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

Episode Date: August 2, 2023

Former President Trump has been indicted... again, this time related to January 6. Megyn Kelly is joined by legal experts Andy McCarthy, Dave Aronberg, and Mike Davis to discuss the new Jack Smith indictment, what Trump's defense could be, how the left's plan to take down Trump is making him more popular, when to expect the trial to take place, whether it has a chance to go to the Supreme Court, how the left and media treated "electors" switching in 2016 to "fake electors" now with Trump, how Trump may have pressured VP Mike Pence and whether that was a crime, Trump's pressure on the DOJ and how that relates to the indictment, what Trump's state of mind was on January 6th and how that's relevant to Jack Smith's charges, if he's convicted whether he'll still be able to be elected president, and more. Then journalist Julie Kelly joins to discuss the problem for the Trump team with the judge in this case given her past 1/6 cases,whether there's a connection between Biden corruption news and the indictments of Trump, the possibility Trump could be imprisoned or on house arrest while he awaits trial, the status of the January 6 defendants, how the indictment might affect the primary and general election, and more.McCarthy: https://www.nationalreview.com/author/andrew-c-mccarthy/Davis: https://article3project.orgAronberg: https://www.youtube.com/@FloridaLawMan Kelly: http://juliekelly.substack.com Follow The Megyn Kelly Show on all social platforms: YouTube: https://www.youtube.com/MegynKellyTwitter: http://Twitter.com/MegynKellyShowInstagram: http://Instagram.com/MegynKellyShowFacebook: http://Facebook.com/MegynKellyShow Find out more information at: https://www.devilmaycaremedia.com/megynkellyshow

Welcome to The Megyn Kelly Show, your home for open, honest and provocative conversations. Hey, everyone, I'm Megyn Kelly. Welcome to The Megyn Kelly Show. Another week, another criminal indictment of former President Donald Trump. And yet again, it comes on the heels of bad news for Joe Biden. Three indictments now since March, and we are going to dig into this one today with a whole host of guests to look at all the angles. We have the best guests today from the legal to the political to the media coverage. Plus, we are going to take a trip down memory lane to see how the media covered the fake electors idea back in 2016 when Hillary Clinton lost. It's absolutely incredible and

we've got the receipts. Later today, I'm going to want to hear from you. So I hope you listen to the show and I hope you're fired up to call in because I would love to get some callers on at the end of the show today with how you are reacting and feeling in the wake of yet another indictment against the GOP frontrunner for the Republican nomination. But we begin today with one of the people I turn to whenever there are big legal stories, and that is Andy McCarthy of National Review. He's a former assistant U.S. attorney. He's a bestselling author. He's got his own podcast, which doesn't come out nearly often enough, but usually on Fridays. And he's with us now on what really is a historic day.

Andy, great to have you back. How are you doing? Megan, it's a pleasure. I'm doing great. And I'm even greater now. I'm like, thank God for you, because you knew this was coming for a long, long time. And you've been preparing people like me who listen to you avidly for what to expect. And you nailed it. Your overall thoughts from what I've read seem to be this

is a political hit job. This is not a legal masterpiece, as some on the left are describing it. But you tell me, how do you see what Jack Smith filed with this grand jury last night? It's kind of law tucked into a political sandwich on two ends. On the one end, what's really happening here is they are masquerading an impeachment proceeding, which is a political proceeding, as a criminal justice process. And it doesn't really work because it's just the criminal process for a lot of reasons we can talk about is just not an apt substitute for the impeachment process. And then on the other end, Megan, I think what they're doing is, and this is blatantly political, they're going to try to push this to trial in the run up to the 2024 election.

So the real purpose of it is to do that precise thing, that is to have all of the evidence about this come out while voters are considering their vote. And insidiously on that score, I think the most egregious part of the indictment, and there's a lot that's really not good in this, but the worst part is toward the end of the narrative section, I think it's around page 39 of this 45-page screed, he talks about, Smith alleges, this business about how Trump exploited the violence of the Capitol riot. This is under circumstances where he hasn't charged him with the Capitol riot, nor could he, because they don't have enough evidence to tie Trump to the violence of the day, which is why the Justice Department in prosecuting, is it 1,100 people or at least over 1,000 people, they've never accused Trump of that. They've never labeled Trump an unindicted co-conspirator. And they've actually fought back against defendants who tried to shift blame to Trump for their own behavior. And yet Smith has put that in. And that's obviously his marker in the indictment. So he can argue to this judge that he should get the Capitol riot evidence into

this trial, even though he's not charged Trump with it, even though it doesn't advance the proof of the things he actually has charged. And the whole obvious point of it to me is to get that in front of the voters right before the election. I know that. And I've heard you say, and I agree, the fact that he told Trump on a Sunday, you've got four days to decide whether you want to appear before this grand jury showed his urgency in trying to get this thing started. And why is there urgency in trying to get the January 6th federal trial of Trump started before a D.C. jury, Andy? Yeah, well, obviously, to get it in front of them before the election, because he thinks he'll not only get the proof out, he'll probably been too clever by half because even if he has an Obama judge who may be like the worst draw that he could have gotten from the-

Which is the case. District of Columbia. Yep. But even so- She's not going to be a Trump fan. No, no. But even with that, if you're Smith and you really want to get this case tried before the election, you don't indict the Mar-a-Lago case first. Because now I think Trump has a very powerful

argument to make to any decent judge that what Smith has done is tactically tried to undermine his right to prepare his defense. Because the Mar-a-Lago case is very complicated. This case is very complicated. And what Smith did here was lock in another case with a May trial date. And now he's going to indict Trump on this thing and tell a judge that we have to get this to trial before November 2024. I think that's a really tough road to hoe. What would be the normal length from indictment to trial on a case like this normally, if you're not talking about Donald Trump? What's the average lag time between indictment and trial?

Well, I would think around eight months if he didn't have anything else going on his dance card, because the cases, you know, I think there's going to be a lot of pretrial litigation in this case, because I don't believe the counts are, as we say in the biz, I don't think these are cognizable offenses. statutes that Congress enacted that were not meant to address this behavior. And he's done it in the face of the Supreme Court just in May, warning prosecutors that, you know, don't get creative. You can only charge what Congress has actually codified. Well, can we talk about that? Because the cases, the charges against him are mostly fraud counts. And one is conspiracy to defraud the United States. One is conspiracy to obstruct an official proceeding. They're referring to the congressional counting and certification of the votes. One is obstruction of an attempting to obstruct an official proceeding. And one is conspiracy against rights. That's a post civil war statute that is meant to stop people who are trying to make it impossible in this case for blacks to get to the polling station and so on.

He's trying to say that Trump violated that by trying to disenfranchise voters and getting things changed. But but at the heart of the case is this allegation that Trump defrauded people. It was a conspiracy to defraud. And the three specific criminal conspiracies that Trump allegedly perpetrated, as outlined in the indictment, are as follows. A conspiracy to defraud the U.S. by using dishonesty, fraud and deceit to impair, obstruct and or defeat the federal government's function, meaning the certification of the vote. They're talking about what happened on January 6th, trying to prevent that from happening. Number two is a conspiracy to corruptly obstruct and impede the January 6th congressional proceeding. They spell it out more specifically about that

day. The other one could encompass his attempts prior to that day to stop the vote. And then a conspiracy against the right to vote or have one's vote counted, which is what I just said. So they do have to talk about Trump's state of mind and whether he believed genuinely that he won that election. They are positing he knew he lost and and therefore it was dishonest and fraudulent for him to run around telling everybody he didn't lose and that they should behave accordingly. That's a high bar, Andy. Yeah, it sure is. And I think it it goes to what's a pretty interesting legal question and would be very interesting even if it wasn't so politically fraught, which is what really is intent and proof of intent in a criminal proceeding. Because, you know, you have you prove intent by objective evidence, generally speaking, meaning, you know, most people you deduce that they, what they meant by what they did.

And it's not all that often that you get, you know, there's a lot of criminal cases where the defendant doesn't testify and you don't get actual direct testimony about what the person, what was running through the person's mind. What they're going to say here is that there were a number of reliable people who at least the prosecutor thinks were reliable and the January 6th committee thought were reliable. Of course, the question in a criminal case is what the defendant thought. But they have a lot of people like Bill Barr and some people in the intelligence community, some other people who were around Trump in the know who told him that there was not material fraud that could have overturned the election. And I think what Trump is going to come back and say is he was hearing a lot of other things from a lot of other people. He says, in fact, that he intends to relitigate whether there actually was fraud. I think, Megan, frankly, by the end of this, if Smith actually does get this to trial, Trump's going to talk about this on the campaign trail so much that by the end of this exercise, there will be more people in the United States who believe the election was stolen than currently there are.

I agree. I think that'll be the upshot of it. Jack Smith's examples of how he knows Trump knew that he lost the election. Page seven. Trump knew that these representations were false are as follows. The vice president told the defendant he'd seen no evidence of outcome determinative fraud. The senior leaders of justice appointed by defendant told the defendant on multiple occasions that various allegations of fraud were unsupported. The director of national intelligence disabused the defendant of the notion that its findings regarding foreign interference would change the outcome of the election. The Department of Homeland Security, Cybersecurity and Infrastructure Security Agency,

or CISA, put out a statement that there was no evidence any voting system had been compromised. Okay, that's fine. So what they're basically saying is you had to believe them. You must have believed them as opposed to the reality, which we know anecdotally, which is Trump more than likely did not believe any of those people. It appeared to us all that he believed Rudy Giuliani and Sidney Powell, his lawyers who were telling him they had fraudulent examples, be it at voting stations or at Dominion voting machines and that they were gonna release the Kraken. And that's what Trump wanted to hear, wanted to believe. So we're now at the point where you have to believe certain officials over other officials,

including your own lawyers or you're a criminal? Yeah, well, I love the way you frame that because as you were saying that, I'm thinking philosophically, and you could see where this would be just up to somebody like Jack Spence Alley. But what we're talking about is, do you believe the elected official

who the public actually elected to vote? Or do you believe the administrative state? And as far as a lot of people in this construct are concerned, if the administrative state has spoken, nobody gets to counterman that, even the elected official. But, you know, that's an interesting, that's an interesting point for a political science class. But this is a criminal trial. So what matters is what Trump's state of mind was. I think he's going to have a very hard time proving that Trump believed or didn't believe what what he was saying. But I think, Megan, even before you get to that, I'm not sure these counts are firm.

I think that, you know, there are a lot of legal problems such that even if you assume for argument's sake that Trump knew everything he said was false, which by the way, would not remove it from being unprotected speech. I know that's an inconvenient point as well. Right. You get to do that. The line you have to stay on the right side of is violence. You know, violence is our bright line. But if it's aggressive speech or obnoxious speech or false speech and it's in the core of the First Amendment, you know, it's speech that's attached to politics and electoral politics. You get to say things that aren't true. And thank God for it, because everybody in Washington would be, you know, looking at a federal indictment if that weren't true. I remember when Barack Obama told me, if I like my plan, I could keep my plan. Are we criminalizing that now? Like he he used that to try to get more votes for his next election. No, we don't criminalize political lies. It's to your point, even if it

is a lie and he's not going to be able to prove it was a lie, though it does. I do wonder whether he's got to prove it was a knowing lie or whether it was just a reckless disregard of the facts, you know, because if you're if it's a defamation case, it was just a reckless disregard of the facts you know because if you're if it's a defamation case you can prove reckless disregard i don't know in a criminal fraud case that you could get away with that as opposed to just proving he truly knew what he was saying was false i'm not sure but that'll all be good yeah but the thing is, whether he's, whatever his state of mind was, the objective has to be a crime. So you don't even get to,

you don't even need to get into his state of mind unless you can prove that the thing he did was criminal. And the problem with the case- Let me jump in on that. Let me jump in on that, so I get it. Yeah, of course. You've been saying that in, I think, May, the U.S. Supreme Court issued a ruling or a pair of rulings involved. No, one ruling involving two guys from the Cuomo administration in New York, Andrew Cuomo's administration that speaks directly to this and speaks to these statutes and says, if you're trying to criminalize speech that leads to a fraud, a financial fraud like, hey, give me your thousand dollars and I promise I'll give you this ointment that's going

to take away all your problems. You know, the snake oil salesman thing. But it's very different to try to use these traditional federal fraud statutes to criminalize politics. Right. Yeah, that's exactly right. I mean, what the court said, I think, Megan, for these purposes is two things that are crucial, one to the fraud count and one a greater point about what the job of prosecutors is. On the fraud point, what the court emphatically said, and I should point out to people, this is not a five to four decision. This is basically a unanimous decision by the Supreme Court. It's a very one sided. It's a pair of decisions, but they're very one sided on this point. But what they pointed out is, and this is a textualist Supreme Court now, right? So it's a little bit different from the

freewheeling days of the mid 20th century. What they say is what fraud meant when it was enacted into federal law in the 1870s is what commonly people think fraud means, stretch fraud to cover deceptive schemes that undermined the government's legitimate functions. for example, you know, Mueller prosecuted Paul Manafort on one count of conspiracy to defraud the United States on a theory that because he hadn't registered as a foreign agent, he had undermined the government's ability to have a comprehensive registry of government agents. The inconvenience for Mueller was Congress hadn't enacted a conspiracy statute like that. He's like, no problem, I'll just use fraud. So what the Supreme Court is telling prosecutors in May in these two cases that we're talking about is you can't do that. You know, this whole idea that we can stretch fraud to mean somebody's idea of good government has been undermined is not something that prosecutors have it in their bailiwick to do. What the court has said is that Congress, if it can enact a clear, non-vague statute, can criminalize it.

But prosecutors don't get to make it up as you go along because criminal statutes have to be sufficiently clear that a person of average intelligence knows what they forbid. And if you start with these vague concepts, you can't know what the law is. Progressives like that, because then the threat of prosecution hovers over everything. And what the court is saying, they don't get to do that. They have to be clear. And that's really- So here I had Donald Trump getting the advice of counsel. You can say what you want about the council, but getting the advice from Giuliani and who was then Sidney Powell, a respected Third Circuit appellate attorney who had a very good winning record telling him not to mention the John Eastman letter telling him this is

all available to you. This is the way we can challenge it. This is the fraud that we see. These are the legal claims that we have and that we still think are viable. And even in the statement that Trump put out yesterday on Truth Social, Andy, he says, among other things, referring to himself in the third person, President Trump has always followed the law and the Constitution with advice from many highly accomplished attorneys. So he's going to go in there and say, these statutes were not meant to encompass anything I've done.

And by the way, I relied throughout on the advice of counsel. And wouldn't this in the normal case just result in motion practice, a motion to dismiss this whole case, that a nonpartisan judge would have to seriously entertain? Megan, I think that's not only true, but what you've just described takes us directly to the second thing you want to talk about, which was the obstruction count, those two counts that you described earlier. Because what in effect they do in the obstruction count is try to criminalize a frivolous legal theory. And I've been telling people that when I was a prosecutor, you know, defense lawyers are very

creative people. If a frivolous legal theory is a felony now, I could have indicted five of them a day when I was a prosecutor. Right, right. That's half of what lawyers do, is offer BS legal theories to their clients. You must have dealt with better lawyers than I did. I would say it was more than half, but yeah, that's just me. But I just, you know, look, think of whatever you want to think about Eastman's theory. You know, I've always thought it was cockamamie, this idea that like the vice president can invalidate votes. On the other hand, when John explains it, it's like one of these things where he's sufficiently persuasive that it's like a five-part theory. And you hear the first part, you go, yeah, okay.

And the second part, uh-huh, yeah. And by the end of the rainbow, the vice president is canceling out the election. So you know it's somewhere along the line. It was it was it was for Cocteau. But in any event, our legal system has never criminalized bad legal theories. And I think it's just as dangerous, if not more dangerous, to start doing that now than it is to screw around with political speech, which they do elsewhere in this indictment. Because people's ability to defend themselves when they're accused of things, whether it's criminally or civilly, depend on lawyers understanding that they're allowed to make fringy and creative legal arguments, which every now and then turn out to have persuasive force. You know, you would have thought a year ago, if I argued that Roe versus Wade was unconstitutional, that was frivolous

until it wasn't, right? So every now and then, you know, you have to argue against a precedent. And it may be a long established precedent, but if it's wrong, it's wrong, you you have to argue against a precedent. And it may be a long established precedent. But if it's wrong, it's wrong. And you get to make that argument. And our legal system has always figured that the best way to deal with frivolous legal arguments is to make better legal arguments, not to criminalize them. So I just think going down this path is disastrous. And it's like not even I mean, they are criminalizing the lawyers.

Rudy Giuliani and John Eastman appear to be unindicted co-conspirators yet to be indicted, almost certainly will be. But but the client, the client for listening to the lawyers and enacting the scheme and not for nothing. But and we're going to get into this a little later. but this whole let's let's get the electors to sub out, you know, the ones who have been designated are going to go in there and vote for Biden. Let's sub them out and get new ones who are going to vote for Trump. Let's sub them in. This has been pushed for by Democrats election after election after election, saying the electors need to disregard the actual vote. Do what's right. That's written into the

Constitution that you don't have to just follow what the popular vote is. Use your discretion. It was all well and good when George W. Bush was reelected back in 2004. It was all well and good when Hillary Clinton lost to Trump in 2016, Andy. But now, because it's part of a Trump slash Trump lawyer scheme, right, like let's let's get the electors to do something else based on the fraud and the shenanigans we're seeing. Now it's this unprecedented thing that has to be criminalized. Jack Smith has got to get involved. And we're all just going to pretend that the Democrats didn't push for this time and time again when they were on the losing side. Oh, that's totally right. And, you know, look, if you strip out the Capitol riot,

which is very hard to do, right? Capitol riot is the prism through which we see all of this. And by the way, Smith is banking on that, right? He absolutely wants you to see it that way. That's why he put the stuff about the Capitol riot into the indictment, even though he didn't charge it. But if you could strip it out, what Trump did may be a degree, but in kind, it's no different from what Jamie Raskin did in 2017, when he objected to, he got up, even though it was against the rules, because he didn't have a senator to sign on with him. So he knew it was lawless. And he claimed that, you know, Trump's electoral votes in Florida or was it Florida? I think it was Florida. Shouldn't be counted. They should be invalidated. You know, completely lawless. But nobody's filed a felony indictment against Jamie.

And he might actually have a state of mind defense, actually, listening to him. But I think the other thing about this electors, if we could just like splash a little bit of reality on this for a second, Megan, on January 6th, we were all whipped up for this proceeding in front of Congress. There had been a lot said about it in the lead up to it. I argued, you know, I covered pretty closely the South to Steel stuff that didn't do my heart any good to say, you know, this is just nonsense, but it was nonsense from beginning to end. So we're all watching very closely about what they were going to argue on January 6th. But nobody thought there were alternative slates of electors. You know, we've had occasions in American history where you had

alternative slates of electors, where a state like in 1960 in Hawaii, where, you know, they originally certified the slate for Nixon, and then they certified it for Kennedy. I think that was the, that was the order. And Kennedy had submitted an alternate set of electors. Right. And, but the state had certified it. that there was you know, you could actually legitimately say there were two slates of electors. Nobody thought that these people that Trump had come in and go through that exercise were actually legitimately state certified alternative slates. That was not going to come up in the argument. So if you talked to these electors, what they understood was they were not fake electors, they were contingent electors. So the idea was that if Trump succeeded in getting the legal process, whether in court or through the legislatures, to remand the election back to the disputed states, and then they could talk the legislatures into substituting their vote for Trump for the popular election for Biden, then those electors, if those things all happen, they'd be prepared to

stand as a substitute for the electors who had been certified by the states. But nobody was arguing on January 6th that those were state certified electors. And in fact, Trump's position wasn't that those electors should be recognized. It was that the election should be remanded back to the state for further consideration. So I've always thought this thing was the biggest bunch of BS in a whole bundle of it that we have because nobody believed that on January 6th. But it's right at the heart of Jack Smith's complaint. I mean, it's the it's the biggest piece, I would say, of his complaint.

You know what it reminds me of? Electors. It reminds me of Trump during the Russiagate stuff where they kept saying, remember when Trump said to, hey, Russia, I hope you're listening, because if you're listening, I'd like you to. I mean, at that point in time, the FBI had had Hillary's server, you know, for a couple of years. The thing was offline. There was no way it could have been hacked. But they put it in every indictment, like Trump tried to direct Putin to hack me. And I'm sitting there thinking I covered Russian gay pretty carefully. I thought it was Putin who was given Trump direction. You guys, I can't even keep up with what goes on here.

Who's the puppet? Who's the puppeteer? All right. Last question. So this judge is going to hate Trump and she is not going to be she's not going to dismiss this case on the papers, I think. And I think you agree. So then it's going to go up to the D.C. Circuit Court of Appeals, which is a respected court. But I don't know that I like his chances there much better. And then it's going to go up to the U.S. Supreme Court where he's going to have a much better chance of finding a reasonable panel. So do you how do you think this ends that the judge says the case stands, the D.C. Circuit says we affirm that and the Supreme Court says these are bogus charges. They're done. There will be no trial of Donald Trump on any of this yeah i'd be interesting

interested to know what you think on this i what i've been straining my brain to figure out is is there a way he can get this up to the appellate courts prior to trial uh and i haven't come up with it yet it's easy to come up with that with mar-a-lago because that's all controlled by the classified information procedures act which actually has provisions in it for appeal this with Mar-a-Lago, because that's all controlled by the Classified Information Procedures Act, which actually has provisions in it for appeal. This doesn't. So you run into the normal presumption that the case has to be tried before the district court to completion before it goes up on appeal. And I think Trump really needs to be able to appeal prior to trial. The dynamic, Megan, if this is as political as I think it is,

it could very well be that Jack Smith basically said, I'm going to file these charges no matter how infirm they may be. I'm going to get a DC jury. I'm going to get them convicted. And then I'll dare the Supreme Court to reverse it. And that would only be what he's up to. If they can't get an expedited hearing, that happens two, three years down the line. He's already it's we're posting November 2024. So the whole thing has worked the way they intend. Right. Andy McCarthy, you're brilliant. Thank you so much for everything you write and say. Follow him. Go listen to his podcast. Listen to him at National Review. Read Andy at National Review. You'll be a lot smarter and you'll thank him and me for referring you. Thank you, my friend. Thanks, Megan. You're the best. Thank you. All right. Up next, our Trump indictment legal dream

team is back to break this new one down. And we will play you a little soundbite of these lefties before and after on this issue of the alternate electors. Another indictment, another chance to hear from our lawyers on both sides who've been following this case very closely. Mike Davis is the founder and president of the Article 3 Project, which defends constitutionalist judges and the rule of law. Also with us, Dave Ehrenberg. He's the state attorney for Palm Beach County, Florida, where Mar-a-Lago is located. Guys, so great to have you back. Just a little walk down memory lane on these whole quote unquote fake electors or alternate electors. We talked about it the last time. This is really at the heart of this indictment that Trump had this whole scheme. He was going to have these quote fake electors put in there and he tried to convince others to go along with it.

I'll just give you a little a little sampling. Let's take a look at Chris Hayes and Michael Moore back in 2016 after Donald Trump won. There are people who are pushing very hard to think that because of some of the constitutional perils of the emoluments clause, because of the popular vote margin, because of fundamentals they think threat to liberal democracy, that electors should be persuaded and pressured on Monday to part with what their pledge is and vote against Donald Trump. Yes, they absolutely should do that. Absolutely.

I believe right now that there are electors. They only need 38 of them who have a conscience or who are worried about a man who won't attend the daily security briefings, who we now know Russia was trying to help get elected. Just a little sampling more of the celebrities who chimed in on it in SOT7. Republican members of the Electoral College, this message is for you. The Electoral College was created specifically to prevent an unfit candidate from becoming president. There are 538 members of the Electoral College. You and just 36 other conscientious Republican electors can make a difference. I'm not asking you to vote for Hillary Clinton. I'm not asking you to vote for Hillary Clinton. I'm not asking you to vote for

Hillary Clinton. As you know, the Constitution gives electors the right to vote for any eligible person. Any eligible person, no matter which party they belong to. But it should certainly be someone you consider especially competent. By voting your conscience, you and other brave Republican electors can give the House of Representatives the option to select a qualified candidate. What is evident is that Donald Trump lacks more than the qualifications to be president. He lacks the necessary stability. And clearly the respect for the constitution of our great nation.

You have the position. The authority. And the opportunity to go down in the books as an American hero. Weird, Mike Davis. I don't remember anybody trying to indict them or anyone around them like Hillary who contested those results. It used to be all the rage to try to sub out an elector or get an elector to switch his vote, notwithstanding what the popular vote was. Yeah, that's exactly right. It's only illegal to object to elections in third world Marxist hellholes. Otherwise, Democrats

would be in prison for objecting to Republican presidential wins in 1968, 2000, 2004, and 2016. This is a very laughably stupid case by Jack Smith. It's almost certainly going to get overturned by the Supreme Court, like Jack Smith was overturned unanimously when he brought a bogus corruption case against another potential Republican presidential candidate Bob McDonald back in 2016 but the damage was already done they eliminated Bob McDonald as a potential presidential candidate I think they're trying to run the same play here they don't care if the Supreme Court ultimately reverses this bogus conviction. They want to take out President Trump for November 5th, 2024. Dave, I imagine you disagree, but what do you what was your

reaction after having read it? Because you've been honest about the ones you think are lame. You're not so impressed with that New York prosecution, but you think Mar-a-Lago, that's got some teeth. How about this one? Yeah, it's good to be back with you, Megan, and with my friend, Mike. I think this one is important because we all saw this unfold live on TV and involves the peaceful transfer of power. But I think as far as the strength of the case, I'd rank it third out of the four behind Mar-a-Lago documents, which to me is a lock solid case. The second, I would say we haven't seen yet, but I'm predicting it's going to be the Fulton County case because you have Trump on tape. That's going to be a very strong case under state law. But this one

has some issues in that it does give Trump some defenses. And by the way, if I can, can I respond to the clips you showed from martin sheen and all those uh you were showing megan the faithless elector issue where you have people who are voted in as electors and they are pressured to vote against the person who won the state do you know that's actually happened about 165 times um as 2020. I looked it up. And as of 2020, 33 states and the District of Columbia have laws that require electors to vote for the candidates for whom they pledge to vote. So it is not unheard of, and it is not illegal unless you violate state law with enforcement. So this is different. When you're talking about the fake electors here,

you're talking about something that is illegal because they are claiming to be the real electors. It is not illegal to be an alternate elector to say, in case the real electors aren't counted, here's an alternate slate. That's what happened in Pennsylvania, and I believe in New Mexico. And that's why charges will not be brought in those states. But in a state like Michigan, for example, where they said, we met on this date in the state capital, lie. We are the official electors, lie. Here is the state seal. Well, that's a forgery because you can't be sending that to the Congress to pretend that you're the real deal. That's the crime. Go ahead, Mike. What do you make of that? In order to show fraud, you have to show that you intentionally made a false representation that someone else relied upon to their detriment. And

no one was duped here. Everyone knows that these electors were not fake electors. They were alternative electors that Trump was going to have go to the electoral college if his claims won in court through the through the legal process. And so this idea that no one knew what was going on and just random people showed up on January 6th and, you know, apparently tied up the real electors and put them in the trunk. Like, who are you here? Right. That's not what happened. What about that, Dave? Because that's not it's not like anybody got confused when Michigan cast its electoral votes on January 6th that that didn't happen. Everybody understood exactly who the real electors were and the vote went off as scheduled. Well, it was part of the whole scheme to have two sets of electors only in those seven swing

states, although New Mexico really wasn't a swing state, but in the states where they wanted to overturn the election, they sent him up to Mike Pence. And the goal was to have Mike Pence look at both and say, there's a dispute, send this back to the states. And so that's part of the scheme. And so when Jack Smith says, how is that fraud? It's only fraud if Donald Trump did not believe in any way, shape or form that he actually could prove fraud in those in those states. And that goes back to the discussion I had with Andy talking about how how is he going to prove that Trump did not believe that he actually won the case day everyone won the election? Right. Well, first, it is a conspiracy to obstruct the counting of the votes when you're trying to tell Mike Pence not to count the votes

to send it back to the states. That's a crime. In fact, hundreds. How is it a crime if you genuinely believe that you that there was fraud in these states and that this is going to be a travesty of justice for this fraudulent vote to be counted? I agree with you. It didn't pan out. There was no proof that, you know, any level of fraud would change the electoral votes. But we're talking about what's in his head. OK, well, two ways to establish what's in the defendant's head. It's what he says and what he's told. And in this case, he was told by all these Republican officials that his own attorney general.

We went through that with Andy, but he was also told by Giuliani and Powell and Eastman that this was three respected lawyers, that this is a legitimate avenue for for contesting the results. Eastman, that was the first he was told by Powell and Team Crazy and Giuliani. And I think that's part of Jackson's case. You're told by legitimate people and you're told by kooks. But he's not going to make that. He's not going to make that. Those were Trump's lawyers. You can't. But you're going to say Trump should have known that they were nutcases, that they were wrong. Well, in that case, they're going to use Trump's own words in the indictment. It says that Trump said that Sidney Powell was crazy. So he knew. So that's part of it. Eastman, though, in the meetings did not

say that this is an established legal theory. He admitted that this would get thrown out by the courts. And at best, he said that it's untested. So in that sense, that's the best they could do. But also, I personally don't think, Megan, that you even have to prove that Donald Trump knew the election was legit, because there is a process to go through. If you think the election was stolen, you go to the courts, you know, you ask for recounts, you ask for audits, all those things happen. But what you can't do is establish fake electors. You can't go rally your troops or your foot soldiers to go to the Capitol and then then go to the Capitol and pressure Mike Pence. You can't call up local officials and say, find the eleven thousand seven hundred.

Mike, you tell me that. Why can't you pressure Mike Pence? What you're what pressure means is your words. You basically said the wrong things to Mike Pence. Why? Why is that illegal? And if you can't propose an alternate set of electors, how did Kennedy get away with doing that back in 1960? And I realize it worked out in his favor then, but he didn't know that when he was filing it. You know, if that's illegal, if that's criminal, how did he get away with it? It's not illegal. It's allowed by the Electoral Count Act of 1887. Twisting arms politically is allowed by the First Amendment. It doesn't need to be pretty or respectable. The First Amendment protects a lot of speech and a lot of conduct, including conduct that many people might seem unseemly. And the political process is ugly at times. It doesn't mean that you're a felon because you twisted arms politically. So that's the thing. I mean, I'll just go through some of like what Jack Smith is saying he actually did. Hold on. These are the five acts that equal his

unlawful conspiracy. One, he pushed state electors to change their votes and put in illegitimate electors. Number two, we just discussed that. Number two, we recruited fake electors. That's the same, the different side of the same coin. Number three, he used the DOJ or at least tried to, to fuel his lies. He went to the, I think it was the deputy AG and tried to convince him to write threatening letters to certain states about, you know, we're seeing all sorts of fraud. You shouldn't sort of certify these results. That's kind of an interesting one to me. Number four, you pressured Pence. That's free speech. If you ask me, number five, you exploited. Oh, this is where he tries to get

January 6th right into it. You exploited the disruption caused by the Jan 6th riot to convince members of Congress to further delay the certification. And he explained how number five is really just an excuse to try to get in all the riot footage and the riot facts because that's an emotional appeal. But one and two are the electors. Four is pressuring Pence. That's free speech. So let's talk about number three, using the DOJ, trying to use the power of the Justice Department to fuel election conspiracy lies. Mike, what's that one about? That's an interesting question. You can have the Justice Department, the Civil Rights Division of the Justice Department, investigate election irregularities around the country. And that's what happened here.

Whether that's, you know, people may say, oh, Trump should not have had his Justice Department do it. That's one thing. But it's not criminal for President Trump to have his Justice Department investigate here. And that's the problem. They're taking conduct that is political, but it's not a felony. And they're trying to wrap this all up into a felony. And that's why the Supreme Court is never going to uphold this conviction. Dave, they allege on page 27 of the indictment in late December 2020, Trump attempted to use the Justice Department to make knowingly false claims of election fraud to officials.

Again, this goes back to Trump's state of mind. He'll see that as wiggle room. But they say knowingly false claims of election fraud to officials in the targeted states. These are the swing states that he needed to go into his column to win through a formal letter under the acting attorney general's signature. This was the proposal that Trump wanted this AG to do, thus giving the defendants lies, the backing of the federal government and attempting to improperly influence the targeted states to replace legitimate Biden electors with the defendants. Now, let me just ask you back to this one, Dave. Is this illegal that he, you know, let's say he did go to pressure the AG or the assistant AG at the time. And this we understand he did because the assistant AG said, I'm not doing that. Is it illegal if Trump genuinely believed he should do it, that there had been fraud, that he was the rightful winner? I mean, doesn't this once again come back to Trump's state of mind?

Because he, according to his own indictment, has to prove that Trump made a knowingly false claim of fraudulent behavior and so on. Yeah, Meg, I think the problem for Trump is a statement in the indictment that says, hey, just say there was fraud and leave the rest to me and the congressional Republicans. That's going to come back to bite him. Now, if that was it and he can get on the stand and testify that he honestly believed the election was stolen, he'd have a shot. But is he really going to testify? I think Jack Smith's got him in a trick bag here because to establish a state of mind defense, he's got to take the stand.

His other possible defense is advice of counsel. He was relying on lawyers, whether it's Eastman or Sidney Powell. He's got to take the stand for that one, too. So that's a problem. But I do think that you and Mike have a point in that it will be harder, I think, to prosecute Trump for the DOJ matter than other things, because the letter was never sent. So the conspiracy was never effectuated. And that's a defense that, look, Trump ultimately rejected the letter. I think Jeff Clark is toast. I mean, he's the one who drafted the letter. He put lies in there. He's ready to go. Jeff Clark is the

low-level environmental lawyer in there who was elevated by Trump because he went to Trump behind the backs of his superiors to say, hey, name me. Yeah, DOJ, name me acting AG. And I will send this letter to the state saying you got to redo it because there's fraud in the election. And so his superiors found out about it and said, stop going around our backs. Stop talking to the boss. And yeah, right. And we're not about to be fired by an underling. That's actually in the indictment. From the environmental group. In fact, Eric Hirschman said, hey, you know what? Go back to where you belong. And if there's an oil spill, we'll call you. So he's now unindicted co-conspirator number four. Just as a quick FYI, are these unindicted co-conspirators like Giuliani, Powell, Clark and others, Eastman? We don't know who the last one is.

Are they going to be indicted co-conspirators soon, do we think, Dave? Yes, I think they will all be indicted. The reason why Jack Smith didn't indict him now is that he wants this thing expedited. He knows that if they added the other six, it would slow things down. He wants this case tried before the election. My big question is, Megan, and to Mike, I don't know who conspirator number six is. On my Twitter page, I asked the folks to say, who is it? Because I still don't know whether it's Roger Stone or Steve Bannon or even Boris Epstein. I don't know. Yeah, I don't know either. I mean, we'll find out. But Mike, the other thing that the left is loving about the indictment is there's an allegation for the first time, I think this is new, that Trump said to Pence, and very clearly Pence

cooperated with this indictment and with Jack Smith. That's if one thing's obvious from this indictment, it's that he makes a hero out of Mike Smith in these papers that Trump allegedly said to Mike Pence, you're too honest. You're too honest to the vice president. I don't know. What do you make of that statement? I think that Jack Smith is it shows that Jack Smith's indictment is very political. He's trying to divide and conquer the Republican Party here. He's meddling in the Republican presidential primary. He's meddling in the general election. And let me just jump in and defend Jeff Clark

really quickly here. He is he was the assistant attorney general in charge of a litigating division at the Justice Department, a Senate confirmed official, a very senior official. And, you know, he works for the attorney general. He also works for the President of the United States. And so as a lawyer working for the President of the United States, if he asks you to look into a legal matter, you do it. And that's what you're supposed to do as a political appointee and a and an attorney. And I would say that any allegation that Jeff Clark did anything illegal here is just it's not going to bear fruit when this trial is over. Well, it's pretty extraordinary to see what we've got now, four lawyers who are about to be indicted, four lawyers who, as Andy was pointing out, came up with novel legal theories and even fringy legal theories. But we're all in a lot of trouble, guys,

if the lawyers get indicted now for fringy legal theories to try to get around the thorny issues that they're trying to navigate for the first time. I mean, it's just this is this. The whole thing makes me very uncomfortable. I mean, certainly they're indicting a former president and the leading GOP contender, but all of his lawyers who are trying to find novel ways forward for the guy. That's that's a political matter. That's for us to say. Trump behaved badly. The lawyers suck. I'm definitely not going to hire Sidney Powell. But is this really a matter for a jury?

And what a jury it's going to be. It's not going to be a Trump loving one. Mike and Dave stay with me for just a bit more after this break. We'll squeeze one in and then come right back. And don't forget, Julie Kelly's coming up too.

She's like, there's nobody better on January 6th issues. And she's got a lot of thoughts on this judge. You can find the Megyn Kelly show live on Sirius XM Triumph Channel, Channel 111 every weekday at noon east. Full video show at YouTube.com slash Megyn Kelly or the podcast for free wherever you get your podcast. Now that more than 600 shows in our archives, check it out. Let's hear from Jack Smith and a bit of what he sounded like yesterday in his brief statement announcing the indictment.

The attack on our nation's capital on January 6th, 2021, was an unprecedented assault on the seat of American democracy. As described in the indictment, it was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government, the nation's process of collecting, counting, and certifying the results of the presidential election. Since the attack on our Capitol, the Department of Justice has remained committed to ensuring accountability for those criminally responsible for what happened that day. This case is brought consistent with that commitment,

and our investigation of other individuals continues. In this case, my office will seek a speedy trial and must emphasize that the indictment is only an allegation and that the defendant must be presumed innocent until proven guilty. Mike, what did you make of the full statement from Jack Smith and his push for, quote, a speedy trial? I didn't see that full statement in the indictment. What Jack Smith is trying to do is take a protest that was permitted by the National Park Service on January 6th. It got out of control. It turned into a riot. And Jack Smith is trying to turn that into some grand conspiracy that he's put in this indictment that is not going to hold up in court.

And the fact that Jack Smith waited 31 months and Merrick Garland waited 31 months to bring these charges, and now all of a sudden they want a speedy trial before the November 2024 election shows what this is all about, which is election interference. Dave, he tries to get January 6th in this indictment so that he can show the videotapes and he can blame the riot on Trump. And this is what he says about it. Only really the final few pages of the indictment are even about January 6th. And he writes, beginning at 1156 a.m. that day, the defendant made multiple knowing false statements integral to his criminal plans to defeat the federal government function, obstruct the certification and interfere with others right to vote and have their votes

counted. The defendant repeated false claims of election fraud. He's talking about a speech. He repeated false claims of election fraud. He's talking about a speech. He repeated false claims of election fraud. How is it unlawful for Trump to say what he wants to the crowd of people that was out there? He gave false hope, Dave, that the vice president might change the election outcome. What the hell are we criminalizing here? And directed the crowd in front of him to go to the Capitol as a means to obstruct the certification. He did nothing of the sort.

He did not say that. I mean, he's taken some real liberties here, Jack Smith, and I would argue undermining his credibility with this paragraph. What do you think? Well, I think it's important to know he did not charge insurrection or incitement of a riot or seditious conspiracy because that would really run into serious First Amendment issues. And I think he knew it would be very difficult to prove that. But you can still charge under obstruction of an official proceeding because hundreds of the actual rioters were charged with that. So what Jack Smith is doing is saying, hey, if hundreds of, in fact, over a thousand people have been charged and hundreds of them have been charged with obstruction, then the leaders can be charged, too. You don't have to be in the Capitol that day.

And I agree with you that his words. Well, his words. If Trump said you go over to that Capitol and you stop that certification right now, you go in there and you make sure that doesn't happen. You were good. But what he actually said in that speech does not get to Trump directed it. Trump, where's the line, directed the crowd to go to the Capitol as a means to obstruct the certification and pressure like that. That's too much of a reach. Megan, it's more than his words at the rally. Jack Smith quotes him in the White House refusing to call off the dogs saying and there's some new information that we weren't aware of before, where he looked in glee with this, like he was approving of this and refused to do his duty to say, hey, guys, leave. Stop doing this. It's like a political matter, Dave. That's a political matter. He sat there. He did nothing. Why would you put him back in the Oval Office? Members of

the American electorate? That's not it was criminal for you to sit there and watch this. How? That's not a crime. Well, I think it is a crime to obstruct an official proceeding, though. And when you when you unleash your your troops onto the Capitol and, you know, you can protest. Didn't I just hear three years of that in connection with BLM? You're allowed to protest. But when you see them committing violence and you refuse to call them off and you act approvingly of them, yeah, that'll get you to. It's not their daddy. No, I don't believe you. You know, this isn't true. You're just arguing. When you come back, when you combine it, but Megan, when Megan, when you combine all that with

the plot, with the fake electors, with the DOJ, with calling local officials. When you combine all that together, that's what gets you obstruction of an official proceeding, a conspiracy to defraud the United States and the other crime of conspiracy to deprive people of their voting rights. I I do not believe for one second that Trump was upset by what he saw on January 6th. I will concede that point. You know, I bet he was sitting there in the Oval like, good. You know, that's what I believe, because he didn't have any use for, you know, the Democrats and what they were doing. He did think the election was

fake and fraudulent. I believe that, too. But that doesn't make it a crime. That's a matter for me to decide as a voter. Would I put him back in the Oval, that Jack Smith has no business. This is free speech. He repeated false. Can you defend he gave false hope that the vice president might change the election outcome? Can you actually defend that as a crime? Well, I'm not going to talk about the specific false hope because I'm with you because I don't think that is. Well, I don't think that's that gets you there. But I think the other stuff does. I do think plus the fact that after he reacted with glee that the Capitol is being taken over and the proceedings were delayed, he then worked the phones, he and his folks to

try to change the vote, taking advantage of the delay. When you instigate the delay, when you approve of the delay, when you take advantage of the delay, you can be charged with the delay obstruction of an official proceeding. This thing is going to fall apart. What do you make of that theory that this judge, Obama appointed judge, is not going to kick it on the papers? You know, they'll try, get a motion to dismiss this thing. She won't grant it. And then it would go up to the D.C. Circuit Court of Appeals. And I don't know how they'll rule, but then it will wind up before a conservative leaning U.S. Supreme Court. And it's not just leaning, it's 6-3. So how do you like Trump's

chances once it goes up in terms of motion practice to get the whole thing kicked? So far, Trump has failed on everything before the Supreme Court, whether it's to shield his taxes, whether it's to shield the documents of the January 6th committee. And I don't see- Can I just say, Dave, I agree with that. But I think the courts had a legitimate, I mean, I think they decided those correctly. But this is a different story. These are tenuous legal claims. And I think they're probably going to decide this correctly too and say this is a bridge

too far. Well, when it comes to obstruction of an official proceeding, the courts have recognized you can charge the rioters with that. So that's why I think the Supreme Court is going to say, yeah, you don't have to actually be there, especially because people who weren't there

have been charged with that crime. The Proud Boys and Oath Keepers who weren't at the Capitol have been charged with that crime and found guilty. So I don't see the Supreme Court overruling a court decision to charge Trump with that crime.

And as far as conspiracy to defraud the United States, I heard the conversation you have with Andy McCarthy. It wasn't just Paul Manafort that was successfully charged with that crime. Mueller also charged those Russian trolls who came in to try to muck up the election. He charged them with that same crime, although they hid in Russia. So it was never put on trial. So there is precedent for using that crime beyond the economic scope. You can use it for something like this. So I don't see this being overturned by the Supreme Court if he's found guilty or even before a case actually happens. All right. Now, a couple more. Mike had to run. So I'm going to finish up with you, Dave. A couple of quick legal questions before I bring in Julie Kelly. And she's the perfect person to ask about the Proud Boys thing

and seditious conspiracy. She's been all over that stuff. But as a legal matter, let's just get down to brass tacks. If he if he were to have a trial prior to November 2024, and if he were to be convicted, he could still he could still run. He could still run for the presidency, could he not? He can run from a jail cell if he has to. Lyndon LaRouche ran for president many times from a jail cell. So did Eugene Debs. So there is precedent for that. I think that a mistake that the DOJ made was to delay this far. I don't blame Jack Smith. He came in right in and just lit a fire under the Department of Justice. But Merrick Garland, I think, was a bit timid in going after the former president. And so he allows Donald Trump to now say, hey, you waited this whole time

until I became a presidential candidate. And I think the DOJ gave him that argument by waiting this long. I do think, Megan, that this case will be tried before the documents case. The documents case, I think, is going to get delayed till after the election. I think that's the strongest case. And you and I agree on that. This case is not as strong, but I think they've got a much more favorable jury panel in Washington, D.C., where Trump got only five percent of the vote. So if you're moving to dismiss because I never practiced criminal law.

So if you're if you move to dismiss an indictment based on it, it failed to say state of crime. You know, that's all this is defensible on legal grounds that you wouldn't put in front of a jury. But you want a judge to decide they'll do that right away. Right. And like, will they will they allow that whole motion practice to play out before a jury ever sees this case, Dave? Or how will that go down?

Trump will and his lawyers will challenge the sufficiency of the indictment on the fact that he'll say First Amendment grounds and these charges should not be applied to us. And it will be denied by the court. It'll go up to the D.C. appellate court. They'll deny it. And then it could go to the Supreme Court. They could make a ruling on it before. But, you know, generally what happens is you go to the trial, you get convicted, and then you appeal it all the way up. I think in this case, because it's an issue of real importance to the country, that the Supreme Court could

actually hear this. I don't think it's going to establish many delays, though, because I think they realize that this thing next needs to get done before the election. Jack Smith didn't even indict the other six people because he wants this before the election. So I think that they will hear the sufficiency of the legal case before he gets put on trial. Three of those judges, justices were appointed by Trump and the three conservatives who are not appointed by Trump are Alito, Thomas and Roberts. Roberts, who knows, but Alito, Thomas, plus the three Trump appointed pretty quickly. I think that this is heading to a seven to two opinion where the two justices will side with Trump will be Thomas and Alito. His Trump's three justices he appointed to the Supreme Court have never ruled for him on any of these things, whether it's his taxes, whether it's sending documents to the January 6th committee or whether it's

election stuff. Well, that is an interesting prediction. My goodness. OK, so is there and just a little final thing, if he's convicted, I agree with you, this case is going to get tried before the Mar-a-Lago documents case. And it's probably going to happen before November 2024. So if he were to be convicted by this D.C. jury, which is not going to like him under this D.C. judge who probably doesn't like him, does he go right to prison? Does he get to stay out of prison? Because this is a we're talking about 20 plus years potentially on these charges. What happens then if he gets convicted? You know, I thought Steve Bannon would go right to

jail when he was convicted, but he was given another year and a half to appeal. So I can envision that Trump gets convicted and then stays out on appeal and then the election happens. And then we are in uncharted territory. What happens then? Does he actually go to prison after he's if he's elected president? I can tell you if he's not elected president, he'll go to the Huskow or at least get house arrest. But this is so impossible to predict because we've never been through this before, Megan. Oh, my God. So this is alarming. Dave, always appreciate hearing from you. Thanks for coming on. And Mike Davis, thanks to you as well. He had a run, but I appreciate both of these guys with honest analysis. But we were just joking in the break that Dave was just on MSNBC and Mike was just on Fox and both of them come on together only here on The Megyn Kelly Show because we

want to bring you both sides. It's a pleasure to talk to you, my friend. Thank you, Megyn. Coming up right after this break, Julie Kelly. I am going to get to Julie Kelly. She is truly I mean, I think she's the most knowledgeable person in America when it comes to January 6th. What's being done to the defendants, those thousand plus who have already been charged the thousand plus that the DOJ is bragging it's yet to charge. In fact, she wrote a whole book on it. She writes Declassified with Julie Kelly on Substack and is the author of January 6th.

Julie, great to have you back on the program. So I know you were listening to Dave Ehrenberg. What was your reaction to what he was saying? Well, we could spend the entire our entire segment here unpacking what Dave said. But I will tell you, first of all, I don't think that this trial that this case will go to trial before the election for a number of reasons, which is, Megan, this is not going to be the first and only indictment in this case. In fact, there's recording today that the D.C. grand jury is already looking at handing down indictments for those six unindicted co-conspirators who are listed in

Jack Smith's indictment. As you said, I've been following January 6th now for two and a half years. This is what they do. And you know this as an attorney. And we just saw this happen in the classified documents case last week, where Jack Smith brought a superseding indictment. He added charges to Donald Trump. He added a co-defendant. And what that does is it sets back the speedy trial act clock. So I would suspect, Megan, that there will be at least two or three superseding indictments in this case. And eventually, Jack Smith, I believe, will bring seditious conspiracy charges against Donald Trump, those six conspirators and possibly others as well. But why would he do anything given that this is likely political? I believe that. I know you

believe that. Why would he do anything to slow down the trial, which is much better for him if it happens right before the election and all the bad news is on the front page of the paper every day? And ideally, a conviction in his mind would be, you know, on the paper before the election. Well, that's a really good question. And I think because they want for both of these cases and then, of course, with coming in Fulton County, Georgia, it will be death by 1000 cuts. So it will be to override any negative coverage or anything happening with the Biden presidential campaign. This will be the focus of the media. And once the trial happens, you know, then there

will be appeals, etc. But as they continue to add charges, continue to add defendants, not just in the January 6 case, but also classified documents, this sucks out all the oxygen. A trial would be very dramatic. It will be extremely problematic for Donald Trump in Washington, D.C., as you just pointed out, not just the biased jury pool. But I'll tell you, you'd be hard pressed to find a worse judge for Donald Trump than Judge Tanya Chutkin. I sat in one of her I sat in a court hearing, sentencing hearing with her. The open contempt she has for Donald Trump in January 6 and Trump supporters, I felt it. It was just oozing out of her in this hearing. And she sentenced a man and she was mad that he went to trial on four misdemeanors. And she

scolded him for going to trial instead of taking a plea because she has like the most plea arrangements because no one wants to go before her in court. And he had the audacity to go to trial. Of course, he was convicted and she sentenced him to a year in prison on four misdemeanors. He was inside the Capitol for 11 minutes, Megan. So this is what Donald Trump is going up against, not just Jack Smith, but now Tanya Chutkin as the judge is really bad news for team Trump. D.C. went 92% plus for Joe Biden in the last election, 2020, only five plus percent for Donald Trump. Five. I mean, he's going to be looking at a jury pool that's likely still going to be wearing masks that read vote. I mean, they are terrifying.

And a lot of people saying, well, you know, you move for a change of venue saying I can't possibly get a fair trial here. You've been following that very closely, too. How's that likely to go? Every single judge has denied every change of venue motion in every case. And Megan, this includes high profile cases like the Proud Boys and the Oath Keepers, who think about this as they were getting nationalized national televised attention from the January 6th committee, basically Congress blaming them for what happened on January 6th in televised nighttime hearings. They're undergoing jury selection in those trials. And even then, especially the Proud Boys, because the J6 committee really focused in on the Proud Boys, When the defense team brought that to Judge Tim Kelly,

a Trump-appointed judge, by the way, he said that there was no conflict. The J6 committee report dropped, I think it was the day after jury selection began in the Proud Boys case. I mean, they just are nothing more than a rubber stamp for this DOJ. And so that's why it'll be interesting to see how this proceeds. Of course, he will file a change of venue motion. He might have a stronger case. She will deny it, of course. But if he appeals it, not just based on the jury pool, but based on her own comments in sentencing hearings, and especially to your point, that ruling denying him executive privilege in the January 6th committee and forcing him to produce all of his documents. It just looks so bad for Trump. It looks so bad for him, irrespective of the merits.

You and I both know this judge is going to be against him. The jury is going to be against him. And if he doesn't get a favorable ruling from the D.C. Circuit Court of Appeals or the Supreme Court on the motion practice, he's looking at an almost certain conviction on a charge or charges that could put him in prison for the rest of his life. Megan, one thing that Dave was talking about, and I think it's important to address, is the obstruction of an official proceeding felony, this 1512C2, that is a post-Enron statute that deals with tampering with evidence and witnesses. Now, this is the first time in 20 years that it's

been applied in this manner, but over 300 individuals have been charged with it. There have been numerous convictions. But it did go to the appellate court. Actually, there was only one D.C. judge who dismissed this count against a few defendants. And after he did it the second time, DOJ appealed this judge's dismissal of the obstruction of an official proceeding count. It went to the appellate court, a three-judge panel, in what one judge called a splintered ruling. It certainly was not clear at all. You had Judge Florence Pan, who is a Biden-appointed judge. She wrote what was basically the majority opinion, saying that, yes, it does apply. Another judge was kind of in between, and then George Gregory Katzis, who was a Trump-appointed judge,

outright dissented. The full appellate court refused to hold another hearing. And now two counsels for defendants, J6 defendants, have filed a petition before the Supreme Court to look at this. So this important charge obstruction, which has nothing to do with interrupting a congressional proceeding, I mean, Megan, that's sort of what people view as a right, as long as it's not done violently. A lot of people were charged after Congress adjourned their joint session that day anyway. It's been weaponized, It's been exploited in this case, and it will be at the Supreme Court. The timing of that, if they do grant cert in that case, the timing of that will be very interesting, not just for Donald Trump's case, but of course, many defendants who have already been convicted. We've got four counts to relate to a conspiracy to obstruct an official proceeding or obstruction of an official proceeding. And so what you're saying is right now, some of the existing J6 defendants have an appeal.

They're asking the Supreme Court to hear that could rule that this statute, 18 U.S.C. Section 1512, does not apply to the behaviors of January 6th, that you cannot use that statute to criminalize what we watched on January 6th. And so the Supreme Court could get out of issuing for or against Donald Trump in the big McGill case by deciding something that goes in favor of the J6 defendants arguments in this other case that isn't getting anywhere near as much attention. That's exactly right. So that's sort of the backdrop. In fact, the appellate, one of the appellate attorneys, defense attorneys, Nick Smith, filed a lengthy petition just yesterday on the docket. I read it. I read it. Yeah. So it's interesting because you've been calling attention to 1512 C. And so I looked it up and I let me down a rabbit hole, which brought me to his brief. So that's that's two of the four. The fourth of the four is you've a conspiracy against rights. This post, you know, reconstruction statute trying to say you're you know, if you're depriving black people of their rights to vote, you're going to get in trouble. I mean, I think that's a legal

stretch. And then the first one is really the one I was talking to Andy McCarthy about at the top of the show, conspiracy to defraud the U.S. And Andy's pointing out there was a ruling in May in a pair of cases that went up to SCOTUS involving Andrew Cuomo minions, where they said, you can't just criminalize bad politics and political dumb decisions. Fraud means money. Whose money did you steal through false pretenses? Not what Jack Smith is alleging here. Do you agree with that based on what you've seen? Yes, absolutely. Of course. And if you go through this indictment, first of all, this indictment, Megan, is largely a cut and paste job from the January 6th Select Committee. What have we been paying almost a million, more than a million dollars a month to Jack Smith?

What has he been doing? I mean, I could have written that indictment and just cribbed what out of this 837 page documents that Adam Schiff and Liz Cheney put together. So it's sort of laughable on its face, but to think that this all, it is the, it then results in this criminal for perpetrating a fraud on the American people is just beyond a stretch. But unfortunately, Megan, as you know, we've discussed and you cover my work. It doesn't matter. I have sat through these trials. I see what these judges allow and don't allow a jury to hear.

I see how these prosecutors can just come up with anything, not just to conceal evidence, but made up evidence in group chats or stupid memes that they posted on social media. This is what qualifies for evidence before these DC juries. So unfortunately, Jack Smith has a very low burden of proof before these juries. And especially, as I said before, Judge Chutkin. They're going to do what he wants them to do. He may have looked a little wobbly and nervous in that statement he made because he's not exactly a public speaker. But when he gets in front of a jury, that's his home turf and he will come alive in a compelling way. And he goes in there with the air of authority and the imprimatur of the state, you know, the federal government.

And the feds don't normally bring any case unless they know it's a lock legally. That's, you know, one of the advantages he has on his side here. I wanted to say this because we've been looking at the timeline. Donald Trump Jr. tweeted this out and he's not wrong. I don't know that Jack Smith is this reactionary. I mean, I think he's been on course to bring these charges for a long time. But tell me what you think of this. It's been circulating on Twitter. It was shared by Jr. June 7th, the FBI releases that document to Congress, allowing them to see Congress to see

that 1023 forum alleging that the Bidens took a $10 million bribe from Burisma. The very next day, Jack Smith indicted Trump in the Mar-a-Lago case. July 26th, Hunter Biden goes into court and rejects that sweetheart plea deal after it fell apart after the DOJ tried to give him blanket immunity from all future prosecutions. The very next day, Jack Smith added new charges against Trump in the Mar-a-Lago case. July 31st, Hunter Biden's former business partner testifies to Congress that Joe Biden was in on over 20 calls with his son's business partners and that Burisma execs pressured them to fire the prosecutor, which Joe Biden then did. The very next day, Jack Smith indicts Trump again, this time for January 6th. When you see it laid out like that, Julie, it's pretty chilling.

Well, this sort of goes back to what I was saying, Megan, about Jack Smith not wanting these to go to trial before the election, because this is the perfect foil for any bad news coming out of not just the Biden campaign, but Democrats in general. I mean, this is going to be the squirrel, the pivot for the next, what, 14 or 15 months. And so this is a very useful tool. Let's keep in mind who Jack Smith is also. He worked at DOJ for years. He worked alongside Lisa Monaco for at least two and a half years when Jack Smith was head of the Public Integrity Unit and Lisa Monaco was an assistant attorney general. They were together at Maine Justice for two and a half years. Well, who's Lisa Monaco? She is now the deputy attorney general. She's the one who really launched both of these investigations into Donald Trump, which were then taken over by Jack Smith in November, a special counsel.

So he has a long history tied to he worked in you know, who was just plucked out of, you know, the middle of the hinterlands to take over this case. He is a political figure. He understands exactly what his mission is. And it's to your point, what you just said and what Don Jr. just posted. It is to use this as a foil, as a ruse, as a diversion for all of the bad news that will be coming out about the Biden family crime racket. And I mean, realistically, this is going to dominate the news for the next year and a half, at least it's going to. And Trump can't really spend too much time getting his message out on how he's going to make America great again. Never mind the other Republican candidates. You know, I'll just give you one example. Yesterday I was about to do a hit

and we were going to talk about DeSantis and the interview that I did with him last Friday, the news that was made. Of course, that got all thrown out the window. Right. Trump just got indicted a third time. And this time it's the big McGill on January 6th that the Democrats have been salivating over. We didn't talk about DeSantis. It's just impossible for these other candidates to get any airtime. And that's, I think, also part of the Democrats plan. They know very well. Do you tell me what you think?

But they know very well Trump's numbers keep going up as they indict him more. They've seen that. They're not dumb. You can say a lot of things about them, but that they're dumb is not one of them. They like that. They're planning on driving his numbers up in the primary process. They believe he's beatable. They believe he's the only one I think that they can beat. They may or may not be right, but I'm talking about what they think. They think get him across the line with the GOP nomination process and then we'll crush him in the general because all these trials are going to be happening. Right. That could be part of their calculus. I think that I know a lot of people believe that

I haven't really thought about it that much. But, you know, this is going to be not just the top story in the general, but to your point, the primary as well. But for Republican voters, how the candidates, the primary Republican presidential candidates respond is going to be very important. And you already see blowback from some of the tepid responses that we saw yesterday from Governor DeSantis, Mike Pence basically endorsing this indictment. So it won't just be, you know, sucking the air out of other candidates trying to get their message across. This will be the clarifying issue between Donald Trump and all of these candidates, how they respond, what their plan is, how they react

to all of this news, death by a thousand cuts, as I said, not necessarily death, just thousand cuts will be very looming to Republican voters. It's such a no brainer. You don't have to endorse anything Trump did around January 6th in order to say this is a BS legal prosecution. As I was saying to my earlier guests, this is a political matter. It's for you to decide as a voter, Julie, for me to decide as a voter, do I think that this is a deal breaker between me and Donald Trump or don't I? This is not criminal. It is lawfare that they're using against him. Same as you've seen done against so many of these J6 defendants who, OK, yes, some of them broke the law and should be held accountable. But the sentences, as you point out with this judge, she's on her own imposing longer sentences than even the

prosecution wanted in these cases, which nobody else would be going to jail for if it didn't involve the January 6th set of facts. That's right. And another article that I have on my sub stack that people should read and prepare for. I'm not so sure that Jack Smith will pursue it now, but if he is charged with seditious conspiracy, and he really could do this based on the obstruction allegation, is seeking pretrial detention for Donald Trump. The next big bombshell, aside from additional indictments, will be what sort of release conditions will special counsel Jack Smith ask for in this case or future indictments? I mean, Megan, I've seen men held in jail for over a year simply based on being charged with obstruction of an official proceeding and a few misdemeanor counts. precedent. But Chief Judge Beryl Howell in February of 2021 handed down what is basically

special no bail rules that apply only to January 6th defendants. And I talk about that in my piece. Jack Smith has all the ammo he needs to go to Tanya Chutkin and ask either to detain Donald Trump awaiting trial. And if anyone thinks that's far-fetched, just watch Jack Smith's ridiculous statement yesterday, but also could put very strict release conditions on him, home detention, home confinement, a curfew, travel limitations, wearing a monitoring device. This is also where I believe, not just with this indictment, but certainly future indictments, if it is seditious conspiracy that Jack Smith will would would ask for and he would get before this judge.

I mean, there's no way they can lock Trump up pending trial. No way. And I mean, you know, as you know, normally the reason to lock somebody up is fear of flight. There's zero chance of that with Donald Trump. And if they put him in jail, what are they going to do? Put the Secret Service agents in there, you know, like they're all sitting in there together like that's not going to happen. I realize they've done it to others and they shouldn't have, but they have.

There's just no way they can do that with the former president of the United States slash likely nominee for the Republicans. I wish I could agree with you, and I totally respect your opinion and I understand the absurdity and-fetched nature of something like that. But after watching these prosecutors, watching these judges, seeing what they get away with, and the bloodlust, Megan, that the Democrats and this DOJ has created on the left, among the Democratic Party base, the bloodlust to see Donald Trump, not just in handcuffs, behind bars. They want him to suffer. They want him in prison. They don't care how he gets there. They have created this for over six years. And this is a way to deliver because as I said, it's unlikely either one of these cases go to trial before the November election. I would not put anything past this DOJ, Jack Smith, or Judge Chudkin, as I said. Have you been looking at the Georgia case at all?

You know, I'm trying to. So I don't know the details. It does look like it relates to the fake elector scheme, which was a big part, of course, of Jack Smith's indictment. So but but I'm I'm not as well versed in that, unfortunately. That one could be coming any day now, too. And they're all going to have to get in line, you know, for who's going to try for Trump first. I mean, I do think in some ways it inures to his benefit because he can say none of these things can be rushed. I've been hit at every turn by all Democrat prosecutors, a Democrat attorney general in New York who's brought a civil trial trying to shut down his entire business that goes to trial in October, a Democrat DA in New York, a Democrat prosecutor in Georgia, a Democratic administration

in the federal charges as I'm the Republican, most likely, most likely Republican nominee. Like there's just got to be some court that will entertain that reality and say, we're going to pump the brakes on this and we are not going to subject the American people that this is not fair. This is it's not fair. I mean, it's a miscarriage of justice to have even brought these charges, never mind to actually convict and put him in jail and make him run for president from there. Julie Kelly, thank you for all the great work you've been doing. It's not just on Trump. If you really want to know what's happening with the J6 defendants, and you should, because man, you want to talk about two systems of justice. Some of these people did next to nothing, nothing, and have had the full book thrown at them. She's been chronicling it all. Great to see you again. Thanks so much for having me on, Megan.

So grateful for you guys and tuning into the show and making it possible. We're going to pick it up again tomorrow. You can email me in the meantime at Megan, M-E-G-Y-N at megankelly.com. And in the meantime, do me a favor, go ahead and download the show on your podcast, subscribe and go subscribe at youtube.com slash Megan Kelly. We will will stay on it honestly for you thanks for listening thanks for listening to the megan kelly show no bs no agenda and no fear