January 10, 2024 • 39 mins
YouTube: https://www.youtube.com/@VerdictwithTedCruz
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
Welcome.
Speaker 2 (00:01):
It is verdict with Senator Ted Cruz Ben Ferguson. With you, Senator,
we said we were going to do a two part
series on this Colorado case that is going to the
Supreme Court and get into some more of the history
of it. This will be part two. But a prediction
that you made on this show seems to be much
closer to becoming a reality than anyone imagine. As the
(00:25):
former First Lady Michelle Obama said in a recent interview
that her fears about the twenty twenty four presidential election
keep her up at night, saying she's terrified and she
believes we need a real leader. It sounded to me
like she's saying, I might want to be the president
of the United States of America. You predicted this, sir.
(00:47):
Let's just take a little shock moment of victory lap.
Speaker 3 (00:51):
At the same time, Well, look, it is certainly not
a victory lap because it's horrifying for the country. But
I will say months ago, we did an entire podcast
laying out that I thought the odds were rising dramatically
that the Democrat Party would pull the ripcord on Joe Biden,
parachute him out, abandon him, and replace him with Michelle Obama.
(01:15):
And my reasoning. Let's revisit the reasoning because because it's
you know, sometimes when I say this people they're like, Okay,
this seems ludicrous. Here's my reasoning. Number one, I think
if Joe Biden had dropped out two months ago, I
think you'd see a ton of Democrats jumping in the field.
I think the top four in the field would be
Kamala Harris, Pete Boudhaje Edge, Elizabeth Warren, and Gavin Newsom.
(01:39):
There'd be others, but those would be the top four
in that field. I am convinced in an open primary
in the Democrat Party, the winner would be Elizabeth Warren.
And the reason I'm convinced that, I think she is
the ID of the Democrat Party. They are radical socialists,
they're angry. Remember look in twenty twenty she ran and
Bernie sam they both split the whack job leftist part
(02:03):
of the party, and Bernie almost won. With Bernie out
of the field, I think Elizabeth Warren wins that open primary.
But at this point we're sitting here in January, it's
too late for Joe Biden not to run, so he's
going to run, he's on the ballot. That means the
only opportunity for the Democrats to pull Biden is at
their convention this summer. Now, if they do that, they
(02:25):
have a problem. If they pull Biden, the next person
in line is Kamala Harris. Now there are a bunch
of people saying, oh, they're going to replace Kamala with
Gavin Newsom. I think the chances of that happening are
zero points zero zero percent.
Speaker 1 (02:39):
Why.
Speaker 3 (02:40):
I think the Democrat Party is structurally incapable of replacing
an African American woman with a white guy, like I
think their party would implode and spontaneously combust in flames.
They cannot do that, And so they've got a problem
because if you're a Democrat and you want the Democrats
(03:02):
to win, most Democrats that break into double digits in
the IQ say Kamala is a really bad candidate, Like, wow,
we don't want Kamala to be the candidate.
Speaker 2 (03:15):
But and remind, remind people she was one of the
first people to drop out and when she ran for
president because she didn't connect with anyone.
Speaker 3 (03:24):
Yeah, she got she couldn't figure out who she was.
Is she a liberal? Is she a moderate? What like
she was all over the place. Her approval ratings are
worse than Joe Biden's, which is hard because his approval
ratings are terrible. And look, I'm going to try to
frame this politely. I think it is a reasonable prediction
(03:45):
that Kamala will not be winning any Nobel Prizes in
the future.
Speaker 1 (03:50):
I think that's a good way of putting it.
Speaker 2 (03:51):
And I think the Democratic Party knows that that's the
reason why they're trying to figure out. Okay, if it
isn't Joe Biden, who do we get and how do
we all Floadamala? Well, then you'd have to pick a woman,
and who better than Michelle is not just.
Speaker 3 (04:04):
A woman, an African American woman, And so from the
Democrat Party's perspective, that really is a set of one.
They couldn't push her aside for, you know, for a
house member, for a low like you can't push the
sitting Vice president aside for someone further down the political
pecking order. So there is literally one person on planet
(04:26):
Earth who the Democrat Party could tolerate pushing Kamala aside for,
and that is Michelle Obama. And Michelle Obama is a
first for or first lady. She sort of stands on
a different footing. And so we did a podcast several
months ago that got a ton of attention and people
noticed where I said, I think the chances of risen
dramatically of Michelle Obama. Now, at the time, my assessment
(04:51):
was that it was about thirty five percent that Michelle
Obama would be the nominee. Now that's I still don't
think didn't think it was more likely than not. But
going from zero to thirty five percent, that ain't nothing. Now,
in just a second, we're going to play for you
this interview Michelle did. I think this interview is incredibly
(05:11):
revealing and it's caused me to change the percentage that
I put as to the likelihood of Michelle being the nominee.
But before I tell you how it changed, let's listen
to what she said on this podcast interview.
Speaker 1 (05:24):
What is the thing that keeps you up at night?
Speaker 2 (05:27):
Now?
Speaker 1 (05:27):
Well, what is your biggest fear? Now after having overcome
so many It.
Speaker 4 (05:31):
Has less to do with me personally and more to
do with the world that we're in.
Speaker 1 (05:36):
There's such a thing as knowing too much.
Speaker 4 (05:39):
And when you've been married to the president of the
United States, who knows everything about everything in the world.
Speaker 1 (05:45):
Sometimes you just want to do you know too much? Right,
it's I don't know.
Speaker 4 (05:48):
I don't want to know what was in that folder
that you just got that made you quiet, you know,
I don't want to know why the security just pulled
you over. I mean, it could be any range of
things that comes across the desk of the leader of
the free world. Right, So I know a lot about
what's going on, and what keeps me up are the
(06:10):
things that I know. The war in the region in
too many regions, What is AI going to do for us?
The environment? You know, are we moving at all fast enough?
What are we doing about education? Are people going to vote?
And why aren't people voting? Are we too stuck to
our phones? I mean, those are the things that keep
(06:32):
me up because you don't have control over them, and
you wonder where are people at? Where are we in
this you know, where are our hearts? What's going to
happen in this next election? I am terrified about what
could possibly happen because our leaders matter, who we select,
who speaks for us, who holds that bullied pulpit. It
(06:55):
affects us in ways that sometimes I think people take
for granted, you know the fact that people think that government,
you know, does it really even do anything? And I'm like,
oh my god, does government do everything for us? And
we cannot take this democracy for granted? And sometimes I
worry that we do. Those are the things that keep
(07:17):
me up, Senator.
Speaker 2 (07:18):
Those comments, they were not off the cuff. It was
obvious she wanted to cover that, she wanted to get
it out there. It was well thought out, well said,
and that's the reason why when I heard I go,
oh my gosh, she's literally floating herself.
Speaker 3 (07:33):
Well, I think two things really stand out for those comments.
Number One, the biggest argument that is given against why
Michelle would be the nominee, as people say she doesn't
want it. She hasn't run before, she doesn't have the
fire in the belly. She has a great life. She
has a life of a movie star at a celebrity.
She has a life of George Clooney or Oprah or
(07:56):
Bruce Springsteen. She hangs out Martha's vine. She's got a
couple hundred million dollars, she flies on private jets. She
doesn't want to be president. And what is really striking
there is where she's like the thing that keeps me
up at night is who's going to be the next
leader of the free world? And she says, you know,
what does government do? She goes, oh, my god, government
(08:18):
does everything in our lives. Now, that's a pretty powerful
refutation of the point that she doesn't care if it's
keeping her up at night, and she thinks government does
everything in the question of who's going to be the
leader of the free world, it is what is filling
her mind. Okay, that's significant. And then the second thing
she says, where she's talking about being first lady, and
(08:39):
she says, I know a lot, and she basically is
like pitching her qualifications, like everything she knows because she
was married to Barack Obama when he was president and
still is today. That that that that she like knows
everything the president needs to know. And you're right, it
does feel a little bit like a pitch. Hey guys,
(09:00):
I'm here, I'm ready, I can step in, and I'm
willing to do it. And so I would change, as
I said, my assessment a couple of months ago was
the odds of Michelle being the nominee were thirty five percent.
Based on this interview, I would change those odds from
thirty five percent to forty five percent. I still think
(09:22):
it is slightly more likely than not that Biden remains
the nominee, but I think it's fifty five to forty five.
I think it is almost a coin flip. And candidly,
I had been hoping the thing that might save America
is that Michelle would be selfish enough to say, I
don't want the nomination, even if you hand it to me,
(09:44):
even if it's a coronation, even if I don't have
to run for two years, even if I'm just like
invited into the Oval office with the blow of a trumpet,
I don't want it because I like my life. Like
I would really like Michelle to say that, because I
think if she's the Democrat nominee, it is incredibly dangerous.
She is a dangerous, dangerous, dangerous nominee because the first
(10:08):
Lady has a patina of teflon. She's not perceived as
overly partisan, she's not perceived as combative. Now I think
she's incredibly partisan. I think she's more partisan than baraque
is and was as president. But look, if you look
at the polling numbers, Michelle Obama is the most popular
(10:30):
woman on the face of the planet. And that's just
objectively true. And a first lady is protected by that,
particularly a first lady that had eight years of the
media and Hollywood just singing her praises. And so I
listened to that interview and frankly, it scares the heck
out of me.
Speaker 2 (10:48):
Well, let me ask you one other question and just
remind people how this scenario could become reality if they
maybe missed that episode where we talked about this. If
Democrats wanted to allow Joe Biden, the place to do
it would be at the convention, and explain how this
could go down very quickly where Michelle Obama hypothetically could
(11:10):
then have a campaign that would basically be two months
in some days, that's it, because she wouldn't have to
run a real campaign. You could also argue that there's
a very good chance she then wouldn't even have to
debate if Donald Trump is the nominee, for example, because
it's a two month plus campaign.
Speaker 3 (11:28):
Well, and look, that's one of the things people say
in response to this is they say, look, we don't
think Michelle wants it because she didn't run in twenty sixteen,
she didn't run in twenty twenty. If she wanted to run,
they say she's not Hillary Clinton. She didn't dive in
immediately and want to be the candidate on the ballot.
That's what Hillary did after Bill was president. Is Hillary
is like me, me, me, and Michelle did not do that.
(11:49):
I think it's a very different decision for Michelle a
year plus ago to ask do I jump in? Do
I spend two years running? Look, run for president is
brutally hard. I know this from first ten knowledge. I
loved every minute of it. But it ain't easy. It's
all consuming. And Michelle knows that. I mean she knows
(12:09):
that uniquely, and that she was side by side Barack
Obama worked his butt off running for president. He was
a phenom of the modern age. And so she made
the decision in sixteen and in twenty and in twenty three,
preparing for the twenty four election not to jump in.
(12:30):
It's a very different cost benefit analysis to say, do
you come in in the summertime in the convention? Are
you handed the nomination without having to debate a single
primary opponent, without having the campaign, without having to fight,
and do you have a three month campaign where the
media will be singing hosannas that Saint Michelle has come
(12:54):
to save us. That's a very different cost benefit analysis.
And I got to say, the number of people on
planet Earth who, if you were offered jump in for
three months and you can become president, who would say no,
is really small. There may be some, but man, I
know for a fact, if I told you right now, hey,
(13:15):
jump in the summer, you can be president November or
elected president November and start in January, you'd be a yes.
I'd certainly be a yes. And it's a much wider
set than the people who are psychotic enough to actually
run for president.
Speaker 2 (13:30):
Yeah, and what an easy road. I mean, it would
just not it's a coronation. It's not an election. It's
a coronation. But I got to say, if I were
David Axelrod, if I were a Democrat strategist, I would
be all in on this.
Speaker 3 (13:42):
I'd be like, this is how we keep our radical
left wing agenda going. Joe Biden has so many faults.
And by the way, Axelrod has floated trial balloons the media.
Who is the left wing of the Democrat Party. They
keep floating trial balloons of gosh, Biden's a really crappy
can like, let's sing his praises, let's say thank you
(14:03):
for coming in for four years, but let's put them
on an ice float and push them out into the Arctic.
Speaker 2 (14:08):
All right, real quick, let's talk about your finances. It's
twenty twenty four and a lot of us are trying
to get our finances in order. There are some great
news for homeowners. Interest rates have dropped and are now
in the fives, a lot lower than what they were
last year. If you've been buried in high interest credit
card debt, now's the time to break free. American Financing
(14:31):
can help you access the cash in your home to
pay off your high interest debt. Last year, their salary
based mortgage consultants help customers save an average of eight
hundred and fifty four dollars a month. That's like giving
yourself a ten thousand dollar raise. What a way to
start the new year off. And if you start today,
(14:52):
you may be able to delay two mortgage payments. Call
American Financing Today eight and eight six.
Speaker 1 (15:01):
Forty nine. That's eight and eight six seven five forty nine.
Speaker 2 (15:06):
Americanfinancing dot net MLS eighteen twenty three thirty four MLS
Consumer Access dot org APR for rates in the five
start at six point four zero. For well qualified borrowers,
call eight and eight six seven, five forty nine for
details about credit costs and terms. I want to get
(15:28):
also back to this bigger issue a part two of
this conversation that we started, and if you missed it
in our last show, you got to go back and
listen to part one. And this has been a dive
into this case from Colorado that's going to the Supreme
Court and what is going to happen there. And you
(15:48):
wanted to break down the history as well behind the
premise of this whole argument, uh, with insurrection et cetera,
and the president not being convicted of that.
Speaker 1 (15:59):
Uh.
Speaker 2 (15:59):
And I want to pick it up there because this
is going to be something that moves and it's going
to have a major impact on the future of this
country as well.
Speaker 3 (16:09):
Well. That's right, And I want to encourage listeners. If
you didn't listen to Monday's podcast, you ought to go
back and listen to it because in that podcast, I
break down what I believe the Supreme Court is going
to do in the Colorado appeal, the decision about whether
Donald Trump can be on the presidential ballot, and I
explain why I believe the Supreme Court is going to
reverse Colorado, and I think there's a very real chance.
(16:31):
I think it is more likely than not that the
decision from the Supreme Court is unanimous. And I go
through each of the arguments that Trump is making and
I give my assessment of him. Some of the arguments
are stronger than other arguments, and I lay out the
theory that I think is going to command a unanimous
Supreme Court decision, And it's the sort of thing I
have to admit, Ben, you and I have done a
(16:52):
lot of podcasts. Monday's podcast is one of my favorites
that we've ever done because the content in it, I
believe you can't get anywhere else, Like there's literally no
other source, there's no other podcast, there's no other news
broadcast that there's no other source that has that content.
And it's one of the reasons I love doing this
(17:14):
podcast because we walk through issues at a level of
detail and substance that it just doesn't exist elsewhere.
Speaker 2 (17:22):
Yeah, I know, it was one of my favorite shows
as well, and it's amazing how many people actually responded
going I can't wait for part two, because you clearly
weren't done explaining how this is going to work through
the Supreme Court.
Speaker 1 (17:33):
Let's pick it up there.
Speaker 3 (17:34):
Okay, So the Supreme Court has addressed what the Fourteenth
Amendment in section three means, and it's addressed it a
couple of times. First of all, it addressed it concerning
Jefferson Davis. Now, Jefferson Davis was the head of the
Confederacy and what happened after the Civil Wars. The United
States indicted Jefferson Davis in Virginia for treason, and Jefferson
(17:58):
Davis argued in response that the Fourteenth Amendment Section three
imposed a penalty that barred a treason prosecution. Davis argued
that that section three was an exclusive criminal punishment, and
he said that applying it to him would violate double jeopardy.
(18:21):
And he argued, as part of that also that section
three was self enforcing. We talked about this in the
last podcast. Self enforcing means a provision of the Constitution
that doesn't need additional legislation to give it effect, but
rather has legal effect on its own. And in response,
the United States argued Section three was not a punishment,
(18:44):
or that if it was, that exclusion from future office
was not the exclusive punishment. And in response to that,
whether Section three the Davis the Jefferson Davis treason prosecution
(19:05):
was never fully resolved. And what happened was there was
a district judge named John Underwood who disagreed with the
Chief Justice of the Supreme Court, Justice Chase, and the
issue was then certified for appeal to the U. S.
Supreme Court. But then President Andrew Johnson gave Jefferson Davis
(19:26):
a pardon, and once he was pardoned, it rendered the
case moot because you didn't have to adjudicate whether he
could be tried for treason because he'd been pardoned, So
he couldn't be tried for treason once he was pardoned.
And so that was one issue where there was a dispute.
But secondly, the very same judges gave a different reading
over Section three dealing with black defendants in Virginia. So
(19:51):
you had number one, Jefferson Davis, the head of the Confederacy.
They had one determination. And then there were some black
criminal defendants who were sentenced, tried, and sentenced by state
judges and there was a challenge to those convictions arguing
that those state judges could not serve in office because
(20:13):
they had been in the Confederacy, and they were contrary
to the ban on people who'd taken an oath of
office to support the Constitution then engaging in an insurrection.
And what happened was that Virginia appealed. So the district
(20:33):
judge granted a writ of habeas corpus, which is, in
other words, it ordered that black defendants be released from
criminal imprisonment. And Virginia appealed that, and it went to
Chief Justice Salomon Chase in his capacity as circuit judge.
And so in nineteen sixty nine, the Chief Justice reversed
(20:53):
the decision of Judge Underwood in a decision that is
known as Griffin's case. Griffin's case is significant because it
is it is the most meaningful Supreme Court adjudication of
what the Fourteenth Amendment, Section three means. Now it's a
(21:14):
lone justice, it's not the full court, but it still
has presidential effect. Now, what did the Chief Justice say? Well,
on the merits of the Section three case. The Chief
Justice began with first principles, and this is a quote
from his opinion. What was the intention of the people
of the United States? In adopting the Fourteenth Amendment, what
is the true scope of the purpose of the prohibition
(21:36):
to hold office contained in the third section, And before
answering those questions, Chief Justice Chase said that quote a
construction which must necessarily occasion great public and private mischief
must never be preferred to a construction which will occasion neither,
(21:58):
and neither in so great a degree, unless the terms
of the instrument absolutely require such preference. And he went
on to say the practical aspects of Section three. The
Chief Justice said, the text preferred reading quote best harmonizes
the amendment with the general terms and spirit of the
(22:21):
Act Amendment. The principle forbids a construction of the Amendment
not clearly required by its terms, which will bring into
conflict or discord with other provisions of the Constitution. And
after that, Chase wrote, quote those provisions of the Constitution
(22:41):
which deny to the legislature power to deprive any person life, liberty,
or property without due process of law, or to pass
a bill of attainder or an ex post facto, are
inconsistent with their spirit and the general purpose. With a
provision Section three which at once, without trial deprives a
whole class of persons of offices held by them. And
(23:07):
as a result, the Chief Justice offered a solution to
what he said were the practical and legal difficulties with
giving Section three a literal interpretation. He said Section three
was not self executing, and he said it could not
be self executing, and he said that Congress did not
implement Section three in Virginia until February eighteen sixty nine,
(23:31):
when a joint resolution ordered the military commanders to remove
ineligible officers who had not received amnesty from Congress. And
so the habeas petition granted by the District judge Judge
Underwood predated the joint resolution, which meant the grants were
erroneous because the trial judges were not ineligible. What that
(23:51):
means that there's a lot of legal jargon there. So
if you're not a lawyer constitutional.
Speaker 2 (23:57):
Scholarship, I was only going to laugh and say, oh, okay,
put that in layman terms, so I understand it, and
everyone else listening because I'm even confused on it and
paying close attention.
Speaker 3 (24:07):
Look, and this is nineteenth century, and so nineteenth century
judges spoke in some jargons, So I'd read you the language,
but I get it's not easy to understand. It's not
easy to understand for modern day lawyers, much less for
non lawyers. But what he is saying is that the
prohibition on Confederate officers serving in office is not self executing.
(24:30):
It doesn't go into effect on its own, but it
needs rather an act of Congress to give it force.
And understand what was happening here. These were state district
judges who had presided over criminal trials, so they were just,
you know, a judge that you had criminal defendants who
had committed crimes. And the argument of the criminal defense
lawyers were was, Hey, these judges had previously taken an
(24:56):
oath to defend the Constitution and then they supported the Confederacy,
so they're they are for they're ineligible to serve as
state judges under Fourteenth Amendment, Section three. And therefore my
criminal conviction is not valid because the judge that presided
over it doesn't have the authority to serve in it.
And what Chief Justice Chase concluded was, No, that's not
(25:20):
true because Congress did not legislate to give that effect. Now,
do I think this determination is binding and conclusive on
the court.
Speaker 4 (25:30):
No.
Speaker 3 (25:31):
And the way it works a decision by an individual justice.
So the way it worked, Supreme Court justices used to
do what was called ride circuit, and so the justice's
riding circuit, and it was literally riding circuit meant in
many cases getting on a horse and riding around the circuit.
Each justice had a different judicial circus circuit that they
(25:54):
were the appellate judge for, and they would hear appeals
as individual judges. In some way, it sort of functioned
like they were the Court of Appeals. And look, this
is relatively early in our country's history, so you didn't
have the full court of appeals system we have now.
A decision by an individual justice riding circuit does not
have the presidential force of a US Supreme Court decision
(26:20):
joined by a majority of the court. That is binding
Supreme Court president and an individual circuit justice is not.
But the decision of a circuit justice is considered persuasive.
It's not binding, but it has real force. And in
this case, it's the Chief Justice of the United States
opining on what the Fourteenth Amendment meant. And so I
(26:41):
think in the Supreme Court argument that will happen on
February eighth, you will see a lot of argument about
Griffin's case. The DOJ will argue that there's a lot
of modern day scholarly criticism that they don't like Chief
Justice chases reasoning in Griffin's case. But this is going
to be a major topic of discussion in the oral argument.
Speaker 2 (27:03):
When you look at which side has the strongest argument
and compare it to the weakest. Who walks in with
the biggest advantage with these Supreme Court justices as it
sits now.
Speaker 3 (27:14):
So, and this is something I explained in the last podcast. Look,
I try to think. Let me tell you how I
approached arguments. I really enjoyed being a Supreme Court litigator.
It was an incredible joy. And the way I.
Speaker 2 (27:26):
Appros by the way I got to ask you this
question now because everybody listening is gonna want me to
ask it, and I'm gonna ask it. Yeah, people hear
the name Ted Cruz and they know that obviously you
ran for president twenty sixteen, that you love being a
United States senator. But every time I go around, and
it happens multiple times a month, you're like, man, I
wish Ted Cruz was on the Supreme Court.
Speaker 1 (27:46):
Why isn't he on the Supreme Court.
Speaker 2 (27:48):
It should he have been on the Supreme Court because
you're so good at it and you love it. So
can you dive into that for just a moment, because
everybody asked me that question and I always laugh and
I'm like, well, there's some backstories there, but why isn't
Ted Cruz on the Supreme Court?
Speaker 3 (28:03):
Yeah? Look, it is a very flattering. It is a
very kind thing to say. And as you know, as
I travel around, people say to me with some regularity,
you should be a Supreme Court justice. And look my
response when someone says that, I just say thank you,
because that's Look, that is an incredibly gratifying thing to say.
The short answer is I do not want to be
on the Supreme Court. I and when Donald Trump was president,
(28:29):
that opportunity was very real. So for all three of
the vacancies that occurred under Trump, Trump had very serious
conversations with me about them. The most serious concerned the
initial vacancy, which was Justice Scalia's seat that was vacant
and was ultimately replaced by Justice Corsic. And right after
(28:51):
the presidential election in twenty sixteen, in November, I flew
up the next week to New York I went to
Trump Tower. I spent four and a half hours with
with President Elector and with his senior team, and he
spent an enormous amount of time really leaning in and
frankly trying to convince me that the Supreme Court was
a great option. Now, I don't want to overstate it.
(29:12):
He didn't offer me the position, but it was not
subtle what he was saying and what his team was saying.
They were all like, what the hell's wrong with you?
Why don't you want to go to the Supreme Court.
Here's the answer. I think the court matters exquisitely. I've
spent other than my time in the Senate, I've spent
almost my entire adult life litigating in front of the
(29:35):
US Supreme Court. I think it is an incredibly important
institution for the rule of law, for our constitutional liberties,
for our freedoms in America. A principled federal judge stays
out of politics and stays out of policy fights. And
if I were a federal judge, that's what I would do.
I would stay out of those fights. The simple answer, Ben,
(29:59):
I don't want to stay on are those fights. I
think policy fights in political fights matter intensely and frankly, listen.
I think there are a lot of people who are
wonderful human beings who want to be tremendous judges or justices,
and I would like to be involved in nominating or
confirming scores of wonderful constitutionalists to the federal bench. I
(30:22):
don't want me to be one of them, because if
you want to fight in the political arena, the right
place to do so is in the elected positions and government.
So I'm in the United States Senate. I think of
the Senate as the Roman colisseum. And to be honest, look,
I how many people do you know in the Senate
(30:43):
that are actually standing up and fighting this fight every day.
It's a small number. I'm not going to give you
a number, but it's not huge that are effectively going
to battle day in and day out, defending the Constitution,
the Bill of Rights, defending conservative principles, defending our value.
And I jump out of bed every day eager to
do that fight. And so when Trump talked to me
(31:06):
very seriously about the Supreme Court, I told him flat out, no,
I don't want it. I wouldn't accept it. I am
not interested in being on the Court. I care profoundly
about who's on the court.
Speaker 2 (31:17):
But it amy one other question I want to ask
you about this case moving forward. You predicted that this
is going to be probably a very stern Supreme Court
on this issue with Colorado. As your mind changed at
all since we did part one on that, I mean,
you're back in DC. You've seen, I guess more of
(31:38):
the press reaction, You've seen more of the reaction in Washington.
Do you still think that the Supreme Court is eager
to not only take this up, but also to say, hey,
you can't in America, In the United States of America
right now, we let the people decide. We don't let
people dictate who you can and can't vote for.
Speaker 3 (31:57):
So let me say I wouldn't say eager is the
right adjective. They're not eager. The Court would love to
stay out of this. They don't want to be involved
in this presidential election. They want to stay out of it.
But once Colorado ruled that they were pulling Trump off
the ballot, the Court had to get in. And I
actually think every justice recognized, Okay, we've got a responsibility.
(32:21):
We can't duck this. We've got to resolve this because
this is the court exists to resolve the most important
legal issues in the country, particularly concerning the constitution, and
whether you will allow the voters to vote for a
candidate for president is right at the top of it.
(32:41):
Is difficult to imagine a more consequential constitutional issue than that,
and so I think every justice recognized, even though they
didn't want to be in this, they had a responsibility
and they really had no choice. Now, I also believe
the odds are overwhelming, close to one hundred percent the
Supreme Court will reverse the Colorado Supreme Court. I just
(33:04):
I do not believe they are going to allow one
of the two major parties candidates for president to be
removed from the ballot and to tell the voters you
don't get to decide who the president is. That is
contrary to democracy. It is an assault on democracy. Ironically,
while Joe Biden is prancing around and proclaiming his defense
(33:29):
for democracy, he and the Democrats and the media are
trying to utterly frustrate democracy and stop the voters from
voting for their opponents. I think the Court is going
to easily reverse it, and I desperately hope. I got
to say, there are very few things I have hoped
for more passionately that I can recall than that. I
(33:52):
hope that this is unanimous. If it's six ' three,
If it's the Conservatives voting to reverse and the Liberals
voting to affirm, that is bad for the Supreme Court.
It is bad for the country. It is bad for
the rule of law. It will cement the perception that
the Court is a political body, and that is disastrous
(34:12):
for the Court. I am certain that there is no
human being on the planet that feels that urgency more
intensely than Chief Justice John Roberts. I know John Roberts
very very well. We've been friends for thirty years. He
cares exquisitely about the legitimacy of the Supreme Court. And
(34:32):
so I think the Chief Justice is going to ben
over backwards to find any theory that would produce a
unanimous decision. There are lots of theories he could do.
The one I find most persuasive. If I had if
Trump had offered me the Scalia seat and I'd gotten
the nomination in the place of Gorsa to the Senate,
(34:53):
he confirmed me if I were a justice, the theory
that I would be inclined to agree with is what
I laid out on the last podcast, which is it
is absolutely true and I think correct that if an
individual engages in insurrection, they're not eligible to be elected
(35:17):
to federal office. I'm convinced of that. However, what is
not clear is how you determine whether someone quote engaged
in insurrection. As I described in the last podcast, the
Civil War was indisputably an insurrection. No one can dispute
that we had a four year war with six hundred
(35:38):
thousand dead Americans. Like it is why the Fourteenth Amendment,
Section three was passed. It was in response to the
Civil War. It is the embodiment of an insurrection. There
is a real and acute debate over whether what occurred
on January sixth, twenty twenty one constitute an insurrection. I
(35:59):
think the answer is easy. I think the answer is
hell no. I don't think it remotely reaches that level.
But there are those who disagree. I will acknowledge there's
disagreement with almost every damn Democrat and all of the media.
They say routine the insurrection, insurrection, and insurrection. However, the
constitutional question is, how do you determine that someone has
(36:21):
engaged in an insurrection in the Civil War. Since nobody
disputed the Civil War was an insurrection. The only question
did you engage in it? So if you put on
a Confederate uniform, if you had stars stars on your shoulder,
you were guilty. Like that, it was easy to determine
whether you fell into that disqualification.
Speaker 1 (36:41):
Yeah, it was as simple as you could make it
at that point.
Speaker 3 (36:44):
Yeah, there was no No one disputed the Civil War
was an insurrection. And I'm not aware of anyone that
disputed if someone was in fact a Confederate officer. I
don't know have anyone that said, no, no, I wasn't a
Confederate officer. Like the two pieces were admitted, and so
so there was no meaningful factual dispute here. There is
(37:06):
a reason that Jack Smith and every other prosecutor, that
left wing prosecutor that hates Donald Trump, that nobody has
charged Trump with the crime of insurrection because you couldn't
remotely prove that. The facts don't demonstrate it. And so
I think the theory of the Supreme Court will say,
and I predicted a sentence from Look when this comes down,
(37:29):
and I think it'll come down, it'll be argued February eighth.
I'm going to predict it comes down February nineteenth. I'm
just pulling a date out. It will be some time
between February eighth and March fourth. I'm pulling a date
out of the air, saying February nineteenth. When it comes down,
I'm predicting right now, there will be a sentence. We
express no opinion over whether the events of January sixth,
(37:52):
twenty twenty one constitute an insurrection or not. However, in
order for the fourteenth Amendment prohibition to apply, there needs
to be a conclusive determination that it was an insurrection.
And for those who urge Trump should be ineligible. For
(38:13):
the Biden Department of Justice, which has urged Trump should
be ineligible, they have a path to prove that case,
which is to charge him with insurrection and convict him
and obtain a final judgment that he's guilty of insurrection.
If they do so, he will be ineligible for office.
But they have not done so. And accordingly, this decision
(38:34):
should not be made by judges in Colorado or a
partisan unelected secretary of State in Maine, but rather, the
decision of the next president should be made by the
voters and the American people. I think that that's what
I would rule if I were a justice. That is
the sort of opinion I would write. And my hope
(38:56):
is I really hope the liberal justices are are not
infected by Trump derangement syndrome like so many Democrats are.
That they recognize the damage to the court if they
make this a partisan decision will be historic and irreparable.
So I pray they don't do that.
Speaker 1 (39:15):
We're gonna be watching it all here, don't forget.
Speaker 2 (39:17):
We do this show Monday, Wednesday, Friday, and a week
recap on Saturdays. Hit that subscribe follow our auto download button. Also,
if you do this show and listen to it on Apple,
make sure you check your settings that you are following
the show, as a lot of that has changed recently,
so in the new year, make sure you check that
(39:38):
it is important that you do that. And the Senator
and I will see you back here in a couple
of days.
Welcome.
Speaker 2 (00:01):
It is verdict with Senator Ted Cruz Ben Ferguson. With you, Senator,
we said we were going to do a two part
series on this Colorado case that is going to the
Supreme Court and get into some more of the history
of it. This will be part two. But a prediction
that you made on this show seems to be much
closer to becoming a reality than anyone imagine. As the
(00:25):
former First Lady Michelle Obama said in a recent interview
that her fears about the twenty twenty four presidential election
keep her up at night, saying she's terrified and she
believes we need a real leader. It sounded to me
like she's saying, I might want to be the president
of the United States of America. You predicted this, sir.
(00:47):
Let's just take a little shock moment of victory lap.
Speaker 3 (00:51):
At the same time, Well, look, it is certainly not
a victory lap because it's horrifying for the country. But
I will say months ago, we did an entire podcast
laying out that I thought the odds were rising dramatically
that the Democrat Party would pull the ripcord on Joe Biden,
parachute him out, abandon him, and replace him with Michelle Obama.
(01:15):
And my reasoning. Let's revisit the reasoning because because it's
you know, sometimes when I say this people they're like, Okay,
this seems ludicrous. Here's my reasoning. Number one, I think
if Joe Biden had dropped out two months ago, I
think you'd see a ton of Democrats jumping in the field.
I think the top four in the field would be
Kamala Harris, Pete Boudhaje Edge, Elizabeth Warren, and Gavin Newsom.
(01:39):
There'd be others, but those would be the top four
in that field. I am convinced in an open primary
in the Democrat Party, the winner would be Elizabeth Warren.
And the reason I'm convinced that, I think she is
the ID of the Democrat Party. They are radical socialists,
they're angry. Remember look in twenty twenty she ran and
Bernie sam they both split the whack job leftist part
(02:03):
of the party, and Bernie almost won. With Bernie out
of the field, I think Elizabeth Warren wins that open primary.
But at this point we're sitting here in January, it's
too late for Joe Biden not to run, so he's
going to run, he's on the ballot. That means the
only opportunity for the Democrats to pull Biden is at
their convention this summer. Now, if they do that, they
(02:25):
have a problem. If they pull Biden, the next person
in line is Kamala Harris. Now there are a bunch
of people saying, oh, they're going to replace Kamala with
Gavin Newsom. I think the chances of that happening are
zero points zero zero percent.
Speaker 1 (02:39):
Why.
Speaker 3 (02:40):
I think the Democrat Party is structurally incapable of replacing
an African American woman with a white guy, like I
think their party would implode and spontaneously combust in flames.
They cannot do that, And so they've got a problem
because if you're a Democrat and you want the Democrats
(03:02):
to win, most Democrats that break into double digits in
the IQ say Kamala is a really bad candidate, Like, wow,
we don't want Kamala to be the candidate.
Speaker 2 (03:15):
But and remind, remind people she was one of the
first people to drop out and when she ran for
president because she didn't connect with anyone.
Speaker 3 (03:24):
Yeah, she got she couldn't figure out who she was.
Is she a liberal? Is she a moderate? What like
she was all over the place. Her approval ratings are
worse than Joe Biden's, which is hard because his approval
ratings are terrible. And look, I'm going to try to
frame this politely. I think it is a reasonable prediction
(03:45):
that Kamala will not be winning any Nobel Prizes in
the future.
Speaker 1 (03:50):
I think that's a good way of putting it.
Speaker 2 (03:51):
And I think the Democratic Party knows that that's the
reason why they're trying to figure out. Okay, if it
isn't Joe Biden, who do we get and how do
we all Floadamala? Well, then you'd have to pick a woman,
and who better than Michelle is not just.
Speaker 3 (04:04):
A woman, an African American woman, And so from the
Democrat Party's perspective, that really is a set of one.
They couldn't push her aside for, you know, for a
house member, for a low like you can't push the
sitting Vice president aside for someone further down the political
pecking order. So there is literally one person on planet
(04:26):
Earth who the Democrat Party could tolerate pushing Kamala aside for,
and that is Michelle Obama. And Michelle Obama is a
first for or first lady. She sort of stands on
a different footing. And so we did a podcast several
months ago that got a ton of attention and people
noticed where I said, I think the chances of risen
dramatically of Michelle Obama. Now, at the time, my assessment
(04:51):
was that it was about thirty five percent that Michelle
Obama would be the nominee. Now that's I still don't
think didn't think it was more likely than not. But
going from zero to thirty five percent, that ain't nothing. Now,
in just a second, we're going to play for you
this interview Michelle did. I think this interview is incredibly
(05:11):
revealing and it's caused me to change the percentage that
I put as to the likelihood of Michelle being the nominee.
But before I tell you how it changed, let's listen
to what she said on this podcast interview.
Speaker 1 (05:24):
What is the thing that keeps you up at night?
Speaker 2 (05:27):
Now?
Speaker 1 (05:27):
Well, what is your biggest fear? Now after having overcome
so many It.
Speaker 4 (05:31):
Has less to do with me personally and more to
do with the world that we're in.
Speaker 1 (05:36):
There's such a thing as knowing too much.
Speaker 4 (05:39):
And when you've been married to the president of the
United States, who knows everything about everything in the world.
Speaker 1 (05:45):
Sometimes you just want to do you know too much? Right,
it's I don't know.
Speaker 4 (05:48):
I don't want to know what was in that folder
that you just got that made you quiet, you know,
I don't want to know why the security just pulled
you over. I mean, it could be any range of
things that comes across the desk of the leader of
the free world. Right, So I know a lot about
what's going on, and what keeps me up are the
(06:10):
things that I know. The war in the region in
too many regions, What is AI going to do for us?
The environment? You know, are we moving at all fast enough?
What are we doing about education? Are people going to vote?
And why aren't people voting? Are we too stuck to
our phones? I mean, those are the things that keep
(06:32):
me up because you don't have control over them, and
you wonder where are people at? Where are we in
this you know, where are our hearts? What's going to
happen in this next election? I am terrified about what
could possibly happen because our leaders matter, who we select,
who speaks for us, who holds that bullied pulpit. It
(06:55):
affects us in ways that sometimes I think people take
for granted, you know the fact that people think that government,
you know, does it really even do anything? And I'm like,
oh my god, does government do everything for us? And
we cannot take this democracy for granted? And sometimes I
worry that we do. Those are the things that keep
(07:17):
me up, Senator.
Speaker 2 (07:18):
Those comments, they were not off the cuff. It was
obvious she wanted to cover that, she wanted to get
it out there. It was well thought out, well said,
and that's the reason why when I heard I go,
oh my gosh, she's literally floating herself.
Speaker 3 (07:33):
Well, I think two things really stand out for those comments.
Number One, the biggest argument that is given against why
Michelle would be the nominee, as people say she doesn't
want it. She hasn't run before, she doesn't have the
fire in the belly. She has a great life. She
has a life of a movie star at a celebrity.
She has a life of George Clooney or Oprah or
(07:56):
Bruce Springsteen. She hangs out Martha's vine. She's got a
couple hundred million dollars, she flies on private jets. She
doesn't want to be president. And what is really striking
there is where she's like the thing that keeps me
up at night is who's going to be the next
leader of the free world? And she says, you know,
what does government do? She goes, oh, my god, government
(08:18):
does everything in our lives. Now, that's a pretty powerful
refutation of the point that she doesn't care if it's
keeping her up at night, and she thinks government does
everything in the question of who's going to be the
leader of the free world, it is what is filling
her mind. Okay, that's significant. And then the second thing
she says, where she's talking about being first lady, and
(08:39):
she says, I know a lot, and she basically is
like pitching her qualifications, like everything she knows because she
was married to Barack Obama when he was president and
still is today. That that that that she like knows
everything the president needs to know. And you're right, it
does feel a little bit like a pitch. Hey guys,
(09:00):
I'm here, I'm ready, I can step in, and I'm
willing to do it. And so I would change, as
I said, my assessment a couple of months ago was
the odds of Michelle being the nominee were thirty five percent.
Based on this interview, I would change those odds from
thirty five percent to forty five percent. I still think
(09:22):
it is slightly more likely than not that Biden remains
the nominee, but I think it's fifty five to forty five.
I think it is almost a coin flip. And candidly,
I had been hoping the thing that might save America
is that Michelle would be selfish enough to say, I
don't want the nomination, even if you hand it to me,
(09:44):
even if it's a coronation, even if I don't have
to run for two years, even if I'm just like
invited into the Oval office with the blow of a trumpet,
I don't want it because I like my life. Like
I would really like Michelle to say that, because I
think if she's the Democrat nominee, it is incredibly dangerous.
She is a dangerous, dangerous, dangerous nominee because the first
(10:08):
Lady has a patina of teflon. She's not perceived as
overly partisan, she's not perceived as combative. Now I think
she's incredibly partisan. I think she's more partisan than baraque
is and was as president. But look, if you look
at the polling numbers, Michelle Obama is the most popular
(10:30):
woman on the face of the planet. And that's just
objectively true. And a first lady is protected by that,
particularly a first lady that had eight years of the
media and Hollywood just singing her praises. And so I
listened to that interview and frankly, it scares the heck
out of me.
Speaker 2 (10:48):
Well, let me ask you one other question and just
remind people how this scenario could become reality if they
maybe missed that episode where we talked about this. If
Democrats wanted to allow Joe Biden, the place to do
it would be at the convention, and explain how this
could go down very quickly where Michelle Obama hypothetically could
(11:10):
then have a campaign that would basically be two months
in some days, that's it, because she wouldn't have to
run a real campaign. You could also argue that there's
a very good chance she then wouldn't even have to
debate if Donald Trump is the nominee, for example, because
it's a two month plus campaign.
Speaker 3 (11:28):
Well, and look, that's one of the things people say
in response to this is they say, look, we don't
think Michelle wants it because she didn't run in twenty sixteen,
she didn't run in twenty twenty. If she wanted to run,
they say she's not Hillary Clinton. She didn't dive in
immediately and want to be the candidate on the ballot.
That's what Hillary did after Bill was president. Is Hillary
is like me, me, me, and Michelle did not do that.
(11:49):
I think it's a very different decision for Michelle a
year plus ago to ask do I jump in? Do
I spend two years running? Look, run for president is
brutally hard. I know this from first ten knowledge. I
loved every minute of it. But it ain't easy. It's
all consuming. And Michelle knows that. I mean she knows
(12:09):
that uniquely, and that she was side by side Barack
Obama worked his butt off running for president. He was
a phenom of the modern age. And so she made
the decision in sixteen and in twenty and in twenty three,
preparing for the twenty four election not to jump in.
(12:30):
It's a very different cost benefit analysis to say, do
you come in in the summertime in the convention? Are
you handed the nomination without having to debate a single
primary opponent, without having the campaign, without having to fight,
and do you have a three month campaign where the
media will be singing hosannas that Saint Michelle has come
(12:54):
to save us. That's a very different cost benefit analysis.
And I got to say, the number of people on
planet Earth who, if you were offered jump in for
three months and you can become president, who would say no,
is really small. There may be some, but man, I
know for a fact, if I told you right now, hey,
(13:15):
jump in the summer, you can be president November or
elected president November and start in January, you'd be a yes.
I'd certainly be a yes. And it's a much wider
set than the people who are psychotic enough to actually
run for president.
Speaker 2 (13:30):
Yeah, and what an easy road. I mean, it would
just not it's a coronation. It's not an election. It's
a coronation. But I got to say, if I were
David Axelrod, if I were a Democrat strategist, I would
be all in on this.
Speaker 3 (13:42):
I'd be like, this is how we keep our radical
left wing agenda going. Joe Biden has so many faults.
And by the way, Axelrod has floated trial balloons the media.
Who is the left wing of the Democrat Party. They
keep floating trial balloons of gosh, Biden's a really crappy
can like, let's sing his praises, let's say thank you
(14:03):
for coming in for four years, but let's put them
on an ice float and push them out into the Arctic.
Speaker 2 (14:08):
All right, real quick, let's talk about your finances. It's
twenty twenty four and a lot of us are trying
to get our finances in order. There are some great
news for homeowners. Interest rates have dropped and are now
in the fives, a lot lower than what they were
last year. If you've been buried in high interest credit
card debt, now's the time to break free. American Financing
(14:31):
can help you access the cash in your home to
pay off your high interest debt. Last year, their salary
based mortgage consultants help customers save an average of eight
hundred and fifty four dollars a month. That's like giving
yourself a ten thousand dollar raise. What a way to
start the new year off. And if you start today,
(14:52):
you may be able to delay two mortgage payments. Call
American Financing Today eight and eight six.
Speaker 1 (15:01):
Forty nine. That's eight and eight six seven five forty nine.
Speaker 2 (15:06):
Americanfinancing dot net MLS eighteen twenty three thirty four MLS
Consumer Access dot org APR for rates in the five
start at six point four zero. For well qualified borrowers,
call eight and eight six seven, five forty nine for
details about credit costs and terms. I want to get
(15:28):
also back to this bigger issue a part two of
this conversation that we started, and if you missed it
in our last show, you got to go back and
listen to part one. And this has been a dive
into this case from Colorado that's going to the Supreme
Court and what is going to happen there. And you
(15:48):
wanted to break down the history as well behind the
premise of this whole argument, uh, with insurrection et cetera,
and the president not being convicted of that.
Speaker 1 (15:59):
Uh.
Speaker 2 (15:59):
And I want to pick it up there because this
is going to be something that moves and it's going
to have a major impact on the future of this
country as well.
Speaker 3 (16:09):
Well. That's right, And I want to encourage listeners. If
you didn't listen to Monday's podcast, you ought to go
back and listen to it because in that podcast, I
break down what I believe the Supreme Court is going
to do in the Colorado appeal, the decision about whether
Donald Trump can be on the presidential ballot, and I
explain why I believe the Supreme Court is going to
reverse Colorado, and I think there's a very real chance.
(16:31):
I think it is more likely than not that the
decision from the Supreme Court is unanimous. And I go
through each of the arguments that Trump is making and
I give my assessment of him. Some of the arguments
are stronger than other arguments, and I lay out the
theory that I think is going to command a unanimous
Supreme Court decision, And it's the sort of thing I
have to admit, Ben, you and I have done a
(16:52):
lot of podcasts. Monday's podcast is one of my favorites
that we've ever done because the content in it, I
believe you can't get anywhere else, Like there's literally no
other source, there's no other podcast, there's no other news
broadcast that there's no other source that has that content.
And it's one of the reasons I love doing this
(17:14):
podcast because we walk through issues at a level of
detail and substance that it just doesn't exist elsewhere.
Speaker 2 (17:22):
Yeah, I know, it was one of my favorite shows
as well, and it's amazing how many people actually responded
going I can't wait for part two, because you clearly
weren't done explaining how this is going to work through
the Supreme Court.
Speaker 1 (17:33):
Let's pick it up there.
Speaker 3 (17:34):
Okay, So the Supreme Court has addressed what the Fourteenth
Amendment in section three means, and it's addressed it a
couple of times. First of all, it addressed it concerning
Jefferson Davis. Now, Jefferson Davis was the head of the
Confederacy and what happened after the Civil Wars. The United
States indicted Jefferson Davis in Virginia for treason, and Jefferson
(17:58):
Davis argued in response that the Fourteenth Amendment Section three
imposed a penalty that barred a treason prosecution. Davis argued
that that section three was an exclusive criminal punishment, and
he said that applying it to him would violate double jeopardy.
(18:21):
And he argued, as part of that also that section
three was self enforcing. We talked about this in the
last podcast. Self enforcing means a provision of the Constitution
that doesn't need additional legislation to give it effect, but
rather has legal effect on its own. And in response,
the United States argued Section three was not a punishment,
(18:44):
or that if it was, that exclusion from future office
was not the exclusive punishment. And in response to that,
whether Section three the Davis the Jefferson Davis treason prosecution
(19:05):
was never fully resolved. And what happened was there was
a district judge named John Underwood who disagreed with the
Chief Justice of the Supreme Court, Justice Chase, and the
issue was then certified for appeal to the U. S.
Supreme Court. But then President Andrew Johnson gave Jefferson Davis
(19:26):
a pardon, and once he was pardoned, it rendered the
case moot because you didn't have to adjudicate whether he
could be tried for treason because he'd been pardoned, So
he couldn't be tried for treason once he was pardoned.
And so that was one issue where there was a dispute.
But secondly, the very same judges gave a different reading
over Section three dealing with black defendants in Virginia. So
(19:51):
you had number one, Jefferson Davis, the head of the Confederacy.
They had one determination. And then there were some black
criminal defendants who were sentenced, tried, and sentenced by state
judges and there was a challenge to those convictions arguing
that those state judges could not serve in office because
(20:13):
they had been in the Confederacy, and they were contrary
to the ban on people who'd taken an oath of
office to support the Constitution then engaging in an insurrection.
And what happened was that Virginia appealed. So the district
(20:33):
judge granted a writ of habeas corpus, which is, in
other words, it ordered that black defendants be released from
criminal imprisonment. And Virginia appealed that, and it went to
Chief Justice Salomon Chase in his capacity as circuit judge.
And so in nineteen sixty nine, the Chief Justice reversed
(20:53):
the decision of Judge Underwood in a decision that is
known as Griffin's case. Griffin's case is significant because it
is it is the most meaningful Supreme Court adjudication of
what the Fourteenth Amendment, Section three means. Now it's a
(21:14):
lone justice, it's not the full court, but it still
has presidential effect. Now, what did the Chief Justice say? Well,
on the merits of the Section three case. The Chief
Justice began with first principles, and this is a quote
from his opinion. What was the intention of the people
of the United States? In adopting the Fourteenth Amendment, what
is the true scope of the purpose of the prohibition
(21:36):
to hold office contained in the third section, And before
answering those questions, Chief Justice Chase said that quote a
construction which must necessarily occasion great public and private mischief
must never be preferred to a construction which will occasion neither,
(21:58):
and neither in so great a degree, unless the terms
of the instrument absolutely require such preference. And he went
on to say the practical aspects of Section three. The
Chief Justice said, the text preferred reading quote best harmonizes
the amendment with the general terms and spirit of the
(22:21):
Act Amendment. The principle forbids a construction of the Amendment
not clearly required by its terms, which will bring into
conflict or discord with other provisions of the Constitution. And
after that, Chase wrote, quote those provisions of the Constitution
(22:41):
which deny to the legislature power to deprive any person life, liberty,
or property without due process of law, or to pass
a bill of attainder or an ex post facto, are
inconsistent with their spirit and the general purpose. With a
provision Section three which at once, without trial deprives a
whole class of persons of offices held by them. And
(23:07):
as a result, the Chief Justice offered a solution to
what he said were the practical and legal difficulties with
giving Section three a literal interpretation. He said Section three
was not self executing, and he said it could not
be self executing, and he said that Congress did not
implement Section three in Virginia until February eighteen sixty nine,
(23:31):
when a joint resolution ordered the military commanders to remove
ineligible officers who had not received amnesty from Congress. And
so the habeas petition granted by the District judge Judge
Underwood predated the joint resolution, which meant the grants were
erroneous because the trial judges were not ineligible. What that
(23:51):
means that there's a lot of legal jargon there. So
if you're not a lawyer constitutional.
Speaker 2 (23:57):
Scholarship, I was only going to laugh and say, oh, okay,
put that in layman terms, so I understand it, and
everyone else listening because I'm even confused on it and
paying close attention.
Speaker 3 (24:07):
Look, and this is nineteenth century, and so nineteenth century
judges spoke in some jargons, So I'd read you the language,
but I get it's not easy to understand. It's not
easy to understand for modern day lawyers, much less for
non lawyers. But what he is saying is that the
prohibition on Confederate officers serving in office is not self executing.
(24:30):
It doesn't go into effect on its own, but it
needs rather an act of Congress to give it force.
And understand what was happening here. These were state district
judges who had presided over criminal trials, so they were just,
you know, a judge that you had criminal defendants who
had committed crimes. And the argument of the criminal defense
lawyers were was, Hey, these judges had previously taken an
(24:56):
oath to defend the Constitution and then they supported the Confederacy,
so they're they are for they're ineligible to serve as
state judges under Fourteenth Amendment, Section three. And therefore my
criminal conviction is not valid because the judge that presided
over it doesn't have the authority to serve in it.
And what Chief Justice Chase concluded was, No, that's not
(25:20):
true because Congress did not legislate to give that effect. Now,
do I think this determination is binding and conclusive on
the court.
Speaker 4 (25:30):
No.
Speaker 3 (25:31):
And the way it works a decision by an individual justice.
So the way it worked, Supreme Court justices used to
do what was called ride circuit, and so the justice's
riding circuit, and it was literally riding circuit meant in
many cases getting on a horse and riding around the circuit.
Each justice had a different judicial circus circuit that they
(25:54):
were the appellate judge for, and they would hear appeals
as individual judges. In some way, it sort of functioned
like they were the Court of Appeals. And look, this
is relatively early in our country's history, so you didn't
have the full court of appeals system we have now.
A decision by an individual justice riding circuit does not
have the presidential force of a US Supreme Court decision
(26:20):
joined by a majority of the court. That is binding
Supreme Court president and an individual circuit justice is not.
But the decision of a circuit justice is considered persuasive.
It's not binding, but it has real force. And in
this case, it's the Chief Justice of the United States
opining on what the Fourteenth Amendment meant. And so I
(26:41):
think in the Supreme Court argument that will happen on
February eighth, you will see a lot of argument about
Griffin's case. The DOJ will argue that there's a lot
of modern day scholarly criticism that they don't like Chief
Justice chases reasoning in Griffin's case. But this is going
to be a major topic of discussion in the oral argument.
Speaker 2 (27:03):
When you look at which side has the strongest argument
and compare it to the weakest. Who walks in with
the biggest advantage with these Supreme Court justices as it
sits now.
Speaker 3 (27:14):
So, and this is something I explained in the last podcast. Look,
I try to think. Let me tell you how I
approached arguments. I really enjoyed being a Supreme Court litigator.
It was an incredible joy. And the way I.
Speaker 2 (27:26):
Appros by the way I got to ask you this
question now because everybody listening is gonna want me to
ask it, and I'm gonna ask it. Yeah, people hear
the name Ted Cruz and they know that obviously you
ran for president twenty sixteen, that you love being a
United States senator. But every time I go around, and
it happens multiple times a month, you're like, man, I
wish Ted Cruz was on the Supreme Court.
Speaker 1 (27:46):
Why isn't he on the Supreme Court.
Speaker 2 (27:48):
It should he have been on the Supreme Court because
you're so good at it and you love it. So
can you dive into that for just a moment, because
everybody asked me that question and I always laugh and
I'm like, well, there's some backstories there, but why isn't
Ted Cruz on the Supreme Court?
Speaker 3 (28:03):
Yeah? Look, it is a very flattering. It is a
very kind thing to say. And as you know, as
I travel around, people say to me with some regularity,
you should be a Supreme Court justice. And look my
response when someone says that, I just say thank you,
because that's Look, that is an incredibly gratifying thing to say.
The short answer is I do not want to be
on the Supreme Court. I and when Donald Trump was president,
(28:29):
that opportunity was very real. So for all three of
the vacancies that occurred under Trump, Trump had very serious
conversations with me about them. The most serious concerned the
initial vacancy, which was Justice Scalia's seat that was vacant
and was ultimately replaced by Justice Corsic. And right after
(28:51):
the presidential election in twenty sixteen, in November, I flew
up the next week to New York I went to
Trump Tower. I spent four and a half hours with
with President Elector and with his senior team, and he
spent an enormous amount of time really leaning in and
frankly trying to convince me that the Supreme Court was
a great option. Now, I don't want to overstate it.
(29:12):
He didn't offer me the position, but it was not
subtle what he was saying and what his team was saying.
They were all like, what the hell's wrong with you?
Why don't you want to go to the Supreme Court.
Here's the answer. I think the court matters exquisitely. I've
spent other than my time in the Senate, I've spent
almost my entire adult life litigating in front of the
(29:35):
US Supreme Court. I think it is an incredibly important
institution for the rule of law, for our constitutional liberties,
for our freedoms in America. A principled federal judge stays
out of politics and stays out of policy fights. And
if I were a federal judge, that's what I would do.
I would stay out of those fights. The simple answer, Ben,
(29:59):
I don't want to stay on are those fights. I
think policy fights in political fights matter intensely and frankly, listen.
I think there are a lot of people who are
wonderful human beings who want to be tremendous judges or justices,
and I would like to be involved in nominating or
confirming scores of wonderful constitutionalists to the federal bench. I
(30:22):
don't want me to be one of them, because if
you want to fight in the political arena, the right
place to do so is in the elected positions and government.
So I'm in the United States Senate. I think of
the Senate as the Roman colisseum. And to be honest, look,
I how many people do you know in the Senate
(30:43):
that are actually standing up and fighting this fight every day.
It's a small number. I'm not going to give you
a number, but it's not huge that are effectively going
to battle day in and day out, defending the Constitution,
the Bill of Rights, defending conservative principles, defending our value.
And I jump out of bed every day eager to
do that fight. And so when Trump talked to me
(31:06):
very seriously about the Supreme Court, I told him flat out, no,
I don't want it. I wouldn't accept it. I am
not interested in being on the Court. I care profoundly
about who's on the court.
Speaker 2 (31:17):
But it amy one other question I want to ask
you about this case moving forward. You predicted that this
is going to be probably a very stern Supreme Court
on this issue with Colorado. As your mind changed at
all since we did part one on that, I mean,
you're back in DC. You've seen, I guess more of
(31:38):
the press reaction, You've seen more of the reaction in Washington.
Do you still think that the Supreme Court is eager
to not only take this up, but also to say, hey,
you can't in America, In the United States of America
right now, we let the people decide. We don't let
people dictate who you can and can't vote for.
Speaker 3 (31:57):
So let me say I wouldn't say eager is the
right adjective. They're not eager. The Court would love to
stay out of this. They don't want to be involved
in this presidential election. They want to stay out of it.
But once Colorado ruled that they were pulling Trump off
the ballot, the Court had to get in. And I
actually think every justice recognized, Okay, we've got a responsibility.
(32:21):
We can't duck this. We've got to resolve this because
this is the court exists to resolve the most important
legal issues in the country, particularly concerning the constitution, and
whether you will allow the voters to vote for a
candidate for president is right at the top of it.
(32:41):
Is difficult to imagine a more consequential constitutional issue than that,
and so I think every justice recognized, even though they
didn't want to be in this, they had a responsibility
and they really had no choice. Now, I also believe
the odds are overwhelming, close to one hundred percent the
Supreme Court will reverse the Colorado Supreme Court. I just
(33:04):
I do not believe they are going to allow one
of the two major parties candidates for president to be
removed from the ballot and to tell the voters you
don't get to decide who the president is. That is
contrary to democracy. It is an assault on democracy. Ironically,
while Joe Biden is prancing around and proclaiming his defense
(33:29):
for democracy, he and the Democrats and the media are
trying to utterly frustrate democracy and stop the voters from
voting for their opponents. I think the Court is going
to easily reverse it, and I desperately hope. I got
to say, there are very few things I have hoped
for more passionately that I can recall than that. I
(33:52):
hope that this is unanimous. If it's six ' three,
If it's the Conservatives voting to reverse and the Liberals
voting to affirm, that is bad for the Supreme Court.
It is bad for the country. It is bad for
the rule of law. It will cement the perception that
the Court is a political body, and that is disastrous
(34:12):
for the Court. I am certain that there is no
human being on the planet that feels that urgency more
intensely than Chief Justice John Roberts. I know John Roberts
very very well. We've been friends for thirty years. He
cares exquisitely about the legitimacy of the Supreme Court. And
(34:32):
so I think the Chief Justice is going to ben
over backwards to find any theory that would produce a
unanimous decision. There are lots of theories he could do.
The one I find most persuasive. If I had if
Trump had offered me the Scalia seat and I'd gotten
the nomination in the place of Gorsa to the Senate,
(34:53):
he confirmed me if I were a justice, the theory
that I would be inclined to agree with is what
I laid out on the last podcast, which is it
is absolutely true and I think correct that if an
individual engages in insurrection, they're not eligible to be elected
(35:17):
to federal office. I'm convinced of that. However, what is
not clear is how you determine whether someone quote engaged
in insurrection. As I described in the last podcast, the
Civil War was indisputably an insurrection. No one can dispute
that we had a four year war with six hundred
(35:38):
thousand dead Americans. Like it is why the Fourteenth Amendment,
Section three was passed. It was in response to the
Civil War. It is the embodiment of an insurrection. There
is a real and acute debate over whether what occurred
on January sixth, twenty twenty one constitute an insurrection. I
(35:59):
think the answer is easy. I think the answer is
hell no. I don't think it remotely reaches that level.
But there are those who disagree. I will acknowledge there's
disagreement with almost every damn Democrat and all of the media.
They say routine the insurrection, insurrection, and insurrection. However, the
constitutional question is, how do you determine that someone has
(36:21):
engaged in an insurrection in the Civil War. Since nobody
disputed the Civil War was an insurrection. The only question
did you engage in it? So if you put on
a Confederate uniform, if you had stars stars on your shoulder,
you were guilty. Like that, it was easy to determine
whether you fell into that disqualification.
Speaker 1 (36:41):
Yeah, it was as simple as you could make it
at that point.
Speaker 3 (36:44):
Yeah, there was no No one disputed the Civil War
was an insurrection. And I'm not aware of anyone that
disputed if someone was in fact a Confederate officer. I
don't know have anyone that said, no, no, I wasn't a
Confederate officer. Like the two pieces were admitted, and so
so there was no meaningful factual dispute here. There is
(37:06):
a reason that Jack Smith and every other prosecutor, that
left wing prosecutor that hates Donald Trump, that nobody has
charged Trump with the crime of insurrection because you couldn't
remotely prove that. The facts don't demonstrate it. And so
I think the theory of the Supreme Court will say,
and I predicted a sentence from Look when this comes down,
(37:29):
and I think it'll come down, it'll be argued February eighth.
I'm going to predict it comes down February nineteenth. I'm
just pulling a date out. It will be some time
between February eighth and March fourth. I'm pulling a date
out of the air, saying February nineteenth. When it comes down,
I'm predicting right now, there will be a sentence. We
express no opinion over whether the events of January sixth,
(37:52):
twenty twenty one constitute an insurrection or not. However, in
order for the fourteenth Amendment prohibition to apply, there needs
to be a conclusive determination that it was an insurrection.
And for those who urge Trump should be ineligible. For
(38:13):
the Biden Department of Justice, which has urged Trump should
be ineligible, they have a path to prove that case,
which is to charge him with insurrection and convict him
and obtain a final judgment that he's guilty of insurrection.
If they do so, he will be ineligible for office.
But they have not done so. And accordingly, this decision
(38:34):
should not be made by judges in Colorado or a
partisan unelected secretary of State in Maine, but rather, the
decision of the next president should be made by the
voters and the American people. I think that that's what
I would rule if I were a justice. That is
the sort of opinion I would write. And my hope
(38:56):
is I really hope the liberal justices are are not
infected by Trump derangement syndrome like so many Democrats are.
That they recognize the damage to the court if they
make this a partisan decision will be historic and irreparable.
So I pray they don't do that.
Speaker 1 (39:15):
We're gonna be watching it all here, don't forget.
Speaker 2 (39:17):
We do this show Monday, Wednesday, Friday, and a week
recap on Saturdays. Hit that subscribe follow our auto download button. Also,
if you do this show and listen to it on Apple,
make sure you check your settings that you are following
the show, as a lot of that has changed recently,
so in the new year, make sure you check that
(39:38):
it is important that you do that. And the Senator
and I will see you back here in a couple
of days.
Host
Ben Ferguson
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.