Welcome.
It is Verdict with Center Ted Cruz, and it is the Week in Review.
Ben Ferguson with you.
And these are the big stories that you may have missed that we talked about this past week. First up, the Supreme Court is going to hear a serious case that deals with Donald Trump Colorado and his name being taken off the ballot.
They've decided to hear that.
So what does it mean for all the other lawsuits in other states they're trying to take him off the ballot. The Senator was going to give you all of that information, especially about how the Supreme Court will work. That is something very important. Plus, we have gotten now word that there is real concerns inside the United States of America of a coordinated terrorist attack at the hands of hesblah. How would they get into this country? More than likely
it would be across our open southern border. And we'll explain those details. And finally, when the Supreme Court, here's this case with Colorado and Donald Trump. Is there a chance that the Supreme Court will stand up for democracy and a unanimous decision. Senator Cruz gives you his prediction on exactly that it is that we can review and it starts right now. How long are they going to have to argue this? I mean when you talk about oral arguments, is it is it hours?
Is it ninety minutes? What are we talking about?
Normally an argument is an hour, So normally each side has thirty minutes. They can extend it. They might extend it in this instance. I don't know, but normally an argument is an hour. And the bulk of the argument, by the way, is questioning from the justices. So you get up and the justices are asking you questions, and that it's a back and forth.
It's not a mind is an opening statement?
There is? There didn't used to be.
So the old way they.
Did Supreme Court arguments was you would start off, you'd stand up and you'd say, mister Chief Justice, and may it please the court, And every argument begins with that, and you would sometimes get less than a sentence into your argument and a justice would jump in and pepper
you with questions and what made it invigoratings? You'd have a question here, a question here, question here, and it was just non stop, and you had to be quick and fast and anticipate justices who disagreed with your position. They're trying to ask you questions to expose the weakness of your case, and you had to anticipate it. They have post COVID, they regimented it now, and I really
don't like how they do it now. But they now have a period of questioning from each justice, and so it's a little it's not the wild face.
It's almost like Congress, or you have five minutes, or you have three minutes, and then you go in this order. Whereas before it could be a conservative just as to your question, followed up by a liberal justice to your question, followed up by another justice asking your question.
It was it was control chaos, It was yes, and and. But it is more regimented now. But I would say I would expect the Chief Justice questions to lay out in the questions what he think thinks is the best theory to bring the court together. All right, let me give the rest of Trump's arguments. Fourth argument he makes is that Trump did not participate in an insurrection because an insurrection, as understood at the time of passage of the fourteenth Amendment, means the taking up of arms and
waging war upon the United States. Now, I think that's absolutely correct. I think it's ludicrous to say that Trump engaged in an insurrection based on the facts. I also do not believe the Supreme Court will conclude that because you can't get nine justices for that, and I think they will want unanimity, and so they'll say, look, my guess is we might get a concurrence from one of the more conservative justices saying this clearly was not an insurrection,
but we might not. And by the way, look, I said that there's a sixty to seventy percent chance of it being unanimous. That means there's a forty to thirty to forty percent chance that the liberal justices just hate Trump so much they can't bring themselves to do it.
And what would that decision look like.
I mean, would it be one or two that say, hey, just for the principle and said, n I know, we're going to go seven to here, or even go six ' three.
Look six ' three would be heartbreaking. It would do real day in this country to the Court and to the country if it just broke on partisan lines. If the three liberal justices dissented and the six more conservative justices were in the majority, I think that would be terrible for the Court. And I really hope it's not so. The fifth argument that Trump made is that the electors Clause requires states to appoint presidential electures quote, in such
matter as the legislature thereof may direct. In other words, the courts can't intervene in that. The sixth argument is that Section three can not be used to deny a candidate access to the ballot. It can only be used
instead to prevent someone from holding office. So all of those are arguments, as I said, and you know it's and it's horse by the way, the argument that I think will will fly is the argument that it was not adequately determined that Trump had participated in insurrection, not that there wasn't an insurrection, but that the means of ascertaining that.
While that goes back to Jack Smith and what you're talking about, he was never charged, much less convicted, and it didn't work its way through the court system. And so if you believe that Donald Trump in fact was a part of an insurrection, then charge him with it, get him convicted of it, then you have that different argument goes back to what you were saying at the very beginning.
Yes, and I will say, look, one of the questions that will be front and center litigated is whether Section three is self executing. Self executing means a provision of the Constitution that has force of law, that doesn't need Congress to pass legislation to enforce it, and that will be actively disputed. And in the Colorado Supreme Court, one of the justices, Justice Carlo Samour, dissented on this point.
And what he said is that the majority opinion of Colorado stripped President Trump of due process of the due process of law, and he says Section three didn't specify the procedures that have to be followed to be determined whether someone is engaged insurrection all the Democrats is absurd. It's insurrection. It's insurrection, but that hasn't been determined as a legal matter, and so Justice Samour concluded the Section three is not self executing and requires legislation for enforcement.
And he argued that the lower courts proceeding in Colorado lacked basic discovery, lacked the ability to subpoena documents, lacked the ability to compel witnesses, lacked any time frame to investigate or developed defenses, and lacked the opportunity for a fair trial. And he pointed out that in his view, section three cannot be self executing because it doesn't provide any procedural guides. For example, Section three the fourteenth Amendment is completely silent on whether a jury has to be
impaneled or not. Can a judge decide it? Or does it have to be a jury your peer as well? Section three doesn't say it. What's the burden of proof? Is it beyond a reasonable doubt? Is clear and convincing evidence? Is it simply a preponderance of the evidence. Those are very different burdens of proof. Constitution is silence on that. What's the standard of review, what's the standard of discovery, what's the standard of evidence? Is it a civil determination
or criminal determination? None of that is there. And so what he argues is that Congress could pass legislation to adjudicate that. I'm not entirely persuaded on that. What I would say is Congress has passed legislation when it's set up a criminal statute for insurrection, that there is a mechanism and it is a criminal trial.
And charge him and charge them. And so you go back to the very beginning of what you said. No one has had the knes to charge them because they know they would lose.
You could not prove the case in court, which is why instead you have partisan judges or a partisan Secretary of State just asserting it because they believe it is a political matter. Now, on our next podcast, what I want to walk into and go into is there is some history and some Supreme Court history on the Fourteenth Amendment in section three right after the Civil War and Jefferson Davis in particular. So I'm going to give a
tease for our next podcast. I'm going to walk through what happened with Jefferson Davis under the Fourteenth Amendment Section three. But let's be clear, Jefferson Davis, by any measure, engaged in dramatically different conduct. Leading the Confederacy and waging war with the United States for four years is very different from giving a speech telling people to be peaceful and so. But there is complicated precedent post Civil War. In the next podcast, will dive into that.
It's going to be very fun. This is why I love doing this show. I also will get your political predictions. I do want to end with one last thing, just so people have that timeline you mentioned earlier. Supreme Court's going to hear this When and when do you think we'll have a decision from the Supreme Court.
February eighth is when they hear the oral argument. I think we will get a decision quickly. I think it's possible it could be within days. I think it will be at the very latest by March fifth, which is when the Colorado primary is. And my guess is it'll be a week or two. That's just It'll be as quick as they can write the opinions. But I think they will feel an urge to move quickly.
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 onto story number two. It's not shocking, but it certainly is a sobering moment. We know we have an open southern border. We know that more of people on the terrace watch lists were caught last year coming across the southern border in the last
five years before it combined. And now there's a new report coming out from Politico that American intel officials are warning of a risk of a HESBLO attack not just on US men and women around the world and service members and some of our bases, but also a real
elevated risk at home. Four officials familiar with the intelligence have confirmed this to Politico that they're worried about attacks here outside of what we've seen from ISIS and al Kada, where it's lone wolf type attacks, where they could be coming into this country, already in this country and planning a major attack.
Well, I think that's exactly right. And I've said before, I think the risk of a major terrorist attack in twenty twenty four is greater than it has been at any time since September eleventh, two thousand and one.
That we have right.
Down number one, a war the Middle East. In Israel, Hamas and Hesbela have called upon their terrorists to wage jahad not just against Israel but against America. And we have an open border on our southern border due to Joe Biden the Democrats, nine point six million people have crossed illegally in this country under Joe Biden. When I was last down on the southern border, I'm down there
a lot. Multiple border patrol agents told me they were deeply concerned about the risk of Hamas terrorists and Hesbela terrorists crossing the border because Joe Biden, it continues to be an open border to this day. They could be crossing right now as we are speaking, Hamas and Hesbela terrists could be crossing in. And what is so frustrating is if you were a Hamas commander, Ben, you would send terrorists in. It's a glaring vulnerability that Joe Biden
the Democrats don't care to solve. So this political article that just came out quoted a senior US intelligence official is saying, and this is a quote Hesbela could draw on the capability they have to put people in places to do something. It is something to be worried about,
said the official. And this is consist st with We did a previous podcast where we read the memo that Customs and Border Patrol had sent to border patrol agents saying be on particular guard for Hamas and Hesbala terrorists and also Palestinian Islamic Jehad terrorists trying to cross the border. And it is astonishing to me that even in the face of that risk, which suddenly the FBI is publicly acknowledging.
We're six months ago, they were not acknowledging it, they are now, And what that tells me is the classified intel is even worse than what we know in public.
You know, you don't have to leap very far to get from point A to point B on something as simplistic of Hey, if you are a terrorist organization, are you going to take the risk of putting people that can be on the terrorists watch list on airplanes and
try to get them into the country that way? Or are you just going to get them to come across the southern open border when there's millions of people that have already it's worked successfully for You know that if you are not on the watch list and they catch you, about eighty plus percent of your being released into the interior of this country. And if you want to be one of the godaways, it's not that hard. You've witnessed it firsthand at the southern border. And yet this administration
refuses to admit that's a national security risk. And I think even now if you ask them, they would refuse to acknowledge the existence of a real terrorist threat because of an open southern border. And you got to ask yourself at that point, like what does it take for them to get their heads out of the rear end? Senator and understand This isn't just about an open border a border policy, this is about a national security policy as well.
Now, look, that's exactly right. You know. Christy Abazide, who is the director of the National counter Terrorism Center, said during a congressional hearing on October Here's what she said, quote, Iran Hezbolah and their linked proxies are trying to calibrate their activity, avoiding that would open up a concerted second front with the United States or Israel, while still exacting costs in the midst of the current conflict. This is a very fine line to walk, and in the present
regional context, their actions carry the potential for miscalculation. This is what they're admitting. Here's what Anthony Blink and the Secretary of State said, quote this is a moment of profound tension in the region. This is a conflict that could easily metastasize. And yet even as they're admitting that they're not willing to secure the border. Here's what Chris
Ray said in a congressional hearing on November fifteenth. Quote the arrest of individuals in the United States allegedly linked to Hesbela's main overseas terrorist arm and their intelligence collection and procurement efforts demonstrate Hesbelah's interests in the long term
contingency planning activities here in the homeland. And none of this is persuasive to Joe Biden, or Kamala Harris or Alejandro Majorcis or any of the congressional Democrats who are all willing to turn a blind eye and say, right now, today, whenever you're listening to this podcast, if you're listening to this podcast at six in the morning, if you're listening to this podcast at noon, if you're listening to this podcast at six pm, or if you're listening to this
podcast at midnight, whatever time you're listening to it, right now, there are people crossing illegally into this country, and the Biden administration is doing nothing to stop them. In the last three years, there have been over two million god Aways. Those are people that have evaded capture. We know about them, but they didn't turn themselves in, whereas the bulk of the people who came did turn themselves in. The god Aways are the most dangerous. You want to know where
the terrorists are, they're the god Aways. You want to know where the criminals are, They're the god aways, the murderers, the rapists, they're the god aways. You want to know where the gang members, the MS thirteen are the godaways? And I don't know what it will take to get this administration to actually step up and say we're going to keep the American people safe from.
A terror attack? Is it arrogance?
Last question on this, is it arrogance that you know, oh, we know better because there is a younger age that is serving in the House now than we've seen that maybe doesn't understand or remember truly what happened on nine to eleven. Is it an arrogance of the Democratic Party that they just don't care about history in the past. I mean, I remember nine to eleven like it was yesterday. I know you do as well, and many Americans do. And when you hear this type of threat, you can
imagine it because you've lived through nine to eleven. You can imagine what it looks like when you allow Hasbala terrorists to come across the southern border and what they can do if they are well trained, which they are, and if they can get their hands on what they need to carry out a significant tearist attack. And I said, here and go, how do you not remember nine to eleven? Where is the disconnect here?
Well, look for one thing, nine to eleven was twenty two years ago. Twenty two years ago is a long time. You and I. Although we think we're spring chickens, we're not anymore. You're in your forties, I'm in my fifties. There are a lot of people. There is not a single college kid who remembers nine to eleven. There are a lot of people in their thirties who nine to eleven is a distant memory from their childhood. And look, I get it, you know, for me, I think about
like Pearl Harbor. I know about Pearl Harbor. It's a horrible day in history. It's a horrible day in US history. But do I have a personal emotional reaction to Pearl Harbor. No, it happened long before I was born, so it's kind of I've read about it, but I didn't live through it. So there is a dynamic that many people in America were getting far enough beyond nine to eleven that many
people don't have a personal acute memory. And then I think beyond that, what has happened is that we've seen the Democrat Party in Washington radicalized and it's been happening for a while. Barack Obama started this process of radicalizing it, and then Trump becoming president broke their brains. They hate Trump so much that I actually just think they've convinced themselves that anything is justified fighting Trump, and the result
of it is that they're embracing radical policies. And because the press, Trump broke the press, the media doesn't report on this, and so the Democrats are radicalized because they know they will never be asked back home about the extreme policies they're supporting.
As before, If you want to hear the rest of this conversation on this topic, you can go back and dow 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. You may have missed one other question I want 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. As your mind changed at all since we did part
one on that, I mean, you're back in DC. 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 us 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.
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 one hundred percent 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 vot 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 got to 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 thirty years. He cares exquisitely about the legitimacy of the Supreme Court, and so I think the Chief Justice is going to bed 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 Gorsa to the Saiate. He confirmed me if I were a justice.
The theory that I would be inclined to agree with is what I laid out on 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 six
hundred thousand dead Americans like it was. It is why the Fourteenth Amendment, Section three was passed. It was in response to the Civil War. It is the embodiment of an insurrection. There is a real and acute debate over whether what occurred on January sixth, twenty twenty one 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 damned Democrat in all the media. They say routine the insurrection, insurrection, and 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 that, it was easy to determine whether you fell into that disqualification.
Yeah, it was. It was as simple as you could make it at that point.
Yeah, there was 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 have 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 no, no buddy 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 of 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 eighth.
I'm going to predict it comes down February nineteenth. I'm just pulling a date out. It will be some time between February eighth and March fourth. I'm pulling a date out of the air saying February nineteenth. When it comes down, I'm predicting right now, there will be a sentence we express no opinion over whether the events of January sixth,
twenty twenty one constitute an insurrection or not. However, in order for the Fourteenth Amendment prohibition to apply, there needs to be a conclusive determination that it was at insurrection. And for those who urge Trump should be ineligible, or 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 a rep so I pray they don't do that.
As always, thank you for listening to Verdict with Center, Ted Cruz Ben Ferguson with you don't forget to deal with my podcast and you can listen to my podcasts every other day you're not listening to Verdict or each day when you listen to Verdict. Afterwards, I'd love to have you as a listener to again the Ben Ferguson podcasts and we will see you back here on Monday morning.