← The 47 Morning Update with Ben Ferguson
The 47 Morning Update with Ben Ferguson
Will Michelle Obama Replace Biden? plus Part 2: Predicting Supreme Court Opinion on Colorado Trump Case
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- [00:00]
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- [01:02]
Ben Ferguson
It is verdict with Senator Ted Cruz. Ben Ferguson with you. Senator, we said we were going to do a two part series on this Colorado case that is going to the Supreme Court and get into some more of the history of it. This will be part two. But a prediction that you made on this show seems to be much closer to becoming a reality than anyone imagined. As the former first lady Michelle Obama said in a recent interview that her fears about the 2024 presidential election keep her up at night saying she's terrified and she believes we need a real leader. It sounded to me like she's saying I might want to be the President of the United States of America. You predicted this, sir. Let's just take a little, a little shock moment of victory lap at the same time.
- [01:53]
Senator Ted Cruz
Well, look, it is certainly not a victory lap because it's horrifying for the country. But, but I will say, months ago we did an entire podcast laying out that I thought the odds were rising dramatically that the Democrat Party would pull the rip cord on Joe Biden, parachute him out, abandon him and replace him with Michelle Obama. And my reasoning, let's revisit the reasoning because it's, you know, sometimes when I say this, people, they're like, okay, this seems ludicrous. Here's my reasoning. Number one, I think if Joe Biden had dropped out two months ago, I think you'd see a ton of Democrats jumping in the Field, I think the top four in the field would be Kamala Harris, Pete Buttigieg, Elizabeth Warren, and Gavin Newsom. There'd be others, but those would be the top four in that field. I am convinced in an open primary in the Democrat Party, the winner would be Elizabeth Warren. And the reason I'm convinced of that, I think she is the ID of the Democrat Party. They are radical socialists. They're angry. Remember, look, in 2020, she ran and Bernie Sanders ran. They both split the whack job, left as part of the party, and Bernie almost won. With Bernie out of the field, I think Elizabeth Warren wins that open primary. But at this point, we're sitting here in January, it's too late for Joe Biden not to run. So he's going to run. He's on the ballot. That means the only opportunity for. For the Democrats to pull Biden is at their convention this summer. Now, if they do that, they have a problem. If they pull Biden, the next person in line is Kamala Harris. Now, there are a bunch of people saying, oh, they're going to replace Kamala with Gavin Newsom. I think the chances of that happening are 0.00%. Why? I think the Democrat Party is structurally incapable of replacing an African American woman with a white guy. Like, I think their party would implode and spontaneously combust in flames. They cannot do that. And so they've got a problem. Because if you're a Democrat and you want the Democrats to win, most Democrats that break into double digits in the IQ say Kamala is a really bad candidate. Like, wow, we don't want Kamala to be the candidate. But.
- [04:17]
Ben Ferguson
And remind. Remind people she was one of the first people to drop out in when she ran for president because she didn't connect with anyone.
- [04:25]
Senator Ted Cruz
Yeah, she got. She couldn't figure out who she was. Is she a liberal? Is she a moderate? What? Like, she. She was all over the place. Her approval ratings are worse than Joe Biden's, which is hard because his approval ratings are terrible. And look, I'm going to try to frame this politely. I think it is a reasonable prediction that Kamala will not be winning any Nobel prizes in the future.
- [04:50]
Ben Ferguson
I think that's a good way of putting it. And I think the Democratic Party knows that. That's the reason why they're trying to figure out, okay, if it isn't Joe Biden, who do we get and how do we offload Kamala? Well, then you'd have to pick a woman. And who better than Michelle Obama?
- [05:04]
Senator Ted Cruz
And not Just a woman, an African American woman. And so from the Democrat Party's perspective, that really is a set of one. They couldn't push her aside for, you know, for a House member, for a low. Like you can't push the sitting vice president aside for someone further down the. The political pecking order. So there is literally one person on planet Earth who the Democrat Party could tolerate pushing Kamala aside for, and that is Michelle Obama. And Michelle Obama is a first. Former First Lady. She sort of stands on a different footing. And so we did a podcast several months ago that got a ton of attention, and people noticed where. Where I said, I think the chances have risen dramatically of Michelle Obama. Now, at the time, my assessment was that it was about 35% that Michelle Obama would be the nominee. Now, that's. I still don't think. Didn't think it was more likely than not. But going from 0 to 35%, that ain't nothing. Now, in just a second, we're gonna play for you this interview Michelle did. I think this interview is incredibly revealing, and it's caused me to change the percentage that I put as to the likelihood of Michelle being the nominee. But before I tell you how it changed, let's listen to what she said on this podcast interview.
- [06:25]
Ben Ferguson
What is the thing that keeps you up at night now? Or what is your biggest fear now after having overcome so many.
- [06:32]
Michelle Obama
It has less to do with me personally and more to do with the world that we're in. There's such a thing as knowing too much. And when you've been married to the president of the United States who knows everything about everything in the world, sometimes you just want to, you know too much, right? It's like, I don't know. I don't want to know what was in that folder that you just got that made you quiet? You know, I don't want to know why the security just pulled you over. I mean, it could be any range of things that comes across the desk of the leader of the free world, right? So I know a lot about what's going on. And what keeps me up are the things that I know. The war in the region, in too many regions. What is AI going to do for us? The environment, you know, are we moving at all fast enough? What are we doing about education? Are people going to vote? And why aren't people voting? Are we too stuck to our phones? I mean, those are the things that keep me up because you don't have control over them. And you wonder, where are people? Where are we in this, you know, where are our hearts? What's going to happen in this next election? I am terrified about what could possibly happen because our leaders matter. Who we select, who speaks for us, who holds that bully pulpit. It affects us in ways that sometimes I think people take for granted. The fact that people think that government, does it really even do anything? And I'm like, oh, my God, does government do everything for us? And we cannot take this democracy for granted? And sometimes I worry that we do. Those are the things that keep me up.
- [08:19]
Ben Ferguson
Senator, those comments, they were not off the cuff. It was obvious she wanted to cover that. She wanted to get it out there. It was well thought out, well said. And that's the reason why when I heard, I go, oh, my gosh, she's literally floating herself.
- [08:34]
Senator Ted Cruz
Well, I think two things really stand out from those comments. Number one, the biggest argument that is given against why Michelle would be the nominee is people say she doesn't want it. She hasn't run before. She doesn't have the fire in the belly. She has a great life. She has a life of a movie star at a celebrity. She has a life of George Clooney or Oprah or Bruce Springsteen. She hangs out at Martha's Vineyard. She's got a couple hundred million dollars. She flies on private jets. She doesn't want to be president. And what is really striking there is where she's like, the thing that keeps me up at night is who's gonna be the next leader of the free world? And she says, you know, what does government do? She goes, oh, my God, Government does everything in our lives. Now, that's a pretty powerful refutation of the point that she doesn't care if it's keeping her up at night. And she thinks government does everything. And the question of who's gonna be the leader of the free world is what is filling her mind? Okay, that's significant. And then the second thing she says, where she's talking about being first lady, and she says, I know a lot. And she basically is, like, pitching her qualifications, like, everything she knows because she was married to Barack Obama when he was president and still is today, that she, like, knows everything the president needs to know. And you're right, it does feel a little bit like a pitch of, hey, guys, I'm here, I'm ready, I can step in, and I'm willing to do it. And so I would change. As I said, my assessment a couple of months ago was the odds of Michelle being the nominee nominee were 35% based on this interview. I would change those odds from 35% to 45%. I still think it is slightly more likely than not that Biden remains the nominee. But I think it's 55, 45. I think it is almost a coin flip. And candidly, I had been hoping the thing that might save America is that Michelle would be selfish enough to say I don't want the nomination. Even if you hand it to me, even if it's a coronation, even if I don't have to run for two years, even if I'm just like invited into the Oval Office with the blow of a trumpet, I don't want it because I like my life. Like, I would really like Michelle to say that because I think if she's the Democratic nominee, it is incredibly dangerous. She is a dangerous, dangerous, dangerous nominee because the first lady has a patina of Teflon. She's not perceived as overly partisan, she's not perceived as combative. Now I think she's incredibly partisan. I think she's more partisan than Barack is and was as president. But look, if you look at the polling numbers, Michelle Obama is the most popular woman on the face of the planet. And that's just objectively true. And a First lady is protected by that particular, particularly a first lady that had eight years of the media and Hollywood just singing her praises. And so I listened to that interview and frankly, it scares the heck outta me.
- [11:49]
Ben Ferguson
Well, let me ask you one other question and just remind people how this scenario could become reality if they maybe missed that episode where we talked about this. If Democrats wanted to offload Joe Biden, the place to do it would be at the convention and explain how this could go down very quickly where Michelle Obama hypothetically could then have a campaign that would basically be two months and some days, that's it. Because she wouldn't have to run a real campaign. You could also argue that there's a very good chance she then wouldn't even have to debate if Donald Trump is the nominee, for example, because it's a two month plus campaign.
- [12:28]
Senator Ted Cruz
Well, and look, that's one of the things people say in response to this is they say, look, we don't think Michelle wants it because she didn't run in 2016, she didn't run in 2020. If she wanted to run, they say she's not Hillary Clinton. She didn't dive in immediately and want to be the candidate on the ballot. That's what Hillary did after Bill was president is Hillary's like, me, me, me. And Michelle did not do that. I Think it's a very different decision for Michelle a year plus ago to ask, do I jump in? Do I spend two years running? Look, running for president is brutally hard. I know this from firsthand knowledge. I loved every minute of it. But it ain't easy. It's all consuming. And Michelle knows that. I mean, she knows that uniquely, and that she was side by side. Barack Obama worked his butt off running for president. He was a phenom of the modern age. And so she made the decision in 16 and in 20 and in 23, preparing for the 24 election, not to jump in. It's a very different cost benefit analysis to say, do you come in in the summertime in the convention, Are you handed the nomination without having to debate a single primary opponent, without having to campaign, without having to fight? And do you have a three month campaign where the media will be singing Hosanna's that. That, that, that, that St. Michelle has come to save us? That's a very different cost benefit analysis. And I gotta say, the number of people on planet Earth who, who, if you were offered jump in for three months and you can become president, who would say no is really small. There may be some. But Ben, I know for a fact if I told you right now, hey, jump in this summer, you can be president November or elected president November and start in January, you'd be a yes. I'd certainly be a yes. And it's a much wider set than the people who are psychotic enough to actually run for president.
- [14:30]
Ben Ferguson
Yeah, and what an easy road. I mean, it would just not.
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Senator Ted Cruz
It's a coronation, it's not an election. It's a coronation. But I gotta say, if I were David Axelrod, if I were a Democrat strategist, I would be all in on this. I'd be like, this is how we keep our radical left wing agenda going. Joe Biden has so many faults. And by the way, Axelrod has floated trial balloons. The media, who is the left wing of the Democrat Party, they keep floating trial balloons of, gosh, Biden's a really crappy candidate. Like, like, let's, let's sing his praises, let's say thank you for coming in for four years, but let's put him on an ice float and push him out into the Arctic.
- [15:09]
Ben Ferguson
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- [17:09]
Senator Ted Cruz
Well, that's right. And I want to encourage listeners, if you didn't listen to Monday's podcast, you ought to go back and listen to it. Because in that podcast I break down what I believe the Supreme Court is going to do in the Colorado appeal, the decision about whether Donald Trump can be on the presidential ballot. And I explain why I believe the Supreme Court is gonna reverse Colorado. And I think there's a very real chance, I think it is more likely than not that the decision from the Supreme Court is unanimous. And I go through each of the arguments that Trump is making and I give my assessment of them. Some of the arguments are stronger than other arguments. And I lay out the theory that I think is going to command a unanimous Supreme Court decision. And it's the sort of thing I have to admit. Ben, you and I have done a lot of podcasts. Monday's podcast is one of my favorites that we've ever done because the content in it I believe you can't get anywhere else. Like there's literally no other source there's no other podcast, there's no other news broadcast, there's no other source that has that content. And it's one of the reasons I love doing this podcast, because we walk through issues at a level of detail and substance that it just doesn't exist elsewhere.
- [18:22]
Ben Ferguson
Yeah, I know. It was one of my favorite shows as well. And it's amazing how many people actually responded going, I can't wait for part two, because you clearly weren't done explaining how this is going to work through the Supreme Court. Let's pick it up there.
- [18:35]
Senator Ted Cruz
Okay, so the Supreme Court has addressed what the 14th Amendment in Section 3 means, and it's addressed it a couple of times. First of all, it addressed it concerning Jefferson Davis. Now, Jefferson Davis was the head of the Confederacy. And what happened after the Civil War is the United States indicted Jefferson Davis in Virginia for treason. And Jefferson Davis argued in response that the 14th Amendment, Section 3 imposed a penalty that barred a treason prosecution. Davis argued that that Section 3 was an exclusive criminal punishment. And he said that applying it to him would violate double jeopardy. And he argued as part of that also that section 3 was self enforcing. We talked about this in the lot last podcast. Self enforcing means a provision of the Constitution that doesn't need additional legislation to give it effect, but rather has legal effect on its own. And in response, the United states argued Section 3 was not a punishment, or that if it was, that exclusion from future office was not the exclusive punishment. And in response to that, whether Section 3 nullified the Davis, the Jefferson Davis treason prosecution was never fully resolved. And what happened was there was a district judge named John Underwood who disagreed with the Chief justice of the Supreme Court, Justice Chase. And the issue was then certified for appeal to the U.S. supreme Court. But then President Andrew Johnson gave Jefferson Davis a pardon. And once he was pardoned, it rendered the case moot because you didn't have to adjudicate whether he could be tried for treason because he'd been pardoned, so he couldn't be tried for treason once he was pardoned. And so, so that was one issue where there was a dispute. But secondly, the very same judges gave a different reading over Section three, dealing with black defendants in Virginia. So you had, number one, Jefferson Davis, the head of the Confederacy. They had one determination. And then there were some black criminal defendants who were sentenced, tried and sentenced by state judges. And there was a challenge to those convictions, arguing that those state judges could not serve in office because they had been in the Confederacy and they were contrary to the ban on people who'd taken an oath of office to support the Constitution then engaging in an insurrection. And what happened was that Virginia appealed. So the district judge granted a writ of habeas corpus, which is, in other words, it ordered that black defendants be released from criminal imprisonment. And Virginia appealed that, and it went to Chief Justice Salmon Chase in his capacity as circuit judge. And so in 1969, the Chief justice reversed the decision of Judge Underwood in a decision that is known as Griffin's Case. Griffin's case is significant because it is the most meaningful Supreme Court adjudication of what the 14th Amendment, Section 3, means. Now, it's a lone justice, it's not the full court, but it still has presidential effect. Now, what did the Chief justice say? Well, on the merits of the Section 3 case, the Chief justice began with first principles, and this is a quote from his opinion. What was the intention of the people of the United States in adopting the 14th amendment? What is the true scope of the purpose of the prohibition to hold office contained in the third section? And before answering those questions, Chief Justice Chase said that, quote, a construction which must necessarily occasion great public and private mischief must never be preferred to a construction which will occasion neither, and neither in so great a degree, unless the terms of the instrument absolutely require such preference. And he went on to say the practical aspects of Section 3, the Chief justice said the text, preferred reading, quote, best harmonizes the amendment with the general terms and spirit of the act. Amendment. The principle forbids a construction of the amendment not clearly required by its terms, which will bring into conflict or discord with other provisions of the Constitution. And after that, Chase wrote, quote, those provisions of the Constitution which deny to the legislature power to deprive any person, life, liberty or property without due process of law, or to pass a bill of attainder or an ex post facto, are inconsistent with their spirit and the general purpose with a provision, section 3, which at once, without trial, deprives a whole class of persons of offices held by them. And as a result, the Chief justice offered a solution to what he said were the practical and legal difficulties with giving Section 3 a lit literal interpretation. He said Section 3 was not self executing, and he said it could not be self executing. And he said that Congress did not implement Section 3 in Virginia until February 1869, when a joint resolution ordered the military commanders to remove ineligible officers who had not received amnesty from Congress. And so the habeas petition granted by the district judge, Judge Underwood, predated the joint resolution, which meant the grants were erroneous because the trial Judges were not ineligible. What that means there's a lot of legal jargon there. So if you're not a lawyer, constitutional.
- [24:58]
Ben Ferguson
Scholars, I was really gonna laugh and say, okay, put that in layman terms. So I understand it and everyone else listening because I'm even confused on it and paying close attention.
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Senator Ted Cruz
Look, and this is 19th century. And so 19th century judges spoke in some jargon. So I'd read you the language, but I get it's not easy to understand. It's not easy to understand for modern day lawyers, much less for non lawyers. But what he is saying is that the prohibition on, on Confederate officers serving in office is not self executing. It doesn't go into effect on its own. But it needs rather an act of Congress to give it force and, and understand what was happening here. These were state district judges who had presided over criminal trials. So they were just, you know, a judge that, that you had criminal defendants who had committed crimes. And the argument of the criminal defense lawyers were, was, hey, these judges had previously taken an oath to defend the Constitution and then they supported the Confederacy. So therefore they're ineligible to serve as state judges under 14th amendment section three. And therefore my criminal conviction is not valid because the judge that presided over it doesn't have the authority to serve in it. And what Chief Justice Chase concluded was, no, that's not true because Congress did not legislate to give that effect. Now, do I think this determination is binding and conclusive on the court? No. And the way it works, a decision by an individual justice. So the way it worked, Supreme Court justices used to do what was called ride circuit. And so the justices riding circuit and it was literally riding circuit meant in many cases, getting on a horse and riding around the circuit. Each justice had a different judicial circuit that they were the appellate judge for. And they would hear appeals as individual judges. In some ways it sort of functioned like they were the court of appeals. And look, this is relatively early in our country's history. So you didn't have the full court of appeals system we have now. A decision by an individual justice riding circuit does not have the precedential force of a U US Supreme Court decision joined by a majority of the court. That is binding Supreme Court precedent. An individual circuit justice is not. But the decision of a circuit justice is considered persuasive. It's not binding, but, but it has real force. And in this case it's, it's the Chief justice of the United States opining on what the 14th amendment meant. And so I think in the Supreme Court argument. That'll happen on February 8th. You will see a lot of argument about Griffin's case. The DOJ will argue that there's a lot of modern day scholarly criticism that they don't like Chief Justice Chase's reasoning in Griffin's case. But this is going to be a major topic of discussion in the oral argument.
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Ben Ferguson
When you look at which side has the strongest argument and compare it to the weakest, who walks in with the biggest advantage with these Supreme Court justices as it sits now.
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Senator Ted Cruz
So, and this is something I explained in the last podcast. Look, I try to think, let me tell you how I approached arguments. I really enjoyed being a Supreme Court litigator. It was an incredible joy. And the way I approached, by the.
- [28:28]
Ben Ferguson
Way, I gotta ask you this question now because everybody listening is gonna want me to ask it and I'm gonna ask it.
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Senator Ted Cruz
Yeah.
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Ben Ferguson
People hear the name Ted Cruz and they know that you, obviously, you ran for President 2016, that you love being United States Senator. But every time I go around and it happens multiple times a month, you're like, man, I wish Ted Cruz was on the Supreme Court. Why isn't he on the Supreme Court? It should he have been on the Supreme Court? Because you're so good at it and you love it. So can you dive into that for just a moment? Because everybody asked me that question and I always laugh and I'm like, well, there's, there's some backstories there, but why isn't Ted Cruz on the Supreme Court?
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Senator Ted Cruz
Yeah, look, it is a very flattering, it is a very kind thing to say. And as, you know, as I travel around, people say to me with some regularity, you should be a Supreme Court justice. And look, my response when someone says it, I just say thank you. Because that's, look, that is an incredibly gratifying thing to say. The short answer is, I do not want to be on the Supreme Court. I. And when Donald Trump was president, that opportunity was very real. So for all three of the vacancies that occurred under Trump, Trump had very serious conversations with me about them. The most serious concerned the initial vacancy, which was Justice Scalia's seat that was vacant and was ultimately replaced by Justice Gorsuch. And right after the presidential election in 2016, in November, I flew up the next week to New York. I went to Trump Tower. I spent four and a half hours with President Elect Trump and with his senior team, and he spent an enormous amount of time really leaning in and frankly, trying to convince me that the Supreme Court was a great option. Now, I don't want to overstate it. He didn't offer me the position, but it was not subtle, what he was saying and what his team was saying. They were all like, what the hell's wrong with you? Why don't you want to go to the Supreme Court? Here's the answer. I think the court matters exquisitely. I've spent, other than my time in the Senate, I've spent almost my entire adult life litigating in front of the U.S. supreme Court. I think it is an incredibly important institution for the rule of law, for our constitutional liberties, for our freedoms in America. A principled federal judge stays out of politics and stays out of policy fights. And if I were a federal judge, that's what I would do. I would stay out of those fights. The simple answer, Ben? I don't want to stay out of those fights. I think policy fights and political fights matter intensely. And frankly, listen, I think there are a lot of people who are wonderful human beings who want to be tremendous judges or justices, and I would like to be involved in nominating or confirming scores of wonderful constitutionalists to the federal bench. I don't want me to be one of them. Because if you want to fight in the political arena, the right place to do so is in the elected positions in government. So I'm in the United States Senate. I think of the Senate as the Roman Coliseum. And to be honest, look, how many people do you know in the Senate that are actually standing up and fighting this fight every day? It's a small number. I'm not gonna give you a number, but it's not huge that. That. That are effectively going to battle day in and day out, defending the Constitution, the Bill of Rights, defending conservative principles, defending our values. And I jump out of bed every day eager to do that fight. And so when Trump talked to me very seriously about the Supreme Court, I told him flat out, no, I don't want it. I wouldn't accept it. I am not interested in being on the court. I care profoundly about who's on the court, but it ain't me.
- [32:19]
Talkspace Sponsor
This podcast is sponsored by Talkspace. You know, when you're really stressed or not feeling so great about your life or about yourself, talking to someone who understands can really help. But who is that person? How do you find them? Where do you even start? Talkspace. Talkspace makes it easy to get the support you need. With Talkspace, you can go online, answer a few questions about your preferences, and be matched with a therapist. And because you'll meet your therapist online. You don't have to take time off work or arrange childcare. You'll meet on your schedule wherever you feel most at ease. If you're depressed, stressed, struggling with a relationship, or if you want some counseling for you and your partner or just need a little extra one on one support, Talkspace is here for you. Plus, Talkspace works with most major insurers and most insured members have a $0 copay. No insurance, no problem. Now get $80 off of your first month with promo code space80 when you go to talkspace.com match with a licensed therapist today at talkspace.com save $80 with code space80@talkspace.com One other question I want.
- [33:21]
Ben Ferguson
To ask you about this case moving forward. You predicted that this is going to be probably a very stern Supreme Court on this issue with Colorado. Has your mind changed at all since we did part one on that? I mean, you're back in D.C. you've seen, I guess, more of the press reaction. You've seen more of the reaction in Washington. Do you still think that the Supreme Court is eager to not only take this up but also to say, hey, you can't in America, in the United States of America right now, we let the people decide. We don't let people, you know, dictate who you can and can't vote for.
- [33:58]
Senator Ted Cruz
So let me say, I wouldn't say eager is the right adjective. They're not eager. The court would love to stay out of this. They don't want to be involved in this presidential election. They want to stay out of it. But once Colorado ruled that they were pulling Trump off the ballot, the court had to get in. And I actually think every justice recognized, okay, we've got a responsibility. We can't duck this. We've got to resolve this because this is the court exists to resolve the most important legal issues in the country, particularly concerning the Constitution. And whether you will allow the voters to vote for a candidate for president is right at the top of it is difficult to imagine a more consequential constitutional issue than that. And so I think every justice recognized even though they didn't want to be in this, they had a responsibility and they really had no choice. Now, I also believe the odds are overwhelming, close to 100% that the Supreme Court will reverse the Colorado Supreme Court. I just, I do not believe they are going to allow one of the two major parties, candidates for president to be removed from the ballot and to tell the voters, you don't get to decide who the president is. That is contrary to democracy. It is an assault on democracy. Ironically, while Joe Biden is prancing around and proclaiming his defense for democracy, he and the Democrats and the media are trying to utterly frustrate democracy and stop the voters from voting for their opponents. I think the Court is going to easily reverse it, and I desperately hope. I gotta say, there are very few things I have hoped for more passionately that I can recall than that. I hope that this is unanimous. If it's six, three, if it's the conservatives voting to reverse and the liberals voting to affirm, that is bad for the Supreme Court, it is bad for the country, it is bad for the rule of law. It will cement the perception that the Court is a political body, and that is disastrous for the Court. I am certain that there is no human being on the planet that feels that urgency more intensely than Chief Justice John Roberts. I know John Roberts very, very well. We've been friends for 30 years. He cares exquisitely about the legitimacy of the Supreme Court. And so I think the Chief justice is going to bend over backwards to find any theory that would produce a unanimous decision. There are lots of theories he could do. The one I find most persuasive, the one if I had, if Trump had offered me the Scalia seat and I'd gotten the nomination in the place of Gorsuch and the Senate had confirmed me, if I were a Justice, the theory that I would be inclined to agree with is what I laid out in the last podcast, which is it is absolutely true and I think correct that if an individual engages in insurrection, they're not eligible to be elected to federal office. I'm convinced of that. However, what is not clear is how you determine whether someone, quote, engaged in insurrection. As I described in the last podcast, the Civil War was indisputably an insurrection. No one can dispute that. We had a four year war with 600,000 dead Americans like it was. It is why the 14th amendment, section three was passed. It was in response to the Civil War. It is the embodiment of an insurrection. There is a real, an acute debate over whether whether what occurred on January 6, 2021 constitute an insurrection. I think the answer is easy. I think the answer is hell no. I don't think it remotely reaches that level. But there are those who disagree. I will acknowledge there's disagreement with almost every damn Democrat and all of the media. They say routinely, insurrection, insurrection, insurrection. However, the constitutional question is, how do you determine that someone has engaged in an insurrection in the Civil War? Since nobody disputed The Civil War was an insurrection. The only question, did you engage in it? So if you put on a Confederate uniform, if you had stars, stars on your shoulder, you were guilty. Like, like that. It was easy to determine whether you fell into that disqualification.
- [38:42]
Ben Ferguson
Yeah, it was, it was as simple as you could make it at that point.
- [38:45]
Senator Ted Cruz
Yeah, there was no, no one disputed the Civil War was an insurrection. And I'm not aware of anyone that disputed. If someone was in fact a Confederate officer. I don't know of anyone that said, no, no, I wasn't a Confederate officer. Like, the two pieces were admitted. And so there was no meaningful factual dispute here. There is a reason that Jack Smith and every other prosecutor, that left wing prosecutor that hates Donald Trump, that nobody has charged Trump with the crime of insurrection, because you couldn't remotely prove that. The facts don't demonstrate it. And so I think the theory, the Supreme Court will say, and I predicted a sentence from, look, when this comes down, and I think it'll come down, It'll be argued February 8th. I'm going to predict it comes down February 19th. I'm just pulling a date out. It will be sometime between February 8th and March 4th. I'm pulling a date out of the air saying February 19th. When it comes down, I'm predicting right now there will be a sentence. We express no opinion over whether the events of January 6, 2021, constituted an insurrection or not. However, in order for the 14th Amendment prohibition to apply, there needs to be a conclusive determination that it was an insurrection. And for those who urge Trump should be ineligible for the Biden Department of Justice, which has urged Trump should be ineligible, they have a path to prove that case, which is to charge him with insurrection and convict him and obtain a final judgment that he is guilty of insurrection. If they do so, he will be ineligible for office, but they have not done so. And accordingly, this decision should not be made by judges in Colorado or a partisan, unelected Secretary of State in Maine, but rather, the decision of the next president should be made by the voters and the American people. I think that that's what I would rule if I were a justice. That is the sort of opinion I would write. And my hope is I really hope the liberal justices are not infected by Trump derangement syndrome, like so many Democrats are, that they recognize the damage to the court if they make this, a partisan decision will be historic and irreparable. And so I pray they don't do that.
- [41:16]
Ben Ferguson
We're going to be watching it all here. Don't forget we do this show Monday, Wednesday, Friday and a week recap on Saturdays. Hit that subscribe, Follow or auto download button. Also, if you do this show and listen to it on on Apple, make sure you check your settings that you are following the show as a lot of that has changed recently. So in the new year make sure you check that. It is important that you do that and the Senator and I will see you back here in a couple of days.
- [41:45]
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- [42:49]
Senator Ted Cruz
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