← The 47 Morning Update with Ben Ferguson
The 47 Morning Update with Ben Ferguson
Biden FURIOUS at DOJ, Demands Trump be put in Jail, plus Deep Dive into Colorado Supreme Court Argument
00:38:47
Loading summary
Transcript87 lines
- [00:01]
Ted Cruz
Welcome. It is Verdict with Senator Ted Cruz, Ben Ferguson with you. And we have a jam packed show for you today that deals with not only some shocking news coming out of Israel, but also the Supreme Court decision on taking Donald Trump off the ballot in Colorado. We're going to dive into both of those. But before we get to that center, a story that no one seems to be talking about and that is some breaking news that apparently Joe Biden was demanding that the attorney general, Merrick Garland put Donald Trump and his opponents in prison and is very angry that he didn't start the investigation to Trump earlier so they wouldn't have to, I guess, be running against him right now for the presidency. Your reaction to this coming out from POLITICO's reporting.
- [00:45]
Ben Ferguson
Well, POLITICO reported, quote, in recent weeks, President Biden has grumbled to aides and advisers that had Garland moved sooner in his investigation into former President Donald Trump's election interference. A trial may already be underway or even if concluded, according to two people granted anonymity discuss private matters. That trial still could take place before the election. And much of the delay is owed not to Garland, but to deliberate resistance put up by the former president and his team. In other words, the White House is complaining, Dammit, if only Merrick Garland had gone sooner, we could have locked Donald Trump up in jail. But. But that's not their only complaint. Beyond that, they are furious, volcanically furious with the Department of Justice, with Merrick Garland. Why? Get this. Because they haven't been political enough. Wow. We have discussed at great length on this podcast how this is, in my judgment, the most partisan and political Department of Justice in history. Doesn't matter. Not enough for Joe Biden in the White House. Here's what Politico reported. Quote, joe Biden has told aides and outside advisors that Attorney General Merrick Garland did not do enough to rein in a special counsel report stating that the president had diminished mental faculties, according to two people close to the president. As White House frustration with the head of the Justice Department grows, the report from Special counsel Robert her ultimately cleared Biden of any charges stemming from handling of classified documents that were found at Biden's think tank in his home. But her's explanation for not bringing charges that Biden would have persuaded the jury that he was a forgetful old man, upended the presidential campaign and infuriated the White House. So get this, they're not particularly happy that the Department of Justice is not indicting Joe Biden. They're not celebrating that DOJ is perfectly happy to Say, yep, one standard applies to Joe Biden. A totally different standard applies to Donald Trump. Donald Trump, we sent in storm troopers, we go raid Mar? A Lago, we prosecute him. But Joe Biden, he does the same thing. Nope, Nothing. Nothing to see here. None of that makes them happy. That's not political enough. The reasoning to justify that obvious double standard, which we covered on when on Friday's podcast. And by the way, if you didn't listen to Friday's podcast, you should go back and listen to Friday's podcast, because we discussed how in the Special Counsel Report, the Biden Department of Justice argued that Joe Biden is not competent to stand trial. Now, mind you, that was their explanation for why they weren't prosecuting him. That they couldn't convince a jury that Joe Biden had the mental faculties to. To be able to form willfulness. That's a remarkable standard. But now the Biden White House is throwing a fit. Well, it's one way or the other. Either he's not competent to be charged or he is, in which case he should be indicted. You can't have it both ways.
- [03:46]
Ted Cruz
Well, and it also sets, as you and I mentioned earlier, a major precedent. If the president's not being able to be held accountable, in their words, for things that he did wrong, willfully taking classified documents, you would assume that same logic would then extend to anything that deals with the Biden crime family. And then to have it and say this the other way, as you just described it, it's like they believe that this government just does and makes up the rules for them that apply to them in any which way they want, regardless of the law of the land, regardless of the Constitution, regardless of what it does to other people's lives, including now going after Donald Trump and people around him.
- [04:23]
Ben Ferguson
Well, and that's dangerous. It is dangerous. When the Department of Justice becomes thoroughly politicized, when it becomes a weapon to attack your enemies, a weapon to insulate the president and his allies, and when it becomes simply a political tool. And even though Merrick Garland is happy to be thoroughly, thoroughly political, it's not enough for the Biden White House. They want him to literally behave like an extension of the DNC when you.
- [04:54]
Ted Cruz
Talk about this reporting. Will any of this come back, do you think, to haunt the president here, especially for the fact that if now Garland's been named in this way publicly and that people are frustrated, is there a chance that Marilla Garland may now start to stand up a little bit more to the president because now he's Taking this heat directly from the president behind the scenes that were learning about in the news, I mean, that's embarrassing to his legacy at bare minimum.
- [05:17]
Ben Ferguson
You know, I doubt it. I have no reason to suspect that Merrick Garland has yet to demonstrate any willingness, any inclination to stand up to Joe Biden or political pressure so far, and we're three years in, you know, it's striking that this is also not new. Joe Biden, remember when he was campaigning, he said he wasn't going to put pressure on the Department of Justice. But, but, but here, play this clip. And then this is a clip from Joe Biden in 2019. And he's, he's jabbing his finger in Peter Doocy's face in Iowa. On, on reports that President Trump had president had pressured Ukraine's president to investigate the Biden crime family. And here was his response. Give a listen.
- [06:04]
Joe Biden
Trump deserves to be investigated. He is violating every basic norm. You should be asking him the question, why is he on the phone with a foreign leader trying to intimidate a foreign leader? If that's what happened, that appears what happened, you should be looking at Trump. Trump's doing this because he knows I'll beat him like a drum. And he's using the abuse of power and every element of the presidency to try to do something to smear me. Everybody looked at this and everybody's looked at it, said, there's nothing there. Ask the right question.
- [06:41]
Ted Cruz
Ask the right question. There's two things about that clip center. One, the clear cognitive decline even since back in 2020.
- [06:48]
Ben Ferguson
Speak that clearly now. I mean, it really is amazing. In just a few years, four years later, he can't articulate even a single clear, forceful, decisive sentence like he did then.
- [07:01]
Ted Cruz
And not only that, but he also saying, you guys need to go after Trump. He's basically telling the media, you don't ask me questions about what I've done. He says I've been cleared, which by the way, was not true. That's a l. But he's also saying like, get in your place, do your job. Go after Donald Trump. And now it seems that he's lost some control over this media that he's had control over for the last three plus years.
- [07:23]
Ben Ferguson
Yeah, that, that, that final line there asks the right questions. His attitude is the corporate media works for him. They're supposed to ask the questions he tells them to and they're supposed to shut up. As we discussed at length on Friday's podcast, the disastrous press conference Joe Biden did after the special counsel report suddenly the media wasn't following orders anymore. They were actually asking real and hard questions. And he was flabbergasted and angry. And to be clear, his efforts to try to push the Department of Justice to be his political attack dog, this is not new. On March 31, 2023, the New York Times reported the following quote, but he does have opinions. In the past, Mr. Biden privately told his close circle of advisers that Mr. Trump posed a threat to democracy and should be prosecuted for his role in the events of January 6, according to two people familiar with his comments. Amazing. Those same two people keep popping up. He also told confidence that he wanted Attorney General Merrick B. Garland to stop acting like a ponderous judge and to take decisive action. This has been over and over again the approach of the White House and the approach of Joe Biden. He believes DOJ and the FBI and all of the machinery of government is part of his partisan apparatus to attack his enemies and to protect himself above all else.
- [08:56]
Ted Cruz
To tell you about our friends over at patriot mobile. For 10 years patriot mobile has been America's only Christian conservative wireless provider. When I say only, trust me, they're the only ones. Patriot Mobile is a great supporter of this show. That's one of the reasons why I love them. I'm proud to partner with great companies that support conservative Christian values. And when you switch to Patriot Mobile, not only do they give you dependable nationwide coverage, giving you the ability to access all of the major networks, meaning you get the same exact coverage that you have right now. You get that same coverage you've been accustomed to, but without funding the woke left. You may not realize that Big Mobile supports Democrats and Democratic causes and candidates and Planned Parenthood with millions and millions of dollars in donations. That's why when you look at my cell phone, the top left, it says the word Patriot. I know every month when I get my bill I am supporting conservative causes that I stand behind. They actually at Patriot mobile take about 5% of your bill every month and they give it back to free speech organizations, religious freedom organizations, organizations that support and protect the sanctity of life, the second Amendment, as well as our military, our veterans, our first responder heroes and our wounded warriors. They have a hundred percent US based customer service team that makes switching easy. And you can keep your same cell phone number you have right now, keep your same phone if you have it that you have right now or upgrade to a new one. Plus the team will help you find the best plan for your needs and many times it can save you Big money every month. So go to patriotmobile.com verdict that's patriotmobile.com verdict or call them and make the switch. 972 Patriot that's 972 Patriot. Get free activation when you use the promo code. Verdict that's patriotmobile.com verdict or call them 972 Patriot. That's 9. Senator, one other thing I want to ask you. When it comes to this story, Axios came out and they are now basically reporting that it is a five alarm fire inside the White House's press department right now. It is a five alarm fire because the White House is now in this impossible position to fight to defend Biden's competency, his fitness to be President of the United States of America. And the damage control doesn't seem to be playing well with new polling out and the Sunday morning shows. We're talking about this. Joe Biden has lost the media on this front as well. And it matters because his team is scrambling to counter the her report. They say the president is a, is an elderly man with a great memory. Right. That's Joe Biden's word. But the report said it's an elderly man with poor memory. You've seen a lot of these political stories and how the tides can turn quickly. Is this going to be the undoing of the Biden presidential campaign? Can they overcome this? I know the aides are trying, but it seems like they've completely lost control of this story.
- [11:57]
Ben Ferguson
Look, this is a political crisis from their perspective. What happened? You know, there's an old line that a gaffe in Washington is when a politician accidentally tells the truth. In this instance, the Department of Justice of Joe Biden accidentally told the truth and they're now dealing with a political emergency. What to do about it? Biden responded by holding a press conference in which his meandering, rambling answers confirmed everything said in the special counsel report, including at one point, one of the elements of the report that demonstrated why his memory was so failing is it said he could not remember when his son had died. And when Biden is defending that, he points to some rosary beads that he wore that were given to him and he said were given to me by. Were given to me by. And then he can't remember what the details are about the rosary beads. That, to put it mildly, is not a good look when you're trying to demonstrate that you have a good enough memory to function. If you can't actually remember your response to that attack, that's a problem.
- [13:06]
Ted Cruz
It is a problem and it's going to be one that I think it's going to be a big advantage for Donald Trump moving forward. I want to also get into two other major stories here that need to be on everyone's radar screen.
- [13:19]
Ben Ferguson
And by the way, let me say something real quick also. So I was yesterday down at Mar a Lago with President Trump. And I'll tell you, I couldn't help but think the contrast between the two men because even though Donald Trump is just slightly younger than Joe Biden, he was his usual self. He was on the ball and quick and ready to fight and strong. And the contrast to the incredible loss of faculties from Joe Biden, it really struck me. I spent quite a while with President Trump last night and it is night and day. And I think that is gonna be evident to the voters every day from now until election Day.
- [14:02]
Ted Cruz
When you spoke with him quickly, I just wanna ask you, what was his mood about this election? I mean, he's under fire all over the place. We're gonna talk in a moment about the Supreme Court and what's gonna happen there with Colorado and your predictions on that. But what was his demeanor like?
- [14:17]
Ben Ferguson
Very positive, very confident. He was in a good mood. He was laughing, he was feeling good. He was having dinner at dinner at Mar a Lago. He was having dinner with, with Melania and with, with Barron Trump Barons now like six foot eight is really a tall kid. And he was in good spirits all night.
- [14:35]
Ted Cruz
That I want to move to Colorado real quick and talk about this, this Donald Trump versus Colorado Supreme Court. The Supreme Court heard the Trump ballot oral arguments. The justices appeared very skeptical of removing him from the ballot. Not just in Colorado, but it seemed like in theory, anywhere in the country, this is what you had predicted and you said you were hoping that we would have a nine on decision. Some of these on the left were actually out there attacking Colorado's arguments. Give a recap of kind of now what your thoughts are and what happened in court.
- [15:14]
Ben Ferguson
Well, I think the oral argument very much confirmed what what you and I said on this podcast the day after the Colorado Supreme Court decision came down. I said in that immediate next podcast, I said this decision is an outrage. It is lawless. It is completely contrary to the rule of law, to the Constitution, and it is the gravest assault on democracy of our lifetimes. And I predicted, then I said the Supreme Court will take the case. They will schedule it quickly for decision, for oral argument. They will decide it quickly. They will reverse this decision. And I said at the time, I think there's a very significant chance that they reverse it unanimously. Well, almost every element of that prediction has already come true. They took it. They took it quickly. They scheduled it for an exceptionally accelerated oral argument. It was argued on February 8. The justices right now, I think, are scrambling to write their opinions. I expect a decision from the Supreme Court within the next couple of weeks. I think as quickly as they can get the opinion finished, they'll get it out. But I do think they will feel some real urgency. I think we will have a decision in the month of February, and I continue to think there is a very real chance that it is a unanimous decision. The oral argument, every one of the justices who ask questions express serious skepticism as to the position of Colorado. And it's worth. Let's just play some of these exchanges. So let's play, for example, Justice Ketanji Brown Jackson from rising again in the.
- [16:48]
Justice Ketanji Brown Jackson
Context of these sort of local elections as opposed to focusing on the presidency.
- [16:54]
Jason Murray
Well, two points on that, Justice Jackson. First is that as I discussed earlier, there isn't the same history of states regulating ballot access at this time. So ballot access rules to restrict presidential candidates wouldn't have, wouldn't have existed. They wouldn't have been raised one way or another.
- [17:11]
Justice Ketanji Brown Jackson
Right. But I'm not making a distinction between ballot access and anything else.
- [17:15]
Jason Murray
Understood. But the more, the more broad point I want to make is that what is very clear from the history is, is that the framers were concerned about charismatic rebels who might rise through the ranks up to and including the presidency of the United States.
- [17:28]
Justice Ketanji Brown Jackson
But then why didn't they put the word president in the very enumerated list in section three? The thing that really is troubling to me is I totally understand your argument, but they were listening people that were barred and president is not there. And so I guess that just makes me worry that maybe they weren't focusing on the president. And for example, the fact that electors of vice president and president are there suggests that really what they thought was if we're worried about the charismatic person, we're going to bar insurrectionist electors and therefore that person is never going to rise.
- [18:07]
Jason Murray
This came up in the debates in Congress over Section three, where Reverdy Johnson said, why haven't you included president and vice president in the language? And Senator Morrill responds, we have look at the language. Any office under the United States.
- [18:22]
Justice Ketanji Brown Jackson
Yes, but doesn't that at least suggest ambiguity? And this sort of ties into Justice Kavanaugh's point. In other words, we had a person right there at the time saying what I'm saying the, the language here doesn't seem to include president. Why is that? And so if there's an ambiguity, why would we construe it to, as Justice Kavanaugh pointed out, against democracy?
- [18:47]
Jason Murray
Well, revered E. Johnson came back and agreed with that reading any office is clear. The constitution says about 20 times.
- [18:54]
Justice Ketanji Brown Jackson
No, I don't, I'm not going to that. So let me, let me, let me just say you. So your point is that it's that there's no ambiguity with having a list and not having president in it, with having a history that suggests that they were really focused on local concerns in the South.
- [19:09]
Ted Cruz
I mean, Senator, she wasn't having it at all.
- [19:12]
Ben Ferguson
Yeah, look, that's, there are times that Supreme Court arguments where justices try to hide where they're coming from. That's not one of them. That's one of the central arguments being made by Trump. It's one of the central arguments that I made in the amicus brief that I filed on behalf of some 170 members of Congress, which is that that President of the United States is not enumerated in Article 14, Section 3 and does not fall within the broader and more general terms. And that is emphatically what she's saying. Now give a listen, listen to Justice Gorsuch and he's coming every bit as hard.
- [19:49]
Ted Cruz
Before I do that, I want to tell you about blackout coffee. I mentioned it earlier and if you want the best cup of coffee that you're going to get in the morning without the wok left agenda, you gotta check out blackout coffee. They are 100% committed to conservative values. From the sourcing of the beans to the roasting process, customer support and shipping. They embody true American values and they accept no compromise on taste or quality. There's a lot of coffee companies out there that are really woke. Stop giving your money to leftist companies and get yourself the best cup of coffee you can get with a hardcore conservative group of individuals that started it. 100 great coffee. 100America 0% woke agenda. Go to blackoutcoffee.com verdict that's blackout coffee.com verdict and use the promo code verdict for 20 off your first order. I start my day with blackout coffee every day and I love it. Be awake, not woke. BlackoutCoffee.com verdict Promo code verdict for 20 off your first order. Blackout Coffee.com verdict All right, take a listen real quick to Justice Neil Gorsuch at the Supreme Court. Back and forth with Colorado's attorneys.
- [21:03]
Justice Neil Gorsuch
Three speaks about disqualification from holding office. You say he is disqualified from holding office from the moment it happens.
- [21:12]
Jason Murray
Correct.
- [21:12]
Justice Neil Gorsuch
But nevertheless, it operates. You say that there's no. No legislation necessary. I thought that was the whole theory of your case. And no procedure. It happens automatically.
- [21:24]
Jason Murray
Well, certainly you need a procedure in order to have any remedy to enforce the disqualification, which I understand.
- [21:29]
Justice Neil Gorsuch
That's a whole separate question. That's the de facto doctor. Doesn't work here. Okay. Put that aside. He's disqualified from the moment self executing. Done. And I would think that a person who would receive a direction from that person, the president, former president, in your view, would be free to act as he or she wishes without regard to that individual.
- [21:53]
Jason Murray
I don't think so. Because I think, again, the defacto officer doctrine would nevertheless come into play to.
- [21:58]
Justice Neil Gorsuch
Say this is no de facto. That doesn't work, Mr. Murray, because de facto officer is to ratify the conduct that's done afterwards and insulated from judicial review. Put that aside. I'm not going to say it again. Put it aside. Okay. I think Justice Leo's asking a very different question, a more pointed one and more difficult one for you, I understand, but I think it deserves an answer. On your theory, would anything compel a lower official to obey an order from, in your view, the former president?
- [22:31]
Jason Murray
I'm imagining a situation where, for example, a former president was, you know, a president was elected and they were 25 and they were ineligible to office, but nevertheless, they were.
- [22:40]
Justice Neil Gorsuch
No, we're talking about section three. Please don't change the hypothetical. Okay, Please don't change the hypothetical. I know, I like doing it, too, but please don't do it.
- [22:48]
Jason Murray
Well, the point I'm trying to make.
- [22:50]
Justice Neil Gorsuch
Is he's disqualified from the moment he committed an insurrection. Whoever it is, whichever party that happens, boom, it happened. What would compel. I'm not going to say it again, so just try and answer the question. If you don't have an answer. Fair enough. We'll move on. What would compel a lower official to obey an order from that individual?
- [23:11]
Jason Murray
Because ultimately we have. We have statutes and rules.
- [23:14]
Ted Cruz
Senator, for many people that maybe have never heard oral arguments before, there's no cameras in the court, but there is this audio. This is what I would refer to as a beat down.
- [23:24]
Ben Ferguson
Yes. Look, that was brutal. And the basic back and forth we're hearing is typical of oral arguments. You know, people think of a Supreme Court argument and they often imagine some grand oration. They imagine, you know, Dr. King, I have a dream. They imagine, you know, John F. Kennedy giving some rousing speech. But that's not what Supreme Court argument is. It is typically two lawyers standing there. Usually they have 30 minutes each and they are laying out arguments as to why their side should prevail. And almost the entire argument consists of the nine justices asking questions and asking very difficult questions. And you're hearing that back and forth and it shows the weaknesses of the arguments. Now, in that instance, Justice Gorsuch is saying, look to the Colorado lawyer, your theory is the instant an insurrection happens and a president participates in it, that instant that president is no longer eligible to be president and in fact, he cannot hold the office instantaneously. And also your theory is that it is self executing, which means Congress does not need to pass any legislation to give force to it, to give a procedure to it. It just in the ether instantaneously makes him, you're not president anymore. And so he's asking him, well, if by operation of the Constitution in that instant he's not president, why would anyone in the government listen to him from that moment on? And the lawyer had no answer to that. He couldn't give any. He tried to dodge. He tried to change the hypothetical. That did not go well.
- [25:00]
Ted Cruz
Justice that's not what you put on your resume one day if you're arguing on behalf of the Colorado voters. The part where he's like, I know what you're trying to do here, but don't do that again. Stop it. If you can't answer, move on. That's the beat down at the Supreme Court.
- [25:13]
Ben Ferguson
Yeah. And here listen to a little bit more from Justice Gorsuch on a similar.
- [25:18]
Justice Neil Gorsuch
Line of questioning that this court has held. You're not contesting this or asking us to revisit that decision in Thornton or term limits or whatever you want to call it, that it has to come from some federal constitutional authority.
- [25:31]
Jason Murray
No, we are not, your honor.
- [25:32]
Justice Neil Gorsuch
Okay. And here we're not talking about the qualifications clause, Right? Nobody's talking about whether he's 35 years old or natural born, whatever. Right? Not an issue. Okay. We're talking about something under the 14th Amendment and Section 3. So that's where you have to find your authority. Right?
- [25:52]
Jason Murray
We find our Authority in Article 2 in states Plenary power to run their election, federal election.
- [25:57]
Justice Neil Gorsuch
But this is for a federal office. It has to come from the Constitution. And you're seeking to enforce Section 3.
- [26:05]
Jason Murray
We're suggesting that in their broad power to determine them, to select presidential electors in any manner they see fit, they can take account of section 3 and apply section 3.
- [26:15]
Justice Neil Gorsuch
Could they do it without section 3, could they disqualify somebody for, you know, on whatever basis they wanted outside of the qualifications clause?
- [26:24]
Jason Murray
That would run into term limits?
- [26:26]
Justice Neil Gorsuch
Yeah, I would think so. Right. So it has to come back to section three. And if that's true, how does that work given that Section 3 speaks about holding office, not who may run for office? It was a point Mr. Mitchell was making earlier and I just wanted to give you a chance to respond to it because it seems to me that, that, you know, that you're asking to enforce in an election some context provision of the Constitution that speaks to holding office. So it's different than the qualifications clause, which is all about who can run and then serve.
- [26:58]
Jason Murray
Yeah, I don't know that it is different. Other qualifications for office similarly talk about eligibility for the office. There's nothing unconstitutional about a 30 year old trying to get on the back, except for this.
- [27:10]
Justice Neil Gorsuch
Disability can be removed right under section three. That's what's different about it.
- [27:14]
Ted Cruz
I mean, he's not letting up there. And these are really not that hard of questions. It's just when you have not a lot to back it up in, in Colorado, you're in trouble.
- [27:24]
Ben Ferguson
Well, they are hard questions because Colorado's argument is stupid. Like, it's just not right. It's not what the Constitution Sundays. You had four partisan Democrat justices in Colorado who hate Donald Trump, and they hate Donald Trump so much that they're willing to say to the voters of Colorado, you don't get to vote for him. I hate him so much, I'm scared you voters might choose to vote for this man. So I'm going to take him away. But it does not have a basis in the text of the Constitution, which is why Colorado's position is going to lose.
- [27:59]
Ted Cruz
All right. Which by the way, is why I have to play Clarence Thomas, one of your favorite justices here, going back and forth with Jason Murray. And he asked a very simple question and it's one that was just brilliantly done by Clarence Thomas. And I want to get your reaction to it. Listen to this.
- [28:17]
Justice Samuel Alito
The concern was that the former Confederate states would continue being bad actors and the effort was to prevent them from doing this. And you're saying that. Well, this also authorized states to disqualify candidates. So what I'm asking you for, if you are right, what are the examples?
- [28:37]
Jason Murray
Well, your honor, the examples are states excluded, many candidates for state office, individuals holding state offices. We have a number of published cases of states.
- [28:47]
Justice Samuel Alito
I understand that. I understand the states controlling state elections and state positions. What we are talking about here are national candidates. I understand you look at Foner or Foote, Shelby Foote or McPherson. They all talk about, of course, the conflict after the Civil War. And there were people who felt very strongly about retaliating against the south, the Radical Republicans, but they did not think about authorizing the south to disqualify national candidates. And that's the argument you're making. And what I would like to, to know is you give is do you have any examples of this?
- [29:34]
Jason Murray
Many of those historians have filed briefs in our support in this case, making the point that the, the idea of the 14th Amendment was that both states and the federal government would ensure rights and that if states failed to do so, the federal government certainly would also step in. But I think the reason why there aren't examples of states doing this is an idiosyncratic one of the fact that elections worked differently back then. States have a background power under Article 2 and the 10th Amendment to run presidential elections. They didn't use that power to police ballot access until about the 1890s. And by the 1890s, everyone had received amnesty and these issues had become moot.
- [30:13]
Ted Cruz
I mean, it's, it's amazing that Colorado took it this far because to me, this seems like there's a decent chance this could be exactly what you thought it could be a unanimous decision or even an 8 to 1.
- [30:25]
Ben Ferguson
Well, and to underscore that, so we played. Obviously Justice Thomas and Justice Gorsuch are conservatives, but let's listen now to Justice Elena Kagan and remember what I said at the outset, which is that I believe this had a very good chance of being unanimous. I think the Chief justice desperately wants it to be unanimous. And I think the way it gets to be unanimous in particular is the Chief justice goes to Elena Kagan, who I think is the smartest of the liberal justices. She was the former dean of the Harvard Law School. She was former Solicitor General of the United States. She's, she's very, very smart. Listen to Justice Kagan asking the Colorado lawyer Jason Murray questions.
- [31:04]
Ted Cruz
If you're like me, you probably start off your morning with a really good cup of coffee. And if you don't get that good cup of coffee, you're probably a little irritable. Now, look, I start my morning early. I start on the radio at 7am I have got to be awake and be in, in a great place to get the show going. And if I don't have a cup of coffee, it's a problem for me. Now when I get my cup of coffee in the morning. I want to make sure it's not a woke company that's getting my money. You know which woke companies I'm talking about right now that are in the coffee business. And that is why I want you to know about an incredible brand, blackout coffee. They are 100% committed to conservative values. This coffee is 100% America and 0% woke. The world may be up in flames. Bidenomics is a complete and total disaster. But it's doesn't ruin my day because I could start my day with an America first cup of blackout coffee. You need to try them and I'm going to give you a way to try them and save money while doing it. From sourcing the beans to the roasting process to customer support and shipping, they embody true American values and they accept no compromise on taste or quality. And that's one thing that's important for me. I want a premium cup of coffee in the morning and that's what I get every day with blackout coffee. Now let me save you some money so you can try blackout coffee because once you switch, you'll never going to go back to that woke coffee you're drinking now. Go to blackoutcoffee.com verdict use the promo code verdict for 20 off your first order. Yeah, 20 off blackout coffee.com verdict be awake, not woke. That's blackout coffee.com verdict promo code verdict. Take a listen to this very interesting back and forth between Justice Kagan and the Colorado lawyer Jason Murray.
- [32:52]
Jason Murray
Justice Kavanaugh. There has to be some process for determining those questions. And then the question becomes, does Anything in the 14th Amendment say that only Congress can create that process? And section five very clearly is not an exclusive provision. It says Congress shall have power.
- [33:07]
Justice Elena Kagan
But maybe put most boldly, I think that the question that you have to confront is why a single state should decide who gets to be president of the United States. In other words, you know, this question of whether a former president is disqualified for insurrection to be president again is, you know, just say it. It sounds awfully national to me. So whatever means there are to enforce it would suggest that they have to be federal national means. Why does, you know, if you weren't from Colorado and you were from Wisconsin or you were from Michigan, and it really, you know, what the Michigan secretary of state state did is going to make the difference between you know, whether candidate A is elected or candidate B is elected. Man, it seems quite extraordinary, doesn't it?
- [33:56]
Jason Murray
No, your honor, because ultimately it's this court that's going to decide that question of federal constitutional eligibility and settle the issue for the nation. And certainly it's not unusual that questions of national importance come up.
- [34:08]
Justice Elena Kagan
Well, I suppose this court would be saying something along the lines of the decision, state has the power to do it. But I guess I was, I was asking you to go a little bit further and saying, why should that be the right rule? Why should a single state have the ability to make this determination not only for their own citizens, but for the rest of the nation?
- [34:28]
Jason Murray
Because Article 2 gives them the power to appoint their own electors as they see fit. But if they're going to use a federal constitutional qualification as a ballot access determinant, then it's creating a federal constitutional question that then this court decides. And other courts, other states, if this court affirms the decision below determining that President Trump is ineligible to be president, other states would still have to determine what effect that would have on their own state's law and state procedure.
- [34:57]
Justice Neil Gorsuch
Well, I mean, if we, if we.
- [34:59]
Ted Cruz
Affirmed, I mean, Senator, even she, someone you would expect would be on the side of Colorado not really having it either.
- [35:06]
Ben Ferguson
Yeah. Look, and as I said, I don't think any justices are going to vote with Colorado. I think we're going to see in all likelihood a unanimous decision. And she's focusing on, you know, earlier we played Ketanji Brown Jackson, and she was focusing on the fact that that president is not an officer that is specified in the 14th Amendment, Section 3. Justice Kagan's point in pointing out, well, why does one state get to do this? And if one state gets to do it, couldn't another state do something different? What do you do with that? And let's, let's do one other clip which emphasizes that point. And you remember, we did an entire podcast talking about the amicus brief that I filed, and this was an argument that I made on behalf of 170 members of Congress. And I think it's a really powerful argument. Let's listen to Justice Alito asking about that argument in particular.
- [35:53]
Justice Ketanji Brown Jackson
Thank you.
- [35:55]
Ted Cruz
Thank you, counsel.
- [35:56]
Justice Neil Gorsuch
Justice Thomas.
- [35:57]
Justice Samuel Alito
Justice Alito, suppose there's a country that.
- [36:02]
Jason Murray
Proclaims again and again and again that.
- [36:04]
Justice Samuel Alito
The United States is its biggest enemy.
- [36:08]
Jason Murray
And suppose that the president of the United States, for diplomatic reasons, think that it's in the best interests of the United States to provide funds or release funds that, so that they can be.
- [36:21]
Justice Samuel Alito
Used by that, by that country.
- [36:24]
Jason Murray
Could a state determine that that person has given aid and comfort to the enemy and therefore keep that person off the ballot? No, your honor, this court has never interpreted the aid and comfort language which also is present.
- [36:38]
Ben Ferguson
So that's another enormous problem with Colorado's argument, which is that if Colorado is able to throw Donald Trump off the ballot, you're going to see other states act, you're going to see red states throw Joe Biden off the ballot. And the hypothetical that that Sam Alito asked, it's a very good hypothetical. He's obviously talking about Iran. And Iran is led by an ayatollah who chants death to America, who has murdered hundreds upon hundreds of servicemen and women, American servicemen and women, who's the biggest funder of state funder of terrorism in the world. And Joe Biden has flowed $100 billion to the Ayatollah. Now, as Justice Alito pointed out, Biden argues it's for diplomatic reasons. But under the argument of Colorado, some other state could say, well, no, we conclude you're giving aid and comfort to our enemies. So Joe Biden is off the ballot. And the lawyer's answer was just, well, no, no, no, no, that's a different provision. So, no, no, we like Joe Biden, so you can't do that. I think that demonstrates that the theory behind this decision is insupportable and it leads to chaos and it fundamentally leads to judges battling each other to decide elections rather than the voters deciding elections. And so I'm going to reiterate, I think the chances that the U.S. supreme Court reverses this decision are 100%. And I think the chances are significant, more likely than not, that the decision will be unanimous. And I think we will get it this month, the month of February.
- [38:16]
Ted Cruz
It's going to be very interesting to watch. Don't forget, as always, we do the show on Monday, Wednesday and Fridays. Make sure you hit that follow button if you're listening on Apple or subscribe or auto download button wherever you get your podcast. And we do a week in review, if anything, you missed that we talked about begging the week on Saturdays as well. So if you want to get that as well, it is auto downloadable as at any time. Just hit that button wherever you get your podcasts and the center and I will see you back here on Wednesday morning.