Trump/Biden Debate Analysis, 50 ISIS Related Illegals Roaming America & Unlawful Appointment of Jack Smith Week In Review

Summary

The 47 Morning Update with Ben Ferguson: Episode Summary

Release Date: June 29, 2024

In this episode of The 47 Morning Update with Ben Ferguson, host Ben Ferguson engages in a compelling discussion with Senator Ted Cruz, dissecting three pivotal topics shaping the political landscape: the recent Trump/Biden debate, the concerning presence of ISIS-related illegal immigrants in America, and the contentious appointment of Special Counsel Jack Smith.

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1. Trump/Biden Debate Analysis

Debate Performance and Biden's Cognitive Health

Senator Ted Cruz opens the conversation by reflecting on the contentious Trump/Biden debate, labeling it "one of the worst debates we've ever seen in history." He criticizes Joe Biden's performance, highlighting moments that suggested cognitive decline. At [00:01], Cruz mentions Biden struggling to provide comprehensive answers on critical issues like Social Security, noting:

“There was one moment when he was asked about Social Security and he gave a very, very short answer. … He couldn't even, by the way, he spent eight days at Camp David preparing and he could not fill the two minutes with an answer.” ([01:40])

Ben Ferguson concurs, describing Biden as a "deer in the headlights" when faced with direct questioning, emphasizing the lack of substantial responses to straightforward questions.

Democratic Leadership's Push to Remove Biden

The discussion shifts to the Democratic Party's internal debates about potentially sidelining Joe Biden. Cruz posits that key Democratic figures such as Barack Obama, Nancy Pelosi, and Chuck Schumer are likely to confront Biden, urging him to step aside to preserve his legacy:

“They will appeal to his vanity and say, you are the next FDR. … If you stay in this race, it will be your fault that Trump is president.” ([02:29])

Ferguson forecasts significant political upheaval within the Democratic ranks, suggesting a high probability that Michelle Obama could emerge as the Democratic nominee, citing an "80% chance" scenario ([12:19]).

Media Coverage and Public Perception

The hosts critique mainstream media’s portrayal of the debate, particularly the Wall Street Journal's headline:

“Biden crashed in first debate with Trump.” ([05:30])

They argue that such headlines lack nuance, comparing it to cheering on a less-than-ideal outcome, similar to praising "the genthowed in the Hindenburg explode" ([05:30]).

Behavior of Debate Moderators

A surprising turn in the conversation commends CNN’s Jake Tapper and Dana Bash for their moderation during the debate. Ferguson praises their ability to maintain control without bias:

“They asked good questions, they moved subjects along, they would press the candidates, but not in a jerky way.” ([08:56])

Cruz, however, remains skeptical, suggesting that moderators were in a state of shock and defaulted to attempting to guide the debate without effectively addressing the issues:

“They saw what everybody else saw, which was, we have a president that is incapacitated and the whole world is watching it now, and no one can stop it.” ([09:48])

2. 50 ISIS-Related Illegal Immigrants Roaming America

Overview of the Issue

The episode delves into a critical national security concern: the presence of over 50 ISIS-related illegal immigrants in the United States. Cruz introduces the story, highlighting the Department of Homeland Security's (DHS) identification of these individuals:

“We now have unknown the whereabouts of 50 ISIS related illegal immigrants that were smuggled into this country by an ISIS human smuggling network.” ([00:01])

Administration’s Handling of the Situation

Ben Ferguson vehemently criticizes the Biden administration's immigration policies, accusing them of enabling terrorists to infiltrate the country:

“The Democrats and the media were starting to get nervous about Joe Biden, I shifted to about 50%. … the Democrats have released illegal immigrants who are murderers, who are rapists, who are child molesters, who are gang members, and who are being smuggled in by ISIS K.” ([15:54])

Media Coverage and Public Safety Risks

Ferguson points out the discrepancies and gaps in media coverage, using NBC News' reporting as an example. He underscores the administration's lack of urgency, attributing it to political concerns ahead of the upcoming election:

“Authorities are, quote, not panicking.” ([16:50])

Cruz and Ferguson discuss the potential threat these individuals pose, with Ferguson cautioning that the U.S. is at a heightened risk of terrorist attacks reminiscent of post-9/11 vulnerabilities:

“We are today at a greater risk of a major terrorist attack than we have been any time since September 11th.” ([20:27])

Policy Implications and Future Risks

The hosts argue that the Biden administration's open-border policies are facilitating the entry of dangerous individuals, further exacerbating national security threats. They emphasize the need for stringent immigration controls to prevent such risks.

3. Unlawful Appointment of Special Counsel Jack Smith

Challenging the Legality of Jack Smith’s Appointment

The final segment addresses the controversial appointment of Special Counsel Jack Smith, with Ben Ferguson explaining the legal challenges posed by Trump's legal team. The argument centers on the constitutional validity of Smith’s appointment, as outlined by Andy McCarthy:

“The Constitution says that when you're talking about an officer of the United States carrying out these kinds of duties, either the person has to be nominated by the president and confirmed by the Senate or has to occupy a position that Congress has established by law.” ([22:55])

Ferguson elaborates on the significance of this argument, drawing parallels to the 1988 Supreme Court case Morrison vs. Olson, which upheld the independent counsel statute but was notably dissenting Justice Scalia's opinion advocating for presidential oversight.

Implications of a Ruling Against Smith

Should Judge Cannon rule that Jack Smith’s appointment is unconstitutional, it would not only halt the Florida case against Donald Trump but also cast doubt on the DC case, potentially delaying both legal actions. Ferguson highlights the potential for this ruling to reshape the scope and authority of special counsels:

“If Judge Cannon rules that Jack Smith is illegally appointed, that he does not have the authority to bring the case, that would, that decision presumably would be appealed.” ([33:23])

Balanced Perspectives and Legal Nuances

While Ferguson asserts the strength of the argument against Smith's appointment, he acknowledges opposing viewpoints and the complexity of the legal landscape:

“It's a real argument and a serious argument. It doesn't mean it'll necessarily prevail. Doesn't mean it'll be a slam dunk.” ([30:45])

He references past special counsel appointments to underscore the unique challenges posed by Smith’s nationwide prosecutorial authority without Senate confirmation.

Conclusion

In this episode, Ben Ferguson and Senator Ted Cruz provide a critical analysis of the current political and security climate, focusing on Biden's compromised debate performance, the alarming infiltration of ISIS-related individuals into the U.S., and the legal controversies surrounding Special Counsel Jack Smith’s role in prosecuting Donald Trump. Their discussion underscores deep concerns about leadership effectiveness, national security, and the integrity of judicial appointments, painting a picture of a nation at a crossroads with significant implications for its future direction.

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Note: Timestamps referenced correspond to the podcast transcript provided.

Transcript

[Ted Cruz]

Welcome. It is Verdict with Ted Cruz, Weekend Review. Ben Ferguson with you. And my oh my, was it a crazy week with one of the worst debates we've ever seen in history. Joe Biden now on defense. And we're going to cover exactly what this means moving forward as Democrats are now pushing to get rid of Joe Biden altogether. Will it work? We're going to break that down. But plus, another important story that you may have missed. We now have unknown the whereabouts of 50 ISIS related illegal immigrants that were smuggled into this country by an ISIS human smuggling network. The White House wants you to believe that everything's under control. Well, where are these 50 people with ties to ISIS? We'll give you the details on that. And finally, the unlawful appointment of the special counsel and what this can mean for Donald Trump. It's the Weekend Review and it starts right now. Let's also talk about. There was two moments that I think really speak to the demise of the cognitive decline of Joe Biden. And, and it was subtle but significant. And I, I want to get your reaction to it. There was one moment when he was asked about Social Security and he gave a very, very short answer. And then the moderators looked at him like, what are you doing? You still have, I think they said 84 seconds left or something like that. There was another time he was talking about African American voters, African American community and African American issues. And they're like, sir, you still have like another minute and X number of seconds, 60, 64 seconds left. He couldn't even, by the way, he.

[Ben Ferguson]

Spent eight days at Camp David preparing and he could not fill the two minutes with an answer.

[Ted Cruz]

The two minutes on two vitally important issues like Social Security. Any be able to fill for two minutes. In fact, you should be able to fill.

[Ben Ferguson]

These were not subtle, these were not gotchas. These were obvious questions. He had nothing to say. He was scared. He was a deer in the headlights.

[Ted Cruz]

So you said deer in headlights. Let's go to the next conversation that's being had right now. And I'm sure it's being had at the White House, at the eob, at the campaign headquarters. Who goes to the President first and says step down. And then you're also dealing with a guy that's very stubborn though. Like he can just, can he just look at them and say, I'm not gonna do it.

[Ben Ferguson]

He is absolutely stubborn. I think it is Barack Obama. I think it is Nancy Pelosi, I think it is Chuck Schumer. I think it is every leader in the Democrat Party. It's not Kamala Harris. Kamala's not allowed in the room. But I think it is. And they go to him, and they're pitched to him. They say, joe, you were an historic president. You saved America from Donald Trump. You wanted to be the next fdr. I think they will. They will appeal to his vanity and say, you are the next fdr. You are consequential right now. If you stay in the race, you risk undoing your entire legacy and giving that legacy going down in history as the man who made Donald Trump president. If you stay in this race, it will be your fault that Trump is president. I think they'll appeal to his vanity. And look, that. That is, I think, to Joe Biden, a really powerful pitch. Look, you look at the debate tonight, he said things. At one point, he said, during Trump's presidency, we had 1000 trillionaires. By the way, there are no trillionaires on planet Earth. At another point, he said, during Donald Trump, we had 50% unemployment. No, that is wildly wrong. At another point, he said he created. Joe Biden created hundreds of millions of jobs. Mind you, there are 330 million Americans, and apparently he's created hundreds of millions of jobs. So more, more jobs than there are working Americans like it is. Every answer was a problem. At another point, he said, the Border Patrol endorsed me. Let's be clear. The Border Patrol union immediately tweeted out, to be clear, we have never and will never endorse Biden at every stage. And what's interesting, he was also trying to insult Trump.

[Ted Cruz]

Yeah.

[Ben Ferguson]

And Trump didn't take the bait.

[Ted Cruz]

Yeah. And that was smart.

[Ben Ferguson]

It was really. And actually, when Trump poked Biden, Biden freaked out. He couldn't not take the bait. And so the contrast. And I'll say something else, you mentioned African American votes. Trump's numbers are surging in the black community. And I think tonight he made a very hard pitch for black voters. And his most significant pitch, he had a lot of points about how bad Trump, how bad Biden has been for the African American community, talked about inflation, how it's hammering black families. But then he also tied it to illegal immigration. And he said, look, the millions and millions of illegal immigrants that are coming into this country, they're taking jobs from black Americans. That is a powerful argument. That is an argument. And by the way, Biden had no response to that. It was silent. It was on the substance. Trump prosecuted the case, and Biden crashed and burned. And in fact, the Wall Street Journal just sent out their key takeaway their story that they wrote tonight, and it's now 10:47pm and their headline is Biden crashed in first debate with Trump. That's not an editorial. That's the news headline in the Wall Street Journal. Because it is just objectively, if you watch the Hindenburg explode, you don't say, zeppelin landed tonight.

[Unknown Speaker]

Yeah.

[Ted Cruz]

Let's also talk about those that have been lying. The media center has been lying. Congressmen have been lying. Staff members have been lying. They've been going on TV telling you that Joe Biden can run circles around me. The White House press secretary saying over and over again saying there's no cognitive decline here, saying that he's in perfect health. This guy is a, is a beast. He's, he's, you know, he's jacked up. Aviator Joe. Now, they're all actually having to admit they're wrong, but no one's gonna, I think, hold them accountable for that. They're just gonna run out there and say, clearly, it's time for him to step aside, step aside, step aside. Which is also weird because if you're not cognitive, you don't have the cognitive ability to be president in the future. Right. And they're saying he can't be the president come January again. Then when does the 25th, and does that even come up? Because you're admitting that he's basically incapacitated now.

[Ben Ferguson]

Yeah. Listen, we have seen reporters and we've seen Democrats lying about Joe's mental capacity for a long time. And nobody fair and objective who watched tonight could conclude anything other than this is a man who is seriously mentally diminished. You know, it's interesting, Andrew Yang, who you remember, ran for president against Joe in 2020. He tweeted out tonight, quote, Look, I debated Joe seven times in 2020. He's a different guy in 2024. Hashtag swap joeout. That's from one of the alternative, one of the other candidates who ran against 2020, from a prominent Democrat. Two of the top trends that were trending tonight right after the debate were dementia and Michelle Obama. Now, that's bad news if that's, if that's what's. What is trending and. All right, I want to wrap up tonight's pod with this. I'm going to do something I have rarely, if ever done. I may never have done this before. I'm going to praise cnn. This morning's debate, you and I both thought Jake Tapper and Dana Bash would do a terrible job. They both hate Donald Trump. They both have become hard partisans. CNN did an excellent job tonight with this debate. Jake Tapper and Dana Bash, that was the best debate moderation they have ever done. They asked good questions, they asked substantive questions. They didn't make the debate about them. One of the interesting things, no one is debating about the moderators, Bad debate moderators. When Chris Wallace debated moderated, the whole debate was about him because he wanted to be right in the center of the show. When Candy Crowley from CNN was the moderator between Obama and Mitt Romney, she made it all about her. Jake and Dana, they asked good questions, they moved subjects along, they would press the candidates, but not in a jerky way. They just say, I asked you the following question. You have another 60 seconds to answer. When they didn't get their questions answered, that's a perfectly reasonable thing for a debate moderator to do. I've been in multiple debates that each of them have moderated. I think they both were incredibly sensitive to everyone laying out the facts that they have shown wild bias. And tonight, tonight they didn't. And they did an excellent job. And I think that was a service to the country.

[Ted Cruz]

I have to ask you one other question because everyone's asking it in their head right now. What is the like.

[Ben Ferguson]

Hold on a second. Ben, you didn't respond to that. And since you're a former employee of CNN, I'm not going to let you. Ben, you have 62 seconds. The question is, do you think Jake and Dana did a good job?

[Ted Cruz]

I think they did a decent job and here's why. I'm not going to give them as much credit as you did. You ready for this? All right, all right.

[Ben Ferguson]

But I'm going to make you answer it. I'm not going to let you wiggle away.

[Ted Cruz]

Fair, fair point. Here's what I'll say. I think they were in as much shock as we were going. Holy crap, I'm watching an incapacitated President of the United States of America. And they were caught so off guard. They said, just stick to the script. Just stick to the script. Just stick to the script. Like it was a default mode because it was such a glaring disaster with Biden that no one, none of, none of the moderators were honestly paying attention to Donald Trump or anything.

[Ben Ferguson]

Yes, but Jake and Dad, Jake and Dana were more measured than I've ever seen them. They were deliberately controlled. They knew that half the country viewed them as wild eyed partisans. Look, we played this morning Jake analogizing Trump to Adolf Hitler. Yes.

[Ted Cruz]

And I still believe that too.

[Ben Ferguson]

He is, I think he believes it. But tonight that didn't come out. And so if we're going to criticize him when he's not doing a good job, I will say, I. I think I was.

[Ted Cruz]

I think that they did their job. The biggest political train wreck in American history, and they were in it. And it was like, I don't know what to do. How do you triage this? And so they got rid of some of that. I think if Joe Biden would have showed up, jacked up like he did at the, say, the union, I think it would have been a completely different debate from the moderator standpoint. But I think they saw what everybody else saw, which was, we have a president that is incapacitated and the whole world is watching it now, and no one can stop it. There was no one to step in and lead him off the stage like Barack Obama did two weeks ago. Which brings me back to that question that everyone's asking. How quickly will we find out if the conversations with Joe Biden are going to work to get him to step aside? Number one, okay. And number two, how quickly do Democrats have to fall back in line and stick with this guy if he doesn't decide to step down? And Those are the two most important questions. Maybe the entire night.

[Ben Ferguson]

Three weeks, 21 days, this happens or doesn't happen in three weeks. I think you're going to have massive chaos following this debate. You're going to have massive panic. People are going to go to Michelle Obama. People are going to go to Joe Biden. I don't think, given the train wreck that happened tonight, I don't think they'll wait until after the Democrat convention. I think they feel a panic right now. I think they're going to want Michelle Obama to be the keynote speaker at the Democrat Convention, not Joe Biden. So I think we have 21 days for this to play out. And look, over the course of the last year, I've handicapped this. I initially laid it out as a possibility. I then shifted. As the Democrats and the media were starting to get nervous about Joe Biden, I shifted to about 50%. As we sit here today, I put the odds at north of 80% that Michelle Obama is the Democrat nominee on the ballot in November of this year.

[Ted Cruz]

Now, if you want to hear the rest of this conversation, you can go back and listen to the full podcast from earlier this week. Now, on to story number two. Senator, I want to move to another shocking story. Uh, and it is one that I wish I. I could say I didn't think we would see. Unfortunately, you predicted it. We've Talked about it, that this was gonna keep happening. This one though is extremely concerning. The Department of Homeland Security has identified now quote, Over 400 migrants brought to the U. S by an ISIS affiliated human smuggling network. And now they are desperately trying to find people they had caught and released. Now over 150 of them have been arrested, but the whereabouts of over 50 remain unknown. Your reaction?

[Ben Ferguson]

Look, this is a shocking story that in some ways is not shocking because we know that this administration, that Joe Biden and the Democrats have effectively rolled out the red carpet and with open borders have given an invitation to terrorists to come into the country. But, but even so, the degree of naivete and reckless disregard for the safety of Americans is remarkable. So here's the story according to NBC and I'm just going to quote NBC, quote, the Department of Homeland Security has identified over 400 immigrants from Central Asia and elsewhere who crossed into the US in the past three years as subjects of concern because they were brought by an ISIS affiliated human smuggling network. Three U.S. officials tell NBC News. While over 150 of them have been arrested, the whereabouts of over 50 remain unknown, the officials said, and Immigration and Customs Enforcement is looking to arrest them on immigration charges when they are located. One of the US Officials and people said people affiliated with ISIS are operating as human smugglers in Central Asia and helping people there leave their countries and travel to the west where they are smuggled into the U.S. it is not known whether the human smuggling activity directly funds ISIS activities or whether ISIS members are making personal money through human smuggling on the side, the US official said. The official added that the US has no indication that the more than 400 migrants brought to the US by the network had plans to carry out terrorism in the US but immigration agents are looking to arrest them out of an abundance of caution. And here's a quote from, from the Biden administration, quote, in this case, it was the information that suggested a potential tie to ISIS because some of the individuals involved in smuggling migrants to the borders that led us to want to take extra care and out of an abundance of caution, make sure that we exercised our authority in the most expansive and appropriate way to mitigate risk because of this potential connection being made. Now that's the quote. And what utter and complete garbage out of an abundance of caution. Yeah, we let 400 people go that ISIS had smuggled into the country because we're so cautious. And then we realized, wait a second, there's an election, there's an election coming up in five months and all these people that ISIS Smuggled in. If they carry out a terrorist attack and people realize we let them go, that's going to be a real problem. Oh, crap. Does anyone know where they are? Like, like, what an insane statement.

[Ted Cruz]

Well, and not just insane, but it's also interesting to see now how the media is covering this. NBC Nightly News actually ran this on the Nightly news and called it an NBC investigation. Listen.

[NBC News Anchor]

Tonight, NBC News has Learned more than 50 migrants with potential ties to an ISIS affiliated smuggling network are at large in America. Many illegally crossed the border and were released into the US By Border Patrol because there was no information suggesting terror ties at the time. Now their whereabouts are unknown as immigration agents look to arrest them. U.S. officials tell us, saying they're among a group of over 400 migrants DHS identified in the US from Tajikistan, Uzbekistan, Moldova, Kyrgyzstan, Georgia and Russia as subjects of concern because they were brought to the US by an ISIS affiliated smuggling network, something the FBI director warned about earlier this year.

[Ted Cruz]

Some of the overseas facilitators of the smuggling network have ISIS ties that we're very concerned about.

[NBC News Anchor]

ICE has located and arrested over 150 of the 400 migrants so far, with some already deported from the U.S. officials say, adding authorities are not panicking because their ties to ISIS are not certain, but they're prioritizing their arrest out of an abundance of caution.

[Ted Cruz]

The problem is the volume of people coming across the southern border. Individuals from ISIS and other affiliated groups have recognized it as a weak point in our defense and they're using this opportunity to try to sneak in.

[NBC News Anchor]

NBC News was first to report on a similar arrest of a Uzbek man in Baltimore whose country alerted the U.S. he was affiliated with ISIS. That man, like the others apprehended so far, was arrested on immigration charges, not terrorism related charges. ISIS K has claimed responsibility for deadly terror attacks in Russia and Iran in the past year. And recently the DHS Inspector general sharply criticizing vetting at the US Southern border, saying DHS is at risk of admitting dangerous persons into the country or enabling asylum seekers who may pose significant threats to public safety and national security to continue to reside in the United States. Two senior law enforcement officials told NBC News they are not tracking a terror plot from this group of migrants, but their arrest on immigration charges come out of an abundance of caution.

[Ted Cruz]

Lester, they sure do like that word, Senator. Abundance of caution. I also love in there that that one line that really just made me laugh is quote, authorities are, quote, not panicking. Really? That's supposed to make me feel better?

[Ben Ferguson]

Well, remarkably though, what they're not panicking about is not the actual public safety threat. It's not keeping Americans safe. It's the political exposure. They're freaked out because there's an election in a few months, and they realize, oh, no, this could look really bad for us. It has been the consistent pattern of this White House that they do not prioritize national security. Everything, everything, everything is partisan politics. And. And, okay, what I'm about to say, it's not hyperbole. It is accurate. Day after day, week after week, month after month, for three and a half years, Joe Biden, the Democrats have released illegal immigrants who are murderers, who are rapists, who are child molesters, who are. Who are gang members, and who are being smuggled in by ISIS K, a known terrorist organization. And they're letting them go. They're letting them go. The 400 notice notice in that NBC report, they said they were released by the Biden administration. So we apprehended them, said, oh, look, ISIS K bringing someone in. All right, let's let them go. Like, like, that is. It defies words. And if there were not an election in five months, I don't think the Biden administration would be doing anything at all about it. This is all about COVID it up until after election day, and then we can let him go again. And I don't get. Actually, I do not understand the thought process. If you're Alejandro Mayorkas, help me on this. Ben, seriously. If you're Alejandro Mayorkas, you're like, Hey, 400 people ISIS K smuggled in. Should we let him go? Like, what is. How do the brain synapses fire for your answer to be, Yep, let him go.

[Ted Cruz]

Yeah. And the scary part is, I think they just say this is just part of the. You got to take the bad with the. With. With the good. And their definition of good is letting millions in. So, hey, we know there's going to be bad actors in those millions. We can't check them all out fast enough as we're allowing them to flood into this country. So that's just our policy. There may be terrorists to get in here. Oh, wait, there are terrorists to get in here. We know there's people on the terrorist watch list, and we're just going to do it anyway. But right before the election, we're going to clean it up a little bit and look like we're being proactive.

[Ben Ferguson]

I've said this multiple times, but I very much believe it. We are today at a greater risk of a major terrorist attack than we have been any time since September 11th and the director of the FBI has been saying that over and over and over again in congressional testimony. What the FBI is looking at, I'm confident is even worse than what we're talking about. And that is the direct consequence of utterly reckless policies of open borders. And to tie this to what we started at the beginning, I think this should be front and center. What Trump is talking about tonight at the debate.

[Ted Cruz]

I was going to ask you that was going to be my final question for you, is if CNN doesn't bring it up, do you force the issue if. Because I have a feeling they're going to be playing defense for Joe Biden. So does the president go all in on these type of issues, even if they don't bring them up?

[Ben Ferguson]

Yes. Yes, absolutely. Yes.

[Ted Cruz]

As before, if you want to hear the rest of this conversation on this topic, you can go back and download the podcast from earlier this week to hear the entire thing. I want to get back to the big story number three of the week.

[Unknown Speaker]

You may have missed. It brings us to story number three. It's an important one, and that's the unlawful appointment argument that's been made about the special counsel, Jack Smith. I want you to walk us through this because it is complicated and I want you to make the argument that is, why is there a possibility that this may work for Trump's legal team? They're the ones that are basically raising the argument about this special, the unlawful appointment of Jack Smith. Walk us through the argument that his legal team is making and why they're making it now.

[Ben Ferguson]

Well, let me start by watch and listen to how it was laid out in a TV interview with Andy McCarthy, and then we'll talk about it as soon as we listen to this.

[Andy McCarthy]

Jackie, I think it's deceptive coverage. The difference between the issue about Smith's status that's been raised in this case that distinguishes it from other cases is that prior independent counsels were appointed under a congressional statute. This independent counsel, Jack Smith, has been appointed under a Justice Department regulation. And what the Constitution says is that when you're talking about an officer of the United States carrying out these kinds of duties, either the person has to be nominated by the president and confirmed by the Senate or has to occupy a position that Congress has established by law. So this actually is a pretty novel and important argument, which is why people like former Attorneys General Edwin Meese and Michael Mukase have filed briefs saying that Smith doesn't have adequate legal constitutional basis to proceed with this case. It's not at all a frivolous argument. And I think the rap on Judge Cannon is just ridiculous. This is a classified information case. They're very hard to get to trial. She could have satisfied the media and said, you know, we'll have an August 1st trial date that everyone would have known was illusory. Instead, she's trying to move through a mass of pretrial work that has to be done so that she can set a realistic trial date. And for that, she's being accused, I think falsely, of postponing the case because she's trying to help Trump's electoral effort.

[Unknown Speaker]

I want to ask you about Meese and these others that have filed these amicus briefs. But before we do that, I want to talk to you about our incredible organization called Preborn. For two years, it has now been since Roe v. Wade was overturned and over 65 million babies have fallen, with thousands more taken every day. Preborn honors these precious souls who never had a chance to take their first breath. Who would they have become is the question we should all ask. Every one of them was special. We lost a generation. With the abortion pill now accounting for over 63% of abortions, ending a baby's life is all too convenient. That's why every day, Preborn's networks of clinics stand strong with these little defenseless babies offering love, support, and a free ultrasound to introduce mothers with unplanned pregnancies to the life growing inside of them. Once a mother sees her baby and hears their heartbeat, she is twice as likely to choose life. So that's why I want you to join with me and Preborn in defense of these babies. One ultrasound costs just $28 and $140 helps to rescue five babies. Now, giving is easy. You just dial 250 and say the keyword baby. That's pound 250. Say the keyword baby. Or you can go online to preborn.com verdict. That's preborn.com verdict. And rest assured that 100% of your tax deductible donation will actually go directly towards saving babies and mothers. That's preborn.com verdict or £250, say the keyword baby to give today. Senator, I want to get your reaction to the point he said about these briefs that were filed. They're important briefs that are being filed. And yet for many Americans, they can still sound very overwhelming to understand. So what's the goal here?

[Ben Ferguson]

Yeah, and let me say, by the way, we just played a clip from Andy McCarthy. Andy's a good friend of mine. One question I'D be interested from verdict listeners. We could certainly have Andy as a guest on this podcast. We could also have law professor Jonathan Turley as a guest on this podcast. Both of them I know very well. So if y'all think those would be good guests to have a detailed discussion about these issues, let us know on Twitter. Let us know. Reach out to Ben and me and let us know. And either or both of them we could have on and it could be a very interesting discussion. Listen. So the judge in Florida has set an oral argument on the question of whether Jack Smith's appointment is legal and constitutional. And that's going to be argued by Gene Scher and Josh Blackmon. Josh Blackmon is a law professor. Gene Scher is a very, very well respected Supreme Court litigator. Scher is the name partner in Scher. Jaffe Jaffe is Eric Jaffe who clerked with me. He was a Clarence Thomas clerk the same year I clerked for Chief Justice Rehnquist. I've known both of them a very, very long time. Ed Meese, former attorney general, who has brought this argument and has filed an amicus brief arguing that Jack Smith is not appointed legally. And the argument, first of all, they say there's no federal statute that establishes an Office of Special counsel in the Department of Justice. So there's not a statutory basis for creating this role. Secondly, they argue that even if you ignore that there isn't a statute, there is also no statute authorizing the attorney general, rather than the president, with the advice and consent of the Senate, to appoint such a special counsel. The special counsel, the way it's structured right now, has more power than any of the 94 US attorneys who prosecute cases across the country. So all across the country, there are 94 U.S. attorneys. Every single one of them has been nominated by the president of the United States, and every single one of them has been confirmed by the Senate. That's the structure. When you have a prosecutor with that level of power, you go through the checks and balances. Well, Jack Smith was not confirmed by the Senate. And their authority is limited to the jurisdictions where they're appointed. So if you are confirmed to be the U.S. attorney in the Southern District of New York, you can't prosecute someone in California. You don't have the authority to bring any case outside of whatever district you're confirmed to. Jack Smith has nationwide authority to pursue his prosecutions anywhere in the country he wants. And he's indicted Trump in two separate jurisdictions in D.C. and in Florida. He was not nominated by The President, he was not confirmed by the Senate, and that the amicus brief argues violates the requirements of the Constitution. General Meese also acknowledges, quote, there are times when the appointment of a special counsel is appropriate, but federal statutes in the Constitution only allow such appointments through the use of existing United States attorneys. So it's worth noting there have been other special counsels, but they were sitting U.S. attorneys. So, for example, Patrick Fitzgerald was appointed as a special counsel. He was a sitting U.S. attorney. Rod Rosenstein was appointed as a special counsel. He was a sitting U.S. attorney. John Huber was appointed as a special counsel. He was a sitting U.S. attorney. John Durham was appointed as special counsel. He was a sitting U.S. attorney. Every one of them had been nominated by the President, had been confirmed by the Senate at the time of their appointments. And so what they argue is you can't just make an appointment as Attorney General and create a roving U.S. attorney with national authority greater than any U.S. attorney without the Senate having the right to engage in advice and consent.

[Unknown Speaker]

That argument, is that a legitimate argument? I mean, you're obviously a guy that did this for a very long time in that role as a lawyer. So the question I ask you is when you hear this argument, you see names like Mies and others that are getting involved, and you hear the argument they're making, is it a legitimate one?

[Ben Ferguson]

It's a real argument and a serious argument. It doesn't mean it'll necessarily prevail. Doesn't mean it'll be a slam dunk. There are real arguments on the other side. But look, I think there is a possibility this argument prevails. There's a long history dealing with special counsels. And before that, there was something called the Independent Council. There was a statute that allowed independent counsels to be appointed, and that was created by Congress. So you'll recall Ken Starr was appointed as an independent counsel to prosecute Bill Clinton.

[Unknown Speaker]

Yeah.

[Ben Ferguson]

And at the time. So there was a case that was brought challenging the constitutionality of the independent counsel statute. It was a case called Morrison vs. Olson. The Olson was Ted Olson, who at the time was the head of the Office of Legal Counsel in the Department of Justice. He later became the Solicitor General of the United States under George W. Bush. Ted is a good friend. That case went to the Supreme Court, and 8 to 1, the Supreme Court upheld the constitutionality of the independent counsel statute. The dissent was authored by Justice Scalia. And Justice Scalia laid out an argument why having an independent counsel who is not subject to the authority of the Attorney General not subject to the authority of the President is contrary to Article 2 of the Constitution and exceptionally dangerous. What's interesting is the view of Scalia's dissent, a lone dissent, 8:1 I think has been vindicated over the years. And over the decades, more and more people realize Scalia made some very effective points. So much so that when the independent counsel statute expired, so it was written so it would expire. I don't remember if it was 10 years or 20 years, but it had a date certain where it expired. When it expired, Congress didn't reauthorize it. So it is no longer the law. The independent counsel statute is no longer the law. And neither Democrats nor Republicans wanted to authorize it. I think Democrats were really unhappy with the job Ken Starr had done going after Bill Clinton. So they didn't want that to happen again. Republicans had seen it abused going after Republicans. And so both parties said, let's let this statute expire, which means you don't have a special statute authorizing Jack Smith the way you would otherwise. So I think this is a real argument. We'll see what Judge Cannon does. But, but, but these are serious arguments that deserve to be considered seriously on the matter. We find out, I think we'll get a decision relatively quickly. My, my suspicion is that we'll get it within the next few months.

[Unknown Speaker]

Best case scenario for Trump. What would that look like?

[Ben Ferguson]

Well, if, if Judge Cannon rules that Jack Smith is illegally appointed, that he does not have the authority to bring the case, that would, that decision presumably would be appealed. But, but that would permanently put on hold the case in Florida. But it would have a, naturally have, have an implication on the D.C. case because Jack Smith is, is the prosecutor who's brought the DC Case as well. Now, technically speaking, the DC Judge would not be bound by the decision of the Florida judge. Nonetheless, how those two interact, it would become a major issue in every case. Both cases being brought by Jack Smith.

[Ted Cruz]

As always, thank you for listening to Verdict with Senator Ted Cruz, Ben Ferguson with you. Don't forget to download my podcast and you can listen to my podcast every other day. You're not listening to Verdict or each.

[Unknown Speaker]

Day when you listen to Verdict afterwards.

[Ted Cruz]

I'd love to have you as a listener to again the Ben Ferguson Podcast and we will see you back here on Monday morning.