Verdict with Ted Cruz - Biden FURIOUS at DOJ, Demands Trump be put in Jail, plus Deep Dive into Colorado Supreme Court Argument

00:00:00.000 This is an iHeart Podcast.

00:00:02.640 Guaranteed human.

00:00:05.380 Welcome. It is Verdict with Senator Ted Cruz, Ben Ferguson with you,

00:00:09.100 and we have a jam-packed show for you today that deals with

00:00:11.860 not only some shocking news coming out of Israel,

00:00:14.580 but also the Supreme Court decision on taking Donald Trump off the ballot in Colorado.

00:00:19.980 We're going to dive into both of those.

00:00:21.500 But before we get to that, Senator, a story that no one seems to be talking about,

00:00:25.760 and that is some breaking news that apparently Joe Biden was demanding

00:00:30.120 that the Attorney General, Merrick Garland, put Donald Trump and his opponents in prison

00:00:36.120 and is very angry that he didn't start the investigation to Trump earlier

00:00:41.060 so they wouldn't have to, I guess, be running against him right now for the presidency.

00:00:45.620 Your reaction to this coming out from Politico's reporting.

00:00:49.560 Well, Politico reported, quote,

00:00:51.420 In recent weeks, President Biden has grumbled to aides and advisors

00:00:54.580 that had Garland move sooner in his investigation into former President Donald Trump's election interference.

00:01:00.380 A trial may already be underway, or even if concluded,

00:01:03.660 according to two people granted anonymity to discuss private matters.

00:01:07.100 That trial still could take place before the election,

00:01:09.760 and much of the delay is owed not to Garland,

00:01:12.080 but to deliberate resistance put up by the former president and his team.

00:01:15.560 In other words, the White House is complaining, 0.97

00:01:17.660 Damn it, if only Merrick Garland had gone sooner, 0.99

00:01:21.180 we could have locked Donald Trump up in jail. 0.99

00:01:23.580 But that's not their only complaint.

00:01:26.140 Beyond that, they are furious,

00:01:29.100 volcanically furious,

00:01:31.320 with the Department of Justice,

00:01:33.360 with Merrick Garland.

00:01:35.160 Why? Get this?

00:01:36.820 Because they haven't been political enough.

00:01:40.000 Wow.

00:01:40.300 We have discussed at great length on this podcast

00:01:42.720 how this is, in my judgment,

00:01:45.100 the most partisan and political department of justice in history.

00:01:48.120 Doesn't matter.

00:01:49.160 Not enough for Joe Biden in the White House.

00:01:51.740 Here's what Politico reported, quote,

00:01:54.040 Joe Biden has told aides and outside advisors

00:01:56.880 that Attorney General Merrick Garland

00:01:59.140 did not do enough to rein in a special counsel report

00:02:02.740 stating that the president had diminished mental faculties,

00:02:06.060 according to two people close to the president,

00:02:08.900 as White House frustration with the head of the Justice Department grows.

00:02:13.500 The report from special counsel Robert Herr

00:02:15.300 ultimately cleared Biden of any charges

00:02:17.600 stemming from handling of classified documents

00:02:19.840 that were found at Biden's think tank in his home.

00:02:23.040 But Herr's explanation for not bringing charges,

00:02:26.440 that Biden would have persuaded the jury

00:02:28.920 that he was a forgetful old man,

00:02:31.800 upended the presidential campaign,

00:02:33.720 and infuriated the White House.

00:02:35.020 So get this.

00:02:36.400 They're not particularly happy

00:02:38.340 that the Department of Justice

00:02:40.460 is not indicting Joe Biden.

00:02:42.720 They're not celebrating.

00:02:44.840 That DOJ is perfectly happy to say,

00:02:46.660 yep, one standard applies to Joe Biden.

00:02:48.500 A totally different standard applies to Donald Trump.

00:02:51.180 Donald Trump, we send in stormtroopers.

00:02:53.280 We go raid Mar-a-Lago.

00:02:54.860 We prosecute him.

00:02:56.100 But Joe Biden, he does the same thing.

00:02:58.260 Nope, nothing to see here.

00:02:59.540 None of that makes them happy.

00:03:00.680 That's not political enough.

00:03:02.520 The reasoning to justify that obvious double standard,

00:03:06.160 which we covered on Friday's podcast.

00:03:10.160 And by the way, if you didn't listen to Friday's podcast,

00:03:12.380 you should go back and listen to Friday's podcast,

00:03:14.720 because we discussed how in the special counsel report,

00:03:18.440 the Biden Department of Justice argued

00:03:21.380 that Joe Biden is not competent to stand trial.

00:03:24.460 Now, mind you, that was their explanation

00:03:26.460 for why they weren't prosecuting him,

00:03:28.260 that they couldn't convince a jury

00:03:30.480 that Joe Biden had the mental faculties

00:03:33.880 to be able to form willfulness.

00:03:36.460 That's a remarkable standard.

00:03:38.280 But now the Biden White House is throwing a fit.

00:03:41.000 Well, it's one way or the other.

00:03:42.800 Either he's not competent to be charged,

00:03:44.960 or he is, in which case he should be indicted.

00:03:47.880 You can't have it both ways.

00:03:49.900 Well, and it also sets, as you and I mentioned earlier,

00:03:52.980 a major precedent.

00:03:54.260 If the president's not being able to be held accountable,

00:03:57.000 in their words, for things that he did wrong,

00:03:59.880 willfully taking classified documents,

00:04:01.580 you would assume that same logic would then extend

00:04:03.620 to anything that deals with the Biden crime family.

00:04:06.480 And then to have it and say this the other way,

00:04:09.620 as you just described it,

00:04:10.940 it's like they believe that this government just does

00:04:13.560 and makes up the rules for them that apply to them

00:04:15.940 in any which way they want,

00:04:17.380 regardless of the law of the land,

00:04:18.720 regardless of the Constitution,

00:04:20.560 regardless of what it does to other people's lives,

00:04:23.880 including now going after Donald Trump

00:04:25.600 and people around him.

00:04:27.500 Well, and that's dangerous.

00:04:29.420 It is dangerous when the Department of Justice

00:04:31.440 becomes thoroughly politicized,

00:04:33.260 when it becomes a weapon to attack your enemies,

00:04:36.820 a weapon to insulate the president and his allies,

00:04:40.900 and when it becomes simply a political tool.

00:04:43.920 And even though Merrick Garland is happy

00:04:47.160 to be thoroughly, thoroughly political,

00:04:50.380 it's not enough for the Biden White House.

00:04:53.000 They want him to literally behave

00:04:54.620 like an extension of the DNC.

00:04:57.960 When you talk about this reporting,

00:05:00.200 will any of this come back, do you think,

00:05:01.860 to haunt the president here,

00:05:03.640 especially for the fact that if now Garland's been named

00:05:06.440 in this way publicly and that people are frustrated,

00:05:08.380 is there a chance that Merrick Garland

00:05:10.320 may now start to stand up a little bit more 0.99

00:05:11.940 to the president,

00:05:12.780 because now he's taking this heat

00:05:14.200 directly from the president behind the scenes

00:05:16.180 that we're learning about in the news?

00:05:17.600 I mean, that's embarrassing to his legacy

00:05:19.560 at bare minimum.

00:05:21.220 You know, I doubt it.

00:05:22.800 I have no reason to suspect that.

00:05:24.980 Merrick Garland has yet to demonstrate

00:05:26.700 any willingness,

00:05:27.640 any inclination to stand up to Joe Biden

00:05:30.180 or political pressure so far,

00:05:32.140 and we're three years in.

00:05:33.240 And, you know, it's striking that this is also not new.

00:05:39.480 Joe Biden, remember when he was campaigning,

00:05:41.460 he said he wasn't going to put pressure

00:05:43.040 on the Department of Justice.

00:05:44.820 But here, play this clip.

00:05:48.000 And this is a clip from Joe Biden in 2019,

00:05:50.540 and he's jabbing his finger

00:05:52.100 in Peter Doocy's face in Iowa

00:05:53.880 on reports that President Trump

00:05:59.840 had pressured Ukraine's president

00:06:02.600 to investigate the Biden crime family.

00:06:05.240 And here was his response.

00:06:06.920 Give a listen.

00:06:08.100 Trump deserves to be investigated.

00:06:11.100 He is violating every basic norm of a president.

00:06:15.140 You should be asking him the question,

00:06:17.320 why is he on the phone with a foreign leader

00:06:19.580 trying to intimidate a foreign leader

00:06:21.720 if that's what happened?

00:06:23.200 That appears what happened.

00:06:24.600 You should be looking at Trump.

00:06:26.320 Trump's doing this because he knows

00:06:27.600 I'll beat him like a drum.

00:06:29.560 And he's using the abuse of power

00:06:31.420 and every element of the presidency

00:06:34.460 to try to do something to smear me.

00:06:38.100 Everybody looked at this,

00:06:39.800 and everybody's looked at it and said

00:06:41.100 there's nothing there.

00:06:42.760 Ask the right question.

00:06:45.060 Ask the right question.

00:06:46.420 There's two things about that clip,

00:06:47.880 Senator, one, the clear cognitive decline

00:06:50.080 even since back in 2020 in the race.

00:06:52.240 He couldn't speak that clearly now.

00:06:53.740 I mean, it really is amazing.

00:06:55.260 In just a few years,

00:06:57.540 four years later,

00:06:58.500 he can't articulate

00:06:59.600 even a single clear,

00:07:02.140 forceful, decisive sentence

00:07:03.460 like he did then.

00:07:04.840 And not only that,

00:07:05.960 but he's also saying,

00:07:07.000 you guys need to go after Trump.

00:07:08.520 He's basically telling the media,

00:07:11.440 you don't ask me questions

00:07:12.940 about what I've done.

00:07:13.820 He says, I've been cleared,

00:07:14.800 which, by the way, was not true.

00:07:16.200 That's a lie.

00:07:17.120 But he's also saying,

00:07:18.100 like, get in your place,

00:07:19.280 do your job,

00:07:20.660 go after Donald Trump,

00:07:22.000 and now it seems

00:07:23.020 that he's lost some control

00:07:24.140 over this media

00:07:24.820 that he's had control over

00:07:25.720 for the last three-plus years.

00:07:27.220 Yeah, that final line there,

00:07:29.240 ask the right questions.

00:07:30.620 His attitude is,

00:07:32.340 the corporate media works for him.

00:07:34.420 They're supposed to ask the questions

00:07:35.980 he tells them to,

00:07:37.460 and they're supposed to shut up, 0.80

00:07:38.700 as we discussed at length

00:07:39.940 on Friday's podcast.

00:07:41.400 The disastrous press conference

00:07:43.860 Joe Biden did

00:07:44.600 after this special counsel report,

00:07:46.500 suddenly the media

00:07:47.580 wasn't following orders anymore.

00:07:49.120 They were actually asking

00:07:50.500 real and hard questions,

00:07:52.080 and he was flabbergasted and angry.

00:07:54.720 And to be clear,

00:07:56.220 his efforts to try to push

00:07:58.260 the Department of Justice

00:07:59.540 to be his political attack dog,

00:08:02.140 this is not new.

00:08:03.780 On March 31st, 2023,

00:08:06.180 the New York Times reported

00:08:07.440 the following, quote,

00:08:08.340 But he does have opinions.

00:08:10.980 In the past,

00:08:11.540 Mr. Biden privately told

00:08:12.900 his close circle of advisors

00:08:14.280 that Mr. Trump posed

00:08:16.240 a threat to democracy

00:08:17.560 and should be prosecuted

00:08:20.240 for his role

00:08:21.140 in the events of January 6th,

00:08:23.380 according to two people

00:08:24.480 familiar with his comments.

00:08:25.980 Amazing, those same two people

00:08:27.640 keep popping up.

00:08:29.480 He also told Confidence

00:08:31.080 that he wanted

00:08:32.140 Attorney General Merrick B. Garland

00:08:34.000 to stop acting

00:08:35.680 like a ponderous judge

00:08:37.120 and to take decisive action.

00:08:40.860 This has been over and over again

00:08:43.680 the approach of the White House

00:08:46.040 and the approach of Joe Biden.

00:08:47.660 He believes DOJ and the FBI

00:08:49.840 and all of the machinery

00:08:51.560 of government

00:08:52.240 is part of his partisan apparatus

00:08:54.900 to attack his enemies

00:08:56.660 and to protect himself

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00:10:57.080 Senator,

00:10:57.500 one other thing

00:10:58.080 I want to ask you

00:10:58.800 when it comes to this story.

00:11:01.400 Axios came out,

00:11:02.640 and they are now

00:11:03.700 basically reporting

00:11:04.820 that it is

00:11:06.300 a five-alarm fire

00:11:07.340 inside the White House's

00:11:08.360 press department right now.

00:11:10.020 It is a five-alarm fire

00:11:11.540 because the White House

00:11:12.400 is now in this

00:11:13.400 impossible position

00:11:14.720 to fight to defend

00:11:15.840 Biden's competency,

00:11:18.140 his fitness to be

00:11:19.220 President of the United States

00:11:20.080 of America.

00:11:20.620 And the damage control

00:11:22.660 doesn't seem to be

00:11:23.720 playing well

00:11:24.420 with new polling out

00:11:25.780 and the Sunday morning shows

00:11:27.080 were talking about this.

00:11:28.700 Joe Biden has lost

00:11:29.920 the media on this front

00:11:30.840 as well.

00:11:31.780 And it matters

00:11:32.820 because his team

00:11:33.780 is scrambling

00:11:34.520 to counter the

00:11:36.440 her report.

00:11:37.700 They say the President

00:11:38.760 is an elderly man

00:11:40.780 with a great memory,

00:11:41.740 right?

00:11:41.900 That's Joe Biden's word.

00:11:43.200 But the report said

00:11:44.100 it's an elderly man

00:11:44.800 with poor memory.

00:11:46.320 You've seen a lot

00:11:47.480 of these political stories

00:11:48.720 and how the tides

00:11:50.060 can turn quickly.

00:11:51.580 Is this going to be

00:11:52.720 the undoing of the

00:11:53.600 Biden presidential campaign?

00:11:55.280 Can they overcome this?

00:11:56.820 I know the aides are trying,

00:11:58.160 but it seems like

00:11:59.220 they've completely

00:11:59.740 lost control of this story.

00:12:01.320 Look, this is a political crisis

00:12:03.400 from their perspective.

00:12:04.900 What happened,

00:12:05.620 you know,

00:12:05.800 there's an old line

00:12:06.600 that a gaffe

00:12:07.320 in Washington

00:12:08.540 is when a politician

00:12:09.520 accidentally tells the truth.

00:12:11.500 In this instance,

00:12:12.740 the Department of Justice

00:12:13.740 of Joe Biden

00:12:14.560 accidentally told the truth.

00:12:16.220 And they're now

00:12:17.760 dealing with

00:12:18.600 a political emergency

00:12:20.380 what to do about it.

00:12:22.000 Biden responded

00:12:22.780 by holding a press conference

00:12:23.980 in which

00:12:24.660 his meandering,

00:12:27.080 rambling answers

00:12:28.140 confirmed everything

00:12:29.460 said in the

00:12:29.980 special counsel report,

00:12:31.600 including

00:12:32.240 at one point

00:12:33.580 one of the elements

00:12:34.380 of the report

00:12:35.880 that demonstrated

00:12:36.820 why his memory

00:12:37.960 was so failing

00:12:39.000 is it said

00:12:40.020 he could not remember

00:12:41.180 when his son had died.

00:12:42.500 And when Biden

00:12:43.680 is defending that

00:12:44.580 he points to some

00:12:45.920 rosary beads

00:12:46.700 that he wore

00:12:47.880 that were given to him

00:12:49.000 and he said

00:12:49.420 we're given to me by

00:12:50.160 we're given to me by

00:12:51.120 and then he can't remember

00:12:52.260 can't remember

00:12:53.600 what the details are

00:12:55.840 about the rosary beads.

00:12:57.340 That

00:12:57.560 to put it mildly

00:13:00.160 is not a good look

00:13:01.160 when you're trying

00:13:01.780 to demonstrate

00:13:02.780 that you have

00:13:03.640 a good enough memory

00:13:05.340 to function

00:13:06.000 if you can't actually

00:13:07.000 remember your response

00:13:08.260 to that attack

00:13:09.100 that's a problem.

00:13:10.720 It is a problem

00:13:11.400 and it's going to be one

00:13:12.240 that I think

00:13:12.660 it's going to be a big

00:13:13.700 advantage for Donald Trump

00:13:15.540 moving forward.

00:13:16.260 I want to also get into

00:13:17.400 two other major stories here

00:13:19.500 that need to be

00:13:21.020 on everyone's radar screen.

00:13:23.500 And by the way

00:13:24.400 let me say something

00:13:25.300 real quick also.

00:13:26.240 So I was yesterday

00:13:27.480 down at Mar-a-Lago

00:13:29.400 with President Trump

00:13:30.600 and I'll tell you

00:13:32.300 I couldn't help

00:13:33.420 but think

00:13:34.080 the contrast

00:13:35.780 between the two men

00:13:36.960 because even though

00:13:37.740 Donald Trump

00:13:38.340 is just slightly younger

00:13:39.700 than Joe Biden

00:13:41.140 he was his usual self

00:13:43.520 he was on the ball

00:13:44.860 and quick 0.69

00:13:45.280 and ready to fight

00:13:46.100 and strong

00:13:47.040 and the contrast

00:13:49.200 to the incredible

00:13:51.740 loss of faculties

00:13:52.980 from Joe Biden

00:13:53.740 it really struck me

00:13:55.800 I spent quite a while

00:13:56.860 with President Trump

00:13:57.760 last night

00:13:58.280 and it is night and day

00:14:00.240 and I think

00:14:01.260 that is going to be

00:14:01.860 evident to the voters

00:14:02.780 every day

00:14:03.620 from now

00:14:04.140 until election day.

00:14:06.040 When you spoke

00:14:06.880 with him quickly

00:14:07.500 I just want to ask you

00:14:08.480 what was his mood

00:14:09.900 about this election?

00:14:11.040 I mean he's under fire

00:14:12.300 all over the place

00:14:13.380 we're going to talk

00:14:14.400 in a moment

00:14:14.720 about the Supreme Court

00:14:15.780 and what's going to happen

00:14:16.620 there with Colorado

00:14:17.340 and your predictions on that

00:14:19.040 but what was his demeanor like?

00:14:21.240 Very positive

00:14:21.840 very confident

00:14:22.580 he was in a good mood

00:14:23.560 he was laughing

00:14:24.300 he was feeling good

00:14:25.380 he was having dinner

00:14:28.200 at dinner at Mar-a-Lago

00:14:29.340 he was having dinner

00:14:30.080 with Melania

00:14:31.380 and with Barron Trump

00:14:32.560 Barron's now like 6 foot 8

00:14:34.160 he's really a tall kid

00:14:35.360 and he was in good spirits

00:14:38.640 all night

00:14:39.000 Canadian women

00:14:40.640 are looking for more

00:14:41.700 more out of themselves

00:14:42.780 their businesses

00:14:43.620 their elected leaders

00:14:44.740 and the world around them

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00:15:03.360 then we hope you'll join us

00:15:04.800 listen to the Honest Talk podcast

00:15:06.400 on iHeart Radio

00:15:07.320 or wherever you listen

00:15:08.380 to your podcasts

00:15:09.120 that I want to move

00:15:11.640 to Colorado real quick

00:15:13.040 and talk about this

00:15:15.040 this Donald Trump

00:15:16.940 versus Colorado

00:15:17.640 Supreme Court

00:15:18.500 the Supreme Court

00:15:19.740 heard the Trump ballot

00:15:21.320 oral arguments

00:15:22.460 the justices appeared

00:15:24.460 very skeptical

00:15:26.120 of removing him

00:15:28.120 from the ballot

00:15:28.820 not just in Colorado

00:15:29.740 but it seemed like

00:15:30.600 in theory

00:15:31.380 anywhere in the country

00:15:32.540 this is what you

00:15:34.020 had predicted

00:15:34.900 and you said

00:15:36.180 you were hoping

00:15:36.780 that we would have

00:15:37.360 a 9-0 decision

00:15:38.160 some of these

00:15:38.940 on the left

00:15:39.780 were actually out there

00:15:41.340 attacking Colorado's

00:15:42.720 arguments

00:15:43.340 give a recap

00:15:44.720 of kind of now

00:15:45.560 what your thoughts are

00:15:46.580 and what happened

00:15:47.420 in court

00:15:47.900 well I think

00:15:49.840 the oral argument

00:15:50.680 very much confirmed

00:15:52.420 what you and I said

00:15:53.940 on this podcast

00:15:54.960 the day after

00:15:56.520 the Colorado

00:15:57.080 Supreme Court

00:15:57.660 decision came down

00:15:58.640 I said

00:16:00.180 in that immediate

00:16:00.760 next podcast

00:16:01.540 I said

00:16:02.100 this decision

00:16:02.700 is an outrage

00:16:03.400 it is lawless

00:16:04.380 it is completely

00:16:05.060 contrary

00:16:05.660 to the rule of law

00:16:07.000 to the constitution

00:16:07.820 and it is the gravest

00:16:09.160 assault on democracy

00:16:10.680 of our lifetimes

00:16:11.580 and I predicted then

00:16:13.640 I said the Supreme Court

00:16:14.620 will take the case

00:16:15.640 they will schedule it

00:16:17.620 quickly

00:16:18.260 for decision

00:16:19.160 for oral argument

00:16:20.060 they will decide it

00:16:21.100 quickly

00:16:21.500 they will reverse

00:16:22.560 this decision

00:16:23.260 and I said

00:16:24.540 at the time

00:16:25.000 I think there's

00:16:25.520 a very significant chance

00:16:26.800 that they reverse it

00:16:27.700 unanimously

00:16:28.320 well

00:16:29.440 almost every element

00:16:30.500 of that prediction

00:16:31.220 has already come true

00:16:32.060 come true

00:16:32.540 they took it

00:16:33.140 they took it quickly

00:16:34.200 they scheduled it

00:16:34.940 for an exceptionally

00:16:35.700 accelerated oral argument

00:16:37.000 it was argued

00:16:38.220 on February 8th

00:16:39.800 the justices right now

00:16:41.160 I think are scrambling

00:16:42.300 to write their opinions

00:16:43.580 I expect a decision

00:16:45.280 from the Supreme Court

00:16:46.360 within the next couple of weeks

00:16:48.060 I think as quickly

00:16:48.780 as they can get

00:16:49.400 the opinion finished

00:16:50.260 they'll get it out

00:16:50.960 but I do think

00:16:51.580 they will feel

00:16:52.120 some real urgency

00:16:53.660 I think we will have

00:16:55.420 a decision

00:16:55.880 in the month of February

00:16:56.820 and I continue

00:16:59.420 to think

00:16:59.840 there is a very real chance

00:17:01.620 that it is

00:17:02.760 a unanimous decision

00:17:03.740 the oral argument

00:17:04.580 every one of the justices

00:17:05.880 who ask questions

00:17:06.800 express serious skepticism

00:17:09.580 as to the position

00:17:10.420 of Colorado

00:17:10.980 and it's worth

00:17:12.680 let's just play

00:17:13.660 some of these exchanges

00:17:15.240 so let's play

00:17:16.760 for example

00:17:17.600 Justice Ketanji Brown-Jackson

00:17:20.280 from rising again

00:17:22.260 in the context

00:17:23.700 of these sort of

00:17:24.600 local elections

00:17:25.640 as opposed to

00:17:26.840 focusing on the presidency

00:17:28.740 well two points on that

00:17:30.500 Justice Jackson

00:17:31.320 first is that

00:17:32.180 as I discussed earlier

00:17:33.420 there isn't

00:17:34.260 the same history

00:17:35.160 of states

00:17:35.780 regulating ballot access

00:17:37.620 at this time

00:17:38.540 so ballot access rules

00:17:40.340 to restrict presidential candidates

00:17:42.200 wouldn't have

00:17:43.240 wouldn't have existed

00:17:44.060 they wouldn't have been

00:17:44.800 raised one way or another

00:17:46.160 right but I'm not making

00:17:47.040 a distinction between

00:17:47.840 ballot access

00:17:48.540 and anything else

00:17:49.620 understood

00:17:50.020 but the more

00:17:50.540 the more broad point

00:17:51.580 I want to make

00:17:52.080 is that what is very clear

00:17:53.820 from the history

00:17:54.500 is that the framers

00:17:56.180 were concerned

00:17:56.940 about charismatic rebels

00:17:58.860 who might rise

00:17:59.800 through the ranks

00:18:00.440 up to and including

00:18:01.460 the presidency

00:18:02.100 of the United States

00:18:03.100 but then why didn't

00:18:03.840 they put the word

00:18:04.480 president

00:18:04.980 in the very enumerated list

00:18:07.340 in section three

00:18:08.540 the thing that really

00:18:09.680 is troubling to me

00:18:11.320 is I totally understand

00:18:12.940 your argument

00:18:13.580 but they were listing people

00:18:15.660 that were barred

00:18:17.060 and president is not there

00:18:18.580 and so I guess

00:18:20.000 that just makes me worry

00:18:21.320 that maybe

00:18:22.360 they weren't focusing

00:18:23.640 on the president

00:18:24.580 and for example

00:18:25.580 the fact that

00:18:27.140 electors of vice president

00:18:29.200 and president

00:18:29.900 are there

00:18:30.720 suggests that

00:18:31.940 really what they thought

00:18:33.160 was if we're worried

00:18:34.180 about the charismatic person

00:18:35.580 we're going to bar

00:18:36.880 insurrectionist electors

00:18:39.480 and therefore

00:18:40.460 that person is never

00:18:41.560 going to rise

00:18:42.380 this came up

00:18:43.480 in the debates

00:18:44.040 in congress

00:18:44.580 over section three

00:18:45.620 where reverty johnson said

00:18:47.780 why haven't you included

00:18:49.160 president and vice president

00:18:50.700 in the language

00:18:51.380 and senator moral responds

00:18:52.960 we have

00:18:53.860 look at the language

00:18:54.940 any office

00:18:55.780 under the united states

00:18:56.700 yes but doesn't that

00:18:57.620 at least suggest ambiguity

00:18:59.980 and this sort of ties

00:19:01.380 into justice kavanaugh's point

00:19:03.200 in other words

00:19:03.860 we had a person

00:19:04.960 right there at the time

00:19:06.640 saying what I'm saying

00:19:08.380 the language here

00:19:09.740 doesn't seem to include president

00:19:11.520 why is that

00:19:12.580 and so if there's an ambiguity

00:19:14.000 why would we construe it

00:19:16.780 to as justice kavanaugh

00:19:19.140 pointed out

00:19:19.880 against democracy

00:19:22.160 well reverty johnson came back

00:19:23.820 and agreed with that reading

00:19:25.040 any office is clear

00:19:26.660 the constitution says

00:19:27.920 about 20 times

00:19:28.900 no I'm not going to that

00:19:30.080 so let me let me just say

00:19:31.660 so your point is that

00:19:33.320 there's no ambiguity

00:19:34.760 with having a list

00:19:37.020 and not having president in it

00:19:38.560 with having a history

00:19:40.000 that suggests that

00:19:40.840 they were really focused

00:19:41.700 on local concerns

00:19:42.780 in the south

00:19:43.480 I mean senator

00:19:45.120 she wasn't having it at all

00:19:46.880 yeah look that's

00:19:48.640 there are times

00:19:49.700 that supreme court arguments

00:19:50.860 where justices

00:19:52.060 try to hide

00:19:53.000 where they're coming from

00:19:53.900 that's not one of them

00:19:55.980 that's one of the central arguments

00:19:57.740 being made by trump

00:19:58.760 it's one of the central arguments

00:20:00.060 that I made

00:20:01.240 in the amicus brief

00:20:02.160 that I filed

00:20:02.880 on behalf of some

00:20:04.240 170 members of congress

00:20:06.040 which is that

00:20:07.840 that president of the united states

00:20:09.480 is not enumerated

00:20:10.460 in in article 14 section 3

00:20:12.400 and does not fall within

00:20:13.640 uh the broader

00:20:15.020 and more general terms

00:20:16.080 and that is

00:20:16.780 emphatically what she's saying

00:20:18.720 uh now give a listen

00:20:20.780 listen to justice gorsuch

00:20:22.140 and and he's coming

00:20:23.320 every bit as hard

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00:21:30.800 alright

00:21:31.360 take a listen

00:21:32.040 real quick to

00:21:32.840 Justice Neil Gorshitz

00:21:34.120 at the Supreme Court

00:21:35.260 back and forth

00:21:36.460 with Colorado's

00:21:37.400 attorneys

00:21:37.880 he speaks about

00:21:39.080 disqualification

00:21:40.080 from holding office

00:21:41.780 you say he is

00:21:42.740 disqualified from

00:21:43.620 holding office

00:21:44.280 from the moment

00:21:45.760 it happens

00:21:46.780 correct

00:21:47.760 but nevertheless

00:21:48.100 it operates

00:21:49.400 you say there's no

00:21:50.660 no legislation

00:21:52.120 necessary

00:21:52.860 I thought that was

00:21:53.900 the whole theory

00:21:54.700 of your case

00:21:55.420 and no procedure

00:21:56.720 it happens

00:21:57.760 automatically

00:21:58.520 well certainly

00:21:59.660 you need a procedure

00:22:00.520 in order to have

00:22:01.140 any remedy

00:22:01.720 to enforce the

00:22:02.760 disqualification

00:22:03.500 that's a whole

00:22:04.860 separate question

00:22:05.640 that's the

00:22:06.040 de facto doctrine

00:22:06.920 doesn't work here

00:22:07.760 okay put that aside

00:22:08.900 he's disqualified

00:22:10.400 from the moment

00:22:11.700 self-executing

00:22:13.960 done

00:22:14.440 and I would think

00:22:15.960 that a person

00:22:17.640 who would

00:22:18.240 receive a direction

00:22:19.560 from that person

00:22:20.820 the president

00:22:21.400 former president

00:22:22.320 in your view

00:22:22.960 would be free

00:22:24.420 to act

00:22:25.160 as he or she wishes

00:22:26.520 without regard

00:22:27.340 to that individual

00:22:28.140 I don't think so

00:22:29.380 because I think

00:22:29.940 again the

00:22:30.400 de facto officer

00:22:31.340 doctrine would

00:22:32.000 nevertheless come

00:22:32.980 into play

00:22:33.460 to say this is

00:22:34.100 no de facto

00:22:34.860 that doesn't work

00:22:36.240 Mr. Murray

00:22:36.760 because de facto

00:22:37.520 officer is to

00:22:38.180 ratify the conduct

00:22:39.200 that's done afterwards

00:22:40.260 and insulate it

00:22:41.600 from judicial review

00:22:42.760 put that aside

00:22:44.220 I'm not going to

00:22:44.820 say it again

00:22:45.260 put it aside

00:22:46.100 okay

00:22:46.700 I think justice

00:22:47.840 Lee does ask

00:22:48.300 a very different

00:22:49.040 question

00:22:49.460 a more pointed one

00:22:50.340 and more difficult

00:22:51.000 one for you

00:22:51.620 I understand

00:22:52.260 but I think it

00:22:53.280 deserves an answer

00:22:54.100 on your theory

00:22:55.700 would anything

00:22:57.600 compel

00:22:58.520 a lower official

00:23:00.760 to obey

00:23:02.080 an order from

00:23:03.260 in your view

00:23:04.200 the former president

00:23:05.260 I'm imagining

00:23:07.040 a situation

00:23:07.740 where for example

00:23:08.640 a former president

00:23:09.600 was

00:23:09.880 you know

00:23:10.400 a president

00:23:10.980 was elected

00:23:11.620 and they were 25

00:23:12.400 and they were

00:23:13.260 ineligible

00:23:13.760 to hold office

00:23:14.340 but nevertheless

00:23:14.900 they were put

00:23:15.420 into that office

00:23:15.680 no we're talking

00:23:16.220 about section 3

00:23:17.060 please don't change

00:23:17.940 the hypothetical

00:23:18.520 okay

00:23:19.080 please don't change

00:23:20.300 the hypothetical

00:23:20.720 I know I like

00:23:21.520 doing it too

00:23:22.100 but please don't do it

00:23:23.340 the point I'm trying

00:23:24.760 to make is

00:23:25.140 he's disqualified

00:23:25.980 from the moment

00:23:26.940 he committed

00:23:27.500 an insurrection

00:23:28.260 whoever it is

00:23:29.460 whichever party

00:23:30.720 that happens

00:23:32.100 boom

00:23:32.940 it happened

00:23:34.360 what would compel

00:23:36.200 I'm not going to

00:23:37.120 say it again

00:23:37.560 so just try

00:23:38.160 and answer the question

00:23:38.940 if you don't have

00:23:39.400 an answer

00:23:39.700 fair enough

00:23:40.260 we'll move on

00:23:40.920 what would compel

00:23:42.200 a lower official

00:23:43.360 to obey

00:23:44.160 an order from

00:23:44.820 that individual

00:23:45.420 because ultimately

00:23:46.820 we have statutes

00:23:48.700 and rules

00:23:49.380 Senator

00:23:50.020 for many people

00:23:50.720 that maybe

00:23:51.120 have never heard

00:23:52.000 oral arguments

00:23:52.820 before

00:23:53.240 there's no

00:23:53.680 cameras in the

00:23:54.300 court

00:23:54.540 but there is

00:23:55.060 this audio

00:23:55.740 this is what

00:23:57.160 I would refer

00:23:57.760 to as a beat

00:23:58.660 down

00:23:59.020 yes

00:23:59.640 look that

00:24:00.480 was brutal

00:24:01.140 and the basic

00:24:02.900 back and forth

00:24:03.540 we're hearing

00:24:04.080 is typical

00:24:04.840 of oral arguments

00:24:05.740 you know

00:24:06.100 people think

00:24:07.060 of a Supreme

00:24:07.520 Court argument

00:24:08.140 and they often

00:24:08.640 imagine

00:24:09.100 some grand

00:24:10.380 oration

00:24:10.960 they imagine

00:24:11.860 you know

00:24:13.360 Dr. King

00:24:14.600 I have a dream

00:24:15.480 they imagine

00:24:16.220 you know

00:24:16.840 John F. Kennedy

00:24:17.820 giving some

00:24:18.980 rousing speech

00:24:20.020 but that's not

00:24:21.120 what Supreme

00:24:21.600 Court argument

00:24:22.100 is

00:24:22.460 it is

00:24:23.160 typically

00:24:24.220 two lawyers

00:24:25.520 standing there

00:24:26.400 usually they have

00:24:27.260 30 minutes each

00:24:28.200 and they are

00:24:29.820 laying out

00:24:30.760 arguments

00:24:31.180 as to where

00:24:31.880 why their side

00:24:32.840 should prevail

00:24:33.420 and almost

00:24:33.900 the entire

00:24:34.460 argument

00:24:34.940 consists of

00:24:36.360 the nine

00:24:36.740 justices

00:24:37.280 asking questions

00:24:38.180 and asking

00:24:38.600 very difficult

00:24:39.220 questions

00:24:39.680 and you're

00:24:40.040 hearing that

00:24:40.540 back and forth

00:24:41.280 and it shows

00:24:42.560 the weaknesses

00:24:43.220 of the arguments

00:24:44.000 now in that

00:24:44.520 instance

00:24:44.880 Justice Gorsuch

00:24:45.580 is saying

00:24:46.100 look

00:24:46.420 to the Colorado

00:24:47.500 lawyer

00:24:47.860 your theory

00:24:48.560 is

00:24:48.940 the instant

00:24:49.480 an insurrection

00:24:50.080 happens

00:24:50.660 and a president

00:24:51.880 participates in it

00:24:52.980 that instant

00:24:54.100 that president

00:24:54.860 is no longer

00:24:56.020 eligible to be

00:24:57.040 president

00:24:57.460 and in fact

00:24:58.140 he cannot

00:24:58.700 hold the office

00:25:00.440 instantaneously

00:25:01.420 and also your theory

00:25:02.540 is that it is

00:25:03.920 self-executing

00:25:04.780 which means

00:25:05.220 Congress does not

00:25:06.020 need to pass

00:25:06.600 any legislation

00:25:07.420 to give force

00:25:08.120 to it

00:25:08.440 to give a procedure

00:25:09.180 to it

00:25:09.640 it just

00:25:10.540 in the ether

00:25:11.680 instantaneously

00:25:12.820 makes him

00:25:13.500 you're not

00:25:14.000 president anymore

00:25:14.940 and so he's

00:25:15.500 asking him

00:25:15.980 well

00:25:16.160 if by operation

00:25:18.380 of the constitution

00:25:19.020 in that instant

00:25:19.900 he's not president

00:25:20.800 why would

00:25:21.500 anyone in the

00:25:22.240 government

00:25:22.560 listen to him

00:25:24.120 from that moment

00:25:24.980 on

00:25:25.320 and the lawyer

00:25:26.500 had no

00:25:27.320 answer to that

00:25:28.960 he couldn't

00:25:29.700 give any

00:25:30.220 he tried to

00:25:31.680 dodge

00:25:31.980 he tried to

00:25:32.420 change the

00:25:32.940 hypothetical

00:25:33.540 that did not

00:25:34.480 go well

00:25:35.020 that's not

00:25:37.080 what you put

00:25:37.600 on your resume

00:25:38.180 one day

00:25:38.640 if you're

00:25:38.940 arguing on behalf

00:25:39.720 of the Colorado

00:25:40.200 voters

00:25:40.680 the part where

00:25:41.560 he's like

00:25:41.760 I know what

00:25:42.160 you're trying

00:25:42.500 to do here

00:25:43.000 but don't do

00:25:43.560 that again

00:25:44.040 stop it

00:25:44.600 if you can't

00:25:45.080 answer

00:25:45.340 move on

00:25:45.860 that's the

00:25:46.720 beat down

00:25:47.180 at the

00:25:47.460 Supreme Court

00:25:48.080 yeah

00:25:48.560 and here

00:25:49.180 listen to a

00:25:50.280 little bit more

00:25:50.760 from Justice

00:25:51.280 Gorsuch

00:25:51.640 on a similar

00:25:53.160 line of

00:25:53.540 questioning

00:25:54.420 this court

00:25:55.260 has held

00:25:55.820 you're not

00:25:56.980 contesting this

00:25:58.040 or asking us

00:25:58.800 to revisit

00:25:59.260 that decision

00:25:59.860 in Thornton

00:26:00.480 or term limits

00:26:01.180 or whatever

00:26:01.520 you want to

00:26:01.980 call it

00:26:02.420 that it has

00:26:03.300 to come

00:26:03.620 from some

00:26:04.200 federal

00:26:04.660 constitutional

00:26:05.420 authority

00:26:06.000 no we are

00:26:06.580 not your

00:26:06.880 honor

00:26:07.000 okay

00:26:07.260 and here

00:26:08.860 we're not

00:26:09.340 talking about

00:26:09.860 the qualifications

00:26:10.480 clause

00:26:11.420 right

00:26:12.280 nobody's

00:26:13.500 talking about

00:26:14.160 whether he's

00:26:14.800 35 years old

00:26:15.940 or natural born

00:26:17.260 whatever

00:26:17.680 right

00:26:18.120 not an issue

00:26:19.120 okay

00:26:19.480 we're talking

00:26:20.360 about something

00:26:20.900 under the 14th

00:26:22.420 amendment

00:26:22.700 in section 3

00:26:24.020 so that's where

00:26:24.780 you have to find

00:26:25.540 your authority

00:26:26.240 right

00:26:26.600 we find our

00:26:28.160 authority in article 2

00:26:29.320 in states plenary power

00:26:30.640 to run their election

00:26:31.820 federal election

00:26:32.620 but this is for a federal

00:26:33.660 office it has to come

00:26:34.720 from the constitution

00:26:35.840 and you're seeking

00:26:36.800 to enforce

00:26:37.560 section 3

00:26:38.760 we're suggesting

00:26:40.520 that in their

00:26:41.260 broad power

00:26:42.380 to determine

00:26:42.980 them

00:26:43.220 to select

00:26:43.840 presidential electors

00:26:44.940 in any manner

00:26:45.900 they see fit

00:26:46.720 they can take

00:26:47.680 account of section 3

00:26:48.820 and apply section 3

00:26:49.900 could they do it

00:26:50.380 without section 3

00:26:51.280 could they disqualify

00:26:52.340 somebody

00:26:52.860 for

00:26:53.560 you know

00:26:55.400 on whatever basis

00:26:56.420 they wanted

00:26:56.960 outside of the

00:26:57.740 qualifications clause

00:26:58.920 that would run

00:27:00.280 into term limits

00:27:01.000 yeah I would think so

00:27:02.040 right

00:27:02.380 so it has to come

00:27:03.820 back to section 3

00:27:05.120 and if that's true

00:27:06.700 how does that work

00:27:08.420 given that section 3

00:27:09.900 speaks about

00:27:10.460 holding office

00:27:11.620 not who may run

00:27:12.620 for office

00:27:13.380 it was a point

00:27:14.100 Mr. Mitchell

00:27:14.540 was making earlier

00:27:15.300 and I just wanted

00:27:15.760 to give you a chance

00:27:16.340 to respond to it

00:27:17.160 because it seems to me

00:27:18.020 that you know

00:27:19.340 that you're asking

00:27:20.320 to enforce

00:27:20.980 in an election

00:27:21.720 context

00:27:24.040 a provision

00:27:25.800 of the constitution

00:27:26.340 that speaks

00:27:26.840 to holding office

00:27:28.000 so it's different

00:27:29.040 than the qualifications

00:27:29.900 clause

00:27:30.420 which is all about

00:27:31.560 who can run

00:27:32.680 and then serve

00:27:33.400 yeah

00:27:33.700 I don't know

00:27:34.640 that it is different

00:27:35.420 other qualifications

00:27:36.380 for office

00:27:37.020 similarly talk

00:27:37.800 about eligibility

00:27:38.560 for the office

00:27:40.020 there's nothing

00:27:40.760 unconstitutional

00:27:41.760 about a 30 year old

00:27:43.240 trying to get on the

00:27:44.180 except for this

00:27:44.860 disability can be

00:27:45.780 removed

00:27:46.320 right under section 3

00:27:47.880 that's what's

00:27:48.500 different about it

00:27:49.340 I mean he's not

00:27:50.700 letting up there

00:27:51.500 and these are really

00:27:52.460 not that hard

00:27:53.820 of questions

00:27:54.380 it's just when you have

00:27:55.380 not a lot to back

00:27:56.700 it up in

00:27:57.280 in Colorado

00:27:57.940 you're in trouble

00:27:59.220 well they are

00:28:00.460 hard questions

00:28:01.300 because Colorado's 1.00

00:28:02.740 argument is stupid 1.00

00:28:03.480 like it's just 1.00

00:28:04.860 not right

00:28:05.400 it's not

00:28:06.100 what the constitution

00:28:07.340 says

00:28:08.040 you had

00:28:08.560 four partisan

00:28:09.940 democrat justices

00:28:11.320 in Colorado

00:28:12.340 who hate Donald Trump

00:28:13.660 and they hate

00:28:14.620 Donald Trump

00:28:15.180 so much

00:28:15.720 that they're willing

00:28:16.220 to say to the

00:28:16.820 voters of Colorado

00:28:17.800 you don't get

00:28:19.320 to vote for him 0.64

00:28:20.200 I hate him so much 0.84

00:28:22.040 I'm scared

00:28:22.920 you voters

00:28:24.520 might choose

00:28:25.160 to vote for this man

00:28:26.240 so I'm going to

00:28:27.100 take him away

00:28:27.740 but it does not

00:28:29.360 have a basis

00:28:30.040 in the text

00:28:30.680 of the constitution

00:28:31.400 which is why

00:28:32.300 Colorado's position

00:28:33.640 is going to lose

00:28:34.280 which by the way

00:28:35.300 is why I have to

00:28:36.380 play Clarence Thomas

00:28:37.320 one of your favorite

00:28:38.080 justices here

00:28:38.940 going back and forth

00:28:40.680 with Jason Murray

00:28:41.700 and he asked a very

00:28:43.420 simple question

00:28:44.300 and it's one that

00:28:46.060 was just brilliantly

00:28:47.640 done by Clarence Thomas

00:28:48.840 and I want to get

00:28:49.860 your reaction to it

00:28:50.880 listen to this

00:28:51.620 the concern was

00:28:53.680 that the former

00:28:54.380 confederate states

00:28:55.560 would continue

00:28:56.680 being bad actors

00:28:58.180 and the effort

00:28:59.720 was to prevent

00:29:00.840 them from doing

00:29:01.720 this and you're

00:29:02.480 saying that well

00:29:03.300 this also authorized

00:29:04.500 states to disqualify

00:29:06.600 candidates

00:29:07.200 so what I'm asking

00:29:08.420 you for

00:29:09.040 if you are right

00:29:10.480 what are the examples

00:29:11.780 well your honor

00:29:13.260 the examples are

00:29:14.060 states excluded

00:29:15.080 many candidates

00:29:16.240 for state office

00:29:17.560 individuals holding

00:29:18.520 state offices

00:29:19.240 we have a number

00:29:20.520 of published cases

00:29:21.600 of states

00:29:22.360 I understand that

00:29:23.380 I understand the

00:29:25.160 states controlling

00:29:26.540 state elections

00:29:28.660 and state positions

00:29:30.220 what we are talking

00:29:31.820 about here

00:29:32.540 are national candidates

00:29:34.240 I understand

00:29:36.680 you look at Foner

00:29:38.380 or Foote

00:29:39.920 Shelby Foote

00:29:40.760 or McPherson

00:29:41.960 they all talk about

00:29:43.740 of course the conflict

00:29:45.040 after the civil war

00:29:46.380 and there were people

00:29:47.440 who felt very strongly

00:29:48.960 about retaliating

00:29:51.460 against the south

00:29:52.500 the radical republicans

00:29:54.720 but they did not think

00:29:56.700 about authorizing

00:29:57.900 the south

00:29:58.540 to disqualify

00:29:59.640 national candidates

00:30:01.000 and that's the argument

00:30:02.520 you're making

00:30:03.360 and what I would like

00:30:04.660 to know

00:30:05.120 is do you have

00:30:07.540 any examples

00:30:08.400 of this

00:30:09.100 many of those historians

00:30:10.540 have filed briefs

00:30:11.460 in our support

00:30:12.120 in this case

00:30:13.180 making the point

00:30:14.080 that the idea

00:30:15.580 of the 14th amendment

00:30:16.440 was that both states

00:30:17.580 and the federal government

00:30:18.820 would ensure rights

00:30:19.960 and that if states

00:30:20.580 failed to do so

00:30:21.660 the federal government

00:30:22.620 certainly would also

00:30:23.720 step in

00:30:24.320 but I think the reason

00:30:25.440 why there aren't

00:30:26.160 examples of states

00:30:27.320 doing this

00:30:27.800 is an idiosyncratic one

00:30:29.280 of the fact that

00:30:30.120 elections worked

00:30:30.920 differently back then

00:30:31.900 states have a background

00:30:33.440 power under article 2

00:30:35.040 and the 10th amendment

00:30:35.860 to run presidential elections

00:30:38.360 they didn't use that power

00:30:40.280 to police ballot access

00:30:41.680 until about the 1890s

00:30:43.440 and by the 1890s

00:30:45.000 everyone had received

00:30:46.020 amnesty

00:30:46.520 and these issues

00:30:47.100 had become moot

00:30:48.040 I mean it's amazing

00:30:49.920 that Colorado

00:30:50.620 took it this far

00:30:51.580 because to me

00:30:52.680 this seems like

00:30:53.560 there's a decent chance

00:30:55.120 this could be

00:30:55.740 exactly what you thought

00:30:56.720 it could be

00:30:57.720 a unanimous decision

00:30:58.640 or even an 8 to 1

00:30:59.800 well and to underscore that

00:31:02.260 so we played

00:31:03.060 obviously Justice Thomas

00:31:04.140 and Justice Gorsuch

00:31:05.160 are conservatives

00:31:06.360 but let's listen now

00:31:09.080 to Justice Elena Kagan

00:31:10.260 and remember what I said

00:31:11.480 at the outset

00:31:11.980 which is that

00:31:13.340 I believe this

00:31:14.160 had a very good chance

00:31:15.180 of being unanimous

00:31:16.040 I think the Chief Justice

00:31:17.040 desperately wants it

00:31:18.280 to be unanimous

00:31:19.100 and I think the way

00:31:20.340 it gets to be unanimous

00:31:21.600 in particular

00:31:22.180 is the Chief Justice

00:31:23.020 goes to Elena Kagan

00:31:24.240 who I think is

00:31:25.860 the smartest

00:31:26.900 of the liberal justices

00:31:28.200 she was the former 0.58

00:31:29.200 dean of the Harvard Law School

00:31:30.900 she was former 0.50

00:31:31.700 solicitor general

00:31:32.500 of the United States

00:31:33.340 she's very very smart

00:31:34.740 listen to Justice Kagan

00:31:36.260 asking the Colorado

00:31:37.340 lawyer Jason Murray

00:31:38.520 questions

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00:33:19.000 take a listen

00:33:19.840 to this very interesting

00:33:21.320 back and forth

00:33:22.360 between Justice Kagan

00:33:24.180 and the Colorado lawyer

00:33:25.660 Jason Murray

00:33:26.560 Justice Kavanaugh

00:33:27.600 there has to be

00:33:28.340 some process

00:33:28.960 for determining

00:33:29.680 those questions

00:33:30.360 and then the question

00:33:31.300 becomes

00:33:31.880 does anything

00:33:32.740 in the 14th amendment

00:33:33.600 say that only

00:33:34.980 Congress can create

00:33:35.980 that process

00:33:36.580 and section 5

00:33:37.700 very clearly

00:33:38.440 is not an exclusive

00:33:39.760 provision

00:33:40.240 it says

00:33:40.660 Congress shall have

00:33:42.020 power

00:33:42.400 but maybe put

00:33:43.180 most boldly

00:33:44.620 I think that the

00:33:45.340 question that you

00:33:46.140 have to confront

00:33:46.960 is why a single

00:33:48.380 state should decide

00:33:49.520 who gets to be

00:33:50.280 president of the

00:33:51.080 United States

00:33:51.940 in other words

00:33:53.000 you know

00:33:53.260 this question

00:33:54.040 of whether a

00:33:54.680 former president

00:33:55.360 is disqualified

00:33:56.260 for insurrection

00:33:57.220 to be president

00:33:58.940 again

00:33:59.520 is

00:34:00.200 just say it

00:34:01.800 it sounds awfully

00:34:02.580 national

00:34:03.200 to me

00:34:03.920 so whatever

00:34:05.380 means there are

00:34:06.360 to enforce it

00:34:07.140 would suggest

00:34:07.640 that they have

00:34:08.160 to be federal

00:34:09.740 national means

00:34:10.860 why does

00:34:11.460 you know

00:34:12.200 if you weren't

00:34:12.700 from Colorado

00:34:13.340 and you were

00:34:14.080 from Wisconsin

00:34:15.340 or you were

00:34:16.160 from Michigan

00:34:17.300 and it really

00:34:18.480 you know

00:34:18.900 what the Michigan

00:34:19.560 secretary of state

00:34:20.840 did is going

00:34:21.840 to make the

00:34:22.480 difference

00:34:22.960 between

00:34:23.480 you know

00:34:25.080 whether candidate

00:34:25.760 A is elected

00:34:26.480 or candidate

00:34:27.060 B is elected

00:34:27.960 I mean that seems

00:34:28.840 quite extraordinary

00:34:29.600 doesn't it

00:34:30.360 no your honor

00:34:31.620 because ultimately

00:34:32.300 it's this court

00:34:33.300 that's going to

00:34:33.880 decide that question

00:34:34.780 of federal

00:34:35.180 constitutional eligibility

00:34:36.480 and settle the issue

00:34:37.760 for the nation

00:34:38.920 and certainly

00:34:39.740 it's not unusual

00:34:40.460 that questions

00:34:41.520 of national importance

00:34:42.540 come up

00:34:43.300 well I suppose

00:34:43.820 this court

00:34:44.520 would be saying

00:34:45.460 something along

00:34:46.260 the lines of

00:34:46.920 that a state

00:34:47.440 has the power

00:34:48.040 to do it

00:34:48.660 but I guess

00:34:49.480 I was asking you

00:34:50.780 to go a little

00:34:51.440 bit further

00:34:51.920 and saying

00:34:52.400 why should that

00:34:53.060 be the right rule

00:34:53.980 why should a single 0.99

00:34:55.340 state have the ability

00:34:57.120 to make this

00:34:58.260 determination

00:34:58.800 not only

00:35:00.140 for their own

00:35:00.800 citizens

00:35:01.260 but for the rest

00:35:02.180 of the nation

00:35:02.780 because article 2

00:35:04.660 gives them the power

00:35:05.700 to appoint their own

00:35:07.280 electors

00:35:07.720 as they see fit

00:35:08.680 but if they're going

00:35:09.600 to use a federal

00:35:10.720 constitutional qualification

00:35:12.240 as a ballot

00:35:13.620 access determinant

00:35:14.700 then it's creating

00:35:15.880 a federal constitutional

00:35:17.020 question that then

00:35:17.920 this court decides

00:35:19.660 and other courts

00:35:20.620 other states

00:35:21.540 if this court

00:35:22.280 affirms the decision

00:35:23.080 below

00:35:23.480 determining that

00:35:24.420 president trump

00:35:24.980 is ineligible

00:35:25.640 to be president

00:35:26.840 other states

00:35:27.720 would still have to

00:35:28.420 determine what effect

00:35:29.540 that would have

00:35:30.240 on their own

00:35:31.040 state's law

00:35:31.760 and state procedure

00:35:32.600 well I mean

00:35:33.460 if we affirmed

00:35:35.000 I mean senator

00:35:35.740 even she

00:35:36.940 someone you would

00:35:37.960 expect would be

00:35:38.580 on the side

00:35:39.080 of colorado

00:35:39.600 not really

00:35:40.140 having it either

00:35:40.880 yeah but look

00:35:41.980 and as I said

00:35:43.520 I don't think

00:35:44.400 any justices

00:35:45.220 are going to vote

00:35:45.880 with colorado

00:35:46.560 I think we're going

00:35:47.020 to see

00:35:47.420 in all likelihood

00:35:48.640 a unanimous decision

00:35:49.760 and she's focusing

00:35:51.000 on you know

00:35:52.100 earlier we played

00:35:52.940 Ketanji Brown Jackson

00:35:53.920 and she was focusing

00:35:54.760 on the fact

00:35:55.360 that president

00:35:56.420 is not an officer

00:35:57.420 that is specified

00:35:58.220 in the 14th

00:35:59.120 amendment section 3

00:36:00.100 Justice Kagan

00:36:01.320 is pointing out

00:36:02.500 well why does

00:36:03.060 one state

00:36:03.440 get to do this

00:36:04.040 and if one state

00:36:04.600 gets to do it

00:36:05.160 couldn't another state

00:36:05.940 do something different

00:36:06.680 what do you do

00:36:07.240 with that

00:36:07.680 and let's

00:36:08.560 let's do one other clip

00:36:10.520 which emphasizes

00:36:11.940 that point

00:36:12.640 and you remember

00:36:13.280 we did an entire podcast

00:36:14.360 talking about

00:36:15.080 the amicus brief

00:36:16.880 that I filed

00:36:17.560 and this was an argument

00:36:18.360 that I made

00:36:19.640 on behalf of 170

00:36:20.700 members of congress

00:36:21.540 and I think it's

00:36:22.360 a really powerful argument

00:36:23.280 let's listen to

00:36:24.940 Justice Alito

00:36:25.760 asking about that

00:36:27.320 argument in particular

00:36:28.040 thank you

00:36:29.280 thank you counsel

00:36:30.680 Justice Thomas

00:36:31.820 Justice Alito

00:36:33.460 suppose there's a country

00:36:36.400 that proclaims

00:36:38.100 again and again

00:36:38.800 and again

00:36:39.240 that the United States

00:36:40.420 is its biggest enemy

00:36:43.000 and suppose that

00:36:44.300 the president

00:36:44.860 of the United States

00:36:45.920 for diplomatic reasons

00:36:48.180 think that it's

00:36:49.140 in the best interest

00:36:50.300 of the United States

00:36:51.400 to provide funds

00:36:53.700 or release funds

00:36:54.960 so that they can be used

00:36:57.060 by that country

00:36:59.000 could a state

00:37:00.320 determine that

00:37:01.600 that person

00:37:02.500 has given aid

00:37:03.500 and comfort

00:37:03.980 to the enemy

00:37:04.900 and therefore

00:37:06.000 keep that person

00:37:06.920 off the ballot

00:37:07.600 no your honor

00:37:08.880 this court

00:37:09.700 has never interpreted

00:37:10.580 the aid and comfort language

00:37:11.760 which also is present

00:37:13.180 so that's another

00:37:14.860 enormous problem

00:37:16.440 with Colorado's argument

00:37:17.560 which is that

00:37:18.820 if Colorado is able

00:37:20.640 to throw Donald Trump

00:37:21.580 off the ballot

00:37:22.180 you're going to see

00:37:23.260 other states act

00:37:24.020 you're going to see

00:37:24.460 red states

00:37:25.120 throw Joe Biden

00:37:26.000 off the ballot

00:37:26.580 and the hypothetical

00:37:27.960 that Sam Alito asked

00:37:29.800 it's a very good hypothetical

00:37:30.800 he's obviously talking

00:37:32.260 about Iran

00:37:33.520 and Iran is led 0.67

00:37:34.840 by an Ayatollah

00:37:35.700 who chants 0.78

00:37:36.260 death to America

00:37:37.280 who has murdered 0.99

00:37:38.680 hundreds upon hundreds

00:37:40.820 of servicemen and women

00:37:42.000 American servicemen

00:37:42.860 and women

00:37:43.260 who's the biggest funder

00:37:44.340 of state funder

00:37:46.120 of terrorism

00:37:46.640 in the world

00:37:47.280 and Joe Biden

00:37:49.060 has flowed

00:37:49.740 100 billion dollars

00:37:51.280 to the Ayatollah

00:37:52.760 now as Justice Alito

00:37:54.140 pointed out

00:37:54.740 Biden argues

00:37:56.100 it's for diplomatic reasons

00:37:57.340 but under the argument

00:37:59.520 of Colorado

00:38:00.540 some other state

00:38:02.620 could say

00:38:03.080 well no

00:38:03.960 we conclude

00:38:04.500 you're giving aid

00:38:05.060 and comfort

00:38:05.360 to our enemies

00:38:05.940 so Joe Biden

00:38:06.660 is off the ballot

00:38:07.340 and the lawyer's answer

00:38:10.220 was just

00:38:10.580 well no no no

00:38:11.140 that's a different provision

00:38:12.360 so no no

00:38:13.040 we like Joe Biden

00:38:14.560 so you can't do that

00:38:15.440 I think that demonstrates

00:38:17.580 that the theory

00:38:19.720 behind this decision

00:38:21.000 is insupportable

00:38:22.360 and it leads to chaos

00:38:23.660 and it fundamentally

00:38:24.700 leads to judges

00:38:26.620 battling each other

00:38:27.840 to decide elections

00:38:29.920 rather than the voters

00:38:31.300 deciding elections

00:38:32.320 and so I'm going to reiterate

00:38:33.480 I think the chances

00:38:35.140 that the U.S. Supreme Court

00:38:36.940 reverses this decision

00:38:38.400 are 100%

00:38:40.860 and I think the chances

00:38:42.860 are significant

00:38:43.960 more likely than not

00:38:45.800 that the decision

00:38:47.020 will be unanimous

00:38:48.260 and I think we will get it

00:38:49.160 this month

00:38:50.200 the month of February

00:38:51.080 it's going to be very

00:38:52.420 interesting to watch

00:38:53.200 don't forget as always

00:38:54.160 we do this show

00:38:54.820 on Monday

00:38:55.520 Wednesday

00:38:56.140 and Fridays

00:38:56.980 make sure you hit

00:38:58.260 that follow button

00:38:59.460 if you're listening

00:39:00.020 on Apple

00:39:00.500 or subscribe

00:39:01.040 or auto download

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00:39:02.700 wherever you get

00:39:04.220 your podcasts

00:39:04.860 and we do a week

00:39:06.140 in review

00:39:07.300 if anything you missed

00:39:08.500 that we talked about

00:39:09.100 big in the week

00:39:09.560 on Saturdays as well

00:39:10.640 so if you want to get

00:39:11.760 that as well

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00:39:14.880 just hit that button

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00:39:21.080 this is an iHeart podcast

00:39:23.400 guaranteed human

Verdict with Ted Cruz - February 12, 2024

Biden FURIOUS at DOJ, Demands Trump be put in Jail, plus Deep Dive into Colorado Supreme Court Argument

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