Latest / The 47 Morning Update with Ben Ferguson / Biden FURIOUS at DOJ, Demands Trump be put in Jail, plus Deep Dive into Colorado Supreme Court Argument

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Biden FURIOUS at DOJ, Demands Trump be put in Jail, plus Deep Dive into Colorado Supreme Court Argument · The 47 Morning Update with Ben Ferguson

0:01
Speaker 1: Welcome.
0:01
Speaker 2: It is Verdict with Center, Ted Cruz Ben Ferguson with you,
0:04
Speaker 2: and we have a jam packed show for you today
0:06
Speaker 2: that deals with not only some shocking news coming out
0:09
Speaker 2: of Israel, but also the Supreme Court decision on taking
0:13
Speaker 2: Donald Trump off the ballot in Colorado.
0:15
Speaker 1: We're going to dive.
0:16
Speaker 2: Into both of those, but before we get to that
0:18
Speaker 2: center a story that no one seems to be talking about,
0:21
Speaker 2: and that is some breaking news that apparently Joe Biden
0:25
Speaker 2: was demanding that the Attorney General Merrick Garland put Donald
0:28
Speaker 2: Trump and his opponents in prison. And it's very angry
0:33
Speaker 2: that he didn't start the investigation to Trump earlier so
0:37
Speaker 2: they wouldn't have to I guess be running against him
0:39
Speaker 2: right now for the presidency. Your reaction to this coming
0:42
Speaker 2: out from Politico's reporting.
0:45
Speaker 3: Well, Politico reported quote in recent weeks, President Biden has
0:48
Speaker 3: grumbled aids and advisors that had Garland moved sooner in
0:52
Speaker 3: his investigation into former President Donald Trump's election interference, a
0:56
Speaker 3: trial may already be underway or even if concluded. According
0:59
Speaker 3: to two people granted anonymity discuss private matters, that trial
1:03
Speaker 3: still could take place before the election and much of
1:05
Speaker 3: the delay is owed not to Garland, but to deliberate
1:08
Speaker 3: resistance put up by the former president and his team.
1:11
Speaker 3: In other words, the White House is complaining, damn it,
1:14
Speaker 3: if only Merrick Garland had gone sooner, we could have
1:17
Speaker 3: locked Donald Trump up in jail. But that's not their
1:20
Speaker 3: only complaint. Beyond that, they are furious, volcanically furious with
1:27
Speaker 3: the Department of Justice, with Merrick Garland. Garland, why get
1:31
Speaker 3: this because they haven't been political enough. Well, we have
1:36
Speaker 3: discussed at great length on this podcast how this is,
1:39
Speaker 3: in my judgment, the most partisan and political Department of
1:42
Speaker 3: Justice in history doesn't matter, not enough for Joe Biden
1:46
Speaker 3: in the White House. Here's what Politico reported quote. Joe
1:50
Speaker 3: Biden has told aids and outside advisers that Attorney General
1:54
Speaker 3: Merrick Garland did not do enough to reign in a
1:57
Speaker 3: Special Council report stating that the President had diminished mental faculties,
2:01
Speaker 3: according to two people close to the president, as White
2:05
Speaker 3: House frustration with the head of the Justice Department grows,
2:09
Speaker 3: the report from Special Counsel Robert Hurr ultimately cleared Biden
2:12
Speaker 3: of any charges stemming from handling of classified documents that
2:16
Speaker 3: were found at Biden's think Tank at his home. But
2:19
Speaker 3: HER's explanation for not bringing charges that Biden would have
2:23
Speaker 3: persuaded the jury that he was a forgetful old man,
2:27
Speaker 3: up ended the presidential campaign and infuriated the White House.
2:30
Speaker 1: So get this.
2:32
Speaker 3: They're not particularly happy that the Department of Justice is
2:36
Speaker 3: not indicting Joe Biden. They're not celebrating that, DOJ's perfectly
2:41
Speaker 3: happy to say, Yep, one standard applies to Joe Biden.
2:44
Speaker 3: A totally different standard applies to Donald Trump. Donald Trump,
2:47
Speaker 3: we sent in stormtroopers, we go raid mar A Lago,
2:50
Speaker 3: we prosecute him. But Joe Biden, he does the same thing.
2:54
Speaker 3: Nothing to see here. None of that makes them happy.
2:56
Speaker 3: That's not political enough. The reasoning to J justify that
3:00
Speaker 3: obvious double standard, which we covered on when on Friday's podcast.
3:05
Speaker 3: And by the way, if you didn't listen to Friday's podcasts,
3:08
Speaker 3: you should go back and listen to Friday's podcast because
3:10
Speaker 3: we discussed how in the Special Council Report, the Biden
3:15
Speaker 3: Department of Justice argued that Joe Biden is not competent
3:19
Speaker 3: to stand trial. Now, mind you, that was their explanation
3:22
Speaker 3: for why they weren't prosecuting him. That they couldn't convince
3:25
Speaker 3: a jury that Joe Biden had the mental faculties to
3:30
Speaker 3: be able to form willfulness. That's a remarkable standard. But
3:34
Speaker 3: now the Biden White House is throwing a fit. Well,
3:36
Speaker 3: it's one way or the other. Either he's not competent
3:39
Speaker 3: to be charged or he is, in which case he
3:42
Speaker 3: should be indicted. You can't have it both ways.
3:45
Speaker 2: Well, and that also SAIDs as you and I mentioned earlier,
3:48
Speaker 2: a major precedent. If the president's not being able to
3:51
Speaker 2: be held accountable in their words, for things that he
3:54
Speaker 2: did wrong wilfully taking classified documents, you would assume that
3:57
Speaker 2: same logic would didn't extend to anything that deals the
4:00
Speaker 2: Biden crime family. And then to have it and say
4:04
Speaker 2: this the other way, as you just described it, it's
4:06
Speaker 2: like they believe that this government just does and makes
4:09
Speaker 2: up the rules for them that apply to them in
4:11
Speaker 2: any which way they want, regardless of the law of
4:14
Speaker 2: the land, regardless of the Constitution, regardless of what it
4:18
Speaker 2: does to other people's lives, including now going after Donald
4:21
Speaker 2: Trump and people around him.
4:23
Speaker 3: Well, and that's dangerous. It is dangerous when the Department
4:26
Speaker 3: of Justice becomes thoroughly politicized, when it becomes a weapon
4:31
Speaker 3: to attack your enemies, a weapon to insulate the president
4:34
Speaker 3: and his allies. And when it becomes simply a political tool.
4:39
Speaker 3: And even though Merrick Garland is happy to be thoroughly,
4:44
Speaker 3: thoroughly political, it's not enough for the Biden White House.
4:48
Speaker 3: They want him to literally behave like an extension of
4:52
Speaker 3: the DNC.
4:54
Speaker 2: When you talk about this reporting, will any of this
4:56
Speaker 2: come back do you think to haunt the president here?
4:59
Speaker 2: Especially for the fact that if now Garland's been named
5:02
Speaker 2: in this way publicly and that people are frustrated, is
5:04
Speaker 2: there a chance that Marylyn Garland may now start to
5:06
Speaker 2: stand up a little bit more to the president because
5:08
Speaker 2: now he's taking this heat directly from the president behind
5:11
Speaker 2: the scenes that we're learning about in the news. I mean,
5:13
Speaker 2: that's embarrassing to his legacy at bare minimum.
5:17
Speaker 3: You know, I doubt it. I have no reason to
5:19
Speaker 3: suspect that Merrick Garland has yet to demonstrate any willingness,
5:23
Speaker 3: any inclination to stand up to Joe Biden or political
5:26
Speaker 3: pressure so far, and we're three years in. You know,
5:30
Speaker 3: it's striking that this is also not new. Joe Biden.
5:35
Speaker 3: Remember when he was campaigning, he said he wasn't going
5:38
Speaker 3: to put pressure on the Department of Justice. But here
5:42
Speaker 3: play this clip and then this is a clip from
5:44
Speaker 3: Joe Biden in twenty nineteen, and he's jabbing his finger
5:47
Speaker 3: in Peter Deucey's face in Iowa on reports that President
5:55
Speaker 3: Trump had President had pressured Ukraine's president to investigate the
5:59
Speaker 3: Bile and Crime family. And here was his response. Give
6:02
Speaker 3: a listen.
6:03
Speaker 4: Trump deserves to be investigated. He is violating every basic
6:09
Speaker 4: norm of a president. You should be asking him the question,
6:13
Speaker 4: why is he on the phone with a foreign leader
6:15
Speaker 4: trying to intimidate a foreign leader?
6:17
Speaker 1: If that's what happened, that's a fures what happened. You
6:20
Speaker 1: should be looking at Trump.
6:21
Speaker 4: Trump's doing this because he knows I'll beat him like
6:24
Speaker 4: a drum, and he's using the abuse of power and
6:27
Speaker 4: every element of the presidency to try to do something
6:32
Speaker 4: to smear me. Everybody looked at this, and everybody's looked
6:36
Speaker 4: at it and said, there's nothing there.
6:38
Speaker 1: Ask the right questions about me.
6:40
Speaker 2: Ask the right question. There's there's two things about that
6:43
Speaker 2: equip center. One the queer cognitive coline. Even since yeah
6:47
Speaker 2: in twenty.
6:47
Speaker 3: Didn't speak that clearly. Now, I mean It really is amazing.
6:50
Speaker 3: In just a few years, four years later, he can't
6:54
Speaker 3: articulate even a single, clear, forceful, decisive sentence like he
6:59
Speaker 3: did then.
7:00
Speaker 2: And not only that, but he also saying, you guys
7:03
Speaker 2: need to go after Trump. He's basically telling the media
7:07
Speaker 2: you don't ask me questions about what I've done.
7:09
Speaker 1: He says I've been quered, which by the way, was
7:11
Speaker 1: not true. That's a lie.
7:12
Speaker 2: But he's also saying, like, get in your place, do
7:15
Speaker 2: your job, go after Donald Trump. And now it seems
7:18
Speaker 2: that he's lost some control over this media that he's
7:20
Speaker 2: had control over for the last three plus years.
7:23
Speaker 3: Yeah, that final line there, asked the right questions. His
7:26
Speaker 3: attitude is the corporate media works for him. They're supposed
7:30
Speaker 3: to ask the questions he tells them to, and they're
7:33
Speaker 3: supposed to shut up. As we discussed at length on
7:36
Speaker 3: Friday's podcast, the disastrous press conference Joe Biden did after
7:40
Speaker 3: this special Counsel report, suddenly the media wasn't following orders anymore.
7:45
Speaker 3: They were actually asking real and hard questions, and he
7:48
Speaker 3: was flabbergasted and angry, and to be clear, his efforts
7:52
Speaker 3: to try to push the Department of Justice to be
7:55
Speaker 3: his political attack dog. This is not new. On In
8:00
Speaker 3: March thirty first, twenty twenty three, the New York Times
8:02
Speaker 3: reported the following quote, but he does have opinions in
8:06
Speaker 3: the past. Mister Biden privately told his close circle of
8:09
Speaker 3: advisers that mister Trump posed a threat to democracy and
8:14
Speaker 3: should be prosecuted for his role in the events of
8:17
Speaker 3: January sixth, according to two people familiar with his comments.
8:21
Speaker 3: Amazing the same two people keep popping up. He also
8:25
Speaker 3: told confidence that he wanted Attorney General Merrick B. Garland
8:30
Speaker 3: to stop acting like a ponderous judge and to take
8:34
Speaker 3: decisive action. This has been over and over again, the
8:40
Speaker 3: approach of the White House and the approach of Joe Biden.
8:43
Speaker 3: He believes DOJ and the FBI and all of the
8:46
Speaker 3: machinery of government is part of his partisan apparatus to
8:51
Speaker 3: attack his enemies and to protect himself above all else.
8:55
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Speaker 1: Senator.
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Speaker 2: One other thing I want to ask you when it
10:54
Speaker 2: comes to this story. Axios came out and they are
10:59
Speaker 2: now basically reporting that it is a five alarm fire
11:03
Speaker 2: inside the White House's press department. Right now, it is
11:06
Speaker 2: a five alarm fire because the White House is now
11:08
Speaker 2: in this impossible position to fight to defend Biden's competency,
11:13
Speaker 2: his fitness to be president of the United States of America,
11:17
Speaker 2: and the damage control doesn't seem to be playing well
11:20
Speaker 2: with new pulling out and the Sunday morning shows. We're
11:23
Speaker 2: talking about this, Joe Biden has lost the media on
11:26
Speaker 2: this front as well, and it matters because his team
11:29
Speaker 2: is scrambling to counter the her report.
11:33
Speaker 1: They say the president.
11:34
Speaker 2: Is an elderly man with a great memory. Right, that's
11:37
Speaker 2: Joe Biden's word, but the report said it's an elderly
11:40
Speaker 2: man with poor memory.
11:42
Speaker 1: You've seen a lot.
11:43
Speaker 2: Of these political stories and how the tides can turn quickly.
11:47
Speaker 2: Is this going to be the undoing of the Biden
11:49
Speaker 2: presidential campaign?
11:51
Speaker 1: Can they overcome this?
11:52
Speaker 2: I know the aids are trying, but it seems like
11:54
Speaker 2: they've completely lost control of the story.
11:57
Speaker 3: Look, this is a political crisis from their perspective. What happened?
12:01
Speaker 3: You know, there's an old line that a gaff in
12:03
Speaker 3: Washington is when a politician accidentally tells the truth. In
12:07
Speaker 3: this instance, the Department of Justice of Joe Biden accidentally
12:11
Speaker 3: told the truth and they're now dealing with with with
12:14
Speaker 3: a political emergency.
12:16
Speaker 1: What to do about it?
12:17
Speaker 3: Biden responded by holding a press conference in which his
12:20
Speaker 3: his meandering, rambling answers confirmed everything said in the Special
12:26
Speaker 3: Council report, and including at one point one of the
12:29
Speaker 3: elements of the report that demonstrated why his memory was
12:34
Speaker 3: so failing. Is it said he could not remember when
12:37
Speaker 3: his son had died. And when Biden is defending that,
12:40
Speaker 3: he points to some rosary beads that that that that
12:43
Speaker 3: he wore, that that were given to him, and he said,
12:45
Speaker 3: we're given to me by where we were given to
12:46
Speaker 3: me by. And then he can't remember, can't remember what
12:50
Speaker 3: the details are about the rosary beads. That, to put
12:55
Speaker 3: it mildly, is not a good look when you're trying
12:57
Speaker 3: to demonstrate that you have a good enough memory to function.
13:01
Speaker 3: If you can't actually remember your response to that attack,
13:05
Speaker 3: that's a problem.
13:06
Speaker 2: It is a problem, and it's going to be one
13:07
Speaker 2: that I think it's going to be a big advantage
13:10
Speaker 2: for Donald Trump moving forward. I want to also get
13:12
Speaker 2: into two other major stories here that need to be
13:16
Speaker 2: on everyone's radar screen.
13:19
Speaker 3: And by the way, let me say something real quick also.
13:21
Speaker 3: So I was yesterday down at mar Lago with President Trump,
13:26
Speaker 3: and I'll tell you I couldn't help but think the
13:31
Speaker 3: contrast between the two men, because even though Donald Trump
13:34
Speaker 3: is just slightly younger than Joe Biden, he was his
13:38
Speaker 3: usual self. He was on the ball and quick and
13:41
Speaker 3: ready to fight and strong. And the contrast to the
13:46
Speaker 3: incredible loss of faculties from Joe Biden. It really struck me.
13:51
Speaker 3: I spent quite quite a while with President Trump last night,
13:54
Speaker 3: and it is night and day, and I think that
13:57
Speaker 3: is going to be evident to the voters every day
13:59
Speaker 3: from now until election day.
14:01
Speaker 2: When you spoke with him quickly, I just want to
14:03
Speaker 2: ask you what was his mood about this election?
14:06
Speaker 1: I mean, he's under fire all over the place.
14:09
Speaker 2: We're going to talk in a moment about the Supreme
14:11
Speaker 2: Court and what's going to happen there with Colorado and
14:13
Speaker 2: your predictions on that.
14:14
Speaker 1: But what was his demeanor?
14:16
Speaker 5: Like?
14:16
Speaker 3: Very positive, very confident. He was in a good mood.
14:19
Speaker 3: He was laughing, he was feeling good. He was he
14:23
Speaker 3: was having dinner at dinner at Marlago. He was having
14:25
Speaker 3: dinner with with with Milania and with with Baron Trump.
14:28
Speaker 5: Barons.
14:28
Speaker 3: Now like six foot eight is really a tall kid,
14:32
Speaker 3: and he was in good spirits all night.
14:35
Speaker 2: That I want to move to Colorado real quick and
14:38
Speaker 2: talk about this, this Donald Trump versus Colorado Supreme Court.
14:43
Speaker 2: The Supreme Court heard the Trump ballot oral arguments. The
14:48
Speaker 2: justices appeared very skeptical of removing him from the ballot,
14:53
Speaker 2: not just in Colorado, but it seemed like in theory
14:56
Speaker 2: anywhere in the country, this is what you had predicted,
15:00
Speaker 2: And you said you were hoping that we would have
15:02
Speaker 2: a Niner decision. Some of these on the left were
15:05
Speaker 2: actually out there attacking Colorado's arguments. Give a recap of
15:09
Speaker 2: kind of now what your thoughts are and what happened
15:12
Speaker 2: in court.
15:13
Speaker 3: Well, I think the oral argument very much confirmed what
15:17
Speaker 3: you and I said on this podcast. The day after
15:21
Speaker 3: the Colorado Supreme Court decision came down. I said in
15:25
Speaker 3: that immediate next podcast, I said, this decision is an outrage.
15:28
Speaker 3: It is lawless, It is completely contrary to the rule
15:31
Speaker 3: of awe of the Constitution, and it is the gravest
15:34
Speaker 3: assault on democracy of our lifetimes. And I predicted then,
15:38
Speaker 3: I said, the Supreme Court will take the case. They
15:41
Speaker 3: will schedule it quickly for decision, for oral argument, they
15:45
Speaker 3: will decide it quickly. They will reverse this decision. And
15:48
Speaker 3: I said at the time, I think there's a very
15:50
Speaker 3: significant chance that they reverse it unanimously. Well, almost every
15:55
Speaker 3: element of that prediction has already come true. They took it,
15:58
Speaker 3: they took it quickly, they scheduled it for an exceptionally
16:00
Speaker 3: accelerated oral argument. It was argued on February eighth. The
16:04
Speaker 3: justices right now, I think, are scrambling to write their opinions.
16:08
Speaker 3: I expect a decision from the Supreme Court within the
16:12
Speaker 3: next couple of weeks. I think as quickly as they
16:13
Speaker 3: can get the opinion finished, they'll get it out. But
16:15
Speaker 3: I do think they will feel some real urgency. I
16:19
Speaker 3: think we will have a decision in the month of February,
16:22
Speaker 3: and I continue to think there is a very real
16:26
Speaker 3: chance that it is a unanimous decision. The oral argument,
16:29
Speaker 3: every one of the justices who ask questions express serious
16:33
Speaker 3: skepticism as to the position of Colorado, and it's worth
16:37
Speaker 3: let's just play play some of these exchanges. So let's play,
16:41
Speaker 3: for example, Justice Katanji Brown Jackson.
16:45
Speaker 6: From rising again in the context of these sort of
16:49
Speaker 6: vocal elections as opposed to focusing on the presidency.
16:54
Speaker 5: Well, two points on that Justice Jackson.
16:56
Speaker 7: First is that, as I discussed earlier, there isn't the
16:59
Speaker 7: same history of states regulating ballot access at this time,
17:03
Speaker 7: So ballot access rules to restrict presidential candidates wouldn't have
17:08
Speaker 7: wouldn't have existed, they wouldn't have been raised.
17:10
Speaker 5: One way or another right.
17:11
Speaker 6: But I'm not making a distinction between ballot access and
17:13
Speaker 6: anything else.
17:14
Speaker 5: We'll understood.
17:15
Speaker 7: But the more broad point I want to make is
17:17
Speaker 7: that what is very clear from the history is that
17:20
Speaker 7: the Framers were concerned about charismatic rebels who might rise
17:24
Speaker 7: through the ranks up to and including the presidency of
17:27
Speaker 7: the United States.
17:27
Speaker 6: But then why didn't they put the word president in
17:30
Speaker 6: the very enumerated list in section three. The thing that
17:34
Speaker 6: really is troubling to me is, I totally understand your argument,
17:38
Speaker 6: but they were listing people that were barred, and president
17:42
Speaker 6: is not there, and so I guess that just makes
17:45
Speaker 6: me worry that maybe they weren't focusing on the president.
17:49
Speaker 6: And for example, the fact that electors of vice president
17:54
Speaker 6: and president are there suggests that really what they thought was,
17:58
Speaker 6: if we're worried about the charismatic person, we're going to
18:01
Speaker 6: bar insurrectionist electors, and therefore that person is never going
18:06
Speaker 6: to rise.
18:07
Speaker 7: This came up in the debates in Congress over section three,
18:10
Speaker 7: where Reverty Johnson said, why haven't you included president and
18:14
Speaker 7: vice president in the language? And Senator Moral responds, we
18:18
Speaker 7: have look at the language any office under the United
18:21
Speaker 7: States yes.
18:21
Speaker 6: But doesn't that at least suggest ambiguity and this sort
18:25
Speaker 6: of ties into Justice Kavanaughs point. In other words, we
18:28
Speaker 6: had a person right there at the time saying what
18:32
Speaker 6: I'm saying. The language here doesn't seem to include president.
18:36
Speaker 6: Why is that? And so if there's an ambiguity, why
18:39
Speaker 6: would we construe it to as Justice Kavanaugh pointed out
18:45
Speaker 6: against democracy.
18:47
Speaker 7: Well, Reverty Johnson came back and agreed with that, reading
18:50
Speaker 7: any office is clear.
18:51
Speaker 5: The Constitution says about twenty times.
18:53
Speaker 6: No, I'm not going to die. So let me just
18:56
Speaker 6: say so, your point is that it's that there's no
18:59
Speaker 6: ambiguity with having a list and not having president in it,
19:03
Speaker 6: with having a history that suggests that they were really
19:06
Speaker 6: focused on local concerns in the.
19:07
Speaker 1: South considered she wasn't having it at all.
19:12
Speaker 3: Yeah, looks there are times at Supreme Court arguments where
19:16
Speaker 3: justices try to hide where they're coming from. That's not
19:19
Speaker 3: one of them. That's one of the central arguments being
19:22
Speaker 3: made by Trump. It's one of the central arguments that
19:25
Speaker 3: I made in the amicus brief that I filed on
19:28
Speaker 3: behalf of some one hundred and seventy members of Congress,
19:31
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19:34
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19:38
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19:41
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19:46
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Speaker 2: All right, take a listen real quick to Justice Neil
20:58
Speaker 2: Gorschitz at the Supreme Court, back and forth with Colorado's attorneys.
21:03
Speaker 8: He speaks about disqualification from holding office. You say he
21:07
Speaker 8: is disqualified from holding office from the moment it happens, correct,
21:12
Speaker 8: but nevertheless it operates. You say that there's no legislation necessary.
21:18
Speaker 8: I thought that was a whole theory of your case,
21:20
Speaker 8: and no procedures. It happens automatically.
21:23
Speaker 7: Well, certainly you need a procedure in order to have
21:25
Speaker 7: any remedy to enforce the disqualification.
21:28
Speaker 8: Which I under that's a whole separate question. That's the
21:30
Speaker 8: day fact of done. More here, Okay, put that aside.
21:34
Speaker 8: He's disqualified from the moment self executing done. And I
21:40
Speaker 8: would think that a person who would receive a direction
21:44
Speaker 8: from that the president, former president, in your view would
21:48
Speaker 8: be free to act as he or she wishes without
21:51
Speaker 8: regard to that individual.
21:53
Speaker 7: I don't think so, because I think again, the the
21:55
Speaker 7: officer doctrine would nevertheless come into play to say this.
21:58
Speaker 8: Is now the fact that that doesn't work, mister Murray,
22:01
Speaker 8: because the fact the officer is to ratify the conduct
22:04
Speaker 8: that's done afterwards and insulate it from judicial review.
22:08
Speaker 9: Put that aside. I'm not going to say it again.
22:10
Speaker 9: Put it aside, Okay.
22:11
Speaker 8: I think justice leaders ask a very different question, and
22:14
Speaker 8: more pointed one and more difficult one for you, I understand,
22:17
Speaker 8: but I think it deserves an answer. On your theory,
22:21
Speaker 8: would anything compel a lower official to obey an order
22:27
Speaker 8: from in your view, the former president.
22:31
Speaker 7: I'm imagining a situation where, for example, a former president
22:34
Speaker 7: was you know, a president was elected and they were
22:36
Speaker 7: twenty five and they were ineligible to unless.
22:39
Speaker 8: We're talking about sections, and please don't change the hypothetical. Okay,
22:44
Speaker 8: Please don't change the hypothetical. I know I like doing
22:46
Speaker 8: it too, but please don't do it.
22:48
Speaker 9: Okay.
22:48
Speaker 8: The point I'm trying to make is he's disqualified from
22:51
Speaker 8: the moment he committed an insurrection. Whoever it is, whichever
22:55
Speaker 8: party that happens.
22:57
Speaker 9: Boom, it happened.
23:00
Speaker 8: What would compel And I'm not going to say it again,
23:02
Speaker 8: So just try and answer the question. If you don't
23:04
Speaker 8: have to answered fair enough, we'll move on what will
23:06
Speaker 8: compel a lower official.
23:08
Speaker 9: To obey an order from that individual?
23:10
Speaker 7: Because ultimately we have we have statutes and rules center
23:14
Speaker 7: for many people that made me have never heard oral
23:17
Speaker 7: arguments before.
23:18
Speaker 2: There's no cameras in the court, but there is this audio.
23:21
Speaker 2: This is what I would refer to as a beat down.
23:24
Speaker 3: Yes, look that was brutal. And the basic back and
23:28
Speaker 3: forth we're hearing is typical of oral arguments. You know,
23:31
Speaker 3: people think of a Supreme Court argument and they often
23:33
Speaker 3: imagine some grand oration. They imagine, you know, doctor King,
23:39
Speaker 3: I have a dream. They imagine, you know, John F.
23:42
Speaker 3: Kennedy giving some rousing speech. But that's not what Supreme
23:46
Speaker 3: Court argument is. It is typically two lawyers standing there.
23:51
Speaker 3: Usually they have thirty minutes each, and they are laying
23:55
Speaker 3: out arguments as to where why their side should prevail.
23:58
Speaker 3: And almost the entire argument consists of the nine justices
24:02
Speaker 3: asking questions and asking very difficult questions. And you're hearing
24:05
Speaker 3: that back and forth, and it shows the weaknesses of
24:08
Speaker 3: the arguments. Now, in that instance, Justice Gorsa just saying,
24:10
Speaker 3: look to the Colorado lawyer, your theory is the instant
24:14
Speaker 3: and insurrection happens, and a president participates in it that instant,
24:18
Speaker 3: that president is no longer eligible to be president, and
24:22
Speaker 3: in fact he cannot hold the office instantaneously. And also
24:26
Speaker 3: your theory is that it is self executing, which means
24:30
Speaker 3: Congress does not need to pass any legislation to get
24:32
Speaker 3: forced to it, to give a procedure to it. It
24:35
Speaker 3: just in the ether instantaneously makes him you're not president anymore.
24:39
Speaker 3: And so he's asking him, well, if by operation of
24:43
Speaker 3: the Constitution, in that instant he's not president, why would
24:46
Speaker 3: anyone in the government listen to him from that moment on?
24:50
Speaker 3: And the lawyer had no answer to that. He couldn't
24:54
Speaker 3: give any He tried to dodge, he tried to change
24:57
Speaker 3: the hypothetical. That did not go, well, yes, that's not
25:01
Speaker 3: what you put on your resume one day.
25:03
Speaker 1: If you're arguing on behalf the Colorado voters.
25:05
Speaker 2: The part where he's like, I know what you're trying
25:07
Speaker 2: to do here, but don't do that again.
25:08
Speaker 1: Stop it.
25:09
Speaker 2: If you can't answer move on. That's the beat down
25:11
Speaker 2: at the Supreme Court.
25:13
Speaker 3: Yeah, and here listen to a little bit more from
25:15
Speaker 3: Justice Gore such on a similar line of questioning.
25:19
Speaker 9: That this court is held.
25:21
Speaker 8: You're not contesting this or asking us to revisit that
25:24
Speaker 8: decision in Thornton or term limits or whatever you want
25:26
Speaker 8: to call it, that it has to come from some
25:29
Speaker 8: federal constitutional authority.
25:30
Speaker 5: No, we are not your on it. Okay.
25:32
Speaker 8: And here we're not talking about the qualifications clause. Right,
25:37
Speaker 8: nobody's talking about whether he's thirty five years.
25:40
Speaker 9: Old or natural borns, about whatever. Right, not an issue, okay.
25:44
Speaker 8: We're talking about something under the fourteenth Amendment and Section three.
25:49
Speaker 8: So that's where you have to find your authority.
25:51
Speaker 9: Right.
25:52
Speaker 7: We find our authority in an Article two in state's plenary
25:55
Speaker 7: power to run their.
25:56
Speaker 8: Election federal election. But this is for a federal office.
25:58
Speaker 8: It has to come from the content Institution. And you're
26:01
Speaker 8: seeking to enforce Section three.
26:04
Speaker 7: We're suggesting that in their broad power to determine them
26:08
Speaker 7: to select presidential electors in any manner they see fit,
26:11
Speaker 7: they can take account of Section three and apply Section three.
26:14
Speaker 9: Could they do it without Section three?
26:16
Speaker 8: Could they disqualify somebody for a you know, on whatever
26:20
Speaker 8: basis they wanted outside of the qualifications clause.
26:24
Speaker 5: That would run into term limits.
26:26
Speaker 8: We think so, right, So it has to come back
26:28
Speaker 8: to section three. And if that's true, how does that
26:32
Speaker 8: work given that section three speaks about holding office, now
26:36
Speaker 8: who may run for office. There's a point mister Mitchell
26:39
Speaker 8: was making earlier, and I just wanted to give you
26:40
Speaker 8: a chance to respond to it, because it seems to
26:42
Speaker 8: me that you know that you're asking to enforce in
26:45
Speaker 8: an election something context a provision to constitution that speaks
26:51
Speaker 8: to holding office. So it's different than the qualifications clause,
26:55
Speaker 8: which is all about who can run and then serve.
26:58
Speaker 7: Yeah, I don't know that it is for other qualifications
27:01
Speaker 7: for office. Similarly, talk about eligibility for the office. There's
27:05
Speaker 7: nothing unconstitutional about a thirty year old trying to get
27:08
Speaker 7: on them.
27:09
Speaker 8: Except for this disability can be removed right under section three.
27:12
Speaker 9: That's what's different about it.
27:14
Speaker 2: I mean, he's not letting up there. And these are
27:16
Speaker 2: really not that hard a questions. It's just when you
27:19
Speaker 2: have not a lot to back it up in Colorado,
27:23
Speaker 2: you're in trouble.
27:24
Speaker 3: Well, they are hard questions because Colorado's argument is stupid.
27:29
Speaker 3: It's just not right. It's not what the Constitution says.
27:32
Speaker 3: You had four partisan Democrat justices in Colorado who hate
27:37
Speaker 3: Donald Trump, and they hate Donald Trump so much that
27:40
Speaker 3: they're willing to say to the voters of Colorado, you
27:43
Speaker 3: don't get to vote for him. I hate him so much,
27:46
Speaker 3: I'm scared you voters might choose to vote for this man.
27:51
Speaker 3: So I'm going to take him away. But it does
27:53
Speaker 3: not have a basis in the text of the Constitution,
27:56
Speaker 3: which is why Colorado's position is going to lose, all.
27:59
Speaker 2: Right, which, by the way, is why I have to
28:01
Speaker 2: play Quarence Thomas, one of your favorite justices here going
28:04
Speaker 2: back and forth with Jason Murray, and he asked a
28:08
Speaker 2: very simple question, and it's one that was just brilliantly
28:12
Speaker 2: done by Clarence Thomas, and I want to get your
28:14
Speaker 2: reaction to it.
28:15
Speaker 1: Listen to this.
28:17
Speaker 10: The concern was that the former Confederate States would continue
28:21
Speaker 10: being bad actors, and the effort was to prevent them
28:26
Speaker 10: from doing this. And you're saying that, well, this also
28:28
Speaker 10: authorized states to disqualify candidates. What I'm asking you for,
28:34
Speaker 10: if you are right, what are the examples?
28:37
Speaker 7: Well, your one of the examples are states excluded many
28:40
Speaker 7: candidates for state office, individuals holding state offices.
28:44
Speaker 5: We have a number of published cases of states.
28:47
Speaker 10: I understand that, I understand the states controlling state elections
28:53
Speaker 10: and state positions. What we are talking about here are
28:57
Speaker 10: national candidates. I understand you look at Phoner or Foot,
29:04
Speaker 10: Selby Foot or McPherson. They all talk about, of course,
29:09
Speaker 10: the conflict after the Civil War, and there were people
29:12
Speaker 10: who felt very strongly about retaliating against the South, the
29:18
Speaker 10: radical Republicans, but they did not think about authorizing the
29:22
Speaker 10: South to disqualify national candidates.
29:26
Speaker 9: And that's the argument you're making.
29:28
Speaker 10: And what I would like to know is you give
29:30
Speaker 10: is do you have any examples of this?
29:34
Speaker 7: Many of those historians have filed briefs in our support
29:37
Speaker 7: in this case, making the point that the idea of
29:40
Speaker 7: the fourteenth Amendment was that both states and the federal
29:43
Speaker 7: government would ensure rights, and that if states failed to
29:45
Speaker 7: do so, the federal government certainly would also step in.
29:49
Speaker 7: But I think the reason why there aren't examples of
29:51
Speaker 7: states doing this is in idiosyncratic one of the fact
29:54
Speaker 7: that elections worked differently back then.
29:57
Speaker 5: States have a.
29:57
Speaker 7: Background power under Article two tenth Amendment to run presidential elections.
30:03
Speaker 7: They didn't use that power to police ballot access until
30:06
Speaker 7: about the eighteen nineties, and by the eighteen nineties everyone
30:10
Speaker 7: had received amnesty and these issues had become moot.
30:13
Speaker 2: I mean, it's amazing that Colorado took it this far,
30:16
Speaker 2: because to me, this seems like there's a decent chance
30:19
Speaker 2: this could be exactly what you thought.
30:21
Speaker 1: It could be a unanimous decision or even an eight
30:24
Speaker 1: to one.
30:25
Speaker 3: Well, and to underscore that, so we played. Obviously, Justice
30:28
Speaker 3: Thomas and Justice Gorsich are conservatives. But let's listen now
30:33
Speaker 3: to Justice Elena Kagan. And remember what I said at
30:36
Speaker 3: the outset, which is that I believe this had a
30:39
Speaker 3: very good chance of being unanimous. I think the Chief
30:41
Speaker 3: Justice desperately wants it to be unanimous, and I think
30:44
Speaker 3: the way it gets to be unanimous, in particular, is
30:47
Speaker 3: the Chief Justice goes to Elena Kagan, who I think
30:50
Speaker 3: is the smartest of the liberal justices. She was the
30:53
Speaker 3: former dean of the Harvard Law School. She was former
30:56
Speaker 3: Solicitor General of the United States. She's very very smart.
31:00
Speaker 3: Listen to Justice Kagan asking the Colorado lawyer Jason Murray questions.
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32:48
Speaker 2: Justice Kagan and the Colorado lawyer Jason Murray.
32:51
Speaker 7: Justice Kavanaugh, there has to be some process for determining
32:54
Speaker 7: those questions, and then the question becomes, does anything in
32:57
Speaker 7: the fourteenth Amendment say that only cat Ungress can create
33:00
Speaker 7: that process? And Section five very clearly is not an
33:04
Speaker 7: exclusive provision.
33:05
Speaker 5: It says Congress shall have power.
33:07
Speaker 11: It maybe put most boldly, I think that the question
33:10
Speaker 11: that you have to confront is why a single state
33:13
Speaker 11: should decide who gets to be president of the United States.
33:17
Speaker 11: In other words, you know, this question of whether a
33:19
Speaker 11: former president is disqualified for insurrection to be president again
33:24
Speaker 11: is just say it. It sounds awfully national to me.
33:29
Speaker 11: So whatever means there are to enforce, it would suggest
33:32
Speaker 11: that they have to be federal national means. Why does
33:36
Speaker 11: you know if you weren't from Colorado when you were
33:38
Speaker 11: from Wisconsin, or you were from Michigan, and it really,
33:43
Speaker 11: you know, what the Michigan Secretary of State did is
33:46
Speaker 11: going to make the difference between you know, whether candidate
33:50
Speaker 11: A is elected or Candidate B is elected.
33:53
Speaker 7: Matt seems quite extraordinary, doesn't it, no, your honor, because
33:56
Speaker 7: ultimately it's this court that's going to decide that question
33:59
Speaker 7: a federal constitutional eligibility and settle the issue for the nation.
34:03
Speaker 7: And certainly it's not unusual that questions of national importance
34:07
Speaker 7: come up.
34:08
Speaker 11: Well, it's suppose this court would be saying something along
34:11
Speaker 11: the lines of that a state has the power to
34:13
Speaker 11: do it. But I guess I was asking you to
34:15
Speaker 11: go a little bit further and saying why should that
34:17
Speaker 11: be the right rule? Why should a single state have
34:21
Speaker 11: the ability to make this determination not only for their
34:25
Speaker 11: own citizens, but for the rest of the nation.
34:28
Speaker 7: Because Article two gives them the power to appoint their
34:31
Speaker 7: own electors as they see fit. But if they're going
34:34
Speaker 7: to use a federal constitutional qualification as a ballot access determinant,
34:39
Speaker 7: then it's creating a federal constitutional question that then this
34:43
Speaker 7: court decides and other court's other states. If this Court
34:47
Speaker 7: affirms the decision below determining that President Trump is ineligible
34:50
Speaker 7: to be president, other states would still have to determine
34:53
Speaker 7: what effect that would have on their own states law
34:56
Speaker 7: and state procedure.
34:57
Speaker 2: I mean if we affirmed I mean Center, even she
35:02
Speaker 2: someone you would expect would be on the side of
35:03
Speaker 2: Colorado not really having it either.
35:06
Speaker 5: Yeah.
35:06
Speaker 3: Look, and as I said, I don't think any justices
35:10
Speaker 3: are going to vote with Colorado. I think we're going
35:11
Speaker 3: to see in all likelihood of unanimous decision. And she's
35:15
Speaker 3: focusing on you know, earlier we played Katanji Brown Jackson,
35:18
Speaker 3: and she was focusing on the fact that that president
35:21
Speaker 3: is not an officer that has specified in the Fourteenth Amendment,
35:24
Speaker 3: Section three. Justice Kaige's pointing out, well, why does one
35:28
Speaker 3: state get to do this? And if one state gets
35:29
Speaker 3: to do it, couldn't another state do something different? What
35:31
Speaker 3: do you do with that? And let's let's do one
35:34
Speaker 3: other clip which emphasizes that point. And you remember we
35:38
Speaker 3: did an entire podcast talking about the amicus brief that
35:41
Speaker 3: I filed. And this was an argument that I made
35:44
Speaker 3: on behalf of one hundred and seventy members of Congress,
35:46
Speaker 3: and I think it's a really powerful argument. Let's listen
35:49
Speaker 3: to Justice Alito asking about that argument in particular.
35:53
Speaker 12: Thank you, Thank you, Counsel Justice Thomas, Justice Alito, I
36:00
Speaker 12: suppose there's a country that proclaims again and again and
36:03
Speaker 12: again that the United States is its biggest enemy.
36:08
Speaker 13: And suppose that the President of the United States, for
36:11
Speaker 13: diplomatic reasons, think that it's in the best interests of
36:15
Speaker 13: the United States to provide funds or release funds so
36:20
Speaker 13: that they can be used by that country. Could a
36:24
Speaker 13: state determine that that person has given aid and comfort
36:29
Speaker 13: to the enemy and therefore keep that person off the ballot.
36:33
Speaker 5: No, you're on earth.
36:34
Speaker 7: This Court has never interpreted the aid and comfort language,
36:36
Speaker 7: which also is present.
36:38
Speaker 3: So that's another enormous problem. With Colorado's argument, which is
36:43
Speaker 3: that if Colorado is able to throw Donald Trump off
36:46
Speaker 3: the ballot, you're going to see other states act. You're
36:48
Speaker 3: going to see red states throw Joe Biden off the ballot.
36:51
Speaker 3: And the hypothetical that Sam Alito asked, it's a very
36:54
Speaker 3: good hypothetical. He's obviously talking about Iran, and Iran is
36:59
Speaker 3: led by an Eyela who chanced death to America, who
37:02
Speaker 3: has murdered hundreds upon hundreds of servicemen and women, American
37:07
Speaker 3: servicemen and women, who's the biggest funder of state funder
37:10
Speaker 3: of terrorism in the world. And Joe Biden has flowed
37:14
Speaker 3: one hundred billion dollars to the IYAHTOLA. Now, as Justice
37:18
Speaker 3: Alito pointed out, Biden argues it's for diplomatic reasons. But
37:23
Speaker 3: under the argument of Colorado, you could some other state
37:27
Speaker 3: could say, well, no, we conclude you're giving aid and
37:29
Speaker 3: comfort to our enemy, so Joe Biden is off the ballot.
37:32
Speaker 3: And the lawyer's answer was just well, no, no, no, no,
37:36
Speaker 3: that's a different provision. So no, no, we like Joe Biden,
37:39
Speaker 3: so you can't do that. I think that demonstrates that
37:43
Speaker 3: the theory behind this decision is insupportable, and it leads
37:47
Speaker 3: to chaos, and it fundamentally leads to judges battling each
37:52
Speaker 3: other to decide elections rather than the voters deciding elections.
37:57
Speaker 3: And so I'm going to reiterate, I think the chances
38:00
Speaker 3: that the US Supreme Court reverses this decision are one
38:04
Speaker 3: hundred percent, and I think the chances are significant more
38:09
Speaker 3: likely than not that the decision will be unanimous, and
38:13
Speaker 3: I think we will get it this month, the month
38:15
Speaker 3: of February.
38:16
Speaker 1: It's going to be very interesting to watch. Don't forget.
38:18
Speaker 2: As always, we do this show on Monday, Wednesday and Fridays.
38:22
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38:24
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38:28
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Speaker 2: if anything you miss that. We talked about biging the
38:34
Speaker 2: week on Saturdays as well, so if you want to
38:36
Speaker 2: get that as well, it is auto downloadable as at
38:39
Speaker 2: any time. Just hit that button wherever you get your podcasts,
38:43
Speaker 2: and Senator and I will see you back here on
38:44
Speaker 2: Wednesday morning,