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


Episode Stats

Length

39 minutes

Words per Minute

173.24033

Word Count

6,830

Sentence Count

156

Misogynist Sentences

5

Hate Speech Sentences

4


Summary


Transcript

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,
00:01:17.660 Damn it, if only Merrick Garland had gone sooner,
00:01:21.180 we could have locked Donald Trump up in jail.
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
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,
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
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
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00:14:42.780 their businesses
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00:14:59.340 all at different stages
00:15:00.640 of their journey
00:15:01.500 so if you're looking
00:15:02.820 to connect
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
00:20:24.160 before I do that
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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
00:28:02.740 argument is stupid
00:28:03.480 like it's just
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
00:28:20.200 I hate him so much
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
00:31:29.200 dean of the Harvard Law School
00:31:30.900 she was former
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
00:31:39.020 if you're like me
00:31:40.300 you probably start off
00:31:41.120 your morning
00:31:41.540 with a really good
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00:31:47.700 I start on the radio
00:31:48.620 at 7 a.m.
00:31:49.580 I have got to be awake
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00:31:54.300 and if I don't have
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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
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
00:37:34.840 by an Ayatollah
00:37:35.700 who chants
00:37:36.260 death to America
00:37:37.280 who has murdered
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
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00:39:06.140 in review
00:39:07.300 if anything you missed
00:39:08.500 that we talked about
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00:39:10.640 so if you want to get
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00:39:18.860 will see you back here
00:39:19.720 on Wednesday morning
00:39:21.080 this is an iHeart podcast
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