Will Michelle Obama Replace Biden? plus Part 2: Predicting Supreme Court Opinion on Colorado Trump Case

closer to becoming a reality than anyone imagine. As the former First Lady Michelle Obama said in a recent interview that her fears about the twenty twenty four 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 shock moment of victory lap.

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 Boudhaje Edge, 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 that, I think she is

the ID of the Democrat Party. They are radical socialists, they're angry. Remember look in twenty twenty she ran and Bernie sam they both split the whack job leftist 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 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 zero points zero zero percent.

first for or 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 I said, I think the chances of risen dramatically of Michelle Obama. Now, at the time, my assessment was that it was about thirty five percent 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 zero to thirty five percent, that ain't nothing. Now, in just a second, we're going to 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.

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 at? 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 bullied pulpit. It affects us in ways that sometimes I think people take for granted, you know the fact that people think that government, you know, 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, Senator.

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 going to 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 in the question of who's going to be the leader of the free world, it 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 that that that she like knows everything the president needs to know. And you're right, it does feel a little bit like a pitch. 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 were thirty five percent. Based on this interview, I would change those odds from thirty five percent to forty five percent. I still think it is slightly more likely than not that Biden remains the nominee, but I think it's fifty five to forty five.

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 Democrat 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 baraque

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, 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 out of me.

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.

year plus ago to ask do I jump in? Do I spend two years running? Look, run for president is brutally hard. I know this from first ten 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 sixteen and in twenty and in twenty three, preparing for the twenty four 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 the campaign, without having to fight, and do you have a three month campaign where the media will be singing hosannas that Saint Michelle has come to save us. That's a very different cost benefit analysis.

And I got to say, the number of people on planet Earth 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 man, I know for a fact, if I told you right now, hey, jump in the 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.

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listen to part one. And this has been a dive into this case from Colorado that's going to the Supreme Court and what is going to happen there. And you wanted to break down the history as well behind the premise of this whole argument, uh, with insurrection et cetera, and the president not being convicted of that.

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 him. 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 that 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.

imposed a penalty that barred a treason prosecution. Davis argued that that section three 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 three was self enforcing. We talked about this in the 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 three 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 three 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 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 Salomon Chase in his capacity as circuit judge. And so in nineteen sixty nine, 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 it is the most meaningful Supreme Court adjudication of what the Fourteenth Amendment, Section three 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 three 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 Fourteenth 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 three. 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 three 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 three a literal interpretation. He said Section three was not self executing, and he said it could not be self executing, and he said that Congress did not implement Section three in Virginia until February eighteen sixty nine, 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 that there's a lot of legal jargon there. So if you're not a lawyer constitutional.

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 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 they're they are for they're ineligible to serve as

state judges under Fourteenth 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.

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 presidential force of a US Supreme Court decision joined by a majority of the court. That is binding Supreme Court president and an individual circuit justice is not. But the decision of a circuit justice is considered persuasive.

It's not binding, but it has real force. And in this case, it's the Chief Justice of the United States opining on what the Fourteenth Amendment meant. And so I think in the Supreme Court argument that will happen on February eighth, 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 chases reasoning in Griffin's case. But this is going to be a major topic of discussion in the oral argument.

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 Corsic. And right after the presidential election in twenty sixteen, in November, I flew up the next week to New York I went to

Trump Tower. I spent four and a half hours with with President Elector 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 US 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 on are those fights. I think policy fights in 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 and government. So I'm in the United States Senate. I think of the Senate as the Roman colisseum. And to be honest, look, I 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 going to give you a number, but it's not huge that are effectively going to battle day in and day out, defending the Constitution, the Bill of Rights, defending conservative principles, defending our value. 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.

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 dictate who you can and can't vote for.

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 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 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 ben 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. If I had if Trump had offered me the Scalia seat and I'd gotten the nomination in the place of Gorsa to the Senate, 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 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 damn Democrat and all of 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.

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 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 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's 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 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. So I pray they don't do that.