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Bombshell Leak Signals Roe Will Be Overturned, with Bill Barr, Allie Beth Stuckey and Alan Dershowitz | Ep. 313

Bombshell Leak Signals Roe Will Be Overturned, with Bill Barr, Allie Beth Stuckey and Alan Dershowitz | Ep. 313

Tue, 03 May 2022 19:18

A bombshell, unprecedented leak at the Supreme Court... Megyn Kelly is joined live in studio at SiriusXM by former Attorney General Bill Barr, author of "One Damn Thing After Another," to talk about the egregious leak out of the Supreme Court, which signals Roe vs. Wade will be overturned, the potential criminal charges to come, the "mob" justice this could bring, what will happen to abortion in America, whether court packing will happen now, the way the media is covering the news, "rigged" 2020 election claims, the forces against Trump like Comey and Mueller (and Trump), and more. Then, we continue discussing the massive news today about the Supreme Court with law professor Alan Dershowitz and Allie Beth Stuckey, host of "Relatable," on the ethics of leaking the decision, what the decision will mean for abortion to America, what it might mean for other rights and decisions, the hysterical reaction of the left, the long road for pro-life advocates, the pro-choice movement's next moves, and more.

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Welcome to the Megan Kelly show, your home for Open, Honest and Provocative Conversations. Hey, everyone on Megan Kelly, welcome to the Megan Kelly show. It's a special show today. I am thrilled to have our very first in studio guest and we are live at SiriusXM for that and it's a special guy. It could not have come at a better time either. In just moments I will be joined by former attorney general William Barr, what a day to have him, right? As we were preparing for this interview, disturbing development out of the United States Supreme Court, a leak unlike any we have ever seen before. Late yesterday, the website Politico revealing that the court has voted to overturn Roe versus Wade. That's the 1973 decision on abortion. Why we have this news before we have the court opinion is because someone did something very unethical and deeply upsetting, no matter where your position is on the actual case law that they're deciding. The news comes just months after the Justice has heard arguments on a Mississippi law that makes most abortions illegal after 15 weeks of pregnancy. Somehow Politico got its hands on an early draft of the decision. It stated February written by Justice Samuel Alito, one of the court's conservatives, calling Roe, quote, egregiously wrong from the start and saying quote, it is time to heed the Constitution and return the issue of abortion to the people's elected representatives. Moments ago Chief Justice John Roberts acknowledged that the document is authentic but stressed that it does not represent the final position of the court. Indeed the justices go back and forth on their positions until the opinions are actually issued. This one was expected to come out in June. In addition, it's important to note that this does not make abortion illegal in America if this winds up being the final decision. It would likely lead to stricter limits on abortion access in some 22 to 26 states, however. But putting all of that aside, perhaps the even bigger story at least for today in this week is the leak itself. The magnitude of which cannot be overstated. Historians and court watchers cannot recall another instance of someone leaking a draft opinion from the nation's highest court. I practiced law for 10 years. I covered the high court for three or four, never seen anything like this. The Chief Justice himself, just a short time ago, calling it a betrayal, meant to undermine the integrity of the court, one he says will not succeed. And he has directed an investigation by the court marshal into the source of the leak. We're already seeing protests erupt and the political wolves are out for revenge, demanding lawmakers codify federal abortion rights immediately. There's talk about ending the filibuster so that the Democrats can push it through right away before we have midterm elections. That's where we are today. A few minutes ago, President Biden also responded at joint base, Andrews, all on his way to Alabama. Listen. All the decisions made me near private life, who you're married, whether or not you decide if you conceive a child or not, whether or not you can have an abortion, a range of other decisions, whether or not you raise your child. What does this mean that in Florida, they can decide they're going to pass the law saying that same sex marriage is not predictable. It's against the law in Florida. So there's a whole, it's a fundamental shift. There's so many fundamental rights that are affected by that. And I'm not prepared to leave that to the wins and the public at the moment. Hmm. Let's bring in our first guest, author of the book One Damn Thing After Another Former Attorney General William Barr. Welcome to the show. So great to have you here. It's great to be here today of all days. Were you stunned when you saw this leak yesterday? Yeah, I was flabbergasted. It really is unprecedented with all the, you know, our institutions have become increasingly politicized. But I never imagined this could happen to the Supreme Court, which has always protected its confidentiality. And for someone to let this out in order to influence the final decision is really beyond the pale. Do you think that's the motivation? Yeah, I think it is. You know, either we had a situation where there were five votes for that position and they're trying to intimidate someone to back off the opinion. Because as you say, things were in flux until the time it's issued. Or they were trying to determine whether they could muster five votes and they're trying to. That's how I read this. The report by Politico suggests the conservatives have a majority and that Roberts, she suggests as Roberts, may not be in it. He doesn't sound like it right now or at least at the time that they did the report. I mean, last night, he was a dissenter. But that he might be preparing some sort of a concurrence on other grounds, but that they had the five conservatives ready to vote to strike down Roe versus Wade. That we don't know, but that was the reporting. And so there is a question. So six conservatives seeming to favor some sort of overturning of Roe or Robert's case, something more limited. And the liberals objecting wanting to uphold Roe, the details. I mean, this, I, it had to be a law clerk. It had to be right. Unless you believe a US Supreme Court justice, him or herself would have leaked this thing. Right. Which I don't believe. I suspect it was a law clerk. And so the sort of table bingo last night was, well, would it have been one from one of the conservative justices trying to shore up a wobbly moderate, you know, keep the pressure on to stay on the majority? Or would it have been in your opinion, I realize this is speculation, a liberal jurists law clerk trying to generate enough public backlash that the wobbler would go over to the lefty side. The second scenario was the only thing that makes sense to me. Why? Because I don't think a conservative clerk would have put this out on with the idea that this would somehow shore up a wobbly judge. This is going to be a controversial decision if it came out. So better to keep it quiet, shore the person up internally and then let the chips fall the way when it's, or fall where they may when it's too late to reverse it. Right. Your position. Right. So what about this Marshall investigation? I mean, I, I'm having covered the high court for a few years. I can, I can say the Supreme Court Marshall investigating you isn't the sentence that strikes fear in the hearts of men and women. Now the FBI, because CBS is reporting that there may be an FBI investigation into who leaked this. That's a different story. That's more your purview. So what do you think happens from here? Who actually will take the helm? Well, you know, I think that the chief would have had the option and perhaps he still will to appoint a council, a special council, not in the classical criminal sense, but the court can appoint a council and he could bring in a former US attorney or someone with a criminal law background. And I'm sure you would get the support he needed from the FBI or any other law enforcement agency. What's your confidence that they can get to the bottom of who leaked it? I think they may need a grand jury to do that, which would mean a criminal case. Wow. Why? To compel the truth. Because people will lie to the Marshall and maybe not to a prosecutor. Perhaps. Well, that's the thing. And people are talking about it online though. Is this a crime? To me, I mean, it's clearly unethical. And if it was a lawyer, they should be disbarred immediately. But what crime could this possibly be? It could be obstructing the administration of justice, the due process of justice. That's a stretch though, no? Well, no. It's not. Your obstruction means you're attempting to influence through some kind of wrongdoing. And I don't think it's a stretch. So do you think they should? Do you think, I mean, like if you were running the DOJ right now, would you be pushing for it? I want to go back and parse the statute and make sure it was clearly covered by it. But if it was, I think that's the way to go. What do you make as you've been in and out of government many times in your career as your book makes clear? What do you make that this was leaked to the National Security Reporter at Politico? It's not the high court reporter. I don't know what to make of that. Obviously, whoever was leaking it is trying to cover their tracks. And maybe there was something about that channel that made them feel more secure. I don't know. I don't know either. I wish I had the TV's better, but I really feel there's a guy named Phil Houston. He used to run the CIA's. Maybe he was there when you were there. Deception detection program. He came up with it and then ran it for 25 years. That's what they need. They need Phil Houston, who's literally a human line detector to come out there. He wrote a book called Spidle Lie and he will get to the bottom of it. Even if there's not criminal prosecution power. Right. I think they should spare no effort to get to the bottom of what happened. Why? I mean, for the audience, why it's so catastrophic what this person has done. Well, this because once you expose the court to this kind of popular pressure and sort of potential mob psychology, it'll divert them from reaching a principal decision based on the merits. We get a lot of trouble in our system to insulate the court so that they can do what they think is just under the law and this means that we're going to have this street justice played out in front of the Supreme Court when they're considering controversial cases. Can we talk about the difference? Because one of my reporter friends texted me last night. She could see I was mad on Twitter about the leak. She said, I'm curious as a reporter why you'd be against this. Are your journalism credentials weighing against your legal credentials? I said to steal a phrase, America first. You know, that. Right. I mean, I would I hope that there's still reporters who would not like it if a national security secret that exposed us to danger was leaked. They might take advantage of it, but they would still I think feel that was wrong. And because society as a whole was injured by it and the same is true here. This hurts us in a different kind of way, but it's very profound. Well, and even without I mean, like you take somebody likes no, then he's he's got reasons. You can disagree with his reasons, but he had reasons for what he did. You know, he thought that the government was doing something unethical illegal and needed to be exposed. That's not even arguably the case here. There's no even alleged wrongdoing by anybody. This isn't a whistleblower. This is somebody who clearly leaked a confidential document that they took an oath not to leak through their attorney bar certification and when you go to work at the Supreme Court, you get the lecture from the Chief Justice and they did it for political reasons. So I don't like the public interest in in disclosing this now in advance is not the same as with something like the Pentagon papers. Well, I think it seems to I mean, we're all speculating, but I think the most likely scenario is they leaked it for the purpose of politicizing the decision making process of bringing extraneous pressure to bear on justice or some justice. It's shocking. I mean, I was saying we've never seen have you? I'm sure let's say it was a liberal jurist or not jurist, but Lockheark. You don't think somebody want, you know, might have considered trying to turn the tide some way on Lawrence V. Texas on on Griswold versus Connecticut on a Berger fell, the gay marriage case, all these cases that sort of are in line with privacy rights and so on deriving from row. Sure they would have. They would have to row itself, you know, who knows how the lockler is working for the other justices felt probably not so happy, right? Absolutely. They never did this. This is a breach beyond. It's about somebody making it about themselves and their own views. Absolutely. You know, one of the points I've made about January 6th is that whether it ought to president incited it or was aware of that be violence, the thing I objected to was seeking a political demonstration, including some rowdy people who looked like they were ready for some violence and putting them outside the capital to put pressure on the Senate and the president of the Senate, the vice president to reach a certain decision. And while people are free to do that for one branch of government to try to influence another by using that extraneous method was wrong. No violence is involved here, but they're doing violence to the process and they are trying to rally political forces to put pressure on the court. And for the same basic reason, it's wrong. Does this Supreme Court need to come out with its decision ASAP now? I think they should just go ahead with their normal process and not let this derail them. Do you worry at all about a threat to them now? You know, I mean, that crossed my mind that I think they have to, they have to buttress their security at this point. Definitely. You had another thing the leaker likely didn't take into account that he or she was endangering the lives of the nine justices, the conservatives and the liberals in being so reckless. They would have prepared for this had they known, you know, coming out in June, they would bulk up, now it gets them by surprise. Okay, a couple things about the decision itself because now we've had the Chief Justice Technology, it's authentic. It's not final, but let's presume that they don't lose one of those five votes between now and the time they issue it. And indeed, they are going to overrule Ro and Casey, which is, which affirmed Ro for the most part in the early 90s. To me, it's a stunning decision. I have to say I couldn't believe like people who have worked for 50 years to read these words, you know, the joy they must feel and having read them. And people who have worked for 50 years to stop these words from appearing in a US Supreme Court opinion, same. He writes, this is again written by Alito as for the majority, we do not pretend to know how our political system or society will respond to today's decision over ruling Ro and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of starry decisis, meaning respect, represident and decide his case accordingly. We therefore hold that the Constitution does not confer our right to abortion. Ro and Casey must be overruled and the authority to regulate abortion must be returned to the people and their elected representatives. What do you feel when you hear that? Well, I agree with that position. And you know, when I was up being from my hearings, the first time I was attorney general almost 30 years ago, right for HW Bush. I was asked about it and I said I thought the case was wrong. A Roe v. Wade was wrongly decided, but I would enforce it until it was overruled. And then of course, every year we went back up to the Supreme Court trying to get it over rule. So I'm one of those that has been looking forward to the overruling of Roe v. Wade. The thing is the court points out in this opinion, this draft opinion, that even abortion supporters have found it difficult to defend Roe's reasoning. It was an abomination of a legal decision. Even if you are pro choice pro abortion rights, it's very hard to defend this piece as legal as a piece of legal jurisprudence. They point out one prominent constitutional scholar who supports abortion rights wrote that Roe was not constitutional law at all and gave almost no sense of an obligation to try to be. That's the thing that people don't know. They just think Roe v. Wade has been almost 50 years like, what do you mean? Respect for president. This was the law. It was a joke of an opinion when it was written and when it was partially affirmed. And nothing about that has changed. Right. And that's why it's created so many problems and led to such political turmoil in our country because it was a strong arm opinion whereby a court was legislating. And the whole trimester system and so forth had no basis. They made up. It was made up. And I felt for a long time that one of the problems we have in our country is that we've done away with the glory of the federal system and its function as a safety valve. They released a let pressure out of the system. If we make these decisions in the states where people have maximum influence over their own state where states have different approaches, different cultures, different communities, then I think we're going to have to see less turmoil over time. But when we have one size fits all, Armageddon fights, one decision binding on every state, every person, and there's going to be a big fight in Washington. That's what's creating a lot of the ranker in our system today. This is what the court said, an agreement with your point. No represented the exercise of raw judicial power and sparked a national controversy that has embittered our political culture for a half century. Twenty six states asked the court to overrule, row and casey and let states regulate the matter. And they pointed out that for the first 185 years after the adoption of the Constitution, each state was permitted to address this issue in accordance with the views of its populist. And then in 1973, the court suddenly said there's a Constitution right, constitutional right to abortion, even though the Constitution makes no mention of abortion. So it came at a left field as a legal matter. That's right. I think that now people are going to be afraid because if you turn on mainstream media today, they're telling you that abortions who soon to be illegal in the off 50 states. Yeah, that's ridiculous. Newspirion why that's not true. Well, state state very different approaches today. This that opinion, if it were to be the final opinion, isn't saying that you have to prohibit abortion. It's saying this is a matter for the states to decide. And a very high proportion of our states are going to permit abortions. There may be reasonable regulation and time periods, but it's not going to prohibit it nationwide. And what we hear is, well, somebody in Idaho is going to have to go to California to get an abortion. Well, let's think about that for a minute. That's what we get in living in a federal republic where states are sovereign and can set the rules for the people of their state. And if people don't like the rules in Idaho, they don't necessarily have to move, but they might have to go to California to get abortion. That's the price we pay for federalism. And it's well worth the price. The alternative, which is to say, you led just, you know, the law has to be exactly the same throughout the country as I say. That creates a pressure cooker. And that's one of the problems we have today. Well, that's why you're having talk of, let's get rid of the filibuster so that we have no minority rights in the Senate at all. It's already gone when it comes to justices and judges in the federal courts. And now they're saying, let's get rid of it, the Democrats altogether so that we can ram through a national federal law that protects abortion in all 50 states. I mean, that would be extraordinary. You're right. I mean, I, you just got it. Well, it may not even be constitutional because I'm not sure exactly what power the federal government has to do that. Once, once you rule that it's not a fundamental constitutionally protected right, I'm not sure where the federal government gets that power. Good point. There's another, this is getting less traction, but I've seen it from some prominent liberal pundits. They want, there's talk of court packing again. Sure. Get the court packed before June. Even, I mean, that's not even a possibility, right? Like there's no way they can do that. Right. You know, it's, to me, it's very ironic that the Democrats keep on talking about the destruction of democracy. Okay. This is all about democracy. It's about looking, the people make the decision. As you know, the constitution envisions narrow powers for the federal government. And otherwise, it's left to the people and to the states. And this idea that, you know, we should take it away from the people and have one size fits all rule from Washington is in my mind, anti demographic. It's not what the founders envisioned. Right. Sure. They didn't want some king, some central authority who issue all the rules. Right. And we've been living just fine like that. There's a reason Mississippi is very different from California. And you can make choices accordingly. We've seen that over the past couple of years with COVID. People have dawned on them. I don't really like the way my state has run in these policies. I'm going to go someplace that's more free like Florida. Right. Absolutely. And it's a charter for freedom. People can find their niche in this country. Communities can take shape. People with common values tend to gravitate to the same place and so forth. And so you have a real feeling of community. We're a composite country. What's wrong with diversity in this country? And now the left talks about diversity, but they're not for diversity. For everyone, knuckling under and following what they want to do. Exactly. It's only service level diversity. Your skin color, your gender, what have you. No ideological. I remember sitting at the Supreme Court and hearing Justice Scalia when he was still alive and on the bench, say, on an issue around abortion. If you want abortion to be a federal right or to be in the Constitution, good on you. Go out there and get a constitutional amendment passed. That's what you do when you want to change the Constitution. You don't read rights into it that aren't there. And it's almost like now I'm having the feeling of, I'm sorry, I feel bad that the Supreme Court for some 50 years has lied to the American people saying that there was something written in this document that wasn't in there. Now the ship is being righted and people feel betrayed, which I understand. I understand because we've seen justice after justice do at the Supreme Court confirmation hearings, being like, I'll have respect for precedent, starry, decisive. No one will ever make a prediction on what they do on rate. I don't row versus wait. And now, you know, the answer is yes, they do respect precedent. That's why we don't get these decisions every day. But bad precedent gets overruled and that's not unprecedented at the US Supreme Court. Right. That's absolutely right. We saw bad racist decisions from the past be overruled. So as you say, the law around when you overrule a bad precedent is well developed and the draft opinion by Justice Alito goes through all the standards. You know? As we still have Plessy versus Ferguson, separate party equals fine. Lots of bad decisions that the court has come to revisit like when they did with Brown versus Board of Education. They don't always respect precedent. Sometimes they say that precedent is bad and it needs to go. Just one thought for the audience, they say this follows. There are three groups of people in this country. One that believes a human person comes into being a conception and abortion ends and innocent life. One that believes any regulation of abortion invades a woman's right to control her own body and prevents her from achieving full equality. And the third is the group that believes abortion should be allowed under some but not all circumstances. And there's a variety of views on the particular restrictions that should be imposed. Number three is the vast majority of the world. Like they point out that only six other countries besides the United States allows abortion on demand past 20 weeks. We the United States have been in an outlier position for a long time on this. Very small group that's in group number two, you should have the right to decide all the way through the ninth month of pregnancy. Right. So there's another element of this which is personally I believe life does begin at conception. So that if I had my way instead of what the Constitution says, I'd say abortion should be prohibited and maybe that and I would be fighting to get that interpreted into the Constitution that that was a person. Right. And some Republicans are. Maybe so. Yeah. Or they want a constitutional amendment to do it. But my feeling is to be honest about the Constitution that's not what the Constitution did. The Constitution in my view left it up to the States. And so I'm not trying to get my personal beliefs, you know, reflected in the Constitution. I'm willing to live with the Constitution. Yeah, you don't want Roe to go the other way, a bad decision that affirms your worldview by writing stuff in a Constitution. Right. I'm not going to impose my worldview on the Constitution. And I think the idea that that anything goes abortion, you know, without any restriction is them imposing an extreme, their own extreme views on the Constitution. And I think this opinion is right. Leave it up to the States. Yeah. And that's what Scalia said. He said, you want to go, you got to get that constitutional amendment. Don't leave it up to nine men and women in robes. It's not our purview. Right. Last question on this. We'll squeeze in a break and then we'll talk about you. Many out there, forgive me for saying Jeffrey Tuben to you. Many out there like Tuben saying. This is the beginning of the end for, you know, the right to pride, so called right to privacy and any jurisprudence that's connected to it. From the right to contraception to the right to gay marriage, which had due process concerns as well and so on. And there are a lot of people on the left saying that now this is what the court actually said. And I'm quoting here again, in a draft opinion that could still change. We emphasize that our decision concerns the right to abortion and no other right. Being in this opinion should be understood to cast doubt on precedence that do not concern abortion. But I've seen even some on the right say, this is our window, say our window to get rid of something like a burge of foul, the gay marriage opinion or some of these other cases that have the original root in the so called right to privacy of row and so on. So how do you see that fight going? I don't think it's going to happen. But I don't think there's going to be an erosion of those cases. Now personally as an original matter, I would have also left those issues up to the states. But once it was decided by the Supreme Court, I think there's tremendous dependence and reliance on those decisions. Well, there was an arrow too. No, there isn't because abortion is something that... When you get married, you have property things that last for a long time and you have a relationship that lasts for a long time and you have children and so forth and so on indefinitely into the future. Abortion is something that... That's what the court found. That's exactly what the court found. What you're saying, that it's temporary if you will. Right. Right. It's a temporary condition that will be resolved or not. And so there's no reliance on Roe v. Wade in the same sense that there's reliance on the gay marriage case. None that couldn't be adjusted based on state legislation and so on. That's what seems to be what the court is saying. Right. I don't see that happening because of the reliance of people and I think people understand that. That's fascinating. What a day. So glad to have you here on this day. So I was almost disappointed that Bill Barr was coming in today and that this news broke because there's so much other I want to talk to him about. We're going to dig into his book next one damn thing after another and it certainly is. Right. Well said. We'll be right back with more of the former Attorney General. Welcome back to the Megan Kelly show. Just chatting here with the former Attorney General Bill Barr author of the new book One Damn thing after another which is a great description of what it's like to be Attorney General and that's explained early in the book. It's a great great explanation. It's kind of how the news business is too. We were just chatting about how it's really it says something about the ethical code of this person who ever leaked this is you were a lock clerk back in the day. You're obviously a lawyer. It does right? It's your own personal moral code. Right. Well, it's that the ends justify the means anything you do is okay because you want to take the country to a better your view of a better future. Well, that's as good as Segway as I could ask for into the whole Trump election stuff. So let's get that out of the way. I think the reason most Republicans, the polls show most Republicans think that the election was stolen from him. Now what does that mean? Because I know you've said, you know, rigged unfair. We can go there but like actual stealing of votes. No. Right. And I that's where I fall to. Because I didn't see any proof of it. I was open minded like, hey, let's see. You know, but the reason I think most Republicans believe it was stolen is what we're talking about that the Democrats clearly believe ends justify the means. He's too big a threat. This had to be stopped. He had to be stopped and that the stakes were just too big to play by the old rules. Right. So people are confusing three different things. One are the rules that are put into effect at the last minute before the election, which are not in themselves illegal. COVID stuff, mail and ballots. Right. Longer voting times. Right. Yeah. You have to live with that or you challenge it and court and get it thrown out if you feel that the state didn't have the power to do that. The second thing are process violations. That is the violation of rules that are meant to prevent fraud. The big one there is harvest thing. Obviously. And as I said in my book, I think they were cutting corners on harvest. And that's where I go around and I pick up all the old ladies ballots for them. I'll take it in and I'll deliver it. Don't you worry, sweetheart. And then God knows what I do with it before I actually drop it off. Right. Harvest thing can be the whole gamut from actually taking a sealed ballot saying I'll deliver it for you and going around to standing at someone's door and say, you fill out your ballot. You got to vote, fill out your ballot, help them fill out the ballot, take it. And then they can be more fraud involved where you put it yourself. And if it's just a process, I don't mean to minimize it because I think that's a violation of law and people should be prosecuted for that. But what a lot of people don't understand is that you're not going to be able to turn around an election based on that because you don't know. Once the ballots are opened and counted and mixed all together, you can't go back and reconstruct which of these was harvested by Joe Blow and which involved on due. Undo pressure and so forth. And furthermore, as I think you would see, most courts are not going to throw out a valid vote because it was harvested. The question will be, was this a qualified voter and should we really ignore their vote just because somebody collected and delivered it? So and then the third category is where unqualified votes are counted or qualified votes are suppressed. That's fraud. Yeah, that's the bad. That's where the counts are affected. And when they came out of the box on election night, the president had saying there's massive major fraud underway. And all the stuff that Giuliani and the others were talking about in the first few weeks was fraud. Actually, like the machines or truckloads of illicit ballots or ballots taken from under tables, all of that was nonsense. And all these figures that were thrown out about how Philadelphia had more votes than registered voters, which the president said just last January, this past January, nonsense, nonsense. The turnout in Philadelphia was actually lower than the state average turnout. So Detroit was another one. Yeah, same thing. Where he did better against Biden than he did against Hillary. Yeah, so the big picture in the election was the cities pretty much did what they always do. There was no big change in the cities. There wasn't been some big influx of votes that was beyond what's happened in the past. And in fact, Trump ran a little bit better in many of the cities. The rural areas increased their vote for Trump. But the thing that changed were the suburbs. And there, Trump lost ground, either significant ground and in suburbs that usually went Democrat, but still had significant Republicans. But even in some suburbs and experts that he won in the past is margin went down. And this is what he was told for the whole of 2020. Yes. Like after the first presidential debate, you read about this in the book saying you were very displeased. And because you really felt the base is there. We don't need to shore up the base. We need to get the suburban voters who are turned off by your affect, right? Some of your personality characteristics. So let's try to be a little bit more presidential and shore them up. And I went in in April. So it's before the debates, I went in in April and I told them that I had a one on one with them. And I said, look, I think you're going to lose the election. And it's not COVID. COVID, you know, you can survive COVID. But everybody sees this, which is we've lost ground in the suburbs and we got to get that back. And when you look at the vote, that's where he lost it. So all these people are out there talking about, you know, fraud and how the just property could have turned it around and so forth. First is not true. We could not have turned it around based on the evidence at that point. But they should go and look where the votes actually came from. One thing I pointing out is like in Arizona, he ran 75,000 votes behind the Republican ticket. That is the Congress people who were running the state assembly people. Same in Wisconsin, roughly the same in Pennsylvania. Let's take Pennsylvania where he ran 60,000 votes behind the Republican ticket. Compare that to what Reagan did. And when he was running for reelection in 84, he ran four. 470,000 votes ahead of the Republican ticket in Pennsylvania. Half a million ahead. Those were the Reagan Democrats. You can't win a close election like this as the Republican candidate. If you're running behind the average Republican. It's just in a way, it's such a shame for Trump because you point this out in the book. He was, he was, what's the word? Or they were kneecapping him from day one in a way that we had never seen before. He really was never given the chance to just govern, you know, to just govern. It was an outrage what happened to him. And you know, that watching it and being very suspicious of this russian gay thing, that's one of the reasons I felt he wasn't getting his dues president. I was willing to come in and do my best to, you know, to have him get what he deserved as president. And so he was sinned against. But he also, as I think most people believe, including his supporters, his own worst animal. Yeah, he's sinned against himself. Yeah. But you know, you look at the cast of characters around him. And I used to be a Komi van a believer. I know you had a personal friendship with Robert Mueller. That's changed. And you're very frank in the book about what you make of those guys. Komi, my word was sanctimonious. You had a different word for him. What was it? I don't remember. He was a megalomaniac. Megalomaniac, yes. So how did that happen? Did he grow into that? Or was he just like that from the beginning? Well, you know, you always lawyers, as you know, tend to thank Kylie of themselves. And he always had a, you know, a healthy amount of that. But I think he became more arrogant this time, went by. You could tell. Like when you went to a room with him had a conversation. Why? Well, it was holier than that attitude. You know, I think what he did in the Bush administration with the hospitalization of Gonzalez and acting like there was some, you know, big conspiracy afoot, opened a lot of people's eyes to him. And what about Bob Mueller? He was your friend. He kind of stabbed you in the back. He wrote this law of me entering report. You condensed it down to two pages, which the left freaked out about saying you misrepresented. You said, I didn't. I wasn't going to let him get away with this obstruction of justice stuff, which was not the right focus. And I boiled it down for you, which is there was no collusion. That was the headline. That's what he was told to do. He got mad. You should a little statement of his own about how you didn't get it right. So I know you said to NBC, you're not sure if you guys are still friends. But what, how do you see Bob Mueller now? Because I think a lot of people were surprised by how off he seemed when he testified and whether he's the guy we thought he was. Well, you know, I think I'd leave it at that, which is, you know, I don't think he was, you know, what you saw was not the Bob Mueller that I was used to working with. And I don't know how much of it was that change versus ideological or would have you. But was he always a partisan guy? Not particularly. Although I do think that he had disdain for Trump. Yeah. But I think the fact that he allowed, well, look, Rod, it was terribly unfair to Rod Rosenstein. Rod Rosenstein picked Mueller to assure the country that this was going to be done without any partisanship. And then Mueller turns around and brings in very partisan Democrats, a whole crew of men. And you told him not to do that? Well, I mean, I commented on it at the time, but I wasn't in charge. Yeah. Right. You were saying you might want to reevaluate. Yeah. So one of the things that Trump was upset about was the Durham investigation, which you got started, which is good. You need to know why they invented this fake claim of Russia, Gaintengolusion, all that. And Durham, sure enough, seems to be a straight shooter getting to the bottom of it. But he was mad. It didn't go faster. And I think there's something about he was mad that after that first presidential debate where it came up about Hunter, maybe you can refresh my memory that you didn't go back to him and say, you were right. There is an investigation. You knew that there was an investigation into Hunter at that time in the US Attorney's Office in Delaware, but you couldn't reveal it. Yeah. I think one of the reasons our relationship sort of sour during 2020 was, and he did, by the way, it didn't come in and tell me what to do in these cases. He was good in that respect. He sort of asked me, generally, you know, are things going okay? And I'd say, yes. And then he tried to figure out what was going on. But he would never ask or he never tell me to do anything. But his public comments made it clear that he wanted scouts and he wanted them before the election. I mean, you can't blame him. I don't blame him. I don't blame him for that desire, but the attorney general has to run a criminal justice system that doesn't take account of politics. That's what HW told you. Right. He had a different approach. Right. And if you don't have the evidence at that point, you don't indict someone simply because it's politically beneficial. But I am annoyed when I hear a lot of my side, the Republican side, you know, sort of say, you know, why isn't Durham, you know, do them? And I said, okay, let me explain the time frame to you. He got up and running in the summer of 2019. But we didn't have the information about the FBI's activity from the IG until December of 2000. Why not? He didn't issue the report and he wouldn't share it with Durham. So Durham's team did not have all the FBI stuff. So he was looking at other things while waiting for that report. Do you think he didn't share that because he didn't want the thing to go off his head? No, I think that's his standard practice. And that's the way you wanted to handle it. So Durham was delayed in getting into the meat of the matter until the end of 2019. And then what happened three months later? All the grand jury shut down because of COVID. Now you know that I'm not saying you had a grand jury. But I'm saying is that once people know that you cannot convene a grand jury and issue a subpoena to them, they're not going to voluntarily cooperate. So you say, will you come in and talk to us? We want some questions that I ask you. They'll say no. Yeah, well, I got to get my nails done. I got to get my hair done. I'm worried about COVID. I'm taking care of my mother. Yes, safety first. Yeah, safety first, and they know you can't say you got to be here. Now one first speaking of COVID. But that went on until October before the election. Now we're getting results. And you know, they're not big indictments. I mean, you know, it's not like the big mother load. Like you orchestrated the whole thing, but we're getting the story piecemeal together. And eventually I believe in I think you will get the story. We're going to get the full story from here. All right. Speaking of COVID, Anthony Fauci, your piece of advice in the book, is do not get between him and the camera. Right. I mean, I'll say you have ever seen such an egotistical bureaucrat? No. Right? Right. But my concern, and it was a concern of a lot of people at the White House, was that he was empowering Fauci by putting them out there. And he created this monster if I can use that metaphor. And so it was his own creation because he kept on putting them out there. Why did he do that? It's not like Trump. Well, for my observation, Trump is very decisive on certain red meat issues that he has a good feel for, like crime, immigration, stuff like the drug war. But on things that are confusing and not too clear, such as COVID, he's not that decisive. Or his style is to hang back and snipe at people instead of actually make decisions. So I contrast what he did, how he handled COVID with how DeSantis handled it. DeSantis went out and actually hired a health advisor who seems to be pretty reasonable with the show. He's pretty good. Yeah. And then he made the hard decisions and stuck with him even though he was getting battered. And then he just followed along with the bureaucrats and snipe at them. And he was all over the lot. I mean, his fight with camp, his attack on Governor Camp, was that Camp wanted to open up too quickly. Right. That's how it got started. I forgot about that. I thought the whole election. So he's been all sort of all over the lot. And I think that that was what partly heard him on COVID. But I thought he could survive COVID. One great thing Trump did in terms of decisiveness was Kavanaugh and some of these other Supreme Court justices. It's the reason a lot of these conservatives fell in love with Trump who previously hadn't because any other president would have faulted on Kavanaugh in a New York minute. As soon as those me two attacks came in, Christine Blassey Ford, like a cheap tent down. Right. They would have been. But he wasn't. Right. So I give him a lot of credit. Well, what do you think? Like, because I've been thinking about that today, given this historic decision that we think maybe coming out, who knows, but it looks like it's going to go the way the conservatives have been fighting for how much credit does Trump get for that? He should get tremendous credit. You know, I was never a never Trumper. No, I know. Yeah. I mean, once he got the nomin, I was for other people. But once he got the nomination, I supported him. And as I said in the book, just on the Supreme Court and judges, I would have crawled over broken glass to vote for him because the Democratic agenda is the shift governance to the court system. I wanted to put in people who will actually interpret the law. So I think he deserves a lot of credit for making that pillars of his administration and sticking with it and following through. That's another good thing about him. When he said he would do something, he actually tried to do it. Back to your tenure, a couple of quick hits I wanted to ask you about the Whitmer, you know, alleged kidnapping plot. That case is falling apart, not guilty or mistrial. What was startable, you were the AG. Any regrets on that? No, because, you know, as I'm sure you know, you have thousands of cases around the country and you can't get into each individual case. You have to rely on your US attorneys to, you know, to have the, I didn't personally review that case. Do you feel like it came out the right way? Which one? The Whitmer. I mean, the trying of these guys, there were more informants than there were defendants. It was like the FBI's crime. Not these guys were barely into it. It does touch a raw nerve with me because when I first came in, I was saying, look, we, you know, tell me everything about Antifa, these far left groups that were heavily involved in political violence as far as I could tell, just from watching, you know, the news. And they really were not on top of that situation, but they were very on top of the right wing groups. And over the years, they had penetrated and had all these reports coming out on the right wing groups, but very little work done on the Antifa. And I told them you better get your act together and get on top of this because this is where the dangers are, I think, is going to come from. And it did over the summer. Hmm. Boy, it didn't do. Yeah. Look, you've done so much trying to shore up law enforcement and we're seeing the results right now and so many cities have not listening to the warnings of a guy like Bill Barr. It's sad too, because it's communities of color that are paying the biggest price. And we just, we just saw that from the FBI this week. Yeah. So I know you've got a ton of expertise. This has to be just part one. Can we make this part one be delighted to come back? Okay. And we'll go, we'll do part two and we'll talk about everything else. Okay. Because there's just so much goodness to be mined from Mr. Barr's book from his life, from your experience and we're delighted to have you. Yeah. Thank you for being here. Don't, don't forget to buy the book. And damn thing after another. All the best to you, General. We're going to be right back. Don't go away. Welcome back to the Megan Kelly show. Just a short time ago, Senate Minority Leader Mitch McConnell called for a criminal investigation and criminal charges into whoever leaked the Supreme Court opinion that signaled the court is prepared to overturn Roe versus Wade and Casey versus Planned Parenthood, which upheld Roe in part some 20 years after it was first decided. According to Senator McConnell, the leaker quote should be investigated and punished as fully as possible. Joining me now for more Alan Dershowitz, Professor Emeritus of Harvard Law School. Professor, great to have you back, especially on a day like this. Thanks for being here. Thank you. What do you make of that? Because I just had Bill Barr on. He said, yes, the leaker can and likely should be prosecuted. Thanks for obstruction of justice, Mitch McConnell saying the same. Do you agree? No, I don't agree. You don't make up criminal laws. There's nothing on the criminal law statute book today that would permit prosecution. There should be a law and maybe Congress can pass one, but you can't use vague terms like obstruction of justice when this is a political decision. Plainly, this was a young person, a law clerk, a probably a law clerk who was very strongly opposed to overruling Roe versus Wade. He decided to engage in an active civil disobedience. If that person is caught, he or she should be fired, perhaps not admitted to the bar, but not criminally prosecuted. You don't use the criminal justice system unless there is a statute on the books which clearly, clearly, criminalizes the conduct of this issue. People tend to say, if we don't like something, it must be criminal. I don't like what this guy did or this woman did. I think it's wrong, but I would not criminally prosecute. If that person is caught and wants to retain me as the lawyer, I'll represent them. I disagree with what it is. You can't make something into a crime that isn't under the law of criminal offense. Well, I asked Attorney General Barr about that and said, how could you get him on obstruction of justice? He was essentially saying this was an attempt to thwart the Supreme Court opinion as originally drafted to influence the justices inappropriately by burying public pressure down on them and that might qualify. That wouldn't qualify. That's not an obstruction of justice. Abstrruction of justice has been defined over the years in very, very narrow terms. Although I respect Bill Barr and like him, I think he's just wrong on that. But people on both sides of the political aisle have used the criminal justice system inappropriately to punish conduct with which they disagree. I was taking the view that my own personal views, I'm a strong supporter of row. I don't think it should be overruled. I think it would be a terrible mistake. On the other hand, I don't allow that to influence my analysis of how this will impact the Supreme Court. I don't think it will affect on the Supreme Court, but I think the person leaking it sorted might and desperate times required tears, probably is what the law could believe. Well, they can tell themselves that all the way to the disbarment proceedings that are absolutely going to happen against them. I mean, I don't, I haven't seen a breach like this from somebody in the time I've covered the court or been practicing law. It's hard to convey to the lay person how egregious a breach of ethics and trust and confidentiality and procedure in the third branch where we don't see this kind of thing. This is. You know, it is. So, you know, I've been covering and following for close to 60 years, I was a lawyer on the Supreme Court about 55 years ago. This has never or happened. But then again, students at Yale Law School today believe that you can shut people down and not allow them to speak if they have different views on abortion or gay rights. So we are experiencing a generation of young people, particularly on the left, but I'm sure there is some on the right as well who don't believe in the rule of law. Who think that the rule of law is a paternalistic patronizing colonial, you know, you name it, every bad thing. They think free speech is unnecessary due process is unnecessary and secrecy is unnecessary. So it wouldn't surprise me at all if one of these radical leftists did this. Look, it's possible somebody in the other side did it. I don't believe that, but it's possible somebody would say, gee, there's some people who are vacillating on the Supreme Court. Let's lock them in by leaking the decision. I don't think that's likely. One thing I'm sure of as it wasn't a justice, because I don't think a justice would now have a call to let it go or probably no sooner than every political. It was a young, I think, who had a friend in political reporter who here they could trust. Now we're going to see a big issue because if there isn't investigation, there'll be a subpoena directed at the journalist and then the journalist will claim privilege and maybe the court will rule against the privilege. The courts aren't going to be sympathetic. Obviously, to a leak. Interesting. So we'll see whether the journalists is where it's going to become Judith Miller and go to prison rather than reveal her sources. This is the beginning of a larger, larger issue that will play out over months. It will also play out politically. I think if somebody thought this was going to help the Republicans, they were wrong. I wrote back in 2000, if Roe vs. Wade were overruled, it would be a gift to the Democrats because it would turn abortion into a legislative matter, a political matter, and the vast majority of Americans don't want to see their daughters go back into backdality. So I think it would help the Democrats in the end. Hmm. I don't know. I'm not sure if it's going to be that motivational. I mean, right now we were looking into this. You know, there's an abortion pill right now that one can get from the FDA. And they loosened the rules to make it easier to get it last December. And so if you're in Mississippi and they outlaw abortion, which is one of the states that's got this so called trigger law where they're going to restrict abortion probably entirely if this decision comes down as we expect, you can still get this abortion pill. It's only workable till the 10th week of pregnancy. Maybe not. Maybe the Mississippi law is going to say, well, you can't mail that into Mississippi. But women will find ways around that from the affected states. I just, I'm not sure it's going to be the same as it was when you had to go to the clinic. You had to pass the protesters. You had to have a surgical procedure. I don't know. I hope you're right. I hope you're right. Look, I was in New York, when they passed along, Connecticut saying birth control was illegal. And birth control clinics could be outlawed in the Supreme Court and Rizwold versus Connecticut. Reverse that and that became the stepping stone, obviously, to Roe versus Wade. And although Alito said that no, this opinion only affects abortion doesn't affect other things like gay rights or presumably the right to use birth control, you never know what states will do. And many state legislatures are at a sync with the public. They're way the right in some states and will vote for as much of a ban as you can get. But I hope you're right. I think you're probably right that it won't have the same impact it would have had in 1973 if abortion were not made a constitutional right back then. I do think there are ways around back alley abortions. But there's some historians out the America that does suggest that there still are back alley abortions. And tolls, you know, they have to be known to people, they have to get to them. And again, it's going to affect the poorest and the least willing. That's absolutely true. The poor women are the ones who suffer the most when it comes to this kind of thing. But you know, Bill bars response of that would be that's federalism. Welcome to federalism. It's not a constitutional right. It's not in the constitution. You can absolutely go petition for a constitutional amendment if you think you can get the support for that. Otherwise, you're going to have to deal with what your state says. And if you don't like what your state says, there's always the power of your feet. Well, you know, you can say that and you can say that about gay rights and gay marriage. You can say that about gun control. And suddenly we federalized and made a constitutional right out of the right to bear arms. That one's in there. That one's explicitly in there. That's not like abortion. It's like abortion. This is in there in language that's ambiguous. The language says it relates it directly to malicious. And there was a history of precedent of 150 years saying that there was no private right to bear arms. And that precedent was overruled. You can apply it to Brown versus Board of Education. Brown versus Board of Education is not a good decision. Logically, it uses a lot of empirical data that's highly questionable. But nobody's going to reverse Brown versus Board. And if you had asked the framers of the four that wrote equal protection, do you think that the protection means that a black man to marry a white woman? It's a you're crazy. You're nuts. It means that a black kid could go to school with a white kid. You're out of your mind. They would never have passed. Well, I think you're right about that. I think you're right. But there's some there's a logical appeal to what somebody like Scalia would say to that and an originalist, which is okay. Now, no one's saying those are good things. What we're saying is go get a constitutional amendment. There's a there's a nifty way built right in where you can get amendments and you can get these things made into constitutional rights if that's what you want. But we shouldn't be reading things into this that aren't there. That's not Scalia's answer. Let me tell you why. Scalia came to my class and criminal law. The first year he was on the Supreme Court. And I put that test question in directly and there's a tape of it. And he didn't give the answer that you might think. A man in the Constitution to give us Brown versus Board of Education. He said originalism isn't perfect. It has problems. And Brown versus Board of Education is one of those problems. I can't answer your question about Brown versus Board of Education. But it's better. He said like democracy and maybe the worst of all the systems. But he said that about originalism. He didn't say it was perfect and he didn't say it would solve Brown versus Board of Education. And my friends who are pro a right of abortion say the same thing about this. It may not be explicitly in the Constitution neither is birth control. It's under the right of privacy. It's a living Constitution. It the argument is. And therefore it should a cover abortion, at least some abortion as well as birth control. But Alan, you can't say that row versus weight. And look, I'm not taking a position on abortion one way or the other. There are certain things as a reporter I choose not to reveal. And my position on that as a person as an American as a woman is my own. But I, there's no question I look at row. It's like it's, it just looks like a pile of trash knitted together to me. It's like the, the trimester system, these judges making stuff up about viability. They, they decided to play God and just make up fake lines, which is why it was struck down in large part in Casey, except for its core, which was the fundamental right. How do you distinguish that from gay marriage and gay rights? The framers of our Constitution never would have permitted gay marriage or gay rights. The framers of the Four Debt Amendment never would have permitted it. Both of the right of privacy and personal choice and bodily integrity and all of that. And I don't think very many people today, I hope, don't want to overrule the right of gay people to live their lives. A free of governmental constraints. The thing that concerns me is conservatives are supposed to want to keep the government out of the bathroom, out of the bedroom, out of the bed, out of the hospital. And yet more and more conservatives want the government to intrude into private decisions like abortion and fall in marriage and all of that. And so, you know, this is hypocrisy and also. I think there's a big push on the GLP side to get rid of gay marriage. I do think there's a big push on abortion because that scene is a fundamental issue of death and life. I don't have to explain it to you. You're a religious man, you know. I agree with it. I think there's a big difference between abortion. I think, look, I wrote critically a Roe vs. Wade when it was decided. I know. I hear 2000 in my book on the Supreme Court that Roe vs. Wade was a great favor to Republicans. It's people who would pro choice Republicans into pro life Republicans. Most people like First President Bush and Rockefeller Republicans, it helped eliminate the moderate wing of the Republican Party and turn it more to the right. It's a very complicated factor and the one thing Alito did get right and he was right about this. And that is unlike Brown vs. Board, this decision in Roe didn't stop the politics and didn't persuade people. It didn't have an impact on public opinion. The public opinion is divided today is 1973. Let me pause you there. Can you just explain to the viewers and the listeners who haven't read the opinion? Because he does spend a fair amount of time talking about what in particular Casey, which affirmed Roe 20 years later, said about like, let this be the final decision. Now go on your merry way that the court had these aspirations of this being the last word on it, which he's pointing out in this draft opinion was just not the case at all. Well, but why didn't he say that when he was being confirmed? Why did he say when he was being confirmed and when several of the other scores that you had and Kevin, both of whom I admire, why weren't they more honest in their confirmation hearings? Why didn't they say these aren't super precedents and Roe and Casey, they're up for grabs and if we have enough votes, we'll overrule it. And Barrett did say she wouldn't comment on that. It's over credit, but the three of them, the other three in their confirmation hearings basically said, look, it's precedent, it's the law, it's 30 years old, 40 years old, 50 years old. I mean, they all lie. They all lie when it comes to their actual feelings about cases like that because they know it's a deal breaker. I mean, let's not forget our most recently confirmed Supreme Court justice to be just tried to say she didn't understand what a woman was. They all mislead. It's a joke. I understand what a woman is for purposes of athletic competition, for purposes of using bathrooms, for purposes of being admitted to an old woman's college. It's all contextual. I agree with her. I think she is. It is. It is. It is not. It's not. Then we got bigger problems to go over you and I, but we'll save that for another time. By the way, some of the insane lunatics online are like, it was one of Katanji Brown, Jackson's clerks. You are not helpful. She's not yet actually on their deciding cases, but she will be at some point, but it was definitely not Katanji Brown, Jackson, or any of her clerks. Can we just spend one more minute because I didn't get to ask you more closely enough? Disparment, don't you think? If this was a lock clerk, that person should be disbarred. Well, Lee, look, I hope that person doesn't ask me to represent them and then I have to say no. He or she shouldn't be disbarred, but ask he was not representing anybody at the moment. I do think disbarment seems appropriate, but we're in that. Why? But before you say the butt, tell us why. Well, you made a note. I was a sprinkler at law clerk. I would have loved to gossip about some of the decisions. I was there during some of the major, major decisions during the civil rights period. I would have gotten a lot of free dinners and gone to a lot of good parties if I had leaked what the sprinkler was about to do, but we all knew we had a note. We wouldn't even tell our spouses about sprinkler decisions. We wouldn't, we always had sealed briefcases. When we took the decisions home with us, it was sacred and no lock clerk would dream of sending an opinion to political, but we live in a different world today. We live in a world where young people think they're above the law. And that's the audience is justified. Look at Maven justified against segregation, which was lawless in the end and people did engage in civil disobedience and rightfully so. This is different. The rule of law operates in the Supreme Court. And I agree with the chief justice who said this is singular and outrageous and should be prosecuted to the extent of the law and not criminally, but disbarment, firing of court. It's right. You know what's going to happen to this person. If they're ever caught, they'll be disbarred, but they'll become a hero to people on some sides of the political spectrum and you know what they'll end up doing? They'll end up having podcasts like you and me and they'll end up being journalists and end up maybe being law professors. But they're not members of the bar who can practice because what they did was in violation of the rules of their employment. That's the thing is like when you become a lawyer, you take an ethical oath. It's not a regular job. It's not like, you know, I worked retail, I taught aerobics, I've done different kinds of jobs. I don't make you take an oath of holding, flatching to uphold certain ethics like they do to become a lawyer. Okay. Let me ask you a couple things. So this is what your old pal Lauren Stribe says, predictable next steps after the Alito opinion, which again, why don't underscore is a draft. We do not know that this is the final opinion. What a turnaround it would be if next month they release something going the opposite way, though that's not expected. He says predictable next steps after this, a nationwide abortion ban followed by a push to roll back rights to contraception, same sex marriage, sexual privacy and the full array of textually unenumerated rights long taken for granted. Do you agree that the next step will likely be a nationwide abortion ban? No, I don't think so. There aren't any justices, maybe, maybe Thomas, but certainly not a majority for having a constitutional right to life, that is that it would be unconstitutional to allow abortions. I don't think that's true. Let's remember that Tribe is responsible for this. Tribe is the person who got pork, defeated for the nomination in the Supreme Court, and that led to the politicization of the Supreme Court. So he bears some responsibility for this back when he went to the mat on on on Bork, who was perfectly well qualified to be on the Supreme Court, but just had opinions that disagreed with tribes. He goes on to say something that I just read that matches up with, again, forgive me, what Jeffrey Tuben is saying on CNN, which is that same sex marriage is now in jeopardy that all of these other cases are now in jeopardy where they used either privacy rights or gay marriage, they used the due process clause, but they expanded sort of these social rights for lack of a better term, and these guys who are left wing commentators are saying they're all in jeopardy. Now you're a liberal, but you've always been a straight shooter. So what say you? Are these actually do you actually believe that these are in jeopardy next? There will be efforts by some religious conservatives to bring lawsuits challenging a gay marriage. I don't think they would go as far as to try to overrule Rizworld versus Connecticut, which in which Connecticut, Connecticut, a liberal state banned birth control clinics. Forget about abortion, birth control clinics, and that had to be reversed by the Supreme Court. I think that's rich too far. I don't think we're going to go much further to support gay rights or gay marriage, but I think that's pretty solid. I think birth control is pretty solid. Try to undo them, but I don't think they'll succeed. Abortion is different because remember gay rights, whose business is it if a gay man or gay woman has sex or marry somebody at their own sex? Who cares? It's nobody's business. But abortion for many people in this country mean killing fetuses and fetuses have souls and they're alive. It's not something that I necessarily support, but it's something that a lot of Americans support. And you're not going to talk them out of it. So I think abortion is unique and I don't think the slippery slope applies here the way tribes and tubans think they do. But you know, tribe and tubans are always wrong about everything because they allow their personal views to influence their analysis. I never allow my personal views to influence. That's true. That's true. And honestly, I mean, it must be noted that Jeffrey tuban himself has been in the news over the past, or whatever. Well, no, I was in the news over the past couple of years because he was masturbating on a Zoom call for the New Yorker. But this is a guy who openly pressured his young lover. He was having an affair on his wife with to have an abortion and then denied paternity when she refused. I mean, like, it's just very uncomfortable to see him commenting on this on CNN given his history and how we know that that issue has played out in his own life. I'm not saying you're all disqualified from it. If you had an abortion, you can never comment on it or if you didn't have one, it's just we know his situation is very public. So everyone should take it with a grain of salt. I do, I do wonder though, because I don't think this is a cowboy. A Supreme Court. I really don't. I think John Roberts has tried, he's bent over backwards to try to make sure it's not a cowboy Supreme Court. So I just don't see them. This is a huge, huge decision, right? Probably the biggest we've had in decades. And I can't see them coming anywhere near these other issues now. I feel like those issues are less likely to be touched now than they were a year ago, because this is like the big one, the big enchilada. And if the Supreme Court keeps taking cases like these and then they've got a gun rights case, they've got some other cases of religious rights case, this term that should be decided soon. But like they're not going to go back over this stuff. Alan, they lose their moral authority. And at the end of the day, isn't that all they have to really make us comply with their orders? I agree with you. And that's why Chief Justice Roberts will try very hard to keep them from doing that. But that won't infect Justice Thomas. Perfect. I think it will affect Justice Cabinol. I think it will affect Justice Barrett. There's no they there. There are nine individuals. And I think each of them will consider this issue differently. I do not think there will be a majority to go back and reverse years and years and years of precedence involving civil liberties and privacy. I do not think that will happen by a majority. But there may be one or two justices who see this as a green light. Our last question. If there's any chance because the Chief Justice is saying whoever thought that we could be manipulated was wrong. That's my own paraphrasing. Do you think there is any chance that that somebody who's in that majority opinion might flip? I mean, what do you think the odds are that this will come out with anything other than a five person majority to strike down Roe versus Casey within the next six weeks? I think it's possible because it won't require a big flip. What it would require is judicial restraint. Uphold the statute in Mississippi and say we don't have to reach the issue of the Roberts way. That's what we're hearing. Roberts is likely to do. Sorry. Go ahead. Right. Right. Judicial conservatives who who espoused who opposed judicial activism should be doing. The issue of overruling Roe versus Wade is not necessary to the decision in this case. All they have to do is decide that the Mississippi law limiting 15 weeks is constitutional. That's what they should do if they're conservatives who believe in judicial restraint. And that's possible. It's possible that Roberts may be able to twist the arm of Kavanaugh, may be barred unlikely any of the others. Well, that's led to some interesting speculation online about could even, and I don't believe this for one second, but could even the Chief Justice have leaked this? Should it have been somebody like the Justice trying to get pressure on those two guys or gals to come over to his side? Go ahead. No, no justice did this. It was either a law clerk or somebody in the printing office or employee or something like that, but it was not a justice, I believe. But wait and see. And we may never know because the journalist may refuse to disclose the source. If the FBI is involved, they may have. They're going to know. They're going to know the journalist will not turn on his source to his credit. And the the Supreme Court law clerks are going to fold like cheap tents because they are not rough and tumble street fighters. They are elite upper, I've heard our Supreme Court law clerks and they're going to be scared. Oh, shitless. As soon as the FBI shows up saying, I want your electronic records. I've already checked them. I know exactly who you've been communicating with and you're F'd unless you confess. But remember to then, may that the this opinion may have been laundered through somebody else. That is to give it to political. There are ways that make it more difficult to get to the source to this material. There are ways, but once the FBI is looking into it, which you know, it sounds like they may, you're dead. They're going to find the clerk is dead. They not physically dead. In terms of it's his or her cover up, we're going to know their name. Maybe it's what they want, like little stupid anonymous in the White House trying to make himself sound like a big man. Then we all found it. It was nobody. This person didn't unethical thing. And as far as I'm concerned, that's how they'll be known forever more. A spineless, weakling political hack, who's very first act as a lawyer was to betray the very oath they appear to have taken. All right. That's still the last word. Alan Dershwitz, anything but a hack, a principled man who takes the barbs better than anybody, because he sticks to the principles and he doesn't really care whether you like him. And that's why he has fights with Larry David. Great to have you here. Let you thank you so much. Coming up, Ali Beth Stucky. Look, whatever you think about this decision, this is a huge day for people who've been fighting a very long time to end Roe vs. Wade. It's not final yet, but this is the best news they've gotten in 50 years. And Ali Beth will join us with that piece of the story in moments. Welcome back to the Megan Kelly show. We are continuing to follow all the reaction coming in regarding the bombshell Supreme Court leak. Just a short time ago, Senator Elizabeth Warren went to the Supreme Court steps in order to call conservative justices, quote, extremists and let everyone know just how angry she is. Take a listen. I am angry because an extreme is United States Supreme Court. Thanks to the fake and false, their extremist views on all of the women of this country at the overall. Yeah. Hmm. She's upset. You can see that. Meanwhile, Democratic Congresswoman Ilan Omar tweeted, expand the court. That's what Eli Mistal over MSNBC said as well. Senator Bernie Sanders is calling for Congress to pass legislation, codifying Roe vs. Wade as the law of the land saying we must end the filibuster to pass it with 50 votes. You heard Bill Barr, former Attorney General of the United States say that they don't have the power to do that. They cannot. Vice President Kamala Harris just weighing in saying the rights of all Americans are at risk. Actually, just as a way of simplifying everything, doesn't she? Joining me now, Ali Beth Stucky, host of the podcast, relatable. So, Ali Beth, you were one of the first people I thought of when I saw this decision and I know we spent a lot of time in the leak and we'll spend more in this segment talking about it too, because actually there's new information coming in and who might be. But can we just spend a moment on how huge this is or is going to be if it comes down as we now expect it to be? Put it in perspective for us. Yes. You know, in our 24 minute news cycle and just in our elections, cycles, we expect political changes to happen quickly. We want them to happen quickly. The problems that we face, we are not used to having to wait many years or even a generation for the problems that we are facing to be solved or we don't want to wait that long. We expect our politicians to be able to do something immediately as soon as they are pressured to do something that is when we want it. We are very much microwave generations. We are used to that immediate gratification and satisfaction of getting what we want easily. However, when you look at pro life activism, this has been 50 years of torch passing. This has been 50 years of advocacy, 50 years of people arguing, hey, this is unconstitutional. This is immoral. These people inside the womb, they are human beings and therefore it's pretty simple. They are entitled to human rights, the most fundamental being, the right to not be murdered as an innocent person. And so it's been 50 years of telling the truth. 50 years of very simple, both legal and moral arguments that has come to this. And as you mentioned, we don't know for sure the conclusion if this is going to be overturned. But wow, this is such a beautiful representation of what years of consistency and persistence and dedication to one cause can do. And I don't take anything away. I mean, I have so many friends who are on the other side of this. And I know that they're scared and they're hurting. They've fought equally hard on the other side. So this is not to take away from their legitimate concerns. Though it really is going to depend on what state you're in. You know, it is going to depend on what. And if this is a huge concern for you, you're probably going to live in a blue state. But I will say you've got to tip the hat to Mississippi. And the lawmakers there who specifically crafted this law in an effort to create a Supreme Court challenge case that would go up and that it would actually make it hard for to go the Chief Justice Roberts way and forgive me because I'm just assuming that the political report about the way he's going is true. I have no freaking clue. We should all remember that. But they miss Mississippi understood that there were people like Roberts on the court who would try to sort of, you know, have it both ways and find a middle ground and they tried to craft a statute that would make them take a look and say, no, there's no way through this other than to decide whether row and Casey stand or have to be overturned. And they went in there and made the case. I mentioned one of the things with Attorney General Barr, only six countries outside of the United States permit elective abortion after 20 weeks. We are in the tiny minority and our permissiveness on this subject versus the rest of the free world. And the other countries are like third world countries. And then the court recounts some of the evidence put in front of it by Mississippi. This isn't the lead or draft opinion by six weeks. The hardest beating by eight weeks. The babies moving by nine weeks. All basic physiological functions are present. Again, this is from a little by 10 weeks vital organs begin to function and hair fingernails et cetera begin to form by 11 weeks and keep mind that abortion pill. That you can get that from a doctor that that will end the pregnancy up to 10 weeks up to 10 weeks of vital organs begin to function and hair fingernails et cetera begin to form. This is why people get upset. This is why people like Alibet say you have to actually know what's happening. It's easy to do it when you're not thinking about what's actually inside of you may not be easy, but you know, you see my point 11 may move freely about in the womb 12 weeks has taken on the human form in all relevant respects. Abortion still legal in the United States. Most after 15 weeks, mothers would need a dialect dialection and extraction, which means surgical instruments to crush and tear the unborn child, which Mississippi argued and Alito quoted them as saying is a barbaric practice. This was all said by Alibet Stucky when you came on my show when they argued this case, like they heard you, they heard these arguments and for the first time in 50 years, they appear to be listening. You know, it's so important for us to talk about what we are actually discussing because you will notice that the pro choice pro abortion side, there are people who are on a shame of lead pro abortion. Their organization is called shout your abortion who really do believe that abortion is a moral good. So when I say pro abortion, I really mean that. There are people on that side who are pro abortion and it's so important to talk about what we mean when we say abortion because you'll notice that that side uses euphemisms. They'll say things like reproductive rights or bodily autonomy or my body, my choice or reproductive justice or even the word abortion. It's kind of a euphemism rather than talking about what is actually happening or you'll notice on the Planned Parenthood site, they'll say pregnancy tissue is removed or the termination of a pregnancy, they will do everything they can to avoid talking about what an abortion is and who an abortion kills. And I think that's a really good indication that you are on the wrong side of something. If the truth hurts your case, if the truth actually hinders your ability to persuade something, if you need lies and euphemisms to make your side more palatable and persuasive, that's a good indication that you're on the wrong side. The pro life side, even though it's taken as long as it has and it will continue to take a very long time to change hearts and minds, which is a main goal. We have the truth on our side. All we have to do is say this is what an abortion is, which you partly just described. It is a brutal procedure. It is a violent procedure. And look, here's what fetal development is. This is a human being. Whether you think that human being should have personhood rights, maybe that's a constitutional legal philosophical argument that we could have. There's no scientific argument that this is a human being or not. I simply believe that it is wrong in all cases to kill an innocent human being. The people who are pro choice, don't believe that. You believe that sometimes it's okay to kill an innocent human being and they should be forced, they should be pushed to be able to coherently and logically defend that. They should really be on the defense, they should be the ones that are forced to explain why it's okay to kill some human beings, innocent human beings and not others. And I think that's the position that we need to be in. There's a lot of comfort on our side, on the pro life side, right now and forever that the truth really does help us. We don't have to rely on euphemisms to make our side seem right. We truly believe that we are right because the truth is on our side. Don't you think it's interesting to hear the same people who have been objecting to the use of the word woman? Suddenly they got it. Now they got it, they're ready to talk about it. And also the point about your body, it's not your choice when it comes to the vaccine. We can mandate you take the needle for the good of the public, the unknown, unnamed public. But when somebody like you wants to say, well, let's talk about the good of the identifiable baby growing inside the womb, that, no. And it's my body, my choice entirely. So there's been, there's been the fair amount of hypocrisy in the narrative around these issues. Yes, you know, it reminds me so much. And this also kind of goes back to what you and Mr. Dershowitz were talking about in democratic norms, how democratic norms have been totally abended at least in this case. And it reminds me of when Democrats say that they care about democratic institutions and institutional integrity. They care about democracy, really they just mean protecting the things that they like. When democratic processes don't go their way, then they will take authoritarian measures or at least suggest authoritarian measures, like trying to pack the court or trying to get rid of the filibuster to push through their will and to up into the democratic processes that we have and to try to throw off those checks and balances. But when they do something like that, which I would consider authoritarian, they call that preserving democracy and it reminds me of what is also happening with the word autonomy. What they mean by autonomy is them getting to do the things that they want to do, even if that hurts the rights of another individual, which in the case of abortion, it does hurt another individual's rights. Of course, that's the whole thing. It's not just your body. You do have bodily autonomy. You can decide if you want to reproduce. I know that there are cases of sexual assault in rape, but that accounts for according to the Goetmacher Institute, which is a pro choice research institute, less than 1% of all cases of abortion. If you talk to a pro choice, they're not interested in limiting abortion to those cases. It's just something they throw out there to try to manipulate you emotionally. They're not interested in restricting abortion in that case. The vast majority of cases of abortion, these are women who have chosen to engage in something that leads to pregnancy, that can lead to pregnancy. You have bodily autonomy. You have choice over your body, but that starts before you create another human being. After you've created another human being, then we have a responsibility to care for that person because they are a distinct human, just like you and me, with distinct DNA and therefore distinct worth. I'm thinking about the Supreme Court battle over Justice Kavanaugh. He was replacing another conservative, Anthony Kennedy, though Kennedy was unpredictable and could definitely side with the liberals on social issues and did. But he was replacing a conservative and every weapon they had was deployed against him to try to stop him. I'm sure he is feeling some pressure to not be somebody who joins the majority because this is really why they were so worried about him. This is why the left really hated him. I don't think the left really believed Blasiford or all these women who came forward. Maybe Blasiford. I don't know, but it was so amorphous who could know. I don't think they really thought he was a gang rapist. It was all about trying to prevent him from joining this Alito majority opinion. That guy and these other five justices are having the weight of the world on them right now. I hope their spines are stiffened by this, that they're anger, that this happened, actually kind of motivates them to stand strong in whatever decision they've made rather than go the opposite. I think that they now feel like maybe they have an even bigger burden right now of responsibility to try to protect the integrity of the court. They would be compromising further compromising the integrity and the trustworthiness of the Supreme Court if they caved to public pressure. That would just look really bad all around. I'm hoping that they stay courageous, but you're absolutely right. It was all a political ploy. Same thing with Amy Coney Barrett. She wasn't, she didn't receive quite as many attacks, but she went through the ringer as well. She really is all about this. She seems to have made a difference in this draft opinion because if you read the opinion that Alito writing for the majority, it makes the point about how the burden that's on a woman who finds herself pregnant against her wishes in today's day and age is not the same as it used to be. They talk about safe harbor laws where you're allowed to drop your baby off at a firehouse and you won't face charges and all of the Catholic charities and so on. All different ways of supporting women. I realize that the pro choicite is like, I don't want to be forced to give birth to a baby that I don't want and I don't want to live this life knowing that a child of mine is the right way. Let me just pause. Right there is that you're still giving birth. I know that's like brutal to stay, but you're still giving birth. You are giving birth to a living baby or a dead baby. The baby has to come out. So either way you go through birth and so people think I know that you don't think that and pro choicite people don't necessarily think this, but it's almost like they believe that abortion is just like you wavle one and the pregnancy goes away and nothing happens. But either way you give birth to a baby. You either give birth to a dead baby or a living baby. And women suffer trauma. I know the pro choicite doesn't want to talk about this, but there is trauma related to abortion too. I believe that women and children and society as a whole deserve so much better than abortion. Yeah. I just don't find that to be a compelling argument at all. You still have to go through something very traumatic. That's a very interesting point. I mean, I have found in my own experience that the women who I have known who are the most ardently pro choicite have had abortions. And I just don't know if there's a piece of wanting to feel validated and wanting to make sure that what they've done isn't so atrocious that it gets ruled illegal. You know what I mean? I think there's something psychological going on for some of the women who are pushing it like shout your abortion. Who would name their group that? Clearly somebody is looking for some sort of validation. Even the Clintons said safe legal and rare and didn't want people shouting their abortion, Gloria Steinem style on a t shirt. But anyway, so I think Amy Coney Barrett has had an influence on this decision because some of her logic and some of her reasoning is in that we heard her asking about the oral argument has wound up in the piece and she replaced Ruth Bader Ginsburg. And you remember how mad the liberals were at RBG, their hero, for dying. Not retiring before Trump, you know, because she thought Hillary was going to win. That was a report. So like all these news stories that we've covered for a long time about the Supreme Court battles, I can see them all baked into this decision. Yeah, yeah, absolutely. I think that she did have, she didn't have an influence on it. And I think that this is why they care so much about the courts. I saw it tweet earlier that it seems like the left has just given up on the art of persuasion that they will use judicial fiat. They will use all kinds of change of democratic norms just to kind of push their agenda down people's throats and that seems to be the case here. And I think what we're going to see is a lot of intimidation, a lot of intimidation, not just of the justices, but of the public. And I've already already saw that. I tweeted last night that I think the person who leaked this knew that the lives of the justices and their families would be threatened by people who were angry about this potential decision. And I got blue check mark journalist quote tweeting me reply and saying, good, good, they're glad that they're going to be intimidated. They're glad that Amy Coney Barrett and Kavanaugh's young children that their lives are going to be threatened. You're telling me that you think that you're on the right side because you think it's justified for someone to murder someone else because that person doesn't think there's a constitutional right to murdering children. I mean, it's wild. It's wild. But this really is, it's become a sacrament for the left. And that is, they worship at the altar of it. And that is why you were seeing the history of the Choir. God forbid. God forbid something happened to one of the justices left or right between this, that person. I hope would never be able to live with himself again for leaking this. And by the way, anybody thinking in the most conspiratorial, I'm thinking of like Pelican brief by John Christian. You know, you, you think you're going to take out a Supreme Court justice and you're going to get a decision to go to the other way. You haven't, you haven't seen the Republicans fight. There would be no confirmation for any jurist to replace a jurist who was hurt in any way by an activist. There will not be one. So for the lunatics, they, they're going to need to guess again. Okay. But you raised the question of the leaker. And I'm not going to say this person's name and I'm not going to, I have no idea who leaped this and no one does. But there's an interesting discussion happening about, I mean, I think virtually everybody agrees it would have to be a law clerk. The only people who have access to the decisions as far as I'm told and I was never a Supreme Court clerk are the law clerks and the justices themselves. And now does that mean a secretary doesn't see it on the printer? You know, I can't speak to that. But the odds are it's either justice or a law clerk and I just can't, I just will never believe that justice would do it. I just, I don't, I don't believe it. So there are rumblings about so to my ear who has a new clerk whose name we're not going to say, but that clerk has been previously quoted in an article by the guy who broke this story, Josh Gerstein. And to correct something I said earlier, Josh Gerstein is apparently the justice, the senior legal reporter for Politico, the other byline on the case there were two reporters is the national security reporter. So they did have at least one of their legal reporters on it. Okay. Apparently this clerk also led the efforts against justice, Kavanaugh while at this person's undergraduate institution or at their law school. So we don't have any idea whether this is the person, but can I tell you something, Ali Beth, quoted in an article by Josh Gerstein before is the best evidence I've heard so far. If I could tell you the number of times I figured out who somebody sources by looking back at other articles that person's written and seeing who they go to on this particular story or the storyline. And sometimes reporters are so stupid, they do it right in the very piece. They're like, Oh, Ali Beth Stucky wouldn't comment, but a pro life advocate tells us that right. Right. I'll give you the last word. They didn't cover their tracks. Yeah. Potentially. They potentially didn't cover their tracks. And you know, I'm like you just like everyone else. You don't know I've heard the same rumblings, it was probably so to my or I've heard I have even heard the theory again, this is a theory. I do not know this that so to my or may have I know you say that you don't believe that this could happen, but that so to my or may have known this may have been a part of this. Again, that is a theory. People are kind of speculating. And that's all we really can do right now. And so I don't know. I think we've seen from the Democrats and from the left that the ins seemed to justify the means for them. I don't think anything is out of the realm of possibility. Unfortunately. Unbelievable. Ali Beth, listen, I'm happy for you, your side, all the advocates who have worked so tirelessly on this. And I'm just thinking about the country and how we how we heal how we get through this and how we keep things factual and stop the hysterical hyperbole about what this means. You've been great. What a day, right? My gosh, what a day. Some of my old conservative leaning legal pals have been writing me emails this morning saying they think the decision is stellar. They're very, very happy with its reasoning with how it was written with the points being made with its, you know, how solid it is in terms of, you know, realistically getting attacked and torn down. Of course, the left is going to say what they're going to say. But it's interesting just to get that reaction from people I know and trust in half for a long time. Thank you for trusting us in a day like this. Really appreciate it. I want to tell you that we're going to have much, much more tomorrow, including Senator Josh Hawley. He clerked for the US Supreme Court. He's got some strong feelings on a leaker and we'll have thoughts on the decision as well. And we'll bring you that much, much more when we join you tomorrow. The meantime, download the show, the Megan Kelly show on Apple Pandora Spotify and Stitcher. Go leave me a comment in the comment section. I still read them and I love hearing from you. Also, go ahead and subscribe at slash Megan Kelly. And then you can consume the product visually and you can see today's show with me live at the serious XM headquarters with the former Attorney General of the United States. That was cool too. What a great day to have him. And thanks to all of you for being part of it. Thanks for listening to the Megan Kelly show, no BS, no agenda and no fear.