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- [00:00]
Michael Knowles
The media have declared Joe Biden the winner of the 2020 presidential election. But under our constitutional system, it turns out that the media don't actually get to pick who the President is. Fortunately, we are joined by a constitutional expert, somebody who knows a lot about elections. He will help us understand the nitty gritty and who, in fact, will be the president. This is Verdict with Ted Cruz. Welcome back to Verdict with Ted Cruz. I am Michael Knowles. Senator, I am no constitutional expert. I did not go to law school. But I think I am right in saying this. The media don't get to pick the president.
- [00:45]
Ted Cruz
Right? Thankfully, Although Lord knows they're trying. It is the voters who decide. And, you know, I gotta say so you and I are filming this on Tuesday night. Election Day was a week ago. We haven't done a podcast since before Election Day. I kind of feel like Thomas Jefferson in the musical Hamilton coming back saying, so, what did I miss? Like, holy crap, what a week this has been. There's never been a week like this in politics, in media, in life. And the consequences for the nation are enormous.
- [01:32]
Michael Knowles
You know, we've gotten a lot of messages, people asking, why didn't you do an episode during the election or the day after the election? And I think people sometimes forget you are a sitting U.S. senator. You know, you do have a pretty busy schedule and the events have been changing in real time. Obviously, on election night, you had certain cable networks calling Arizona, for instance, for Joe Biden. Then it seems like people were walking that back. Now it seems unclear who's gonna get Arizona. You had a lot of votes come in really late in Pennsylvania, in Wisconsin, in Michigan, you had the polls counting, stopping just at 10:00 at night. And then it was supposed to not resume until the morning. Now there are reports that resumed in the middle of the night. There's just so much disinformation, misinformation. And on the legal front, obviously, there are so many questions. So I know you have been through this actually before. You were a lawyer on President George W. Bush's team during the Florida recount. And the questions of the 2000 presidential election. What are we looking at here in terms of President Trump's chances for a second term, in terms of the ability to find fraud in Philadelphia, for instance. Where are we on the legal front?
- [02:44]
Ted Cruz
Well, I'll start with a radical proposition, which is that elections are decided when the results have been counted and the legal proceedings are over. That didn't used to be a controversial proposition. Think back to election night. I was here in Houston was at an election party with a number of friends. That night was a great night. Republicans were winning, we were winning the Senate, we were winning House seats, and President Trump was winning reelection. Early on, Florida was called for the president. Early on, Ohio was called for the president. And we were leading. I went home to go to bed about 2 in the morning, and we were leading in Pennsylvania and Michigan and Wisconsin. I mean, it looked like a really strong night. And then I suspect a lot of us went to bed and we woke up in the morning and it's like, what happened? There are multiple lawsuits all over the country right now playing out. There are going to be recounts in multiple states. All of those proceedings have to be concluded before we know who actually will be the winner, state by state by state. And that's gonna take in all likelihood, several weeks. It's not gonna take six months. But the litigation is not gonna be over by tomorrow. And the night of the election, number one, the media, two outlets, Fox News and ap, were really precipitous calling Arizona. That was clearly a mistake. You know, when CNN is calling out Fox for being too anti Trump, you know, somebody's jumped the shark somewhere. I mean, that's a problem. But the instant the vote total shifted to Joe Biden, we've seen virtually the entire mainstream media try to engage in an immediate coronation. Big tech engage in total censorship of any view to the contrary. And they're behaving with this weird, you know, I mean, it's almost like they're persecuting heretics. If you dare say, well, let's wait till the litigation is resolved. They scream at you, you're undermining democracy. That's nutty. No, democracy means if they're legal challenges, you resolve the legal challenges. And by the way, this happens in elections all the time. We see recounts, we see litigation, we see disputes over if there were votes that were illegally cast, that litigation has to be resolved. And, you know, the way it plays out, there are cases in state court, there are cases in federal court. The cases in state court will be adjudicated in a trial court. They will, in many instances, go up to an intermediate court of appeals. They will go up maybe to the state supreme Court, and then the US Supreme Court can take it from the state system. There will also be cases in federal court that start in federal district court, maybe go up to the court of appeals, and they can go up to the Supreme Court. So if you look at Bush versus Gore, as you know my book, One Vote Away, it's a whole chapter on Bush versus Gore, and it goes into great detail. Bush versus Gore took 36 days. When we arrived in Florida, within days, we had a chart of seven different cases that were all pending just in one state, just in Florida.
- [06:22]
Michael Knowles
Right.
- [06:23]
Ted Cruz
Any one of which could have cost the presidency of the United States. And it was chaos. We went to the Florida Supreme Court twice. We went to the US Supreme Court twice. And when I say went to the U.S. supreme Court, I mean briefed the case, argued it, and got. Got a written decision from the Supreme Court twice in those 36 days. Wow. And. And by the way, we also tried a full case in the Florida trial court in addition to multiple other arguments. So the court system can operate, but all of us should expect the courts to resolve these claims. There are lots of claims of voter fraud. I don't know which claims are accurate and which aren't. You don't know which claims are accurate and which aren't. That's why we have a legal system. That's what courts do. And in today's world, where you see this Twitter allegation, that Twitter allegation, all sorts of things, it's really hard to know. All right. What really is the state of affairs? Well, we ought to allow the legal system to actually hear evidence, to examine the data, to listen to witnesses, to examine evidence, and to make factual determinations. That's why we have a judicial system, of course.
- [07:37]
Michael Knowles
And the idea that there was no fraud whatsoever seems to me very difficult to believe. You called this out. And I have to tell you, I don't mean to flatter you, Senator, but you were one of the few elected Republicans who actually came out strongly on this. Specifically, in Philadelphia, you had Republican poll watchers show up. Every election. You got poll watchers from both campaigns. They show up, they make sure there are no shenanigans going on. Republican poll watchers were turned away. There was then a court order that said, you have to let the Republican poll watchers in. What happened? They still encountered resistance. Trying to take a look at these polls, that is outrageous. That is illegal. And who knows if that threw an election. We can't know that. Obviously, a legal process has to play out. But to say that there is no evidence whatsoever and we need to certify these results and move on, and waiting even five days is too long and unprecedented. That just seems to be not in correspondence with reality.
- [08:30]
Ted Cruz
Well, and let's take that component for a moment. I've been trying to be very active, both on social media and also on media media, engaging in these Issues and leading the fight. It's interesting. The media talking points and the Dem talking points on the Pennsylvania ballot observers is, well, no, no, no, they were in the room. What they ignore is that they were being kept 20ft away or 25ft away. If you've ever tried to actually look at a ballot 25ft away, you can't see the damn ballot. You are not actually an observer if you're 25ft away. Ultimately, they went to a Pennsylvania state court and got an order to be six feet away. To be honest, it's hard to observe a ballot six feet away if you're trying to see are the guys cheating? And that's a second point. To understand, it can sound like, oh, it's a technicality. It's a procedural issue whether there were observers there. But the reason that the law mandates the observers be there is to prevent people from engaging in fraud, to prevent people from stealing votes.
- [09:42]
Michael Knowles
Yeah.
- [09:42]
Ted Cruz
You look at Bush vs Gore, one of the first things the Democrats did is they sought recounts in four overwhelmingly Democratic counties in Florida. And I talk about in my book One Vote Away, how on the Bush legal team, and I was a young lawyer at the time, I was in my late 20s and was part of. It was an incredible legal team that came together for George W. Bush. We had a big debate about, okay, do we counter by asking for recounts in four overwhelmingly Republican counties? So if they're going to go seek recounts in Democratic counties, does it help us to do get recounts in Republican counties? We didn't do so. We decided, no, let's not do so. And I'll tell you the reason why. Because we believe to a person that in the Democratic recounts that the hard leftist partisans would cheat, that they'd be sitting there, those had chads, and they'd literally be poking them out with their fingernails. Like, if you didn't look, boom, there you go. Another vote for Gore. And. And what we said is, look, our guys won't cheat. Like, if we do a recount in a Republican county, it doesn't help us because the guys counting us are gonna come up with basically the same count that thankfully, I'm glad our guys won't cheat. Now, look, some observers may say, oh, that's a pretty partisan view of things. I can't prove as a conclusive fact that the Democratic counters cheat significantly more than the Republican counters do. What I can tell you is the reason we didn't seek a recount in the Republican counties is that all of our lawyers, all of George W. Bush's Lawyers believed that.
- [11:22]
Michael Knowles
Right.
- [11:23]
Ted Cruz
And so we didn't seek a recount. And as they recounted it, you kept seeing the numbers for Gore grow and grow and grow. I mean, it, it, it clearly played out in the pattern we anticipated.
- [11:34]
Michael Knowles
And just for people who think there isn't historical precedent here, obviously you've got Bush v. Gore, you've got the 2000 recount, but actually, your predecessor in the Senate from Texas, Lyndon Johnson, who obviously went on to become president, there's great controversy about his 1948 election to the Senate, where I think it was about a million votes cast, and he won by something like 87 votes. You know, it was fewer than 100 votes. And it all came from box 13. Box 13, a box of ballots from a notoriously corrupt county. And there was allegations that it had been stuffed. President Roosevelt actually joked about stuffing ballot boxes at the time.
- [12:14]
Ted Cruz
This is an American tradition, unfortunately, it is. There has been significant voter fraud. And by the way, in these big Democratic cities, cities like Pennsylvania, cities like Philadelphia, cities like Detroit and Michigan, in Detroit, they put poster board and covered up the ballot counting areas to hide them. You know, an analogy I use this weekend on one of the Sunday shows, I said, listen, if someone goes into a bank and shuts off all the security cameras, what is the natural inference that leads?
- [12:48]
Michael Knowles
Right.
- [12:49]
Ted Cruz
It's not that they're intending to do nothing wrong. I mean, if you're shutting off the mechanism for observing it, that people naturally say, well, there's a reason you don't want people to see what you're doing. But let me say, okay, in terms of where we are, I mean, a lot of people are asking, all right, where do we go? What's next? Yeah, let me give you good news and bad news.
- [13:11]
Michael Knowles
Okay, give me the good news first.
- [13:14]
Ted Cruz
Okay, the good news first. There is reason for some optimism because, listen, this was a weird election with COVID and you had massive mail in votings and in person voting, the data show that on election day, the people that went physically to the polls and voted in person, that Trump won those by a significant margin. The data also show that in many states on the mail in votes, that Biden won those by a significant margin. So here's the good news. In a recount or in an election contest, litigation, in person, election day votes are significantly less likely to be deemed illegal.
- [13:58]
Michael Knowles
Right.
- [13:59]
Ted Cruz
It's harder to cheat those votes. Generally, the count is what it is. And the in person election votes rarely change mail in votes. If you look at recounts, if you look at election contests, some significant percentage of mail in votes fairly predictably are excluded as this doesn't meet the legal standards. This is whether it's, you know, someone, a dead person, whether it is someone who didn't sign the thing, like for whatever reason. That varies state by state. But mail in voters have a significantly higher percentage of being excluded. In this instance, mail in voters are predominantly for Joe Biden. So we may well see as these recounts go forward, a larger percentage of Biden votes being deemed illegal than Trump votes. We don't know that, but there's reason to have optimism. Now, let me give you the flip side.
- [14:53]
Michael Knowles
Okay, I'm braced for it. What's the bad news for the Trump.
- [14:57]
Ted Cruz
Team to prevail, they can't just win in one state. They've got to run the table. So let me give you some of the numbers because it's this, this is the challenging piece. So right now, all right, I'm using the New York Times election results as one source. New York Times has Biden with a 279 electoral lead to 214. You need 270 to be elected president. So it has Biden with 279. So the Times hasn't called Georgia. Right now Biden has a 14,000 vote lead in Georgia. So we need to pick up 14,000 votes in Georgia. The Times hasn't called Arizona. Right now, Biden has a 12,000 vote lead in Arizona. Now let's talk about the states that they have called for Biden. Wisconsin with 10 electoral votes. Biden has over a 20,000 vote lead in Wisconsin. Nevada with 6 electoral votes. Biden has over a 36,000 vote lead in Nevada. Michigan with 16 electoral votes, Biden unfortunately has 148,000 vote lead in Michigan. That's a big lead. Yeah. And then Pennsylvania, which is the big enchilada in terms of the most electoral votes of the states we're talking about, Biden has right now about a 45,000 vote lead. That is a lot of votes to shift in a recount or a contest litigation. If you look at Florida and Bush versus Gore, the whole course of it, we were talking about a few thousand votes.
- [16:33]
Michael Knowles
Right.
- [16:33]
Ted Cruz
At the end of the day, George W. Bush won by 537 votes.
- [16:37]
Michael Knowles
Right? Right.
- [16:38]
Ted Cruz
The totals in Florida started out much, much closer than where these totals are. And if we were talking about one state, you could be more optimistic about what the result would be. In this instance, the Trump team's gotta win in a whole bunch of states.
- [16:58]
Michael Knowles
Right. I suppose even when you hear those numbers I mean, it's amazing how thin some of Michigan accepted, how thin some of the margins are in Georgia, for instance, or Arizona or Wisconsin even. But, you know, that is very tricky because time is running out. I suppose one cause for hope is that we are in this bizarre year of the universal unsolicited mail in. So perhaps that gives a greater opportunity to flip them, but perhaps not. I mean, that's a lot of votes in a lot of states. So what you're saying is let the legal process play out. Do not in no way declare the winner, you know, or go along with the media, but maybe don't pop the champagne yet. There's still a long hill to climb.
- [17:38]
Ted Cruz
Well, and look, there are instances. Let's take there was a county in Michigan that has publicly admitted that there was what they called a software glitch that shifted. Glitch, 6,000 votes from Trump to Biden. Now, thankfully, they caught it. They caught it and they did a hand recount and discovered, wait, our results are way off what we anticipated. And they said it's a glitch. This software is used, I believe, in 47 counties in Michigan. So look, if there were 6,000 votes shifted in all 47 counties, that would be enough to move the margin. What the Michigan officials are arguing, however, is that this, quote, glitch is idiosyncratic to just this county and that it's not present more widely. Now, this is an example of there's a reason to be skeptical of their sort of self serving explanation. But it actually is going to take the lawyers proving this in court. It's going to take right now. And I've been on the phone with the President, I've been on the phone with Jared Kushner, I've been on the phone with the White House. I have been urging them to bring in a stronger legal team, more serious, high powered litigators and to go make their case. At this point, yelling about it isn't going to change it. You got to go into court and you got to put on evidence and demonstrate to a court a legal basis that the margins, we're talking about state by state, that that portion of the votes were illegally cast and that's gotta be proven with cross examination with evidence. And we're not there yet. I hope we get there. But that's not an easy task and it takes some real hard, careful, diligent work.
- [19:43]
Michael Knowles
Right, Right. Okay. You have not completely thrown me into despair. There is still some cause for hope and obviously we'll see that play out. One of the reasons I think a lot of people want President Trump to get reelected is because they are so infuriated at the blob, the deep state, the administrative state, the out of control agencies, whatever you want to call it. And speaking of legal questions, I was wondering if you were going to be arrested for murder earlier today because you eviscerated Mr. Andrew McCabe, one of these corrupt officials who was involved in the entire hoax and the scandals of 2016 surrounding that election and thereafter. It's not getting any play. I notice the Testimony of Andrew McCabe is not getting any play because everyone's focused on the presidential. But I thought it was extraordinarily telling. It's one of the most important issues of the past four years. And maybe going forward. Could you just take us through a little bit of what happened? First, we'll just play a little clip of your grilling of Mr. McCabe.
- [20:42]
Ted Cruz
Mr. McCabe, yesterday on MSNBC, Ben Rhodes, the former deputy national security advisor to President Obama, said that foreign leaders are already having conversations with Joe Biden, quote, talking about the agenda they're going to pursue January 20th. Mr. McCabe, based on that testimony, do you believe Joe Biden is violating the Logan Act?
- [21:02]
Michael Knowles
I'm not aware of Ben Rhodes statements.
- [21:05]
Ted Cruz
Or take it on faith. He said what I read, assuming he's. That quote is accurate. It's a verbatim quote. Is that a violation of the Logan act under any plausible theory? I am not prepared to take your.
- [21:17]
Michael Knowles
Statement on faith, and I am also.
- [21:20]
Ted Cruz
Not prepared to conduct legal analysis. All right, you're a lawyer. Have you ever answered a hypothetical in court? If it is correct that I am accurately quoting it, something the Department of Justice frequently did wrong in this investigation, if that is what Ben Rhodes said, if Joe Biden is talking with foreign leaders right now, does it violate the Logan act, yes or no? I'm not going to opine on a hypothetical question about what the Biden campaign. He is talking with foreign leaders. And it doesn't violate the Logan act because the Logan act is unconstitutional, which is why it's never been used to prosecute anyone. You authorized using it to go after General Flynn as part of a political persecution. I can give you the answer, Hell no. Joe Biden is not violating the Logan Act. The reason you won't say it is because that was your flimsy political basis to go after a decorated war hero because you disagreed politically with President trump. Well, look, McCabe was the deputy director of the FBI. Today was significant because there's been a conflict there's been a conflict for a couple of years between McCabe and James Comey, his boss, over whether Comey authorized him and directed him to leak to the press. Comey's testified now repeatedly under oath, under penalty of perjury, that he did not, that he never has, that he didn't. McCabe had told the press that Comey had authorized him, but today was the first time McCabe ever said that under oath. So that's a big deal. It's one thing. Look, it ain't a crime to lie to the press. May not be a good idea, it may not be honorable or ethical, but it is not. It doesn't carry a prison term to lie to the press. If you lie to Congress under oath, that is a crime. And so my objective in this cross examination was to get and Comey testified before the election. I got him on record again saying, no, he didn't authorize McCabe to do this. McCabe, now, you want to talk about a slippery witness. Boy, this guy, he's smarmy in political and hates Trump and is a hardcore Democrat and was up to his eyeballs in the political persecution of the president. But finally, after trying to wriggle away repeatedly, repeatedly, repeatedly, he said on the record, yes, Comey did authorize me. And critically, I ended this cross examination by saying, Mr. McCabe, the FBI has the records to demonstrate who's telling the truth. Either you're telling the truth or Comey's telling the truth. You can't both be one of you is lying. Do you think the FBI should release the records, whether emails or memoranda or whatever documents they have, if you're telling the truth, to vindicate you, to show that you're telling the truth. And if Comey's telling the truth, to vindicate him, do you think the FBI should release the materials? And McCabe said, yes, they should release the materials. Well, hot diggity dam, I can tell you I pulled my chief counsel aside right after the hearing and said, all right, I want you to draft a letter to Bill Barr and to Chris Wray, which we will send in the next day or two, quoting Comey's testimony, quoting McCabe's testimony, pointing out they're directly in conflict, that the FBI has records demonstrating who's lying and who's telling the truth. And now even McCabe is calling for them to be released. And I'm going to ask Barr and Ray, release them now and let us know who committed perjury, because they can't both be true. One said, yes, One said, no, it is impossible for both to be testifying truthfully.
- [25:10]
Michael Knowles
And this is the issue we hope for, in Secretary of State Mike Pompeo's words. We hope for a smooth transition into a second term for the president. But in any case, there is no reason not to get this information out now. You know that you won't get it under a Democratic administration. So very important. I thought the grilling was just terrific to watch, and I do hope that we can see the release of this kind of material, and I do hope that these people are held to account. Speaking of these agencies that are out of control, I want to get to two mailbag questions. First, one from Kim. Joe Biden, if he is named president, wants to issue a lot of executive orders that would overturn Trump's executive orders. How easy is that to do? After the Supreme Court upheld one of Obama's unconstitutional executive orders, doesn't that make it harder for Biden to overturn Trump's eos? If Biden actually gets elected, that is. What is the deal here? We've always told, you know, live by the executive order, die by the executive order that they're easy to overturn.
- [26:09]
Ted Cruz
But.
- [26:10]
Michael Knowles
But sometimes the court has shown us that they're not so easy to overturn.
- [26:13]
Ted Cruz
So that is a really smart, savvy question. If we were living in a world of principle and reason, the answer to that should be yes, it does make it harder. All right, let me step back and answer it a little bit differently. In any ordinary world where you're following the law, a president can issue an executive order, the next president can rescind the executive order, and the power to do so is unlimited. Now, it's a different question, whether the executive order is legal, but the power to rescind an executive order is complete and total. And an executive order, by the way, should not be making law. It is directing the executive. Their executive order is going back to George Washington. But those are instructions from the president to the executive branch. Here's how you are to execute the law. And that's an authority. Obama abused it by trying to change the law, which an executive order can't do the Supreme Court lawlessly. And the most egregious example of it was this past summer. In June, the Supreme Court struck down President Trump's revoking Obama's amnesty executive order. And it was John Roberts and the four liberals. And John Roberts wrote what I think was a deeply unprincipled opinion where the chief justice didn't dispute that Obama had no authority to Issue the executive order. And he said, of course Trump can rescind it, but he didn't provide enough explanations as to why. So we're gonna call a process foul and send it back. And the thing that is utterly and completely hypocritical is the chances that John Roberts holds a Joe Biden presidency to the same standards are zero. It was clearly a pretext to reinstate amnesty. And it's frankly, it's the same pretext John Roberts and the four liberals did the prior term in the census case where the Trump administration was gonna ask in the census, are you a US citizen? A question that has been asked for 200 years. It's been asked over and over and over again in censuses. Are you a citizen? Well, left wing activists don't like that question cuz they don't want how many people are here illegally?
- [28:45]
Michael Knowles
Yeah.
- [28:47]
Ted Cruz
And Roberts played the same game, said, well, of course you can ask that question, but the memo laying it out, you didn't have good enough reasons. So we're striking it down and saying, show your work, go show your homework a little more. And it was a political game because they ran out of time and so didn't ask the question. That gamesmanship will only apply to Trump. Biden will, I think, repeal executive orders. I think if Biden is president, he will reenter the Paris climate agreement. If Biden is president, I think he will reinstate many aspects, if not the entirety of the Iran nuclear deal. There's a lot the President can do unilaterally. If Republicans keep the Senate, we can stop the worst legislative things.
- [29:38]
Michael Knowles
That's also something I suppose to hope for. Now, Senator, I know you don't want me to bug you about future plans, so I will not. But I felt this was a very important question, so I'm going to include it. This is from Tommy. If Senator Cruz ever seeks higher office, will he keep the beard? I think he should. Senator, your answer?
- [29:59]
Ted Cruz
Damned if I know. The beard's been fun. I grew it on a whim. I've had fun with it at some point. Heidi is not crazy about the beard, so there is some pressure to get rid of it. We'll see how it shakes out. I'm having fun with it right now.
- [30:16]
Michael Knowles
Senator, I would like on the record, you know, I won't be like Andy McCabe here. I won't try to be weaselly about my answers. I am fully 100% pro beard. I think if for the verdict listeners, if you agree with my position on this, please let us know on Twitter. I think it's great. It has lots of Abraham Lincoln vibes. I think it's cool. If I were able to grow a beard, I would. Unfortunately, it doesn't quite work out on me. But maybe someday in the future.
- [30:42]
Ted Cruz
Well, I will say that the baby face is a good look for you.
- [30:46]
Michael Knowles
Well, that's very kind. Thank you, Senator. I appreciate that very much. And I will try to keep the baby face. We will. I'm sure the next time we speak have a million more developments in this crazy, crazy end to a crazy, crazy year. In the meantime, I'm Michael Knowles. This is Verdict with Ted Cruz.
- [31:12]
Ted Cruz
This episode of Verdict with Ted Cruz is being brought to you by Jobs, Freedom and Security pac, a political action committee dedicated to supporting conservative causes, organizations and candidates across the country. In 2022, jobs, freedom and Security PAC plans to donate to conservative candidates running for Congress and help the Republican Party across the nation.