Verdict with Ted Cruz - Defending Democracy： Trump WILL Win at the Supreme Court-Here's How & Why

00:00:00.000 This is an iHeart Podcast.

00:00:02.580 Guaranteed human.

00:00:05.580 Senator, Colorado banned Donald Trump from the ballot.

00:00:08.760 A bunch of other states decided they wanted to do the exact same thing.

00:00:12.440 And now this is all going to the Supreme Court.

00:00:14.920 We thought it was appropriate to spend some serious time on the podcast today

00:00:18.600 talking about this issue.

00:00:20.800 Why was Colorado chosen to be the case that would go to the Supreme Court

00:00:25.960 over the other states that had also done the same thing?

00:00:28.820 Because Trump's team, they had options here.

00:00:31.400 Why was it Colorado and what does this mean moving forward?

00:00:35.080 Well, Colorado was really the only option.

00:00:37.500 We have two decisions.

00:00:38.800 We have Colorado and Maine.

00:00:40.380 Colorado was a decision from the state Supreme Court.

00:00:43.160 It was a decision that was 4-3.

00:00:45.740 And a decision from a state Supreme Court can be appealed to the U.S. Supreme Court.

00:00:51.940 What happened in Maine was it was a decision from the Secretary of State.

00:00:56.320 So it was an individual, it was not a court that decided, it was the Secretary of State.

00:01:00.660 Secretary of State is not a lawyer.

00:01:02.800 She is not an elected official by the people.

00:01:06.220 She is elected by the state legislature in Maine.

00:01:09.740 She made a determination.

00:01:11.280 The next step in Maine is for that to be challenged in Maine judicial court, in state court.

00:01:19.560 So you can't appeal from the Maine Secretary of State to the U.S. Supreme Court.

00:01:26.020 So the only option was, in essence, Colorado.

00:01:27.740 Colorado was the only option.

00:01:30.280 Appeals to the Supreme Court, as a general matter, lie either from state Supreme Courts

00:01:35.900 or lie from federal courts of appeal.

00:01:38.500 And so the way the courts work, you have a federal system and you have a state system.

00:01:43.280 Typically, both are set up with trial courts, intermediate appellate courts, and then the

00:01:49.280 Supreme Court.

00:01:50.480 And so in the state, you have typically a trial court, intermediate appellate court, the Supreme

00:01:54.560 Court, and from the state Supreme Court, you can appeal to the U.S. Supreme Court, although

00:01:58.800 you can only appeal a question of federal law.

00:02:02.140 So Colorado can determine Colorado state law, the Supreme Court, and the U.S. Supreme Court

00:02:08.700 doesn't determine Colorado state law.

00:02:10.940 But in this instance, the question is overwhelmingly, it is entirely one of federal law, namely what

00:02:17.480 the 14th Amendment to the Constitution means.

00:02:20.120 So the Supreme Court, to be clear, and this is where it's gotten complicated, when you go

00:02:24.960 before the Supreme Court, in this case with Colorado, the argument that's going to be

00:02:29.000 made, is it going to be about whether there was insurrection and he was in charge of that

00:02:33.660 insurrection, therefore he should be disqualified with the 14th Amendment?

00:02:36.280 Or is this about a state overstepping and saying, we believe that he was a guy that was involved

00:02:43.380 in insurrection, so therefore we can take him off the ballot?

00:02:46.300 Or is it really a combination of both?

00:02:48.440 So it'll be both.

00:02:49.500 And let me break down.

00:02:50.840 Look, on verdict, when the Colorado decision came down, when the main decision came down,

00:02:56.240 we said on this podcast, I predicted the Supreme Court would do exactly what it's done, that

00:03:01.640 the Supreme Court would take the case and that they would take it quickly.

00:03:06.040 That is what has happened.

00:03:07.340 So they've taken it now.

00:03:08.760 They've set the oral argument for February 8th.

00:03:12.400 So that is exceptionally fast.

00:03:14.320 Generally, when the Supreme Court takes a case, you have months to file briefs, and the oral

00:03:19.360 argument is six months down the road.

00:03:21.640 In this instance, the oral argument is a month from now.

00:03:26.780 The parties will file their briefs in the next couple of weeks.

00:03:29.440 So they are furiously writing their briefs right now.

00:03:32.520 And when you say the parties, to be clear, that is the Colorado Attorney General and her

00:03:37.660 staff is going to be filing on their side.

00:03:39.640 And then who's going to be filing this?

00:03:41.160 Is it Trump's personal legal team or is it the campaign?

00:03:43.580 How does that work?

00:03:44.180 So the Colorado Republican Party has filed an appeal.

00:03:47.740 Trump will certainly file, will participate in it.

00:03:52.020 You will have other amici friends of the court.

00:03:55.320 And what I want to do for this podcast is two things.

00:03:58.860 One, I want to tell you what I think the court's going to do and why.

00:04:02.560 But two, then I want to just explain the details of the legal arguments that are playing out,

00:04:08.020 because this is complicated.

00:04:09.280 It's hard to understand.

00:04:10.680 And it's important to understand.

00:04:12.100 I believe the U.S. Supreme Court is going to reverse the Colorado Supreme Court.

00:04:18.160 And I think there is a very good chance that the U.S. Supreme Court will do so unanimously.

00:04:24.780 Really?

00:04:25.340 I think if I were to put the odds of a unanimous decision, I'd say the odds of a unanimous decision

00:04:30.700 are 60 to 70 percent.

00:04:33.520 You say that and there's going to be people that listen, they're going to be shocked.

00:04:36.540 I'm one of them.

00:04:37.500 And here's why.

00:04:38.020 I feel like I've lost some faith in the Supreme Court, specifically over Roe v. Wade and the

00:04:42.740 leaking of that decision, and also the fact that clearly there had to be people that knew

00:04:48.540 who leaked it.

00:04:49.720 And we still haven't found out who the leaker is.

00:04:52.340 There's no indication we ever are going to figure out who the leaker is, which is, I

00:04:55.380 think, also shocking.

00:04:56.780 So when you come back and you say 9-0, tell me why you have that much faith.

00:05:01.820 So I think a number of things.

00:05:03.160 I think, number one, the Chief Justice John Roberts is going to be deeply invested in

00:05:08.360 wanting this to be unanimous, in not having the Supreme Court appear partisan.

00:05:13.860 Every justice is going to be aware this is a decision that's going to be watched by the

00:05:18.680 country and watched by the world.

00:05:21.260 And every justice is aware of not wanting the court to appear like a political or partisan

00:05:27.760 body.

00:05:28.700 John Roberts, whom I know very, very well, as you know, I clerk for Chief Justice William

00:05:34.860 Rehnquist.

00:05:35.420 John Roberts clerked for Chief Justice Rehnquist as well.

00:05:38.120 He's been a friend of mine for 30 years.

00:05:40.480 He cares deeply about the institutional legacy of the court, and he is going to be deeply

00:05:48.180 motivated, a unanimous decision.

00:05:50.180 I think he will believe, and I think all of the justices will believe, is the best for

00:05:55.700 the court and the best for the country.

00:05:57.400 Is that because of precedent moving forward that 10 years, 20 years from now, we could

00:06:01.520 see this happen again, where a political party decides we're just going to try to throw a

00:06:05.500 guy off the ballot?

00:06:06.660 It could be a Democrat next time. 0.98

00:06:08.640 Look, the precedent on this is terrible.

00:06:12.580 And what the Colorado Supreme Court did was lawless.

00:06:15.980 And we'll walk through it that in a minute.

00:06:18.200 But here's what I think will happen.

00:06:20.760 So by the way, to give you a sense of the scope of it, if the U.S. Supreme Court

00:06:25.880 affirmed the Colorado Supreme Court decision, Donald Trump would be struck from the ballot.

00:06:33.620 And if that determination was made, it's not binding on the other states, but the other

00:06:38.380 states within very short order, Trump would be removed from the ballot in all 50 states.

00:06:44.000 So if the Supreme Court decides...

00:06:45.180 All 50. 0.97

00:06:45.580 So not just Democrat states where there's Democrat attorney general there.

00:06:48.980 You're saying all over the country.

00:06:50.220 The only ground on which the U.S. Supreme Court could affirm the Colorado Supreme Court

00:06:57.160 is to conclude that Trump is barred from running for office because of the 14th Amendment,

00:07:03.800 Section 3 of the Constitution.

00:07:05.240 If the Supreme Court concludes that, every state will remove him from the ballot.

00:07:09.780 And you will have courts order every state to do that.

00:07:12.380 Wow.

00:07:12.580 So that would be a nationwide decision.

00:07:15.200 Now, it would also be a decision that would be so profoundly anti-democratic.

00:07:21.560 And I think it would rip this country apart.

00:07:25.420 And the court doesn't want to do that.

00:07:28.420 You know, there's a rich irony.

00:07:31.380 Democrats, what they tell you, what they accuse their opponents of doing,

00:07:36.960 almost inevitably is what, in fact, they are doing.

00:07:40.220 Every Democrat right now is beating their chest, saying we must save democracy.

00:07:44.840 Joe Biden just gave a ludicrously self-righteous speech saying we must save democracy,

00:07:50.480 by which he means elect Democrats.

00:07:52.240 And nothing saves democracy or defends democracy like throwing your opponent off the ballot

00:07:59.100 to stop the voters from voting for him.

00:08:02.140 Understand why the Democrats are doing this.

00:08:04.580 They're afraid the voters will vote for Donald Trump if he's on the ballot.

00:08:08.160 And so they're trying to prevent democracy.

00:08:11.620 I don't think the Supreme Court is going to have any interest in playing a part in preventing democracy,

00:08:18.560 in stifling the right of the voters to decide.

00:08:22.740 And here's how I actually think it will play out.

00:08:26.320 I think John Roberts in particular is going to go to Elena Kagan.

00:08:30.440 Elena Kagan is the smartest of the liberal justices. 1.00

00:08:33.480 She was the dean of the Harvard Law School.

00:08:36.960 She was the United States Solicitor General.

00:08:38.720 She is a very, very smart, talented lawyer. 0.78

00:08:42.700 And I think Roberts is going to try very hard to make the personal case to each of the justices

00:08:50.000 that the court needs to be united.

00:08:52.480 By the way, that's not unprecedented.

00:08:54.320 If you look at Brown v. Board of Education, which was the case in 1954 that struck down segregated schools,

00:09:03.120 that decision was unanimous.

00:09:05.600 Earl Warren was the chief justice.

00:09:07.180 He understood that that decision was a big, big deal.

00:09:11.620 Segregated schools had been allowed under a decision called Plessy v. Ferguson, a terrible decision.

00:09:16.920 And Brown overruled Plessy.

00:09:20.440 And Earl Warren thought it was critically important that the court speak unanimously,

00:09:25.820 that there be no division on a question that would impact every American.

00:09:31.260 I think this is of a similar magnitude.

00:09:33.860 And given the political context, I think every justice will feel an urge

00:09:39.380 to have the court not appear to be a political branch.

00:09:44.840 You mentioned, by the way, in a previous verdict, that the justices don't necessarily talk a lot to each other.

00:09:51.820 Almost never.

00:09:52.460 They operate as almost like independent law firms, as you described it.

00:09:56.800 This seems different in this scenario where you're saying there will be almost, in essence,

00:10:02.220 like a lobbying for the sanctity of the court, in essence, and for the country.

00:10:07.580 Like, hey, we need to all get together on this one.

00:10:10.560 This is different.

00:10:11.720 And you believe that's probably how it's going to play out.

00:10:13.740 And that doesn't happen very often, correct?

00:10:15.960 It happens very, very rarely.

00:10:19.100 In this instance, I think it was a no-brainer.

00:10:21.480 The court would take it.

00:10:22.460 It didn't surprise me at all.

00:10:24.260 And by the way, it was going to be argued on February 8th.

00:10:27.240 We will get a decision, I think, by the middle of February.

00:10:29.600 We'll have a decision within a week or two or three.

00:10:33.640 Who decides at the Supreme Court to take a case quickly and walk us just through that?

00:10:39.360 Does that have to be a lot of justices? 0.98

00:10:41.100 So what was filed is what's called a petition for writ of certiorari.

00:10:46.140 That is a request for the court to hear an appeal.

00:10:49.060 The Supreme Court is unusual in that many courts of appeals, most courts of appeals, you have an appeal by right.

00:10:54.760 In other words, if you file an appeal, the court has to take it.

00:10:57.600 If you have a case in federal district court, you're convicted of a crime or you have a civil lawsuit, you sue me and you lose.

00:11:05.400 You can file an appeal as of right.

00:11:07.840 And if you're in federal district court here, you would appeal to the Fifth Circuit Court of Appeals.

00:11:12.220 And the Fifth Circuit will take that appeal.

00:11:14.320 It has no choice.

00:11:15.000 The Supreme Court has what's called a discretionary jurisdiction, which means it chooses which cases to take.

00:11:21.980 In a typical year, there are about 8,000 cert petitions is what they're called.

00:11:27.740 Petitions for certiorari.

00:11:28.700 Everyone calls them cert petitions.

00:11:30.280 There are about 8,000.

00:11:31.920 The court typically takes about 80.

00:11:34.880 So it takes about 1% of the appeals that says yes.

00:11:37.900 It takes four justices to vote to grant cert.

00:11:44.660 I believe this case was a no-brainer.

00:11:47.060 I think all nine of them agreed we needed to take it.

00:11:48.920 I don't think they hesitated on, of course, whether or not one of the two major party nominees is excluded from the ballots and the voters are prevented from voting.

00:12:03.440 Under the Constitution, it is difficult to imagine a more consequential question and a question that demands the Supreme Court to get it.

00:12:12.220 Look, I don't think the court was eager to get into this issue at all.

00:12:14.800 If Colorado hadn't decided this, they would have touched it.

00:12:17.780 The justices are not looking to opine on this.

00:12:20.260 But once Colorado ruled, they had no choice and they had no choice but to do it quickly.

00:12:25.780 All right.

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00:13:45.300 What was the mentality of the court when you were part of the Bush team and Bush v. Gore

00:13:50.380 when they took that pretty quickly as well?

00:13:53.520 That was really fast.

00:13:55.620 Seems a lot like this timeline.

00:13:57.640 They weren't eager to get involved in that either, if I remember correctly.

00:14:01.800 Walk us through that comparison.

00:14:03.740 Yeah, so Bush v. Gore.

00:14:05.020 I was part of the legal team representing George W. Bush in the year 2000.

00:14:10.300 That entire legal proceeding took 36 days.

00:14:13.560 And I was down in Florida, in Tallahassee, as a baby lawyer.

00:14:17.380 I was, you know, 29 years old, but part of the legal team.

00:14:21.040 One of the most junior members of the legal team, but part of the legal team litigating.

00:14:25.680 In that particular case, we went to the U.S. Supreme Court twice.

00:14:29.500 And in those 36 days, the Supreme Court heard two appeals.

00:14:32.520 Those two appeals were briefed.

00:14:35.500 They heard oral arguments and they issued decisions.

00:14:37.680 And both of those played out within the 36 days.

00:14:41.420 So the court can move exceptionally quickly if there is an urgency to do.

00:14:46.260 So it was interesting in Bush v. Gore.

00:14:48.820 There was a divide of opinion among the lawyers representing Bush as to whether the court would take the case.

00:14:54.440 Really?

00:14:54.620 And the divide, by and large, was the divide between those who had clerked at the court and those who had not clerked at the court.

00:15:02.900 Almost without exception, those of us who had been law clerks at the Supreme Court believed the court would take the case.

00:15:08.320 That even though in 2000 the court was not eager to get in the presidential race, it required, there was a responsibility for the court to resolve it.

00:15:17.680 I think that's exactly what they feel here.

00:15:19.940 Now, given that, if it's going to be a unanimous decision, and as I said, I think it is more likely than not that it is,

00:15:28.360 then the court is not going to rule, I believe, that there was not an insurrection.

00:15:35.360 Like, that's one ground you could reverse is say there was not an insurrection.

00:15:40.060 Why is that going to be the case?

00:15:41.380 Look, I don't think there was an insurrection as a matter of law, and we'll talk about that in a second.

00:15:46.000 But I don't think the court will rule that.

00:15:47.980 Why?

00:15:48.380 Because I don't think Kagan or Sotomayor or Kertanji Brown-Jackson would rule there was not an insurrection.

00:15:55.180 So if it's going to be unanimous, they're going to have to find a way to resolve it that is narrow,

00:16:01.400 but that reverses it and brings everyone together.

00:16:05.360 And so here's the basis I think they will resolve it.

00:16:08.600 I think they will resolve whether or not there was an insurrection.

00:16:14.860 I'm willing to bet right now there will be a sentence in the opinion that says,

00:16:19.260 we express no opinion on whether or not an insurrection occurred on January 6th.

00:16:25.260 So they're going to say, that's not what we're here to do.

00:16:28.120 That's not what we're deciding.

00:16:29.520 We're not part of that debate.

00:16:30.940 I think what they will say instead is, however, the determination of that matter cannot be made

00:16:40.620 without evidence, without due process, without a judicial proceeding.

00:16:46.140 And in particular, the ground that I think the court will go to.

00:16:50.620 So there's a federal statute.

00:16:53.000 So here's what 18 U.S.C.

00:16:54.540 Section 2383 says.

00:16:56.520 It's entitled Rebellion or Insurrection.

00:16:59.240 Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection

00:17:03.700 against the authority of the United States or the laws thereof,

00:17:07.680 or gives aid or comfort thereto,

00:17:09.960 shall be fined under this title or imprisoned not more than 10 years or both,

00:17:14.960 and shall be incapable of holding any office under the United States.

00:17:18.740 Now, notice the penalty, incapable of holding any office.

00:17:22.540 This is a statute that is codifying the Section 3 of the 14th Amendment.

00:17:30.700 And it is an insurrection.

00:17:33.140 Now, interestingly enough, Donald Trump, it seems, has been indicted all over the place

00:17:37.920 by a bunch of very partisan, overzealous prosecutors who hate the man.

00:17:43.920 And you know what he hasn't been indicted for anywhere?

00:17:47.740 Insurrection.

00:17:49.420 Jack Smith, who is Javert, to Trump as Jean Valjean.

00:17:56.440 Jack Smith hates Trump and wants to get him no matter what.

00:18:00.500 He wants to put him in prison for, like, a life sentence.

00:18:02.640 And Jack Smith is in D.C. with a very liberal judge.

00:18:05.800 He's got a D.C. jury pool that is 94% Democrat.

00:18:09.140 He's got the most favorable environment in the world.

00:18:11.420 And you know what he hasn't done?

00:18:13.720 Indicted Trump for insurrection.

00:18:15.340 And the only reason he hasn't.

00:18:16.260 I was going to say, so the question is, why?

00:18:18.080 Why is he and every other one not done it?

00:18:19.900 Because there's no remote evidence that would prove that Trump had engaged in insurrection.

00:18:28.600 Donald Trump sent some tweets and stood up and gave a speech in which he told people, be peaceable.

00:18:34.840 Yeah, go peacefully.

00:18:35.740 Be peaceful.

00:18:36.220 You cannot prove as a matter of law that telling people to be peaceful is engaged in insurrection.

00:18:44.620 So understand, when Democrats go on TV and say it's an insurrection, it's an insurrection.

00:18:49.100 When reporters go on TV and say that, they mean that as political rhetoric.

00:18:54.320 Insurrection is a legal term.

00:18:56.720 And there's a reason no one has charged him with it because you couldn't pass the laugh test.

00:19:02.560 So what I think the Supreme Court would say is, if you want to bar Trump from being on the ballot, charge him and convict him with insurrection.

00:19:11.220 Jack Smith brings an indictment.

00:19:12.680 They get a conviction.

00:19:14.120 That conviction is upheld on appeal.

00:19:15.920 Then, look.

00:19:17.680 Then that's a different argument, right?

00:19:19.480 He's been convicted of it.

00:19:20.620 Then it's a slam dunk.

00:19:21.880 If Trump were convicted of insurrection, if anyone were convicted of insurrection, they would be barred from being on the ballot.

00:19:33.120 When you look at Jack Smith, and I got to go back to this because you talk about these guys and all of the different things they've gone after Trump.

00:19:39.800 And to remind people that the entire country, not one of these overzealous prosecutors, has gone after Trump for insurrection.

00:19:47.440 Do you think Jack Smith probably sat in a room with a bunch of Democrats and said, is there any way we could get him?

00:19:53.280 Is it possible?

00:19:54.180 If we were going to try the case, how would we try the case?

00:19:57.180 And then every time they went back to Donald Trump's own words of him saying, go peacefully, and the tweets of him saying, go peacefully, have a peaceful day.

00:20:04.060 And the fact that he also said he offered up the National Guard, which Democrats, Pelosi said no to.

00:20:10.240 So if you're trying to have an insurrection, would you try to do that as well?

00:20:13.220 And understand, look, Section 3 of the 14th Amendment was passed in the wake of the Civil War.

00:20:18.300 It was designed to stop people who had fought for the Confederacy from serving in Congress, from serving in elected office, from serving in government.

00:20:29.780 If you were – so understand, when they were writing insurrection, they were thinking about the Civil War.

00:20:36.820 Now, and we can in a minute go into – and we may even do an entire podcast, a separate podcast on some of the judicial precedent on a post-Civil War.

00:20:50.540 But a potential response to what I just said, that the court would say if you want to bar Trump from the ballot, prosecute him and convict him of insurrection.

00:20:59.440 A potential response was, well, post-Civil War, the Civil War officers who were banned, they were not always barred, prosecuted for insurrection.

00:21:10.340 That's true, but I will say this, and it varied.

00:21:13.420 But there was zero dispute that an insurrection had occurred.

00:21:21.060 The predicate – you want to know what an insurrection is?

00:21:24.140 Well, the Civil War lasted four years, and 600,000 Americans were killed.

00:21:29.440 That's an insurrection.

00:21:30.520 Yeah.

00:21:31.060 Like, they brought out cannons, they shot and killed each other and had a war for four years, and it's the bloodiest war in American history.

00:21:38.100 That's what they were talking about when they said insurrection.

00:21:42.040 Not a riot where some individuals committed individual acts of violence for which they were prosecuted and are serving jail terms.

00:21:50.780 That is – but, like, the analogy is to the Civil War, and it's why no prosecutor can bring this case.

00:21:57.240 All right, let me walk through some of the arguments that are at play.

00:22:02.080 So here's what Trump argues to the Supreme Court in his cert petition.

00:22:05.520 First, he argued that the Supreme Court took Congress's authority to resolve questions of presidential eligibility, that it is a political matter to determine rather than a legal question whether he is eligible under the 14th Amendment.

00:22:23.440 And actually, in making this argument, he mentions President Obama and disputes about whether he was eligible to be president.

00:22:29.680 He mentions Senator McCain when he ran for president, disputes about whether he was eligible.

00:22:34.160 And he mentions me, actually.

00:22:35.340 And there were disputes.

00:22:36.260 There were challenges.

00:22:37.320 When I was running for president, there were legal challenges that I was not a natural-born citizen.

00:22:43.200 I was, in fact, a natural-born citizen because what the Constitution requires is that you be natural-born.

00:22:50.240 I was a U.S. citizen.

00:22:51.420 Even though I was born in Canada, my mother was a U.S. citizen at the time of my birth, and so I was a citizen by birth.

00:22:57.240 The process of being born is what made me an American citizen.

00:23:01.080 I was never naturalized.

00:23:02.420 But there were a bunch of lawsuits that were filed against me when I ran.

00:23:05.820 Yeah.

00:23:05.940 We defeated them all, and the courts threw them out, and we defeated them all.

00:23:10.460 And what Trump said is, look, if there's a dispute, that's ultimately a question for Congress to decide, not the court.

00:23:16.480 So that's argument number one.

00:23:17.900 That's a real argument.

00:23:19.760 A second argument is that Section 3 does not reply to the office of the president.

00:23:27.260 This is a real argument, but I'd be surprised if the Supreme Court agrees with this one.

00:23:31.660 But let me give you what his basis is.

00:23:33.300 Trump argues it based on three different grounds, that if you look at the phrase officer of the United States,

00:23:43.280 it appears in three constitutional provisions other than Section 3 of the 14th Amendment.

00:23:50.380 It appears in the appointments clause, which requires the president to appoint ambassadors, public ministers, and consuls,

00:23:58.000 justices of the Supreme Court, and all other officers of the United States.

00:24:03.300 And he points out, well, the president obviously can't appoint himself, so officers are something different than the president.

00:24:11.520 Likewise, the commissions clause requires the president to commission all the officers of the United States.

00:24:19.800 Again, the president doesn't commission himself.

00:24:22.260 So the argument is officers of the United States are different from the president, which is a constitutional creation.

00:24:30.520 And then also the impeachment clause, the clause that verdict started with.

00:24:35.620 The impeachment clause says, quote, the president, vice president, and all civil officers of the United States

00:24:45.060 shall be removed from office on impeachment for and conviction of treason, bribery, other high crimes and misdemeanors.

00:24:50.580 And so his argument is, if the president was an officer of the United States, there would be no need to specify the president, vice president, and all civil officers.

00:25:02.100 So that's the argument.

00:25:03.840 As a textual matter, it's not a crazy argument, but I would be surprised if that persuades the court.

00:25:09.960 The third argument he makes is that as president, he took a different oath than officers of the United States, and that demonstrates he's not an officer.

00:25:23.220 In particular, Section 3 bars from office those who have taken an oath to, quote, support the Constitution.

00:25:30.180 And the president's oath of office is specified in the text of the Constitution, and it is not, in fact, an oath to support the Constitution.

00:25:39.720 It is an oath to, quote, preserve, protect, and defend the Constitution.

00:25:46.660 I'm not terribly persuaded by that argument.

00:25:49.340 It is technically right that the word support is not there, but I would.

00:25:53.960 That would be one of the weaker arguments that they would be making of their options.

00:25:57.360 Yeah, I would be surprised if the court grounded it on supports different from preserve, protect, and defend.

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00:26:36.000 By the way, when you go in there as you're laying out these arguments from his team, in the oral arguments, would you make all of these?

00:26:45.160 Or do you choose the one you want to make that you think is the one that they're willing to probably side with the most?

00:26:50.920 Do you pick your best?

00:26:51.940 Or do you make all of these saying, here are the reasons why we think this is wrong, and these are the different options?

00:26:57.500 How does that work in the oral arguments?

00:26:59.060 So, it varies strategically.

00:27:01.860 Typically, the way people will do it is they will make – they'll make all the arguments they have reasonably available to them in the briefs.

00:27:09.120 The briefs are written documents.

00:27:12.320 They are typically in the U.S. Supreme Court.

00:27:14.280 A Merit's brief is typically 50 pages long.

00:27:17.100 And it's a booklet.

00:27:18.100 It's a booklet that is, oh, about three-fourths the size of a sheet of notebook paper.

00:27:24.620 And so it's a bound little booklet, 50 pages long.

00:27:29.720 And in your written briefs, I would expect them to make all of these arguments.

00:27:35.740 In oral argument, a good oral advocate is going to prioritize.

00:27:39.940 Now, is that the same for people that don't know how it works?

00:27:42.160 Are those books that you're talking about, is that the same book that you have for every justice?

00:27:48.780 Yes.

00:27:48.960 Or can you taper them to people differently?

00:27:52.100 You file – each side files – the petitioner will file an opening brief that is 50 pages.

00:27:59.740 The respondent will file a response brief that is 50 pages.

00:28:03.820 And then the petitioner gets to file a reply.

00:28:06.240 So there will be three briefs filed by the parties, two by the petitioner, one by the respondent.

00:28:11.360 And then amici.

00:28:13.160 Amici is Latin for amicus curiae, which is friend of the court.

00:28:17.340 And there will be other parties that are amici that file briefs urging the court to do something.

00:28:24.460 But an oral argument, a good oral advocate will prioritize the best arguments.

00:28:31.160 And one of the things – what really differentiates the best oral advocates from ones that are merely okay are their ability to read the court and pivot.

00:28:43.380 So when I argue nine cases at the court, what I very much tried to do is watch and read the justices.

00:28:50.920 And if there was an argument that I was making, I would have thought through, what are my best arguments?

00:28:55.420 And so I'd come in with a pretty clear idea, all right, here's the ground on which I think I can win for my client.

00:29:01.060 But in the course of the questioning, if I see an opening for a justice whose vote I need to get, and maybe I think arguments one and two are really good, and one justice likes argument three,

00:29:13.680 a good oral advocate will pivot based on where the justices are and read the justices.

00:29:20.640 And by the way, I would expect, because I believe John Roberts passionately wants this to be unanimous, I would advise Trump's attorney to listen to John Roberts very carefully.

00:29:34.680 So before John Roberts was chief justice, he was a Supreme Court advocate, and he was, I think, the finest Supreme Court advocate of his generation.

00:29:43.800 When you say advocate, what does that mean?

00:29:45.480 A lawyer. He argued in front of the Supreme Court.

00:29:47.200 So he was, if you wanted to go to the Supreme Court and have a good chance of winning, this is a guy you'd want to be making the arguments on your behalf.

00:29:54.180 That's your definition of an advocate.

00:29:55.500 So John Roberts was, he was the deputy solicitor general, the principal deputy solicitor general under George Herbert Walker Bush.

00:30:04.040 So Bush 41, the first Bush.

00:30:06.180 He was Ken Starr's deputy.

00:30:07.700 So Ken was the solicitor general.

00:30:09.620 John Roberts was the deputy solicitor general, principal deputy.

00:30:12.320 And from there, he went to Hogan and Hartson, which is a D.C. law firm, and he led their Supreme Court practice.

00:30:19.680 And in Bush versus Gore, John was part of our legal team.

00:30:21.960 I recruited John.

00:30:22.820 I called John on the phone from Tallahassee and said, John, we need you down here.

00:30:28.220 And he flew down and joined our legal team.

00:30:29.880 And so Bush versus Gore, I litigated it alongside John, worked on the briefs with him.

00:30:35.400 Ted Olson did the oral arguments.

00:30:37.520 But John was part of the mooting team that was asking Ted the questions and preparing Ted for the arguments.

00:30:44.060 When I was clerking for Chief Justice Rehnquist, my co-clerks and I, we asked the chief, we said, all right, you see lots of lawyers.

00:30:53.320 Who's the best Supreme Court advocate in the country?

00:30:56.460 And Rehnquist laughed and he said, you know, I think I could get a majority of my colleagues to say John Roberts is the best Supreme Court advocate alive.

00:31:03.660 Wow.

00:31:04.180 And I agree with that.

00:31:05.200 I've seen John argue multiple cases, and I think it was hands down.

00:31:07.880 Like he was just – when I argued cases, I tried to emulate John Roberts' argument style because he was so good.

00:31:18.300 And so when I was arguing cases – now, look, when I started arguing cases when Rehnquist was still chief, and then I argued a number of cases with Roberts' chief.

00:31:27.160 And I'll tell you what I did when I was arguing with Roberts' chief is I'm looking at the best Supreme Court advocate alive who happens to be sitting in the center seat.

00:31:36.620 And part of what made him so good is he was more skilled than anyone else at reading the other justices, and the swing justices in particular.

00:31:45.220 Back when it was Kennedy and O'Connor who were the swing justices, John Roberts was excellent at it.

00:31:50.480 So in the argument, I would pay very close attention to Chief Justice Roberts because if he laid out an argument, he's telling you I think this is the theory that gets Kennedy and O'Connor.

00:32:04.100 And so I would pivot very much, and my advice for Trump's lawyer is pay really close attention to what Roberts is saying because he's not just asking for himself.

00:32:15.980 He's asking on the theory he thinks is most likely to unify the court.

00:32:20.740 And get you to that 9-0 unanimous decision.

00:32:23.200 How long are they going to have to argue this?

00:32:25.960 I mean when you talk about oral arguments, is it hours?

00:32:29.280 Is it 90 minutes?

00:32:30.360 What are we talking about here?

00:32:31.420 Normally an argument is an hour, so normally each side has 30 minutes.

00:32:35.160 They can't extend it.

00:32:36.300 They might extend it in this instance.

00:32:37.960 I don't know, but normally an argument is an hour.

00:32:41.320 And the bulk of the argument, by the way, is questioning from the justices.

00:32:44.960 So you get up and the justices are asking you questions, and that – it's a back and forth.

00:32:50.700 It's not a monologue.

00:32:52.120 So is there even an opening statement?

00:32:53.740 There is – there didn't used to be.

00:32:56.520 So the old way they did Supreme Court arguments was you would start off, you'd stand up, and you'd say, Mr. Chief Justice, and may it please the court.

00:33:04.660 And every argument begins with that.

00:33:05.920 And you would sometimes get less than a sentence into your argument, and a justice would jump in and pepper you with questions.

00:33:17.700 And what made it invigorating is you'd have a question here, a question here, a question here, and it was just nonstop.

00:33:23.760 And you had to be quick and fast and anticipate justices who disagreed with your position.

00:33:29.820 They're trying to ask you questions to expose the weakness of your case, and you had to anticipate it.

00:33:35.460 They have – post-COVID, they regimented it now.

00:33:39.880 And I really don't like how they do it now, but they now have a period of questioning from each justice.

00:33:45.980 And so it's a little – it's not the wild free-for-all.

00:33:48.520 Well, it's almost like Congress where you have five minutes or you have three minutes, and then you go in this order, whereas before, it could be a conservative justice that asks you a question, followed up by a liberal justice that asks you a question, followed up by another justice that asks you a question.

00:34:00.080 It was –

00:34:00.900 It was controlled chaos.

00:34:02.180 It was – yes.

00:34:03.580 But it is more regimented now.

00:34:06.620 But I would say I would expect the chief justice's questions to lay out in the questions what he thinks is the best theory to bring the court together.

00:34:16.500 All right, let me give you the rest of Trump's arguments.

00:34:18.520 Fourth argument he makes is that Trump did not participate in an insurrection because an insurrection, as understood at the time of passage of the 14th Amendment, means the taking up of arms and waging war upon the United States.

00:34:32.320 Now, I think that's absolutely correct.

00:34:34.660 I think it's ludicrous to say that Trump engaged in an insurrection based on the facts.

00:34:39.840 I also do not believe the Supreme Court will conclude that because you can't get nine justices for that.

00:34:45.520 And I think they will want unanimity.

00:34:48.920 And so they'll say, look, my guess is we might get a concurrence from one of the more conservative justices saying this clearly was not an insurrection.

00:34:57.640 But we might not.

00:35:00.240 And by the way, look, I said that there's a 60 to 70 percent chance of it being unanimous.

00:35:05.480 That means there's a 40 to 30 percent – a 30 to 40 percent chance that the liberal justices just hate Trump so much they can't bring themselves to do it.

00:35:14.180 And what would that decision look like?

00:35:15.500 I mean, would it be one or two that say, hey, just for the principle and said, no, no, we're going to go 7-2 here or even go 6-3?

00:35:22.880 Look, 6-3 would be heartbreaking.

00:35:26.640 It would do real damage to the court.

00:35:28.680 To the court and to the country.

00:35:30.440 If it just broke on partisan lines, if the three liberal justices dissented and the six more conservative justices were in the majority, I think that would be terrible for the court.

00:35:42.020 And it shows how partisan.

00:35:43.260 I really hope it's not.

00:35:46.560 So the fifth argument that Trump made is that the electors' clause requires states to appoint presidential electors, quote, in such matter as the legislature thereof may direct.

00:36:01.320 In other words, the courts can't intervene in that.

00:36:03.960 The sixth argument is that Section 3 cannot be used to deny a candidate access to the ballot.

00:36:13.880 It can only be used instead to prevent someone from holding office.

00:36:18.420 So all of those are arguments.

00:36:22.720 As I said, and it's worth, by the way, the argument that I think will fly is the argument that it was not adequately determined that Trump had participated in an insurrection.

00:36:43.400 Not that there wasn't an insurrection, but that the means of ascertaining that was.

00:36:50.140 And that goes back to Jack Smith and what you're talking about.

00:36:52.040 He was never charged, much less convicted.

00:36:54.780 And it didn't work its way through the court system. 0.53

00:36:57.340 And so if you believe that Donald Trump, in fact, was a part of an insurrection, then charge him with it.

00:37:02.840 Get him convicted of it.

00:37:03.980 Then you have that different argument.

00:37:05.260 It goes back to what you were saying at the very beginning.

00:37:06.820 Yes, and I will say, look, one of the questions that will be front and center litigated is whether Section 3 is self-executing.

00:37:17.880 Self-executing means a provision of the Constitution that has force of law that doesn't need Congress to pass legislation to enforce it.

00:37:26.500 And that will be actively disputed.

00:37:30.740 And in the Colorado Supreme Court, one of the justices, Justice Carlos Samor, dissented on this point.

00:37:40.240 And what he said is that the majority opinion of Colorado stripped President Trump of due process, of the due process of law.

00:37:47.940 And he says Section 3 didn't specify the procedures that have to be followed to be determined whether someone is engaged in insurrection.

00:37:56.320 All the Democrats just absurd.

00:37:57.760 It's insurrection. 0.74

00:37:58.420 It's insurrection.

00:37:59.360 Yeah.

00:37:59.540 But that hasn't been determined as a legal matter.

00:38:03.300 And so Justice Samor concluded that Section 3 is not self-executing and requires legislation for enforcement.

00:38:12.700 And he argued that the lower courts proceeding in Colorado lacked basic discovery, lacked the ability to subpoena documents, lacked the ability to compel witnesses, lacked any time frame to investigate or develop defenses.

00:38:29.540 And lacked the opportunity for a fair trial.

00:38:32.180 And he pointed out that, in his view, Section 3 cannot be self-executing because it doesn't provide any procedural guidance.

00:38:45.600 For example, Section 3 of the 14th Amendment is completely silent on whether a jury has to be impaneled or not.

00:38:52.060 Can a judge decide it or does it have to be a jury or a peer as well?

00:38:55.760 Section 3 doesn't say it.

00:38:57.060 What's the burden of proof?

00:38:58.060 What's the burden of proof?

00:38:59.160 Is it beyond a reasonable doubt?

00:39:01.420 Is it clear and convincing evidence?

00:39:03.300 Is it simply a preponderance of the evidence?

00:39:05.140 Those are very different burdens of proof.

00:39:08.340 Constitution is silence on that.

00:39:09.820 What's the standard of review?

00:39:11.160 What's the standard of discovery?

00:39:12.360 What's the standard of evidence?

00:39:13.480 Is it a civil determination or criminal determination?

00:39:16.720 None of that is there.

00:39:18.000 And so what he argues is that Congress could pass legislation to adjudicate that.

00:39:27.440 I'm not entirely persuaded on that.

00:39:29.700 What I would say is Congress has passed legislation when it set up a criminal statute for insurrection.

00:39:35.300 That there is a mechanism and it is a criminal trial.

00:39:39.800 And charge him.

00:39:40.700 And charge him.

00:39:41.320 And so you go back to the very beginning of what you said.

00:39:44.900 No one has had the Coney's to charge him because they know they would lose.

00:39:48.840 You could not prove the case in court, which is why instead you have partisan judges or a partisan secretary of state just asserting it because they believe it is a political matter.

00:40:00.560 Now, on our next podcast, what I want to walk into and go into is there is some history and some Supreme Court history on the 14th Amendment in Section 3 right after the Civil War and Jefferson Davis in particular.

00:40:15.940 So I'm going to give a tease for our next podcast.

00:40:19.260 I'm going to walk through what happened with Jefferson Davis under under the 14th Amendment Section 3.

00:40:25.680 But let's be clear, Jefferson Davis, by any measure, engaged in dramatically different conduct, leading the Confederacy and waging war with the United States for four years is very different from giving a speech telling people to be peaceful.

00:40:41.280 And so but there is complicated precedent post-Civil War in the next podcast.

00:40:49.640 We'll dive into that.

00:40:50.420 It's going to be very fun.

00:40:51.860 This is why I love doing this show.

00:40:53.780 I also will get your political predictions.

00:40:56.120 I do want to end with one last thing, just so people have that timeline you mentioned earlier.

00:41:01.020 Supreme Court's going to hear this when and when do you think we'll have a decision from the Supreme Court?

00:41:05.360 February 8th is when they hear the oral argument.

00:41:08.720 I think we will get a decision quickly.

00:41:10.780 I think it's possible it could be within days.

00:41:14.280 I think it will be at the very latest by March 5th, which is when the Colorado primary is.

00:41:21.180 And my guess is it'll be a week or two.

00:41:23.760 That's just it'll be as quick as they can write the opinions.

00:41:26.600 But I think they will feel an urge to to move quickly.

00:41:30.220 It's going to be incredible.

00:41:31.420 That's that's phenomenal.

00:41:32.480 We're going to cover it all.

00:41:33.480 That's what we do here.

00:41:34.440 Quickly, let me just say this.

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00:43:27.640 Don't forget to hit that subscribe, follow, or auto-download button.

00:43:31.280 It's a new year, and we thank you guys for spending time with us.

00:43:34.100 Make sure you share this podcast with your family and friends.

00:43:36.960 We also do this one on video.

00:43:38.860 For many of you who may be listening to audio only, you can grab it on YouTube.

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00:43:49.100 Happy New Year from all of us here, and we'll see you back here in a couple of days for basically part two of what's going to unfold here with the Supreme Court.

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Verdict with Ted Cruz - January 08, 2024

Defending Democracy： Trump WILL Win at the Supreme Court-Here's How & Why

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