00:03:02.600And so they've got a problem, because if you're a Democrat and you want the Democrats to win, most Democrats that break into double digits in the IQ say Kamala is a really bad candidate.
00:03:17.160Like, wow, we don't want Kamala to be the candidate.
00:03:20.540But and remind remind people she was one of the first people to drop out in when she ran for president because she didn't connect with anyone.
00:03:28.800Yeah, she got she couldn't figure out who she was.
00:03:35.760Her approval ratings are worse than Joe Biden's, which is hard because his approval ratings are terrible.
00:03:41.380And look, I'm going to try to frame this politely.
00:03:46.580I think it is a reasonable prediction that Kamala will not be winning any Nobel Prizes in the future.
00:03:54.060I think that's a good way of putting it.
00:03:56.140And I think the Democratic Party knows that that's the reason why they're trying to figure out, OK, if it isn't Joe Biden, who do we get and how do we offload Kamala?
00:04:05.120Well, then you'd have to pick a woman.
00:04:08.020And not just a woman, an African-American woman.
00:04:10.200And so from the Democrat Party's perspective, that really is a set of one.
00:04:15.000They couldn't push her aside for, you know, for a House member, for a low like you can't push the sitting vice president aside for someone further down the the political pecking order.
00:04:27.440So there is literally one person on planet Earth who the Democrat Party could tolerate pushing Kamala aside for.
00:04:37.300And Michelle Obama is a first former first lady.
00:04:39.760She sort of stands on a different footing.
00:04:42.400And so we did a podcast several months ago that got a ton of attention.
00:04:46.300And people noticed where I said, I think the chances have risen dramatically of Michelle Obama.
00:04:52.700Now, at the time, my assessment was that it was about 35 percent that Michelle Obama would be the nominee.
00:05:01.120Now, that's I still don't think didn't think it was more likely than not.
00:05:04.900But going from zero to 35 percent, that ain't nothing.
00:05:08.400Now, in just a second, we're going to play for you this interview Michelle did.
00:05:13.740I think this interview is incredibly revealing and it's caused me to change the percentage that I put as to the likelihood of Michelle being the nominee.
00:05:22.520But before I tell you how it changed, let's listen to what she said on this podcast interview.
00:05:28.740What is the thing that keeps you up at night now or what is is your biggest fear now after having overcome so many?
00:05:36.180It has less to do with me personally and more to do with the world that we're in.
00:05:41.000There's such a thing as knowing too much.
00:05:43.660And when you've been married to the president of the United States who knows everything about everything in the world, sometimes you just want to.
00:08:10.620And and what is really striking there is where she's like the thing that keeps me up at night is who's going to be the next leader of the free world.
00:08:19.020And she says, you know, what does government do?
00:08:21.580She goes, oh, my God, government does everything in our lives.
00:08:24.960Now, that's a pretty powerful refutation of the point that she doesn't care if it's keeping her up at night.
00:08:31.160And she thinks government does everything in the question of who's going to be the leader of the free world is what is filling her mind.
00:08:40.400And then the second thing she says where she's talking about being first lady and she says, I know a lot.
00:08:47.280And she basically is like pitching her qualifications, like everything she knows, because she was married to Barack Obama when he was president and still is today, that she like knows everything the president needs to know.
00:09:06.300I can step in and I'm I'm willing to do it.
00:09:09.660And so I would change, as I said, my my assessment a couple of months ago was the odds of Michelle being the nominee were thirty five percent based on this interview.
00:09:21.100I would change those odds from thirty five percent to forty five percent.
00:09:26.100I still think it is slightly more likely than not that Biden remains the nominee, but I think it's fifty five forty five.
00:09:34.280And candidly, I had been hoping the thing that might save America is that Michelle would be selfish enough to say, I don't want the nomination.
00:09:47.360Even if you hand it to me, even if it's a coronation, even if I don't have to run for two years, even if I'm just like invited into the Oval Office with with the blow of a trumpet, I don't want it because I like my life.
00:09:59.520Like, I would really like Michelle to say that, because I think if she's the Democratic nominee, it is incredibly dangerous.
00:10:07.740She is a dangerous, dangerous, dangerous nominee because the first lady has a patina of Teflon.
00:10:17.020She she's not perceived as overly partisan.
00:10:37.920And a first lady is is protected by that, particularly a first lady that had eight years of the media and Hollywood just singing her praises.
00:10:50.800And frankly, it scares the heck out of me.
00:10:52.680Well, let me ask you one other question and just remind people how this scenario could become reality if they maybe missed that episode where we talked about this.
00:11:01.900If Democrats wanted to offload Joe Biden, the place to do it would be at the convention and explain how this could go down very quickly, where Michelle Obama, hypothetically, could then have a campaign that would basically be two months and some days.
00:11:19.080Yeah, that's it, because she wouldn't have to run a real campaign.
00:11:23.180You could also argue that there's a very good chance she then wouldn't even have to debate if Donald Trump is the nominee, for example, because it's a two month plus campaign.
00:11:32.520Well, and look, that's one of the things people say in response to this is they say, look, we don't think Michelle wants it because she didn't run in 2016.
00:12:23.620And so she made the decision in 16 and in 20 and in 23, preparing for the 24 election not to jump in.
00:12:34.460It's a very different cost-benefit analysis to say, do you come in in the summertime, in the convention?
00:12:44.940Are you handed the nomination without having to debate a single primary opponent, without having to campaign, without having to fight?
00:12:51.400And do you have a three-month campaign where the media will be singing hosannas that St. Michelle has come to save us?
00:12:59.620That's a very different cost-benefit analysis.
00:13:02.640And I got to say, the number of people on planet Earth who, if you were offered, jump in for three months and you can become president, who would say no, is really small.
00:13:16.360But, Ben, I know for a fact, if I told you right now, hey, jump in this summer, you can be president in November or elected president in November and start in January, you'd be a yes.
00:13:25.700Yes. I'd certainly be a yes. And it's a much wider set than the people who are psychotic enough to actually run for president.
00:13:34.400Yeah. And what an easy road. I mean, it would just not be hard.
00:13:37.960It's a coronation. It's not an election. It's a coronation.
00:13:40.560But I got to say, if I were David Axelrod, if I were a Democrat strategist, I would be all in on this.
00:13:47.080I'd be like, this is how we keep our radical left-wing agenda going.
00:13:51.800Joe Biden has so many faults. And by the way, Axelrod has floated trial balloons.
00:13:57.660The media, who is the left wing of the Democrat Party, they keep floating trial balloons of, gosh, Biden's a really crappy candidate.
00:14:04.640Like, like, let's let's sing his praises. Let's say thank you for coming in for four years.
00:14:09.140But let's put him on an ice float and push him out into the Arctic.
00:14:12.400All right. Real quick. Let's talk about your finances.
00:14:15.580It's 2024 and a lot of us are trying to get our finances in order.
00:14:20.320There is some great news for homeowners.
00:14:23.040Interest rates have dropped and are now in the fives, a lot lower than what they were last year.
00:14:29.240If you've been buried in high interest credit card debt, now is the time to break free.
00:14:34.280American Financing can help you access the cash in your home to pay off your high interest debt.
00:14:40.480Last year, their salary-based mortgage consultants helped customers save an average of $854 a month.
00:14:49.160That's like giving yourself a $10,000 raise.
00:17:38.920Okay, so the Supreme Court has addressed what the 14th Amendment in Section 3 means.
00:17:44.020And it's addressed it a couple of times.
00:17:46.080First of all, it addressed it concerning Jefferson Davis.
00:17:50.040Now, Jefferson Davis was the head of the Confederacy.
00:17:53.520And what happened after the Civil War is the United States indicted Jefferson Davis in Virginia for treason.
00:18:02.000And Jefferson Davis argued in response that the 14th Amendment, Section 3, imposed a penalty that barred a treason prosecution.
00:18:14.500Davis argued that Section 3 was an exclusive criminal punishment.
00:18:18.940And he said that applying it to him would violate double jeopardy.
00:18:25.580And he argued as part of that also that Section 3 was self-enforcing.
00:18:30.620We talked about this in the last podcast.
00:18:33.000Self-enforcing means a provision of the Constitution that doesn't need additional legislation to give it effect, but rather has legal effect on its own.
00:18:40.980And in response, the United States argued Section 3 was not a punishment or that if it was, that exclusion from future office was not the exclusive punishment.
00:18:54.200And in response to that, whether Section 3 nullified the Jefferson Davis treason prosecution was never fully resolved.
00:19:11.200And what happened was there was a district judge named John Underwood who disagreed with the Chief Justice of the Supreme Court, Justice Chase.
00:19:21.920And the issue was then certified for appeal to the U.S. Supreme Court.
00:19:26.900But then President Andrew Johnson gave Jefferson Davis a pardon.
00:19:31.120And once he was pardoned, it rendered the case moot because you didn't have to adjudicate whether he could be tried for treason because he'd been pardoned.
00:19:37.820So he couldn't be tried for treason once he was pardoned.
00:19:40.200And so that was one issue where there was a dispute.
00:19:45.720But secondly, the very same judges gave a different reading over Section 3 dealing with black defendants in Virginia.
00:19:56.140So you had number one, Jefferson Davis, the head of the Confederacy.
00:20:00.040And then there were some black criminal defendants who were sentenced, tried and sentenced by state judges.
00:20:07.500And there was a challenge to those convictions, arguing that those state judges could not serve in office because they had been in the Confederacy and they were contrary to the ban on people who'd taken an oath of office to support the Constitution, then engaging in an insurrection.
00:20:31.120And what happened was that Virginia appealed, so the district judge granted a writ of habeas corpus, which is, in other words, it ordered that black defendants be released from criminal imprisonment.
00:20:46.060And Virginia appealed that, and Virginia appealed that, and it went to Chief Justice Salmon Chase in his capacity as circuit judge.
00:20:53.540And so in 1969, the Chief Justice reversed the decision of Judge Underwood in a decision that is known as Griffin's case.
00:21:04.900Griffin's case is significant because it is the most meaningful Supreme Court adjudication of what the 14th Amendment Section 3 means.
00:21:18.220Now, it's a lone justice, it's not the full court, but it still has precedential effect.
00:21:26.840Well, on the merits of the Section 3 case, the Chief Justice began with first principles, and this is a quote from his opinion.
00:21:33.980What was the intention of the people of the United States in adopting the 14th Amendment?
00:21:38.080What is the true scope of the purpose of the prohibition to hold office contained in the third section?
00:21:43.120And before answering those questions, Chief Justice Chase said that, quote,
00:21:49.740A construction which must necessarily occasion great public and private mischief must never be preferred to a construction which will occasion neither,
00:22:02.260and neither in so great a degree unless the terms of the instrument absolutely require such preference.
00:22:09.140And he went on to say the practical aspects of Section 3.
00:22:16.460The Chief Justice said the text preferred reading, quote,
00:22:20.360Best harmonizes the amendment with the general terms and spirit of the Act Amendment.
00:22:26.400The principle forbids a construction of the amendment not clearly required by its terms,
00:22:33.180which will bring into conflict or discord with other provisions of the Constitution.
00:22:43.100Those provisions of the Constitution which deny to the legislature power to deprive any person life, liberty, or property without due process of law
00:22:51.120or to pass a bill of attainder or an ex post facto are inconsistent with their spirit and the general purpose
00:22:57.760with a provision, Section 3, which at once without trial deprives a whole class of persons of offices held by them.
00:23:10.320And as a result, the Chief Justice offered a solution to what he said were the practical and legal difficulties with giving Section 3 a literal interpretation.
00:23:22.240He said Section 3 was not self-executing.
00:23:26.160And he said it could not be self-executing.
00:23:29.180And he said that Congress did not implement Section 3 in Virginia until February 1869
00:23:34.320when a joint resolution ordered the military commanders to remove ineligible officers who had not received amnesty from Congress.
00:23:43.420And so the habeas petition granted by the district judge, Judge Underwood,
00:23:48.260predated the joint resolution, which meant the grants were erroneous
00:23:51.400because the trial judges were not ineligible.
00:23:55.640What that means, that there's a lot of legal jargon there.
00:23:59.120So if you're not a lawyer, constitutional scholar—
00:24:02.800I was literally going to laugh and say, okay, put that in layman terms so I understand it and everyone else listening
00:24:08.100because I'm even confused on it and paying close attention.
00:24:11.920Look, and this is 19th century, and so 19th century judges spoke in some jargon.
00:24:16.380So I'd read you the language, but I get it's not easy to understand.
00:24:20.100It's not easy to understand for modern-day lawyers, much less for non-lawyers.
00:24:24.160But what he is saying is that the prohibition on Confederate officers serving in office is not self-executing.
00:24:35.220It doesn't go into effect on its own, but it needs rather an act of Congress to give it force.
00:24:40.940And understand what was happening here.
00:24:42.640These were state district judges who had presided over criminal trials.
00:24:46.900So they were just, you know, a judge that—you had criminal defendants who had committed crimes.
00:24:51.340And the argument of the criminal defense lawyers were, was, hey, these judges had previously taken an oath to defend the Constitution,
00:25:01.740and then they supported the Confederacy, so therefore they're ineligible to serve as state judges under 14th Amendment Section 3,
00:25:11.280and therefore my criminal conviction is not valid because the judge that presided over it doesn't have the authority to serve in it.
00:25:17.660And what Chief Justice Chase concluded was, no, that's not true, because Congress did not legislate to give that effect.
00:25:28.220Now, do I think this determination is binding and conclusive on the court? No.
00:25:34.500And the way it works, a decision by an individual justice—so the way it worked, Supreme Court justices used to do what was called ride circuit.
00:25:46.160And so the justices riding circuit—and it was literally riding circuit meant, in many cases, getting on a horse and riding around the circuit.
00:25:55.400Each justice had a different judicial circuit that they were the appellate judge for.
00:26:00.460And they would hear appeals as individual judges. In some ways, it sort of functioned like they were the court of appeals.
00:26:07.280And look, this is relatively early in our country's history, so you didn't have the full court of appeals system we have now.
00:26:14.060A decision by an individual justice riding circuit does not have the precedential force of a U.S. Supreme Court decision joined by a majority of the court.
00:26:26.100That is binding Supreme Court precedent. An individual circuit justice is not.
00:26:30.800But the decision of a circuit justice is considered persuasive. It's not binding, but it has real force.
00:26:38.340And in this case, it's the Chief Justice of the United States opining on what the 14th Amendment meant.
00:26:44.060And so I think in the Supreme Court argument that will happen on February 8th, you will see a lot of argument about Griffin's case.
00:26:53.420The DOJ will argue that there's a lot of modern-day scholarly criticism that they don't like Chief Justice Chase's reasoning in Griffin's case.
00:27:02.100But this is going to be a major topic of discussion in the oral argument.
00:27:07.180When you look at which side has the strongest argument and compare it to the weakest, who walks in with the biggest advantage with these Supreme Court justices as it sits now?
00:27:18.780So, and this is something I explained in the last podcast.
00:27:22.540Look, I try to think, let me tell you how I approached arguments.
00:27:25.880I really enjoyed being a Supreme Court litigator. It was an incredible joy.
00:30:53.040But it's not huge that are effectively going to battle day in and day out, defending the Constitution, the Bill of Rights, defending conservative principles, defending our values.
00:31:04.780And I jump out of bed every day eager to do that fight.
00:31:08.360And so when Trump talked to me very seriously about the Supreme Court, I told him flat out, no, I don't want it.
00:32:12.400You've seen, I guess, more of the press reaction.
00:32:15.080You've seen more of the reaction in Washington.
00:32:17.960Do you still think that the Supreme Court is eager to not only take this up, but also to say, hey, you can't in America, in the United States of America right now, we let the people decide.
00:32:28.140We don't let people, you know, dictate who you can and can't vote for.
00:32:32.700So let me say, I wouldn't say eager is the right adjective.
00:32:58.320We've got to resolve this because this is the court exists to resolve the most important legal issues in the country, particularly concerning the Constitution.
00:33:07.520And whether you will allow the voters to vote for a candidate for president is right at the top of it is difficult to imagine a more consequential constitutional issue than that.
00:33:21.260And so I think every justice recognized, even though they don't want to be in this, they had a responsibility and they really had no choice.
00:33:29.220Now, I also believe the odds are overwhelming, close to 100 percent, that the Supreme Court will reverse the Colorado Supreme Court.
00:33:38.520I just I do not believe they are going to allow one of the two major parties, candidates for president to be removed from the ballot and to tell the voters, you don't get to decide who the president is.
00:33:56.860Ironically, while Joe Biden is is prancing around and and and proclaiming his defense for democracy, he and the Democrats and the media are trying to utterly frustrate democracy and stop the voters from voting for their opponents.
00:34:13.580I think the court is is going to easily reverse it.
00:34:16.920And I I desperately hope I got to say there are very few things I have hoped for more passionately in that I can recall.
00:34:26.860Then that I hope that this is unanimous.
00:34:28.920If it's six three, if it's the conservatives voting to reverse and the liberals voting to affirm that is bad for the Supreme Court is bad for the country, it is bad for the rule of law.
00:34:40.340It will cement the perception that the court is a political body and that is disastrous for the court.
00:34:48.360I am certain that there is no human being on the planet that feels that urgency more intensely than Chief Justice John Roberts.
00:35:05.580About the legitimacy of the Supreme Court.
00:35:07.980So I think the Chief Justice is going to bend over backwards to find any theory that would produce a unanimous decision.
00:35:16.660There are lots of theories he could do.
00:35:18.100The one I find most persuasive, the one if if I had if Trump had offered me the Scalia seat and I'd gotten the nomination in the place of Gorsuch and the Senate to confirm me, if I were a justice.
00:35:30.620The theory that I would be inclined to agree with is what I laid out in the last podcast, which is it is absolutely true and I think correct that if an individual engages in insurrection, they are not eligible to be elected to federal office.
00:37:34.580And so there was no meaningful factual dispute here.
00:37:40.180There is a reason that Jack Smith and every other prosecutor that left wing prosecutor that hates Donald Trump,
00:37:47.660that nobody has charged Trump with the crime of insurrection because you couldn't remotely prove that the facts don't demonstrate it.
00:37:56.240And so I think the theory of the Supreme Court will say, and I predicted a sentence from, look, when this comes down and I think it'll come down,
00:38:12.920It will be sometime between February 8th and March 4th.
00:38:15.420I'm pulling a date out of the air saying February 19th.
00:38:18.420When it comes down, I'm predicting right now there will be a sentence.
00:38:21.520We express no opinion over whether the events of January 6th, 2021 constituted an insurrection or not.
00:38:32.120However, in order for the 14th Amendment prohibition to apply, there needs to be a conclusive determination that it was an insurrection.
00:38:42.860And for those who urge Trump should be ineligible, for the Biden Department of Justice, which has urged Trump should be ineligible,
00:38:52.360they have a path to prove that case, which is to charge him with insurrection and convict him and obtain a final judgment that he is guilty of insurrection.
00:39:01.260If they do so, he will be ineligible for office.
00:39:04.480But they have not done so, and accordingly, this decision should not be made by judges in Colorado or a partisan, unelected Secretary of State in Maine,
00:39:18.300but rather the decision of the next president should be made by the voters and the American people.
00:39:23.000I think that that's what I would rule.
00:39:26.140If I were a justice, that is the sort of opinion I would write.
00:39:29.520And my hope is, I really hope the liberal justices are not infected by Trump derangement syndrome, like so many Democrats are,
00:39:40.480that they recognize the damage to the court, if they make this a partisan decision, will be historic and irreparable.