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

26:02And 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 capes.

26:27Dave Aronberg:There's a little bit more of a clue here, Dave Ehrenberg. 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.

27:09Dave Aronberg: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 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 I'm free to do whatever the hell I want. I know he feels he's free any day. But here is one soundbite in which he was giving the ACLU attorney a little jazz. Sot 6. 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 they may be subject in some degree or respect to the United States.

27:54So 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, oh, 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.

28:23Dave Aronberg:To the contrary, Justice Gorsuch, I embrace that part of Elk v. Wilkins' holding. Justice Gray, of course, wrote both Wong Kim-Hara and... I know, and it's a struggle. 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. okay no one understands a word that was said there 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 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 uh but uh it's interesting i'm gonna try to distill it down because it could It is confusing, but here, in plain language, Justice Gray wrote both the Elk and the Wong Kim Ark of Pittanens.

29:34So it's interesting that 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.

29:59Dave Aronberg: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 I was saying, 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.

30:36Dave Aronberg:And that, in my hypothetical, the English diplomats do. Exactly. 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. Well, look, I think the bottom line is you tell me, Mike, because you you kind of dodged on how you think it went today. You know, but I'm not confident if you were betting about money on it. I think I put money on them. This is going to go against Trump. I think the Supreme Court is going to rule against Trump because I think these justices are being politicians in robes. They're being weak.

31:10They'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 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, their Chinese foreign nationals, their kids go back to China, their Chinese foreign nationals with American birthright citizenship under your interpretation. They never stepped foot in America, but they can mail in their votes.

31:48I 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 and can vote in our elections from China and get welfare sent to China, the Supreme Court's going to lose its legitimacy.

32:13Dave Aronberg:Here's the thing. I'm going to stay with you on this, Mike. Our pal John Yu wrote an editorial on this, and he's an originalist, like most of the conservatives on the high court. And he He made the following point. He's on Dave's side, which you don't always say about John Yoo. 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 the post-9-11 years. He argued, as Dave is arguing, and said, you can't argue this about the 14th Amendment. And unfortunately, it does protect or include the children of illegals.

32:56Dave Aronberg: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. Look, I love John. You maybe this is personal for him, but I would say this, that, no, you don't misinterpret the law.

33:42You 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, you know, maybe they have personal political views on this. 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.

34:30So John Yoo is just dead wrong on this one. Megan?

34:35Dave Aronberg:Unfortunately, Dave, we're not going to. Yeah, go ahead. 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 he used was Chinese and gypsies. And the Congress passed it. Yeah, they actually said they said you're going to give citizenship to China, 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.

35:12And 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 through executive order. The Supreme Court has not decided this issue on illegal aliens. They've decided the issue of lawful and permanent residents, people 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-Qaeda's kids who get to come here. ISIS kids get to come here. You have to have allegiance to the United States.

35:46And 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 illegal aliens. That is a bogus argument. 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.

36:23They couldn't become Americans, and the Supreme Court rejected that. They were lawful and permanent residents, Dave. That was the difference. They had allegiance to 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, Trendy Aragua, who are going to come into our country illegally. And we have 20 million people here because Biden opened our borders. You 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.

36:59But that is not what we agreed to in the 14th Amendment. Well, that's why. Well, Dave. Yeah, go ahead. Yeah.

37:06Dave Aronberg:OK, well, I was just going to say that the reason we can't just amend the Constitution, because I mean, any sane person in 2026 America would understand what Mike is saying. 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.

37:37Dave Aronberg: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 I.D.

38:11Dave Aronberg:and citizenship before they can vote in November? That's a loaded question, Megan. So why are the Democrats want open borders and all these illegals to come in and vote for them? That's a political question. Yeah, exactly. I would say that I don't know any Democrats who say, hey, the key to future electoral success is we're going to have open borders so that we can flood the voting booths with illegals who owe it to us. I know that that's how Republicans think. I haven't heard that on the Democratic side. Maybe it's part of the DSA, the Democratic Socialists of America, which I'm definitely not a part of.

38:50But I haven't heard that talking point on our side of the aisle.

38:56Dave Aronberg:Mike, let's just switch for a minute, if you guys don't mind, because I do want to 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 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 fifty two or fifty three Republicans and we can get it through.

39:35Dave Aronberg: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. 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.

40:04Dave Aronberg: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 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. So I think it'll help the Dems more than it helps the Republicans. 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 percent of Americans, including a super majority of Democrats and even a super majority of minorities.

40:51The 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 Act. 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.

41:35Right. And so at the Article three 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 Thune and Senate Republicans can't pass a piece of legislation with 80 percent 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. Are you worried?

42:03Dave Aronberg:Are you worried, Mike, at all about the elimination of the filibuster? Because that's what you'd have to do. 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's to limit debate. 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.

42:37Dave Aronberg:This is the requirement. This is the requirement to change the filibuster back to an actual speaking filibuster. Well, it already is. Which would require them to actually. 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 vote standing on your feet and debate is going to rule out half of the u.s senate right there i mean you're absolutely right now god forbid you make them work on a weekend just make them work past two o 'clock on thursday and it's amazing what you can get passed in the Senate.

43:28Dave Aronberg: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 a compelling case. Yeah, 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 going to 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 percent figure from the polls. But the SAVE Act is different because the SAVE Act requires documentary proof of citizenship to register.

44:03And that means they're about like, yeah, right. Yeah. Well, you know, there's 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 got to go and you got to go get a paper, a birth certificate, passport just to register to vote. And then there's women about me a river. Well, and then there's women who 69 million who have a different name on their birth certificate.

44:27Dave Aronberg:You're a you're a newlywed. Are you not? You're 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. So many certificates that was just for the Catholic church, never mind 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?

45:05Well, why don't we make it like marriage where I just give my driver's license? You know, why does it have to be that I've got to go reapply?

45:13Dave Aronberg:Because it's so easy to get a driver's license, even if you're not a citizenship. 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. Yeah. How many illegal aliens vote? Really? Women are bad at directions. If it depended on like a directional test to get to the DMV, we might not qualify. I speak for myself. 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 point zero zero one percent.

45:49So this is trying to suppress a vote, not to stop election fraud, which is really non-existent on a widespread basis. and you should have a problem if it's not existing you should have no problem with the save america act if it's if there's not existing illegal aliens voting right but we know that illegal aliens are voting in big numbers let me get back to this let me get back on the subject

46:17Dave Aronberg:of how racist and terrible the republicans are uh 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. 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. 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 um but your your thoughts on whether this argument that trump's raising is racist and the save america act to mike davis racist yeah because i i don't want Chinese birth tours, 1.5 million of Chinese nationals in Beijing voting in American elections.

47:27And I don't want them taking welfare. If that makes me racist, then screw it. I'm racist. I don't care. 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, you should have him on the show sometime.

47:42Dave Aronberg:He should we should have Shan Wu and John Yoo and then we could have quite a debate about all aspects of this tough, tough case. Well, you predict 7-2, possibly Dave Ehrenberg. What do you predict, 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. Why are the Trump-appointed justices so much wobblier than Alito and Thomas. Can I answer that? Truly, why? They were raised in a different generation where 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.

48:31And so when you're trying to be accepted in these elite 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.

48:47Dave Aronberg:Megan, I have another follow up for you. Yeah, go ahead. 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. Dave, you could, anytime you want to come to the Republican Party, Dave, the Democrats hate the Jewish people. Come to the Democrat Party or the Republican Party will take you. I've been very, I've been very concerned like me. We'll take you to 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.

49:28Dave Aronberg: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 or 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.

50:05Dave Aronberg: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? 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.

50:42I 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.

50:52Dave Aronberg:So the solicitor general, is he, is he wishy-washy now? Hell no, John. He's the guy who made the presidential immunity argument for Trump and one the most. No, I heard, I know who sour 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.

51:32Dave Aronberg:You got to 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. We will be right back. If you are looking to make smarter choices for your health this year, consider Riverbend Ranch. Their steaks are not only delicious, they also contain real high quality protein that helps fuel your body. Did you see the recent study that the folks in Sweden who ate meat every day staved off Alzheimer's way better than the folks who didn't? How about that? Eat your beef. It's a complete protein. It contains all nine essential amino amino acids that your body needs to function, and it also keeps you fuller for longer, reducing cravings and snacking.

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54:05Dave Aronberg: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.

54:52Dave Aronberg:What would he have said? Here's a tweet. Here's a clip. Here's a book. 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.

55:38Dave Aronberg: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. And it's like crazy now that this level of political violence is kind of like, yeah, okay, you gotta expect it.

56:21Dave Aronberg: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 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've played a role in it somehow.

56:59Dave Aronberg:Okay. And, and I think that piece of it, Candace Owens has been asking that question, you know, and she, 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.

57:36And does Tyler Robinson, you know, those text messages

57:40Dave Aronberg:with the boyfriend sounded fake? I mean, they did sound fake, but that doesn't mean they are fake. Um, 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, too, and I'm in the legal business like, whoa, what?

58:23Dave Aronberg:What? It's not it's not quite what it appears, but that doesn't mean it's a nothing. All right. And that's what we're going to get into now. Look, 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 not. There's more to this story. And we took a look at the filing 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 hearing so that there's more time for the defense to receive and examine evidence.

59:08Dave Aronberg: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. OK, 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 ATF, according to the defense, is saying it could not identify the bullet to the rifle used.

59:52Dave Aronberg: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.

1:00:24Dave Aronberg: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 OK, I digress. So the media has filed a motion to seeking more access to documents in the case that happened earlier.

1:01:00Dave Aronberg: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. OK, so they see that there's been a comparison between they say a bullet the 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.

1:01:43Dave Aronberg: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 going to 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.

1:02:19Dave Aronberg: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 does this actually mean? What is the ATF trying to tell us? 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 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 would have a definite exclusion but all we have here is an inconclusive result and and frankly it doesn't surprise me it's not unusual to fire a bullet especially a high power rifle rifle bullet into a human body, end up with a lot of fragmentation.

1:03:21The 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.

1:03:39Dave Aronberg:Mark, 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 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? 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 and read the motion, then I realized that it was not an exclusion.

1:04:27However, this is a criminal case. Criminal case requires proof beyond a reasonable doubt. Anytime 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.

1:05:07I 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.

1:05:43Dave Aronberg:And if I've got a Gen 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 texts 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. Andrew, 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.

1:06:23Dave Aronberg:A lot of gun experts online have questioned the absence of an exit wound. You know, we all saw 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 basically shatter, I guess, inside of the victim. Yeah, that's right. In fact, again, it's not at all unusual.

1:07:04Anyone can Google or go on Grok or whatever and just ask it to provide examples of high-powered rifle rounds that have been shot in the human bodies and didn't result in an exit wound. The 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.

1:07:39They can take 90-degree turns. They can enter horizontally in that can 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.

1:07:54Dave Aronberg: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, unable to identify the bullet, recovered an autopsy to the rifle. And then that media filing referencing this 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, was there analysis done on a bullet and analysis done on a bullet jacket? And neither one was conclusive.

1:08:35Dave Aronberg:And they told us, no, 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'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 lead analysis.

1:09:19Dave Aronberg:But these are not yet complete. And 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. 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 do like to delay, right? 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.

1:09:55That 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 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, even if it's not the totally comprehensive analysis that would ultimately result.

1:10:31Dave Aronberg:And 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? Well, what's going on here, and I've been down this road, I can't tell you how many times, they have to turn it over because it is exculpatory.

1:11:08People can diminish it. People can say, well, it doesn't mean this. 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 dealing 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 Trombetta hitch motion, where you've destroyed what remaining exculpatory evidence there is.

1:12:00You 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.

1:12:07Dave Aronberg: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 might be able to say, oh, this is the bullet fragment of a nine 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 exculpatory? Look, under Brady and then it's.

1:12:44yeah under brady and to some degree lesser degree giglio anything that diminishes the case remember that 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 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.

1:13:26They 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, I agree with Mark. Do you think 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. 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.

1:14:14Dave Aronberg:And what do you know anything? They're doing a second comparative bullet analysis as well as a bullet lead analysis. Do you know what a bullet lead analysis is, Andrew? Or is that toward trying to figure out whether this came from the 30-06 or whether it's, like I said, maybe a 9mm or a.357 Magnum, which would be helpful to Tyler Robinson if it's not? 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'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.

1:14:49And 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.

1:15:14Dave Aronberg:Mark, we talked to our pal Sean 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 these sort of barrel 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. And 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 is from gun A and not gun B, when gun A and B are the same make and model of gun.

1:15:56Dave Aronberg:So I think he's suggesting we're asking too much of the ATF here. 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, Megan, years ago, because I think you covered a couple of these cases out of Texas, the arson, so-called arson evidence, which was thought of as state of the art, which was admitted into many different murder prosecutions, was later found to just be junk science.

1:16:35And 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. I want to keep going.

1:17:00Dave Aronberg:Candace does have, she says, law enforcement, good sources involved in this case. And she has reported, Andrew, 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. Dogs are imperfect. I mean, you know, they're really good at what they do, but they're not perfect.

1:17:39And they miss things on a regular basis. It doesn't. Again, it's a matter of probability. If you ask me what 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.

1:17:52Dave Aronberg: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? 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 at the time or at least surrounding it. We actually. 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.

1:18:33And 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.

1:19:15It makes no sense. And in this case, it's going to be something we'll talk about for decades if there aren't cameras there. 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.

1:19:48And 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 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.

1:20:15Dave Aronberg: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.

1:20:52Dave Aronberg: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? Well, I mean, 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.

1:21:27So I'm not sure exactly what point they're trying to get to there.

1:21:31Dave Aronberg:Okay, and that was his gun that we've all seen that picture of, that old-fashioned gun, is a bolt action that would hold on to the casing. If you didn't cycle the bolt, the case stays inside the action. And they go on. 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 right 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 done.

1:22:42Those are the things that give me the most pause, because in order. But if those are fake, if those are fake, right, then you get by the way, if those are fake, everything else falls by the wayside because you can argue. Very good point. Right. I mean, And 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.

1:23:06Dave Aronberg:Right, because let's keep my what we're really what 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 away 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. 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.

1:23:54So 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.

1:24:14Dave Aronberg:But, Andrew, 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 Twiggs. And let's just, let's start with the trans-furry 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 just doesn't sound like a Gen Z young man. But Tyler Robinson or Lance Twiggs 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.

1:25:23Dave Aronberg:You got to 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? 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 is supposed to come in like a blank piece of paper. What what the jury is 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.

1:25:57And you read the information before. And listen, any time 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 in. 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.

1:26:30Again, 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 uh and i think 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.

1:27:28No, it's fascinating. This is what they say in the motion

1:27:30Dave Aronberg:in part, Mark. I'll give it to you. 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. 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.

1:28:11Dave Aronberg: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, blah, blah, blah, blah, blah. So they're saying themselves that they gleaned from the government's report that some of the DNA has mixtures of up to five or more individuals, and they described the amounts as, quote, minute, Mark. So there's two problems, and Andrew ably pointed out the first one when it comes to DNA, 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 is going to be a very contested, heated battle over the admissibility of any of this DNA evidence number one.

1:29:11Then if it gets admitted and somebody says, OK, 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 want this person to testify? I'm not testifying.

1:29:54Absent immunity. And then the prosecution has to make the decision. Are we going to give transactional, are we going to give use immunity to this person before we know what they're going to say?

1:30:07Dave Aronberg:Object to the use of the word person. We're not sure. It's a furry of some sort. I was actually going to say, ironically, transfer for DNA and here, but I didn't want a bad dad joke. 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 him. 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.

1:30:48Dave Aronberg:He may yet still do that. 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. 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.

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1:34:48Hey, everyone.

1:34:49Dave Aronberg:It's me, Megan 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 going to hear from people like Mark Halperin, Link Lauren, Maureen Callahan, Emily Jashinsky, Jesse Kelly, Real Clear Politics, and many more. It's bold, no BS news, only on the Megyn Kelly Channel, Sirius XM 111, and on the Sirius XM app.

1:35:22Dave Aronberg:Andrew Branca and Mark Garagos are back with me. So the other big thing that jumped out at me in this is that the defense 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 there's no mother-son privilege or 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.

1:36:07Dave Aronberg:It describes him as turning himself in with his parents. This is verbatim 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 11th, 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.

1:36:40Dave Aronberg:He said he was at home sick and that he had also been at home sick on September 10th. 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.

1:37:16Dave Aronberg:In one conversation before the shooting, Robinson mentioned that Charlie Kirk 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.

1:37:53Dave Aronberg: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.

1:38:29Dave Aronberg: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.

1:39:05Dave Aronberg: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. 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've got to cooperate, or we've got to do this or that.

1:39:58To your point, yes, I've never understood why there isn't a parent-child filial kind of confidential relationship, but there is not. 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's 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.

1:40:54And 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 for not preventing their child from accessing the firearm that was used for that school shooting. And the same kind of argument could be made here.

1:41:27Dave Aronberg:Well, I guess it depends. I mean, what we know that the parents knew prior to this shooting, I would base my judgment on the earlier cases that that won't get them in trouble. But if there's more, if it turns out 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, 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.

1:42:00Dave Aronberg: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 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 there was some hate can't be negotiated out or whatever you 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 bullet's from a nine millimeter, not from this kind of gun.

1:42:35Dave Aronberg: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. It's a death of a thousand cuts. Right. 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 the tower evidence and we get all of them surrounding because that is, to my mind, some of the most incredible evidence to either overcome an accusation or inculpate you.

1:43:29I 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.

1:43:38Dave Aronberg:By the way, Mark, do you agree? We talked last week about whether this suggestion that, 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? 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 that case unless you've got something that is demonstrable that ties a link there.

1:44:17I 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 third-party liability doctrine. Before you can point your finger 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 third-party liability. Yeah, he's not going to allow just random, random.

1:44:48Dave Aronberg:Exactly. Oh, I got to run because we're out of time. Guys, thank you both so much. Great to see you both. Got to run. Take care. Thanks for listening to The Megyn Kelly Show. No BS, no agenda, and no fear.

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