After the Colorado Supreme Court ruled 4-3 last month to kick former and potentially future President Donald Trump off the ballot, which was then appealed, the U.S. Supreme Court agreed to take up the case. Many legal experts, like Alan Dershowitz, are confident that the Court will find in favor of Trump, although it remains a question as to if it will be unanimous. Sen. Ted Cruz (R-TX), however, offered up an idea as to how the Court could come to such a ruling during Monday's episode of "The Verdict."
As the senator explained to co-host Ben Ferguson, matters for the Court to address include both whether or not there was an insurrection on January 6, 2021, which Trump was in charge of, and which would thus mean he would be disqualified under Section 3 of the 14th Amendment, as well as whether or not Colorado was overstepping. Cruz also had strong words for the Colorado Supreme Court, calling their decision "lawless."
Sharing at one point how he believed taking up this case was "a no-brainer," Cruz also said that "I think all nine [justices] agreed 'we needed to take it' and I don't think they hesitated on it," given how major a Constitutional question it was. "Under the Constitution, it is difficult to imagine a more consequential question and a question that demands the Supreme Court to get it," he added.
When it comes to the topic Cruz would speak to throughout the episode, in the Court not wanting to be seen as political, the senator also offered that "I don't think the Court was eager to get into this issue at all," explaining that "the justices are not looking to opine on this, but once Colorado ruled, they had no choice and they had no choice but to do it quickly."
Early on, Cruz shared that "I believe the U.S. Supreme Court is going to reverse the Colorado Supreme Court," adding "I think there is a very good chance that the U.S. Supreme Court will do so unanimously" and putting the odds at 60-70 percent.
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The senator defended his prediction to a shocked Ferguson, explaining that he believes Chief Justice John Roberts "is going to be deeply invested in wanting this to be unanimous, in not having the Supreme Court appear partisan." Cruz added that "every justice is going to be aware this is a decision that is going to be watched by the country, and watched by the world" and that "every justice is aware of not wanting the Court to appear like a political or partisan body."
Emphasizing Roberts' concerns, Cruz stressed that the chief justice cares deeply about "the institutional legacy of the Court," with he, but also the other justices believing such a decision would be "best for the Court and best for the country."
Later in the podcast, Cruz would also point to how it's not actually all that unprecedented for the justices to want to be united, as he pointed to the 1954 case of Brown v. Board of Education. Chief Justice Earl Warren understood it was "a big, big deal" and to overturn 1896's Plessy v. Ferguson and end segregation with it, as well as that it was "critically important that the Court speak unanimously" and that "there'd be no division on a question that would impact every American."
"I think this is of a similar magnitude," Cruz laid out about the Colorado case. "And given the political context, I think every justice will feel an urge to have the court not appear to be a political branch."
Not only does Cruz have a legal background, he was part of the legal team representing George W. Bush for the 2000 case of Bush v. Gore, with Cruz highlighting this experience to make clear "the Court can move exceptionally quickly if there is an urgency to do so."
While "in 2000 the Court was not eager to get in the presidential race," Cruz offered, "there was a responsibility for the court to resolve it," which the senator suggested is at play here. "I think that's exactly what they feel here."
The senator also weighed in on how that applies to whether the decision will be unanimous. "Now, given that, if it's going to be a unanimous decision, and as I said, I think it is more likely than not that it is, then the Court is not going to rule, I believe, that there was not an insurrection."
Cruz made clear "I don't think there was an insurrection as a matter of law," but also doesn't think that liberal justices, such as Elena Kagan, Sonia Sotomayor, and Kentanji Brown Jackson would rule in such a way. "So, if it's going to be unanimous, they're going to have to find a way to resolve it that is narrow, but that reverses it and brings everyone together," Cruz pointed out, continuing by offering "I think they will resolve it, I think they will resolve whether or not there was an insurrection. I'm willing to bet right now there will be a sentence in the opinion that says we express no opinion on whether or not an insurrection occurred on January 6."
Thus, Cruz went on to say, the Court "will say instead is, however, the determination of that matter, cannot be made, without evidence, without due process, without a judicial proceeding, and in particular, the ground that I think the Court will go to, involves a federal statute," with the senator pointing to 18 USC § 2383, which, as he explained, codifies Section 3 of the 14th Amendment:
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
Particularly telling is how for all of the charges that Special Counsel Jack Smith and others have brought against Trump, not even Smith has dared to charge Trump with insurrection.
"Now, interestingly enough, Donald Trump, it seems as if been indicted, all over the place by a bunch of very partisan, overzealous prosecutors who hate the man. And you know what He hasn't been indicted for anywhere? Insurrection," the senator pointed out.
Cruz even made a reference to "Les Misérables," with Smith being Javert and Trump being Jean Valjean with the zealousness he's shown in trying to get the former and potentially future president. "Jack Smith hates Trump and wants to get him no matter what," Cruz reminded, with Ferguson chiming in to remind that he wants to "put in prison for like a life sentence." Cruz also pointed out that there's a "very liberal judge" and a D.C. jury in a city that is 94 percent Democratic being able to hep with that.
"[Smith's] got the most favorable environment in the world," Cruz explained. "And you know what he hasn't done? Indicted Trump for insurrection," he continued, going on to further lay out it's because he can't prove it, as "there's no remote evidence that would prove that Trump had engaged in insurrection." As Cruz emphasized there being a lack of evidence, he and Ferguson also reminded how Trump sent out posts--then tweets--calling for people to "remain peaceful" on January 6, 2021.
When it comes to all this "insurrection" talk that Democrats and the media rant about, Cruz explained that "they mean that as political rhetoric," although it's "a legal term."
"And there's a reason no one has charged [Trump] with it because you couldn't pass the laugh test," Cruz explained further. Bringing it all back to the matter before the Supreme Court, the senator predicted that "what I think the Supreme Court would say is, if you want to borrow Trump from being on the ballot, charge him and convicted with insurrection."
If Trump, or anyone, were to actually be convicted of insurrection, it would then be "a slam dunk" to keep them off of the ballot. That's not to say that Cruz doesn't think that Smith didn't try to bring such charges. Cruz "absolutely, of course" thinks that Smith met with Democrats and tried to but had no proof.
What if the justices were to uphold the Colorado Supreme Court? The senator at one point discussed that hypothetical as well, which would indeed remove Trump from the ballot. And, as the senator pointed out, while it would not be binding on other states, other states would indeed still remove him from the ballot. Cruz even warned Trump could be barred from the ballot all 50 states.
The only way for the Court to rule in such a way would be if the justices concluded "that Trump is barred from running for office because of the 14th Amendment, Section 3 of the Constitution."
Were the Court to go down that road, Cruz warned such a decision "would be so profoundly anti democratic" and "would rip this country apart." The senator offered assurances, though, that "the Court doesn't want to do that."
In making many of the same points that previous pieces about a recent CBS News poll showing that 81 percent of Democrats think Trump should be kicked off of the ballot, including how Democrats are actually "trying to prevent democracy," Cruz continued to reassure he doesn't believe the justices would go in such a direction. "I don't think the Supreme Court is going to have any interest in playing a part in preventing democracy, in stifling the right of the voters to decide," Cruz insisted.
Time will surely tell if the justices follow through on the path Cruz laid out for listeners when it comes to this highly-anticipated case. Oral arguments are set for February 8.
Defending Democracy: Trump WILL Win at the Supreme Court—Here's How & Why.
— Ted Cruz (@tedcruz) January 8, 2024
My legal analysis of this case available exclusively on Verdict. https://t.co/MlcLF7x5sv
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