The Megyn Kelly Show - 20230120_scotus-leaker-investigation-fails-baldwin-charges-
Aired: 2023-01-20
Duration: 01:35:54


=== John Roberts and the Leaker (14:47) ===

[00:00:15]  Welcome to the Megan Kelly Show, your home for open, honest, and provocative conversations.
[00:00:26]  Hey, everyone, I'm Megan Kelly.
[00:00:28]  Welcome to the Megan Kelly Show, and happy Friday.
[00:00:31]  A big day for legal news.
[00:00:33]  Whoa!
[00:00:34]  In just a little bit, we're going to be digging into the Alec Baldwin involuntary manslaughter charge connected to that movie set shooting.
[00:00:40]  The prosecutors are speaking out, I have to say, in an extraordinary way, detailing exactly why they charged him and what they think about the strength of their case.
[00:00:50]  And now, all the defense lawyers are speaking out as well: the defense lawyer for Alec Baldwin, for Hannah Gutierrez-Reed, the armorer, and for the first assistant director who has pleaded guilty to a lesser charge than involuntary manslaughter, basically negligence with a gun.
[00:01:07]  And we'll give you all those reactions, plus the somewhat bizarre reaction now from the family of the victim, Helena Hutchins.
[00:01:14]  We'll get to all of that.
[00:01:15]  There's also a series of new developments in the Idaho murder case.
[00:01:18]  A lot has come in on that.
[00:01:19]  We're going to bring you those as well with a reporter who's been all over it, and then a former FBI analyst who you know well.
[00:01:26]  He helped solve a Unabomber case, among others.
[00:01:28]  He's got fascinating thoughts on this, and we're going to get to all of it.
[00:01:32]  We begin, however, with the unbelievable news out of the U.S. Supreme Court: what a disgrace.
[00:01:37]  This is a disgrace.
[00:01:39]  After months and months of supposed investigation and even a threat against a justice's life, the Oye, Oye, Oye Marshal failed to figure out who leaked the draft of the Dobbs opinion, or so they would have us believe.
[00:01:54]  But her team did uncover a series of flaws with the way the court handles information.
[00:01:58]  That too is rather shocking.
[00:02:00]  Here to discuss it all is Ilya Shapiro, Director of Constitutional Studies at the Manhattan Institute.
[00:02:06]  He's also the author of Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court.
[00:02:13]  Ilya, welcome back.
[00:02:14]  So glad you could be here today.
[00:02:16]  I have to say, I don't believe any of this.
[00:02:20]  I don't believe that they were not capable of identifying the leaker.
[00:02:24]  And if I'm wrong, and that is true, it is an absolute disgrace and black mark on this court.
[00:02:31]  How pathetic.
[00:02:33]  So that's my off-the-cuff tape.
[00:02:37]  Tell us how you really feel, Megan.
[00:02:39]  I just look at, you know, I covered the high court as a reporter for over three years.
[00:02:45]  I sat in on justice, argument after argument after argument, and did tons of reporting for Fox News on them.
[00:02:50]  I practiced law for 10 years.
[00:02:51]  I've got some familiarity with this body and how austere it is.
[00:02:55]  And I don't believe that they're incapable of getting to the bottom of this.
[00:02:58]  And I believe that if they really wanted to, they would have farmed it off to the FBI.
[00:03:02]  What they've done instead is take the word of this marshal who knows nothing about investigating in any meaningful way.
[00:03:10]  And then to give her cover, brought in Michael Chertoff, former Homeland Security Chair Chief under Bush to say, Yeah, I can't see anything more they could do, which is a fig leaf.
[00:03:21]  Get the FBI involved, put somebody under oath, get real answers.
[00:03:26]  They don't seem to have an appetite for doing it, and it also doesn't appear they even bothered to interview the justices, though that's unclear.
[00:03:34]  So, what do you think?
[00:03:35]  Yeah, that last point is real.
[00:03:38]  It didn't mention it, and it mentioned a lot of the things that they did.
[00:03:42]  So, it sounds like they did not interview the justices, which isn't to suggest that it's likely that one of the justices was the leaker, but maybe they could have some insight or say something that could gain a lead or something like that.
[00:03:57]  But it seems like this is not a failure as much of the investigation.
[00:04:03]  I might disagree a little bit with you there.
[00:04:07]  I was actually pleasantly surprised to see that they did look at phone records, electronic records, interviewing 100 people.
[00:04:15]  Now, again, raising lots of questions.
[00:04:17]  Why would nearly 100 people have access to sensitive drafts?
[00:04:20]  But that's a future prophylactic measure that hopefully they're putting in now.
[00:04:25]  But it seems like there's no way to record who prints out sensitive drafts, who takes them home, all of that sort of thing.
[00:04:32]  It really revealed a lot of holes in the document tracking security operations in the court.
[00:04:40]  The investigation, maybe they should have talked to some of the spouses and boyfriends, girlfriends that the clerks and others talked to about the draft.
[00:04:50]  That might be a little hole in violation of the code of conduct.
[00:04:56]  But otherwise, they did have everyone sign affidavits under penalty of perjury, under penalty of violating federal law, that they were not the source of the leak, that they did not do anything to get that draft out to where it shouldn't be, which means that at this point, to me, despite those holes in the record keeping or because of them,
[00:05:21]  it's most likely that someone used old school technology, not hacking or anything like that, but burner phones and dead drops and or just carelessness, leaving a draft somewhere either inside or outside the court where a member of the public or a journalist or anybody could find it.
[00:05:40]  That could well be.
[00:05:41]  There are journalists roaming the Supreme Court.
[00:05:42]  So one of these things was left out.
[00:05:44]  Maybe a political reporter picked that up.
[00:05:47]  Definitely disappointing that after eight months, we still don't know.
[00:05:50]  Not a chance that happened accidentally.
[00:05:52]  No way.
[00:05:53]  Just so happened to be the reversal of Roe versus Wade in the Supreme Court history.
[00:05:56]  That was the one decision that, oh, whoopsie, somebody didn't mind it properly.
[00:06:00]  No, that didn't happen, period.
[00:06:02]  I don't believe that and I never will.
[00:06:04]  However, here's what they say about the computers and phones.
[00:06:06]  Yes, they had them sign a one-line affidavit under penalty of perjury affirming that he or she did not disclose the Dobbs draft opinion.
[00:06:14]  Okay, one line.
[00:06:15]  That is not the same as having somebody sitting across from an FBI agent where you know everything you say, if it's a lie, will be used against you in a criminal proceeding, potentially.
[00:06:24]  Everything you say has to be truthful.
[00:06:27]  They say the investigators collected court-issued laptops and mobile devices from all personnel who had access to the draft opinion.
[00:06:37]  Now, I don't know whether court-issued applies both to laptops and to mobile devices, or if court-issued only applies to laptops and they also looked at people's personal mobile devices.
[00:06:52]  But if they didn't get these clerks' personal phones, this is a joke.
[00:06:57]  It's a joke.
[00:06:58]  Why didn't I get an affidavit that attested that you didn't have a burner phone, that you've given full access to your personal phone and any professional phone to the investigator seeking answers in this case, and also your personal laptop?
[00:07:10]  Like, what?
[00:07:10]  This was so prophylactic, Ilya.
[00:07:12]  I can't believe you're defending it.
[00:07:15]  Well, look, I think that whoever did this took steps to cover themselves up.
[00:07:21]  And I'm not an expert in forensic investigations, digital or otherwise.
[00:07:24]  There are certainly gaps there, but there's, I don't think getting the FBI involved necessarily would have fixed those.
[00:07:29]  I mean, the FBI itself as an institution is in some disrespute for all sorts of reasons right now as well.
[00:07:35]  So there certainly were failures in this investigation.
[00:07:39]  But, you know, if indeed they didn't look, you know, chase down personal devices as well, it seems like, well, to get to a personal device, you would have had to send it somehow or access it from a court device.
[00:07:51]  but it says that those court devices did not keep records, apparently, of who sent emails, where or access drafts.
[00:07:58]  So it may well look, there are definitely no investigation is perfect.
[00:08:02]  This one does not look that way.
[00:08:04]  But I think there are bigger gaps in how the drafts and the information is transmitted in the first place, such that even a perfect investigation based because so much of the security in the past has been based on norms and trust rather than these kinds of detectable systems.
[00:08:26]  It could be that it would be impossible to detect.
[00:08:29]  I don't know, but you're right.
[00:08:30]  There are definite holes in this investigation, even though Mike Cherdoff, former judge, former cabinet secretary, said that it was as thorough as could be.
[00:08:39]  That's a joke.
[00:08:40]  That's a joke.
[00:08:41]  His little rubber stamp does absolutely nothing for me.
[00:08:44]  Get a real investigator in there, someone who knows.
[00:08:46]  What is Mike Cherdoff?
[00:08:48]  Does he have a long history of investigating crimes like this?
[00:08:51]  Not that I know of.
[00:08:52]  Just because he ran Homeland Security doesn't mean that's the case.
[00:08:54]  He was also U.S. attorney.
[00:08:56]  I mean, look, nobody trusts this.
[00:08:57]  The left still thinks it was someone from the right.
[00:09:00]  The right still thinks it's someone from the left.
[00:09:02]  Ultimately, the court is no better off for having, in fact, it's probably worse off for having this nothing burger report about the investigation.
[00:09:09]  I don't think it's, I don't know who, whose incentive it is to not find the answer to this question.
[00:09:16]  So I would think that John Roberts would want a thorough investigation.
[00:09:20]  Okay, but I don't agree with that.
[00:09:21]  So first of all, the leaker could have been a justice.
[00:09:23]  Absolutely could have been a justice.
[00:09:25]  We don't think so.
[00:09:25]  You and I have, you know, we've both had ties with the court that makes you think these justices would never cross that line.
[00:09:32]  It's extraordinary.
[00:09:33]  But given how high stakes Dobbs was and the reversal of Roe versus Wade, all bets are off.
[00:09:38]  And the fact that they didn't bother, as it appears at least, to interview the justices, one thinks they would have highlighted that had they done it.
[00:09:46]  They would have been proud to say they had done it.
[00:09:49]  It adds a shadow over the justices.
[00:09:51]  Again, it makes them even more suspicious.
[00:09:53]  Why wouldn't you talk to them?
[00:09:54]  Who would have been in charge of that?
[00:09:55]  Chief Justice John Roberts.
[00:09:57]  That's the irony here.
[00:09:58]  You're trying to protect the court's reputation.
[00:10:01]  And the negative inference from this report is that it's more likely to be a justice than we would have thought before the report came out.
[00:10:10]  So it really, again, this report is not satisfying in the least.
[00:10:15]  You call it a joke.
[00:10:16]  I mean, it might be a, there are holes.
[00:10:19]  There are gaps.
[00:10:19]  It's unsatisfying.
[00:10:21]  And as I said, it only deepens divisions, does nothing to resolve, only heightens tensions.
[00:10:27]  So, you know, I doubt this is the result that John Roberts wants.
[00:10:31]  So either he himself did not direct a proper investigation or the marshal didn't take his instructions seriously or disagree with it or what have you.
[00:10:39]  But I don't know whose incentive it is not to have a full and thorough investigation that at least, even if it doesn't detect who it is because of defects in the court's internal information security, at least chases down as far as possible, including certainly interviews with the justices.
[00:10:57]  I think it's Chief Justice John Roberts' incentive.
[00:10:59]  I think he's Gail's boss.
[00:11:01]  Gail is the court clerk.
[00:11:04]  Just FYI, her name is Gail Curley.
[00:11:06]  She was appointed June 21, 2021, about 53 years old.
[00:11:09]  Previous job was head of the National Security Law Division in the Army's Office of Judge Advocate General.
[00:11:13]  She's a lawyer.
[00:11:14]  Okay.
[00:11:15]  She's a lawyer.
[00:11:15]  She went to the University of Illinois College of Law.
[00:11:17]  And by the way, so is Michael Chertoff.
[00:11:19]  U.S. attorney doesn't mean you're a great investigator.
[00:11:21]  Get an FBI agent on.
[00:11:22]  Get somebody who actually investigates crime, not prosecutes it.
[00:11:25]  There's a difference.
[00:11:27]  So she's not an investigator and she works for him.
[00:11:30]  That's her boss.
[00:11:31]  That's her boss's boss's boss.
[00:11:33]  Chief Justice John Roberts could not be higher than Gail Curley on the power totem pole.
[00:11:38]  And so if he gave her some sort of implicit direction that this is who he wanted her to interview and not interview, and like it could be very harmful to the court if the investigation were to nail a poor law clerk who made a terrible mistake and then ruined that person's career, that's something to keep in mind.
[00:11:56]  There are ways of telegraphing to old Gail what you want and what you don't want.
[00:12:00]  And Chief Justice John Roberts is smarter than anybody and would know exactly how to do it.
[00:12:06]  And by the way, Ilya, it could have been, he could have been the leaker.
[00:12:09]  He could be doing this so that he doesn't get caught.
[00:12:13]  I mean, this ultimately the buck stops with him.
[00:12:16]  He is the Chief Justice.
[00:12:17]  He directs the investigation.
[00:12:18]  He came out with a statement the day after the leak saying that there would be an investigation.
[00:12:24]  And you're right.
[00:12:25]  Again, another consequence of this ill-fated, unsatisfactory report is that it throws more shade again back at the Chief Justice.
[00:12:38]  But, you know, he's shown in the past that he's not the best, not the savviest political operator, regardless of his legal acumen in terms of his kind of attacking left and right, trying to find compromises, trying to extricate the court politically that only gets it more looking politically.
[00:12:56]  So I don't know if he's going to get a second bite at the apple or as he sees the fallout from this where nobody's satisfied how he's going to think about it.
[00:13:04]  But you're right.
[00:13:05]  Ultimately, the failure to find the leaker is back at his feet.
[00:13:12]  He was one of the suspected leakers from the beginning.
[00:13:14]  A lot of people looked at him because let's not forget this opinion was leaked, I think, May 2nd and didn't come out officially, I think, until early July.
[00:13:22]  So two months before it was actually going to hit.
[00:13:24]  And the opinion that they leaked was one from early February.
[00:13:28]  And it was an opinion in which five conservatives, not Chief Justice Roberts, were joining together to overrule Roe versus Wade.
[00:13:37]  And it was written by Justice Alito.
[00:13:39]  That is how it ultimately turned out.
[00:13:41]  Chief Justice Roberts was not in that five-person majority.
[00:13:44]  He wrote his own opinion.
[00:13:46]  And there was speculation, only speculation, that he had reason to leak it because he thought perhaps Kavanaugh or maybe Amy Coney Barrett might be a little squishy on joining that majority and might have misread the tea leaves to think, oh, there'll be such enormous pressure from the left, from the media, from the center on these justices not to do this that they could be recruited over to join him.
[00:14:09]  And then there would not be a majority to overturn Roe versus Wade, which is what John Roberts wanted.
[00:14:13]  He did not want to overturn Roe.
[00:14:15]  So you could really make a strong case that he had reason to have this out in the public before it was final.
[00:14:22]  I don't know if he had more of an incentive along those lines than the justices on the left, Kagan, Sotomayor, and Breyer.
[00:14:31]  They would have gone the other way entirely.
[00:14:33]  His was the compromise position to try to uphold the Michigan 15-week restriction without overturning Roe, which ultimately garnered zero votes other than his own.
[00:14:42]  So it could have been.
[00:14:43]  Again, we're all speculating, but the reason why we're speculating is because this report gets us no further.
[00:14:50]  I mean, I'm just shocked at the lack security in the first place.
[00:14:54]  I'm shocked that there haven't been more leaks.
[00:14:56]  Bush v. Gore, Citizens United, all of these huge cases that we've had in recent times.
[00:15:01]  None of them leaked.

=== Professional Consequences for Staff (08:46) ===

[00:15:03]  And this one did.
[00:15:04]  Could you believe they don't have a printer log?
[00:15:06]  I mean, every law firm I ever worked in, you have to type, and not to mention even at NBC, you had to type in your own little number before you could print a doc, any document, so that there was always a record of who hit print on this.
[00:15:22]  The U.S. Supreme Court doesn't have that.
[00:15:25]  They don't even have it for the people who are accessing the draft opinions.
[00:15:28]  It's insanity.
[00:15:30]  You know, that leads me to believe that it wasn't some sort of common court printer in the staff area, that it was indeed one of the chambers, a court, a clerk printing it out from a chambers printer, which wouldn't necessarily be expected to have one of those logs, although I'm sure now they'll put them in place and then print it out.
[00:15:45]  And the leak to Politico, I think it's more likely than not that it was actually a hard copy that was passed along than some sort of email forwarding or something.
[00:15:54]  And obviously, once you have a printout out there, that's impossible to track.
[00:15:58]  You can take it home in your briefcase.
[00:15:59]  Here's the thing that's really the it's one of the most galling.
[00:16:04]  So they bring in, they bring in Chertoff.
[00:16:07]  Okay, again, former Homeland Security chief, former judge, and they ask him to assess the Marshals' investigation.
[00:16:13]  Fig leaf, fig leaf.
[00:16:15]  Who goes to Mike Cherdoff?
[00:16:17]  I mean, honestly, I don't get it.
[00:16:20]  He has advised, this is according to the 23-page report that the court released covering its butt on this.
[00:16:26]  He has advised that the Marshal undertook a thorough investigation.
[00:16:30]  And at this time, quote, I cannot identify any additional useful investigative measures not already undertaken or underway.
[00:16:41]  Why is that where this lands, Ilya?
[00:16:43]  Why isn't it?
[00:16:44]  We will do everything within our power to take the next step.
[00:16:48]  We will now bring in the FBI, which we can see from our windows inside the court, which would be happy to assist us.
[00:16:56]  I realize they've been controversial.
[00:16:59]  Law enforcement, this kind of thing, that's their bailiwick.
[00:17:02]  That's their forte.
[00:17:03]  It's when they're doing their domestic intelligence investigations on the rest of us that we get problems.
[00:17:07]  But this, this, the FBI can do.
[00:17:09]  We're going to have a former FBI agent on later this show, and I'm going to ask him this.
[00:17:13]  But why stop at Chertoff?
[00:17:17]  Gail did everything she could.
[00:17:20]  That stinks.
[00:17:23]  They figure they needed some outsider to put an imprimatur, to put a stamp of approval on the investigation.
[00:17:31]  Cherdoff's about as good a person as you wake if you're going for one person to do that.
[00:17:35]  He's in a Republican administration, but sort of, you know, seen as level-headed and sort of a moderate figure.
[00:17:45]  I don't know.
[00:17:45]  I mean, maybe they could have gotten a council of former U.S. attorneys appointed by different presidents.
[00:17:50]  That's sort of beside the point.
[00:17:53]  Or get an investigator.
[00:17:55]  Get an investigator.
[00:17:57]  Not a lawyer, not a judge who sat there in robes, and not a guy who's basically a top administrator.
[00:18:02]  Get somebody who knows how to cross-examine witnesses.
[00:18:06]  I mean, here's what's going to happen next in this one glimmer of hope.
[00:18:10]  The House is going to investigate this.
[00:18:12]  Thank God.
[00:18:12]  Thank God.
[00:18:13]  Thank God Republicans won the House.
[00:18:15]  They're going to investigate this.
[00:18:17]  And Jonathan Turley had an interesting piece now, a fellow lawyer and George Washington University law professor saying, now it's going to get interesting because they have subpoena power and they will call in these some 83 people that they've interviewed in this investigation, maybe more, law clerks and so on.
[00:18:33]  That's temporary staff, as well as permanent staff who were interviewed.
[00:18:36]  And they'll put them under oath and they could offer everybody immunity.
[00:18:40]  He's making this point.
[00:18:41]  And once you have immunity, you must testify.
[00:18:44]  You can no longer assert your Fifth Amendment right not to testify because you got immunity and ask everybody, did you do it?
[00:18:49]  Did you do it?
[00:18:50]  Did you do it?
[00:18:51]  Now that could take us someplace.
[00:18:53]  I would love to see it.
[00:18:56]  It seems like, I mean, that would be a good step.
[00:19:00]  And for that matter, they don't need to necessarily televise this stuff.
[00:19:03]  If they're really serious about getting to the bottom of it, you don't need public hearings.
[00:19:07]  You can have just like the intelligence committees do on Capitol Hill, the only ones that are productive.
[00:19:11]  So it doesn't become a TV circus, but you could do that investigation behind closed doors led by House Judiciary.
[00:19:18]  Absolutely.
[00:19:18]  And one other point, Megan.
[00:19:20]  So they interviewed by the report 97 people, 126 interviews.
[00:19:25]  So that means some people they decided they needed to re-interview, which is interesting.
[00:19:29]  And also, that language that you quoted at the outset, that they couldn't find the leaker by a preponderance of the evidence, meaning no one that they could say it's more likely than not is the leaker.
[00:19:40]  But it does mean that they do have some suspects.
[00:19:43]  So maybe it's worth pursuing, you know, whoever those suspects are, see if they can get those percentage of that percentage of being convinced that they're the leaker up from, oh, well, there's a 20% chance up to that 51% or whatever.
[00:19:57]  So it does seem like there is room for further investigation, contrary to what Cherdoff certified.
[00:20:05]  This is so upsetting.
[00:20:10]  The justices' lives are on the line.
[00:20:12]  They are.
[00:20:13]  You know, I mean, that's what Alito came out and said that.
[00:20:16]  Some of the other justices have said that this truly could have led to an assassination attempt.
[00:20:22]  Could have seen multiple.
[00:20:24]  I mean, we had the thing with Kavanaugh, right?
[00:20:25]  Where the guy got, he was self-reported.
[00:20:27]  He was going to assassinate him.
[00:20:30]  Because if this is the new norm where you can get away with this, where there's really no consequences, Charlie was making this point too.
[00:20:37]  The main deterrent you have is the consequences of such a thing.
[00:20:41]  If you're going to breach the ethics, you're not an ethical person.
[00:20:44]  So what's the main deterrent we have to prevent it from happening in the future?
[00:20:48]  We have to throw the book at whoever did this.
[00:20:49]  We have to find them.
[00:20:50]  We have to throw the book at them.
[00:20:52]  And now we don't have that.
[00:20:53]  And there's a shoulder shrug.
[00:20:56]  Gil couldn't do it.
[00:20:57]  And Cherdoff gave it his blessing.
[00:20:59]  It's not, we're sicking the FBI on you.
[00:21:02]  And they'll get all your phone calls.
[00:21:05]  They will get all your emails.
[00:21:06]  They will look at all the search history on your home phone and your home computer, right?
[00:21:10]  Like that's scary.
[00:21:12]  And it also happens to lead to results.
[00:21:16]  So we're in a new era and it's dangerous.
[00:21:19]  I'll ask you about one other thing.
[00:21:20]  Trump on Truth Social is demanding that they arrest the reporter, the publisher, and the editor at Politico.
[00:21:28]  I'm going to assume you agree with me that that's insane and is not the way to go about this.
[00:21:34]  Yeah, absolutely.
[00:21:36]  I mean, you would hope that reporters have some compunction about, you know, before they print anything that they get their hands on whenever they get it.
[00:21:44]  But yeah, there are First Amendment and other protections for reporters not to disclose sources and reporters have gone to jail, you know, waited out contempt charges.
[00:21:57]  I don't think that's the way to go.
[00:21:59]  It's from the supply side, not the demand side.
[00:22:02]  It's indeed the consequences for whether it be a clerk, a justice, a staff member.
[00:22:07]  There have to be professional consequences.
[00:22:09]  And by the way, in all this time with the demonstrations that I don't know if they're still ongoing, but for many, many months they were ongoing in front of justices' houses, no prosecutions for that, even though that violated both Maryland and Virginia law.
[00:22:25]  Yeah, right?
[00:22:26]  A couple of thoughts, just random from Twitter.
[00:22:30]  This is somebody who tweeted that their handle is at end wokeness.
[00:22:34]  They track down every grandma that took selfies at the Capitol, but they want us to believe they can't identify the Supreme Court leaker.
[00:22:41]  Pretty good.
[00:22:42]  This is from Atlife News, HQ.
[00:22:44]  The Dobbs leak led to the attempted assassination of a Supreme Court justice, and they still can't find the leaker.
[00:22:50]  It is absolutely stunning.
[00:22:51]  The left and the right, highly critical of this.
[00:22:54]  Even Lawrence Tribe, definitely of the left, Harvard Law professor, the nemesis of our pal Alan Dershowitz, refers to the oddity of pretending the justices are not protecting the leader, the leaker, by not calling the FBI.
[00:23:10]  There's outrage on all sides of this.
[00:23:13]  Ted Cruz calling it deeply troubling and going beyond that.
[00:23:16]  Josh Hurley this morning with some very harsh tweets for this investigation.
[00:23:20]  This is not over.
[00:23:22]  This is not over.
[00:23:22]  And I hope the House Republicans get to the bottom of it.
[00:23:26]  Ilya, thank you so much.
[00:23:28]  Always appreciate hearing your voice.
[00:23:30]  Thank you, Megan.
[00:23:31]  Have a good weekend.
[00:23:33]  You too.
[00:23:34]  Wow.
[00:23:34]  What are your thoughts on this?
[00:23:35]  Will you email me or call in?
[00:23:37]  We should take some calls if we have time today.
[00:23:38]  We have a jam-packed show.
[00:23:40]  But I would love, love, love to hear from you.
[00:23:41]  I'm pissed.
[00:23:43]  Okay.
[00:23:43]  And I never use that word.
[00:23:44]  I don't really use that P word much.
[00:23:45]  My mom doesn't like that word.
[00:23:46]  Also, she told me to stop swearing so much.
[00:23:48]  Okay.

=== Safety Obligations on Set (15:44) ===

[00:23:49]  Coming up, we're going to learn about the involuntary manslaughter charges Alec Baldwin is now facing and what the prosecutors are saying on the details behind that charge.
[00:24:03]  After more than a year, Alec Baldwin is facing charges of involuntary manslaughter in the Rust movie Set shooting.
[00:24:11]  Do the prosecutors actually have a case?
[00:24:13]  Viva Fry is a lawyer and a YouTuber.
[00:24:16]  He joins me to discuss the very latest.
[00:24:18]  Viva, welcome back.
[00:24:19]  I have to say, you were on in November predicting what might happen in this case and you nailed it.
[00:24:23]  Nailed it.
[00:24:24]  Look, I hedged my bets a little bit like a lawyer, you know, by saying if he were not charged, I would be shocked and flabbergasted at the politics coming into play.
[00:24:32]  And just so your viewers know, I'm a Canadian Quebec commercial litigator.
[00:24:37]  So no expertise in New Mexico criminal law, but I've been following this story from day one when it happened when I was in Virginia, about to go on Timpool and the news broke and followed the saga ever since.
[00:24:48]  Wow.
[00:24:48]  Well, I have to say, I, you, you did me one better because I was thinking, look, it's more of a civil case than a criminal case as far as Alec Baldwin is concerned.
[00:24:57]  Because even though a lot of us don't like Alec Baldwin for his politics and he's kind of nasty, he's beating up a lot of people all the time.
[00:25:04]  Um, that it was clearly an accident.
[00:25:07]  I mean, clearly, he did not intend to shoot anybody, but the prosecutors are saying, yes, it was an accident.
[00:25:15]  They're not claiming otherwise, but it was a reckless accident.
[00:25:18]  It was, it rises to the level of recklessness under the criminal law to where he should serve some time for it.
[00:25:25]  And as Dan Abrams was saying yesterday, not just any time, but what they've charged him with could get him up to five years mandatory.
[00:25:32]  Yeah, that's it.
[00:25:33]  A lot of lawyers, and I think lawyers who have a good conscience don't like these mandatory minimum sentencing for these types of reasons.
[00:25:40]  It leaves no discretion to the judge.
[00:25:43]  It can be the source of some sort of jury nullification where they say, we think he's guilty, but we're not willing to convict him so that he serves a mandatory minimum five-year.
[00:25:53]  And just to back it up a little bit, it's a situation where you look at it and say, it's an accident.
[00:25:58]  It's a tragic accident, but you don't get into circumstances where people get shot and killed on a movie set and think that, you know, it's not going to be somehow criminal in here.
[00:26:08]  He didn't pull the trigger on purpose, although he denied pulling the trigger, but this doesn't happen if the trigger doesn't get pulled.
[00:26:14]  He didn't put the live rounds in the gun, presumably.
[00:26:16]  He didn't know they were there, presumably.
[00:26:18]  How they got there, who knows?
[00:26:20]  Maybe there's some shared criminal responsibility as well.
[00:26:23]  But people don't get shot and die on movie sets without there being some, at the very least, highly likely criminal element in it, if only negligence.
[00:26:32]  But what he's facing, it's not just involuntary manslaughter, but there's a, I just lost the word there, an aggravating factor of an enhancement, yes, sorry, of when it involves a firearm, which can carry minimum five years.
[00:26:48]  And that's serious, serious stuff, especially given Baldwin's age.
[00:26:53]  Well, my, I mean, the thought of Alec Baldwin going to mandatory prison for five years is kind of stunning.
[00:26:58]  So the prosecutors went on a little press tour to explain why they did this.
[00:27:03]  You've got the main prosecutor, who's the DA in New Mexico, and then you've got the woman she brought in as sort of a special prosecutor because they were outmanned in pursuing these charges against Alec Baldwin against Hannah Gutierrez, Read the Armorer.
[00:27:17]  And then they cut a deal with the first assistant director who he did a charge lower.
[00:27:22]  It's something like criminal handling or negligent handling of a firearm.
[00:27:26]  So they went on a press tour yesterday and among others they spoke with Judge Janine, my old pal from Fox News.
[00:27:31]  Here's a bit of their explanation.
[00:27:34]  We definitely believe he pulled the trigger.
[00:27:36]  The FBI lab report confirms that.
[00:27:39]  So definitely the trigger was pulled.
[00:27:42]  All right.
[00:27:42]  So his statement is not correct under any circumstance.
[00:27:47]  We don't believe it is.
[00:27:48]  Mr. Baldwin had a duty at the base level to never hold a gun and point it at a person while pulling the trigger.
[00:27:55]  But he also had a duty as an actor and a producer on that set to have the bullets checked or to check them himself to make sure that they weren't live.
[00:28:03]  We believe Baldwin as a producer knows everything that goes on on this set.
[00:28:07]  And so, yeah, there was a lot of problems.
[00:28:09]  There was a lot of, there were a couple of accidental discharges.
[00:28:13]  There was a lot of safety concerns that were brought to the attention of management and he did nothing about it.
[00:28:20]  So there were just, this was a loose and reckless scene where safety was compromised just to save money.
[00:28:30]  So a lot in there.
[00:28:32]  What's your takeaway listening to that?
[00:28:34]  Well, first of all, the press tour, I don't see anything nefarious in it.
[00:28:38]  This is a big, big charge against a big celebrity in a highly politicized environment.
[00:28:43]  They have to go out and show that they have the grounds, the justification to do it.
[00:28:49]  I don't know if you saw Joy Behar on The View this morning.
[00:28:52]  I think it's the prosecutor that was called in, who's a Republican, and Joy Behar suggesting there might be politics to the prosecution because Alec Baldwin has been a target for Republicans.
[00:29:04]  They need to do it.
[00:29:05]  They need to flesh out detail what are the justifications for actually pressing criminal charges against Baldwin.
[00:29:12]  I don't think it needs much of a justification.
[00:29:14]  And I'm going back to my initial assessment of this situation.
[00:29:18]  The prediction I made a while back as to what actually happened.
[00:29:21]  You know, you hear the prosecutors or the district attorney, whatever their title is, talking about how there had been previous discharges on set to emphasize the negligence of safety on the set.
[00:29:32]  And they're right.
[00:29:33]  But the previous discharges were blanks.
[00:29:35]  And so, or dummy rounds.
[00:29:39]  You know, it was not an accidental discharge of a live round.
[00:29:42]  And my theory is Alec is known to have a temper.
[00:29:47]  Even from his early interviews with George Stephanopoulos and him describing what happened, his roadside interviews in Vermont or wherever they were, he was describing a situation where it sounded like he was being told what to do by a director of photography who's not supposed to be giving direct instructions to a grade A actor like Alec.
[00:30:04]  And because there had been prior discharges with no injury, no foul, you know, of blanks, maybe he pulled the trigger on purpose, thinking it would just be a loud pop.
[00:30:11]  It would scare the assistant.
[00:30:12]  It would scare the director of photography.
[00:30:14]  She'd stop bossing him around and they would go on.
[00:30:17]  It's clear he had to have pulled the trigger.
[00:30:19]  Whether or not pulling the hammer back, like he explained, while compressing the trigger could have also allowed the hammer to go back and, you know, set the bullet off.
[00:30:29]  It's another argument.
[00:30:30]  It's quite clear he pulled the trigger.
[00:30:32]  And then the only question is going to be why and how.
[00:30:34]  Yeah, he clearly did.
[00:30:35]  He's going to lose on that argument that he didn't pull the trigger.
[00:30:38]  The jury is going to believe the FBI over Alec Baldwin.
[00:30:42]  And your own instincts, of course, will tell you a gun goes off when you pull the trigger.
[00:30:46]  In particular, this kind of gun.
[00:30:47]  So he's going to lose on that.
[00:30:49]  But there was some interesting stuff in there.
[00:30:52]  A duty to detect whether the bullets were dummies or live rounds.
[00:30:56]  Please, no, no, that's not going to work.
[00:31:00]  Even the armorer clearly couldn't do that or failed in her attempts to do that.
[00:31:08]  The dummy rounds, their whole job is to look exactly like a real bullet.
[00:31:13]  And I've talked to gun experts on this.
[00:31:15]  If you shake the one, you can hear stuff shaking around inside.
[00:31:19]  And if you shake the other one, you hear nothing.
[00:31:21]  I can't remember which is which, but that's how they determine.
[00:31:25]  The dummy rounds with less gunpowder so that there's less of a discharge, from my understanding.
[00:31:30]  Um, but it's a weird thing.
[00:31:31]  But let me just finish my point.
[00:31:33]  Let me just finish my point.
[00:31:34]  So, you think they're going to convince a jury that the armorer who specializes in guns and ammo screwed that up, wasn't able to do it, got confused, whatever.
[00:31:45]  But Alec Baldwin, he could have taken each bullet out and shaken it and totally.
[00:31:50]  No, I can make a case for negligence against Alec Baldwin.
[00:31:54]  It doesn't include telling live rounds from dummies.
[00:31:57]  Uh, yeah, well, when they're describing that, to me, it sort of sounds like they're confusing or confounding Alec's role as a producer to oversee safety versus Alec Baldwin.
[00:32:07]  Well, they say they have two responsibilities: that's A and B. I'm on A right now with you, which is the alleged duty to separate the lives from the dummies.
[00:32:13]  And then I want to do B.
[00:32:15]  Well, that when I listen to that, it sounds to me like they're just sort of amalgamating his role as a producer with his role as an individual.
[00:32:21]  Like, as a producer, he had the obligation to ensure safety on set.
[00:32:25]  And so, not necessarily that Alec Baldwin himself had to shake each round to make sure it was a dummy versus a live.
[00:32:31]  I think they mean at large.
[00:32:33]  They said in one of their interviews, he needed to do it or he needed to see somebody do it in front of him.
[00:32:40]  Okay, I mean, so they said, Look, that's not going to be the evidence that they're going to need to adduce at the trial.
[00:32:44]  The bottom line is: um, was it was it negligent for him to discharge a firearm, knowing it's a real firearm in the direction of a human?
[00:32:52]  And if his defense is, I thought they were dummy rounds, well, it's still not much of a defense.
[00:32:55]  And then the question is going to be, how did the live rounds get there?
[00:32:58]  What they what the um prosecutors also discovered, or they've stated now, is that he actually had live rounds in his in his holster, um, or in that, that belt.
[00:33:07]  I think it's called the belt.
[00:33:08]  I am also not a firearm aficionado, but I'm I've you know, learned a few things here.
[00:33:12]  Uh, no, I think they're saying certain things which are just to you know, do part of the press tour, he should have known yada yada.
[00:33:18]  But I think they're speaking at large as a producer, as someone overseeing the production of this, of this movie.
[00:33:23]  He had the overall obligation to make sure it was okay.
[00:33:26]  Let's talk about that.
[00:33:27]  Let's talk about that because now we're in now.
[00:33:28]  We're on B. Um, you know, this set was a mess.
[00:33:31]  There were at least six live rounds on set.
[00:33:33]  How did they get there?
[00:33:35]  Um, you know, who, who, were there safety uh oversights and so on, the accidental discharges and so on.
[00:33:42]  And there's going to be more evidence.
[00:33:43]  I happen to know this for a fact, I've seen some of it, um, that there's going to be more evidence that safety concerns were raised and ignored by those in charge.
[00:33:51]  That's and the prosecutors have said that he had a duty as a producer to make sure that didn't happen.
[00:33:59]  He was a producer, but the reality is you get slapped that producer label just to make you look good, just to be sort of glorious.
[00:34:08]  And then you get the label if you're really the producer, if you're the workhorse on the, and from what we're hearing, he has a good argument.
[00:34:17]  He was just getting the glory.
[00:34:19]  And by the way, I happened to have the same agent as Alec Baldwin for a long time.
[00:34:25]  And at various points, he was negotiating various deals for me in which I was going to produce this or going to be a producer on that.
[00:34:32]  They never came to fruition.
[00:34:33]  But like, that's his thing is to get you named as a producer.
[00:34:36]  And I'm very sure if he was doing that for me, this was Alec Baldwin's case too.
[00:34:41]  So they're going to have to prove that it was more than just a producer and name only.
[00:34:47]  Well, I'm not sure that that element is going to come in in terms of his individual responsibility.
[00:34:52]  At the end of the day, yeah, say I was a producer for title.
[00:34:55]  I was not a functional producer.
[00:34:58]  I didn't have anything to do about the ins and outs.
[00:35:00]  That's not really going to be where on a criminal individual level, the responsibility is going to lie or the argument is going to be made.
[00:35:07]  The bottom line is, I think we can actually just probably set aside what title of producer he was.
[00:35:12]  Bottom line, at the end of the day, he's in this set.
[00:35:15]  He claims to have had extensive experience with real guns, real bad.
[00:35:20]  You're going to be like i'm going off of what the prosecution is saying their case is based on, like i'm with you, you and I could have had this discussion two days ago before they spoke out, but now they're detailing why they charged him and i'm what i'm saying to you is, this stuff isn't very persuasive.
[00:35:37]  Their arguments might not be persuasive, but this isn't the trial.
[00:35:39]  The bottom line, he pulled the trigger and it caused the death.
[00:35:43]  I mean they're, they're adding.
[00:35:44]  That's why that's the case.
[00:35:46]  Now they might be adding extra fluff and this is why incidentally, less is more oftentimes in law, because you add, you add extraneous stuff which might they're not going to need to prove what type of producer he was at the criminal trial.
[00:35:57]  Bottom line, he pulled the trigger, there was a bullet in it.
[00:36:00]  How did it get there?
[00:36:01]  Whether it was, if he did it on purpose.
[00:36:03]  I mean look, set everything aside, if it was accidentally put into there, and a jury comes to the conclusion that he had.
[00:36:11]  No, you know he's, he's innocent because he could not have known.
[00:36:14]  Well then, who put the bullet there, and then they're going to, you know, be found guilty on the negligent uh involuntary manslaughter negligence whatever uh, but that's what they're going to prove.
[00:36:22]  So they do a tour, they say a little more than they need to and then it causes some confusion.
[00:36:25]  The bottom line, he he, there were safety issues, accidental discharges.
[00:36:30]  He says I know never to point a gun at a person.
[00:36:33]  He says I know never to pull the trigger in his Stephanopoulos interview because even if you do it once or twice, it it damages the firing pin.
[00:36:40]  I know all these things and yet I pointed the gun at an individual.
[00:36:43]  I obviously pulled the trigger.
[00:36:45]  An individual is dead now and I defied all of the own my own safety rules.
[00:36:49]  That I specifically said I knew in the context of a dangerous set where there had been accidental discharges, where crew are walking off the set and i'm innocent, I mean he's got a big, big problem uh, and then the only question is going to be, I don't know how they get out of the um, the enhancement, because it was committed with a firearm I.
[00:37:08]  I don't know how they even get out of the enhancement if not Alec Baldwin.
[00:37:12]  He's got a plea, he's got to, he's got to cut a deal, like the first ad did for this lower charge that with and that guy has a suspended sentence and like some probation and that that's a much better deal.
[00:37:21]  I'm sure Alec Baldwin would take that in a heartbeat.
[00:37:23]  Oh, but yeah.
[00:37:24]  But then again.
[00:37:25]  But the the ad handed the gun called it a cold gun.
[00:37:28]  Maybe he's guilty of, you know, negligence and that he didn't.
[00:37:31]  He didn't actually verify this, but he's not the one who pulled the trigger, so I don't know whether or not you know the say what, what type of deal would be offered to Baldwin when he is the face of this tragedy?
[00:37:39]  Um, and he's the one who held the gun, pointed it at a human, pulled the trigger and ended somebody's life, albeit obviously by accident.
[00:37:47]  On the subject of whether he pulled the trigger, we've alluded to it a couple times.
[00:37:50]  He's he told George Stephanopoulos in that overacted bit, oh no no yay never no, never did no no no, no.
[00:37:57]  Sorry, I don't mean to make fun of it.
[00:37:59]  It's a bad situation, but that was protesting too much.
[00:38:01]  It's fine.
[00:38:02]  Yes, we're allowed to make a little fun of his overacting um so yeah, he denies he pulled the trigger.
[00:38:07]  Uh, we played the soundbite yesterday and now we have another one.
[00:38:10]  Here are two excerpts.
[00:38:11]  I'm going to play both of them for you guys, um of Brian of of Alec Baldwin's interview with the sheriff's office in december after this happened, in which he doesn't say I pulled the trigger, but he says I shot the gun, which is pretty good.
[00:38:28]  If you're the prosecutor, it may not be exactly what you want, but it's pretty good.
[00:38:32]  I'll play them both for you.
[00:38:33]  Uh, here's the first one, soundbite six.
[00:38:37]  I am speechless.
[00:38:41]  We're here shooting.
[00:38:42]  Everything was going fine.
[00:38:44]  Joe was my friend.
[00:38:46]  I'm one of the producers on this movie.
[00:38:48]  We've developed this movie together for three years.
[00:38:51]  I left my wife and six kids in New York to come here for a month to shoot this movie and i'm the one that shot the gun today.
[00:38:56]  That had a live bullet go through that woman's body and into his body and I need to know how did that happen?
[00:39:05]  Where did that bullet come from?
[00:39:07]  Where did a lot there's?
[00:39:08]  There are no live rounds in her kid.
[00:39:10]  I've told i'm the one that shot the gun.
[00:39:14]  Here's the second one, When I shot the gun away from the cameraman, I would tell every hand against the camera.
[00:39:24]  I turned and I went like, this is just the handicapped shooter there.
[00:39:26]  And the gun went off, and she just went right on the ground.
[00:39:29]  All right.
[00:39:30]  So that's twice.
[00:39:31]  I shot the gun.
[00:39:32]  I'm the one that shot the gun.

=== Prosecutors Say More Than Needed (08:11) ===

[00:39:34]  Now, of course, he'll wiggle later and say, I meant, I meant I was the one holding it when it went off.
[00:39:39]  You know, the bullet came from the gun I was holding.
[00:39:42]  But that's not helpful to his defense.
[00:39:45]  No, and you know what?
[00:39:46]  Those are statements, at least one of them, which is more contemporaneous, like more in temporal proximity to the incident.
[00:39:52]  So some will say it carries less weight.
[00:39:54]  Others will say it carries more weight because you have less time to prepare the lie, like you might have done on George Stephanopoulos' interview, which is nonetheless very damning as far as I'm concerned as well, because he says, I never, I never pulled the trigger, but I pulled the hammer back like this, like this, and I pulled the hammer all the way back.
[00:40:11]  And I don't know of the functioning of firearms, if when you're pulling the hammer back, if you then compress the trigger, which would allow the hammer to strike back on the bullet.
[00:40:21]  But those early on statements, somewhat contradicted by later on statements, once he's had time to reflect and redraft internally, they can carry more weight.
[00:40:32]  He knew the gun went off at the time, so it might just be a figure of speech.
[00:40:35]  But yeah, those statements shortly after the incident itself, they tend to be reliable.
[00:40:41]  They're going to come into evidence and he's going to regret them.
[00:40:45]  It's one of the many mistakes he made.
[00:40:47]  Honestly, I realize he was trying to say, I did nothing wrong.
[00:40:50]  So I'm going to open book and I'm going to speak with the sheriff.
[00:40:52]  He shouldn't have done that.
[00:40:53]  Any criminal defense attorney will tell you, don't, don't be helpful.
[00:40:57]  You might get charged.
[00:40:58]  Keep your mouth shut.
[00:40:59]  Don't talk to George.
[00:41:00]  Don't talk to Chris Cuomo.
[00:41:02]  Don't talk to the sheriff.
[00:41:03]  Be quiet for once.
[00:41:07]  It was one of the analyses I put out.
[00:41:09]  He just could not shut up.
[00:41:10]  And I think it's more telling of the narcissism of the individual thinking they're going to talk their way out.
[00:41:15]  They are going to convince people of what they're trying to convince them.
[00:41:19]  And because they're so narcissistic spiritually, they think it's going to happen and they get more frustrated when it doesn't happen that they have to keep doubling down and doubling down.
[00:41:28]  He couldn't stop talking.
[00:41:30]  Every time he said something, it would sort of contradict the previous statement.
[00:41:33]  It also made him look like an absolute insensitive bastard.
[00:41:37]  I'm sorry to swear on your show.
[00:41:38]  Insensitive, callous.
[00:41:40]  He's the victim in all of this.
[00:41:41]  Never says Helena's name.
[00:41:43]  And in every public statement that he gives, there's too much protesting.
[00:41:49]  And there's also, now I just forgot exactly what I was going to say.
[00:41:54]  There's too much protesting, but he's making himself the victim over the actual victim.
[00:42:00]  So that's that's what led Helena Hutchins' husband to come out and he was very angry after that interview with George Stephanopoulos and was saying, what?
[00:42:10]  Who's the victim here?
[00:42:11]  It's not Alec Baldwin.
[00:42:13]  And there was a clear divide between them, as one might expect after having seen Alec with George.
[00:42:19]  And so the husband was clearly angry with Alec.
[00:42:22]  But then they settled the civil suit that the husband, Matt Hutchins, filed and agreed to resume shooting, resume shooting the movie out.
[00:42:32]  They said they couldn't do it in New Mexico, but they were going to do it in LA.
[00:42:37]  And so it seemed to be a kumbaya because it was going to be with Alec Baldwin and the guy, the husband, the widower, was going to be an executive producer on the production.
[00:42:45]  All of this is mind blowing.
[00:42:46]  Like, okay, I guess they made up.
[00:42:48]  I don't understand.
[00:42:48]  But here's the update.
[00:42:50]  Here's the update.
[00:42:50]  New York Times reporting on January 20th.
[00:42:54]  At one point, there were plans to begin filming this month.
[00:42:58]  A person with knowledge of the project who was granted anonymity to discuss, to describe the production plans, said that as of Thursday, yesterday, the movie was still on track to be completed with Mr. Baldwin in the lead role and Joel Souza, who was wounded in the shooting, returning as director.
[00:43:16]  And they go on from there.
[00:43:17]  But listen, but listen to this.
[00:43:20]  When the settlement was reached, Mr. Hutchins said in a statement he had, quote, no interest in engaging in recriminations or attribution of blame and that, quote, all of us believe Helena's death was a terrible accident.
[00:43:34]  Well, that's not what he's saying now.
[00:43:36]  That was, this settlement was just like a couple months ago.
[00:43:40]  Now, in response to the criminal charges, his lawyer says on his behalf, our independent investigation also supports that charges are warranted.
[00:43:48]  It's a comfort to the family that in New Mexico, no one is above the law.
[00:43:51]  We support the charges and will fully cooperate.
[00:43:55]  And goes on, Eva, what's happening?
[00:43:58]  Well, I mean, there can be some wiggle room that now that they've seen the report of the FBI.
[00:44:03]  I don't know if the FBI report was out at the time of the settlement.
[00:44:06]  But the bottom line, there cannot not be a prosecution of this just because there was a civil settlement that left the surviving family members satisfied in as much as they can be satisfied.
[00:44:18]  It's not that it doesn't require the widow or the children to file a complaint.
[00:44:23]  The state has the obligation to file the charges on behalf of the people and on behalf of the victim, Helena Hutchins.
[00:44:31]  You couldn't escape it.
[00:44:32]  The settlement, you know, we were pontificating at the time whether or not the civil settlement was sort of a wink-wink nudge-nudge to the prosecutors to drop the case because we're all happy, but you can't do that.
[00:44:41]  There is someone dead.
[00:44:42]  Whether or not it was an accident, that's what the basis of involuntary manslaughter is or now.
[00:44:48]  That acknowledges accident.
[00:44:50]  So it's going to be a very awkward movie set.
[00:44:52]  I'll just say it very awkward.
[00:44:54]  And they may really need to find.
[00:44:55]  It's not happening.
[00:44:56]  It's not going to happen.
[00:44:57]  It can't happen.
[00:44:58]  Something's going to happen.
[00:44:59]  I'm not sure that I, not to, not to say New York Times has not been unreliable.
[00:45:04]  An anonymous source will see.
[00:45:05]  I predict it's not going to go down at this point.
[00:45:07]  I don't know how it can possibly go down.
[00:45:08]  But I remember my thought from earlier.
[00:45:11]  I remembered my thoughts from earlier before.
[00:45:12]  It's that whenever Alec Baldwin went out and made more public statements, what he was describing made him sound like someone who is angry at the circumstances.
[00:45:20]  You know, even in that police interview, I'm away from my family and my six kids for a month on a low-budget movie set.
[00:45:26]  It sounds like he's angry and it sounds like he's tired.
[00:45:30]  It sounds like he didn't want to be there, like he thought he was doing other people favors, which might explain something of an outburst from someone who might lack impulse control in general.
[00:45:40]  So I'm sticking to my original theory, but I doubt we'll ever get a massive admission.
[00:45:44]  I'll give you the exact quote from the prosecutors to the LA Times explaining what they think his duty was that he failed to uphold.
[00:45:53]  The question from the LA Times was, Baldwin has maintained that he relied on other professionals to do their jobs and check the gun.
[00:45:58]  Why did you charge him?
[00:45:59]  Answer.
[00:46:00]  He absolutely had a duty to either check the weapon himself or have someone to check it in front of him.
[00:46:07]  We have spoken with several actors, A-list and less than A-list, and all have confirmed that when you are handed a gun, you need to look at it and make sure that it's safe.
[00:46:18]  So that's what they're going with.
[00:46:20]  Then listen to this, Viva.
[00:46:22]  This is interesting to me.
[00:46:23]  The question from the Times.
[00:46:24]  There's still the outstanding question of how did the live bullets get on set?
[00:46:29]  Yes, there is that question.
[00:46:30]  Does not knowing the answer weaken your case?
[00:46:33]  And by the way, here they acknowledge they still don't know the answer.
[00:46:36]  They answer, quote, everybody seems to want to know where the live rounds came from.
[00:46:40]  And we've definitely interviewed everybody trying to answer that question.
[00:46:43]  But when it came down to whether it really matters, I mean, there were six live rounds found in various places on this movie set, which is obviously very concerning.
[00:46:52]  But the armorer should have caught those live rounds on set.
[00:46:56]  And so our biggest concern is why didn't Hannah Gutierrez-Reid catch those live rounds on set?
[00:47:03]  Not so much on how they got there.
[00:47:06]  That may be a question that never gets answered.
[00:47:10]  Well, that, I mean, that's it.
[00:47:11]  So we talked at length that last time you were on about the guy who supplied the bullets, the ammo.
[00:47:16]  Seth Kinney, this guy's off the hook.
[00:47:20]  It certainly sounds like he is, but this would be an example where the prosecutors, they're just saying more than they have to.
[00:47:25]  Bottom line, whether or not Alec had to check each and every bullet, make sure they check it in front of him when he does it.
[00:47:30]  He should never have pointed a gun, a real gun, whether or not it's called a prop gun in the direction of a human and pulled the trigger.
[00:47:36]  Bottom line.
[00:47:36]  This is the theme of the case, talking more than one has to.
[00:47:40]  Less is more.
[00:47:41]  Silence is golden, which most people connected to criminal law know and know very well.

=== Investigating Restaurant Connections (05:15) ===

[00:47:46]  Viva Fry, always a pleasure.
[00:47:47]  Thank you.
[00:47:48]  Thank you very much.
[00:47:49]  Have a good one.
[00:47:50]  All right.
[00:47:50]  You too.
[00:47:51]  We'll be right back.
[00:47:52]  And also, don't forget to watch the show live on Sirius XM Triumph Channel 111 every weekday at Noon East.
[00:47:57]  Full video show and clips at youtube.com/slash Megan Kelly.
[00:48:00]  And if you want to listen to it as a podcast, you can do that too, wherever you get your podcast for free.
[00:48:08]  There are several new developments in the Idaho College murders case.
[00:48:12]  People magazine now reporting that the suspect went to a restaurant where two of the victims worked at least twice before the killings.
[00:48:21]  Joining me now, Brian Enton, senior national correspondent for News Nation.
[00:48:25]  Brian, welcome back to the show.
[00:48:27]  So what of this People Magazine report?
[00:48:29]  What did we learn?
[00:48:30]  Yeah, it's really interesting.
[00:48:31]  They had two scoops this week.
[00:48:32]  The first was that Brian Koberger had actually been to the restaurant where two of the victims work, Xana and Maddie, both worked at Mad Greek Restaurant, which is in downtown Moscow, Idaho.
[00:48:47]  And they reported that according to a former employee, Koberger had been there a couple of times.
[00:48:52]  They were known to have a vegan entree on the menu, which is apparently the reason that he went there.
[00:48:58]  And the other thing that they reported this week was that Koberger had messaged at least one of the victims on Instagram at one point, and that it went into an unread folder, but that that is now part of the investigation.
[00:49:13]  So what was the, like, what do we know about how aggressively he may have attempted to contact any of these victims or be in touch with them?
[00:49:21]  Listen, I'm kind of weary when it comes to the Instagram accounts because right when I first got the name before it came out from police, Brian Koberger, we had a source in Pennsylvania.
[00:49:32]  Like I immediately couldn't find any social media for him.
[00:49:36]  And then when the name came out officially from the police, suddenly there were all of these social media accounts.
[00:49:43]  Some of them were following the victims.
[00:49:45]  So again, like I'm kind of careful in that department because I think people made up fake accounts.
[00:49:50]  Yeah.
[00:49:51]  But this People Magazine report is interesting if he did indeed actually contact one of the victims.
[00:49:57]  And, you know, there's that unread folder, like if it's someone who contacts you that you're not friends with.
[00:50:02]  And according to people, it was in that folder.
[00:50:04]  And it seems that the person that he contacted, one of the victims, may not have even known that he had tried to contact them.
[00:50:12]  So are we, so are we skeptical about all of this?
[00:50:16]  We don't put much stock in the People magazine reporting about, forget the restaurant visit, but the social media attempts to somehow know them or be in their lives.
[00:50:24]  Because with respect to people, I think it's one source that they're citing, one unnamed source.
[00:50:29]  We don't know who, we don't know how reliable.
[00:50:32]  And as you point out, we don't know whether they've done the investigation necessary to determine if these accounts were even real.
[00:50:38]  Yeah, you know, truthfully, I'm a little skeptical, nothing against people.
[00:50:41]  And I just don't know who their source is.
[00:50:43]  And again, when it comes to the Instagram accounts, there were all sorts of Instagram accounts floating around.
[00:50:48]  And then also, I'm a little less skeptical of the report about the Mad Greek restaurant because, you know, I was in Moscow for so long.
[00:50:54]  That is one of the only places that has like a legit vegan part of the menu.
[00:51:01]  So it would make sense, you know, he was a strict vegan, Brian Koberger.
[00:51:05]  It would make sense that he probably would have gone there, whether that has to do with two of the victims having worked there.
[00:51:11]  I mean, it's a small town, you know, these victims were connected in all sorts of different ways.
[00:51:16]  So I think it'll be interesting to see how that plays out.
[00:51:18]  According to people, the investigators are aware of this and this is part of the investigation behind the scenes.
[00:51:24]  Well, and again, this is the reporting on the Instagram account is per an investigator familiar with the case to People magazine.
[00:51:31]  We don't know who.
[00:51:32]  It's a single source.
[00:51:34]  Investigator familiar with the case is very ambiguous.
[00:51:37]  The sourcing on the suspect visited the restaurant where two of the victims worked is pretty clear.
[00:51:44]  Former employee at the restaurant.
[00:51:46]  So that's, you know, that I can understand a little bit better.
[00:51:49]  Former employer, employee at the Mad Greek restaurant in Moscow, Idaho, said the suspect came in at least twice to grab vegan pizza.
[00:51:57]  Two of the victims, Maddie and Zanna, were servers at the restaurant.
[00:52:02]  Unclear if either woman ever waited on him or if they even interacted, but people says it has confirmed that they've collected, authorities have collected surveillance video from the restaurant surrounding businesses.
[00:52:14]  That's all confirmable by going to the restaurants and asking them.
[00:52:18]  And this former employee telling people that there was nothing suspicious about him per se, but he stood out because he had a particular order, a strict vegan.
[00:52:27]  He would check to make sure that his food had not come into any contact with animal products.
[00:52:32]  So that's why they remembered him.
[00:52:34]  We're all just trying to read the tea leaves to see why these victims, why them.
[00:52:40]  Yeah, and that makes sense because that goes back to what one of Koberger's aunts said that when Koberger went to visit her with his dad, that he was very particular about the pots and pans that she used when she was cooking for him his vegan meals, even wanting her to buy new pots and pans because her pots and pans had touched meat before.

=== Sealed Records and Animal Hair (08:36) ===

[00:53:02]  So that lines up.
[00:53:03]  I can see why he would be memorable going into a restaurant, sort of asking those sort of things.
[00:53:08]  Yes, that plus, you know, what may have been sort of an odd affect in general.
[00:53:12]  That's the kind of stuff that makes you stand out as opposed to these beautiful college girls who are friendly and what you might expect coming in.
[00:53:20]  Let's talk about the search warrant.
[00:53:22]  There's a lot in there.
[00:53:23]  First, explain to the audience what we're talking about.
[00:53:24]  Something was unveiled and what was it and why do we care?
[00:53:28]  Yeah, so we were out there.
[00:53:30]  This was in Pullman, Washington, where Koberger lived.
[00:53:33]  His apartment was in Pullman, which is like 10 minutes from Moscow.
[00:53:36]  We were there when they initially went there right after the arrest and started pulling stuff out of the house.
[00:53:40]  And that's when the search was happening.
[00:53:42]  But all of that was sealed by the court.
[00:53:44]  So we didn't know exactly what was being taken out.
[00:53:47]  I mean, we saw the bags and the boxes, but we didn't see what was inside.
[00:53:50]  We saw a computer tower.
[00:53:51]  And I assumed that they were going to keep it sealed for a while.
[00:53:54]  It was a surprise to me when earlier this week, suddenly they unsealed the search warrant and listed the items.
[00:54:00]  I'm just looking at it now.
[00:54:01]  It's interesting.
[00:54:02]  Several possible hairs that they were obviously testing for DNA and that kind of thing.
[00:54:08]  A fire stick with a cordon plug, which is one of those things that you plug into your TV to like watch Netflix and search the internet.
[00:54:14]  Several receipts, Walmart Marshalls receipt, a black glove, a dust container from a vacuum, a computer tower, and then also a dark red spot.
[00:54:26]  They don't use the term blood, but obviously we can put the pieces together there.
[00:54:32]  And then cuttings from an unused pillow, again, reddish brown stains.
[00:54:37]  And then they also took some mattress covers that apparently had stains on them.
[00:54:42]  Obviously, all of that got tested.
[00:54:44]  It even says in the search warrant that they tested some of the items on site.
[00:54:47]  But what those tests revealed, that's not included.
[00:54:51]  And the black glove is interesting.
[00:54:54]  It's not a rubber glove.
[00:54:57]  It's not a kind of glove that they use during COVID.
[00:55:00]  It's a nitrate black glove, which is, that's the kind that like nothing gets through.
[00:55:06]  You can't like, you could stick your hand into something really sketchy, like acid with one of those on.
[00:55:12]  Yeah, exactly.
[00:55:13]  I interviewed a former, a former FBI agent the other day who was, oh, you've got a picture.
[00:55:18]  That's great, who really zeroed in on that.
[00:55:20]  Like she, she found that to be very interesting that that kind of glove was found there, kind of a specialized glove.
[00:55:27]  So yeah, certainly kind of raises some red flags.
[00:55:30]  But but, I mean, is it just me?
[00:55:32]  But I think about what are the odds that this guy, you know, this criminology PhD, and I realize if this is the guy, he made a lot of mistakes.
[00:55:41]  But what are the odds that he comes back and he gets rid of the clothes while he, that he was wearing while committing the murders?
[00:55:47]  Cause it doesn't, you know, I don't see those listed necessarily on what they took.
[00:55:52]  He gets rid of the murder weapon, but he lays all over his mattress cover and gets it covered with the blood of the victim.
[00:55:57]  Like, I just, that doesn't really.
[00:56:00]  Yeah, I know.
[00:56:01]  There's been a lot of mistakes along the way if this is indeed the guy.
[00:56:05]  I mean, with all the knowledge that he has in terms of, you know, leaving the cell phone on so many times when he was around the house and, you know, being in the car.
[00:56:13]  So I think, you know, you know better than me as a lawyer, but, you know, a lot of people that I've talked to have said that could almost come up as a defense.
[00:56:19]  Like, why would someone with all of this intricate knowledge of the criminal justice system who studied it his whole life have made all of these mistakes if he actually did it?
[00:56:29]  Well, the other thing is I'm interested that they found the vacuum that then they took the container from his vacuum because that you could get sloppy.
[00:56:35]  You could vacuum up hairs and so on that you would inadvertently brought back to your apartment and then forget to get rid of the vacuum container, right?
[00:56:42]  Which still has all the evidence.
[00:56:44]  Possible hairs, interesting.
[00:56:46]  Possible animal hair is interesting too.
[00:56:49]  Did he have a pet?
[00:56:51]  So it's our understanding he did not have a pet, but Kaylee Gonzalve is one of the victims, did have a doodle that she had at the house there that was at the house when the murders happened.
[00:57:04]  So that could be interesting because if that imagine if that pet hair is Kaylee's dog from inside the house, I'd imagine that's why that was possibly important.
[00:57:14]  I feel like having two labs, labs shed, you get, I mean, I look like such a ragamuffin when I walk around because I've got their hair all over me.
[00:57:23]  It's just a never-ending battle to get it all off of you.
[00:57:26]  But a doodle, you know, you get a doodle in part because they don't shed like that.
[00:57:30]  It doesn't mean their hair has never come off.
[00:57:32]  But yeah, that's just, I mean, just one possible animal hair is like, that's, I'd expect to see more.
[00:57:39]  Like one possible hair.
[00:57:40]  I'm looking at the list of what they got.
[00:57:42]  One possible hair, one possible hair, one possible hair.
[00:57:44]  This is eight, nine, 10, 11 is, again, one possible hair strand.
[00:57:50]  So different than just hair.
[00:57:53]  And then one possible animal hair strand lifted separately.
[00:57:57]  By the way, what is a computer tower?
[00:58:00]  You know, a computer tower, it's kind of old school now that we all have like laptops and stuff.
[00:58:04]  But remember the old school, it's like a tower, like a black kind of sits on the floor and you plug your monitor to it into it.
[00:58:09]  It's the actual tower.
[00:58:11]  Remember, you'd like have it at your house, at your office.
[00:58:13]  That's like an old Dell or something.
[00:58:15]  You know, if you're into computers and video games, you might still have one.
[00:58:20]  But what you brought up with how it was interesting, a lot of the experts I've talked to, talked, I've spoken to said the same thing you did.
[00:58:26]  They thought that more stuff would have been taken out.
[00:58:28]  And I thought that too, because we were outside and they were bringing so much stuff out, bags and bags, which I later went back and looked at the video after we got this warrant and realized a lot of the stuff they were bringing out, I guess, was actually the tools that they brought in to do the search and the testing.
[00:58:46]  You know, all the stuff that they use for the forensics.
[00:58:49]  So it wasn't actually like items of his that they were bringing out.
[00:58:53]  It's amazing that they didn't bring out more.
[00:58:55]  I mean, I know from my many years of listening to Dateline that one of the things investigators will often do is check your washer dryer and your shower, and they'll run the luminol tests there to see if there's any blood evidence there.
[00:59:10]  If he came home and took a shower and had blood on him, you know, that stuff is tough to wash away.
[00:59:15]  Do we know whether his apartment had a washer dryer in it?
[00:59:19]  That's a good question.
[00:59:20]  I don't know.
[00:59:21]  I've been out to the apartment.
[00:59:23]  It's like student housing.
[00:59:26]  So probably I wouldn't be, probably not would be my guess.
[00:59:29]  And remember, too, this is just one of the places that they searched where the warrant has been unsealed.
[00:59:34]  And they also searched his office on campus at Washington State, which was part of this warrant.
[00:59:38]  And it appears they didn't take anything from the office.
[00:59:41]  But we don't know what they took from his parents' house in Pennsylvania, where the arrest happened.
[00:59:46]  And we don't know what they got from his car because that was a separate search warrant.
[00:59:51]  You remember the reports that he was cleaning out his car and doing all sorts of stuff with the car before the arrest.
[00:59:55]  So they may have found a lot in the car that, you know, we just don't know.
[00:59:59]  That's all still sealed at this point.
[01:00:01]  And one of the things that's interesting about the list of items retrieved is what's not on there.
[01:00:07]  You know, what's not on there?
[01:00:08]  No, no murder weapon, no bloody clothes, no mask, like black mask that the roommate allegedly saw the perpetrator wearing.
[01:00:19]  I don't know where that stuff would have gone, whether he threw it out in the weeks that they didn't have him on their radar, whether he dumped them along the route home from the site of the murders.
[01:00:30]  But that's kind of an interesting, what's missing?
[01:00:33]  Yeah, for sure.
[01:00:33]  And when you go through the whole search warrant, there's a part where they're justifying to the judge why they want to search and they explain what they're going to be looking for.
[01:00:42]  And one of the things that they said that the detective said they wanted to look for was the murder weapon.
[01:00:47]  And they said knife or knife sheath.
[01:00:50]  And then there is no murder weapon listed in what they took.
[01:00:53]  So obviously they didn't find the knife when they were there.
[01:00:56]  You mentioned the route he took.
[01:00:57]  I drove that route, the route he took from that, or that police say he took from where the murders happened to his apartment in Pullman.
[01:01:05]  Like I said, it's about a 10 minute drive.
[01:01:07]  He took this long roundabout route, according to detectives, went way out into the country.
[01:01:12]  It took me almost a half an hour through all these farms over all these hills way out in rural Idaho.
[01:01:20]  So if he tossed the knife out along that route, seems it would be hard to recover.
[01:01:26]  I mean, it would be a massive search they would have to do through the countryside.
[01:01:30]  And from what we know, at least according to the search warrant, they still don't have the knife.
[01:01:35]  Do we know if they're doing it?
[01:01:36]  You know, we would see that.

=== Route Taken and Gag Orders (04:59) ===

[01:01:38]  Yeah, I don't think they're doing it because I think we would have heard about it.
[01:01:41]  Someone would have told us we would have seen it.
[01:01:44]  I mean, I guess they could do like a metal detector.
[01:01:46]  But again, having driven the route, I mean, it would be, it would be a massive undertaking.
[01:01:53]  So he could have driven 10 minutes home directly and he chose to go this back route.
[01:01:58]  And it took him about an hour, we know, from the timing revealed in the affidavit to get home.
[01:02:03]  So what is the, what is the speculation on what, what non-nefarious reason could there be for taking that route home?
[01:02:13]  Yeah, I mean, I can't think of one.
[01:02:15]  Again, because I was driving back and forth between Moscow and Pullman all the time.
[01:02:18]  You'd just take the main highway that everybody takes.
[01:02:20]  I mean, this was like the most roundabout, you know, strange way to go.
[01:02:25]  It was a, it was a beautiful route.
[01:02:27]  I mean, if you wanted to like take a scenic route, but I mean, at that time, it was dark out.
[01:02:32]  So I can't really think of one why you would go all the way out there.
[01:02:36]  Hmm.
[01:02:37]  All right.
[01:02:38]  So now what's happening?
[01:02:39]  Because I understand that the judge is unhappy with all these leaks to the media.
[01:02:43]  And there was a gag order in place, but now we've gotten like the super special extra gag order, correct?
[01:02:49]  Yeah, that just came down a couple of days ago.
[01:02:52]  I just got the court document on that yesterday.
[01:02:55]  Again, kind of unexpected because I thought the first gag order to me from covering other trials and stuff was really strict.
[01:03:04]  And now this one goes even farther, basically saying like no one can talk.
[01:03:08]  Now in the first one, they said prosecutors, defense attorneys, detectives, anyone associated with them couldn't talk and that the only information would come from what's said in court.
[01:03:19]  Now they've actually included witnesses, which they had before, victims, family attorneys.
[01:03:27]  So attorneys representing the witnesses, victims, or victims, families.
[01:03:31]  So even the attorneys that are representing the victims can't talk to the media, which they have been a lot in the past.
[01:03:37]  And then it just, it's really broad, as well as the parties to the above entitled action, included but not limited to.
[01:03:43]  And then it goes on to this whole list where I think you could like technically say anyone's part of that list, which I've never seen anything like, I mean, have you, you've covered probably a lot more of these than I have.
[01:03:55]  Have you ever seen where they say the victims, attorneys who have nothing really to do with the actual case aren't allowed to talk?
[01:04:02]  No, I haven't.
[01:04:03]  That's they're clearly, I mean, it makes me believe in the leaks that are coming out, you know, prior to that order, because clearly we're getting real information.
[01:04:11]  Otherwise, the court wouldn't be upset and trying to cast such a wide net.
[01:04:15]  Let me ask you a couple of things that are just random in the news before I let you go.
[01:04:20]  And that is Nancy Grace.
[01:04:21]  She went out there and she talked to the suspect's neighbor.
[01:04:26]  I think it was his neighbor.
[01:04:28]  And I don't know if it's the same neighbor who already went on record as saying he was not an insomniac necessarily, but was up at all hours and she would hear him vacuuming and so on.
[01:04:37]  But she spoke with a neighbor who says the neighbor claimed to Nancy, she spoke with Brian Kohlberger after the murders about the murders.
[01:04:46]  And here's the description of that SOT7.
[01:04:50]  He actually says, have you heard about the murders?
[01:04:52]  Yeah, when we were talking right here, he said, have you heard about these murders?
[01:04:56]  And I was like, I was like, yeah, yeah.
[01:04:59]  Because it just happened.
[01:05:00]  He was like, yeah, it seems like they don't have any leads.
[01:05:04]  And I was like, yeah, I guess not.
[01:05:05]  And then he's like, yeah, they think it's a crime of passion.
[01:05:08]  I was like, yeah, I don't know.
[01:05:10]  And then he kind of left it at that.
[01:05:12]  My God.
[01:05:13]  What, what, how far have we gotten as the press, which we can't be gagged?
[01:05:19]  We can report on what we want.
[01:05:21]  With the neighbors, with people who, you know, lived by him or the landlord, you know, the people who would know him and have more of a pulse on comments around the event, presence around the event.
[01:05:32]  Yeah, I mean, we've talked to a bunch of neighbors in that complex.
[01:05:35]  For the most part, to me, it was, he seemed like an odd guy.
[01:05:39]  You know, he was up late at night.
[01:05:41]  It wasn't anything super crazy to me.
[01:05:43]  What was interesting is we also talked to people at Washington State University.
[01:05:47]  You know, he taught classes.
[01:05:48]  I mean, we keep focusing on the fact that he was getting his PhD, but he was like a teacher because, you know, when you're getting your PhD, you teach undergraduate and master's level classes.
[01:05:58]  You know, he had an office there.
[01:05:59]  He had students.
[01:06:01]  And what was interesting talking to some of them is that, you know, he was apparently very, very talkative and active about talking about different cases and talking about serial killers and all of that.
[01:06:10]  But when this happened, apparently he was very, very quiet when people would talk about the murders at the University of Idaho that he didn't want to talk about.
[01:06:21]  I don't want to say that he didn't want to talk about it, but that he just didn't talk about it, that he didn't chime in on the conversation, which at the time, those students say they just like didn't think anything of it.
[01:06:30]  But then obviously now where we're at, they've all thought back and thought like, oh, that is interesting that he was just quiet during those discussions.

=== Mocking Each Other at Parties (04:05) ===

[01:06:38]  Right.
[01:06:38]  But he may have been anonymously commenting online, as we've discussed.
[01:06:43]  And the police will know by now, I think, whether those couple of handles were in fact his.
[01:06:49]  There's a TikTok video of one of the victims, Kaylee, that has made some news because it shows the inside of the home.
[01:06:57]  I'm going to play it.
[01:07:01]  God, it's really like 30 days.
[01:07:08]  Oh my God, my God, it's 9-10.
[01:07:09]  Guys, can't anybody drop me class and fucking leave for my meeting?
[01:07:15]  Did anybody do their tours today?
[01:07:17]  Fucking skipping.
[01:07:21]  Did you see that right there?
[01:07:23]  Oh, shit, you guys.
[01:07:24]  It's a gotta go.
[01:07:25]  Take.
[01:07:26]  Oh, Tase Call.
[01:07:29]  Oh, my God.
[01:07:30]  I look horrid.
[01:07:32]  Oh, Murphy, you look so cute.
[01:07:34]  Get out of here.
[01:07:35]  You seriously fucking get out of here.
[01:07:36]  You fucking sleeping this shit.
[01:07:39]  Hey, guys, I know I talk about myself a lot, but like, what would you guys do in my situation?
[01:07:44]  Dana, where are you going?
[01:07:46]  I fucking failed already.
[01:07:49]  Is anyone doing a money night?
[01:07:51]  Like, let's just do a mind night.
[01:07:53]  Yo, is it okay to have a party?
[01:07:55]  Like, just three or four people at most.
[01:07:58]  It's first of all, so sad to see these girls, like, so vibrant in the prime of their lives, having fun, being silly.
[01:08:04]  They're sort of mocking each other there gently.
[01:08:08]  Yeah.
[01:08:08]  Not having any idea what's coming their way.
[01:08:11]  But what do you make of the social media accounts of the girls?
[01:08:14]  Have they been locked down and are they being probed by the investigators, you know, for any evidence, the actual Instagram and so on accounts of the girls and of you?
[01:08:23]  Yeah, so you can, yeah, you can still see their Instagram accounts.
[01:08:26]  They haven't been locked down.
[01:08:28]  I mean, obviously all the online sluts have been analyzing everyone who's liked their photos and, you know, anything you can possibly think of.
[01:08:34]  Again, it's hard.
[01:08:35]  It's always hard with the social media because people are making up so much fake stuff.
[01:08:38]  So like I take it a lot of it with a grain of salt, but their accounts are still there.
[01:08:43]  That video I always found to be especially sad.
[01:08:46]  You mentioned it.
[01:08:47]  It was them kind of mocking each other.
[01:08:48]  And it just reminds you of when you were in college and they just seem like such good kids.
[01:08:53]  There's this other video.
[01:08:54]  I don't know if you've seen it, Megan.
[01:08:56]  There was a noise complaint at the house at one point and the police come around to the back of the house and Kaylee comes out and they have this discussion and she's so respectful to the police officer.
[01:09:07]  And again, that was just another one I was so sad watching because it was just like, you remember college when the police would come to a party and you could just tell she was a really good kid the way she was, you know, telling yes, sir, to the police officer, we won't let it happen again.
[01:09:20]  And all those videos, it's so easy to get caught up in all the documents and the case and, you know, everything going on with the investigation.
[01:09:26]  But all those videos just like remind us that, you know, it really is just, it's so sad.
[01:09:32]  It's eerie to see the inside of the house because you see them going down the stairs for our listening audience.
[01:09:39]  You can watch it on YouTube when we post it later.
[01:09:41]  But you see the girls going down the stairs and it's, we know that the killer went up and down those stairs that he began on the third floor.
[01:09:48]  He went down to the second floor and exited, we think, through the sliding glass door on the first floor.
[01:09:54]  Yeah, I don't know.
[01:09:54]  Something about seeing the actual stairs just brings you there in a dark way.
[01:09:58]  And of course, the police have now poured over that whole scene.
[01:10:02]  Is that is their house still behind police tape?
[01:10:05]  Is it still inaccessible?
[01:10:07]  Yeah, at this point, it still is.
[01:10:09]  They've got the police tape up.
[01:10:11]  They've actually hired a private security guard because there's so few police officers in Moscow.
[01:10:15]  I think they just kind of couldn't keep a cop there all the time.
[01:10:18]  So they've got a security guard now.
[01:10:21]  And they were going to release it back to the landlord at one point.
[01:10:25]  But then the court intervened and said, no, we think we need to keep it.
[01:10:30]  I'm assuming like maybe when and if there's a trial, they may need to go back in.
[01:10:35]  So yeah, it's all still locked down.
[01:10:37]  Who would, you know, who would want to live there?
[01:10:40]  I mean, no one's going to live there.
[01:10:41]  It's going to be a place that gets demolished, I'm sure.

=== Sophistication Before and After Crime (15:48) ===

[01:10:44]  Brian, thank you so much for all the good reporting on this and for being with us today.
[01:10:48]  Thanks.
[01:10:48]  Thanks for having me, Megan.
[01:10:49]  Yeah, it's our pleasure.
[01:10:51]  Right up next, we're going to have a retired FBI agent who knows how to investigate mass murder.
[01:10:56]  More in Idaho right after this.
[01:11:01]  My next guest is James R. Fitzgerald.
[01:11:03]  He is a retired FBI criminal profiler who was involved in high-profile cases like the search for the Unibomber and the D.C. sniper shootings.
[01:11:12]  He's also the author of the book, A Journey to the Center of the Mind.
[01:11:16]  James, thanks for being here.
[01:11:18]  Hey, Megan, great to be with you.
[01:11:20]  Yeah, so you worked with our friend Terry Turchy then in tracking down some of those criminals.
[01:11:26]  Terry's one of the finest FBI supervisors I ever knew, and I still see him on TV rendering opinions about current events in the FBI.
[01:11:34]  Great man, great supervisor, and I'd like to see him get back into the FBI one of these days at the very top.
[01:11:39]  Awesome.
[01:11:40]  Yeah, me too.
[01:11:40]  He was here for our Unibomber episode, and it was riveting, riveting.
[01:11:45]  I couldn't, I couldn't even form questions.
[01:11:47]  I just want to listen to him talk.
[01:11:49]  Okay, so in a minute, before you go, I want to ask you about the Supreme Court because I'd love to know how you would solve that case.
[01:11:55]  But before we get to that, let's stay on Idaho.
[01:11:58]  This, the release of what they found when they searched his house.
[01:12:03]  One airtight, one nitrate-type black glove, Walmart receipt with one Dickie's tag.
[01:12:12]  It's a, I think, a clothing store.
[01:12:14]  Two Marshall's receipts, dust container from the vacuum, eight possible hair strands, one fire TV stick with cord plug, animal hair strand, several other hair strands, computer tower, collection of dark red spot, two cuttings from a pillow case from an uncased pillow.
[01:12:32]  Yeah, uncased pillow, two cuttings from an uncased pillow of reddish brown stain, two top and bottom of mattress cover packaged separately with multiple stains.
[01:12:44]  So what do you make of that and what's on there and what's not on there?
[01:12:48]  Well, first of all, writing up a search warrant for a case such as this, you're going to basically request of the courts and the judge is going to sign off everything you can possibly get your hands on.
[01:12:58]  And there's no reason, any of those items you just read off, anything that would assist someone in committing a violent crime, especially in one in which there may be transfer evidence of blood, DNA, or some other kind of hair material, whatever.
[01:13:13]  So you're going to basically ask for everything in an attempt to get additional evidence for the eventual arrest, if not prosecution of that individual.
[01:13:23]  So nothing on that list that they included in the affidavit for the search warrant, as well as what they took from it surprises me.
[01:13:31]  I'm sure they would have liked to have found the knife there and any other sort of materials, photographs, things like that, that he may have had sort of a trophy wall set up, which some of these people do.
[01:13:43]  But that may come on more digital forms when they go through his computer, his phones, things like that.
[01:13:48]  I believe certainly in the information coming in preliminarily to us is that there was some level of stalking, however you want to define that, of these young women, one or more of them prior to the killings that night.
[01:14:02]  And they're looking for any kind of evidence which would tie him into that, as well as, of course, trace evidence, transfer evidence, which would be found at his room, in his apartment, anything which would facilitate the commission of these crimes.
[01:14:15]  So if this is the guy, as the police say, he got rid of the murder weapon and he appears to have gotten rid of the clothes worn while committing the crime.
[01:14:25]  So, but the trophy wall is interesting to me.
[01:14:28]  I mean, I doubt he had a trophy wall since he seems to have at least been trying to be careful.
[01:14:33]  But how common is that for this kind of a killer to need some sort of a trophy?
[01:14:39]  Yeah, we're going to find out.
[01:14:41]  And I never say their names, by the way.
[01:14:43]  I'll refer to them as BK, his initials, but we're going to find out a lot about him from a psychological perspective.
[01:14:48]  And I'm not trying to give a defense or any excuses for him in terms of what sort of disorder he may suffer from.
[01:14:54]  But there's going to be issues like that related to him, his upbringing, the whole nature versus nurture thing.
[01:15:01]  And all of this is going to come together at time of trial.
[01:15:03]  No doubt the prosecution will have their psychological experts that will be testifying.
[01:15:09]  Defense will bring their own in.
[01:15:10]  That certainly happened in the Unabomb case.
[01:15:12]  There never was a trial, but both sides had their psychologists and psychiatrists lined up.
[01:15:17]  So all those factors are going to play into this.
[01:15:20]  And somehow, you know, motivation will be the ultimate goal here.
[01:15:25]  And like, I've been to houses, or I've certainly seen photographs of them as both an investigator and later as a profiler of stalkers and of people who have these shrines set up.
[01:15:35]  Sometimes they'll empty a closet of whatever it's supposed to be holding, and it's an entire little mini room set up to the person that they are focused on or hung up on.
[01:15:46]  And obviously, well, I don't know, obviously, we don't know what was found in the apartment.
[01:15:51]  This guy was probably too smart to have something as obvious as that in case somebody walked in there and he wasn't around.
[01:15:58]  That certainly wouldn't look good for him.
[01:16:00]  But I wouldn't be surprised if there's some kind of a digital archive.
[01:16:03]  Now, he may have tried to delete it since the murders, but he may have had something set up about one or more of these women because it seems like he had some level of fascination with them.
[01:16:13]  They wronged him somehow.
[01:16:15]  And I said this on my earliest appearance, November 25th on Fox News.
[01:16:19]  There's somehow, in some way, they somehow wronged him online, digitally, in a bar trying to buy them a drink.
[01:16:26]  They refused it, whatever.
[01:16:28]  And that's going to be the ultimate motivation.
[01:16:31]  As I also said that night, about 12 days after the murder itself, was that this guy is probably an incel advocate, if you will.
[01:16:41]  Doesn't mean he subscribes to the websites or pays the dues.
[01:16:44]  I'm kind of kidding about that.
[01:16:46]  You know, actually goes online, but he is someone who very much feels that the women keep turning him down in his life.
[01:16:54]  And this was the culmination of what happened is the result of the four murders that night of these three women and the one male Ethan.
[01:17:03]  So I have no doubt is the overall umbrella to this.
[01:17:06]  What's your best guess on why now?
[01:17:08]  If that's the case, you know, we've heard so much about him being rejected over and over.
[01:17:11]  There's one report about the FBI interviewing somebody who's in the sixth grade with him, who he pursued in a way that was awkward and uncomfortable for more than just this girl, apparently.
[01:17:22]  And she rejected him.
[01:17:24]  Pretty girl.
[01:17:25]  No woman has come forward to say she had a positive experience with him.
[01:17:28]  There's been a couple of people coming forward saying, very odd guy, no, not a social person, and so on, and talked about how he'd been bullied quite a bit when he was very, very overweight before he dramatically lost a bunch of weight.
[01:17:42]  So why now?
[01:17:43]  Why at 28, you know, while he's getting his PhD, he's sort of at the end of the road in terms of his education, about to go out there and earn money.
[01:17:50]  Like, why?
[01:17:53]  Ted Kaczynski was about the same age when he launched his first bomb in Chicago and four of them right after that.
[01:18:01]  Some people, it takes longer to mature in terms of their criminal sophistication or devolve in terms of their psychological disorders.
[01:18:10]  And I'm not clinically saying that.
[01:18:12]  So who knows exactly what happened?
[01:18:14]  I think a big factor with BK is that I think he grew up in northeastern Pennsylvania.
[01:18:21]  I'm from Philadelphia originally.
[01:18:22]  I know that area.
[01:18:23]  He went to school a little bit away from there.
[01:18:25]  But look what he finally did at the age of 28 or so.
[01:18:28]  He travels 2,500 miles across country.
[01:18:32]  He's far away now, finally from the tentacles of his parents, of his familial upbringing, you know, the home, the neighborhood where he grew up.
[01:18:40]  And he may be thinking for the first time, I am finally on my own.
[01:18:44]  I can do what I want.
[01:18:45]  I don't have any daily reporting or weekend reporting to any parents or authority figures.
[01:18:50]  This is my opportunity.
[01:18:51]  It doesn't mean he moved out there consciously to kill four people.
[01:18:55]  It's just that it was a Jupiter aligning with Mars, with a few other planets in there.
[01:19:00]  And of course, not in a good way.
[01:19:02]  These women that represented everything that's gone wrong with him in the earlier stages of his life.
[01:19:08]  This behavioral hodgepodge of issues that he's had to deal with with rejection time after time again.
[01:19:15]  And again, these planets lined up for him.
[01:19:19]  He's away from home.
[01:19:21]  He has autonomy.
[01:19:23]  He has an important position.
[01:19:25]  He's, you know, again, he's in cell.
[01:19:26]  He's probably followed these crimes from the past.
[01:19:28]  I wouldn't be surprised if he's researched Lizzie Borden.
[01:19:32]  She was a well-known stabber who killed her parents.
[01:19:34]  Jack the Ripper, Richard Speck, 1966 in Chicago.
[01:19:38]  He's probably looked into these particular people.
[01:19:40]  He's probably watched the movie Rope a number of times.
[01:19:43]  Albert Hitchcock, loosely based on the Leopold and Loeb case from 1923, I think it was.
[01:19:49]  Two college students thought they were smart enough to trick the police and kidnap and kill a young man and get away with it.
[01:19:57]  Of course, they didn't, just like DK didn't hear.
[01:20:00]  So we have really this, I say, hodgepodge or mishmash of all kinds of personality issues finally coming together for him.
[01:20:08]  And again, for some people, that happens in a good way.
[01:20:10]  You know what?
[01:20:10]  I'm finally going to college.
[01:20:12]  I'm finally going to join the military, graduate school, whatever.
[01:20:15]  This guy, it was about paying back sort of, as we call it, a grievance collector.
[01:20:22]  Some psychologists use that term.
[01:20:24]  All these grievances that built up, the foundations were laid of brick by brick by brick.
[01:20:29]  And it's finally hit sort of this crescendo in, and of all places, Moscow, Idaho.
[01:20:37]  And this aligns at the same time.
[01:20:40]  And these poor four victims are the one to pay the price for his alleged grievances placed against him for the decade plus.
[01:20:49]  Why would you think that there wouldn't be a sexual assault?
[01:20:52]  I mean, I know I've heard some speculate maybe he didn't have time, you know, but I don't believe that because he chose to go into this house, you know, when he knew everybody was home.
[01:21:02]  It's like no, like I feel like if you wanted to commit a sexual assault and then a murder, you'd probably target a single victim and not a house full of six people.
[01:21:10]  But you tell me because you're the criminal profiler.
[01:21:14]  Sexual assault is not always measured or quantified by the sexual act.
[01:21:21]  You can get into fraud in psychology, whatever, but certainly the swinging of the knife, the stabbing of the knife, who knows how many times, dozens, no doubt, among four separate victims, in a way could have been a substitute sexual act for this guy.
[01:21:38]  And again, I'm not trying to create a defense for him or anything like that.
[01:21:40]  I don't think this would be, but this could be some sort of a surrogate or sort of choreographed action that, all right, you're not going to let me perform in some other ways, which who knows what his performance issues may or may not be.
[01:21:55]  I'll, you know, I'll jab you with this item instead.
[01:21:58]  So in his own way, in his own distorted method of thinking, this could have been a sexual act for him.
[01:22:04]  But I mean, I granted, I understand your question, Megan.
[01:22:06]  You'd think, you know, find one woman alone and try to use some method to control, you know, trick her into having sex, if not use force.
[01:22:16]  But that wasn't his mission.
[01:22:17]  He was mission-oriented that night.
[01:22:19]  It's time to get back at these women who have done this to me for all my life.
[01:22:24]  And by the way, I'm really smarter than the cops anyway in this small town.
[01:22:28]  I'll have no problem getting away with it.
[01:22:30]  But guess what?
[01:22:31]  He was wrong there too.
[01:22:33]  Would you describe this as a sophisticated crime or a not sophisticated, well, crime and killer?
[01:22:39]  That's a great question, Megan.
[01:22:40]  And to refer back to that 1125 appearance, how I framed this was the crime itself, the four corners of the crime, the 10 minutes, if even that long now we're finding out, inside the room, highly unsophisticated.
[01:22:56]  It was stabbing, it was blood, it was bad things happening to people without getting any more graphic than that, a lot of loss of control of people.
[01:23:06]  There may have been yelling and screaming, you know, whatever we, dogs barking, all these things.
[01:23:10]  And I always said the crime itself was unsophisticated.
[01:23:13]  There was a loss of emotion.
[01:23:15]  There was a loss of control on this person's part, yet he had enough to get through successfully, quote unquote, and egress the scene.
[01:23:24]  Where there's some level of sophistication was where the book ends of the crime.
[01:23:29]  And of course, we know now he made plenty of mistakes with the phone, with the car, et cetera.
[01:23:33]  But he did do some, the pre-offense and post-offense behavior before and after the 10-minute crime spree itself showed some level of sophistication, a forethought, and forensic countermeasures.
[01:23:47]  Again, not enough using his own car, pretty stupid.
[01:23:51]  Just turning off the phone at that one time when the murders occurred, you know, whatever, two-hour timeframe, pretty stupid.
[01:23:58]  If he turned it off every night at two o'clock or, you know, the months before, okay, well, maybe there's a trend and the reason he does this.
[01:24:05]  So sophistication beginning before and after the crime, not so much in the middle.
[01:24:12]  And of course, leaving the knife sheet behind was probably the biggest mistake, which happened to have his blood on it.
[01:24:19]  And that's where the case was really made.
[01:24:21]  That along, of course, with the white car being identified.
[01:24:24]  So it's like he had enough criminal justice and criminological information to think about this crime, get in the door and carry it out and kind of get there in one piece and leave in one piece.
[01:24:39]  But obviously, there's missing pieces that came about to ultimately cause his downfall.
[01:24:44]  Well, let's talk about that for one second because you're talking about this guy who kind of maybe snapped eventually, just a lifetime of rejection and not fitting in and being an incel again, involuntarily celibate.
[01:24:55]  It's a thing.
[01:24:57]  You know, being angry at women, feeling nothing, if you believe that these internet posts that were unearthed from when he would have been 16 are his, feeling nothing, feeling dead inside, feeling nothing for his family, you know, just complete, completely emotionless.
[01:25:15]  And if there were any emotions, they were negative.
[01:25:17]  If that's his profile, then he snaps.
[01:25:22]  He meets the girls.
[01:25:23]  He feels rejected, what have you.
[01:25:25]  How does all that relate to him devoting himself to studying crime?
[01:25:30]  Like, do you think there would have been a light bulb?
[01:25:34]  Like, what am I going to do with this affect I have and these feelings I'm not having?
[01:25:38]  Am I going to chant?
[01:25:39]  Like, I just think there are two sort of, because a lot of people think this was like just some creep who wanted to perform the perfect crime.
[01:25:46]  And that's why he studied criminology and then he tried to do it.
[01:25:49]  But then there's the other lane of, no, lifetime of rejection snapped, you know?
[01:25:53]  So how do you explain those two lanes?
[01:25:57]  It's a convergence of multiple lanes of his life that for some of the reasons we've already discussed and probably others we don't even know about yet all sort of all sort of came together here.
[01:26:06]  And it's always difficult to specifically predict someone's future behavior.
[01:26:12]  Well, it's impossible to predict someone's future behavior, but even somewhere where you may have trends or patterns of past behavior, it's very, very difficult to give an adequate prediction or some kind of projection of when this person is.
[01:26:26]  Do you think he wanted to commit perfect murder based on all of his education getting a behavior?
[01:26:30]  Do you think that was a goal?

=== Detecting Lies Among Agents (08:45) ===

[01:26:32]  I think so.
[01:26:33]  I think he thought he was smarter than certainly the Moscow Police Department, perhaps Idaho State Police.
[01:26:39]  He didn't maybe think the FBI would be involved in it.
[01:26:41]  I'm very proud of all those agencies working together, by the way.
[01:26:44]  So good for them, despite some of the criticism they took.
[01:26:49]  I think he truly felt he was smarter than the police.
[01:26:53]  He studied these particular people.
[01:26:55]  He knows how they're going to operate and he can beat them.
[01:26:59]  And I'll tell you, Megan, what was a real big clue to me was around what the search warrant was.
[01:27:05]  I'm sorry, the arrest warrant was released.
[01:27:07]  And some people did some research.
[01:27:08]  And there was a, I think his master's thesis.
[01:27:12]  He put together a number of questions, dozens of them, I believe, that he was eliciting criminals or people who wanted to commit crimes, asking them, how did it feel to commit this crime?
[01:27:21]  How did it feel to want to commit this crime?
[01:27:23]  Did you get away with it?
[01:27:24]  All these sort of interpersonal questions, which when I first saw them, it hit me like a light bulb.
[01:27:30]  I said, oh my God, I prepared a list of 400 questions, very similar to Lee's.
[01:27:37]  Each question have 10 subsections to it, along with a professor at Bradford University in Virginia.
[01:27:42]  And we would take this 400-question protocol questionnaire out to the prisons.
[01:27:48]  We would interview violent offenders.
[01:27:50]  They're in prison for life.
[01:27:51]  They're not going anywhere.
[01:27:53]  My thing back then was studying sexual, violent rapists and sexual assaulters.
[01:27:58]  And we would ask these questions over two days of these really bad dudes.
[01:28:02]  And why did you do it this way?
[01:28:04]  Why did you choose that victim?
[01:28:05]  Why not choose this victim?
[01:28:07]  And the answers we would get helped us better analyze these killers in the future or these rapists in the future.
[01:28:14]  And it looks like that's exactly what BK was doing in his earlier research.
[01:28:20]  I think this was published by the professor that I worked with, and I have no doubt that that material is available online.
[01:28:26]  So he may have even borrowed from some of the questions my team and I put together with the Radford University professor to do this.
[01:28:32]  So again, this is all coming together.
[01:28:36]  I hate to give him any sort of this DK any sort of a special clause or characteristic or place in our society, but I think he will be an interesting person from a criminal justice and psychological perspective to study over the next several years to a decade.
[01:28:55]  Maybe someday he'll even confess and say exactly what he did.
[01:28:58]  Maybe he'll be like a Ted Bundy type of guy and sort of hold out, ask for different favors in prison if he gives a little more information about this, a little information about that.
[01:29:07]  But I think he's a manipulator.
[01:29:08]  He knows how to manipulate people to some degree.
[01:29:11]  He can be Mr. Smiley Face, Mr. Nice Guy, what he wants to.
[01:29:14]  And guess what?
[01:29:14]  That's just how Bundy operated.
[01:29:16]  That's just how they can get into some of these places without raising suspicion and ultimately get away with the crime, even if it only lasted this guy seven weeks before he was arrested.
[01:29:27]  Wow.
[01:29:28]  It's just so disturbing to think about.
[01:29:32]  Do you, like him going on to become like one of those killers, like BTK, who's still commenting from prison right now on his own crimes and on this one?
[01:29:42]  I know you don't say his name.
[01:29:44]  I've long had a policy of not saying the names of accused mass shooters, where it's obvious that the killer's goal is to achieve infamy.
[01:29:54]  My policy has always been not to help.
[01:29:56]  And I read that in the Gavin DeBecker book saying, don't do it.
[01:29:59]  The media's got to help us stop creating heroes out of these guys or at least famous people out of these guys.
[01:30:05]  But as a journalist, my policy has always been to name any shooter for whom infamy is not the obvious goal.
[01:30:12]  And so that's why I say, and some of my listeners and viewers have asked, because they hear me not name mass shooters like the buffalo shooter or the Uvalde and so on.
[01:30:20]  But in this case, I have said his name.
[01:30:22]  Why do you not do that?
[01:30:24]  Do you think infamy is this guy's goal?
[01:30:26]  Yeah.
[01:30:26]  And I will enumerate exactly what you said.
[01:30:28]  I know Gavin DeBecker, he's lectured at the FBI Academy.
[01:30:31]  Read his book, The Sum of The Gift of Fear.
[01:30:35]  But I actually came up with this idea along with others.
[01:30:38]  Just don't give these guys any sort of credit.
[01:30:40]  I have a bit of a name reputation, a positive one out there in the criminal justice circles.
[01:30:44]  And I don't want any future person think somehow, oh, Fitzgerald will go in the air and mention my name.
[01:30:48]  That's really, you know, the Unobomb guy.
[01:30:50]  No, they're not going to have that from me.
[01:30:52]  The best I'll do is BK.
[01:30:53]  I could have said, you know, Ido killer, but I think our policies are very similar, Megan.
[01:30:59]  Obviously, you're a journalist.
[01:31:00]  You got to get it out there once in a while.
[01:31:02]  And I agree with putting it out initially because that way people can come forward and say, oh, by the way, I ran into this guy a month ago or 10 years ago.
[01:31:10]  Here's what he did to me.
[01:31:11]  And the case can be then screened.
[01:31:12]  You don't have to keep saying it over and over.
[01:31:14]  Okay, I like that.
[01:31:15]  You're pulling me over.
[01:31:16]  Yeah, there's no reason to just keep saying it over and over.
[01:31:18]  BK works.
[01:31:18]  People know it's not important to keep saying his name over and over.
[01:31:20]  And it's everywhere anyway.
[01:31:22]  All right, let me shift gears in the time we have left to the U.S. Supreme Court.
[01:31:25]  Today we found out that their leak investigation went nowhere.
[01:31:29]  The chief marshal, the marshal of the U.S. Supreme Court, who is not an investigator, she's a lawyer, was not able to come up with anything, though she reportedly did her best at a thorough investigation in interviewing some 100-plus people, asking to see their cell phones.
[01:31:48]  It appears she only, from what I read, only asked to see their workplace laptops and phones.
[01:31:55]  But basically, then got the seal of approval from Michael Cherdoff, another lawyer, saying, Yep, there's nothing really more that can be done.
[01:32:01]  Everyone said they didn't do it.
[01:32:03]  They signed an affidavit with a one line saying, I am not the Supreme Court leaker.
[01:32:08]  And, you know, that's it.
[01:32:08]  There's really no meaningful avenues left to be pursued.
[01:32:12]  And I argued at the top of the show, I don't believe that.
[01:32:15]  I'm not a criminal investigator.
[01:32:17]  But I feel like if we had brought the FBI in first, and certainly if we brought them in now, there would be avenues they could pursue.
[01:32:23]  And I feel like they could get to the bottom of this.
[01:32:26]  Half the battle is in the interrogation and in understanding when somebody's lying to you, which I guarantee you, Gail has no experience in or very little.
[01:32:34]  So I'm biased and I've expressed to you my bias on it.
[01:32:37]  What's your thought?
[01:32:40]  Yeah, the FBI should be brought into this.
[01:32:43]  I'm going to take it a step farther.
[01:32:44]  I'm going to say, but no FBI agents from Washington, D.C.
[01:32:47]  I worked seven years in the New York office.
[01:32:49]  Let's bring a team of those people down, get politics, even the perception of politics out of it.
[01:32:55]  Let's get a 10-person team, agents, analysts with computer backgrounds, good interview interrogation skills, and let every single person they interview, and they can interview all 100 again, whether they sign that affidavit or not, saying, I want you to familiarize yourself with USC 18-1001.
[01:33:12]  That's lying to an FBI agent.
[01:33:16]  That if we catch you in a material lie, you are going to be locked up.
[01:33:19]  That's been in the news, of course, over the last few years, different cases involving politics, whatever.
[01:33:24]  But this will be very much appropriate in this case.
[01:33:27]  And there's plenty of great agents in the Washington field office, but unfortunately, they have a sort of a tint of being in the political stream there.
[01:33:36]  So let's bring in New York agents, let them work this case, and let's go interview every single person.
[01:33:42]  I used to go around to companies in retirement, even still in the FBI, when some kind of a crime occurred.
[01:33:47]  There's a questionnaire we put together that they fill out individually, separately on their own.
[01:33:52]  I don't want to get too much into what the QA is, but it's remarkable that one or two answers come back different than we'll say all 100.
[01:34:01]  That's the person you focus in on.
[01:34:03]  Doesn't mean you arrest them right there, but you say, you know what, maybe I will take a look at your home computer.
[01:34:08]  Maybe I will take a look at your spouse's phone and let's put it together based on the prioritization of this individual people.
[01:34:15]  So yes, FBI should be involved.
[01:34:17]  Bring an agents out of New York City and let them have a crack at these people.
[01:34:23]  And I have a feeling with the threat of jail time for the violation of that particular statute, you get at least one person eventually being honest.
[01:34:31]  And there's training for FBI agents in this position on detecting deception.
[01:34:37]  Is there not?
[01:34:38]  I mean, you'd be better off than Gail trying to figure out who's lying to you.
[01:34:44]  Yes, we do have training in that regard.
[01:34:46]  It's not a hard science per se, but an experienced investigator, an experienced interviewer, and interrogator certainly knows when individuals are showing signs of inconsistency and body movement and all those things that something isn't right with this person.
[01:35:02]  And I've watched hundreds of these videos after the fact.
[01:35:06]  And I said, this guy's lying right at this five minute point.
[01:35:10]  Go back and ask those questions again.
[01:35:12]  Yes, they should have brought Phil Houston in, my old pal who ran the deception detection system at the CIA.

=== FBI Training on Deception (00:35) ===

[01:35:18]  And he is so good at this.
[01:35:20]  I remember he, it's going to upset the football fans, but he after Tom Brady denied DeflateGate, he was like, MK, it's not true.
[01:35:29]  What he's saying is not true.
[01:35:30]  Hillary Clinton, he had her after she denied the server.
[01:35:34]  It's like, he's great.
[01:35:36]  The point is, you guys, professionals, know how to do this.
[01:35:39]  Gail, with all due respect, clearly does not.
[01:35:42]  James, thank you.
[01:35:43]  Please come back.
[01:35:44]  All right, Megan.
[01:35:45]  Thank you.
[01:35:49]  Thanks for listening to the Megan Kelly Show.
[01:35:51]  No BS, no agenda, and no