integrity for a justice that I just I refuse to contemplate that scenario. So how exactly would one go about investigating this particular case and how might it be going on right now? Joining us now to discuss it is Mark Rash, former Justice Department computer crimes prosecutor. Mark, great to have you here. And forgive the DOJ Computer Crime Unit and cyber forensics practice and prosecuted and so on at Harvard Law School, MIT, and so on.

So you know of what you speak. All right. So let's say instead of bringing in the chief marshal of the U.S. Supreme Court, Chief Justice brought in you and said, Mark, walk me through how you're going to figure out who leaked this document, given, you know, how tight the controls were around it to begin with. And the fact that you're dealing with while not, you know, seasoned criminals, very, very smart people. Well, first of all, you know, just because they're very smart in the law, it doesn't mean that they're very smart in breaking the law. So that's one of the interesting things. And typically, you catch people because they make mistakes.

But there's really two investigations you're going to do. One is a forensic investigation, a computer investigation. And the second one is an interview or a series of interviews, just like old-time gumshoe investigation. Now, the forensic investigation is going to look not just at computers and emails, but also it'll look at other electronic records. Like every time you send a document to the printer, there's a record that's created of that.

Every time you Xerox something on a printer, there's a record that's created of that. So you're going to look at all those documents and records, and it's entirely possible that whoever leaked this document did so from an electronic record. In other words, they emailed a document to the political reporter, or they emailed the political reporter to set up a meeting or something like that. So you're going to be looking for that kind of a digital trail. Somebody who's making a copy they shouldn't be making, making a copy or printing a copy that's in an unusual way or emailing a copy to themselves or something like that. The other thing you can look at is whether or not a third party

hacked the court. Some unauthorized access by somebody else who might have been able to access the Supreme Court. Not likely, but that's the other thing you're going to be looking at. I think we can safely rule that out because Politico's reporting cites a person familiar with the court and its proceedings. So it's clearly an insider. It's not some hacker who managed to get in there. We just don't know how high up it went. Again, I reiterate, I cannot believe a justice would have done this, but who knows? It seems to me to have been a law clerk. But again, who knows? Could have been an administrative staff, though they've never done this in any other case, including very, very high profile fraught cases like gay marriage.

We've never seen an administrative staff or leak or anybody like this. But you get a new pool of law clerks every year. And given the way these young 20 year olds are in today's day and age, you know, they think they know better. I refer back to the Yale law school graffiti. We are the law F your court. You know, that's the mindset of today's young 20 something year old law clerks coming into these courts. It's circumstantial. It's anecdotal, but it's there. But you point something out. That's very important. You were talking about how these You were talking about how these law clerks are the creme de la creme. They're the best and brightest, whether they're conservative or liberal on either side.

They are from the Ivy League law schools and the best and the brightest, but they're still kids in their 20s. And so they have both a degree of maturity and knowledge and sophistication, but also a degree of naivete. They have not been exposed to the world. So they have both of those things going on at the same time. So showing up, when you get your imaginary phone call from Chief Justice Roberts, you're feeling good?

Like you're like, you know, you're feeling good about your chances? No, because I've conducted forensic investigations and leak cases involving the CIA, the NSA, other government intelligence agencies, and the leak investigations are incredibly hard to do. And you typically only find the leaker if they've made some serious mistakes. So, for example, using their government phone, using their government email account, Those are pretty obvious mistakes. What you're going to do also is you're going to go out and interview everybody who had access to these opinions. And you point out, obviously, the nine justices did. Whether or not the marshal of the Supreme Court is going to interview the justices is very difficult to tell. Okay. But second of all, you, you're going to now interview the law clerks and each justice has four or some of them have five, just five clerks. So that's a

very limited number of people. And then the administrative staff, and maybe even some of the technical staff, and you're just going to interview them and find out if they had any motive to, or if they had any reason to to or if they had any knowledge of the leak. Do you say in that interview, may I have your phone? You can ask. Okay. And that's one of the things is that the marshal of the Supreme Court does not have subpoena authority, doesn't have compulsory process authority, doesn't have the ability to get a search warrant. So all they have is the power to coerce, intimidate, or cajole.

That's it. So no power. So no power at all. I mean, so then the law clerk says, I'm not comfortable with that. My husband and I like to get a little freaky, and I don't want you going through my photos. So no. Absolutely. I mean, so no. Absolutely. I mean, they have that right.

So the problem is you have this – it really comes down to culture. And so if all – let's say there's a total of 70 people who had access to that document. You interview 69 of them, and they all say, I've got no problem. I'm more than happy to cooperate. Here's my cell phone and everything like that. And one person says, I'm not talking. I'm not cooperating. Well, immediately, even though they have a constitutional right to not cooperate and they have a constitutional right not to give up their personal devices, suspicion is going to be on them. Same is true with respect to the old, would you be willing to sign this document under penalty of perjury that you are not the leaker? Well, that's right. I mean, the problem is you don't even need the

signature of a document under penalty of perjury. If the marshal of the Supreme Court asks you, do you know anything about this? And you do, and you lie to them, that's already a crime itself. It's already a crime. That's a violation of the 1001, it's called. Okay. So back to step one, since we're kind of saying, we don't think this is a hacker from the outside who managed to, you know, hack in. And that's, I think, smart because there was another law clerk. I played, I played Ted Cruz. We had Ted Cruz, Senator from the great state of Texas, um, come on and talk to us about it, but there's, we, we, we treated him as a former law clerk, even though he's doing more important

things now, but a lot of the law clerks have spoken out, including this guy, Mike Davis, who was a former Gorsuch clerk. So he was there more recently. And he said, I think it was to PJ Media, that each clerk signs an agreement not to leak. So on top of one's ethical duties that you take when you take the bar exam, which you would have had to have done to get this position, because lawyers have a higher ethical obligation than most people do in their regular jobs. Anyway, so on top of that, you sign an agreement not to leak. He said that, hold on, that the chain of custody system for documents inside the Supreme Court is quote, intricate and inviolate, that they use an intranet system not connected to the Internet because they're not dumb, right?

They don't want to make any of these draft decisions subject to hacking. So it's only connected within the Supreme Court. And then Mike Lee, senator from the great state of Utah, he clerked for Alito. And he said what Ted Cruz said, that there's a burn bag, that you have to leave any draft opinions in the burn bag, that they get shredded vertically and horizontally. He added this detail that the confetti of the burn bag, when it's taken by the staff, the administrative staff, it's incinerated and then it's mixed up with water so that it's never readable. Even the little confetti squares are never readable. This is how seriously they take security. But he said this, it is very rare to print a draft opinion that normally the reviewing, the comments, the exchanges are all done on this intranet server with just the clerks reading online and commenting to one another. So presumably, when one hits print, as you say, there'll be a record of that, and there probably won't be that many of them. Right. And I think that's absolutely true. I think the first thing you're looking for

is what's called anomalous behavior. So if you have a clerk or a justice who never prints out a document, and all of a sudden they're printing out the document, or they never Xerox the document or copy it, and then suddenly they're copying it. That can be something that you're going to interview them about. And the way you're going to interview them is you're going to know something about them that they don't know that you know. And you're going to withhold that, and you're going to say, so tell me, did you have access to the document? When did you first get access to the document? How did you get access to the document? Did you print the document? Did you

talk to anybody else about the document? So there's lots of things that you can do. And the techniques you talked about with the crosscut shredding, as well as the burn bag is a very common thing to do in the intelligence community. Almost all classified documents are handled that way with strict chain of custody. The problem with this intranet is if you're using an intranet not connected to the internet, but on devices that have thumb drives or USB ports and the like, then you have the possibility of somebody offloading it onto that. The good news is that will also leave a digital trace. What about going at it from another way? Okay. Because Ted Cruz also told us they don't check your bag before you leave the Supreme Court when

you're a clerk. There's a trust. That's right. It's worked for 235 years until now, until somebody decided they know better. And by the way, it'll probably work for another 235 years. This is what we call more sui generis. It is a condition of one. Yeah, that's right. This one person decided they knew better and their desires were more important and broke the system of trust. So they don't check your bag. So what if they say, let's do it another way?

Let's start with the reporters. Because as a journalist slash lawyer, my slashy, that's what I would do, Mark. I would go to the two lawyers, not ask them. They're not going to reveal their source, Josh Gerstein and Alexander Ward. Now, Josh Gerstein is the Supreme Court reporter for Politico. So you might think, okay, let's start there. Who's he connected to? And indeed, we do know from some reporting online, he's got a couple of connections. He's got at least one connection to this one woman who's suspected not by anybody real, just by the internet, because her husband shared a byline with him when he worked as a reporter for Politico. Okay, so that would definitely get a red flag from an investigator, like want to talk to her.

But the other guy on the story is Alexander Ward. Alexander Ward is a national security reporter. And there is a legitimate question to be asked about what the hell he's doing on this story. Why would he be on a story leaking a Supreme Court opinion? There's no way Politico would not byline the person who got the document. As a reporter, as a press organization, that would be the ultimate middle finger to a reporter. If it's his leak, he's getting a byline on the story, right? You're not going to exclude him. That would make sense. That would explain what he's doing. There are journalist organizations that will cut the byline specifically to keep it secret. That's happened in a number of leak cases where they have deliberately not put a byline at all

for that reason. But you're absolutely right. You work from the other way around. The problem is you don't have subpoena authority. So without subpoena authority- Right. You can't get their communications and they're not going to give them anyway. But my point is, first thing I'd be doing is I go back and this Josh Gerstein has quoted, there's yet another clerk, he's over in Sotomayor's office, who's apparently quoted in a bunch of Josh Gerstein earlier pieces. And I was saying as a reporter matter, that's always a tell, I can't say that it's the tell in this case, but you can often find a connection. Like who, who does the reporter have connections to by their sources cited in earlier articles?

Right. And so what you're doing is you're looking for relationships. So imagine that I am a clerk with the court and I want to get this out there. Who am I going to give it to? I'm going to give it to somebody I know and somebody I trust and somebody that I believe I can trust to keep my name confidential. And so where would I find that person? Well, you can do it randomly. I mean, if I needed to find a New York Times reporter, I could just go out and search. And by the way, that's another thing you're going to look for. You're going to look

for clerks who may have searched out political articles or whatever, or the names of people or contact information. That's another thing that you can look for. So there are lots of ways you can try to do this. I will tell you that having done a bunch of leak cases, they are very difficult to do, particularly if you're not willing or able to go back, look back from the journalist to the source as opposed to the other way around. If you get the FBI involved, they'll have subpoena power. They can overcome all these obstacles that we're talking about, except for the press privilege. Right. And the problem with getting the FBI involved is there's no clear statute that prohibits this particular activity. The two statutes you've got mainly are the Computer Fraud

and Abuse Act, which imprimishes exceeding the authorized access to a computer. And a case last term in the Supreme Court said, if you have authorized access, but use it for a prohibited purpose, that is not a violation of that statute. So the idea is if a clerk have authorized access but use it for a prohibited purpose, that is not a violation of that statute. So the idea is if a clerk had authorized access to the file on the computer but used it for a prohibited purpose, that would not be an unauthorized access. What about stealing a document? That document belongs to us. That's right. So the second one is the embezzlement statute, which is 18 U.S.C. 641. However, there's a longstanding guidance by the Justice Department in their policy in the U.S. Attorney's Manual that where the thing's stolen is intangible property, meaning information.

And it is leaked to the press. They will not prosecute those kind of cases. They don't prosecute those kind of cases. I read that to Glenn Greenwald last week. But what about obstruction of justice? Because Bill Barr was on the program last Tuesday saying, I take a long, hard look at that statute because this could literally be obstructing justice, trying to impede the administration of justice. Well, the problem with the obstruction of justice statute is it requires a corrupt intent. And the corrupt intent level of proof is extraordinarily

high. It's more than knowingly, it's more than willingly, it's more than intentional. It requires corruptly, which is a very high standard to prove. And it's not a matter of just influencing an opinion or a decision of the court. It has to actually be calculated at obstructing the ability of the court to make a decision so that that is also not a great fit okay wait let me go back to the uh lying to the marshal because the leaker if they sit in front of the marshal is probably lying right now so is that that's right to get no i mean of of subpoena if the FBI then comes in and say that one of these people's lying? Well, you can't necessarily, let's say everybody denies. You've interviewed everybody involved and everybody denies. I don't know that you can

open a false statement claim under the theory that everybody denied it. One of them must be lying. Therefore, we're going to open a criminal investigation. I'll give you an example. You're right that it is very rare for people to say, take these opinions home with them. But let's say a justice or a clerk took it home with them and some boyfriend, girlfriend, whatever, then took the opinion with them. Everybody involved at the court may be telling the absolute truth. No, but it doesn't work. Again, it doesn't work because of the political reporting about the conversations with, and that this was provided by somebody familiar with what went on at the court. I think that falls apart.

Well, but there are people who are associated with the court who are familiar with the court who don't work for the court. Yes, but they say a person familiar with the court's proceedings, which is pretty general. I mean, I guess you're right. It doesn't really nail it down to if it's a law clerk, it couldn't be that law clerk's husband or wife. But you also know that journalists are going to use this kind of loosey-goosey language to try to conceal the identity of their source. They want to give them sufficient bona fides that people will trust the source, but certainly not give enough specifics that they can reveal the source. Okay. Now there's another wrinkle to this, Mark. There's another wrinkle because there have been other leaks since this one. Previous to this,

you know, I mean, we've never seen an opinion leak. It was like maybe drips and drabs like a hundred years ago or like 30, 50 years ago, there was one, you know, it's just very, very uncommon for them to say anything about how the deliberations are going. But in the wake of this, we've had a couple. CNN had a report that Justice Chief Justice Roberts does not want to completely overturn Roe, that he is willing to uphold the Mississippi law. So not just her supposition, you know, like that's I can deduce that a report sources told her that that's the case. Now, that's that's a leak. Then The Washington Post on May 7th had quite a leak. As of the last week, they report the majority of five justices to strike Roe remains intact, according to three conservatives close to the court who, like others, spoke on the condition of anonymity to discuss a sensitive matter. A person close to the most conservative members of the court said Roberts told his fellow

justices, jurists in a private conference in early December, he planned to uphold the state law and write an opinion that left Roe and Casey in place for now. So that's the same CNN report. So somebody certainly on the conservative side is talking to WAPO and one would assume CNN with those leaks could be totally unrelated, could have been given permission even by the court because people are in a full panic now about this decision. But how would that play in for you? Well, so there's always been, particularly in high profile cases, this idea of reading tea leaves and trying to figure out what the justices are saying. And in this case, I think that once the, but that's a huge difference from leaking an entire opinion. I mean, the contents of an opinion, but they didn't leak it. And we've had leaks a couple of hours before the official release, but we don't have this kind of

thing where the leak was probably tactical to try to influence the decision. I think what's happened in the post-leak environment is that the court is trying to send out the view that leaking opinions is not going to achieve what you think it's going to achieve. It's not going to necessarily cause the court to change its opinions and change the alignment of those opinions. So they're trying to send out the message that this leak not only was a violation of the oath, but as a tactical matter, it was dumb. Yeah. So the second leak sourced to conservative sources close to the court, that does not tell us anything about who the original leak was. And it could just be the court just trying to settle, could be sanctioned, you know, trying to settle the temperature in the wake of the huge, huge news of the leak. Can I say one thing and then ask you one final question? Tom Goldstein, who writes scotusblog.com, who I respect, he posits that the Wall Street Journal had the original leak in his view, because in April, I think it was April 26th, they had an

editorial in the Wall Street Journal suggesting this is how they saw the case coming down. They thought it was going to go 5-4 to overturn Roe. They thought Roberts was going to be in this place where he would uphold the Mississippi law, but he would not overturn Roe. And they wrote that if Chief Justice Roberts isn't in the majority, then he's not the one who gets to assign the writing of the opinion. They said if it wouldn't be him, then Justice Thomas would assign the opinion. And we all know that because if Roberts isn't there, Justice Thomas is the most senior guy. That's how it works. And they write in the vote could be five, four. Our guess is that Justice Alito would then get the assignment. Not just Tom Goldstein, but others have used this

to say somebody leaked first to the Wall Street Journal. And that's their evidence. I think it's a conservative because they chose the journal. I would say this, Mark, that's not a leak. If you listened to the arguments when this case went up, which I did, it was very clear. That's what everyone predicted was going to happen. And then you never know. But if you had to put money down, you'd say it's going to be five to overturn Roe. All those five justices were suggesting they were very anti Roe. Chief Justice John Roberts was very focused at that argument about on ways to uphold the Mississippi law and not go that far. And the liberals were on the other side. So I don't this is not the original leak. And I feel like that's misleading. Okay, this is my last question to you. I would agree with you. I say, you know, to figure out that this is going to be at least a 5-4 decision is, as we say, not rocket surgery. Yeah. And the last question is, let's say the person does get charged. Somebody finds a way of saying that is obstruction of justice.

And I think you did do it corruptly. And they get a conviction. And this person appeals, and then appeals again, and appeals again. What happens then, Mark? Well, if it makes its way to the Supreme Court, the Supreme Court, I think, may have to recuse itself either partially or entirely from deciding this case. It's very difficult. There are no hard and fast rules on recusal at the Supreme Court level because, frankly, there's nowhere else to go. Yes. So so it would be a very interesting decision if the Supreme Court ended up having to rule on whether or not it was the victim of a crime in a particular case. That's never happened before. It could be just Katonji Brown Jackson sitting there by herself.

That's right. She would be the only one who would not be conflicted. That'd be very interesting. I don't think it'll get to that point because you'd have to have a novel issue of law that where you had a circuit split for it to get to the Supreme Court. But who knows? Stranger things have happened. Fascinating discussion. Mark, thank you so much. Mark Rash, everybody.

Up next, John Cass is here. A closer look at Chicago's crime wave as Mayor Lori Lightfoot wastes time virtue signaling to her leftist base. As we mentioned earlier, Chicago's Mayor Lori Lightfoot is getting blasted, and rightly so, for warning the Supreme Court is coming for the LGBTQ community and requesting that the community see this as a, quote, call to arms. A call to arms in a city seeing a 35% increase in crime year over year, where a young man was just shot in the head for not immediately handing over his cell phone. And 16 children have been murdered by guns, by people holding guns and committing gun violence so far this year. My next guest is a Chicago legend. John Cass was a syndicated columnist

for the Chicago Tribune for 38 years. He's independent now, and that's better. He's been covering politics and lawlessness in Chicago for a long time, and now he posts his columns on his website, johncass, K-A-S-S, johncastnews.com. Welcome back, John. Thank you, Megan. That's a great introduction. She's out of control. She's truly out of control. Let's just start with her comments on the Supreme Court, that the Supreme Court is coming, quote, coming for the LGBTQ community next, and that this must be seen as a, quote, call to arms.

Yeah, it's kind of desperate, isn't it? Those of us who've covered politics for more than five minutes know that when a politician is in trouble, they need to have enemies. And they desire enemies that they can think they can beat up and organize their troops. Excuse the war metaphor, but Laurie was first on that. And to call it to say call to arms is just she's a mad woman. I think she's lost it. Yeah. Be careful. Be more careful when you're dealing with the lives of Supreme Court justices who right now still don't have round the clock protection for themselves and their family like she does? I think that the left, it's not John F. Kennedy's Democratic Party, okay?

It's not Scoop Jackson's Democratic Party. I don't think either one of them could be elected in a primary. And what you're seeing is force and anger and threats of force all the time with them. And picking on the Supreme Court justices is beyond the pale, especially since Joe Biden, who's also coming to Chicago to cash in on a fundraiser tonight, said nothing about the protesters outside the justices' homes and said nothing about, did he say anything about that bombing in Wisconsin? No, Jen Psaki condemned it. He hasn't said anything yet. But he hasn't.

Okay. And by the way, to this point though, John, so she ratchets up the temperature. She pours kerosene on the fire. But he hasn't. Okay. She's got round-the-clock protection, unlike anybody else, as far as I can see. The report in the Sun-Times in March was there's something called Unit 544. It's a unit of 65 officers that provide round-the-clock protection for her, including her bodyguard detail on top of this of about 20 men. So she's all good. She can pour gasoline on this fire all she wants. She doesn't have to worry about a thing. Amy Coney Barrett, with all of her children, including her little 10-year-old child who happens to have Down syndrome, they're in a different boat. On Mother's Day, right? I mean, it started on Mother's Day at the churches

and at the Supreme Court justices' homes. To me, I'm not a lawyer, but it looks to me like a violation of federal law if you're going to threaten justices to get your way. You're right. I think at the end, if this kind of thing continues and Democrats don't stand up and shout down their own members, when you start threatening justices to get your way, you don't have a republic. You don't have a rule of law. All you have is mob rule. And I thought they didn't like that. I thought- You can't show up outside of a Supreme Court justice's house and protest in front of their family home with their children inside with a goal toward changing their opinion. You cannot do that. That's prescribed by the law. But Lori Lightfoot doesn't care. She doesn't seem to care about the law, John. You tell me, because the crime stats in Chicago are disturbing. burglary up 35 theft up 67 motor vehicle theft up 41 murder is down eight percent but it's up 25

versus three years ago uh this week this past week or two weeks ago i guess april 25 to may 1st year over year total crime up 37 and murder is up nine percent and all the other stats are all the same um the the case that's getting covered right now in the press that I mentioned in the intro is awful. A 23-year-old man, we just checked, he is in critical condition at this moment after being shot three times, including in the head. After a duo that's apparently wanted in eight armed robberies shot this poor guy Dakota early in Lincoln Park, which used to be a nice neighborhood, Friday night at 3.30 in the morning. You know Chicago. You know what? The rents in Lincoln Park are extremely high. The property taxes, if you own property in Lincoln Park, for a small house, you'd have to pay $40,000 at least a year in property taxes. For what?

So you could get shot for your phone. I mean, this is why Mayor Lightfoot is a complete failure in terms of her administration of police. She caved into the Black Lives Matter rioters two years ago, and she's running for re-election now, flailing. You know, I guess she wants, I don't know what, Planned Parenthood money to run on? I don't get it. Why is she attacking the Supreme Court? But she needs enemies because the city, remember, Megan,

she had, this was supposed to be her summer of joy. And she said, summer of joy, we're going to have it. And if you don't like it, I guess, you know, you better like it because she's the mayor. So here's the thing we love about John Cass, among other things, your writing just moves me. You can't read John Cass and not feel moved. Lori Lightfoot says, just wait until Memorial Day in our summer. It will be the summer of joy in Chicago. And John writes, um, summer of joy. She thinks so. Chicago doesn't think it will be all that joyful. You want to really know the heart of Chicago with the mayor unhinged and violent

crime rising downtown and in every neighborhood. Try looking into the eyes of Chicago? With the mayor unhinged and violent crime rising downtown and in every neighborhood? Try looking into the eyes of a Chicago Fire Department paramedic after an eight hour shift. What do they think about? The bodies taken away in Chicago's river of violence. The mother screaming at the crime scenes. A little girl or little boy in the ambulance. That river is never ending. It sweeps the victims away. New victims are always falling into that river, and they too are swept away, the names of the dead forgotten. Most of the victims are teenagers, minorities, black and brown. Many have police records. They're imperfect, but somebody loved them. It goes on from there. Her summer of joy has just begun.

The stats are dark, John. They're dark, and her ignoring them won't make them go away. They're dark. She ignores them. The Cook County State's attorney just recently praised kathy bodine okay mom yes that's it that a criminal chase of budines he's the san francisco da and his wife was with a weather underground and she served her life in prison because she shot and killed two cops and a security guard yeah and she kim foxx didn't mention their names she was part of the group yeah exactly right she forgot you Foxx didn't mention their names. She was part of the group. Yeah, exactly right. She forgot. You said something. Didn't you tweet something out about this, saying something like she forgot something about Kathy Boudin?

I'd written about it, and I read something from Chicago Contrarian, who I believe is a police officer, and he was upset. And, you know, hat tip to him for reminding us that this is where we are the woke you have chase of budine you have kim foxx you have krasner you have all these left-wing prosecutors elected in the united states many uh from through help from George Soros. And all you see is disaster. Now, Lori Lightfoot, she deserves what she's getting because she's the mayor. But she's terrified of questioning Kim Foxx. So she's got Kim Foxx is protected by a woman named Toni Preckwinkle. And Lori is afraid of Toni Preckwinkle.

And so that's where we are. What's so scary about Toni Preckwinkle? Lori defeated her roundly in every ward in the city the last time they ran against each other. But this time laurie has i don't know she's you know she lost me she lost the city she's lost everybody here and the people are hurting when you have a 23 year old kid who's studying to be a cook, gone down in Lincoln Park. I mean, what is the parallel neighborhood in New York? Soho?

I don't know. No, it's like a hip neighborhood where a lot of young people go, where there's fun bars and some restaurants and people are playing softball on the weekends. It's just, it's where you want to go. When I, when I went, when I was 25 years old, that's where you wanted to live. You know, they just, they're another phenomenon in Chicago, the gold coast, uh, and other

neighborhoods where the wealthiest people in Chicago live and the ambassadors consulates and so forth, they're hiring private security in their neighborhood. And they do polls. The people are afraid to leave their home. They're afraid to leave their home at night. Chicago has fallen apart as we speak, and she can't handle it. And the result is a great city seems to be dying. A word on Kim Foxx before we leave that story. Yeah, her tweet upon learning that Chesa Boudin's mother, I mean, here's the deal. His parents were part of the Weather Underground.

They were part of this murder, this Brinks security truck robbery that turned into a murder of cops and a security guard. And they went to jail and weren't available to raise Chesa. So Bill Ayers and his wife, Bernadine Dorn, who was once on the FBI's 10 Most Wanted list, raised him. And now he's the DA. In today's column, I say. San Francisco decided to make him their chief law and first officer.

In today's column, I say that Chesa Boudin was raised by wolves in Chicago. Yeah. Oh, 100%. And so she tweets out, Kim Fox, the DA in Chicago, tweets out, My heart goes out to Chesa Boudin and his family as they mourn the loss of Kathy Boudin. During her lifetime, she worked to offer services and support to those managing the criminal justice system, all while championing restorative justice practices. You forgot a couple of key facts. Well, maybe she could restore the lives of the people that died,

the three law enforcement officers, two cops, and a Brinks armored guard. That's amazing. for the amazing because they were they were they were robbing the truck on behalf of the black liberation army and the uh weather underground yep now now it's almost like we're going back again back to the days of rage back to the summer of 2020 you know Fauci Fauci's on TV saying we have to shut everything down because the new virus and people are afraid that they want to be able to vote in November and they see a plot, you know, around the corner. It's not a good time for the republic. Well, it's crazy when you think about this person is in charge of law enforcement in Chicago. These are all related. These stories are all related. This is the person who's supposed to be putting the bad guys in jail. And when Kathy Boudin, who spent the rest of her life in prison, dies, her remembrance of her is about how she worked to offer services and support to those managing the criminal justice system.

She meets her fellow inmates. Then she says, all while championing restorative justice practices. She means she tried to get out of jail for the rest of her decades she spent behind inmates. And then she says, all while championing restorative justice practices. She means she tried to get out of jail for the rest of her decades she spent behind bars. And oh, wait, why was she there? Because of all the murders

that she took part in while she committed felonies. This is insane. That this, that Kim Foxx doesn't understand why we look at her and we say, hey, you don't seem

so tough on crime. She just did, and you maybe have producers look for it. She just did uh and you may maybe have producers look for it she just did a podcast with chasen budin oh god it was under he's being recalled you know yeah june 7th right i think it's june 7th vote on his recall now we don't have a recall in chicago because in the Chicago way, you know, whenever we see a politician, we just take our hat off and bow and curtsy. But yeah, I think you might want to listen to that. I know I do, as soon as I heard about it. I can't believe we missed it. Yeah.

I know, I do too. I have to talk to my producer. And by the way, the Chicago Way is the name of John's podcast, and that's well worth your time. I've listened to it a few times. I love when you had your brother on about the war in Ukraine. He was great. He's just written a piece on, I think he's writing a piece for the American Conservative on international relations, some aspects of it. And yeah, I'm looking forward to it.

I'm very proud of him. My little brother, Nick. Well, I love your conversations and they're in your, the one and only John Cass style. So they're always worth one's time. Let's just go back for a second to what's happening there because this Lori Lightfoot, as she's tweeting about the Supreme Court and the LGBTQ community, she's very concerned about the LGBTQ community. Isn't so concerned about, let's say, the little girl who's been shot in Chicago. I'm trying to get her name. Melissa Ortega, eight year old shot. A shootout began when she was walking with her mom on a sidewalk

and she was killed. Sixteen children killed just this year alone. Ages zero to 16. Twelve year olds, 14 year olds. This eight year old I just mentioned just this past weekend over Mother's Day, a 12 year old boy was shot while standing on the sidewalk around 845 p.m. Two suspects approached him, a 12 year old and opened fire. He is expected to survive. Thank God. And then you've got, you know, just innocent people like Larry Purnell, 64, standing in

the front yard of a home shot in the chest this past Mother's Day weekend. And that woman is out there talking about the summer of joy, John. And you have it downtown. You have it. When it was only crime in certain neighborhoods, the city kind of shrugged. And it used to bother me. You know, the kids were imperfect and people shrugged and, you know, it's not like our neighborhood. And then all of a sudden it comes downtown. And then all of a sudden you

have thugs beating people up on North Michigan Avenue and you have old ladies who don't want to go shopping on North Michigan Avenue. What is going on? That's what's happening now. And she's completely lost the city. What about the fact that now these major businesses are pulling up stakes, right? Boeing just announced that it's moving to Arlington, Virginia. According to my team, that means 729 employees and 729 jobs potentially now leaving and going to virginia and uh not to mention the company estimated that it spent a billion dollars on suppliers and vendors in 2018 alone donated almost 24 million dollars to local charities uh the chicago's wealthiest

resident ken griffin says he's probably going to move to Florida with his Citadel hedge fund. The United Airlines, moving a quarter of its workforce, 1,300 workers, out of downtown Chicago, and on it goes. And Mayor Lightfoot says,

John, we have a robust pipeline of major corporate relocations and expansions, and we expect more announcements as far as we can tell. The only one publicly known is a casino. Sounds like the same crack that where restorative justice comes out of, the same crack. You know, people are starting to realize in Illinois and Chicago, they're leaving. People, I think we've lost more than a million people in the past 10 years. And you know what? People understand those who leave are the ones who have money and they can go.

And it looks like there's a Ponzi scheme about to collapse in Illinois and in Chicago. And people don't want to be a part of it. And that's unfortunate because there's so, such there's so many great things about the city. Exactly. It's the people, you know, that makes it great. Not the hot dogs.

Not the. We're seeing it in New York too. You know, it's a, I was just talking to a doctor friend of mine the other day. This guy's 64 years old. He's been around forever in New York, practicing medicine. He was saying he, he will not not ride the subway anymore he used to ride it every morning

to work uh will not get on the subway and when you do go down there it's all fair jumpers jumping over the turnstile because our we refuse to enforce that our da said we're no longer gonna hold people to account for stealing um you got as i mentioned people like on the upper west side getting shot just sitting there walking around you walk up and down the streets here john that every trash can is overflowing they they don't pick up the garbage anymore it's like the new broken windows you know it's like garbage everywhere even in the nice neighborhoods you know you're pushing your child and stroller over disgusting wrappers and trash, and there are rats. It's just disgusting.

We put up with a lot when we were kids because we didn't care, you and I. We wanted to be out there. I'm much older than you, but we wanted to be out in the city and the street and party and have fun looking adventure but when you're a parent and your child says you know like an 18 year old 19 year old uh dad i want to take the l and pick up my girlfriend we're going to go to a movie and the feeling you get because what happens on the l is you get somebody attacks or says something to your girlfriend or touches her and then you try to defend her and then you're knocked to the ground and 15 people are stomping you oh god that's what that's what's happening you see it the only news or outlet that really covers it

is chicago cwb chicago the papers don't cover crime as much. The television, you know, like the Dakota Early story, TV news didn't run that story immediately when they had it. They had the video. Remember in the old days, we have the video running the story immediately. That's right. No, there's a lot of PC, woke in the media of Chicago, which is why I left. And I think that the people are hurting.

They are because they need to know. Yeah. That's, I mean, the neighbor of Dakota Early who saw him get shot by those two guys said, you know, you shoot a guy, normally you run. These guys shot him. They hung around. Two more shots. They're trying to get his passcode out of him. I mean, just sick, the depravity. And we got a mayor sending out fake tweets about the LGBTQ community with her hundred guards surrounding her.

John, thanks for shining a light. As always, appreciate seeing you. You're the best. And thank you, Megan. Thank you. Don't forget, check them out. JohnCastNews.com. Tomorrow on the show, Victor Davis Hanson. We love VDH. He's amazing and you'll love him. And in the meantime, download the show so you don't miss him. Download the Megyn Kelly Show at Apple, Pandora, Spotify, Stitcher, also at YouTube.com slash Megyn Kelly. Thanks for listening to The Megyn Kelly Show. No BS, no agenda, and no fear.