Major SCOTUS "Birthright Citizenship" Case, with Aronberg and Davis, and Charlie Kirk Murder Trial Bullet Questions, with Branca and Geragos | Ep. 1286

Summary

The Megyn Kelly Show – Episode 1286

Date: April 1, 2026
Title: Major SCOTUS "Birthright Citizenship" Case, with Aronberg and Davis, and Charlie Kirk Murder Trial Bullet Questions, with Branca and Geragos

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Episode Overview

This jam-packed episode of The Megyn Kelly Show takes on two urgent headline legal stories:

1. The Supreme Court’s oral arguments in a pivotal case on whether President Trump's executive order to end birthright citizenship for children of illegal immigrants and temporary visitors is constitutional.
2. The ongoing developments in the murder trial of Tyler Robinson, accused of killing conservative commentator Charlie Kirk—with a focus on the technical and evidentiary challenges facing both prosecution and defense.

Featuring guest legal experts Mike Davis (Article 3 Project, former Senate Judiciary counsel), Dave Aronberg (Palm Beach County State Attorney and MK True Crime host), Andrew Branca (self-defense law expert), and Mark Geragos (criminal defense attorney), the discussions are robust, opinionated, and often combative—cutting through complex law with expert insight and pointed commentary.

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1. The Supreme Court’s Birthright Citizenship Showdown

Main Topic and Context (03:00–07:00)

• Key Issue: The constitutionality of President Trump’s executive order to end birthright citizenship for children of illegal immigrants and temporary visitors, based on a novel interpretation of the 14th Amendment.
• Noteworthy Moment: President Trump attended the oral arguments in person, highlighting the case’s political and legal magnitude.

Supreme Court Arguments & Legal Analysis

Discussion of "Subject to the Jurisdiction Thereof" (07:12–14:16)

• The Trump administration’s lawyer, John Sauer, argued that “subject to the jurisdiction thereof” means not merely being born on U.S. soil, but also owing allegiance to the United States—a reading that would exclude children of illegal immigrants and temporary visitors.
  • Quote:
    “If your allegiance is to a foreign country … then your allegiance is not to the United States.” – John Sauer (08:31)
• Justice Kavanaugh, among others, expressed skepticism regarding the legal leap from established exceptions (e.g., diplomats, children of hostile invaders) to an entire class of illegal aliens.
  • Quote:
    “I’m not quite sure how you can get to that big group from such tiny … idiosyncratic examples.” – Justice Kavanaugh (07:12)

Panel Reaction – Mike Davis and Dave Aronberg (11:06–21:22)

• Mike Davis stands by a strict construction: “If American Indians did not have birthright citizenship under the 14th Amendment, how the hell would illegal aliens?” (12:36)
• Dave Aronberg counters that the 14th Amendment framers chose broad language: “They didn’t write all former slaves shall be citizens. What they wrote was all persons born or naturalized.” (15:19)
• They clash over precedent, especially the Supreme Court’s Wong Kim Ark (1898) decision, with Davis highlighting lawful/permanent status, and Aronberg arguing that the ruling turned on place of birth rather than the legal status of parents.
  • Notable exchange:
    • Davis: “Should Chinese birth tourists get American citizenship?” (20:42)
    • Aronberg: “According to the 14th Amendment … yes. That's the way it's always been.” (20:55)

Judicial Leanings and Outcome Predictions (21:22–35:04)

• The panel analyzes the conservative justices’ positions—Roberts and Kavanaugh appear skeptical of Trump’s argument, while Gorsuch seems open to both sides.
  • Kavanaugh’s probing: “One might have expected Congress to use a different phrase … yet Congress repeats that same language, knowing what the interpretation had been.” (22:02)
  • Gorsuch’s ambiguity is highlighted as pivotal.
• Forecasts:
  • Aronberg: Predicts a 7–2 or even 9–0 defeat for Trump’s position (21:22)
  • Megyn Kelly and Davis: Expect Alito and Thomas to side with Trump, with doubt cast on the “Trump justices’” reliability due to “elite, Marxist law schools” influence (48:01)
• Fundamental Disagreement: Both sides agree that changing the 14th Amendment should be done via a constitutional amendment, not reinterpretation. Davis calls out John Yoo’s originalist stance against the executive order, affirming “You can’t read prohibitions into [the Constitution] that aren’t there, either.” (32:16)

Political and Racial Dimensions (37:58–47:01)

• The discussion turns to the politics of citizenship, allegations that Democrats want “open borders,” and accusations of racism/xenophobia in the anti-birthright citizenship argument.
  • Quote:
    “I don't want Chinese birth tourists…voting in American elections…If that makes me racist, then screw it, I’m racist. I don’t care.” – Mike Davis (47:01)
• Aronberg notes that the original 14th Amendment debate acknowledged foreign-born children and Congress “chose a bright line rule so we wouldn't have this kind of debate in the future.” (34:18)

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2. The SAVE Act and Voter ID Debate

Legislative Maneuvers and the Filibuster (38:37–44:48)

• The panel discusses the political hunger for the SAVE Act, requiring proof of citizenship to vote. The challenge: Should Republicans eliminate the Senate filibuster to pass it?
  • Mike Davis: “Senate Republicans are giant pussies is what I think you’re trying to say, Megan.” (40:11)
  • He argues that with 80% public support, including among Democrats and minorities, it should be a no-brainer.
• Voter Suppression Concerns: Aronberg notes that documentary proof requirements for registration could disenfranchise millions who lack birth certificates or passports—especially women with name changes (43:21).

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3. The Charlie Kirk Murder Trial Update

Case Recap and Public Doubts (53:21–61:50)

• Megyn Kelly recaps the case: Tyler Robinson is accused of the "aggravated murder" of commentator Charlie Kirk at Utah Valley University.
• There’s intense public and media skepticism about the investigation, including rumors that the bullet that killed Kirk didn’t match the alleged murder weapon—a "Daily Mail headline" that turns out to be misleading.

Forensic and Ballistics Evidence

ATF Findings (61:50–68:48)

• Andrew Branca explains that ATF could not definitively link the bullet fragment from Kirk’s body to Robinson’s rifle—labeling the match “inconclusive.” (61:50)
  • Quote:
    “It’s not at all unusual to have difficulty making a match between a bullet recovered on autopsy and a firearm.” – Branca (61:50)
• Mark Geragos notes that “inconclusive” is defense gold in a reasonable doubt system and stresses the defense’s right to independently test forensic evidence. (63:27)
• Kleen Kelly teases out why lack of an exit wound and bullet fragmentation are not necessarily suspicious, per Branca (66:17).

Scientific Admissibility and Legal Strategy (74:30–78:39)

• Both guests express skepticism about the conclusiveness of ballistics evidence; Geragos references the growing judicial skepticism toward such forensic “science.”
  • Quote:
    “The idea of making it akin to fingerprints … is a hotly contested topic.” – Geragos (75:16)
• Discussion about the need for cameras in the courtroom to counter rumors and conspiracy theories—drawing parallels to the Scott Peterson trial (77:08).

Additional Evidence and Witnesses (79:31–89:52)

• DNA found on the rifle and spent rounds is “minute” and mixtures from up to “five or more individuals”—raising admissibility challenges for the prosecution.
  • Quote:
    "The real answer … is a death of a thousand cuts.” – Geragos (102:00)
• The prosecution plans to call Robinson’s parents and his partner, Lance Twiggs. Parents are not protected by privilege and reportedly told police Robinson confessed—but legal experts caution that their testimony may weaken if they reconsider testifying against their son, or if facts appeared as implications, not direct admissions (98:42).
• Notable point: The defense may argue that strange-sounding texts between Robinson and his lover, key to the narrative, are fabricated or stylized—casting doubt if Lance refuses to testify or claims 5th Amendment rights.

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4. Final Thoughts and Predictions

• Panel's Conclusions:
  • SCOTUS likely to strike down the executive order, with conservative justices seen as “wobbly.”
  • Prosecution in the Kirk case feels confident, but defense may score with inconclusive forensics or witness credibility challenges.
• Memorable Quotes:
  • “If you don’t like [the Constitution], amend it. Pretending it says something it does not can only undermine the Constitution and the rule of law.” – Megyn Kelly, paraphrasing John Yoo (32:16)
  • “Standing on your feet in debate is going to rule out half of the U.S. Senate right there.” – Megyn Kelly (42:56)
• Big Picture: Legal outcomes will hinge on technical definitions, public opinion, and intra-court politics—and in the Kirk prosecution, on the strength, not just of science, but of human testimony.

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Key Timestamps

| Segment | Time | |---------------------------------------|--------| | SCOTUS case background & context | 03:00–07:00 | | SCOTUS arguments and panel analysis | 07:12–35:04 | | Voter ID/SAVE Act debate | 38:37–47:01 | | Charlie Kirk case intro | 53:21–61:50 | | Ballistics & forensics discussion | 61:50–78:39 | | Other evidence, witnesses, strategy | 79:31–89:52 | | Parental witness debate | 93:55–103:57 |

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Notable Quotes

• “You have to be both [born in the US and subject to the jurisdiction thereof]. It’s not just one.” — Mike Davis (12:36)
• “If you want to change the 14th Amendment, pass an amendment to do so, you can’t do it through executive order.” — Dave Aronberg (15:19)
• “They’re not subject to our jurisdiction. They’re fully subject to our laws every single day.” — Dave Aronberg, on children of illegals vs. diplomats (18:05)
• “Senate Republicans are giant pussies is what I think you’re trying to say, Megan.” — Mike Davis, re: filibuster fight (40:11)
• “If that makes me racist, then screw it, I’m racist. I don’t care.” — Mike Davis (47:01)
• “It’s a death of a thousand cuts.” — Mark Geragos, on defense strategy (102:00)

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In Summary

This episode encompasses two legal sagas at the heart of the culture wars: the fate of birthright citizenship (and the broader meaning of the 14th Amendment) and the search for justice in a politically charged murder case. The expert guests blend scholarship, wit, and visceral frustration—offering both technical insight and a window into the polarized, high-stakes environment of American legal and political life in 2026.

Transcript

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[Megyn Kelly]

Welcome to the Megyn Kelly show live on Sirius XM Channel 111 every weekday at noon East. Hey, everyone, I'm Megyn Kelly. Welcome to the Megyn Kelly Show. Wow. Do we have a show for you today. There have been some wild headlines in the Charlie Kirk murder case lately, and we've taken a serious look at what they mean and what they don't mean. And we have two really smart legal experts to break down for you what's really going on. As you know, we're invested in this one and we'll be handling it thoughtfully and carefully and with an open mind. What I want more than anything is for Charlie's killer to be convicted, to go to jail, and for us to make sure we know what's what in that case. So we're going to be taking a deep dive on that in just a little bit. But we have got to begin with major news at the U.S. supreme Court this morning. And this is a huge, huge case. So huge that the president of the United States went to the argument. I mean, I, I'm not sure that's ever happened before. We had a president who served as president and then went on to become chief justice at the US Supreme Court. But I don't remember a case where the president of the United States went and sat there for the oral argument. Trump considered doing it on his tariffs oral argument, which, you know, he ultimately lost that case and has been finding workarounds on it since. But this, this one was so important to him. He wanted them to know. And it's because this morning, the high court heard oral arguments on the constitutionality of President Trump's executive order that ends birthright citizenship for children of illegal immigrants and temporary visitors to the United States. This Birthright tourism has been an ongoing problem in the United States for some time. You all know that. People come from all over. By the way, it's not just Mexico, it's China. They've got like one and a half million Chinese citizens now who, who are just. They're not Chinese citizens, they're American citizens. Because people come over, they have their babies, and boom, they're Americans with the right to all the American privileges that you and I have. But there's of course, a ton of people who come from south of the border and, and they want their kid to be an anchor baby and they want the kid to get the entire family here and they want to take advantage of the American taxpayers generosity. And it's not just Mexicans, it's Somalians in Minnesota and elsewhere who know that thanks to our constitution and the 14th amendment in particular, if they have a baby here, they've got the glories of American citizenship. And what happened was this guy named John Eastman, who writes for Claremont Institute and is a lawyer in his own right, started really writing a lot about this. And I think he got in the ear of the President that this is not what the intent of the 14th Amendment ever was. And President Trump clearly was sold on it, and millions of Americans are sold on it. He's made a different kind of argument that the 14th Amendment has another clause in it that you have to be born in the United States and subject to the jurisdiction thereof. And that that second clause basically creates a loophole that we can drive a truck through to, say, illegals having babies on American soil doesn't actually convey U.S. citizenship. Okay, so I'll get to all of this as our legal panel comes on. But President Trump attended the oral argument. What a thing. The President signed an executive order his very first day in office, but it's never technically gone into effect because immediately he had multiple legal challenges to it, saying, we're no longer doing that. We're no longer acknowledging that you're an American citizen just because you're born here, if you were born to two illegals or two parents who don't have the right to be here. Now, as you may remember, the order went up already to the US Supreme Court last year, but it wasn't heard on its merits. That case was only about does a district court, that's the trial court judge at the federal level, have the power to issue a nationwide injunction on a case that comes before him? And the Trump administration won that case with this high court, holding that in most circumstances, these district courts do not. They don't have the power to do that. And now, as a result of that case, they can no longer issue nationwide injunctions. So that was one piece of this whole litigation that the Trump administration won, but that did not constitute a decision on the merits of what Trump did there. All right, so that did not stop the ACLU and others from trying to block the law in substance, the executive order in substance. And in fact, the case that's before the high court today was filed in New Hampshire on the very same day as last year's Supreme Court decision on the nationwide injunction, because they knew we have to have this procedural piece of it play out. And then as soon as we get a decision on it, now we have to fight it. Now we have to see whether Trump has the right to do this in the case. U.S. district Judge Joseph LaPlante, a George W. Bush appointee, on July 10 of last summer issued a preliminary injunction that blocked the Trump administration from enforcing the executive order against a class of babies born after the date of the executive order, February 20, 2025, who are or would have been denied U.S. citizenship by Trump's order. That court, finding that the people challenging the law or the executive order had a substantial likelihood of success, and so he entered a preliminary injunction against its enforcement. The Trump administration then took the unusual step of taking the case directly to the US Supreme Court before a court of appeals decision was reached like that interim level. And today at the high court, Chief Justice John Roberts, speaking of George W. Bush, he too was a George W. Bush appointee, seemed skeptical of the Trump administration's position early on in the hearing. Listen here.

[Justice Kavanaugh]

You obviously put a lot of weight on subject to the jurisdiction thereof. But the examples you give to support that strike me as very quirky. You know, children of ambassadors, children of enemies during a hostile invasion, children on warships, and then you expand it to a whole class of illegal aliens are here in the country. I'm not quite sure how you can get to that big group from such tiny and sort of idiosyncratic examples.

[John Sauer]

There are those sort of narrow exceptions for Ambassador. Foreign public ships, tribal Indians is an enormous one that they were very focused on in the debates as well. But what I do is I invite the court to look at the intervening step, which is the enactment of the Civil Rights act of 1866. And there they didn't say, subject to the jurisdiction thereof. There it says, not subject to any foreign power. Now, if you go back to Blackstone and Calvin's case, they say it does not matter if you are subject to any foreign power. If you are born in the king's domains, you have this indefeasible duty of allegiance to the king at any time. So there's a clear repudiation in the Civil Rights Act. The Civil Rights act is this breakwater, which makes it very, very clear that they are not thinking about allegiance in the terms of, like the British common law, they've adopted the republican conception of allegiance. So it's from not subject to any foreign power.

[Megyn Kelly]

So that's John Sauer, who is our chief appellate argument for the administration, and he's trying to keep Trump's executive order alive, saying, you know, if your allegiance is to a foreign country because, you know that's basically where your parents are from and where you should have citizenship from, then your allegiance is not to the United States. There's no question the administration has an uphill battle on this. I think most legal experts looked at the argument from the beginning and thought wasn't going to fly. But as time has gone by and as people have taken a closer and closer look at the argument, I have watched as more and more legal scholars have said, you know what? They could be onto something. They actually could be onto something. But there's. But to say that the overwhelming weight of legal scholars is on the side of the administration would be to mislead you. It's not. And today at the High court, so far, I mean, what we've been hearing, I haven't listened to the entire argument myself, but the reports from reporters I trust who cover the court have suggested we have a very, very skeptical bench looking at Trump's argument. Joining me now are our favorite legal analysts on things like this. And I care about their opinions more than I care about anybody else's on this. And that includes Article 3 Project and founder Mike Davis and MK True Crime Host, former Palm Beach County Prosecuting Attorney David Dave Ehrenberg. Let me tell you about Cozy Earth, which makes relaxing at home so much more enjoyable. If you have not tried their robes or slippers yet, you are seriously missing out, my friends. Their robes are unbelievably soft, perfect for slow mornings after a shower or just relaxing at night. The fabric is breathable, lightweight, and incredibly comfortable. It's the kind of robe you put on and immediately feel more relaxed in. And their slippers have this plush lining. They're warm, they're comfortable, they're easy to wear around the house all day, which you should. With Mother's Day coming up. Cozy Earth makes an amazing gift, something she will actually use and appreciate every single day. And here's the best part. Cozy Earth backs everything with a 100 night sleep trial and a 10 year warranty. So you can try it completely risk free. Go to cozyearth.com use my code Megan for 20% off. That's cozyearth.com promo code M E G Y N for 20% off. And if you see the post purchase survey mention you heard about Cozy Earth from this show. Guys, welcome back. So let me start with you on it. Mike, how do you think it went?

[Mike Davis]

Well, this if the justices do their job and follow the very simple law, this executive order should be upheld. The issue is that there's this whole thing called politics. And I am concerned after listening today's oral arguments that these justices didn't wear their robes today. They wore their capes today because it is very clear that birthright citizenship was included in the 14th Amendment to fix the Dred Scott decision, the Supreme Court decision that said that the children of the freed slaves are not American citizens. And you have to ask why the hell did we fight a civil war? And so we had the Dred Scott decision. Just about a year later we enacted the 13th, 14th, 15th Amendments to free the slaves, provide equal protection and due process to the slaves, voting rights to the male slaves. That was extended in the 19th Amendment to the female black Americans. But part of the 14th amendment provided birthright citizenship to the freed slaves and their kids. And it talked about there's a key phrase in there that says subject to the jurisdiction. And as they Talked about it, 14th

[Megyn Kelly]

amendment basically says you have to be born in the United States and subject to the jurisdiction thereof.

[Mike Davis]

Yeah, you have to be both. It's not just one. You have to be both. And there is a key meaning to that. Subject to the jurisdiction means you are, you have allegiance to the United States. And this is the dispositive question that these Supreme Court Justices need to answer. The Supreme Court previously held that American Indians were not subject to the jurisdiction of the United States, meaning they did not get birthright citizenship under the 14th Amendment to the Constitution. Congress later fixed that and gave birthright citizenship to American Indians through statutes. So ask these Justices this dispositive question. If American Indians did not have birthright citizenship under the 14th Amendment, how the hell would illegal aliens. And the answer is simple. They do not.

[Megyn Kelly]

Here's how Justice Thomas, Clarence Thomas raised this issue in discussing it with the aclu. They're obviously on the other side. They're, they're litigator. Cecilia Wang Listen to Clarence Thomas, get into that. SOP4, there are five exceptions to citizenship that you do accept.

[Justice Gorsuch]

Yes. Depending on how many you count, Justice Thomas, how you count them.

[Megyn Kelly]

What is the underlying rule of law that you use to connect these five exceptions?

[Justice Gorsuch]

Sure. So as I just said, all of the exceptions involve situations where that US Born child is not subject to the jurisdiction of the United States.

[Megyn Kelly]

And the one I think that's the easiest to understand, Dave, is the children of diplomats. Like a diplomat comes over here from Saudi Arabia or the UK and we've all seen this happen like in the movies. If they commit a crime, they run a red light. They can't get a ticket because they've got diplomatic immunity. They're not subject to the jurisdiction thereof. They may live here and they may have a baby here, but that baby will not be an American citizen. If it's two diplomats from the uk, it will be a UK citizen. It will not be an American citizen. And that's because of subject to the jurisdiction thereof. And the Trump administration is trying to argue the children of two people who are here illegally is the same as that child of the diplomat. And the ACLU says that's not correct. And I think you agree with the aclu. So can you explain why? Why it's not the same?

[Dave Aronberg]

Megan, good to be back with you and Mike. And my belief is that if you want to change the 14th Amendment, pass an amendment to do so, you can't do it through executive order. And to address yours and Mike's point about the Dred Scott case, Mike is right that the impetus for the 14th amendment was the Dred Scott decision. But the text that they wrote, and this addresses your point too, Megan, was intentionally broad. They didn't write all former slaves shall be citizens. What they wrote was all persons born or naturalized. And the 14th Amendment's framers were smart enough to use the word persons, not former slaves. And so if we only applied constitutional amendments to the specific people they were intended to protect, the 14th Amendment wouldn't protect anyone today. And so there's a case on point, the Supreme Court back in the 19th century and that Wong Kim Ark case. They already addressed this argument. And by the way, that court back then wasn't a liberal court. That's the same court around the same time that enacted Plessy versus Ferguson, which is separate but equal.

[Megyn Kelly]

I don't know if you got to my question about why aren't the kids of illegals the same as the kids of diplomats?

[Dave Aronberg]

Well, are you? And I'm a little confused with the question, because are you saying that you mean political allegiance? So if you are, you have to say that you're.

[Megyn Kelly]

They're not subject to the jurisdiction thereof. Like, that's. I'm just saying this is what the argument is. The argument is that you can understand it simply when you think about the diplomats. Right? They're not subject to the jurisdiction thereof. They're not. They don't have to abide by our laws here. It's basically a way of honoring the king of another country, saying, you've got the allegiance there, that the kings aren't going to send their emissaries over here if they have to be subject to the jurisdiction of American laws. That was kind of why diplomatic immunity started. So, like, it would make sense to me that two diplomats having a baby on US Soil would not be an American citizen. No one's ever submitted to the jurisdiction of the United States. And what the Trump administration is saying is the kids of illegals are the same because those parents are kind of in a similar position to the diplomats.

[Dave Aronberg]

Okay, I understand where you're coming from, Meghan. And the reason that children of foreign diplomats are treated differently is that their parents carry that diplomatic immunity. They are literally outside the law. This is different than if a child of someone who's undocumented commits a crime, they're subject to the laws. They're going to be arrested. So I think you're dealing with apples and oranges here.

[Megyn Kelly]

How about that, Mike?

[Mike Davis]

Well, and here's the question that Dave needs to answer. You said the 14th amendment applies to all persons. How come the 14th amendment didn't apply to American Indians?

[Dave Aronberg]

Okay, you're talking about. There was that case, that Elk case, right? Is that the one you're talking about, the Wilkins v. Elk? That's the right. Well, that was from 1884. Here's the reason. That's because Native Americans were considered members of sovereign independent nations, and that existed outside the US Legal system at the time. They were like foreign diplomats living in their own embassies. And that's why they needed a separate act of Congress. That's the act you referred to, the 1924 Indian Citizenship Act. So that's different. So an undocumented immigrant living in our community isn't a member of a sovereign tribal nation exempt from US Taxes or laws. They're fully subject to our laws every single day. They can be arrested. They don't need a separate law to make them subject to the laws of our country.

[Mike Davis]

Well, you talked, you mentioned the Wong Kim case, and that talked about lawful. That was the Chinese exclusion case and that dealt with lawful and permanent residents. Lawful and permanent. And they. And the key distinction was subject to the jurisdiction there was that the Supreme Court said that they had allegiance to the United States because they were lawful and permanent. How are illegal aliens subject to the jurisdiction of the United States? How are Chinese birth tourists? How. Why should Chinese birth tourists, over a million of them, come to America, have a kid and then go back to China, never step foot in America again, but can vote in our elections and can take American welfare? Do you think that's what the, what the proponents and the public understood the 14th Amendment to mean, or any subsequent statute after the 14th Amendment? Is that is that what birthright citizenship means to you, Dave?

[Dave Aronberg]

Well, you mentioned that in the Wong Kim our case that the court mentioned that the parents were lawful and permanent, and they did. You're right about that. But that's because those were the facts in the case before then. The court's legal reasoning, though, did not depend on their visa status. And we don't want to be confused between a fact and a rule. In that Wong Kim Ark case, the court noted the parents were legal residents because that was their specific story. But the legal rule there is that the court announced it was based on what's called the right of the soil, where the 14th Amendment requires. If that amendment requires lawful status, it would have said all persons born to lawful residents. It doesn't. It says all persons born.

[Mike Davis]

Should Chinese birth tort get American citizenship?

[Dave Aronberg]

I'm sorry, I couldn't hear you. Can you say it again?

[Mike Davis]

Should Chinese birth tourists get American citizenship?

[Dave Aronberg]

Well, According to the 14th amendment, if someone is born here, they're subject to that 14th Amendment, which says all persons and yes, they get citizenship. That's the way it's always been. In fact, every single judge has ruled that way, including the judges here in this case. And that's why I think this case, the Supreme Court, is going to be 7:2, maybe 9:0. The Constitution is what it says it is.

[Megyn Kelly]

No, it's not going to be 9 0, not this one. Thomas and Alito aren't going to go back. The administration, you're probably right about that. I don't think they've got Roberts. Are we shocked, Mike? We're not shocked, Kavanaugh. Here's a little of Kavanaugh. We're just looking at the conservative justices since we know what the libs are going to do. But there's only three of them. What typically happens in these swing cases, you got to look at you got to look at Roberts, you got to look at Kavanaugh, you got to look at Coney Barrett, and you got to look at Gorsuch. I think Thomas and Alito will be in the president's camp. But here's a little from Kavanaugh asking questions of John Sauer, the administrative the the administration's advocate. Listen here.

[Justice Kavanaugh]

So three Given Juan Camarc, one might have expected Congress to use a different phrase if it wanted to try to disagree with Wong Kim Ark on what the scope of birthright citizenship or the scope of citizenship should be. And yet Congress repeats that same language, knowing what the interpretation had been. For example, you could use the language from the Civil Rights act of 1866 or some similar formulation if your idea in 1940 and 1952 was to

[Mike Davis]

not

[Justice Kavanaugh]

have ambiguity or not have an overly broad scope.

[John Sauer]

I think, I think if you look at the structure of that statute where it's 1401 A and then B through H, A it says these are the people who are entitled to birthright citizenship. A is the constitutional standard and then B through H are all the categories that Congress has super added to that. I think the natural inference is that Congress is codifying which it was consciously doing in 1941 poll pulling all the naturalization rules and immigration rules together into one statute. Said you go to one place. Here's who's who is a birthright citizen. A, those get who are guaranteed that right by the citizenship clause and B through H are the ones that Congress has added through its naturalization power. So that inference to me says A is merely it's not trying to change or alter the constitutional standard, just saying, hey, the baseline is what the Constitution says and we we codify that and then we move on to the new category.

[Megyn Kelly]

So that to me, Mike, is is Kavanaugh sounding a little skeptical, saying, look, we had the 14th amendment and then we had a statute enacted that would dictate who's a citizen. And that if, if the, if, if Congress wanted to change or do anything different around this issue after that Wong King Arc case, which was decided in 1898, then that statute would have read a little differently, that they wouldn't have just kept repeating the same language just for the audience. I know this is dense. Try to hold on. But in that case, the Supreme Court upheld the American citizenship of a child born in San Francisco to Chinese immigrant parents. As our panelists pointed out, those parents, however, were both here lawfully. They were, they were legal resident aliens. But, but those who are still using it as evidence that it would apply to illegals, point out that at the time in 1898, we weren't really doing the legal alien, illegal alien thing here in the United States. We weren't really looking at aliens in those categories yet. So that's why it wasn't really. That's why Dave's side said it's not a real point of distinction on this case. But you could hear Kavanaugh there saying, look, if Congress wanted to change what subject to the jurisdiction thereof meant or wanted to get a little bit more exacting when they enacted the civil rights law, that kind of get to this, they would have been more explicit. Mike.

[Mike Davis]

Well, I think that long term ARC actually helps President Trump's executive order. It laid out the test and it's subject to the jurisdiction means allegiance to the United States. It means you're here lawfully and you're here permanently. And that is the opposite of illegal aliens. That is the opposite of Chinese earth tourists. That is the opposite of foreign ambassadors, kids. That's the opposite of invading armies. I would just say this to these Supreme Court justices who are waffling a little bit, you know, these more political types who are, you know, maybe looking at the polling on this, I would say this, that our most crucial sovereign power as we the people, the sovereign citizens of America, is to control our border and to control our populace. And we never agreed to give birthright citizenship to illegal aliens, not at the 14th amendment and not any statute since then. So they can play their little political games to try to get to the result that they think is politically palpable, but that is not the law. Their job is to follow the law. They wear robes, not tapes.

[Megyn Kelly]

There's a little bit more of a clue here, Dave Aronberg, Gorsuch, we got to check in with him. So so far, I feel like Roberts and maybe Kavanaugh are leaning against the administration. That would be enough to do it. That would only leave four conservatives assuming Barrett, Gorsuch, Alito and Thomas go with Trump. So let's check in. What did Gorsuch sound like today? He just gave us that great decision yesterday. I mean, eight out of the nine justices gave us that great decision yesterday saying, you can't. Colorado and 23 other states have laws telling therapists they can only tell confused minors around the gender issue that they really are secretly not the, not the gender that their biological sex is. You can only tell them, affirm, affirm, affirm. You are gender confused, and that's because you really are. This sex that you're not. So that was great. Gorsuch offered, authored that opinion. That concerns me, frankly, as somebody who would like to see today's executive order upheld because he's probably feeling like I gave you a solid Trump and now, now I'm free to do with it whatever the hell I want. I know he feels he's free any day, but here is one soundbite in which he was given the ACLU attorney a little jazz.

[Justice Kavanaugh]

SOT6 well, there's a lot in Elk, and some of it's not terribly helpful for you, it seems to me, because Justice Gray again strikes again, says that, that they may be subject in some degree of respect to the United States. So there's some jurisdiction. He says they're born in the geographic limits. They are, in a geographical sense, born in the United States. But because they are not completely subject to the jurisdiction of the United States and owe allegiance distinct from the United States, that's what takes them outside. And that language sure sounds a lot like the Solicitor General's presentation today.

[Justice Gorsuch]

To the contrary, Justice Gorsuch, I embrace that part of Elk v. Wilkins holding. Justice Gray, of course, wrote both Wong Kim art.

[Justice Kavanaugh]

I know, and it's a struggle.

[Justice Gorsuch]

Sure. Let me try to help you out with that. So, you know, the government tries to make it seem as though what sets the exceptions apart, what defines the exceptions, is that the government has some maximum theoretical power. The government could have exercised plenary regulatory power over the tribes, and therefore that's the same situation as a foreign national in the United States.

[Megyn Kelly]

Okay. No one understands a word that was said there. But they do understand that Justice Kavanaugh. Sorry, Justice Gorsuch was giving the ACLU kind of a hard time suggesting there's wiggle room in the case law for him to find a way to vote for Trump.

[Dave Aronberg]

That's right. And Mike Davis should be proud, I'm sure, because that's his guy, Justice Gorsuch. And it looks like he could go either way on this. I'm sure Mike is beaming, but it's interesting. I'm gonna try to distill it down, cuz it is confusing. But here in plain language, Justice Gray wrote both the Elk and the Wong Kim Ark opinions. So it's interesting that they're asked, they're quoting him back to him. Like, how do you distinguish these two opinions? And the key is that in the Elk case, the 1898 case, Justice Gray was dealing with a Native American who owed immediate allegiance to a sovereign tribe. And so that's different. And that's I think the distinction between Elk Wilkins and Wong Kim Ark.

[Megyn Kelly]

So in other words, in Elk, because you're dealing with a Native American who owes allegiance to a sovereign tribe, they're not. They don't get birthright citizenship because there's that allegiance question. Like, like I was saying, the. The subjects of the king, the diplomats come over, they're still loyal to the king, not to the United States. Whereas in the Wong Kim case, you had two Chinese, a mother and a father, who were not citizens of America but were here lawfully and their child was recognized as an American citizen because they didn't have that lack of allegiance problem that the native. The native person did, and that in my hypothetical, the English diplomats do exactly the.

[Dave Aronberg]

An undocumented immigrant is not a member of a sovereign nation within the United States that has its own treaties and laws. They are individuals.

[Megyn Kelly]

Well, I. Look, I think the bottom line is. You tell me, Mike, because you kind of dodged on how you think it went today, you know, but I'm not. If you were betting, if you had to put money on it, I think we'd put money on them. This is going to go siding against Trump.

[Mike Davis]

I think the Supreme Court's going to rule against Trump because I think these justices are being politicians in robes, they're being weak. They're not going to follow the law. And I would say this if Dave said that he was trying to distinguish those cases between the Chinese lawful permanent residents who get birthright citizenship versus the American Indians who don't because of their. They are allegiance to a separate tribe, to a sovereign tribe. What the hell? What happened to these Chinese birth tourists who come to America, have their kids, they're Chinese foreign nationals. Their kids go back to China. They're Chinese foreign nationals with American birthright citizenship. Under your interpretation. They never step foot in America, but they can mail in their votes. I don't think that's what the people who proposed the 14th Amendment sold to the public. And I don't think that any Congress since then sold that to the public. And if the Supreme Court rules that way that Chinese birth tourists get birthright citizenship, it can vote in our elections from China and get welfare sent to China. The Supreme Court's gonna lose its legitimacy.

[Megyn Kelly]

Here's the thing. I'm gonna stay with you on this, Mike. Our pal John Yoo wrote an editorial on this, and he's an originalist like most of the conservatives on the, on the High Court. And he, he made the following point. He's on Dave's side and which you don't always say about John Yu, he's a very conservative guy and legal scholar. He's the one who authored the memo that would justify the torture that was unleashed on Al Qaeda during, you know, the post 9, 11 years. He argued as Dave is arguing, and said it's, you can't argue this about the 14th amendment. Unfortunately, it does protect or include the children of illegals. And he ended his piece as follows. If the American people are dissatisfied with aspects of their Constitution, the remedy lies in their hands. Amend it. Pretending it says something it does not can only undermine the Constitution and the rule of law. That's a great principle, Mike, and you and I both agree with that as more federalist type constitutional people, because that's, it's that principle that we use to say Roe versus Wade is made up. You can't read rights into the Constitution that aren't there. And you can't read prohibitions into it that aren't there either.

[Mike Davis]

Look, I love John Yoo, maybe this is personal for him. But I would say this, that no, you don't misinterpret the law. You don't give away our most crucial sovereign power as we the people by handing out citizenship to Chinese birth tourists and then say, oh, if you don't like it, amend the Constitution. That has the argument backwards. We have the sovereign power as we the people. We decide who comes, we decide who goes, we decide who our citizenry belongs to. And we don't just give that away from some weak justices on the Supreme Court who maybe they have personal political views on this. That that is not how our Constitution works. This is a glaring red line. This is a violation of our most crucial sovereign power as we the people to control our border and to control our population. So John Yu is just dead wrong

[Dave Aronberg]

on this one, Megan.

[Megyn Kelly]

Unfortunately, Dave, we're not gonna. Yeah, go ahead.

[Dave Aronberg]

Well, you know, when it comes to Mike's argument about Chinese children who come here, and that argument was made actually during the debate on this amendment, the 14th amendment, there's a Senator Cowan who made this debate saying, hey, if you pass this, you're going to now give citizenship. And the term I use was Chinese and Gypsies. And the Congress passed it anyway. Yeah, they actually said, they said you're gonna give citizenship to the Chinese and the gypsies. And yet Congress passed it anyways because they chose a bright line rule so we wouldn't have this kind of debate in the future. And that's why every court has decided in that way. Even conservative justices and judges are Saying that because if you want to change the Constitution, you can't do so.

[Mike Davis]

The Supreme Court has not decided this issue on illegal aliens. They've decided the issue of lawful and permanent residents. People who have, who are subject to the jurisdiction of the United States, which means they have allegiance to the United States. It's not Chinese birth tourists who get to come here. Al Qaedas kids who get to come here. ISIS kids get to come here. You have to have allegiance to the United States. And you can't just throw up your arms and say, well, if you don't like it, just amend the Constitution. Like that's easy. No, we never agreed to give away citizenship to people who hate us. We agreed to give citizenship to people who have allegiance to the United States, the children of freed slaves. And then the Supreme Court extended that to lawful and permanent residents. That's all the Supreme Court has decided. They have not decided the illegal aliens. That is a, a bogus argument.

[Dave Aronberg]

Well, back in 1898, that was the argument that the government tried. They said that Wong Kim Ark's parents owed allegiance to the Emperor of China. They couldn't become Americans.

[Mike Davis]

And the Supreme Court rejected that in permanent residence, Dave. That was the difference of the United States because they were lawful permanent residents. They're not Chinese birth tourists, 1.5 million of them. They're not illegal aliens trend who are going to come into our country illegally. And we have 20 million people here because Biden opened our border. Do you think, think that all of these illegal aliens kids get birthright citizenship? You think these Chinese birth tourists get birthright citizenship? If you, if you think that Congress can change the laws like we did for American Indians, but that is not what we agree to in the 14th Amendment.

[Dave Aronberg]

Well, that's why. Well, Dave. Yeah, go ahead, Maggie, go ahead.

[Megyn Kelly]

Yeah, okay. No, well, I was just going to say that the reason we can't just amend the Constitution because I mean, any sane person in 2026America would understand what Mike is saying. And, and I mean the vast, vast majority of people do not want those Chinese residents to come over here, have their babies, bring them home. That kid grows up to have voting rights in America. No, but the Democrats are the reason that we can't amend the Constitution on this. Because the vast majority of red states and Republicans would run to vote for a constitutional amendment that made this perfectly clear. We do not want them. They are not U.S. citizens. That's a privilege that should be bestowed on people who are actual Americans and intend to live their lives here and have done the work to become naturalized if they're from another country originally, the Democrats don't want that. And they don't even want us to test for citizenship before we can have a vote at the ballot box. And you tell me, Dave, why that is. Why are they, why do the Democrats want so badly to have the Chinese babies stay here or come here, get citizenship and then leave? And why do they want so badly for us not to have constitutional or have checks of ID and citizenship before they can vote in November?

[Dave Aronberg]

That's a loaded question, Megan. So why are the Democrats, why do the Democrats want open borders and all these illegals to come in and vote for them? I. Look, that's a political question.

[Megyn Kelly]

Yeah, right.

[Dave Aronberg]

I would say that. I don't know any Democrats who say, hey, the key to future electoral success is we're gonna have open borders so that we could flood the voting booth with illegals who owe it to us. I know that that's how Republicans think. I haven't heard that in the Democratic side. Maybe it's part of the dsa, the Democratic Socialists of America, which I'm definitely not a part of, but I haven't heard that talking point on our side of the aisle.

[Megyn Kelly]

Mike, let's just switch for a minute if you guys don't mind, because I do wanna follow up on the SAVE Act. It's the number one thing being debated right now on Capitol Hill and amongst every Republican I know. I mean, honestly, every Republican I know is like, what's going to happen with the SAVE act, which is this attempt to shore up the requirements before people can vote, to, to provide proof of citizenship, actual proof of citizenship, and that this, it's so important to most Republicans that there's a serious pitch to get rid of the filibuster in the Senate so that it can pass this Senate, which only has 52 Republic, Republic or 53 Republicans, and we can get it through. You know, the House obviously is Republican controlled. The Senate is Republican controlled. We have a Republican in the White House and many people believe we don't do it. Now, what will happen, guaranteed, is the Democrats will come back into power in the senate whether it's 2026 or 2028. And they'll do it. They'll do it for their side and hoping that they'll get a Democrat president in. I've had my own serious doubts about whether this makes sense because I like minority rights in the Senate because I've just seen too many good Republican minorities stop crazy ass Democratic legislation. And also, Mike, because it seems to me that generally when you have a Democrat trifecta, House, Senate and White House, they go nuts on the legislation. Whereas Republicans are more, you know, we're, we're conservatives. We're more like. We conserve the status quo. We don't. We're not huge on like. And another law. And another law, you mean. So I think it'll help the Dems more than it, it helps the Republicans.

[Mike Davis]

Senate Republicans are giant pussies is what I think you're trying to say there. Megan, Look, I would say this about the Save America Act. It requires proof of citizenship and voter ID. This has the support of over 80% of Americans, including a super majority of Democrats and even a super majority of minorities. The Democrats pretend that women who get married or minorities don't have the wherewithal to get a voter ID like everyone else. It's nonsense. The reason they oppose this is because they know with our motor voter laws that these illegal aliens are getting driver's licenses and they're getting automatically signed up to vote and they're voting in our elections. And this Save America act would stop this. We don't need to have 60 votes to pass the Save America Acts. You need 60 votes to invoke cloture and stop unlimited debate in the Senate. You just need to make the Senate Democrats stand on their feet and debate until they run out of gas. Right. And so at the Article 3 project, we are getting people to light up. They go to our web page and light up both of their home state senators and tell them to pass the Save America Act. And if John TH. And Senate Republicans can't pass a piece of legislation with 80% support among Americans, including a super majority of Democrats and a super majority of minorities, they are in the wrong line of work. Go get a real job.

[Megyn Kelly]

Are you worried, are you worried, Mike, at all about the elimination of the, of the filibuster? Because that's what you'd have to do.

[Mike Davis]

No, no, no, Megan, you don't, you don't have to eliminate. That's, that's the, that's the misconception. You need 60 votes to stop debate in the Senate, to limit debates. Yeah, but if you just let the senators debate, make them stand on their feet and debate, there's. They can, they can debate two times in one day on one piece of legislation. Right? So just make them debate until they run out of gas, and after they've run out of gas, hold the vote and you can pass the Save America act with a simple majority vote.

[Megyn Kelly]

This is the requirement. This Is the requirement to change the filibuster back to an actual speaking filibuster? Well, it would require them to actually.

[Mike Davis]

No, it already is the requirement, but they do the lazy filibuster now in the Senate, where the senators, they're all like 90 years old and they're like, oh, man, we have to get 60 votes. We're just going to go to sleep or we need to, we need to take another paid vacation. This, this is exhausting. Right? The rules are, it's continuous. You can have unlimited debate in the Senate, but you actually have to debate. You have to stand on your feet and debate. And if you don't stand on your feet and debate, you call the votes.

[Megyn Kelly]

Standing on your feet in debate is going to rule out half of the US Senate right there. I mean, you're absolutely right.

[Mike Davis]

Now, God forbid, make them work on a weekend. Make it, just make them work past 2 o' clock on Thursday. And it's amazing what you can get

[Megyn Kelly]

past in the Senate that I completely believe. Now, Dave, I will not toss it to you with the loaded P word, but you tell me what's going on and what is going to go on with the SAVE act, because Mike makes

[Dave Aronberg]

a compelling case, yet President Trump really wants it, and that's why it's still in play. I thought that it was dead and buried, but it's still in play. I'm gonna start where we all can agree. All right, the three of us can agree on voter id. I'm with you on that. I think that's where Mike has his like 80% figure from the polls. But the SAVE act is different because the SAVE act requires documentary proof of citizenship to register, and that means thereby, like. Yeah, right. Yeah. Well, you know, there are about 21 million eligible U.S. citizens who don't have access to a birth certificate. I don't know where mine is, passport or naturalization papers. So you gotta go, and you gotta go get a pay for a birth certificate. Passport just to register to vote. And then there's women, about 69. Well, and then there's women, 69 million who have different name on their birth certificate.

[Megyn Kelly]

You're a newlywed, are you not? Your. I met your beautiful bride in the fall. And when you get married, they require all sorts of things from you, you know, like, I don't know, I think you're Jewish, but I'm Catholic. When I got married the first time in a Catholic church, you had to go get like your, your baptism certificate, your confirmation certificate. Oh, so many certificates. That was just for the Catholic Church, nevermind for the state. And I did it because that's life. Why should I be crying tears for the people who have to provide proof of actual citizenship in order to get the privilege of voting?

[Dave Aronberg]

Well, why don't we make it like marriage where I just get my driver's license? You know, why does it have to be that I've got to go reapply?

[Megyn Kelly]

Because it's so easy to get a driver's license even if you're not a citizenship.

[Mike Davis]

My point is like here's the real answer. Democrats pretend women and black people don't have the wherewithal to get a voter ID because they want their illegal aliens to vote. That's the real answer.

[Megyn Kelly]

Yeah.

[Dave Aronberg]

How many illegal aliens vote?

[Justice Gorsuch]

Really?

[Megyn Kelly]

How many illegal aliens are bad directions? If it depended on like a directional test to get to the dmv, we might not qualify. Well, first speak for myself.

[Dave Aronberg]

First of all, it's already illegal for illegal aliens to vote and there have been audits in states to see how many illegals have been voting and it's like 001%. So this is trying to suppress the vote, not to stop election fraud, which is really nonexistent on a widespread basis.

[Mike Davis]

And you should, that is what the

[Megyn Kelly]

Democrats always say, Mike.

[Mike Davis]

It's not an issue problem if it's not existent. You should have no problem with the Save America act if it's. If there's non existent illegal aliens voting. Right, but we know that illegal aliens are voting in big numbers.

[Megyn Kelly]

Let me get back to this. Let me get back on the subject of how racist and terrible the Republicans are. Mike Davis, There was a CNN analyst who is on Today talking about the birthright citizenship argument at the Supreme Court and her name is Sean Wu. And this is how Sean Wu frames the issue.

[Mike Davis]

The very creation of the 14th Amendment was meant to combat racism. And really implicitly people who are challenging that clause are really espousing a racist viewpoint. It's very hard to get around that no matter what sort of legal arguments you want to couch. Just because you have a legal argument doesn't mean it's not racist.

[Megyn Kelly]

So it's race. It's, I guess it's by definition it's racist because when you're talking about people born here who aren't American citizens, they're not American. So maybe it's more xenophobic, is that he should have gone with xenophobic. But your, your thoughts on whether this argument that Trump's raising is racist and the Save America act too. Mike Davis, Racist?

[Mike Davis]

Yeah, because I don't want Chinese birth tourists, 1.5 million of them, Chinese nationals in Beijing voting in American elections, and I don't want them taken welfare. If that makes me racist, then screw it, I'm racist. I don't care.

[Dave Aronberg]

I don't think you guys are racist for bringing this up. And I know Shan Wu, the guy you showed, he's actually a really nice guy. So, you know, I, you should have him on the show sometime.

[Megyn Kelly]

He should. We should have Shan Wu and John Yu and then we could have quite a debate about all aspects of this tough, tough case. Well, you predict seven to possibly. Dave Aronberg. What do you predict, Mike Davis?

[Mike Davis]

I think that Dave may be right on that. I think that the Supreme Court, the Trump appointed Supreme Court justices, may very much disappoint on this one. I think they're going to follow the politics instead of the law.

[Megyn Kelly]

Why are the Trump appointed justices so much wobblier than Alito and Thomas? Can I ask you that? Truly, why?

[Mike Davis]

They just, they were raised in a different generation where at the law, the law schools got a lot more Marxist when they went to law school than when Justice Alito and Justice Thomas went to law school. And so when, when you're trying to be accepted in these elites Marxist law schools like Harvard, you have to be the acceptable conservative. And I think that's the problem with the Trump justices. They care too much about being the acceptable conservative.

[Megyn Kelly]

Megan, I have another follow up for you. Yeah, go ahead.

[Dave Aronberg]

I'm going to my 30th Harvard Law School reunion next week. And yes, and I'll bet you that none of the alums will have ever watched me on your show. I think they watch different networks.

[Mike Davis]

Dave, you get any time you want

[Megyn Kelly]

to come to the Republican Party.

[Mike Davis]

Dave, the Democrats hate the Jewish people. Come to the Democrat Party or the Republican Party will take you.

[Dave Aronberg]

I've been very true. I've been very independent.

[Megyn Kelly]

Like me. We'll take you, too. Now, wait, I want to say something about this. The, the possibility we've been talking on the show. This isn't exactly up your alley, guys, but I'm going to land it. Trump's poll numbers are not doing well for a variety of reasons, but the Iran war is not helping. And one of the things I've been saying to the audience is, you know, whether you are in favor of the war, you're not in favor of the war. I think most of us over here on this side of the aisle are in favor of Trump having strong poll numbers and Maintaining control. Republicans of the House and certainly of the Senate. And one of the reasons they need to hold on to the Senate is because that's where you get judicial nominees confirmed. And Mike Davis, I am hearing rumblings of Samuel Alito possibly retiring because he doesn't want to pull a Ruth Bader Ginsburg. He wants to, to his credit, even though we all love him, he wants to make sure that Trump gets to replace him as opposed to Gavin Newsom. You tell me whether you are hearing the same thing and whether you think we could make that happen before the midterms just in case the worst happens in November.

[Mike Davis]

I got in trouble at the beginning of the Trump administration when I joked that Justice Alito was packing his bags. So I'm not going to do that again. I don't want Justice Alito and Thomas to step down because as we saw with birthright citizenship, they are the two most reliable constitutionalists on the court. I hope they live forever. I hope that they stay on the court forever. If they decide they want to step down, I think someone like John Sauer would be a great replacement for them.

[Megyn Kelly]

So the Solicitor General, is he, is he wishy washy?

[Mike Davis]

No. Hell no. John. He's the guy who made the presidential immunity argument for Trump and won the most.

[Megyn Kelly]

No, I heard. I know who Sauer is, but, but I just, you know, you never know. Like when I watched Chief Justice John Roberts, who was just then, just Judge John Roberts, I was like central casting. He'll be amazing. I covered his confirmation hearing wall to wall on the air for Fox and he wound up being rather squishy. Hello, Obamacare. It's a tax. What? That was him. So I do have to worry. But I have to say, like, if, if we get closer to November, I mean, we can't wait that long because the confirmation hearings take a while. You gotta take a serious look at it. My own information is that Thomas is not thinking of retiring and Alito is. We shall see. Gentlemen, love you. Thank you.

[Mike Davis]

Thank you.

[Megyn Kelly]

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[Megyn Kelly]

We've got to tell you about big updates in the case against Tyler Robinson, the 22 year old charged with aggravated murder for allegedly shooting and killing our friend Charlie KIRK Back on September 10th at Utah Valley University. It's just, it just still seems so weird. It feels so weird to talk about this like a legal case. You know, it's like the nation is still mourning Charlie. It was literally months ago that he was a regular guest on this program and we and millions of others turned to him for insights and his genius on so many issues, not to mention the Iran war. You know, have you seen, there's sort of like a. There are these proxy fights breaking out over Charlie's legacy. What would he have said? Here's a tweet, here's a clip, here's a. You know, it's like put aside whether you agree with any of it, it's a testament to his relevance, his brilliance, his hard work, how smart he was and how prepared he always was. You know, he studied, he studied, studied, studied. And it was all taken from him and secondarily from us on September 10th when he was shot brutally in the neck. It's impossible to overstate the impact of Charlie Kirk's loss, right? And he was so powerful that many people had reason to loathe him. You know, it's very strange. I'll just say this on a personal note. I mentioned this to you guys recently, but I confess to you, we've definitely had an uptick in serious security issues in the wake of, like this whole Iran stuff and like the bullshit anti Semite stuff. And no person should have to die or be threatened, like, have their life threatened because of their opinions that just shouldn't. You should not have to die because of your opinions. You shouldn't have to die because of your legislating or your executive orders as a politician either. You know, it's like crazy now that this level of political violence is kind of like, yeah, okay, you gotta expect it. Sure, yeah. You could get shot to death because you feel the following. What? That's why Charlie was murdered. He was murdered because of his opinions. And while, you know, the police say it was Tyler Robinson, and I believe it was Tyler Robinson, and I do have real questions about whether his Trans tifa friends helped him or at least knew. They. They very much seem to know in advance of the murder. From the beginning, I've been open to other questions about whether that's true, whether that's right, the police have the right guy. I believe they do. And also whether anybody else might have played a role in it somehow. Okay. And I think that piece of it, Candace Owens has been asking that question. You know, she's taking a hard look at the investigation. Putting aside the stuff with Erica, I've told you a million times how I feel about that. I don't agree with her on Erica Kirk. I think she. We're all. We all be better off if Candace used her considerable investigative skills to focus on other things. But her questions about this investigation are fair game. And she does have some sources. And I think that's the reason, in part, it's not just Candace. Many others have got questions about the investigation here and about whether what we're being told makes sense and does Tyler Robinson. You know, those text messages with the boyfriend sounded fake. I mean, they did sound fake, but that doesn't mean they are fake. And that's why I think this Daily Mail headline got so much attention earlier this week, even though it turns out it was somewhat misleading. The quote was, bullet used to kill Charlie Kirk did not match rifle allegedly used by suspect Tyler Robinson. New court filing claims. So they're saying the bullet didn't match Tyler's rifle. And they're citing a new court filing for that. The Bullet didn't match the rifle. Well, that's. I mean, did you see. I mean, I, too, and I'm in the legal business. Like, whoa. What? What? It's not. It's not quite what it appears, but it. That doesn't mean it's a nothing. All right? And that's what we're going to get into now. Look, if. If it's. If they can get this to a point where they can definitively say that what they found in the autopsy definitely didn't come from Tyler Robinson's gun, he's going to be acquitted. That's not where we are. All right, That's. That's not. There's. There's more to this story. And we took a look at the filing that, that they based this on in the Daily Mail. It comes from Tyler Robinson's defense team, which wants to delay or even vacate an upcoming preliminary. Preliminary hearing so that there's more time for the defense to receive and examine evidence. Here's what they write, quote, regarding the firearm evidence, the defense has been provided with an ATF summary. You know, that's Bureau of Alcohol, Tobacco and Firearms with an ATF summary report. Okay, so this report comes from the government, which indicates that the ATF was unable to identify the bullet recovered at autopsy to the rifle allegedly tied to Mr. Robinson. Unable to identify the bullet to the rifle. It's a weird phrasing. It's not exactly the most articulate way I think you could say this, but the. The atf, according to the defense, is saying it could not identify the bullet to the rifle used. That ATF summary report has not been made public and nor has it been provided in full to the defense. We know from their filing they've only received a summary of it, and they haven't. So they haven't received. Excuse me, the full report. They've only received the summary, and we, the public, have received neither. But there was another filing earlier this month from media organizations who are seeking more access to documents in this case, by the way, still unclear whether we're going to be allowed to have cameras in the courtroom and watch this trial. The judge better allow this. I mean, this is. Erica wants it, the media wants it. Charlie was killed on camera. And there's been so many questions swirling around this. If they keep the media out, it's going to be worse than if they let us in. In any event, the media has to fight for every damn brief to get access to the documents in the case. It's ridiculous. Court proceedings are open to the Public, we pay for them. We are the ones who are endangered by the people who are tried inside of these courtrooms. And we have every right as the people's representatives to be inside these courtrooms. But, but okay, I digress. So the media has filed a motion to seeking more access to documents in the case that happened earlier. And the media's lawyers were able to see this ATF summary and they wrote in their brief that it features quote, a comparison between a bullet jacket fragment, so like the casing of the bullet, not the actual like bullet itself recovered during an autopsy of Charlie Kirk and a rifle recovered by law enforcement. Okay, so they see that there's been a comparison between, they say a bullet jacket recovered and the rifle. The filing quotes one sentence directly from the ATF report. Quote, the result of the comparison was inconclusive. Okay, so maybe not as dramatic as we were led to believe by the Daily Mail, but interesting. I mean inconclusive is not the same thing as did not match. So what are they trying to tell us? I mean I think a lot of people were very confused, but we are no longer confused because we've done some investigation with our gun experts and our legal experts. And you're not gonna be confused after you hear this segment either. Andrew Branca is an attorney and self defense law expert who has significant experience with firearms and criminal defense attorney and MK True Crime host Mark Garagos is also with us. He knows a thing or two about what he would do with this evidence and whether it is or is not a significant deal. Andrew, let me start with you. As somebody we've gone to repeatedly on firearms and self defense and so on your take on what this. Put aside the Daily Mail headline, but what, what does this actually mean? The, what is the ATF trying to tell us?

[Andrew Branca]

Well, I mean it's mostly a big nothing to tell you the truth. It's not an all unusual to have difficulty making a match between a, a bullet recovered on autopsy and a firearm. You don't actually even need the bullet, of course, to find someone guilty of having fired the bullet. So it's nice, it would have been nice for the prosecution if they could have had a high probability definitive match with the rifle. They would have liked that. It would have been great for the defense if some grotesque characteristic of the round like the numbers of lands and grooves, the rifling on the bullet were distinctly different than in the rifle. So you, you would have a definite exclusion. But all we have here is an inconclusive result and frankly it doesn't Surprise me. It's not unusual to fire a bullet, especially a high power rifle bullet, into a human body, end up with a lot of fragmentation. The jacket strips off of the lead core, it fragments into a bunch of pieces that are. Some of which are recovered from the body, others are not. They're just dispersed within the tissue. And it's just unable to come to a definitive conclusion of identifying a match between that round and the firearm mark.

[Megyn Kelly]

The defense seems to be objecting to the ATF having another bite at the apple going at this again. They'd like it, I think, to stand where it is. When you read that not, not the Daily Mail headline, but when you found out that this is what the ATF has said, this is the government saying that in its summary report that the ATF was unable to identify the bullet recovered at autopsy to the rifle allegedly tied to Mr. Robinson, what was your reaction?

[Andrew Branca]

My reaction was very similar to yours. I mean, the reason I went and looked at the motion because I thought the headline had excluded it. Once I saw or took, I read the motion, then I realized that it was not an exclusion. However, this is a criminal case. Criminal case requires proof beyond a reasonable doubt. Any time as a defense lawyer you see something that says inconclusive, you're going to jump all over that, number one. Number two, one of the problems with this kind of testing and the testing that may be done here and why the defense would be objecting is they want to do the testing themselves at this point. They don't want the ATF or FBI or some outside lab destroying the remaining sample if it's microscopic before they've had a chance to do their own testing. There are other tests that can be done. I've done other tests. I haven't done it, but I've had experts do other tests where they can match up metallurgical kinds of analysis, other kinds of analysis that will attempt to exclude this bullet fragment. I would not be dismissive here of the ability of the defense to use this and use this well, because what you pointed out to some of these text messages to me just sound fake. And they sound kind of, I don't know, almost like they were AI created.

[Megyn Kelly]

And if I sound like a Gen

[Andrew Branca]

Z young man, it does not in the least. It does not, it does not sound authentic for a term that everybody likes to throw around. And when you've got tech that seem phony and you've got an inconclusive test, if you're the defense, it's almost malpractice not to Be running down that test and doing your own tests. And I'm sure they've already hired a ballistics expert who's all over this thing.

[Megyn Kelly]

Andrew, what can you explain what's going on here? Because there's been a big debate. People who have questions, and they're entitled to them about what happened to Charlie that day have met many people. A lot of gun experts online have questioned the absence of an exit wound. You know, we all saw how, where the entrance wound was and how badly and grievously Charlie was injured, but there wasn't an exit wound and I believe that's not in dispute. Now the Daily Mail did go on to report that this bullet was fragmented inside of Charlie's body and that that also that that can happen. They had experts in there saying that that can happen when even with a bullet that comes from a rifle like this, it can, it can basically shatter, I guess, inside of the victim.

[Andrew Branca]

Yeah, that's right. In fact again, it's not at all unusual. Anyone can google or go on grok or whatever and just ask it to provide examples of high powered rifle rounds that have been shot into human bodies and didn't result in an exit wound. The bullet, bullet was captured within the body. You know, there's what we call terminal ballistics. How the bullet functions and whatever it ultimately strikes is really a matter of probability, not of certainty. Now if someone fired a.30 06 round like this into a human body, the probability is it's going to completely traverse the body and there'll be an exit wound. But that's not a certainty. And it's not unusual that the bullet does weird things as soon as it hits. They can take 90 degree turns, they can enter horizontally a neck and go down into the body. It's not what you would expect to happen, but it happens often enough that it's not shocking and it's certainly not impossible.

[Megyn Kelly]

Do you find it strange, Andrew, at all that the ATF did a test to see what they could match up from the remnants of this bullet. Bullet fragments. By the way, there are two reports here. One says that it was the bullet that they, they, they unable to identify the bullet recovered at autopsy to the rifle. And then that media filing referencing the same ATF summary described it as a bullet jacket fragment that was compared to the rifle. We actually called the authorities and asked whether there's more than one like our is was there analysis done on a bullet and analysis done on a bullet jacket and neither one was conclusive and they told us no, that the Media motion and the defense motion are talking about the same thing. There was one fragment found or at least tested. It's not two separate tests. One's from the casing and one's from the bullet. So for whatever it's worth, some fragment we believe, of the bullet was recovered. But do you find it odd, Andrew, that the atf, being unable to, like I, I'll use their word, I guess, identify that to the gun, then didn't do the more testing that they, that they're now doing? Because the state indicates that the FBI is in the process of conducting a second comparative bullet analysis as well as a bullet led analysis, but these are not yet complete. Now, I'm just thinking, Andrew, that if I'm the prosecution, I'm probably not going to turn any of this over to the defense until I've done all my tests trying to get the best result possible showing a link.

[Andrew Branca]

Well, I mean, there's a tension here, right? So as a prosecution, you're obligated to turn this material over to the defense at some point. Certainly the judge won't like it if you delay excessively in getting this material. So with the prosecution, I mean, they, they do like to delay, right? There's a lot of, there's a lot of evidence in this case. And I've seen many cases in which prosecutors delay as long as possible get it to the defense late in the process. Process that makes it very difficult for the defense to do an adequate evaluation or challenge of the evidence. I've seen prosecutors offices take these enormous volumes of evidence and, and basically bury things inside all of it because they know the defense isn't going to have time to look through everything. At some point, the prosecution has to turn it over. The exact timing of that. They don't want to be castigated by the judge for not having turned it over in a timely manner. That would tend to drive them towards releasing what they have, what they have it, even if it's not the totally comprehensive analysis that would ultimately result and

[Megyn Kelly]

it's not good for the prosecution. Of course, Mark, they have an obligation to turn it over to the defense if it's exculpatory, if it would help. Tyler Robinson but you tell me whether you think this is unusual, that they turned over the thing that was going to be exploited by the defense. And also the defense appears to know, because this comes from their brief, that the state, that the FBI is in the process of conducting a second comparative bullet analysis as well as a bullet led analysis, and that they're not yet complete.

[Andrew Branca]

Well, what's going on here? I am, I've been down this road. I can't tell you how many times they want, they have to turn it over because it is exculpatory. People can diminish it. People can say, well, it doesn't mean this. You can, you can do whatever you want in terms of couching it. It's exculpatory evidence. They've got a duty under Brady to turn it over. That's number one. Number two, you're deal with a fragment. What I always do in this situation, and I've learned this from others who are very well schooled in this, I then say, I want my expert present when you do any further testing, because I'm not going to sit here and wait for you to do the testing. My expert is going to be present number one. Or number two, you can't do any more testing until I make sure that my expert has taken a sample or has reviewed your bench notes and all of your work. Because you do not want a situation where there's going to be something called a trumpetta hitch motion where you've destroyed what remaining exculpatory evidence there is. You knew that you did that. And then there's going to be subject to a motion to dismiss. So the defense is all over this.

[Megyn Kelly]

How is it exculpatory, Mark, when you know what Andrew is saying is you had a bullet go in, it fragmented. You know, I think Andrew's basically saying, of course you're not necessarily going to be able to tie a bullet fragment to this rifle. In particular, like you, you might be able to say, oh, this is the bullet fragment of a 9 millimeter. That's not what was used by Tyler Robinson. So that's very exculpatory. But that's not what they have here. They're just saying, this bullet was so torn up, we can't positively say it came from this weapon. So my question is, how is it exculpable?

[Andrew Branca]

Yeah, look under Brady and then it's yeah, under Brady and to some degree, lesser degree, giglio, anything that diminishes the case. Remember, the prosecution has to prove this case beyond a reasonable doubt. When you have a forensic test that is done, that comes back and it's inconclusive by definition. That's a lesser standard than beyond a reasonable doubt, which is certainty to some degree. And so. So that by definition is exculpatory. That is why they turned it over. That is why, by the way, all you need to know about the prosecution is the Fact that they've already turned that over to another agency, namely the FBI, to do secondary testing. They recognize the fact, no matter how they couch it, no matter how forward facing or public facing, they try to diminish it. They recognize that it's exculpatory. That's why they're doing further investigation, further testing. And that is that, to my mind, is exactly why the defense is honing in on this. Yeah.

[Megyn Kelly]

Do you think?

[Andrew Branca]

I do agree with Mark in the sense that, of course, you know, it's not the job of the defense to prove Tyler Robinson innocent. Right. There's no innocence in court. It's their job to prevent the state from proving him guilty beyond a reasonable doubt. So in that sense, anything that does not advance the prosecution's movement towards proof beyond a reasonable doubt is helpful to the defense, of course.

[Megyn Kelly]

And what do you know, anything, Andrew, about what they're doing?

[Andrew Branca]

So it's a great way of putting

[Megyn Kelly]

a second comparative bullet analysis as well as a bullet led analysis. Do you know what a bullet led analysis is, Andrew? Is that toward trying to figure out whether this came from the.30 06 or whether it's, like I said, maybe a 9 millimeter or a 357 Magnum, which would be helpful to Tyler Robinson if it's not?

[Andrew Branca]

Well, I mean, bullet leads come in a lot of different alloys. Some are harder, some are softer. And you can differentiate those with laboratory testing. So they, they'll test the lead from the bullet and then they'll test inside the barrel of the gun and see if those leads can be matched up. And that would, that would be helpful, obviously, for the prosecution, again, whether you're likely to be able to do that or not. Lots of different bullets can be fired through a single gun. You get lots of different leads. Much lead is common among many different types of bullets. So it's very difficult to get an exact match that way. But they're looking for anything they can use to try to tie this bullet to the gun. If they can get that, that's very helpful for the state.

[Megyn Kelly]

Mark, we talked to our pal Shaun Davis over at the Federalist, who knows a thing or two about guns, and he knows a bit about these ATF documents too. And he suggested that the, these sort of, sort of barrel matching, matching this whole process, it's questionable as a valid forensic science at all. He doesn't believe it is. And he said multiple courts are now concluding the same thing. He said, at best, the forensics can tell you whether this bullet was fired from this particular make and model of gun. But it absolutely cannot conclusively determine that this bullet from gun is from gun A and not gun B, when gun A and B are the same make and model of gun. So I think he's suggesting we're asking too much of the ATF here.

[Andrew Branca]

Yeah. And for those who are in the weeds, there's something called the Daubert analysis in California, we call it Sargon. We've got Sanchez, where you challenge the science in these kinds of cases. We've been doing that on ballistic style evidence for a while. You may remember, Meghan, years ago, because I think you covered a couple of these cases out of Texas. The so called arson evidence, which was thought of as state of the art, which is it was admitted into many different murder prosecutions, was later found to just be junk science. And so that is the same kind of analysis has been used for a number of years in various jurisdictions challenging this ballistics evidence. Because there are those experts who will say this is junk science. And the idea of making it akin to fingerprints, which also has some of its own issues, is something that is a hotly contested topic.

[Megyn Kelly]

Want to keep going? Candace does have, she says law enforcement, good sources involved in this case. And she has reported, Andrew, that. That police dogs did not alert to the rifle. That, you know, the rifle was found in a grassy knoll not far from the campus and allegedly it had been fired, allegedly it had been shot, you know, by Tyler Robinson to kill Charlie, which would involve gunpowder. Right. And the reporting, the suggestion is that law enforcement was found that curious too, that the dogs would not alert to the weapon. Your thoughts on it?

[Andrew Branca]

Dogs are imperfect. I mean, you know, they're really good at what they do, but they're not perfect and they miss things on a regular basis. It doesn't. Again, it's a matter of probability. If you asked me would I have expected the dog to find the rifle? I'd say yes. Does it surprise me that it didn't happen? It really doesn't.

[Megyn Kelly]

Is that the kind of thing that could ever come into evidence, Mark, could the defense ever get that into evidence that the dogs did not alert?

[Andrew Branca]

Absolutely. I was just chuckling because I remember doing a one week hearing on dog evidence in the Scott Peterson case. I think you were actually there and at the time, or at least surrounding it, we actually covering it. Yeah. We had extensive hearings about the dog, sent evidence about the dog's ability, whether the handler was guiding it, whether the handler was kind of projecting onto the dog and all of that. It is something that the defense will use, I think, significantly, and you mentioned the term grassy knoll. I think part of the problem here, you know, the late, great Searle Wecht spent almost five decades talking about JFK and a lot of the ballistic evidence there and about whether or not there was a conspiracy and things of that nature. To your point that you originally made, if there are no cameras in the courtroom, this is a recipe for conspiracy gone wild. And that's why there has to be cameras in the courtroom. Speaking of Peterson, my biggest regret in that case is that I agreed with the prosecution not to have cameras in the courtroom. It's a fool's errand. It makes no sense. And in this case, it's going to be something we'll talk about for decades if there aren't cameras, sir.

I mean, there's a lot of ambiguity around a lot of this evidence. Right. And by the way, my perspective is from criminal defense, of course. So I think the defense here is doing everything they're supposed to be doing. There's a lot of evidence in this case consistent with the guilt of Tyler Robinson. And the job of the defense is to attack every piece of that as aggressively as they can. That's their duty to their client. So all these things, of course, should be challenged by the defense. And the most robust environment for that to happen is in the courtroom. I mean, that's why we have courtrooms, Right. It's an adversarial process. The state of brings their experts, the defense brings their experts. Everyone's questioned and subject to cross examination. That's why it absolutely should be televised, so that all of us with an interest in this case can view that battle in real time and have confidence that the right decisions are being arrived at.

[Megyn Kelly]

On to your point on the evidence against Tyler Robinson. Because the reports are that the prosecution feels extremely confident about their chances of a conviction, notwithstanding any of the stuff we're discussing today. And this is some of what they put in the charging document when they charged him with aggravated murder, that law enforcement officers followed his path to the south to the northeast end of the campus, where they believed he left campus and entered a wooded area. In that wooded area, investigators found a bolt action rifle wrapped in a towel. The rifle contained one spent round and three unspent rounds. This is consistent with the facts officers observed at the time of and immediately after the shooting. No shell casings were found on the roof, suggesting a bolt action rather than an auto loading weapon. And only a single round was fired. I haven't gotten to their best part here. But Andrew, you being the gun expert, can you translate that into plain English for the rest of us?

[Andrew Branca]

Well, I mean, either, either a semi automatic rifle would tend to eject the case that you just fired. A bolt action, you'd have to cycle the bolt to get the case ejected. In either case, someone can just pick up the case and take it with them when they leave. So I'm not sure exactly what point they're trying to get to there.

[Megyn Kelly]

Okay. And that was his, his gun that he, you know, that we've all seen. That picture of that old fashioned gun is a bolt action that would hold

[Andrew Branca]

on to the casing if you didn't cycle the bolt. The case stays inside the action and they go on.

[Megyn Kelly]

The rifle, ammunition, rounds and towel were sent for forensic processing. DNA consistent with Robinson's was found on the trigger. Other parts of the rifle, the fired cartridge casing, two of the three unfired cartridges, and the towel. And now, Mark, I imagine if you're looking at that last piece as a defense lawyer, you're not loving it. You're not loving it. But you tell me what you do with that. That they can prove Tyler touched some of this stuff, but they have to go past that. They have to prove that he actually fired the shot, the actual shot. And that's why we have to look at the bullet and try to tie that to him.

[Andrew Branca]

Correct. But you know, ironically, if I'm defending this case, the thing that gives me the most pause about the gun and the bullets and everything else are if you believe the texts that they have about worrying whether his dad is going to see it or recognize it or it's his grandfather's gun. But those are the things that give me the most pause because in order.

[Megyn Kelly]

But if those are fake.

[Andrew Branca]

If those are fake. Right. Then, by the way, if those are fake, everything else falls by the wayside because you can argue.

[Megyn Kelly]

Very good point.

[Andrew Branca]

Right. I mean, that's the. That's kind of the wedge. If you get past that, then. Then you're off to the races. If you're the defense.

[Megyn Kelly]

Right. Because let's keep in mind what we're really. Well, we. I mean, if they're fake, we'd like to know, but we're really kind of arguing if the defense can convince the jury that they're fake, then the whole case could go. Because the defense can convince the jury they're fake, then the defense is convincing the jury that the case is fake. News. Go ahead, Mark.

[Andrew Branca]

Yeah, well, I was going to say one of the greatest instructions you get In a criminal case talking about either reasonable doubt or a witness willfully false, if you can show that some material, something that's important, something that matters to the prosecution is false, and that a witness falsely produces that evidence, testifies to that evidence. There's an instruction that you get in almost every jurisdiction that says you can disbelieve everything. So that is, you know, that's generally a witness willfully false is a, the centerpiece of a defense case. And that's why I say if you can pull on a string and you can get them to admit or get a witness to concede that they were false about something, everything else can go, can fall apart. It's a house of cards instruction.

[Megyn Kelly]

But Andrew, we, one of the things that we have now learned from this same defense filing that spoke about the bullet, wrote about the bullet, is that the defense has revealed that the prosecution is going to be calling as its witnesses Tyler Robinson's parents and his lover, the furry, the trans furry, Lance Twigs. And let's just, let's start with the transferry lover. That's the one with whom Tyler Robinson was allegedly texting the weird sounding texts that sound like sort of old English almost. I mean it's just doesn't sound like a Gen Z, young man. But Tyler Robin or Lance Twigs will presumably, if he's going to get called by the prosecution, stand up there and say, not only do I confirm those are my texts with Tyler, but let me show you a litany of other texts between me and Tyler where we often sound like we are old English or we are from a Renaissance fair and speak like this to one another. You gotta laugh where you can and that'll be very helpful like if that's what he's going to do, if he's not like some sort of hostile witness, but he's really cooperating and at a bare minimum authenticates those texts, then isn't this whole debate about whether they're real done?

[Andrew Branca]

Well, I mean, we have to keep in mind, of course, in any criminal prosecution, nobody knows what actually happened with absolute certainty, especially not the jury. Right. The jury's supposed to come in like a blank piece of paper. What, what the jury's hearing is two stories in the courtroom. They're hearing a story of guilt from the prosecution and a story of not guilt from the defense. And you read the information before and listen, anytime you read an information that's of course created by the state, that's their narrative of guilt. It always sounds great until it's challenged in court. This kid is going to come and he's going to testify. He's going to be subject to direct examination by the state and will probably be a good witness for the state if they've prepared him properly. But then he's subject to cross examination, and it's not at all common to see a fantastic witness on direct completely collapse on cross. And of course, that's the job of the defense. So we won't know that until it happens again. That's a reason why this needs to be televised, so we can observe that for ourselves and not rely on media reports on what's happening. The other thing I wanted to mention is you talked about this motion of the defense that we're all discussing. To me, the really interesting part wasn't actually the rifle stuff per se, the ballistic stuff. It was the DNA stuff. I mean, obviously it would be very helpful for the state to have this DNA connection between Tyler Robinson and the rifle. But in fact, there's only very tiny amounts of DNA that they're able to test, and they're using a technique to test it that is relatively new and novel and not demonstrated as being robust. It's been rejected by a whole bunch of federal and state courts. And I think that that's going to be even a more robust avenue of attack for the defense because it's bad for the defense if they have the DNA link. It's great for the defense if they can get that evidence excluded so the jury never hears it in the first place.

No. It's fascinating.

[Megyn Kelly]

The motion in part. Mark. Well, I'll give it to you, but let me just read you in part what they say about the DNA in the motion. Robinson says DNA reports by the FBI and ATF will take time for the defense to analyze because the reports indicated that multiple quantities of DNA were found on some of the items of evidence. Evidence, quote, the summary DNA reports produced to date by the FBI and ATF indicate that both agencies recovered minute quantities of DNA on various items of evidence, which the reports opine, consist of mixtures of up to five or more individuals. Five or more is in quotes. So this is the defense quoting from the government's summary report. And then they go on to say, as these cases indicate, determining the number of contributors to a DNA mixture and determining whether the FBI and the ATF reliably applied, validated and correct scientific procedures is complicated. It requires time. So they're saying themselves that they glean from the governor government's report that some of the DNA has mixtures of up to five or more Individuals and they describe the amounts as quote, minute. Mark.

[Andrew Branca]

So there's two problems, and Andrew Ably pointed out the first one when it comes to DN is there is going to be a, have to be a hearing that is done onto the admissibility. Number one, because the report itself, and I'm to some degree speculating because we're only getting selective quotes out of the report, but I will speculate wildly that there's going to be a very contested, heated battle over the admissibility of any of this DNA evidence. Number one, then if it gets admitted and somebody says, okay, this is reliable or it's something that should be admitted, there's going to be a further battle over whether or not there is transference or whether or not this is a adequate safeguards were taken for the chain of custody. The other problem with the witness that they put on the list, which is the roommate, lover, whatever you want to characterize. I don't think for a second I would be shocked if this person did not invoke the Fifth Amendment. If I'm representing that guy, I'm saying go pound sand. You're, you want to, you want this person to testify. I'm not testifying. Absent immunity. And then the prosecution has to make the decision are we going to give transactional, we're going to give use immunity to this person before we know what they're going to say.

[Megyn Kelly]

And by the way, object to the use of the word person.

[Andrew Branca]

Yes.

[Megyn Kelly]

We're not sure it's a furry of some sort.

[Andrew Branca]

I was actually going to say ironically, transfer for DNA and here. But I didn't want a bad dad joke.

[Megyn Kelly]

So wait, let me ask you on a procedural matter then, because the reason we know that Lance Twiggs is going to be called by the prosecution, I mean, I think we assumed it since he was corresponding with Tyler in the moments after the crime and obviously in the days prior. That doesn't mean he's agreed to testify for the prosecution, though. The reports are that he is cooperating with them. Those are the reports. But you're saying that none of that means he's not going to take the stand and assert his fifth Amendment. He may yet still do that.

[Andrew Branca]

Well, when he, if he's got a lawyer or somebody close to him who's telling him, hey, do you see what the defense is doing here? He's going to figure out pretty soon or pretty quickly that the defense is going to be challenging his role in all of this. And if that's the case and he's got he lawyers up, he'd be foolish to not assert his fifth Amendment rights and get some kind of immunity.

[Megyn Kelly]

Well, I think he's cooperating so far and I think the parents. Well, I don't know what the parents are doing in fairness, but there's. We got to get into the parents next and what they've done so far and what the defense is now saying about them. Can you guys stick around for a few more minutes? We're a quick break and come right back to Andrew and Mark. Okay. Don't go away. When you are in a business growth mindset, you know how much the basic stuff matters, like how you talk to customers or clients and keep your team aligned. A more modern setup makes everything run smoother. So I want to tell you about one of our sponsors, Quo spelled Q U O. The modern alternative to running your business communications. Quo works right from an app on your phone or computer. Unless you keep your existing number, add new numbers or teammates, and sync your CRM, your entire team can handle calls and texts from one shared number so there's no mixed messages or missed. Mixed or missed. And Quo's AI automatically logs calls, generates summaries and highlights next steps so nothing gets lost. It can even qualify leads or respond after hours, ensuring your business stays responsive. Make this the season where no opportunity and no customer slips away. Try Quo for free plus get 20 off your first six months when you go to quo.commk that's quo.commk quo. No missed calls, no missed connections. Ever been in a bad relationship? You know, the kind that just wears you down. You settle in even though deep down you know this is not how it's supposed to be. Well, that's what daily aches and pains can feel like. You stop expecting to feel good and you start thinking, I guess this is just my life now. But it doesn't have to be. With Relief factor, you can break up with pain just like Anthony did. He wrote, quote, I was dealing with debilitating pain and fatigue. I've been taking Relief Factor for about two months and now I'm back to running my business, fishing, gardening, doing the things that really matter to me. If you have back pain, knee issues or stiffness slowing you down, Relief Factor could give you your mobility back. Relief factor is 100% drug free. It targets the inflammation that causes pain, helping you move better, feel better, and actually enjoy life again. Try the three week quick start for just 19.95. Go to relieffactor.com or call 800 for relief. Break up with pain and get Back to what matters.

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[Megyn Kelly]

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[Megyn Kelly]

Hey, everyone, it's me, Megyn Kelly. I've got some exciting news. I now have my very own channel on Sirius xm. It's called the Megyn Kelly Channel. And it is where you will hear the truth unfiltered, with no agenda and no apologies. Along with the Megyn Kelly show, you're gonna hear from people like my Mark Halperin link, Lauren, Maureen Callahan, Emily jasinsky, Jesse Kelly, RealClear Politics, and many more. It's bold. No BS news only on the Megyn Kelly Channel, SiriusXM 111 and on the SiriusXM app, Andrew Branca and Mark Garagos are back with me. So the other big thing that jumped out at me in this is that the defendant says the prosecution's calling Tyler Robinson's parents and their spousal privilege, Right? They can't compel you to testify against your spouse in a criminal court of law. But they. There's no mother son privilege or, you know, father son or parent child. So these two, I guess, could be called. And they're not subjected, thank you, to any. They don't have any criminal exposure in this whole thing. And here is what we know from earlier on in this case from again, the criminal information, which is the charging document for Tyler. It describes him as turning himself in with his parents. All right, this is verbatim what the. What the state alleged on the evening of September 11th. This is the day after Charlie was killed. 2025. As law enforcement continued their investigation, Tyler Robinson went to the Washington County Sheriff's Office with his parents and a family friend to turn himself in. Robinson's mother stated the following to police on September 11, 2025, the day after the shooting, Robinson's mother saw the photo of the shooter in the news and thought the shooter looked like her son. Robinson's mother called her son and asked him where he was. He said he was at home sick and that he had also been at home sick. On September 10, Robinson's mother expressed concern to her husband that the suspected shooter looked like Robinson. Robinson's father agreed. His mother explained that over the last year or so, Robinson had become more political and had started to lean more to the left, becoming more pro gay and trans rights oriented. She stated that Robinson began to date his roommate, a biological male who was transitioning genders. Hold on a second. Yes. Yes. Yes. Okay. This resulted in several discussions with family members, but especially between Robinson and his father who have very different political views. In one conversation before the shooting, Robinson mentioned that Charlie Kerr copied would be holding an event at uvu which Robinson said was a stupid venue for the event. He accused Kirk of spreading hate. Robinson's father reported that when his wife showed him the surveillance image of the suspected shooter in the news, he agreed it looked like their son. He also believed that the rifle that police suspected the shooter used matched a rifle that was given to his son as a gift. As a result, his father contacted the son and asked him to send a photo of the rifle. Robinson did not respond. However, Robinson's father spoke on the phone with Robinson and Robinson implied that he planned to take his own life. Robinson's parents were able to convince him to meet at their home. As they discussed the situation, Robinson implied that he was the shooter and stated that he couldn't go to jail. He just wanted to end it. When asked why he did it, Robinson explained, there's too much evil and the guy Charlie spreads too much hate. They talked about Robinson turning himself in and convinced Robinson to speak with a family friend who is a retired deputy sheriff. At Robinson's father's request, the family friend met with Robinson and his parents met with Robinson and his parents and convinced Robinson to turn himself in. The family friend spoke to police and reported telling Robinson that it would be best if he brought all evidence with him to the sheriff's office to avoid police having to search his parents home. The family friend also asked Robinson if he had any clothes that were related to what he did. Robinson replied that he had disposed of the clothes in different areas. So that's from the police, that's what they say the parents told them. And I mean, Mark, I just feel like that's about as damning as you could get, right? Like, the parents saw the image on TV and they were like, that's Tyler. They saw the gun. They were like, that's the gun Tyler's grandpa gave him. They texted Tyler he didn't have an alibi. They then talked to Tyler and he confessed to them or came as close as possible. And he's talking about how he wants to kill himself, about how he thought Charlie spread too much hate, about how he wanted to end it. And you heard, you know, the other. The other statements that he allegedly said, they convinced him to speak with his friend who was a retired deputy sheriff, and they went from there.

[Andrew Branca]

So I've had, and I'm sure Andrew has had this over the years as well. I can't tell you countless times where when a parent is confronted with their child who is accused of something, the parent either, I don't want to bail them out, leave them in. They've got to learn a lesson, or we got to cooperate or we got to do this or that. To your point, yes. I've never understood why there isn't a parent child filial kind of confidential relationship, but there is not. The, the problem for the prosecution is that, as you saw, people initially, what their reaction is and later on can change dramatically. When the parents realize that, hey, we cooperated, and the next thing they know, the prosecution is trying to kill their kid. They may have a completely different take, number one. Number two, look at the language in the charging document. He implied he said this. There's not a confession. There may be an admission. Those are going to be things that you may find a parent is not so willing to help the government kill their kid when it comes down to it. And the government may say, we don't want to put them in that position. At the end of the day, as far as the family friend, I don't know. I'd have to see what the reports are on that.

And Megan, I wouldn't be so quick to say the parents don't have potential criminal exposure here. I mean, we've had a number of cases in recent years where a child goes to a school and commits a shooting, and the parents are prosecuted and convicted for not preventing their child from accessing the firearm that was used to for that school shooting. And the same kind of argument could be made here.

[Megyn Kelly]

Well, I guess it depends. I mean, what we know that the parents knew prior to this shooting, I. I would base my judgment on the earlier cases, that that won't get them in trouble. But if there's more, if. If it turns out that. That Tyler was writing his parents over and over, I can't stop myself from having the visions. I want to shoot somebody. You know, Charlie Kirk, he's full of hate. Yeah, we might be getting there. I don't know. I doubt it. But. But, you know, I think this is very damning, very damning for Tyler Robinson. And you're right, you're not only going to have the parents potentially, you're going to have the family friend who is potentially going to take the witness stand. And then if Lance Twiggs gets up there and says he did confess, he confessed to me. That back and forth, you know, he says to Tyler in the email exchange, it wasn't you, was it? And Tyler writes back, yeah, it was. I can't remember the exact wording, but it's like there was just some hate can't be negotiated out or what, however he put it. So look, all of the work, it's an interesting discussion because this is how defense attorneys make their case, right, Mark? It's like they don't have some big sweeping normally, like the big aha moment. The bullets from a 9 millimeter, not from this kind of gun. It's the little seeds of doubt around this tiny bit and that tiny bit. The mixed DNA. The bullet wasn't proven to be a match. The parents didn't actually say on the stand what they said to the police. The lover is weird and not credible. Like that's how it's done.

[Andrew Branca]

It's a death of a thousand cuts.

[Megyn Kelly]

Right.

[Andrew Branca]

And by the way, I haven't seen has anybody, and I apologize if this has been done. But one of the first things that I'm sure Andrew does, because we do it with great regularity, is we go and obtain cell phone evidence and we get the tower evidence and we get all of the surroundings, because that is, to my mind, some of the most incredible evidence to either overcome an accusation or inculpate you. I can't tell you the number of cases, death penalty cases, I've handled, where I've actually walked somebody out the door because I had the cell phone evidence,

[Megyn Kelly]

by the way. Mark, do you agree? We talked last week about whether this suggestion that, you know, by Joe Kent, that there were leads about foreign interference in this or foreign involvement in Charlie's murder that he believes were not adequately investigated by the FBI. Our conclusion was that will not come into evidence unless there's more unless there's specifics. But how do you see it?

[Andrew Branca]

The mother of the judge has not been born. That's going to let you get into that. Unless you've got something really solid. They're not going to let you make a, a that case unless you've got something that is demonstrable that ties a link there. I mean it's a great link if you could make it but you've got to have something more than just wild speculation. Look, you know there's a whole, there's a whole third party liability doctrine. Before you can point your finger at at a third party you have to make the case. You have to get over the hurdle of making a plausible case to a judge. He's the gatekeeper for third party liability and that is a classic.

[Megyn Kelly]

He's not going to allow just random. Random.

[Andrew Branca]

Exactly.

[Megyn Kelly]

Thank you both so much. Great to see you both got to thanks for listening to the Megyn Kelly show. No bs, no agenda and no fear.