← The 47 Morning Update with Ben Ferguson
The 47 Morning Update with Ben Ferguson
Can Biden Drone Strike Trump? SCOTUS Immunity Decision Fully Explained
00:30:22
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- [00:01]
Ben Ferguson
Welcome. It is verdict with Senator Ted Cruz. Ben Ferguson with you. Senator. It was a massive ruling from the Supreme Court on Trump immunity. And there are a lot of questions now that people have about this ruling.
- [00:16]
Senator Ted Cruz
Well, this was a major victory for President Trump in the Supreme Court. It was a vote of 6 to 3. Chief Justice Roberts wrote the majority opinion and concluded that Trump has very broad immunity for official acts. We'll break down exactly what that means, but one of the things it means is that Jack Smith's prosecution is in serious, serious trouble and likely won't be able to proceed at all. We'll explain it all.
- [00:40]
Ben Ferguson
Yeah. And there's a lot of people that have so many questions about presidential power now and what that means. The extreme left going crazy on that. We'll break it down. Let me tell you real quick about blackout coffee. I tell you now, it's like every day I get a note from one of you saying, ben, all right, I tried it. You were absolutely right. Blackout coffee is amazing coffee from a conservative company that said, get rid of the woke brands of coffee that you're drinking now. This is not an average cup of coffee. This is a premium cup of coffee. I start every morning with it. I'm on the radio 7:00am I got to be awake, not woke. And I want a premium cup of coffee. Well, this coffee is 100America and 0% woke. Blackout is committed to conservative values. From 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. Now, if you've never tried blackout coffee, I'm going to make it easy and I'm going to save you a bunch of money. Go right now to blackoutcoffee.com verdict. That's blackout coffee.com verdict. Use the coupon code verdict. You're going to get 20 off your first order. Whether it's traditional coffee or flavored coffee or if you travel a lot like I do and you want to take premium instant coffee, that has been a game changer for me. I take it with me everywhere on the, on the road, and you're gonna love it. So get 20 off your first order. Blackout Coffee.com verdict. That's Blackout Coffee.com verdict. Be awake, not woke. Use the promo code verdict for 20 off your first order. Center. I really say this, I don't even know where to start with this ruling. So there's two aspects. There's one, the ruling itself. And. And I guess we should probably start there. What does this mean? And Then we'll get into the politics of it afterwards. But the Supreme Court overwhelmingly said that ex presidents have substantial protection from prosecution.
- [02:33]
Senator Ted Cruz
Well, that's right. And let me just explain a little bit of the ruling. So the Supreme Court laid out three categories of presidential action. It said, number one, presidential action that is within the President's exclusive constitutional authority, there is absolute immunity. So what does that mean? That means powers that the Constitution gives directly to the president, things like being the commander in chief of the armed forces, things like granting a pardon, things like nominating a judge, things like firing a cabinet member. All of those are matters that are given to the exclusive authority of the President of the United States. And the second category the court laid out are presidential powers that are shared with Congress. And in that instance, the court says the President has immunity there also, but it did not decide whether the immunity is absolute or presumptive. And presumptive means you presume that there's immunity, but the prosecution could lay out a strong enough case to overcome that immunity, and it leaves that question open. So that's not decided. The third category are unofficial actions and unofficial actions not exercising the power of the presidency. Those have no immunity whatsoever. And what the court then did is remanded the case all the way back to the trial court for the trial court to figure out which of the actions that are alleged in the indictment fall into which category.
- [04:10]
Ben Ferguson
So remain. That is to break this down in layman's terms means they basically said, you guys didn't do it right. You didn't even categorize it correctly. We're sending it back to you. Do your paperwork the right way, in essence, and then start all over.
- [04:23]
Senator Ted Cruz
Yes, but, but, but it's not quite as harsh as that. This is something courts do all the time. And in particular, look, the court is laying out a new test here. So anytime the court is laying out new rules, it is commonplace to send. Send the case back to the lower court to apply those rules, to figure out what those rules mean with respect to the specific case. And, and part of the reason is the way our appellate system works is courts of appeals review decisions and judgments made by the lower courts. And so it is an exercise of judicial restraint to say, let's let the lower court figure this out first, and then we'll review any arguments of error on appeal.
- [05:05]
Ben Ferguson
So this is why the timeline is significant, right? With the election coming up.
- [05:10]
Senator Ted Cruz
Yes. And so one almost certain outcome is there will be no trial on Jack Smith's case on January 6th before election day. There simply Isn't time. It's before the district judge. She's going to have to go through. This is going to be very complicated legal analysis. Both sides are going to present arguments as to what is, what is an exclusive official act which is absolutely immune. What is an official act, whether that is entitled to presumptive immunity or absolute immunity, and what is not an official act that is entitled to no immunity. And that is going to be action by action. And it will be. I think Jack Smith is going to have a very difficult time having any of his case survive.
- [05:52]
Ben Ferguson
When you look at Jack Smith and you mentioned any of his case surviving, this case was clearly brought to either put Trump in jail, tie him up in court, interfere with the election. Could they even go forward with this case? If, hypothetically, Donald Trump does win the presidency all over again, would that affect the case or basically kill the case? And if he loses, what's the point of moving forward? Because he's no longer, in theory, a threat to the Democratic Party being the president. Is that another reason just to say, all right, well, we did what we need to do, we wanted to accuse him of a bunch of things and throw jello to the wall.
- [06:26]
Senator Ted Cruz
So theoretically, the case could proceed in either instance. However, if Trump loses, you're right, the urgency of the case from the perspective of the Democrat partisans is reduced. If Trump wins, this case is over. And it doesn't have to be over, by the way. But when Trump is sworn in on January 20, 2025, the instant he's sworn in, he has the authority to direct the Department of Justice dismiss the case. The Attorney General works for him. And I fully expect at 12:01, on January 20th, new President Trump will instruct the Department of Justice dismiss both of these prosecutions. They were political prosecutions. They should not have been brought. And you are to go to court as the prosecutor and say, we are dismissing our claims.
- [07:19]
Ben Ferguson
Bill Barr, who has been very critical of the president, he even came out and said this Former U.S. attorney General, obviously, about the immunity decision. I want to get your reaction to that.
- [07:30]
Senator Ted Cruz
Let me ask you first off about what this case comes down to. Donald Trump has absolute immunity from criminal.
- [07:38]
Unnamed Legal Expert
Prosecution, but only for official acts. Is it going to be up to.
- [07:43]
Senator Ted Cruz
A lower court than determine the difference?
- [07:46]
Unnamed Legal Expert
That's right. I think this was a very sensible decision that I think most lawyers familiar with this area expected, which is this went up to the court in a very abstract posture, which, which was the government's very broad assertion. There was no immunity whatsoever. What the court's Saying here is no, there's absolute immunity when he's acting directly under the Constitution, carrying out a function under the Constitution. There is presumptive immunity when he performs an official act, and the government has the burden of showing that it can prosecute him for that without impairing the executive function. And finally, there's no immunity for unofficial or private acts. And I think the, and the practical effect of this is that the district court is going to do what it really should have done at the beginning, which the government really should have had it do, which is do the analysis. So the facts are going up to the Supreme Court. So as a practical matter, there's not going to be a trial of this case before the election.
- [08:42]
Ben Ferguson
That's the ball game, right? I mean, this is another massive victory for Trump.
- [08:47]
Senator Ted Cruz
It is a massive victory for Trump. And now, now the district court is going to have to sort it out. But let's talk a little bit about what those categories mean and why the court drew that distinction. And let's start with category three, private acts. There are all sorts of things that are private acts and for which there is no immunity. If Joe Biden wandered outside the White House and saw a man walking on the street and pulled out a gun and shot him, that would have no immunity because that's a private act. That's not exercising an authority, a power of the president. That's just committing murder. If a president sexually assaulted an intern, say, that would have no immunity, because that's also not a presidential power. That's not exercising presidential authority. That's committing a private wrong. If a president committed, say, perjury or obstruction of justice, let's say, hypothetically, a president named William Jefferson Clinton, who was facing a civil lawsuit, went into the civil lawsuit and lied that lie under oath about his sexual activities, that is in no way, shape or form an official act. That is a private act. Under this decision, that president could be prosecuted for perjury or obstruction of justice. If he goes and hides the dress with evidence of his sexual activity and obstructs an investigation into it, that could likewise be prosecuted. All of those are private acts. There's no, there's no presidential power being carried out there. The court's reasoning. So that's category three. But there's very little, if anything, in Jack Smith's indictment that arguably falls into that category. This is not private misconduct. Category one, the category that the court says is absolutely immune. The court focuses on the text of the Constitution, and actually it draws, it draws this, this model from a Landmark decision of the court called Youngstown Steel. And Youngstown Steel dealt with when. When Harry Truman seized steel mills. And Justice Robert Jackson, one of the greatest Supreme Court justices ever to serve on the Court, described different levels of presidential power. And he described presidential power when the President was acting in concert with Congress and congressional authority, said their presidential power is at its highest. And then he said a second category is when the President is acting in an area where Congress has been silent, their presidential power is at a middle level. And a third category is when a president is acting directly contrary to what Congress has said. And there, he says, presidential power is at its lowest because you've got two branches in conflict. That was a model the Court drew upon here. And what the court concluded, it drew its reasoning from Article 2 of the Constitution, which vests, quote, executive power in a President of the United States of America, which grants the President duties of, quote, unrivaled gravity and breadth. And it reasoned that the president's authority to act, if it stems from either an act of Congress or from the Constitution itself, and when acting within the constitutional authority, the president's actions are beyond the scope of congressional or judicial review. And the court further held that an act of Congress cannot criminalize the president's actions within his exclusive constitutional power, and that courts cannot adjudicate a criminal prosecution examining such actions. And so the reasoning there is, listen, if the President is exercising a power that the source of the power is the Constitution, Congress doesn't have the power to step in and say, we're going to take away the power that the Constitution gave you, because the Constitution is the supreme law of the land.
- [13:13]
Ben Ferguson
So I've got like, 15 different questions, and I want to go through these because it's the question I think everybody's asking Democrats. When this came out, the first thing they started fantasizing over was, fine, well, we've just gotten a. A dictator and a tyrant. Then in the White House, if Trump gets back in and do whatever he wants to. And they said, well, then, you know what? If he's going to do it, then maybe we should do it. Let's just Send sealed Seam 6 as a official act to go after and just take out Donald Trump. That was what they were talking about online. That would not be covered under an official act, correct?
- [13:50]
Senator Ted Cruz
Well, it's actually more complicated than that. And this is a hypothetical that's been asked at several stages in the litigation. In the Federal Court of Appeals. They asked that hypothetical to Trump's lawyers at the Supreme Court. That example is used by one of the dissents in the Supreme Court. And look, the reason it's complicated is because the presidency has vast authorities, and one of those authorities is being commander in chief of the armed forces. The president does have the power to kill people and has always had the power to kill people. And to be clear, every president who's ever served has killed people. That is part of the power. Commander in chief. Now, you have responsibilities in terms of how to do it, but I'll give an example. Barack Obama ordered the drone killings of US Citizens abroad who were believed to be terrorists. He ordered the military send a drone over there and blow that guy up. Now, to be clear, Ben, if you or I did that, we'd be prosecuted for murder. Yeah, we don't have the ability to order the drone killings of an American citizen. Barack Obama was never charged with murder. And so part of the reason why that hypothetical. Look, it sounds absurd, but remember, presidents are given massive authority, including literally the authority to push a button and launch nuclear weapons that could annihilate humanity. It is terrifying. It's one of the reasons why Joe Biden being non compos mentis, but not being utterly unaware of what's around him is so damn dangerous, because he's the one person in America that has the power to exterminate our species.
- [15:37]
Ben Ferguson
In the three dissented in this ruling, one of the examples, I want to go back to it, because the justice claim immunity ruling allowed presence to poison staff. And again, their example, I have Navy SEAL team, SEAL team members kill political rivals. The Chief Justice Roberts really pushed back hard, saying that was nothing but fear mongering. So to be clear, this does not give the president power to poison their staff, Right?
- [16:04]
Senator Ted Cruz
It does not, but. All right, what are the checks that would stop a President from ordering Seal Team 6 to kill a political rival? One of the most important checks is Seal Team 6 could and should refuse that order. That the military has an obligation. If there is an order that is plainly unlawful, the military should refuse to carry it out. And so if Joe Biden told SEAL Team Six, go kill Donald Trump, which, by the way, lefties on Twitter are calling for every two minutes, which shows you listen. When you're a totalitarian that wants to hold power at any time, it is interesting how revealing it is that they're immediately calling for murder. That says a lot. But the first check would be that a blatantly unlawful order would be refused to be carried out by the military. Secondly, if, God forbid, we had truly an abusive tyrant as president, and if the Military refused to carry it out. The next immediate step would be impeachment. And you would have to assume if a president murdered his rival that you would see Congress impeach him immediately.
- [17:25]
Ben Ferguson
Well, even on msnbc, they were having this conversation on the SCOTUS immunity ruling and they said in their words, Trump could target, like journalists could target, quote me. That's what Wallace said. And then he said, people, if he wins, will be forced to flee the country.
- [17:41]
Senator Ted Cruz
Listen, Supreme Court in Russia exists, but none of us think that there's a rule of law there. When you look at this opinion, instead, it just doesn't know it. Yeah, yeah, exactly. Marco Lias we should pull the curtain back on what's actually happening, shouldn't we? People are exploring options to live in other countries if they think they could be targeted for prosecution by Donald Trump. Because targeting you or targeting me or targeting Andrew would be an official act based on today's decision.
- [18:12]
Unnamed Legal Expert
Yeah, I mean, they could target for criminal prosecution, they could target for administrative investigation, the irs, the sec, the epa.
- [18:22]
Ben Ferguson
I mean, they're not just talking about death, they're talking about using the President, saying, I'm going to target everybody I want to. And use all of the things, by the way, which Democrats have done. They've used the justice system, they use the irs, the Tea Party, for example, they've gone after people and raid their homes. Steve Bannon's in jail right now. The list goes on and on and on of all the things that they're doing actually right now, before this ruling, that had nothing to do with this ruling. Now they're like, well, we're gonna have to leave the country, cuz he's just going to target all of us.
- [18:50]
Senator Ted Cruz
So I gotta say, what utter garbage, the two of them. Oh, they're gonna target us. They're gonna target us. That's what Joe Biden is doing right now. Joe Biden, this Justice Department is the most lawless, partisan, weaponized abuse system of justice ever seen. The absolute irony of those people saying, oh, Trump's gonna do that. You know what? When he was president before, he didn't do that. It is you, you dishonest partisan hacks that are going after that have the four indictment against Trump. As you noted, Steve Bannon is in jail right now. They are. Peter Navarro is in jail right now. You're going after pro life protesters. You're attacking, you're refusing to go after people who are firebombing pregnancy resource centers. The absolute hypocrisy. The people who invented weaponization are now saying, well, we're scared we'll be targeted. It's utter garbage. You know, I gotta say, you're in. My friend Jesse Kelly, he tweeted it in response to this. I think his tweet was very insightful. He said, you know what you call it when SCOTUS reveals the President has immunity. And the first thought the communists have is about using the military to execute political opponents. In poker, that's known as a tell. For instance, if you told me that the President can do whatever he wanted without restriction, my very first thought would be about firing government employees and eliminating entire federal agencies. For communists, their thoughts go directly to murder. Again, a tell.
- [20:29]
Ben Ferguson
It's a great point. And it goes back to the insanity of all of them. They do this and then, you know, you look at the Supreme Court and again I go back to listen to Norm Eason on CNN immediately after this happens. Listen to what he says. When the President does it, that means it is not illegal. So in this context, with what the court has decided, Norm, does this mean that Nixon basically would have been able to do what he did completely legally, without any recourse?
- [21:02]
Unnamed Commentator
You could have had substantial portions of Richard Nixon's wrongdoing that drove him from office because it was conducted from the Oval Office, using his official advisers to engage in break ins. A wide variety of other illegal activity would have been impossible to prosecute. Essentially what the Supreme Court majority, again, including terribly conflicted justices who have no business sitting on this case under any standard of judicial ethics. What they've done, Sarah, is rewrite American history. It goes all the way back to the founding American idea. We overthrew King George III because we did not want a ruler to have this kind of absolute immunity. And the Supreme Court has now altered that. And we have to be honest that we're facing a major party political candidate who has said he wants to be a dictator on day one. He wants to assert autocratic powers. They've just given him a license for dictatorship within the purview of official acts. That should be extremely alarming. And it makes this momentous election really a referendum on the future of American democracy.
- [22:29]
Ben Ferguson
A license for dictatorship. Like, come on cnn.
- [22:33]
Senator Ted Cruz
What utter garbage. And again, the Freudian projection is so utterly rich. It is Joe Biden whose Department of justice is targeting its political enemies. It is Joe Biden who is engaged in rampant censorship of the free speech of American citizens. It is Joe Biden who issued a blatantly illegal vaccine mandate that was thrown out by the courts, but fired thousands and thousands of active duty service men and women, fired FBI agents, fired border patrol agents because they refused to comply with his illegal vaccine mandate. And to be clear, the court struck down his vaccine mandate, but he had already gotten rid of the people he wanted to get rid of. It is Joe Biden, who repeatedly issues lawless orders, trying to give away a trillion dollars in student loans that he has no legal authority to do. He knows they'll get struck down in court, but he's trying to buy votes that is utterly lawless. It is Joe Biden who, on the border, is ignoring the entirety of federal immigration law and has released, has allowed 11 million people to come into this country illegally, who is ignoring the Americans who are being murdered, who are being raped by the criminals he's releasing. And yet you have these numbskulls go on CNN and say, oh, well, this means Trump can be a dictator. Trump didn't do any of that. Everything I just listed, Trump actually followed the law. He exercised his power. He implemented policies that proved very beneficial for the American people. It is the Democrats. And look, look. When Alejandro Mayorkas was impeached for utterly defying the law, for refusing to follow immigration law, every single Democrat in the Senate, all of them voted to throw out the case and to hear no evidence. So they don't care about the rule of law. They care about power. The reason they're angry and hyperventilating is because this case is an effort to weaponize the justice system, to stop the voters from voting to elect Donald Trump. And this ruling they view as getting in the way of what they want to do, which is weaponize the justice system to subvert democracy. The irony is, he says, this is a blow to democracy. What they're doing is an attack on democracy, and they're frustrated that their attack on democracy is not working.
- [24:57]
Ben Ferguson
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- [27:22]
Senator Ted Cruz
Uh, you know, I think you may be overthinking it. I, I, I don't think they're capable of thinking strategically or rationally on this. They just hate him. They want to attack him on every front. It, it is always about Orange man bad. It is always about Trump is the devil. And so they're just gonna have, you're gonna see cries of frustration, you're gonna see tears on msnbc. Trump winning terrifies them. Look, these cases, the Jack Smith case is not gonna proceed before the election. It's gonna take significant time to brief out and decide the immunity questions that now have been sent to the lower court. And it's not clear that any of the Jack Smith case survives. Once you go through the analysis of what constituted an official action, either an exclusively official action or an official action with shared authority with Congress, very little, if any of the Jack Smith indictment will survive that analysis. But, and actually, Alvin Bragg, it's interesting. You know, we were supposed to have the judicial sentencing of Trump two days before the Republican convention. That now is going to be delayed. And the reason it's going to be delayed is as soon as this decision came down, Trump's legal team asked to brief the judge there as to why those convictions should be thrown out under the reasoning in this Supreme Court decision. And the court said, yes, that the court will consider legal arguments on that question. And that meant that the sentencing had to be delayed. And Alvin Bragg agreed to delay the sentencing. Now, I gotta say, he pretty much had to. With this decision coming down, it is obvious that the court at least needs to consider what is the relevance of this decision to the convictions against Donald Trump. Now, the court said when it was scheduling arguments that it thought that the arguments were baseless. So I'm going to predict right now the New York judge is going to say no, that decision doesn't change anything. And it is true that the conduct at question occurred before Trump was president. And so it is in no way, shape or form an exercise of presidential authority. And so there are lots of reasons why the decision from the New York trial court is an absolute abomination and an abuse of power and why it will be reversed on appeal. But it may well be that, that it's not going to be because of this decision, because this decision concerns the exercise of presidential powers and Trump was not president when the conduct in question occurred.
- [30:06]
Ben Ferguson
It's going to be interesting. We're going to be following it here. Don't forget we do the show Monday, Wednesday and Friday. Make sure you hit that subscribe or auto download button. Please share this podcast wherever you are on social media so other people get to hear it. And the senior I will see you back here Friday morning.