Update on Dr. George Tiller Case

This is a partial transcript from "The O'Reilly Factor," December 27, 2006, that has been edited for clarity.

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JOHN KASICH, GUEST HOST: In the "Unresolved Problem" segment tonight: more action in the case of Dr. George Tiller . He's an abortion provider in Kansas, who's been under investigation for allegedly performing illegal late term abortions and failing to report them accurately.

Kansas Attorney General Phil Kline was given another chance today to convince a judge to reinstate charges against Dr. Tiller. But no dice. The judge threw out the case. But there may one last chance Kline, who leaves office in two weeks, plans to appoint a special prosecutor in the case. — This is a huge battle in the culture war.

Joining us now from Kansas City, Missouri, is constitutional law professor Kris Kobach. All right, Chris, this ruling today, tell us about it. Why did the judge go in this direction?

KRIS KOBACH, CONSTITUTIONAL LAW PROFESSOR: Well, I think it's important to recognize that the judge wasn't looking at the underlying complaint, wasn't looking at the criminal charges. Any lawyer in his right mindlooking at this can realize that there's probable cause that crimes were committed by Dr. Tiller's abortion clinic.

KASICH: Right. But the problem — the deal today is — the deal today is does the attorney general have the ability to bring charges? And when the district attorney from the county that they were operating in says no, you have no right. Isn't that what it got down to? Why does he rule this way?

KOBACH: It's baffling. Because Kansas law is perfectly clear that says the attorney, if he finds probable cause, can bring a criminal complaint of this nature. The judge completely ignored that Kansas statute and just essentially said, without any support, said, Well, the D.A. is the King of the courts in this county, and if the D.A. doesn't want to bring the case, the attorney general, who is the chief law enforcement officer in the state, can't bring the case, which is just absolutely contrary to the statutes of Kansas.

KASICH: So Kris, what we're saying is this judge is saying that, if in a county there is illicit, illegal activity going on and the district attorney is part of it — and I'm not saying in this case, but you know, theoretically is part of it — the attorney general has no power to go after the criminals?

KOBACH: Exactly.

KASICH: Oh, that can't be.

KOBACH: It is ridiculous. The attorney general in Kansas routinely brings criminal prosecutions in the counties of the state. This attorney general has filed hundreds of criminal cases.

And yet, this judge is pretending as if the attorney general has no power to bring a criminal case in a county court unless the D.A. wants to. Indeed, the attorney general has, in past cases, has brought criminal charges against D.A.s! And clearly, those D.A.'s didn't want those cases.

KASICH: Good point. I would be anxious to read what the judge had to say.

Now the attorney general is going to appoint a special prosecutor. He must have caught wind that the judge was going to rule against him, because I guess the special prosecutor now has more authority. Tell us what authority the special procedure would have and are we going to have the same situation with this ruling today?

KOBACH: You know, I think we may be in the same situation because the special prosecutor stands in the shoes of the attorney general. He's independent. He is, indeed, the person that the attorney general has appointed, is a Democrat. The attorney general is a Republican. And the special prosecutor has all of the authority of the attorney general's office.

However, according to Judge Clark's order, no one with that authority can prosecute if a D.A. wants to stand in the way. And it appears that this D.A. is, you know, in the pocket of the abortion industry in Wichita.

KASICH: Let's talk about something that even is off abortion. Apparently, in Kansas law it says that anybody under the age of 14, if they're pregnant, it's rape. OK? And a doctor who performs an abortion is supposed to report the fact that the child may have been raped. All right?

KOBACH: Correct.

KASICH: Now, that's what the special prosecutor is going to pursue. Is that just going to die on the vine?

KOBACH: Well, if this judge's order stands, in theory it could die on the vine.

Now the special prosecutor could take another tack. He could try to file a different complaint with different charges. It appears that Tiller's clinic is not only reporting rapes of children, and the clinic, on the face of this complaint, the clinic is clearly violating the law that says there are no late term abortions that are supposed to occur unless the mother's life is in danger or unless not performing the abortion would cause result in permanent impairment of any bodily functions.


KOBACH: All these abortions were done...

KASICH: Yes, if you move off the abortion issue, though, if you've got kids, allegedly 10- and 12-year-old who had an abortion, who were probably raped by members, perhaps, of their own family. And we're not going to get to the bottom of it? I mean...

KOBACH: Well, the story's not going to go away. I can promise you O'Reilly won't let it go away. Hopefully, the people in that state won't let it go away.

Professor, thanks for being with us.

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