This is a RUSH transcript from "The O'Reilly Factor," November 30, 2010. This copy may not be in its final form and may be updated.
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BILL O'REILLY, HOST: Now for the top story tonight: disagreeing with my "Talking Points," here now, the host of the program "Freedom Watch" on the Fox Business Channel, Judge Andrew Napolitano.
All right. So let's keep this in the realm of reality and I don't want to hear any theory, OK?
JUDGE ANDREW NAPOLITANO, HOST, "FREEDOM WATCH": Well, that's why I'm here: to bring you a level of reality.
O'REILLY: You bring me into reality. Where specifically am I going wrong?
NAPOLITANO: You're wrong to say it's a crime to harbor criminal intent. There are 4,000 federal criminal statutes. Anybody can contemplate in their mind breaking one and that's not a crime. You told about 1/3 of the story. The FBI picked an easy mark. The FBI trained him in the use of explosives. The FBI itself exploded illegal weapons in his presence to teach him how to do it and in doing so, committed crimes. The FBI talked him into doing this, and then got him to say, well, I was thinking about doing it before I met you guys. And then the FBI charges him with attempting to explode a device, a weapon of mass destruction? It was a truck filled with sawdust. It couldn't have exploded.
O'REILLY: Well, that's right. They weren't going to give the guy access to a bomb.
NAPOLITANO: So he couldn't have done what they say he attempted to do.
O'REILLY: Well, that's according to you. And, again, you weren't there. Now, the feds say on tape recordings…
O'REILLY: …they give this guy plenty of time to back away. For example, the feds say, they said, look, if you set off the bomb in Pioneer Square, women and children are going to get hurt. They may die. Are you sure you want to do that? The guy time after time after time said yes, yes, yes, yes. Not only that, his history was, going back to 15, four years ago, he wanted to become involved with the jihad. He wanted to do this. He tried to get in touch with Al Qaeda. Look, this isn't some guy they dragged off the street. You know that.
NAPOLITANO: This is an easy mark.
O'REILLY: Wait, wait, wait. His own father…
NAPOLITANO: How does the FBI decide who to target?
O'REILLY: I'll tell you how. His own father called them and said I have a disturbed son who is trying to get in with the jihad and I'm afraid he's going to kill somebody. That's how.
NAPOLITANO: So take two years and talk him into committing a crime, show him how to do it, lead him by the nose and the crime can't be committed.
O'REILLY: You say they talked him in. You know, I said in the "Talking Points Memo," if his lawyers can prove that then the jury should acquit.
NAPOLITANO: Actually, his lawyers shouldn't have to prove it. The government should have to disprove it because the government has to prove all elements of a crime.
NAPOLITANO: One of which is that you really wanted to do…
O'REILLY: I think the tape recordings will tell the tale.
NAPOLITANO: The FBI has revealed less than half of the tapes. You and I read the same affidavit.
O'REILLY: All right. Let's assume -- we're not going to try this on TV. Let's assume what the feds say is true.
NAPOLITANO: We can't.
O'REILLY: Let's assume. Do you know what the word assume means?
NAPOLITANO: You're leading with your chin on that one.
O'REILLY: OK. Assume the FBI has on tape that they tried to dissuade him at times from doing this violent act. He was bent on doing it, OK? But there was no violent act because they didn't give him access to any weapon. Yet, he's charged with wanting to use a weapon of mass destruction. If you're sitting on the jury, all right, putting your pinhead judge title aside, and you hear on the tape that the feds said, you know, maybe you don't want to do this, and the guy is adamant about doing it, do you vote -- do you vote to convict?
NAPOLITANO: I would have to hear the tapes that the FBI did not reveal. I would have to hear his explanation.
O'REILLY: So, exculpatory evidence, which the defense attorney is entitled to in discovery, correct?
NAPOLITANO: Well, absolutely.
O'REILLY: OK. So you assume you would hear it. Don't dodge. If the tapes show he wanted to kill the people in Pioneer Square, do you vote to convict?
NAPOLITANO: No, because wanting to commit a crime is not the same as committing the crime.
O'REILLY: Well, that's not what the Supreme Court says.
NAPOLITANO: We will become East Germany if we prosecute…
O'REILLY: Now you are wandering into the land of theory, which you can do on your dopey show but not here.
O'REILLY: This is the Supreme Court.
NAPOLITANO: Go ahead. What case?
O'REILLY: The Supreme Court ruling on a number of cases using subjective approach to evaluating entrapment: "If the defendant can be shown to have been ready and willing to commit the crime"…
O'REILLY: …"whenever the opportunity presented itself"…
O'REILLY: …"the defense of entrapment is unavailing."
NAPOLITANO: Except when the government has planted the seed, coerced him, encouraged him and led him by the nose.
O'REILLY: So, you just admitted to me, in front of millions of people, that even if the government's tape shows he wasn't coerced, he wanted to do it, you still would vote to acquit. I say that's irresponsible.
NAPOLITANO: Well, I would have to hear the evidence of the coercion. If there is evidence of coercion, which I have seen in that same affidavit, this is not the proper role of government, because if government can do it to him…
O'REILLY: Now, you're falling back on theory again, because we said if it is apparent, and I believe it will be because I don't think Holder, a very liberal guy, the attorney general, is going to put his neck on the line, all right, in saying we didn't, we gave him outs. But you still -- and I believe you were telling the truth -- you still, because you are a stubborn guy would vote to acquit the man even if the tape showed he wanted to kill these people or a child molester wanted to rape the kid.
NAPOLITANO: Wanting to do evil is not a crime. It is a thought. We don't punish thoughts in this country.
O'REILLY: The Supreme Court has ruled you wrong on it.
NAPOLITANO: Because you read half the quote. The rest of the quote is, "If the government planted the seed in his mind, he's not guilty."
O'REILLY: If you are on the Internet trolling for teenagers, nobody planted the seeds.
NAPOLITANO: Don't use me as an example for this.
O'REILLY: OK. Nobody. And if your father calls the FBI saying, my son might kill somebody because he's a jihadist, nobody planted the seed.
NAPOLITANO: Go take two years and train him and encourage him to commit the crime.
O'REILLY: Now, ladies and gentlemen, there he is, one of the finest legal minds in the country. You decide who has the stronger argument. Judge Napolitano, thanks for coming in here.
NAPOLITANO: I love you, Bill. Thank you for having me.
O'REILLY: Everybody does.
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