The Megyn Kelly Show - 20211116_rittenhouse-trial-heads-to-jury-and-okeefe-raided-
Aired: 2021-11-16
Duration: 01:29:27


=== Proving Provocation and Violence (09:34) ===

[00:00:00]  And now, watch the Kix.
[00:00:01]  Kix can fertig grenzenless mangy selfies.
[00:00:04]  The suit, handling a good exit in a crush detail.
[00:00:07]  Men, more than a bit, a reddish dress.
[00:00:10]  Odukan alti handled for Kix.
[00:00:12]  So, yeah, will come to grenzenless me beauty, connect or your bit.
[00:00:17]  Who's Kix?
[00:00:18]  Beauty Unlimited.
[00:00:20]  Welcome to the Megan Kelly Show, your home for open, honest, and provocative conversations.
[00:00:32]  Welcome to the Megan Kelly Show.
[00:00:33]  I'm Megan Kelly.
[00:00:34]  What a day we have for you.
[00:00:36]  The jury is now deliberating the case of Kyle Rittenhouse, a now 18 year old man accused of intentionally murdering one man, attempting to murder another, recklessly killing a third man, and endangering two others.
[00:00:51]  This happened at a Black Lives Matter riot in Kenosha, Wisconsin in August of 2020.
[00:00:57]  The defense does not dispute that Rittenhouse shot and killed two men that night and shot and injured another.
[00:01:02]  Instead, it claims it was done in self defense, which, if true, Would entirely exonerate Kyle Rittenhouse and require an acquittal.
[00:01:10]  When a defendant asserts a colorable claim of self defense in Wisconsin, the burden is on the prosecution to disprove it, not on the defense to prove it beyond a reasonable doubt.
[00:01:20]  A self defense claim requires four questions to be answered by the jury.
[00:01:24]  One, was Rittenhouse here facing an unlawful, forcible attack against him?
[00:01:29]  Two, was that attack imminent, meaning in progress or about to occur?
[00:01:33]  Three, was his response proportional, meaning was the defendant, he, Rittenhouse, facing great bodily harm or death?
[00:01:39]  In other words, you can't shoot somebody who's coming at you with a toothpick.
[00:01:42]  And four, was the defendant's response reasonable, knowing him and all of his background, as well as reasonable in the eyes of an objective observer?
[00:01:52]  Here, the Assistant District Attorney Thomas Binger challenged each of these elements.
[00:01:56]  For example, he's arguing that in the case of the first man shot, this is very, very important, the first incident, Joseph Rosenbaum, that Kyle Rittenhouse was not facing an imminent, unlawful, deadly attack.
[00:02:09]  That Rosenbaum, Was chasing Kyle Rittenhouse, but Rosenbaum had no gun.
[00:02:16]  That Rittenhouse, as the ADA put it, brought a knife to a fist fight, and that Rosenbaum was not lunging for Rittenhouse's gun.
[00:02:27]  The only way that you could possibly justify the murder of Joseph Rosenbaum is if you believe that Joseph Rosenbaum was actually reaching for the defendant's gun and that a reasonable person.
[00:02:44]  In the defendant's position, with that AR 15 strapped tightly to his chest, would think that Joseph Rosenbaum was even capable of taking that gun away as he's falling to the ground with a fractured right pelvis.
[00:02:59]  And then, not only all that, you'd also have to believe that Joseph Rosenbaum was going to turn that gun around and use it to kill the defendant.
[00:03:10]  You have to believe all of those things to justify the murder of Joseph Rosenbaum.
[00:03:18]  Binger argues that once Rittenhouse shot Rosenbaum, Rittenhouse then became an active shooter in the eyes of the mob, and that everyone who attacked him after that had the right to do so since they all believed Rittenhouse was a threat, all of which the defense disputes.
[00:03:37]  They say Rittenhouse ran toward police.
[00:03:39]  This is the defense countering that Rittenhouse ran toward police after he shot Rosenbaum, that Rittenhouse could have shot many other people after shooting Rosenbaum if he were really an active shooter.
[00:03:51]  And that he clearly was not on some active killing spree.
[00:03:54]  That Rittenhouse only shot the next two men, Anthony Huber and Gage Grosskreutz, when they attacked Rittenhouse.
[00:04:01]  And those attacks are on camera and are rather clear.
[00:04:06]  The problem for the prosecution is that even if we assume those later two guys, Huber and Grosskreutz, in attacking Rittenhouse genuinely believed, as the ADA claims, that Rittenhouse was an active shooter who needed to be stopped, that would not eliminate Rittenhouse's right to self defense.
[00:04:25]  It's Rittenhouse's state of mind that matters, not that of the men he shot.
[00:04:31]  Did he or did he not reasonably believe that these men were trying to kill him?
[00:04:37]  The ADA knows that he's going to lose on the self defense elements, I think.
[00:04:42]  So his argument has shifted since the start of this trial.
[00:04:46]  Now he's focused mainly, not entirely, but mainly on convincing the jury that Rittenhouse can't really even claim self defense because he's the one who provoked this entire thing.
[00:04:56]  Provocation, as we discussed last week, can indeed eliminate.
[00:05:01]  One's right to claim self defense, but only in two circumstances.
[00:05:06]  One, where the defendant intentionally tries to provoke an attack on himself because he wants to murder the person he's provoking.
[00:05:15]  That's not this case.
[00:05:16]  Or two, the defendant engages in an illegal act that is reasonably likely to provoke violence.
[00:05:24]  That's what Binger seems to be arguing that Kyle Rittenhouse broke the law in a way that was reasonably likely to provoke violence and thus loses the.
[00:05:32]  The ability to claim self defense.
[00:05:34]  By the way, you still can claim self defense even in that circumstance if what happens to you is an attack on your life.
[00:05:41]  Get to that later.
[00:05:43]  Binger realized late in the trial he was going to need this argument provocation once he likely realized that Rittenhouse had made the elements of self defense, or rather, that he, Binger, had failed to disprove each element of self defense.
[00:05:57]  And the defense counsel, in his closing argument, pointed all of this out to the jury.
[00:06:03]  Think back to back on November 2nd when this case started.
[00:06:08]  Did you hear one word out of Mr. Binger's mouth about provocation?
[00:06:14]  You didn't because it was never said.
[00:06:17]  But when his case explodes in his face, now he comes out with provocation.
[00:06:24]  Why is that a problem?
[00:06:26]  Because one, he's lying, two, he's misrepresenting, or he wasn't prepared when he started this trial.
[00:06:36]  And his closing argument has been a change to try and fit what has come out.
[00:06:41]  Okay, so the ADA has got to prove then, to prove provocation, which takes away self defense, that Kyle Rittenhouse provoked this thing, that Kyle Rittenhouse engaged in illegal conduct that was reasonably likely to provoke violence against him.
[00:06:56]  Initially, Binger claimed that Kyle's illegal conduct was that he had a rifle at age 17.
[00:07:01]  That charge got thrown out.
[00:07:03]  And now the alleged illegal behavior, likely to provoke violence, appears to be Rittenhouse's.
[00:07:09]  Alleged behavior, alleged, of pointing his AR 15 just before all of the mayhem at a guy named Joshua Zeminski, who was either connected to, a friend of, or just near Joseph Rosenbaum, the first man shot.
[00:07:28]  Rittenhouse denies this, right?
[00:07:29]  He denies that he pointed his gun at Zeminski, Rosenbaum, or anybody else until the moment that led to Rosenbaum's death.
[00:07:38]  But the prosecutor says he's got the moment where Rittenhouse pointed the gun at this guy Zeminski on tape.
[00:07:44]  In a last minute addition to the prosecution's case, the ADA introduced drone video showing this alleged big, big moment.
[00:07:52]  But the video and the screen grab allegedly showing this moment of the pointing of the gun is incredibly sketchy, it's blurry.
[00:07:59]  It is blown up beyond the point of reliability.
[00:08:01]  Here you can see the smaller version and the bigger version.
[00:08:04]  You can't see anything.
[00:08:05]  Even the judge pointed this out.
[00:08:07]  And so it's just past the point of reliability.
[00:08:10]  And even if the jury believes somehow, sees in this blur, somehow that it's a threat, that it's somebody pointing their gun, there's a serious question of whether it's Rittenhouse.
[00:08:21]  You can't even see who it is.
[00:08:23]  It appears at best to show a man holding, perhaps pointing, I don't know, his rifle with his left hand up against his left shoulder.
[00:08:31]  Rittenhouse is right handed.
[00:08:32]  His gun is for a right handed person.
[00:08:35]  The defense pointed out in their closing argument that firing a right handed gun from one's left shoulder would result in shell casings coming out into the shooter's own eye.
[00:08:46]  It's just not done.
[00:08:47]  The prosecutor nonetheless argues this is Kyle Rittenhouse pointing his rifle at Zaminski before everything got underway.
[00:08:54]  That Zaminski and Rosenbaum would then run after Kyle Rittenhouse.
[00:09:00]  Again, both sides are kind of disputing whether Zaminski and Rosenbaum are tight or not tight or know each other or don't know each other.
[00:09:06]  But at least we're near each other.
[00:09:07]  And these two run after Kyle Rittenhouse, who takes off.
[00:09:11]  The ADA argues essentially that Rosenbaum chased Rittenhouse because Rittenhouse asked for it.
[00:09:16]  Kyle Rittenhouse says Rosenbaum was a threat to him that night.
[00:09:21]  Both Kyle Rittenhouse and another witness testified that Rosenbaum, again, the first man shot, threatened Rittenhouse earlier that night, saying he, Rosenbaum, would kill Kyle Rittenhouse if he got him alone.

=== The DA's Closing Argument (15:47) ===

[00:09:34]  The prosecutor says it's not on tape.
[00:09:36]  And that it's a lie that Kyle came up with later to protect his rear end.
[00:09:41]  After Kyle Rittenhouse allegedly pointed that gun at Zaminski, right, as allegedly this blurry shot shows, who's near Rosenbaum, that's when the two of them chase Kyle.
[00:09:52]  And during that chase, Zaminski fires a gun into the air.
[00:09:57]  Kyle Rittenhouse turns, and Rosenbaum, rather than retreating, remember, he's right behind Kyle at this point.
[00:10:04]  A gun goes off.
[00:10:05]  Kyle turns around.
[00:10:06]  Rosenbaum's right there with his AR 15.
[00:10:09]  And rather than retreating, Rosenbaum throws a bag at Kyle Rittenhouse and lunges at him and his gun.
[00:10:18]  Rittenhouse then shoots Rosenbaum four times.
[00:10:20]  The prosecutor takes issue with the four shots and he says Rosenbaum posed no threat, that there was not only an imminent threat to Kyle's life, but that there was no threat, that Rosenbaum was unarmed, that he was incapacitated after the first shot, and that Rittenhouse should have stopped right there after he had injured Rosenbaum's pelvis.
[00:10:43]  And that from that point forward, says the ADA, Rittenhouse was, quote, an active shooter.
[00:10:52]  So, what does he do that night?
[00:10:55]  Oh, let me tell you all the awful things Joseph Rosenbom did.
[00:10:59]  He tipped over a porta potty that had no one in it, he swung a chain, he lit a metal garbage dumpster on fire.
[00:11:10]  Oh, and there's this empty wooden flatbed trailer.
[00:11:13]  That they pulled out in the middle of the road and they tipped it over to stop some bearcats and they lit it on fire.
[00:11:20]  Oh, and he said some bad words.
[00:11:21]  He said the N word.
[00:11:28]  If he were alive today, like Joshua Zeminski, I'd probably try and prosecute him for arson, but I can't because the defendant killed him.
[00:11:35]  So that's the DA arguing Rosenbaum, you know, caused some trouble.
[00:11:40]  He was sort of a rabble rouser, but that he.
[00:11:44]  He didn't deserve to be shot, right?
[00:11:47]  That he posed no real threat to Kyle Rittenhouse.
[00:11:51]  Now, the defense says they've got it all wrong.
[00:11:56]  Rosenbaum, who we know, we, the jury doesn't know this because the judge excluded it.
[00:12:01]  But we know Rosenbaum was a convicted child molester.
[00:12:04]  I mean, bad stuff, convicted of raping young boys between the ages of five and 11.
[00:12:09]  Bad guy.
[00:12:11]  Just got out of a mental institution, was off his meds, was looking for trouble.
[00:12:15]  That piece, looking for trouble, the defense was allowed to say.
[00:12:19]  There's plenty of evidence admitted that he was no angel on that particular night, but none of the bad criminal stuff came in.
[00:12:28]  The defense, nonetheless, tried to make the case to the jury that Rosenbaum. had been suspiciously behaving all evening.
[00:12:35]  Listen.
[00:12:37]  This case is not a game.
[00:12:41]  It is my client's life.
[00:12:44]  We don't play fast and loose with the facts, pretending that Mr. Rosenbaum was Citizen A number one guy.
[00:12:54]  He was a bad man.
[00:12:55]  He was there.
[00:12:56]  He was causing trouble.
[00:12:58]  He was a rioter.
[00:12:59]  And my client had to deal with him that night alone.
[00:13:05]  Kyle shot Joseph Rosenbaum to stop a threat to his person.
[00:13:10]  And I'm glad he shot him because if Joseph Rosenbaum had got that gun, I don't for a minute believe he wouldn't have used it against somebody else.
[00:13:18]  He was irrational and crazy.
[00:13:23]  From that point forward, the ADA's case is pretty much that those who advanced on Kyle Rittenhouse were trying to stop a murderer who was endangering their lives and the lives of others.
[00:13:32]  He has to claim that because Anthony Huber.
[00:13:36]  The man who attacked Kyle Rittenhouse with a skateboard is on tape doing that.
[00:13:40]  And he reached for Kyle Rittenhouse's gun.
[00:13:42]  It's clear self defense by Kyle Rittenhouse, unless he provoked it, right?
[00:13:47]  The DA's argument.
[00:13:48]  Gage Grosskreutz, too, that's the man who got his arm shot but lived to tell about it.
[00:13:52]  He approaches Kyle Rittenhouse with Grosskreutz's gun drawn.
[00:13:56]  The ADA tried to argue that Grosskreutz never pointed his gun, it was a handgun, a Glock, at Rittenhouse.
[00:14:02]  But Grosskreutz said exactly the opposite at trial in a very big moment that got a lot of press coverage.
[00:14:08]  Watch the contradicting stories told by the prosecutor, followed by his star witness.
[00:14:14]  The bullet has hit Mr. Grosskreutz's right bicep, severing it.
[00:14:21]  At this point, yeah, absolutely.
[00:14:24]  That right arm is probably dangling down towards the defendant.
[00:14:27]  It wasn't until you pointed your gun at him, advanced on him, with your gun, now your hands down, pointed at him, that he fired, right?
[00:14:38]  Correct.
[00:14:39]  Just to clarify, what the DA is saying to the jury in his closing yesterday is Grosskreutz didn't point the gun at Kyle until after Kyle shot him in the arm, and that he didn't mean to point the gun in that moment because it was just that his bicep had been shot off and his arm was dangling and it was an involuntary motion forward, okay, after he'd been shot.
[00:15:01]  There you heard Gage Grosskreutz contradicting that, saying he wasn't shot until he pointed.
[00:15:10]  His own gun at Kyle Rittenhouse, who was on the ground.
[00:15:15]  Okay?
[00:15:15]  So the ADA's closing is completely belied by the testimony of the star witness about whom he's speaking to the jury.
[00:15:25]  Look, the bottom line in my view is that the ADA cannot get past a very viable claim of self defense by Rittenhouse.
[00:15:31]  His one point on provocation, you know, that Kyle set the whole thing off by pointing his gun at these guys early on, is a blurry, grainy video that shows virtually nothing.
[00:15:41]  All three of these alleged victims are on tape attacking Kyle Rittenhouse.
[00:15:46]  They're on tape attacking him, initiating the attacks.
[00:15:50]  And Rittenhouse has every right to defend himself.
[00:15:53]  And he's not required to hold back if he reasonably felt that his life was in danger.
[00:15:58]  Rittenhouse has been demonized from the beginning of this case by the ADA and by the Press because I believe of his original sin showing up at a Black Lives Matter riot with an AR 15 and clearly not on the side of the rioters.
[00:16:12]  The defense summed up the matter as follows Ladies and gentlemen, this is a political case.
[00:16:20]  We can take politics out of it as in Democrat and Republican, but the district attorney's office is marching forward with this case because they need somebody to be responsible.
[00:16:33]  They need somebody to put And say, we did it.
[00:16:38]  He's the person who brought terror to Kenosha.
[00:16:41]  Kyle Rittenhouse is not that individual.
[00:16:44]  The rioters, the demonstrators who turned into rioters, those are the individuals who bring us forth.
[00:16:54]  They had to do something.
[00:16:56]  They had to charge the white supremacist who isn't a white supremacist.
[00:17:02]  They've never reassessed their case.
[00:17:07]  I think that nails it.
[00:17:09]  I think that nails it.
[00:17:10]  They are under pressure, the DA's office.
[00:17:13]  And now, the jury, if they acquit, will have to worry about their safety, the safety of their city, and a lifetime of judgment for being the only ones courageous enough to say this kid did not break the law.
[00:17:27]  Joining me now, Robert Barnes, founding attorney of Barnes Law and Kyle Rittenhouse's former civil attorney, as well as state attorney for Palm Beach County, Dave Ehrenberg.
[00:17:37]  Thank you both so much for being here.
[00:17:41]  Let me just start with this.
[00:17:42]  Let's go broad brush first, Robert.
[00:17:45]  And let me ask you how you thought it went yesterday for because the prosecution got to make its closing.
[00:17:52]  The defense makes its closing.
[00:17:54]  And then, as we always do, the prosecution gets the last bite at the apple because they have the burden of proof and they got the first and last word in front of the jury.
[00:18:00]  I thought the rebuttal case, which we didn't show clips of here, was pretty darn strong.
[00:18:05]  And I think the defense might be a little worried because the rebuttal case was strong.
[00:18:11]  My own take is that ultimately, when you have to resort to arguments like Kyle should have taken a beating, then you lost.
[00:18:18]  And that was the argument that the person I call Sauerkraus made in his rebuttal.
[00:18:25]  And so I think that in the end, they did not have the facts to support their arguments.
[00:18:29]  They came up with a desperate Hail Mary at the end of trying to argue provocation, where provocation just did not happen here.
[00:18:36]  And they ended up making other arguments, just saying Kyle shouldn't have been there at all and that somehow it was a crime for him to have been there at all.
[00:18:44]  And especially once the curfew charge was thrown out and the gun charge was thrown out, their entire basis of arguing that Kyle had done anything unlawfully to be there that night were gone.
[00:18:53]  And so they were stuck with trying to argue what happened in the moment.
[00:18:57]  And what happened in the moment is, as you note, clear on video.
[00:19:00]  Kyle only shot when he had to, when he was at imminent risk of great bodily harm in each of the occasions that he shot and showed extraordinary discipline in that he didn't react to a bunch of other people.
[00:19:12]  People hit him in the back of the head that he didn't shoot at, people were threatening him that he didn't shoot at, people were yelling, Cranium the boy.
[00:19:18]  That he didn't shoot at.
[00:19:19]  He only shot at people as they were attacking him, as the most momentous event during the entire trial revealed when Gross Kreutz on the stand said, Yeah, he didn't shoot me until I pointed my gun at him.
[00:19:33]  I thought the prosecution did a good job yesterday in its summation, but Dave, I did not think they did a good job during the trial.
[00:19:41]  I thought the trial went almost uniformly in the defense in their favor.
[00:19:47]  And so, you know, I don't, let me start with that.
[00:19:50]  How can a closing argument save?
[00:19:53]  A trial that is probably lost in a case like this for a prosecutor?
[00:19:58]  It doesn't normally, Megan, but the difference here, I think, is that you've got the Provocation instruction.
[00:20:04]  And I think that could be a game changer because otherwise, I don't see how they could have gotten a conviction on the counts involving Gross Kreutz and Huber.
[00:20:14]  I still think, even without the provocation instruction, there's a legitimate shot they can get the conviction on the count related to Rosenbaum because he was unarmed.
[00:20:23]  And the video, at least the one I saw, looked like he was not grabbing for the gun.
[00:20:27]  And yeah, he may have made some threats and he threw the plastic bag at the defendant, but is that That warned getting shot four times by an AR 15.
[00:20:38]  So I think you're right in that the testimony that came out, especially when they put their key witness on the stand, Grosskreutz, was not what the prosecutors wanted.
[00:20:46]  In fact, Grosskreutz seemed to buy into the defense's theory of the case that Rittenhouse was attacked and he worried about Rittenhouse's safety.
[00:20:55]  But when it comes to the others, when it comes to Rosenbaum, I think that's where the prosecution probably is the strongest case.
[00:21:02]  And if the jury agrees with provocation, Then they could possibly get a conviction relating to Huber.
[00:21:08]  Last point is this I still think the weakest one is the Grosskreutz shooting for the reasons you mentioned.
[00:21:14]  Grosskreutz had a gun, and his own words on the stand contradict the prosecutor's comments in his closing.
[00:21:21]  Yeah, it was crazy how the prosecutor, Binger, just ignored that.
[00:21:25]  He ignored that critical moment and sort of said, no, he only shot Grosskreutz, or Grosskreutz only pointed the gun at him after he'd been shot.
[00:21:34]  It was an involuntary motion forward because his bicep had been shot up.
[00:21:38]  Meanwhile, his witness had already given up the farm.
[00:21:40]  I mean, that was too late for that.
[00:21:42]  The jury, I was surprised the defense didn't make more out of that.
[00:21:45]  I mean, I would have gotten up there and said, he just lied to you.
[00:21:48]  I mean, explicitly, you heard Gage Gross Growth on the stand, and now he's trying to clean it up.
[00:21:53]  And what else is he lying to you about, right?
[00:21:55]  I mean, anyway, okay.
[00:21:56]  We're going to leave it there for one second, squeeze in a quick break, and then I want to pick it up with Rosenbaum because I really think this is the linchpin.
[00:22:04]  If they don't think that Kyle Rittenhouse had the right to shoot Rosenbaum, It could definitely go south for him on the other two because of this provocation argument.
[00:22:11]  So let's take a closer look at Rosenbaum.
[00:22:13]  We'll do that right after this break.
[00:22:15]  Don't go away more with Robert and Dave in one second.
[00:22:24]  So let's focus on the first man shot because I do think the other two are easier in a way.
[00:22:32]  Rosenbaum is the first man Kyle shot, and he's not a good man.
[00:22:37]  This was not a good man.
[00:22:40]  He was.
[00:22:41]  Causing trouble all night and chased Kyle.
[00:22:45]  That much we know.
[00:22:46]  It's disputed why he chased Kyle.
[00:22:48]  The prosecutor's arguing it's because Kyle pointed his gun at Rosenbaum's buddy or just somebody near Rosenbaum.
[00:22:55]  In any event, Rosenbaum comes to approach Kyle.
[00:22:58]  Rosenbaum, it is undisputed, was unarmed.
[00:23:02]  And this is what the prosecution's now seizing on.
[00:23:05]  They're basically suggesting you can't shoot somebody who's unarmed.
[00:23:09]  Here's, I mentioned James Krause.
[00:23:11]  He did the rebuttal for the prosecution, which I thought was probably the strongest of the three arguments.
[00:23:15]  Here's how he put it.
[00:23:16]  Listen here.
[00:23:18]  Clearly, if there is provocation, he's guilty.
[00:23:21]  But even outside of provocation, why do you get to immediately just start shooting?
[00:23:30]  As Mr. Binger said, he brought a gun to a fist fight.
[00:23:35]  And he was too cowardly to use his own fist to fight his way out.
[00:23:39]  He has to start shooting.
[00:23:41]  Robert, can you speak to that argument?
[00:23:44]  I found it an insane argument.
[00:23:46]  To say that you're supposed to engage in fist fights now, to welcome fist fights, supposed to put your gun down and engage in a fist fight and see what happens.
[00:23:53]  I mean, Binger actually, in his part of closing, actually said that nobody had ever died from an unarmed person.
[00:23:59]  Well, we've got a couple of centuries of history that say otherwise.
[00:24:03]  So, I find that argument about he's just supposed to take a beating, he's supposed to put the gun down and just get into a fist fight with someone, that that is the solution.
[00:24:11]  It's just not a solution.
[00:24:12]  And it's not one required under Wisconsin law.
[00:24:15]  If you fear great bodily harm, you're entitled to use deadly force.
[00:24:19]  And Kyle explained in detail, and the video shows in detail.
[00:24:22]  And Richie McGinnis, most probably the best witness on the Rosenbaum case for the defense, was the state's own witness, Richie McGinnis, who, when he was getting hammered on cross examination or direct examination, redirect, By Binger.
[00:24:35]  And Binger said, You have no idea what Rosenbaum was thinking.
[00:24:37]  McGinnis famously said, Well, I know he said F you and then lunged for the gun.
[00:24:43]  And that's as good a defense for Kyle as you can possibly get because here you have a so called complaining witness, reckless endangerment charge concerning Richie McGinnis, saying that the same thing that Kyle was saying that this person was yelling at him, screaming at him.
[00:24:56]  I think he called it a blood curling scream right at the time he lunged for the gun.
[00:25:00]  If that isn't self defense, then we don't have self defense in America.
[00:25:04]  And not only that, but this Other guy, Ryan Balch, testified that Rosenbaum, the guy who got shot, did threaten Kyle Rittenhouse earlier in the evening.
[00:25:13]  If I get you alone, I'm going to kill you.
[00:25:15]  Here is that sound bite, too.
[00:25:17]  He goes, You know what?
[00:25:18]  If I catch any of you guys alone tonight, I'm going to fucking kill you.

=== Shooting an Unarmed Man (11:19) ===

[00:25:22]  And he said that to you, correct?
[00:25:24]  Did he say that to the defendant as well?
[00:25:26]  The defendant was there.
[00:25:28]  So, yes.
[00:25:29]  Oh, Mr. Binger.
[00:25:31]  I mean, that's the prosecution bringing out that evidence, which is not good for his side.
[00:25:36]  So now the prosecutor.
[00:25:38]  Is claiming that isn't true, but that's the evidence the jury heard.
[00:25:42]  So let me ask you, Dave, because I understand if it's two guys, you know, if you're unarmed and the other guy's unarmed and he comes over and starts beating you, you should fight back with your fists.
[00:25:50]  But if you've got a gun and a guy comes over and threatens you and reaches for your gun, I don't think the law considers him unarmed.
[00:25:58]  I think the person who has the gun initially is allowed to factor that gun going to the other person in to the equation and deciding what kind of force to use to.
[00:26:09]  Respond with.
[00:26:11]  Am I wrong?
[00:26:13]  Yeah, well, this is what the jury is going to have to grapple with.
[00:26:15]  It was Rosenbaum a real threat to Kyle Rittenhouse.
[00:26:20]  And part of it, though, Megan, is that Kyle Rittenhouse had that strap around.
[00:26:24]  So that reaching for the gun would have been blocked by the strap that he used to keep the gun in his own possession.
[00:26:32]  So that's another consideration.
[00:26:34]  Also, the fact that Kyle Rittenhouse shot four times.
[00:26:37]  Now, a lot's been made on the timing of the shots.
[00:26:40]  Well, he shot.
[00:26:42]  Pretty quickly.
[00:26:43]  And so that's going to be the defense argument.
[00:26:44]  It's like, hey, he shot enough to neutralize the threat.
[00:26:48]  Whereas the prosecution's saying, well, you know, he started to make it a little more of a thinking process that the shots were not in as rapid fire as you would think, that he could have stopped after one shot, but he shot four times to kill a guy who was unarmed and who threw a plastic bag at him.
[00:27:05]  And the other thing about lunging, the video I saw showed that there was distance.
[00:27:09]  And that's what the prosecution focused on.
[00:27:10]  There was enough distance between the defendant.
[00:27:13]  And Rosenbaum, so that when Rosenbaum was shot, he was not next to Rittenhouse.
[00:27:18]  There was enough distance where he couldn't have grabbed for the gun.
[00:27:21]  And as he's falling after he'd been shot, that's when it looks like he lunged for the gun.
[00:27:26]  And as far as the witnesses saying, hey, this guy was saying, I'm going to kill you and stuff.
[00:27:29]  Yeah, he was saying a lot of things.
[00:27:31]  There was another witness on the stand who described Rosenbaum as something like a blathering idiot.
[00:27:35]  So he was just spewing lots of stuff.
[00:27:38]  And the question is whether he was a legitimate threat to Rittenhouse's life.
[00:27:43]  Okay, but wait, can I jump in there?
[00:27:45]  Let me ask you Is that the question?
[00:27:47]  Whether he was, quote, a legitimate threat to Kyle's life, or is it more whether Kyle reasonably, given who Kyle is and his experiences, whether he reasonably believed that his life was in danger, and whether an objectively reasonable person could also see that?
[00:28:04]  Well, you look through the eyes of Kyle Rittenhouse, but you also have to look through the prism of reasonableness.
[00:28:08]  So, when I say legitimate, what I'm saying is that it's not just subjective on Kyle's part.
[00:28:13]  You have to look at the reasonableness of it.
[00:28:15]  Was it reasonable for Kyle to think that Rosenbaum, an unarmed man who threw a plastic bag at him, was going to take his gun away and then use it against him?
[00:28:25]  Well, the gun was strapped to Kyle Rittenhouse.
[00:28:27]  Rosenbaum wasn't right next to Rittenhouse to take the gun away, and he shot him four times to kill him.
[00:28:34]  So, that's what the jury is going to have to consider.
[00:28:37]  Robert, it's funny because when I listened to the ADA's closing, he made it sound like this was just a lovely evening at the lounge.
[00:28:43]  You know, we're like, Kyle Rittenhouse got to sit back and it was like, maybe I'll fire a shot.
[00:28:47]  Maybe not.
[00:28:47]  Maybe I'll fire a second.
[00:28:48]  Well, let me think about it.
[00:28:49]  Should I fire a second shot?
[00:28:51]  Oh, I think I've injured his pelvis.
[00:28:52]  I guess, yeah, I'm good.
[00:28:53]  No, I'm going to do it anyway.
[00:28:55]  I mean, it happened in less than seconds he had to make these decisions.
[00:28:59]  And I realized that now we know that the first shot injured the guy's pelvis, Rosenbaum's, but he didn't, Kyle Rittenhouse didn't know that in the moment.
[00:29:07]  And yes, he wasn't.
[00:29:09]  Right on top of Kyle when he was coming for the gun.
[00:29:11]  But you just look at the tape, you know, he was running toward him, according to Richie McGinnis, reaching for the gun, yelling, fuck you, and had already threatened him.
[00:29:20]  And he could have seen it.
[00:29:21]  So he may not be on top of him, may not be on top.
[00:29:24]  It may not be on top of Kyle Rittenhouse in the second, but he's about to be, right?
[00:29:28]  So it's like, to me, this is a 2020 hindsight thing where it's like, sure, we could pretend he had all the time in the world, but you can see on tape he didn't.
[00:29:37]  And what was happening that night was escalating violence by the.
[00:29:40]  Of various attackers on Kyle that night.
[00:29:43]  You know, it starts off with threats, with small threats.
[00:29:45]  Then the threats get to be big threats.
[00:29:47]  I'm going to kill you.
[00:29:48]  I'm going to kill you.
[00:29:49]  A lot of N words, that kind of stuff coming from Rosenbaum.
[00:29:52]  Then it escalates into throwing off, you know, throwing down porta potties.
[00:29:56]  Then it escalates into putting wagons and things in the middle of the road.
[00:30:00]  Then it escalates into small arsons.
[00:30:01]  Then it escalates into attempted big arsons.
[00:30:04]  And the ultimate goal was it was going to escalate into killing Kyle Rittenhouse.
[00:30:08]  Because what happens is he's walking down there, and as there was testimony from the state's own witnesses, Where Rosenbaum was, he was right behind two cars waiting for Rittenhouse to come by, and then he springs free.
[00:30:19]  And then you have Zeminski threatening him on one side, Rosenbaum threatening him on another side.
[00:30:24]  And as to the issue of provocation, as an example, there is no evidence he lifted his gun.
[00:30:28]  The compelling evidence is he didn't.
[00:30:30]  But even if anyone believed that, you are allowed under Wisconsin law to withdraw and give notice of it.
[00:30:36]  I call it like Leonard Skyner's give me three steps.
[00:30:38]  Kyle does that three different times before he shoots Rosenbaum.
[00:30:42]  First, he tries to step back and go back up Sheridan Road, but he's blocked.
[00:30:45]  By the other people.
[00:30:46]  So that's attempt number one.
[00:30:48]  And Rosenbaum runs at him instead of withdrawing.
[00:30:51]  Two, he tries to run across the parking lot, at which point he hears a gunshot behind him and sees the bag thrown at him, turns around and points at Rosenbaum, gives Rosenbaum a second chance to withdraw because he turns around and runs away again.
[00:31:06]  And then the third time is right by the cars where he's completely trapped.
[00:31:10]  He's got Zeminski behind him, he's got Rosenbaum about to attack him, he's got a riotous crowd right in front of him, he's stuck between four cars.
[00:31:18]  He turns around and he doesn't fire right away.
[00:31:20]  He waits to see what Rosenbaum does.
[00:31:22]  And what does Rosenbaum do?
[00:31:24]  He yells, F you, and lunges for the gun, according to Richie McGinnis' independent testimony, who was live and can see it live.
[00:31:31]  We don't have to rely on drone footage from miles away.
[00:31:33]  We have Richie McGinnis seen it live in live time.
[00:31:36]  And that is compelling evidence that he gave three opportunities for Rosenbaum to withdraw.
[00:31:41]  He gave notice and had himself withdrawn and retreated.
[00:31:43]  So even if anybody believed provocation, the state cannot prove that aspect, which they also have to prove in order to prove him guilty of any crime related to Rosenbaum.
[00:31:52]  So, can I just rewind and ask you a question about that drone footage with the blurry photo?
[00:31:56]  And the last minute, the prosecution's like, look, this is the evidence of him starting the provocation Kyle with the gun pointing at Zeminski, whatever the guy's name is.
[00:32:05]  I thought that the defense argument on that was that we don't even know if that is Kyle.
[00:32:08]  Is the defense, it's Kyle, but he's not pointing his gun at anybody?
[00:32:13]  There is a picture there of Kyle that they've tried to blow up, but what they've actually blown up that they're claiming is Kyle holding a gun is actually the backside of a mirror.
[00:32:22]  So, because if Kyle was holding the gun in the way that Binger was claiming, Kyle would have had to shift from being right handed to left handed, would have had to shift the gun from the right hand to the left hand.
[00:32:32]  And because the way in which his body is turned in the photo, The only way their version of events makes sense is he suddenly became left handed overnight.
[00:32:40]  And so that's the reason why it also goes from color to black and white.
[00:32:44]  There's a whole host of other issues with those blurred photos they're trying to project their fantasy land testimony into.
[00:32:50]  And that's why it doesn't fit and that's why it doesn't meet the standards.
[00:32:53]  And the defense's theory is he absolutely never raised his gun all night.
[00:32:58]  Even Yellow Pants Man, when you see his earlier testimony, the prosecution was pretending hearsay testimony that shouldn't have come in but did about Kyle pointing his gun.
[00:33:07]  He's actually pointing, he's using a gesture like this.
[00:33:10]  So it was not that Kyle was pointing his gun at people, but had his gun down like this all night.
[00:33:14]  So there was no testimony from any prosecution witness that supports any aspect of provocation that night.
[00:33:20]  Yellow Pants Man was somebody Kyle saw earlier on who claimed that Kyle said to him something like, I could shoot you, or you said you were going to shoot me.
[00:33:29]  And Kyle said, Yeah, I did something.
[00:33:31]  I know the judge later referred to that as the my cousin Vinny moment, I think, where he's like, Yeah, I shot the clerk.
[00:33:37]  Ralph Macchio's character is like, Yeah, I shot him, but you don't really mean, yeah.
[00:33:41]  I don't know.
[00:33:41]  But that was sort of evidence that the prosecution wanted to use to show Kyle would have used force to protect property, which is not okay.
[00:33:48]  So, Dave, what about that?
[00:33:50]  Because the prosecutors seem to be arguing there was a chance for Kyle to retreat in the shooting of Rosenbaum because Kyle was the one in charge.
[00:33:56]  Kyle was the one leading the run.
[00:33:58]  You know, he was being chased, but he was the one sort of at the forefront of the run.
[00:34:01]  And that Kyle's the one who sort of got them backed into a corner up against these cars and then turned around and fired.
[00:34:09]  Right.
[00:34:10]  That's all important because if you talk about provocation, the person who provokes it then cannot take advantage of self defense, but then they can later if they reasonably believe that they're in imminent danger of death or serious bodily injury.
[00:34:24]  At that point, they have a duty to retreat.
[00:34:27]  Under normal self defense laws in Wisconsin, you don't have a duty to retreat, but if you have the provocation aspect, then you do.
[00:34:37]  So if you provoke it, then you do have a duty to retreat if you're going to then later take advantage of self defense.
[00:34:42]  And that's why his failure.
[00:34:44]  To run away is important.
[00:34:47]  And then, after all, he used what prosecutors would consider unreasonable force, disproportionate force to a guy who was unarmed.
[00:34:55]  He used AR 15.
[00:34:57]  The other thing about the provocation is that the prosecutors tried to enlarge it.
[00:35:01]  So instead of just raising his gun, they also tried to say, well, look, he traveled across state lines to a state he did not live in to guard a used car lot that he was not asked to guard.
[00:35:14]  He said he was a medic, and that was a lie that he wasn't a medic.
[00:35:17]  And so they're trying to say, look, this shows you that he provoked the whole thing.
[00:35:21]  The one problem with that argument is that under Wisconsin law, for you to have provocation, you have to be engaged in an unlawful act.
[00:35:29]  So it's not unlawful to travel across state lines.
[00:35:32]  It's not unlawful to guard a used car lot that you are not asked to guard.
[00:35:36]  It's not even unlawful to lie to people to say that I'm a medic.
[00:35:40]  It is unlawful, though, if you possess an AR 15 as an underage individual, but that count was thrown out.
[00:35:46]  So the only remaining Area where they can show provocation through an unlawful act would be the raising of the gun, which would be an aggravated assault with a deadly weapon.
[00:35:57]  But it's not against Rosenbaum, it's against Zaminsky.
[00:35:59]  So they're bootstrapping that argument.
[00:36:01]  And that argument is crucial.
[00:36:03]  Because not only would it help with the Rosenbaum shooting, it helps also with the case on the shooting of Grosskreutz and Huber.
[00:36:11]  That is exactly right.
[00:36:12]  That last announcement.
[00:36:13]  Thank you for that very clear statement of the law.
[00:36:15]  I couldn't have said it better myself.
[00:36:17]  And it's so like the jury might not hear all these things spelled out that way, but they hear the lawyers talking about he provoked it, did he retreat, and so on.
[00:36:24]  And then they're supposed to compare this to the 36 pages of jury instructions and come up with a verdict.
[00:36:30]  One wonders whether that's how they'll do it or whether they already have strong opinions at this point about whether it was self defense.
[00:36:38]  Or he's a punk who went on an active shooter spree.

=== Accusing Kyle of Inaction (06:40) ===

[00:36:42]  Stand by because we have much more with Robert and Dave and a couple more sound bites I want to ask them about in critical moments in just moments.
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[00:37:27]  So let's talk about the moments after Rosenbaum was shot, because this is the point at which the prosecutor argues if Kyle Rittenhouse wanted to signal to the world that he was not an active shooter, there are many things he could have done that he did not do.
[00:37:41]  And this is why people like Anthony Huber, Also, I mean, very long rap sheet.
[00:37:47]  Anthony Huber and Gage Grosskreutz.
[00:37:49]  I mean, he's painting these guys as heroes and like wonderful guys.
[00:37:52]  Long rap sheet for the second guy, too.
[00:37:54]  Like, both of these are not, he talks about them like they were out there that just to keep the peace, they just want bull, bull.
[00:38:01]  They had a long, long criminal history, all three of them.
[00:38:04]  And that's just relevant because the prosecutor did try to sort of slip in what great guys they were.
[00:38:09]  Like, he actually used the word hero.
[00:38:12]  So, this is ADA banger trying to talk about what Kyle Rittenhouse should have done if.
[00:38:18]  he didn't want the crowd to misunderstand his intention.
[00:38:22]  This is Soundbite 7.
[00:38:24]  He could have stayed at Mr. Rosenbaum's body, helped protect him, helped preserve his life, call 911.
[00:38:33]  As he's running, he could have announced to the crowd exactly what he was doing, told them.
[00:38:39]  He could have fired warning shots to try and keep him away.
[00:38:41]  He could have dropped the gun.
[00:38:43]  He could have raised his hands and surrendered.
[00:38:46]  He could have signaled to this crowd that he did not pose a threat anymore.
[00:38:50]  So, Dave, what's he trying to get at there?
[00:38:53]  I mean, I know he's one of the things I think he's accusing Kyle of not rendering aid when he could have, but there's a larger point he's going for.
[00:39:01]  Yeah, Megan, that's the duty to retreat.
[00:39:03]  He's trying to say he's surrendering because if you have provocation and then you want to regain self defense, you can't do that unless you exhausted every avenue.
[00:39:12]  You got to try to retreat, surrender.
[00:39:14]  And he didn't do that.
[00:39:15]  He kept walking on, which led other people to believe he was a danger, an active shooter, as he said.
[00:39:21]  And that's why they acted in.
[00:39:23]  His belief heroically to try to stop it.
[00:39:26]  Now, I think it's a compelling argument, but there are a couple issues there.
[00:39:30]  I don't know if the jury is going to buy that he should have just stood there with his hands up and let people come at him.
[00:39:37]  I think that's something that if you're in that situation where you have a really dangerous situation, it's bedlam that you want to stand there after you shot someone and surrender your gun and just, I don't think that's realistic.
[00:39:49]  It's not like the National Guard showed up.
[00:39:52]  Right.
[00:39:53]  The police were far away.
[00:39:54]  He eventually walked to the police.
[00:39:56]  I do think, though, that if they can show provocation with the pointing of the gun towards Zeminski, then they could make the argument that yes, these folks were trying to.
[00:40:04]  Disarm a shooter.
[00:40:06]  Now, the word active shooter rubs me a little the wrong way because to me that evokes like Nicholas Cruz, the Parkland shooter who just shot indiscriminately.
[00:40:14]  Rittenhouse was not shooting indiscriminately.
[00:40:16]  He was shooting at people that he believes was a threat.
[00:40:20]  So I think active shooter overplays that hand.
[00:40:24]  But I do think it's a legitimate argument to say the reason why they're charging him for shooting Huber and Grosskreutz is because they were trying to subdue and disarm this guy who just killed Rosenbaum and in return.
[00:40:37]  They got killed, at least Huber got killed in the process, and Grosskreutz got his arm shot off.
[00:40:43]  Does it matter, Robert?
[00:40:44]  Like, let's.
[00:40:45]  The prosecutor was talking about Huber and Grosskreutz as if they'd been charged with something, you know, like as if he's trying to get them off, saying they had a reasonable belief that he was this active shooter.
[00:40:54]  They are trying to disarm the active shooter.
[00:40:56]  Now, I don't know if that's true or not.
[00:40:58]  I got questions about their behavior, given what I know about their rap sheets.
[00:41:01]  But even if they really did believe that they were acting as good Samaritans, that Rittenhouse was an active shooter and they had to disarm him for the good of the community.
[00:41:11]  Does that matter?
[00:41:12]  If Kyle Rittenhouse is there and thinks he's about to lose his life to this guy beating him with a skateboard or pulling out a Glock at him, does it matter what their motives are?
[00:41:25]  No, it doesn't.
[00:41:25]  I mean, frequently, what's interesting is he was basically giving a definition that sounded like the McMichael defense in the Arbery case.
[00:41:32]  The problem is they didn't have probable cause of a crime either.
[00:41:35]  They didn't meet the citizen's arrest standard under Wisconsin law.
[00:41:37]  That's why it never came up.
[00:41:39]  But it's also, as you know, not pertinent, not relevant.
[00:41:41]  Their state of mind is completely irrelevant.
[00:41:43]  What matters is what was Kyle's reasonable perceptions for a 17 year old under the circumstances of that night.
[00:41:49]  And his reasonable perceptions is this guy attacks me, and there's a mob screaming, Get him, get him, kill him, kill him, cranium him, cranium him.
[00:41:58]  And it was cranium bashing his brain.
[00:42:00]  And what does he do?
[00:42:01]  He starts running toward the police line, not trying to engage anybody, not pointing his gun at anybody.
[00:42:07]  People keep chasing him, bashing him over the back of the head with a hand with a rock in it.
[00:42:12]  Keep attacking him, bashing him over the head with a skateboard.
[00:42:15]  And he keeps trying to run to that line.
[00:42:17]  And it's only when he's knocked down, and even when he's knocked down on the ground, and as Richard's noted, he's the most vulnerable position you can be in, that he even lifts the gun at anyone.
[00:42:27]  And even then, he doesn't fire at anyone that's not trying to kick him in the head, bash him in the head, grab his gun, or put a gun in his face.
[00:42:34]  That's classic self defense.
[00:42:36]  And it's something the prosecution simply can't escape the true facts in this case.
[00:42:40]  The prosecution keeps saying to the jury yesterday that.
[00:42:44]  That he lied.
[00:42:45]  Kyle Rittenhouse was asked by this witness, Did you shoot somebody?
[00:42:49]  And he said, No.
[00:42:51]  And did you shoot this guy?
[00:42:52]  No.
[00:42:53]  Well, what's he supposed to say?
[00:42:55]  He's like, He makes it sound like he's at an afternoon tea and someone's like, Did you try the salad?
[00:43:01]  You know, like he, it's an angry mob, some of whom are armed.
[00:43:06]  And the ones asking him the questions are not on the same side as Kyle, right?
[00:43:10]  It's like the Black Lives Matter rioters and Tifa folks.
[00:43:15]  I don't know.
[00:43:16]  I thought that was such a flat point, Dave.
[00:43:18]  Like, what's he going to say?
[00:43:20]  Now, I hear you.

=== Proud Boys Affiliation Claims (03:07) ===

[00:43:22]  I don't think that's a huge deal for the jury.
[00:43:24]  But, Megan, going back to what you were saying earlier about these folks, whether they're heroes or not, yeah, I mean, their background doesn't mean that they didn't try to do the right thing at that time.
[00:43:35]  But it is true that the jury is not going to hear the fact that they had a lot of issues in their past, criminal issues.
[00:43:40]  But at the same time, the jury is also not going to hear about Rittenhouse's own issues that he, Recently, he had punched a girl who was fighting with his sister, or that he appeared with the Proud Boys at a bar afterwards, given a white supremacist sign with hand gesture.
[00:43:58]  So it works on both sides as far as the backgrounds and the actions of individuals.
[00:44:02]  That's why you stick to the evidence, that's why you have what's called motions and limine.
[00:44:06]  To keep out evidence that could prejudice a jury and get emotions inflamed instead of just looking at the facts on hand.
[00:44:13]  What about that, Robert?
[00:44:15]  Because you heard the defense lawyer say, oh, they said they were going to, that he's a white supremacist and it's not a white supremacist.
[00:44:21]  And none of that evidence has come in, but the press went with it because there was some discussion early on about whether he had an affiliation with the Proud Boys and whether that makes him a white supremacist or whether he was caught on camera giving that sort of okay symbol that has now been sort of co opted by, I guess, white supremacists.
[00:44:37]  The reason why, like, if you ever I told a story about I was trying to pull in and my doorman was like, okay, you know, come on.
[00:44:42]  And I was like giving him the okay symbol.
[00:44:43]  And I'm like, oh my God, I didn't mean to flash a white supremacist, a white power, you know, just trying to pull into the garage.
[00:44:50]  But it's been co opted.
[00:44:51]  So anyway, what about the evidence that he, not in court, but outside that he's got this affiliation?
[00:44:57]  Yeah.
[00:44:57]  So he doesn't have any affiliation with the Proud Boys.
[00:44:59]  He didn't know who was at that bar.
[00:45:00]  That was other people who brought them there.
[00:45:02]  He never has.
[00:45:03]  They looked at all of his social media.
[00:45:04]  They had his entire cell phone.
[00:45:06]  They had all of his records.
[00:45:07]  They didn't find an iota of Proof of any kind of racial prejudice of any kind.
[00:45:11]  He has a multiracial family.
[00:45:13]  None of that was ever true.
[00:45:15]  And in fact, it would have been blown up had it even been introduced into trial and easily counteracted.
[00:45:19]  And of course, the OK sign was 4chan wanted to meme the media into convincing them that the white power sign, which is something totally different, involves two different ways of using both your hands, that the OK sign was secretly a white power sign.
[00:45:32]  And unfortunately, some media people ran with it.
[00:45:34]  I would note I filed suit on that.
[00:45:36]  A federal court found that claiming the OK sign is a white supremacist sign is actually defamation and libel.
[00:45:42]  And those people who libeled Kyle will face some consequences.
[00:45:45]  Joe Scarborough can't help himself.
[00:45:46]  He keeps libeling him every other day.
[00:45:48]  So I guess he wants to be sued by the kid.
[00:45:50]  And hopefully that will happen after the acquittals come.
[00:45:53]  All right.
[00:45:53]  Need quick answers on this.
[00:45:54]  Robert, your predictions on how this comes down?
[00:45:58]  I think 75% chance of acquittals.
[00:46:00]  If they didn't do a good job in jury selection, then there's a risk of mistrials.
[00:46:04]  Dave?
[00:46:05]  I think the lesser charges will lead to a compromised verdict.
[00:46:09]  I think they'll get a conviction, perhaps on some of the endangering others.
[00:46:14]  I think the most likely conviction on a serious charge will be on Rosenbaum, not on Huber or gross courts.
[00:46:21]  And he could be facing decades in prison if he's convicted of some of those lesser charges.
[00:46:25]  So it's not necessarily just a slap on the wrist.
[00:46:28]  They matter for sure.

=== Attacking Self Defense Elements (09:18) ===

[00:46:29]  You guys, great discussion.
[00:46:30]  Thank you both so much for being here.
[00:46:32]  Thanks a lot.
[00:46:33]  Thanks, Megan.
[00:46:33]  And up next, someone I'm really looking forward to talking to, someone I've been following very closely, reading during this whole trial, Andrew Branca of Legal Insurrection.
[00:46:43]  If you missed this, you're going to be very sorry because there's no one who knows more about this case than he does.
[00:46:49]  Don't go away.
[00:46:54]  Joining me now, someone I've been dying to talk to, Andrew Branca.
[00:46:58]  Attorney in self defense law and his practice, Law of Self Defense LLC, works to help armed law abiding citizens make better and informed decisions.
[00:47:06]  Branca's been closely following this trial and reporting on what he is seeing and his legal take at legalinsurrection.com in must read dispatches.
[00:47:17]  If you are not following him, do so now.
[00:47:19]  And he will still be of great service to you.
[00:47:21]  Andrew, thank you so much for being here.
[00:47:23]  Really appreciate it.
[00:47:24]  It's my absolute pleasure.
[00:47:26]  I've been a fan a long time, Megan.
[00:47:27]  Very happy to be here.
[00:47:28]  Thank you.
[00:47:29]  I mean, I love so much about your posts, but the number one thing is just how clearly you communicate.
[00:47:35]  And I think we both agree that the defense lawyer, Mark Richards, could have used some of that very clear communication yesterday because I felt as you did that he was kind of all over the board.
[00:47:47]  It wasn't a linear presentation, it just could have been a lot more forceful.
[00:47:53]  And persuasive, like his case was.
[00:47:55]  I mean, I thought that the actual case went in Kyle's direction, but the closing, I don't know.
[00:48:00]  Do you think he lost it on the closing?
[00:48:02]  Well, I think lost it is perhaps a bit strong.
[00:48:05]  I mean, he hit all the essential facts, he did that.
[00:48:08]  Well, personally, I would have preferred more of a story arc to the closing because that's how people love to integrate information.
[00:48:17]  Human beings love stories.
[00:48:18]  It's the most compelling way to sell that narrative of innocence.
[00:48:21]  And this is the last chance the defense will ever have to sell that narrative of innocence to the jury.
[00:48:26]  So, to my mind, it really needs to be as close to perfect as possible.
[00:48:30]  And it wasn't that close to perfect, I guess.
[00:48:33]  And also the tone came across as rather angry and belligerent.
[00:48:39]  And there's good reason to be angry.
[00:48:41]  About this prosecution.
[00:48:42]  It's a travesty of justice.
[00:48:44]  But that anger only works on people who share that anger, who are already on your side, who are convinced.
[00:48:50]  And that's not who the defense needs to worry about.
[00:48:52]  They need to worry about the juror who might feel some sympathy for the victims in this case, the people who died, Gage Gross Cruz, who got maimed, the people who were endangered, as the prosecution tells the story.
[00:49:05]  Those are the people you have to convince to come over to your side.
[00:49:09]  And I don't think you do that with anger.
[00:49:11]  I think you do that.
[00:49:12]  With sympathy from their perspective to bring them over to you.
[00:49:16]  Just so our listening audience knows, he used the term victims and did the air quotes because that's what the prosecution claims they are.
[00:49:23]  That's up to the jury to decide.
[00:49:25]  Let's talk about the self defense claim that was made by the ADA binger yesterday.
[00:49:34]  And I know you are literally the expert in self defense.
[00:49:36]  So let me play soundbite four and get your reaction to whether this is a misstatement of the law.
[00:49:42]  Convince you that Joseph Rosenbaum was going to take that gun and use it on the defendant because they know you can't claim self defense against an unarmed man like this.
[00:49:56]  You lose the right to self defense when you're the one who brought the gun, when you're the one creating the danger, when you're the one provoking other people.
[00:50:06]  Is that true or false?
[00:50:07]  Well, of course, he mixes a few different things in there.
[00:50:10]  If you actually provoke the confrontation, well, then arguably you do lose self defense, but you don't.
[00:50:16]  Have no right to defend yourself against an unarmed person.
[00:50:19]  Hundreds of people in America are killed every year with fists and boots.
[00:50:24]  So, an unarmed person can readily be a deadly force threat against which you'd be privileged to use a gun in self defense.
[00:50:30]  And you certainly don't lose self defense if you bring a gun with you.
[00:50:33]  I carry a gun for personal protection every day, have my entire adult life.
[00:50:38]  I have the same privilege of self defense as anybody else.
[00:50:41]  The provocation for Rosenbaum's killing seems to be this allegation that.
[00:50:47]  Rittenhouse pointed his gun against a man named Zaminski earlier in the evening.
[00:50:52]  Zaminski chased Kyle Rittenhouse after that, and so did Rosenbaum.
[00:50:59]  And then that confrontation took place.
[00:51:01]  With respect to the two others that Kyle shot, Grosskreutz and Huber, what's the provocation?
[00:51:08]  Is it simply the killing of Rosenbaum and the failure to lie down right there saying, surrender, surrender?
[00:51:14]  I shot him, get police?
[00:51:16]  Right, that's the state's narrative.
[00:51:18]  So basically, it's kind of the fruit of the poisonous tree idea.
[00:51:21]  If the shooting of Rosenbaum was wrong, then every consequence that happened after that is the fault of Kyle Rittenhouse, is the state's position.
[00:51:31]  But they had to go to this provocation argument because of the inherent weakness in their case.
[00:51:36]  I mean, there's really two ways to attack a claim of self defense, and by the way, which the state has to disprove beyond a reasonable doubt.
[00:51:43]  One is to attack the elements of the self defense claim itself.
[00:51:47]  That's effectively impossible here because all the video, all the evidence is consistent with lawful self defense for every one of these criminal counts.
[00:51:55]  So that's not likely to work.
[00:51:57]  Well, if you can't attack self defense that way, you tip over the whole chessboard by arguing provocation.
[00:52:02]  Because if someone provoked, well, then they don't have a privilege of self defense.
[00:52:05]  You don't have to worry about the legal elements.
[00:52:07]  Of that legal defense anymore.
[00:52:09]  But their argument for provocation was, I mean, frankly, it was pathetic.
[00:52:13]  They have this, as Richard put it, a very good part of his closing the hocus pocus, out of focus photos that were laughable.
[00:52:20]  And the only other human being who could have provided evidence about provocation was Joshua Zeminski.
[00:52:26]  And the prosecution very carefully charged him with arson so that he would be on ice, so that he would have a Fifth Amendment privilege not to be called as a witness by the defense in this trial.
[00:52:38]  So there's really No evidence in support of provocation that could prove provocation.
[00:52:43]  Remember, the state has to prove it beyond a reasonable doubt.
[00:52:46]  They're not even close to that threshold.
[00:52:49]  There's a guy, there's one charge relating to this guy who's referred to as jump kick guy, saying he was recklessly endangered because Kyle shot at him but missed.
[00:52:57]  He jump kicked Kyle in the face right before Anthony Huber came up and started beating Kyle with his skateboard.
[00:53:03]  The shooting of Huber, and Huber did die, is charged as the intentional homicide.
[00:53:07]  That's the most serious charge of all.
[00:53:08]  And they don't even seem to be arguing that Huber wasn't.
[00:53:14]  That Kyle didn't have the right to use self defense against Huber, other than just saying Huber was the Good Samaritan, Kyle was still an active shooter.
[00:53:22]  Because, unlike with Jump Kick Guy, they're like, okay, jump kicking doesn't, that's not really a deadly threat against Kyle.
[00:53:28]  And even on Gage Grosskreutz, they're saying, no, he didn't actually pull the gun on him.
[00:53:32]  It was only once he was shot that his arm involuntarily went towards Kyle, undermined by Gage himself, who took the stand and said, no, I pointed the gun at him, and that's when he shot me.
[00:53:43]  But it seems to me that with Huber, they have no argument.
[00:53:46]  That Huber didn't put Kyle in fear for his life.
[00:53:51]  No argument at all that beating Kyle with a skateboard didn't give Kyle justification for believing his life was in danger.
[00:53:57]  Their only argument on their most serious charge seems to be you provoke the whole situation.
[00:54:04]  That's right.
[00:54:05]  And there's something else here that I think the defense had really pushed harder on.
[00:54:08]  With all these attacks at the second scene, he was perfectly justified in using force.
[00:54:13]  If those had been individual, isolated attacks, any one of them, he would have been entitled.
[00:54:18]  To use deadly force and self defense against those attacks.
[00:54:21]  But they weren't isolated individual attacks.
[00:54:23]  His perception of the threat is based on the totality of the circumstances.
[00:54:28]  So it's the collective threat of all those attacks, even the people who ultimately didn't come in, but appeared initially to be coming in with clubs and other weapons, who backed off when they saw that Kyle was still prepared to defend himself.
[00:54:40]  That's all a collective threat, certainly a collective threat capable of readily inflicting death or serious bodily injury.
[00:54:48]  I want to give a sound bite from Binger on that.
[00:54:51]  Sort of sequence I just discussed about, just discussed with you on Huber, on Jump Kick Man, on Gage Grosskreutz, because we spent a lot of time earlier talking about Rosenbaum.
[00:54:59]  Now, this is the second half of the story.
[00:55:01]  This is Soundbite 9, Binger, and his closing argument.
[00:55:05]  The crowd has the right to try and stop an active shooter.
[00:55:10]  The Anthony Huber comes up with a skateboard, and the defendant blocks it with his arm, and then the defendant falls to the ground on his own.
[00:55:17]  No one knocked him down.
[00:55:21]  This man that The defense wants to call Jump Kick Man.
[00:55:25]  He's got no weapons, no gun, no knife, no nothing.
[00:55:27]  Comes in and tries to kick the defendant in the face.
[00:55:30]  Anthony Huber comes back and tries to grab the gun, actually does grab the defendant's gun and tries to pull it away because he's trying to disarm an active shooter.
[00:55:40]  Gage Grosskreutz had his own gun in his own hand.
[00:55:43]  He could have aimed it and fired at the defendant, but he did not.

=== Risks to Impartial Juries (03:40) ===

[00:55:48]  And you heard Gage Grosskreutz testify about that, about how that is a decision that he was not.
[00:55:55]  Prepared to make it that point in time.
[00:55:58]  He is not the type of person who is just willing to take someone's life in an instant, unlike the defendant.
[00:56:08]  Your thoughts on that?
[00:56:09]  Well, of course, the whole thing is laughable.
[00:56:13]  But here's the risk.
[00:56:14]  And the risk is not that serious people, a genuinely fair and impartial juror, would take this seriously.
[00:56:20]  That's not likely to happen.
[00:56:22]  The risk here for Kyle Rittenhouse is that there's somebody on the jury who's what I would call an interested juror.
[00:56:29]  They're interested in convicting Kyle for whatever their own reasons might be, political views, whatever it might be.
[00:56:35]  They're not willing to do it.
[00:56:37]  If there's zero rationale to convict, because he'll go to prison for the rest of his life, and you need more than a zero reason to do that, but they'll justify the conviction if there's any reason, the slimmest thread of a reason that they can justify to themselves, we're coming back with a guilty verdict.
[00:56:52]  And that's what Binger is doing here.
[00:56:54]  He's holding out not something that's substantive, that's proof beyond a reasonable doubt.
[00:56:59]  He's holding out this thin reed to that potential interested juror in the hopes he can't convince 12 jurors like that, but if he gets one, He gets a hung jury.
[00:57:09]  And normally, a hung jury is, I would call it a win for the defense because at least your client didn't get convicted.
[00:57:15]  But normally, your client's not as innocent as Kyle Rittenhouse.
[00:57:18]  A hung jury here is a win for the prosecution because they'll just do the whole thing again and again and again until they've ground this poor kid into dust.
[00:57:30]  There's, I think, seven women now on the ultimate jury that was selected and five men.
[00:57:34]  Is that the case?
[00:57:35]  You know, honestly, I don't know the makeup.
[00:57:37]  I've been working on other parts of the case this morning.
[00:57:39]  Yeah.
[00:57:40]  That's not even our reporting.
[00:57:41]  That's somebody else's reporting.
[00:57:42]  Yes, my producers are saying seven women, five men, reportedly only one person of color.
[00:57:47]  Obviously, that'll play into whatever verdict comes down because the media is going to do what it's going to do.
[00:57:54]  But how about the lesser included?
[00:57:56]  Because that kind of gives the jury a way to split the baby.
[00:58:00]  And if they don't believe that they want to send this kid to prison for the rest of his life, they could find him guilty on something smaller, even though I don't think that's justified.
[00:58:09]  They might do it as a political matter just to save themselves and their city what's coming.
[00:58:14]  In the case, if they give them a straight out acquittal, so did the defense have to agree to those lesser included charges being offered?
[00:58:27]  You know, to be honest, it's not clear to me.
[00:58:29]  The standards for that change from jurisdiction to jurisdiction, it's a highly variable rule.
[00:58:35]  In most jurisdictions, you don't have a choice, the state's entitled to the lesser included.
[00:58:39]  I mean, the lesser included have their own elements of the crime, and if the state's proven those beyond a reasonable doubt to the satisfaction of the jury, you're guilty of that crime.
[00:58:48]  But there was some questioning by the judge of Rittenhouse himself personally if he had an objection to the lessors, which suggests that perhaps there was an option to not have them given to the jury.
[00:58:59]  The truth is that any fair and impartial jury looking at this evidence, it's not even close to a conviction on any of these charges, even the lesser included.
[00:59:07]  But as you point out, compromised verdicts happen.
[00:59:11]  Juries are dangerous and unpredictable creatures.
[00:59:14]  And that's why the risk of conviction is never zero.
[00:59:17]  We tell all our clients if we put you in front of a jury, there's a 10% chance you get convicted.
[00:59:21]  And I don't care how innocent you are, because that's part of the noise and the risk of being put in that position.
[00:59:27]  Yeah, that's right.

=== Compromised Verdicts and Risk (06:08) ===

[00:59:28]  I mean, this truly is his life on the line right now.
[00:59:31]  And in the meantime, the sort of attempt to delegitimize the entire process, the judge as a racist, anybody who's defending Kyle on the merits as a racist.
[00:59:43]  And there was a bit of a, I think Gravion does these great butted sound bites.
[00:59:49]  And one of the ones they did was sort of trying to attack this judge.
[00:59:51]  Like, if he goes free, it's going to be because of the terrible, terrible judge.
[00:59:56]  And I'd love, as somebody who's watched all of this trial, to get your reaction to that narrative.
[01:00:01]  Here's Soundbite 15 to set it up.
[01:00:04]  God bless the USA ringtone, which is the Trump rally.
[01:00:07]  Theme song.
[01:00:08]  It appears that this judge is auditioning for the cameras and looking for his next gig on Fox News.
[01:00:13]  He sounds like he's watched too much Bill O'Reilly.
[01:00:15]  I mean, he's acting like Archie Bunker in there.
[01:00:17]  When the judge asks the entire room if there are any veterans here and demands that the entire room clap for a veteran, and the one veteran in the room happens to be the expert witness coming forth to testify on behalf of Kyle Rittenhouse, that's an example of a pretty biased courtroom.
[01:00:32]  How the guy talked about the lunch order, I don't get it.
[01:00:36]  The Asian joke, I don't get it.
[01:00:37]  I don't know that he even made an Asian joke.
[01:00:39]  Well, he.
[01:00:40]  I know that I'm not allowed to judge it because I'm not Asian.
[01:00:46]  Your thoughts on it, Andrew?
[01:00:47]  Well, I don't think I'll be shocking anybody when I make the observation that most of the mainstream media is little more than a propaganda arm for the political left.
[01:00:55]  So this is just, you know, their propaganda arm doing their propaganda arm stuff.
[01:00:59]  That's what they do.
[01:01:01]  I mean, as you've watched the trial, what were the moments that stand out to you as particularly important?
[01:01:09]  Oh, probably most of the ones we all share.
[01:01:11]  Certainly the Gage Gross Cruz testimony was remarkable.
[01:01:15]  That he was not fired on until he had his gun out pointed at Kyle Rittenhouse.
[01:01:22]  Can I stand you by there?
[01:01:23]  Can I hold that?
[01:01:23]  Hold that, but the truth is thought because I do.
[01:01:25]  I want to play it.
[01:01:26]  I have it ready.
[01:01:27]  Okay, great.
[01:01:27]  Yeah.
[01:01:28]  Heard it.
[01:01:28]  It's soundbite one.
[01:01:32]  When you were standing three to five feet from him with your arms up in the air, he never fired, right?
[01:01:40]  Correct.
[01:01:41]  It wasn't until you pointed your gun at him, advanced on him with your gun, now your hands down, pointed at him.
[01:01:49]  Then he fired, right?
[01:01:51]  Correct.
[01:01:54]  Go ahead.
[01:01:56]  Yeah, that was a great part of the trial.
[01:01:57]  But one thing I observe in all these politically motivated trials, dating at least back to the George Zimmerman trial, is you see these state cases, and the state brings their own witnesses, the witnesses they called to the witness stand, and their testimony either is useless or pointless, or it actually favors the defense.
[01:02:14]  And that was here in this trial as well.
[01:02:16]  Witness after witness after witness that the state brought provided testimony.
[01:02:21]  That supported Kyle Rittenhouse's narrative of self defense.
[01:02:25]  And it makes you wonder why these prosecutions are brought in the first place.
[01:02:29]  Well, but we don't really wonder in this case, do we?
[01:02:32]  I mean, it's like the amount of political pressure in the wake of the Jacob Blake shooting, which is what set this whole thing off a legally justified shooting by a police officer of Jacob Blake who pulled a knife on that cop, which Jacob Blake is on camera admitting to Michael Strahan on GMA.
[01:02:47]  And then Merrick Garland's DOJ found the cop did nothing wrong and didn't go after him.
[01:02:52]  And before anybody was willing to let any of that play out, they decided they would take to the streets and riot.
[01:02:57]  That's what happened.
[01:02:58]  That's why the whole thing happened that night in Kenosha and why there were riots.
[01:03:02]  And people forget that, you know, there was a rush to judgment by people who just decided to glom onto this narrative that cops are shooting a bunch of unarmed black men in the streets.
[01:03:10]  And it isn't true.
[01:03:12]  It happens, but the numbers are very, very low.
[01:03:15]  But the media won't tell you that.
[01:03:17]  But I wonder, because I saw you take issue with this particular piece of the defense's closing.
[01:03:22]  There was a reference, not by name, to.
[01:03:24]  To Jacob Blake, who was shot seven times by that police officer.
[01:03:28]  Again, it was found justified.
[01:03:29]  But certainly you seem to be comparing this case to Jacob Blake because Kyle Rittenhouse took Guff from the prosecution for shooting the first guy, Rosenbaum, not once to stop him, but four times.
[01:03:41]  Take a listen to Mark Richards, defense attorney, yesterday.
[01:03:44]  This is Soundbite 17.
[01:03:47]  Ladies and gentlemen, other people in this community have shot somebody seven times and it's been found to be okay.
[01:03:55]  And my client did it.
[01:03:56]  Four times in three quarters of a second to protect his life from Mr. Rosenbaum.
[01:04:03]  I'm sorry, but that's what happened.
[01:04:06]  What did you make of that?
[01:04:08]  Well, I mean, first of all, on the legal merits, it doesn't make any sense.
[01:04:11]  It doesn't matter that somebody else was shot seven times and that was lawful.
[01:04:14]  That's got no relevance to this case.
[01:04:16]  But more important, I think this was actually harmful to the defense.
[01:04:21]  Because remember, what's the mission of the closing?
[01:04:23]  It's not to convince people already on your side to join you among the jurors.
[01:04:28]  It's to convince any members of the jurors who are not yet on your side, who may believe the propaganda about Jacob Blake, believe that was a social injustice murder.
[01:04:38]  Of a black man by a police officer.
[01:04:40]  It's not true, but they may believe it.
[01:04:43]  And if that's the person you need to bring over to your side, I don't think analogizing your client's use of force to the shooting of Jacob Blake is going to accomplish that.
[01:04:53]  Does the law say you have to shoot just once versus four or seven times?
[01:04:58]  No, the law says you can keep shooting until the threat is neutralized, however many shots that takes.
[01:05:04]  Of course, you get up to a certain extravagant number of shots, it becomes very difficult to justify, it's still necessary, but four is well within the realm of reason.
[01:05:12]  So, your prediction on how this is likely to go?
[01:05:15]  I know it's hard, but just, you know, take a shot.
[01:05:17]  You know, it's my practice not to predict outcomes because of how uncertain juries are.
[01:05:22]  I will say that if we go much into the second day of deliberations, into deep into tomorrow, that's not a good sign for the defense.
[01:05:31]  Right.
[01:05:31]  With each passing hour, Kyle Rittenhouse's chances of an acquittal look worse.

=== DOJ Leaks and Suspicion (15:10) ===

[01:05:37]  Andrew, you've been a delight to follow on this whole case.
[01:05:40]  Again, check him out, Andrew Branca, legalinsurrection.com, indispensable, clear, on point.
[01:05:46]  Open, honest, love it.
[01:05:47]  Thank you again.
[01:05:48]  Thank you, Megan.
[01:05:50]  Coming up, we're going to switch gears and take a close look at the case against James O'Keefe.
[01:05:55]  You know, the Project Veritas founder, his lawyer is here, super smart woman, and she's going to explain to us why the FBI had the nerve to raid James O'Keefe's home and the homes of two of his staffers to go collect Ashley Biden's diary.
[01:06:12]  Is that appropriate?
[01:06:14]  He wasn't even president, by the way, when she lost it or it got stolen.
[01:06:16]  We don't know what happened.
[01:06:17]  We'll get into it next.
[01:06:23]  We want to switch gears and talk about the James O'Keefe case because it's insane.
[01:06:27]  The FBI raided the homes of James O'Keefe and several Project Veritas employees after O'Keefe says they were looking, the FBI was, for a diary, a diary belonging to President Biden's daughter.
[01:06:42]  Even the ACLU is speaking out against this.
[01:06:45]  And joining me now to discuss it is Harmeet Dillon, attorney and managing partner of the Dillon Law Group, who's representing James O'Keefe.
[01:06:52]  Well, you did it, Harmeet.
[01:06:53]  Somehow you got.
[01:06:55]  Project Veritas and the ACLU on the same page.
[01:07:00]  It takes a lot.
[01:07:03]  Can you just set it up for us?
[01:07:05]  So, James O'Keefe is minding his own business.
[01:07:07]  His staffers are doing their thing.
[01:07:10]  And how does he get word that something's gone wrong here with the FBI?
[01:07:15]  Right.
[01:07:15]  So, as you set up in the preliminary intro here, all of the events at issue took place over a year ago.
[01:07:24]  And so, for less than a 30 day period from beginning to end, our client got this tip.
[01:07:29]  Negotiated with the tipsters who they did not know, and they negotiated through lawyers.
[01:07:34]  They then evaluated the materials.
[01:07:37]  They attempted to verify them with the Biden campaign and had conversations with a lawyer for Ashley Biden, all of whom refused to authenticate this document.
[01:07:47]  And under the circumstances, they decided not to run it, which was, I think, a very ethical decision.
[01:07:52]  It was a very juicy, salacious piece of material.
[01:07:56]  It was kind of coming out around the same time as the Hunter Biden.
[01:08:00]  Laptops, which were in fact contents, were in fact published by various publications.
[01:08:05]  So nothing was heard.
[01:08:08]  From the DOJ or from any law enforcement after the time that Project Veritas turned this diary into local law enforcement in Florida on Election Day.
[01:08:17]  Okay, so James O'Keefe learned a little over two weeks, a little less than two weeks ago, that two former journalists of his who had dealt with these tipsters had been raided.
[01:08:29]  Their homes had been raided by the FBI in these pre dawn raids.
[01:08:33]  That was a Thursday.
[01:08:35]  And so, you know, I immediately got involved.
[01:08:37]  James has a whole battery of Lawyers, including lawyers who deal with criminal subpoenas on his side.
[01:08:43]  And then two days later, the DOJ sent 10 FBI agents with bright lights, handcuffs, and a battering ram to knock down his door at 6 a.m.
[01:08:54]  6 a.m. is the time at which the DOJ says it's legal to start serving search warrants.
[01:09:01]  So on a Saturday morning, you can imagine somebody's asleep.
[01:09:05]  And so he was thrown out of the hallway of his New York apartment in his underwear in handcuffs.
[01:09:11]  For a period of time until the DOJ went in and made sure there weren't any gang of gangsters there to ambush them.
[01:09:20]  And then they spent several hours trolling through his materials and seized his current phone and his prior phone, which is currently in the possession of the United States Department of Justice.
[01:09:29]  And the pretext on which they did this was a search warrant issued by a federal judge after the first search, the Thursday search, and after the video that you've shown your listeners and your viewers.
[01:09:40]  So, minutes after that, another Search warrant is issued.
[01:09:44]  Wait a minute.
[01:09:44]  Wait a minute.
[01:09:45]  After James went on camera to explain this whole thing, after that, his house was raided?
[01:09:50]  Quick.
[01:09:51]  All right.
[01:09:51]  Let me show the audience what we're talking about because it was good.
[01:09:54]  And he laid out what happened in a little bit more detail.
[01:09:56]  I didn't realize he got raided after that.
[01:09:58]  Okay.
[01:09:58]  Watch this.
[01:10:00]  Late last year, we were approached by tipsters claiming that a copy of Ashley Biden's diary.
[01:10:05]  We had never met or heard of the tipsters.
[01:10:07]  The tipsters indicated the diary had been abandoned in a room in which Ms. Biden stayed at the time and in which the tipsters stayed in temporarily.
[01:10:14]  After Ms. Biden departed the room, the tipsters indicated that the diary included explosive allegations against then candidate Joe Biden.
[01:10:23]  We took steps to corroborate the authenticity of the diary.
[01:10:26]  At the end of the day, we made the ethical decision that because, in part, we could not determine if the diary was real, if the diary in fact belonged to Ashley Biden, or if the contents of the diary occurred, we could not publish the diary and any part thereof.
[01:10:42]  We attempted to return the diary to an attorney representing Ms. Biden.
[01:10:45]  But that attorney refused to authenticate it.
[01:10:48]  Project Veritas gave the diary to law enforcement to ensure it could be returned to its rightful owner.
[01:10:53]  We never published it.
[01:10:54]  Now, Ms. Biden's father's Department of Justice, specifically the United States Attorney's Office for the Southern District of New York, appears to be investigating the situation, claiming the diary was stolen.
[01:11:07]  We don't know if it was, but it begs the question in what world is the alleged theft of a diary investigated by the President's FBI and his Department of Justice?
[01:11:19]  A diary?
[01:11:21]  Yes, that's a very good question.
[01:11:25]  A diary.
[01:11:25]  Well, he was a raider.
[01:11:26]  That was another raid.
[01:11:27]  Very clear.
[01:11:28]  He made that video in response to his former employees and former journalists' homes being raided.
[01:11:34]  And so, you know, Megan, you know, as an attorney, if your argument as the government is you're going to come in with shock and awe and make sure that these, you know, suspected criminals don't destroy the evidence and flush the drugs down the toilet, you don't do it, you know.
[01:11:50]  Two at a time, and then do some a few days later because they do talk to each other.
[01:11:53]  One of them even has the ability to put out viral videos like that.
[01:11:57]  So the fact that they went and raided his home two days later, what are the exigent circumstances to justify ignoring?
[01:12:06]  United States Department of Justice guidelines for how you approach getting information from journalists.
[01:12:11]  And of course, common sense, which is if there's some urgency about this, why not do it earlier?
[01:12:16]  Why not do them at the same time?
[01:12:18]  The whole thing is very, very disturbing to me as a civil rights attorney.
[01:12:22]  And that is why we're so encouraged that not only the American Civil Liberties Union, but two prominent journalists' organizations have made public statements and one has filed a motion in the criminal court in Southern District of New York to seek.
[01:12:37]  The underlying search warrant affidavits that, in other words, to find out what the government told a federal judge to get this extraordinary remedy of a search warrant being executed on a United States journalist?
[01:12:51]  Because, look, this would be disturbing under any circumstances, but it must be noted that James has been a Biden administration antagonist.
[01:12:59]  And as recently as a month ago or so, he published an explosive video series claiming that there are real problems with these vaccines.
[01:13:07]  And as you know, you're not allowed to touch the vaccines, you can't say anything negative about the vaccines.
[01:13:11]  And so, you know, there's just sort of a history there that would make him perceived in an unfavorable way by Joe Biden and perhaps his administration.
[01:13:22]  Because my understanding is that Ashley Biden lost this diary, whatever happened with his diary.
[01:13:28]  I mean, I understand from James's video, the claim is that she left it behind, which is every woman's worst nightmare, but that she left it behind in some hotel room.
[01:13:35]  And then somebody else going into the hotel room was like, oh my God, this is Ashley Biden's diary.
[01:13:39]  And there's crazy stuff in here that she left it behind.
[01:13:42]  But she was only then.
[01:13:45]  candidate Biden's daughter.
[01:13:48]  So what would the FBI, what kind of jurisdiction, like why would they be involved at all?
[01:13:52]  Why would they be involved at all under any circumstances, whether it's, you know, you or me or the adult troubled daughter of the current president of the United States?
[01:14:03]  The answer is they shouldn't be involved.
[01:14:06]  And, you know, there's supreme, there's so many threads here, Megan.
[01:14:10]  It would, you know, take hours to go through the problems with this.
[01:14:13]  But just to start at the top, the United States Supreme Court Has ruled in multiple cases, and the most recent and well cited of these is Bart Nickey versus Vopper in 2001.
[01:14:22]  So, 20 years ago, the United States Supreme Court ruled that it is perfectly legal for a journalist to be in possession of and to publish stolen property.
[01:14:32]  Yeah.
[01:14:33]  Okay.
[01:14:33]  That's why, just to jump in, that's why we saw all the press publish the Sarah Palin stolen emails and defended that, right?
[01:14:41]  Because they weren't the ones who stole them.
[01:14:43]  But if you're given stolen emails and they're newsworthy, you can publish them.
[01:14:47]  That's the position James says he was in.
[01:14:49]  Sorry to interrupt.
[01:14:49]  Go ahead.
[01:14:50]  Absolutely correct.
[01:14:51]  And on top of that, you know, there's a long history of this.
[01:14:54]  And on top of that, the entire press corps in DC, you know, paid its mortgages over the last five years over stolen materials from the Trump administration.
[01:15:07]  And so nobody ever broke down their doors.
[01:15:11]  And so, you know, what's even more ironic is that just this week, one of the main critics of the Project Veritas and opponent in litigation, the New York Times, published several legal memos that, Are from Project Veritas.
[01:15:25]  I don't know how they got their hands on it.
[01:15:26]  I will say, I think that raises a lot of questions about some correspondence happening between the DOJ and the New York Times.
[01:15:33]  But, you know, so on the legal front, it's legal to possess and publish stolen material as the press, period, full stop, not an open question.
[01:15:43]  And on top of that, the United States Department of Justice, in a slap to the prior administration in July of this year, issued very detailed guidelines saying we will no longer issue search warrants to journalists or subpoenas.
[01:15:56]  Except in circumstances involving their being suspected with probable cause of committing the crime in question.
[01:16:04]  I don't think.
[01:16:05]  The DOJ has that evidence.
[01:16:07]  I feel pretty confident they don't have that evidence because my client did what journalists do every day in the United States and the world respond to a tip, evaluate the tip, decide not to run the tip, and turn the material over to somebody else.
[01:16:21]  I will also add that the materials in this diary got published without our client's participation in a different publication called the National File.
[01:16:31]  And they're out there for people to read, and they have been for a year.
[01:16:36]  It's really sad stuff.
[01:16:37]  I haven't Read through all of it.
[01:16:39]  You know, I think people would have found it newsworthy, but it could not be verified at the time.
[01:16:44]  What's also disturbing, Megan, is that the New York Times was tipped off to these raids at the same time or in advance of them happening.
[01:16:53]  So, both of the raids on the two journalists that happened on the Thursday before James was raided, the New York Times was Johnny on the spot, immediately asking for comment within minutes of those raids occurring.
[01:17:04]  No other journalist was.
[01:17:05]  And these people aren't exactly, you know, these raids aren't happening in Times Square.
[01:17:09]  They're not happening in places where anybody could see them.
[01:17:12]  Same thing with James's raid.
[01:17:13]  You know, James's phones have been taken, but the New York Times is calling the lawyer for comment within minutes of it happening after 6 a.m. on the East Coast time.
[01:17:22]  It's clear that the DOJ has a leak to the New York Times.
[01:17:26]  And that's disturbing as well.
[01:17:27]  Imagine if it were you or me and a legitimate law enforcement operation is happening and your litigation opponent is getting leaks from the DOJ.
[01:17:36]  So, Tom Cotton has demanded an investigation by a letter to Merrick Garland into exactly what happened here.
[01:17:45]  And how the DOJ is ignoring its own guidelines with respect to sending, you know, battering rams to the doors of United States journalists.
[01:17:54]  I think everybody should be worried about this, whether you like Project Veritas or not.
[01:17:57]  That is crazy.
[01:17:58]  It's not like James is accused of running a shop of terror.
[01:18:02]  It's a diary.
[01:18:04]  Who uses a battering ram on the home of a journalistic outfit that, and it's over, right?
[01:18:10]  He says he already gave it over to law enforcement.
[01:18:12]  He never passed it.
[01:18:13]  A year ago.
[01:18:14]  A year ago on Election Day, a year ago.
[01:18:16]  And so he doesn't have possession of it.
[01:18:18]  They know this.
[01:18:18]  The Biden family, the Biden campaign refused to ever corroborate the authenticity of this document.
[01:18:24]  So, what standing do they have?
[01:18:26]  And what is really going on here?
[01:18:28]  I'll tell you what I think is going on.
[01:18:30]  The two telephones that were received from our client and probably other materials from his former colleagues include, but are not limited to, numerous attorney client communications between Mr. O'Keefe and his lawyers, including me.
[01:18:42]  I represent Project Veritas in lawsuits against Twitter and against CNN.
[01:18:47]  And there are about three dozen other lawyers who are listed in our motion.
[01:18:51]  For a special master to the Southern District of New York, which the court has ordered a response to.
[01:18:56]  Also, all of Project Veritas is confidential donor information.
[01:19:00]  Project Veritas is a nonprofit journalism outfit, and their donors communicate with Mr. O'Keefe, their information is private and secure from government inquiry under the First Amendment in a Supreme Court case that was recently ruled on in the Bonta case.
[01:19:18]  And then finally, and probably most troubling, Is all of Project Veritas' sources who communicate with James O'Keefe?
[01:19:26]  As you mentioned, he is a critic of the United States government and has been forever.
[01:19:31]  He is a critic of big tech and has executed multiple sting operations on every major American big tech corporation.
[01:19:38]  And finally, Big Pharma.
[01:19:40]  There are numerous leaks coming out with respect to Big Pharma.
[01:19:42]  He has had a sting operation on CNN.
[01:19:45]  It goes on and on.
[01:19:46]  The government has the diary, or Ms. Biden has her diary back.
[01:19:52]  But what the government also has now is multiple types of confidential privilege communications that are protected by the First Amendment and many other laws.
[01:19:59]  And what are they doing with it?
[01:20:01]  I do not know what they're doing with it.
[01:20:03]  When our chief counsel, Paul Cally, who's handling this matter, Asked the DOJ to pause the review of those until we could get the court to weigh in on it.
[01:20:12]  They said, no, we're not going to pause it.
[01:20:14]  So now the court has ordered a pause on the review of those materials until a special master can be considered by the court.
[01:20:20]  And the journalism organization I mentioned, the Reporters Committee for Protection of Journalists, I'm getting the name wrong, has also filed a motion with the court to unseal those materials that underlie this because it should be of concern to every reporter and every journalist in America.
[01:20:38]  What does it take for the government to get the opportunity to seize your notes, your communications with your lawyers, and other private information?

=== Timing and Political Stings (02:33) ===

[01:20:47]  And the timing is so suspicious, right?
[01:20:49]  Like, what was there an immediate catalyst right before the raid?
[01:20:57]  I would be speculating, Megan, but like you pointed out, James and his stings on Big Pharma have certainly gotten under the skin of probably Big Pharma, which is very closely allied to Big Biden.
[01:21:10]  And of course, there's We are suing the New York Times, CNN, Big Bad.
[01:21:17]  I mean, there are a lot of interesting parties who speak directly to people in the White House who are actually running this country.
[01:21:22]  This is not really the president, in my opinion.
[01:21:24]  But, you know, there are a lot of people who would like to see James O'Keefe sidelined.
[01:21:28]  You take away journalists' source materials, you expose their privileged communications with their lawyers about sources and methods, you start going after and investigating their donors.
[01:21:39]  That's how you take down a critic of the government.
[01:21:42]  That's not American.
[01:21:44]  This is crazy.
[01:21:45]  This is third world stuff.
[01:21:46]  This doesn't, this should not and cannot be allowed to happen in America.
[01:21:51]  This is deadly serious.
[01:21:52]  This isn't just whatever, whatever you think about James O'Keefe.
[01:21:56]  And I think I love him.
[01:21:58]  This is crazy stuff, what they're doing to him.
[01:22:01]  And it's an incredibly slippery slope.
[01:22:03]  But for all the fears about Trump being authoritarian, right?
[01:22:06]  And his approach, Joe Biden took some lessons from Barack Obama from the way this seems because he did this to journalists.
[01:22:14]  He did this to my own colleague, James Rosen.
[01:22:16]  At Fox News, not this exact thing, but tried to come down on him as an unindicted third party co conspirator and trying to get his sources for a story, I think, about North Korea.
[01:22:27]  And journalists uprose at the time and said this was outrageous.
[01:22:30]  Now, Trump, he sent me tweets.
[01:22:33]  They were mean tweets.
[01:22:34]  And really, I received some.
[01:22:36]  It wasn't pleasant.
[01:22:37]  This is a totally different ballgame.
[01:22:39]  Where are all the people, all of them?
[01:22:41]  Why isn't this CNN, if it had a heart, would be leading its broadcasts with this story in a way that condemns the Biden administration?
[01:22:49]  I mean, that's the thing is, yeah, like I'm a, before I was a lawyer, I was a journalist, Megan.
[01:22:54]  I was a James O'Keeffe style gadfly at Dartmouth College.
[01:22:59]  And, you know, I was under the skin of the administration.
[01:23:02]  The administration eventually suspended three of my colleagues.
[01:23:05]  We went into federal court with ACLU lawyers and we got my colleagues reinstated.
[01:23:09]  And the whole, you know, national media on both sides was interested in that story 30 years ago.
[01:23:15]  Today, fast forward, it's like, hmm, you know, whose ox is gourd if it isn't happening to me?

=== Journalists Facing Retaliation (06:06) ===

[01:23:20]  I don't really care.
[01:23:21]  Well, you know, Joe Biden is not going to be the president of the United States forever.
[01:23:26]  And at some point, the tables will turn.
[01:23:28]  And do we really want a Republican administration or even a different Democrat administration having the ability to use the brute force of the Department of Justice to go after journalists for, frankly, trivial matters?
[01:23:42]  And if you look at Tom Cotton's letter, which I've posted on my Twitter profile at PNJABAN, you will see that he is listing out a number of serious questions.
[01:23:51]  The predicates for this search warrant.
[01:23:54]  Do not appear to comply with, you know, frankly, the circumstances here.
[01:24:00]  And so it will really be interesting to find out.
[01:24:02]  And the court has the ability to order the DOJ to turn over.
[01:24:06]  Exactly, what the DOJ said to a federal judge to warrant invading a journalist's privacy.
[01:24:14]  I can't even imagine or can think of the last time I ever heard of battering rams and 10 FBI agents outside an American journalist's home.
[01:24:24]  This is unprecedented and it's disgusting.
[01:24:26]  Me neither.
[01:24:27]  And I mean, I have to ask you because, of course, the past two months, less than, we've been dealing with the story about Merrick Garland and his DOJ threatening to prosecute parents.
[01:24:39]  Who he thinks gets out of line at school board meetings, something that was based on a letter from the National School Board Association or whatever the acronym is, which has been withdrawn.
[01:24:50]  They withdrew it, but he didn't withdraw his threat.
[01:24:53]  He stands by his threat to go after anybody who commits, quote, violence or threats of violence.
[01:24:59]  Threats of violence are not illegal.
[01:25:00]  They're not illegal.
[01:25:01]  And he has no jurisdiction here, but it's the same guy.
[01:25:03]  I mean, this is the Department of Justice in both cases going after people they dub enemies of this administration's agenda.
[01:25:13]  Absolutely.
[01:25:13]  And, you know, you said earlier, look at what they're doing to James O'Keefe.
[01:25:18]  In a nominal sense, they're doing it to James O'Keefe.
[01:25:21]  In a very real sense, they're doing it to you and me and every person watching or listening to this broadcast and every American.
[01:25:29]  And what they are doing to us is number one, depriving us of truthful information about what's happening in our country.
[01:25:35]  Number two, they are silencing journalists who will be cowed by this because not every journalist has the intestinal fortitude to go out and do a live stream after their colleagues have their homes raided by the FBI.
[01:25:47]  And send their lawyers out.
[01:25:49]  They don't have the wherewithal to send their team of lawyers out to talk to the media about what happened.
[01:25:53]  And they don't have the wherewithal to reach United States representatives to talk about these issues and ask questions.
[01:26:00]  The same thing is happening to these parents.
[01:26:03]  Merrick Garland may never arrest a single parent, but by making these types of threats, he will intimidate hundreds of thousands of them from coming out to speak at or protest at or make their views heard at school board meetings throughout the United States at a time when it is vitally important.
[01:26:21]  That we all exercise that franchise and that right to have our voices heard under the First Amendment.
[01:26:27]  The right to petition your government is a protected right under the First Amendment, just like the right to freedom of the press, freedom of speech, and freedom of religion and freedom of association.
[01:26:37]  And the other thing that, just to add, you mentioned it earlier that would chill reporters when they see this is the exposure of your sources.
[01:26:45]  I mean, without your sources, you're dead.
[01:26:47]  You got nothing.
[01:26:48]  Most of these reporters out there doing the beat reporting, and it's already a tough enough job to make it in these days.
[01:26:53]  If you've got sort of the aura of the government's going to seize all of his records and your name's going to be in there, really tough to gather information.
[01:27:01]  But the last question I wanted to ask you, Harmita, is we know in the school board association thing that it was the White House who ginned this whole thing up with that school board association.
[01:27:10]  They're the ones who were like, let's work together on the letter, then you can send it, and then we'll give it off to the DOJ.
[01:27:15]  And the DOJ then took its marching orders, so it appears, from President Biden.
[01:27:19]  And now in this case, you tell me whether it's a coincidence that it all centers around.
[01:27:24]  Joe Biden's daughter, who's apparently upset that her diary got stolen.
[01:27:29]  And do you think this does have the White House's fingerprints on it?
[01:27:33]  Well, I don't know that the diary was stolen.
[01:27:35]  I mean, I think it's public record that she has a troubled history with substances like Hunter Biden.
[01:27:41]  And, you know, that's sad.
[01:27:44]  And, you know, that's something that the family should probably work on.
[01:27:46]  I don't know on what basis the I would find it hard to believe that the Southern District of New York.
[01:27:56]  Started and move forward with this investigation without ever running it by Maine Justice.
[01:28:01]  Because Maine Justice's guidelines are that.
[01:28:04]  Anything involving journalists is treated differently.
[01:28:07]  There's different rules.
[01:28:08]  In fact, in July of this year, Merrick Garland's memo, which is publicly available, it's a three page memo, it specifically says that we're not going to do this anymore.
[01:28:17]  We're not going to go to journalists' homes and whatever.
[01:28:19]  They have the right to publish stolen material.
[01:28:21]  It even quotes this case, Bart Nickey versus Vopper.
[01:28:24]  And so I think that how do multiple protections get overridden by our government?
[01:28:31]  Well, Joe Biden and his White House have the ability to do that and direct.
[01:28:36]  Direct the DOJ.
[01:28:37]  They're using the DOJ for political purposes.
[01:28:39]  This is shameful.
[01:28:41]  This is crazy.
[01:28:42]  This is a crazy case.
[01:28:44]  We've got to continue to watch this.
[01:28:46]  Really hope you win your motion to show us what the underlying support was for the government going in there and getting these warrants.
[01:28:54]  That'll be fascinating.
[01:28:55]  And that you get your special master so that it's a third party reviewing James's phone or whatever else they say they get to keep and not the government directly.
[01:29:03]  Harmie, thank you.
[01:29:04]  We really appreciate it.
[01:29:05]  Thank you, Megan.
[01:29:06]  And we will continue the latest on Rittenhouse tomorrow.
[01:29:09]  Go to youtube.com slash Megan Kelly to see the show.
[01:29:13]  Thanks for listening to The Megan Kelly Show.
[01:29:15]  No BS, no agenda, and no fear.