Verdict with Ted Cruz - January 10, 2024


Will Michelle Obama Replace Biden？ plus Part 2： Predicting Supreme Court Opinion on Colorado Trump Case


Episode Stats


Length

40 minutes

Words per minute

165.4177

Word count

6,681

Sentence count

436

Harmful content

Misogyny

25

sentences flagged

Toxicity

5

sentences flagged

Hate speech

1

sentences flagged


Summary

Summaries generated with gmurro/bart-large-finetuned-filtered-spotify-podcast-summ .

Ted Cruz and Ben Fergusons discuss Michelle Obama s comments about running for president in 2024, and why they think it's a good idea. They also talk about why the Democratic Party should dump Joe Biden if he decides to run for re-election.

Transcript

Transcript generated with Whisper (turbo).
Misogyny classifications generated with MilaNLProc/bert-base-uncased-ear-misogyny .
Toxicity classifications generated with s-nlp/roberta_toxicity_classifier .
Hate speech classifications generated with facebook/roberta-hate-speech-dynabench-r4-target .
00:00:00.000 This is an iHeart Podcast.
00:00:02.600 Guaranteed human.
00:00:05.300 Welcome. It is Verdict with Senator Ted Cruz, Ben Ferguson with you.
00:00:08.800 Senator, we said we were going to do a two-part series on this Colorado case
00:00:13.160 that is going to the Supreme Court and get into some more of the history of it.
00:00:17.280 This will be part two.
00:00:19.540 But a prediction that you made on this show seems to be much closer to becoming a reality
00:00:26.960 than anyone imagined, as the former First Lady, Michelle Obama, said in a recent interview
00:00:33.040 that her fears about the 2024 presidential election keep her up at night,
00:00:39.480 saying she's terrified and she believes we need a real leader.
00:00:44.380 It sounded to me like she's saying, I might want to be the president of the United States of America.
00:00:49.820 You predicted this, sir.
00:00:51.880 Let's just take a little shock moment of victory lap at the same time.
00:00:56.960 Well, look, it is certainly not a victory lap because it's horrifying for the country.
00:01:00.980 But I will say, months ago, we did an entire podcast laying out that I thought the odds were rising dramatically
00:01:08.260 that the Democrat Party would pull the ripcord on Joe Biden, parachute him out, abandon him,
00:01:16.840 and replace him with Michelle Obama. 0.85
00:01:19.600 And my reasoning, let's revisit the reasoning because it's, you know, sometimes when I say this to people,
00:01:25.180 they're like, okay, this seems ludicrous.
00:01:27.960 Here's my reasoning.
00:01:29.560 Number one, I think if Joe Biden had dropped out two months ago,
00:01:32.940 I think you'd see a ton of Democrats jumping in the field.
00:01:35.900 I think the top four in the field would be Kamala Harris, Pete Buttigieg, Elizabeth Warren, and Gavin Newsom. 0.88
00:01:43.880 There'd be others, but those would be the top four.
00:01:46.720 In that field, I am convinced in an open primary in the Democrat Party, the winner would be Elizabeth Warren.
00:01:54.340 And the reason I'm convinced is that I think she is the id of the Democrat Party.
00:01:58.620 They are radical socialists.
00:02:00.500 They're angry.
00:02:01.020 Remember, look, in 2020, she ran and Bernie Sanders ran.
00:02:04.980 They both split the whack job leftist part of the party.
00:02:08.300 And Bernie almost won.
00:02:10.860 With Bernie out of the field, I think Elizabeth Warren wins that open primary. 1.00
00:02:14.560 But at this point, we're sitting here in January, it's too late for Joe Biden not to run.
00:02:19.800 So he's going to run.
00:02:20.700 He's on the ballot.
00:02:22.380 That means the only opportunity for the Democrats to pull Biden is at their convention this summer.
00:02:28.940 Now, if they do that, they have a problem.
00:02:30.680 If they pull Biden, the next person in line is Kamala Harris. 0.98
00:02:34.280 Now, there are a bunch of people saying, oh, they're going to replace Kamala with Gavin Newsom.
00:02:39.940 I think the chances of that happening are 0.00 percent.
00:02:43.820 Why?
00:02:44.720 I think the Democrat Party is structurally incapable of replacing an African-American woman with a white guy. 0.94
00:02:54.880 Like, I think their party would implode and spontaneously combust in flames. 0.90
00:03:01.100 They cannot do that.
00:03:02.600 And 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.
00:03:17.160 Like, wow, we don't want Kamala to be the candidate. 1.00
00:03:20.540 But 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.
00:03:28.800 Yeah, she got she couldn't figure out who she was.
00:03:31.340 Is she a liberal?
00:03:32.020 Is she a moderate?
00:03:32.940 What like she was all over the place. 0.93
00:03:35.760 Her approval ratings are worse than Joe Biden's, which is hard because his approval ratings are terrible.
00:03:41.380 And look, I'm going to try to frame this politely.
00:03:46.580 I think it is a reasonable prediction that Kamala will not be winning any Nobel Prizes in the future.
00:03:54.060 I think that's a good way of putting it.
00:03:56.140 And 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?
00:04:05.120 Well, then you'd have to pick a woman. 1.00
00:04:06.760 And who better than Michelle? 0.99
00:04:08.020 And not just a woman, an African-American woman. 0.99
00:04:10.200 And so from the Democrat Party's perspective, that really is a set of one.
00:04:15.000 They couldn't push her aside for, you know, for a House member, for a low like you can't push the sitting vice president aside for someone further down the the political pecking order. 0.99
00:04:27.440 So there is literally one person on planet Earth who the Democrat Party could tolerate pushing Kamala aside for.
00:04:35.420 And that is Michelle Obama.
00:04:37.300 And Michelle Obama is a first former first lady.
00:04:39.760 She sort of stands on a different footing.
00:04:42.400 And so we did a podcast several months ago that got a ton of attention.
00:04:46.300 And people noticed where I said, I think the chances have risen dramatically of Michelle Obama.
00:04:52.700 Now, at the time, my assessment was that it was about 35 percent that Michelle Obama would be the nominee.
00:05:01.120 Now, that's I still don't think didn't think it was more likely than not.
00:05:04.900 But going from zero to 35 percent, that ain't nothing.
00:05:08.400 Now, in just a second, we're going to play for you this interview Michelle did.
00:05:13.740 I 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.
00:05:22.520 But before I tell you how it changed, let's listen to what she said on this podcast interview.
00:05:28.740 What is the thing that keeps you up at night now or what is is your biggest fear now after having overcome so many?
00:05:36.180 It has less to do with me personally and more to do with the world that we're in.
00:05:41.000 There's such a thing as knowing too much.
00:05:43.660 And 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.
00:05:51.140 You know too much.
00:05:52.020 Right. It's like I don't know.
00:05:53.220 I don't want to know what was in that folder that you just got that made you quiet.
00:05:57.900 You know, I don't want to know why the security just pulled you over.
00:06:02.740 I mean, it could be any range of things that comes across the desk of the leader of the free world.
00:06:08.420 Right. So I know a lot about what's going on and what keeps me up are the things that I know the war in the region in too many regions.
00:06:20.080 What is AI going to do for us?
00:06:23.120 The environment, you know, are we moving at all fast enough?
00:06:26.980 What are we doing about education?
00:06:29.220 Are people going to vote?
00:06:31.260 And why aren't people voting?
00:06:33.160 Are we too stuck to our phones?
00:06:34.780 I mean, those are the things that keep me up because you don't have control over them.
00:06:40.040 And you wonder, where are people, where are we in this?
00:06:45.000 You know, where are our hearts?
00:06:46.300 What's going to happen in this next election?
00:06:48.300 I am terrified about what could possibly happen because our leaders matter.
00:06:53.860 Who we select, who speaks for us, who holds that bully pulpit.
00:06:59.300 It affects us in ways that sometimes I think people take for granted.
00:07:03.020 You know, the fact that people think that government, you know, it doesn't really even do anything.
00:07:10.040 And I'm like, oh, my God, does government do everything for us?
00:07:14.320 And we cannot take this democracy for granted.
00:07:17.060 And sometimes I worry that we do.
00:07:20.000 Those are the things that keep me up.
00:07:22.580 Senator, those comments, they were not off the cuff.
00:07:25.960 It was obvious she wanted to cover that.
00:07:28.380 She wanted to get it out there.
00:07:29.700 It was well thought out, well said.
00:07:31.860 And that's the reason why when I heard, I go, oh, my gosh, she's literally floating herself. 0.99
00:07:38.180 Well, I think two things really stand out from those comments.
00:07:41.160 Number one, the biggest argument that is given against why Michelle would be the nominee is people say she doesn't want it. 0.96
00:07:48.540 She hasn't run before.
00:07:49.980 She doesn't have the fire in the belly. 1.00
00:07:51.920 She she has a great life.
00:07:53.660 She has a life of a movie star and a celebrity.
00:07:56.800 She has a life of George Clooney or Oprah or Bruce Springsteen.
00:08:02.120 She she hangs out at Martha's Vineyard. 0.56
00:08:04.780 She's got a couple hundred million dollars. 1.00
00:08:06.420 She flies on private jets.
00:08:08.520 She doesn't want to be president. 1.00
00:08:10.620 And 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.
00:08:19.020 And she says, you know, what does government do?
00:08:21.580 She goes, oh, my God, government does everything in our lives. 0.94
00:08:24.960 Now, that's a pretty powerful refutation of the point that she doesn't care if it's keeping her up at night.
00:08:31.160 And 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.
00:08:38.800 OK, that's significant.
00:08:40.400 And then the second thing she says where she's talking about being first lady and she says, I know a lot.
00:08:47.280 And she basically is like pitching her qualifications, like everything she knows, because she was married to Barack Obama when he was president and still is today, that she like knows everything the president needs to know.
00:09:01.400 And you're right.
00:09:02.280 It does feel a little bit like a pitch of, hey, guys, I'm here.
00:09:05.820 I'm ready.
00:09:06.300 I can step in and I'm I'm willing to do it.
00:09:09.660 And 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.
00:09:21.100 I would change those odds from thirty five percent to forty five percent.
00:09:26.100 I still think it is slightly more likely than not that Biden remains the nominee, but I think it's fifty five forty five.
00:09:32.380 I think it is almost a coin flip.
00:09:34.280 And candidly, I had been hoping the thing that might save America is that Michelle would be selfish enough to say, I don't want the nomination. 1.00
00:09:47.360 Even 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.
00:09:59.520 Like, I would really like Michelle to say that, because I think if she's the Democratic nominee, it is incredibly dangerous.
00:10:07.740 She is a dangerous, dangerous, dangerous nominee because the first lady has a patina of Teflon. 1.00
00:10:17.020 She she's not perceived as overly partisan.
00:10:19.640 She's not perceived as combative.
00:10:21.980 Now, I think she's incredibly partisan. 0.96
00:10:24.160 I think she's more partisan than Barack is and was as president.
00:10:28.820 But but look, if you look at the polling numbers, Michelle Obama is the most popular woman on the face of the planet.
00:10:35.800 And that's just objectively true.
00:10:37.920 And 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.
00:10:48.520 And so I listened to that interview.
00:10:50.800 And frankly, it scares the heck out of me.
00:10:52.680 Well, let me ask you one other question and just remind people how this scenario could become reality if they maybe missed that episode where we talked about this.
00:11:01.900 If 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. 0.70
00:11:19.080 Yeah, that's it, because she wouldn't have to run a real campaign. 0.96
00:11:23.180 You could also argue that there's a very good chance she then wouldn't even have to debate if Donald Trump is the nominee, for example, because it's a two month plus campaign.
00:11:32.520 Well, and look, that's one of the things people say in response to this is they say, look, we don't think Michelle wants it because she didn't run in 2016.
00:11:39.800 She didn't run in 2020.
00:11:41.300 If she wanted to run, they say she's not Hillary Clinton. 0.90
00:11:43.940 She didn't dive in immediately and want to be the candidate on the ballot.
00:11:46.680 That's what Hillary did after Bill was president is Hillary's like me, me, me, and Michelle did not do that. 1.00
00:11:53.220 I think it's a very different decision for Michelle a year plus ago to ask, do I jump in?
00:12:02.180 Do I spend two years running?
00:12:03.600 Look, running for president is brutally hard.
00:12:06.680 I know this from firsthand knowledge.
00:12:08.560 I loved every minute of it, but it ain't easy.
00:12:10.980 It's all consuming.
00:12:11.820 And Michelle knows that.
00:12:12.720 I mean, she knows that uniquely and that she was side by side.
00:12:17.580 Barack Obama worked his butt off running for president.
00:12:20.100 He was a phenom of the modern age.
00:12:23.620 And so she made the decision in 16 and in 20 and in 23, preparing for the 24 election not to jump in.
00:12:34.460 It's a very different cost-benefit analysis to say, do you come in in the summertime, in the convention?
00:12:44.940 Are you handed the nomination without having to debate a single primary opponent, without having to campaign, without having to fight?
00:12:51.400 And do you have a three-month campaign where the media will be singing hosannas that St. Michelle has come to save us?
00:12:59.620 That's a very different cost-benefit analysis.
00:13:02.640 And I got to say, the number of people on planet Earth who, if you were offered, jump in for three months and you can become president, who would say no, is really small.
00:13:14.600 There may be some.
00:13:16.360 But, 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.
00:13:25.700 Yes. I'd certainly be a yes. And it's a much wider set than the people who are psychotic enough to actually run for president.
00:13:34.400 Yeah. And what an easy road. I mean, it would just not be hard.
00:13:37.960 It's a coronation. It's not an election. It's a coronation.
00:13:40.560 But I got to say, if I were David Axelrod, if I were a Democrat strategist, I would be all in on this.
00:13:47.080 I'd be like, this is how we keep our radical left-wing agenda going.
00:13:51.800 Joe Biden has so many faults. And by the way, Axelrod has floated trial balloons.
00:13:57.660 The media, who is the left wing of the Democrat Party, they keep floating trial balloons of, gosh, Biden's a really crappy candidate.
00:14:04.640 Like, like, let's let's sing his praises. Let's say thank you for coming in for four years.
00:14:09.140 But let's put him on an ice float and push him out into the Arctic.
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00:15:31.440 I want to get also back to this bigger issue, a part two of this conversation that we started.
00:15:38.340 And if you missed it in our last show, you've got to go back and listen to part one.
00:15:43.260 And this has been a dive into this case from Colorado that's going to the Supreme Court
00:15:49.460 and what is going to happen there.
00:15:51.900 And you wanted to break down the history as well behind the premise of this whole argument
00:15:58.520 with insurrection, et cetera, and the president not being convicted of that.
00:16:03.500 And I want to pick it up there because this is going to be something that moves
00:16:08.080 and is going to have a major impact on the future of this country as well.
00:16:13.280 Well, that's right.
00:16:14.420 And I want to encourage listeners, if you didn't listen to Monday's podcast,
00:16:19.580 you ought to go back and listen to it.
00:16:21.020 Because in that podcast, I break down what I believe the Supreme Court is going to do
00:16:25.520 in the Colorado Appeal, the decision about whether Donald Trump can be on the presidential ballot.
00:16:30.060 And I explain why I believe the Supreme Court is going to reverse Colorado.
00:16:34.100 And I think there's a very real chance.
00:16:36.360 I think it is more likely than not that the decision from the Supreme Court is unanimous.
00:16:40.100 And I go through each of the arguments that Trump is making, and I give my assessment of them.
00:16:44.640 Some of the arguments are stronger than other arguments.
00:16:46.700 And I lay out the theory that I think is going to command a unanimous Supreme Court decision.
00:16:52.760 And it's the sort of thing, I have to admit, Ben, you and I have done a lot of podcasts.
00:16:58.200 Monday's podcast is one of my favorites that we've ever done.
00:17:01.340 Because the content in it, I believe you can't get anywhere else.
00:17:07.400 Like, there's literally no other source.
00:17:10.080 There's no other podcast.
00:17:11.160 There's no other news broadcast.
00:17:13.120 There's no other source that has that content.
00:17:15.980 And it's one of the reasons I love doing this podcast.
00:17:19.120 Because we walk through issues at a level of detail and substance that it just doesn't exist elsewhere.
00:17:25.920 Yeah, no, it was one of my favorite shows as well.
00:17:29.200 And it's amazing how many people actually responded going, I can't wait for part two.
00:17:32.880 Because you clearly weren't done explaining how this is going to work through the Supreme Court.
00:17:37.680 Let's pick it up there.
00:17:38.920 Okay, so the Supreme Court has addressed what the 14th Amendment in Section 3 means.
00:17:44.020 And it's addressed it a couple of times.
00:17:46.080 First of all, it addressed it concerning Jefferson Davis.
00:17:50.040 Now, Jefferson Davis was the head of the Confederacy.
00:17:53.520 And what happened after the Civil War is the United States indicted Jefferson Davis in Virginia for treason.
00:18:02.000 And Jefferson Davis argued in response that the 14th Amendment, Section 3, imposed a penalty that barred a treason prosecution.
00:18:14.500 Davis argued that Section 3 was an exclusive criminal punishment.
00:18:18.940 And he said that applying it to him would violate double jeopardy.
00:18:25.580 And he argued as part of that also that Section 3 was self-enforcing.
00:18:30.620 We talked about this in the last podcast.
00:18:33.000 Self-enforcing means a provision of the Constitution that doesn't need additional legislation to give it effect, but rather has legal effect on its own.
00:18:40.980 And 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.
00:18:54.200 And in response to that, whether Section 3 nullified the Jefferson Davis treason prosecution was never fully resolved.
00:19:11.200 And what happened was there was a district judge named John Underwood who disagreed with the Chief Justice of the Supreme Court, Justice Chase.
00:19:21.920 And the issue was then certified for appeal to the U.S. Supreme Court.
00:19:26.900 But then President Andrew Johnson gave Jefferson Davis a pardon.
00:19:31.120 And once he was pardoned, it rendered the case moot because you didn't have to adjudicate whether he could be tried for treason because he'd been pardoned.
00:19:37.820 So he couldn't be tried for treason once he was pardoned.
00:19:40.200 And so that was one issue where there was a dispute.
00:19:45.720 But secondly, the very same judges gave a different reading over Section 3 dealing with black defendants in Virginia.
00:19:56.140 So you had number one, Jefferson Davis, the head of the Confederacy.
00:19:59.220 They had one determination.
00:20:00.040 And then there were some black criminal defendants who were sentenced, tried and sentenced by state judges.
00:20:07.500 And 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.
00:20:31.120 And 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.
00:20:46.060 And Virginia appealed that, and Virginia appealed that, and it went to Chief Justice Salmon Chase in his capacity as circuit judge.
00:20:53.540 And so in 1969, the Chief Justice reversed the decision of Judge Underwood in a decision that is known as Griffin's case.
00:21:04.900 Griffin's case is significant because it is the most meaningful Supreme Court adjudication of what the 14th Amendment Section 3 means.
00:21:18.220 Now, it's a lone justice, it's not the full court, but it still has precedential effect.
00:21:23.840 Now, what did the Chief Justice say?
00:21:26.840 Well, on the merits of the Section 3 case, the Chief Justice began with first principles, and this is a quote from his opinion.
00:21:33.980 What was the intention of the people of the United States in adopting the 14th Amendment?
00:21:38.080 What is the true scope of the purpose of the prohibition to hold office contained in the third section?
00:21:43.120 And before answering those questions, Chief Justice Chase said that, quote,
00:21:49.740 A construction which must necessarily occasion great public and private mischief must never be preferred to a construction which will occasion neither,
00:22:02.260 and neither in so great a degree unless the terms of the instrument absolutely require such preference.
00:22:09.140 And he went on to say the practical aspects of Section 3.
00:22:16.460 The Chief Justice said the text preferred reading, quote,
00:22:20.360 Best harmonizes the amendment with the general terms and spirit of the Act Amendment.
00:22:26.400 The principle forbids a construction of the amendment not clearly required by its terms,
00:22:33.180 which will bring into conflict or discord with other provisions of the Constitution.
00:22:40.500 And after that, Chase wrote, quote,
00:22:43.100 Those provisions of the Constitution which deny to the legislature power to deprive any person life, liberty, or property without due process of law
00:22:51.120 or to pass a bill of attainder or an ex post facto are inconsistent with their spirit and the general purpose
00:22:57.760 with a provision, Section 3, which at once without trial deprives a whole class of persons of offices held by them.
00:23:10.320 And 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.
00:23:22.240 He said Section 3 was not self-executing.
00:23:26.160 And he said it could not be self-executing.
00:23:29.180 And he said that Congress did not implement Section 3 in Virginia until February 1869
00:23:34.320 when a joint resolution ordered the military commanders to remove ineligible officers who had not received amnesty from Congress.
00:23:43.420 And so the habeas petition granted by the district judge, Judge Underwood,
00:23:48.260 predated the joint resolution, which meant the grants were erroneous
00:23:51.400 because the trial judges were not ineligible.
00:23:55.640 What that means, that there's a lot of legal jargon there.
00:23:59.120 So if you're not a lawyer, constitutional scholar—
00:24:02.800 I was literally going to laugh and say, okay, put that in layman terms so I understand it and everyone else listening
00:24:08.100 because I'm even confused on it and paying close attention.
00:24:11.920 Look, and this is 19th century, and so 19th century judges spoke in some jargon.
00:24:16.380 So I'd read you the language, but I get it's not easy to understand.
00:24:20.100 It's not easy to understand for modern-day lawyers, much less for non-lawyers.
00:24:24.160 But what he is saying is that the prohibition on Confederate officers serving in office is not self-executing.
00:24:35.220 It doesn't go into effect on its own, but it needs rather an act of Congress to give it force.
00:24:40.940 And understand what was happening here.
00:24:42.640 These were state district judges who had presided over criminal trials.
00:24:46.900 So they were just, you know, a judge that—you had criminal defendants who had committed crimes.
00:24:51.340 And the argument of the criminal defense lawyers were, was, hey, these judges had previously taken an oath to defend the Constitution,
00:25:01.740 and then they supported the Confederacy, so therefore they're ineligible to serve as state judges under 14th Amendment Section 3,
00:25:11.280 and therefore my criminal conviction is not valid because the judge that presided over it doesn't have the authority to serve in it.
00:25:17.660 And what Chief Justice Chase concluded was, no, that's not true, because Congress did not legislate to give that effect.
00:25:28.220 Now, do I think this determination is binding and conclusive on the court? No.
00:25:34.500 And the way it works, a decision by an individual justice—so the way it worked, Supreme Court justices used to do what was called ride circuit.
00:25:46.160 And so the justices riding circuit—and it was literally riding circuit meant, in many cases, getting on a horse and riding around the circuit.
00:25:55.400 Each justice had a different judicial circuit that they were the appellate judge for.
00:26:00.460 And they would hear appeals as individual judges. In some ways, it sort of functioned like they were the court of appeals.
00:26:07.280 And look, this is relatively early in our country's history, so you didn't have the full court of appeals system we have now.
00:26:14.060 A 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.
00:26:26.100 That is binding Supreme Court precedent. An individual circuit justice is not.
00:26:30.800 But the decision of a circuit justice is considered persuasive. It's not binding, but it has real force.
00:26:38.340 And in this case, it's the Chief Justice of the United States opining on what the 14th Amendment meant.
00:26:44.060 And 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.
00:26:53.420 The 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.
00:27:02.100 But this is going to be a major topic of discussion in the oral argument.
00:27:07.180 When you look at which side has the strongest argument and compare it to the weakest, who walks in with the biggest advantage with these Supreme Court justices as it sits now?
00:27:18.780 So, and this is something I explained in the last podcast.
00:27:22.540 Look, I try to think, let me tell you how I approached arguments.
00:27:25.880 I really enjoyed being a Supreme Court litigator. It was an incredible joy.
00:27:30.680 And the way I approach...
00:27:31.660 By the way, I've got to ask you this question now, because everybody listening is going to want me to ask it, and I'm going to ask it.
00:27:36.280 Yeah.
00:27:36.880 People hear the name Ted Cruz, and they know that, obviously, you ran for president in 2016, that you love being a United States senator.
00:27:43.700 But every time I go around, and it happens multiple times a month, you're like, man, I wish Ted Cruz was on the Supreme Court.
00:27:50.980 Why isn't he on the Supreme Court?
00:27:52.480 Should he have been on the Supreme Court?
00:27:54.180 Because you're so good at it, and you love it.
00:27:56.480 So can you dive into that for just a moment?
00:27:58.620 Because everybody asks me that question, and I always laugh, and I'm like, well, there's some backstories there.
00:28:04.560 But why isn't Ted Cruz on the Supreme Court?
00:28:07.860 Yeah, look, it is a very flattering, it is a very kind thing to say.
00:28:11.800 And as you know, as I travel around, people say to me, with some regularity, you should be a Supreme Court justice.
00:28:17.760 And look, my response when someone says that, I just say thank you, because that's, look, that is an incredibly gratifying thing to say.
00:28:24.460 The short answer is, I do not want to be on the Supreme Court.
00:28:29.220 And when Donald Trump was president, that opportunity was very real.
00:28:35.860 So for all three of the vacancies that occurred under Trump, Trump had very serious conversations with me about them.
00:28:44.360 The most serious concerned the initial vacancy, which was Justice Scalia's seat that was vacant.
00:28:51.060 It was ultimately replaced by Justice Gorsuch.
00:28:53.760 And right after the presidential election in 2016, in November, I flew up the next week to New York.
00:28:59.840 I went to Trump Tower.
00:29:00.880 I spent four and a half hours with President-elect Trump and with his senior team.
00:29:06.980 And he spent an enormous amount of time really leaning in and frankly trying to convince me that the Supreme Court was a great option.
00:29:15.600 Now, I don't want to overstate it.
00:29:16.900 He didn't offer me the position, but it was not subtle what he was saying and what his team was saying.
00:29:23.100 They were all like, what the hell's wrong with you?
00:29:24.560 Why don't you want to go to the Supreme Court?
00:29:27.640 Here's the answer.
00:29:29.260 I think the court matters exquisitely.
00:29:32.720 I've spent, other than my time in the Senate, I've spent almost my entire adult life litigating in front of the U.S. Supreme Court.
00:29:40.560 I think it is an incredibly important institution for the rule of law, for our constitutional liberties, for our freedoms in America.
00:29:48.200 A principled federal judge stays out of politics and stays out of policy fights.
00:29:56.900 And if I were a federal judge, that's what I would do.
00:29:59.540 I would stay out of those fights.
00:30:01.920 The simple answer, Ben, I don't want to stay out of those fights.
00:30:04.980 I think policy fights and political fights matter intensely.
00:30:09.580 And frankly, listen, I think there are a lot of people who are wonderful human beings who want to be tremendous judges or justices.
00:30:18.100 And I would like to be involved in nominating or confirming scores of wonderful constitutionalists to the federal bench.
00:30:26.820 I don't want me to be one of them.
00:30:28.460 Because if you want to fight in the political arena, the right place to do so is in the elected positions in government.
00:30:36.720 So I'm in the United States Senate.
00:30:38.160 I think of the Senate as the Roman Coliseum.
00:30:42.200 And to be honest, look, how many people do you know in the Senate that are actually standing up and fighting this fight every day?
00:30:50.620 It's a small number.
00:30:51.700 I'm not going to give you a number.
00:30:53.040 But it's not huge that are effectively going to battle day in and day out, defending the Constitution, the Bill of Rights, defending conservative principles, defending our values.
00:31:04.780 And I jump out of bed every day eager to do that fight.
00:31:08.360 And so when Trump talked to me very seriously about the Supreme Court, I told him flat out, no, I don't want it.
00:31:15.780 I wouldn't accept it.
00:31:16.880 I am not interested in being on the court.
00:31:18.540 I care profoundly about who's on the court, but it ain't me.
00:31:23.540 Canadian women are looking for more, more out of themselves, their businesses, their elected leaders, and the world around them. 0.98
00:31:29.900 And that's why we're thrilled to introduce the Honest Talk podcast.
00:31:33.620 I'm Jennifer Stewart.
00:31:34.800 And I'm Catherine Clark.
00:31:36.020 And in this podcast, we interview Canada's most inspiring women.
00:31:39.780 Entrepreneurs, artists, athletes, politicians, and newsmakers, all at different stages of their journey.
00:31:45.520 So if you're looking to connect, then we hope you'll join us.
00:31:48.500 Listen to the Honest Talk podcast on iHeartRadio or wherever you listen to your podcasts.
00:31:53.040 One other question I want to ask you about this case moving forward.
00:31:58.660 You predicted that this is going to be probably a very stern Supreme Court on this issue with Colorado.
00:32:06.840 Yeah.
00:32:06.960 Has your mind changed at all since we did part one on that?
00:32:11.180 I mean, you're back in D.C.
00:32:12.400 You've seen, I guess, more of the press reaction.
00:32:15.080 You've seen more of the reaction in Washington.
00:32:17.960 Do you still think that the Supreme Court is eager to not only take this up, but also to say, hey, you can't in America, in the United States of America right now, we let the people decide.
00:32:28.140 We don't let people, you know, dictate who you can and can't vote for.
00:32:32.700 So let me say, I wouldn't say eager is the right adjective.
00:32:36.000 They're not eager.
00:32:37.220 The court would love to stay out of this.
00:32:40.240 They don't want to be involved in this presidential election.
00:32:42.560 They want to stay out of it.
00:32:44.240 But once Colorado ruled that they were pulling Trump off the ballot, the court had to get in.
00:32:50.780 And I actually think every justice recognized, OK, we've got a responsibility.
00:32:56.500 We can't duck this.
00:32:58.320 We've got to resolve this because this is the court exists to resolve the most important legal issues in the country, particularly concerning the Constitution.
00:33:07.520 And 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.
00:33:21.260 And 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.
00:33:29.220 Now, I also believe the odds are overwhelming, close to 100 percent, that the Supreme Court will reverse the Colorado Supreme Court.
00:33:38.520 I 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.
00:33:51.900 That is contrary to democracy.
00:33:55.020 It is an assault on democracy.
00:33:56.860 Ironically, 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.
00:34:13.580 I think the court is is going to easily reverse it.
00:34:16.920 And I I desperately hope I got to say there are very few things I have hoped for more passionately in that I can recall.
00:34:26.860 Then that I hope that this is unanimous.
00:34:28.920 If it's six three, if it's the conservatives voting to reverse and the liberals voting to affirm that is bad for the Supreme Court is bad for the country, it is bad for the rule of law.
00:34:40.340 It will cement the perception that the court is a political body and that is disastrous for the court.
00:34:48.360 I am certain that there is no human being on the planet that feels that urgency more intensely than Chief Justice John Roberts.
00:34:57.580 I know John Roberts very, very well.
00:34:59.420 We've been friends for 30 years.
00:35:01.500 He cares.
00:35:04.260 Exquisitely.
00:35:05.580 About the legitimacy of the Supreme Court.
00:35:07.980 So I think the Chief Justice is going to bend over backwards to find any theory that would produce a unanimous decision.
00:35:16.660 There are lots of theories he could do.
00:35:18.100 The 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.
00:35:30.620 The 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.
00:35:53.700 I'm convinced of that.
00:35:54.740 However, what is not clear is how you determine whether someone, quote, engaged in insurrection.
00:36:04.720 As I described in the last podcast, the Civil War was indisputably an insurrection.
00:36:10.020 No one can dispute that.
00:36:11.340 We had a four-year war with 600,000 dead Americans.
00:36:15.720 Like it was it is why the 14th Amendment Section 3 was passed.
00:36:20.220 It was in response to the Civil War.
00:36:22.160 It is the embodiment of an insurrection.
00:36:24.060 There is a real and acute debate over whether whether what occurred on January 6th, 2021 constitute an insurrection.
00:36:34.220 I think the answer is easy.
00:36:35.320 I think the answer is hell no.
00:36:36.560 I don't think it remotely reaches that level.
00:36:38.640 But there are those who disagree. 0.97
00:36:41.060 I will acknowledge there's disagreement with almost every damn Democrat and all the media. 0.94
00:36:45.500 They say routinely insurrection, insurrection, insurrection. 0.95
00:36:48.440 However, the constitutional question is how do you determine that someone has engaged in an insurrection in the Civil War?
00:37:00.140 Since nobody disputed the Civil War was an insurrection, the only question is did you engage in it?
00:37:05.220 So if you put on a Confederate uniform, if you had stars, stars on your shoulder, you were guilty like like that.
00:37:12.360 It was easy to determine whether you fell into that disqualification.
00:37:16.380 Yeah, it was it was as simple as you could make it at that point.
00:37:19.680 Yeah, yeah.
00:37:20.340 There was no no one disputed the Civil War was an insurrection.
00:37:24.700 And I'm not aware of anyone that disputed if someone was, in fact, a Confederate officer.
00:37:28.900 I don't know of anyone that said, no, no, I wasn't a Confederate officer.
00:37:31.140 Like the two pieces were admitted.
00:37:34.580 And so there was no meaningful factual dispute here.
00:37:40.180 There is a reason that Jack Smith and every other prosecutor that left wing prosecutor that hates Donald Trump,
00:37:47.660 that nobody has charged Trump with the crime of insurrection because you couldn't remotely prove that the facts don't demonstrate it.
00:37:56.240 And 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,
00:38:05.660 it'll be argued February 8th.
00:38:06.840 I'm going to predict it comes down February 19th.
00:38:11.600 I'm just pulling a date out.
00:38:12.920 It will be sometime between February 8th and March 4th.
00:38:15.420 I'm pulling a date out of the air saying February 19th.
00:38:18.420 When it comes down, I'm predicting right now there will be a sentence.
00:38:21.520 We express no opinion over whether the events of January 6th, 2021 constituted an insurrection or not.
00:38:32.120 However, in order for the 14th Amendment prohibition to apply, there needs to be a conclusive determination that it was an insurrection.
00:38:42.860 And for those who urge Trump should be ineligible, for the Biden Department of Justice, which has urged Trump should be ineligible,
00:38:52.360 they have a path to prove that case, which is to charge him with insurrection and convict him and obtain a final judgment that he is guilty of insurrection.
00:39:01.260 If they do so, he will be ineligible for office.
00:39:04.480 But 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,
00:39:18.300 but rather the decision of the next president should be made by the voters and the American people.
00:39:23.000 I think that that's what I would rule.
00:39:26.140 If I were a justice, that is the sort of opinion I would write.
00:39:29.520 And my hope is, I really hope the liberal justices are not infected by Trump derangement syndrome, like so many Democrats are,
00:39:40.480 that they recognize the damage to the court, if they make this a partisan decision, will be historic and irreparable.
00:39:48.680 So I pray they don't do that.
00:39:50.580 We're going to be watching it all here.
00:39:51.920 Don't forget we do this show Monday, Wednesday, Friday, and a week recap on Saturdays.
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