May It Please the Court | Ep. 62

17 states and the President of the United States have joined the great state of Texas in suing the battlegrounds over election irregularities in the Supreme Court. This after there was another lawsuit brought up to the Supreme Court regarding the irregularities in Pennsylvania. And the host of this show has been asked to argue both of those cases before the Supreme Court. This is Verdict with Ted Cruz. Welcome back to Verdict with Ted Cruz. I'm Michael Knowles and I should clarify, I have not been asked to argue those cases before the Supreme Court. I have offered my services. Ken Paxton in Texas has not returned my calls. Actually, it was Senator Cruz who's been asked, Senator, there's a lot to get into right here. The last time we spoke, we discussed in Pennsylvania this case regarding the irregularities there and the possible violation of the Pennsylvania state constitution. At that time, I believe you had not yet been asked to argue the case before the court. The Supreme Court then rejected that appeal anyway. Now we've got this other case from Texas. What is going on? Why have you been asked? I suppose because of your great experience arguing before the Supreme Court. But how did this all come to pass? Well, sure. Let's let's start with the Pennsylvania case. When we last did the podcast, the Pennsylvania case was pending and the lawyers for the plaintiffs there. So the plaintiffs in the Pennsylvania case were Mike Kelly, an incumbent Republican congressman in Pennsylvania who lost a very narrow reelection in November. And Sean Parnell, who was a Republican candidate for Congress who lost a very narrow race in Pennsylvania as well. And so their lawyers had drafted the pleadings when we did the last pod. They were pending and their lawyers reached out to me and they asked, they said, listen, if the court takes this case, would you be willing to argue it? And I thought about it. And usually, more often than not, you argue a case where you drafted the briefs and you've been part of the legal team from the beginning. So it's fairly unusual to come in at the tail end. But given the importance of it, I had already written a long statement, which actually you read on the last pod, urging the Supreme Court to take the case. And so I'd already read the pleading and thought it needed to be heard. And so I said, sure, I'm happy to argue it. And we put that out publicly. Unfortunately, then the Supreme Court declined to take the case. And I have to admit, although I wish the court had taken the case for most observers, myself included, it was not an astonishing surprise that the court didn't. And the reason for that, that the challenge in the Pennsylvania case is that I think there's a clear violation of state law. In Pennsylvania, the Constitution requires in-person voting in all but very limited circumstances. The legislature expanded the law to allow universal mail-in voting. There's a clear violation of state law. The problem is the U.S. Supreme Court doesn't decide questions of state law. So questions of state law are typically left to the Supreme Courts of each state. And what was more difficult to articulate, was more difficult, I think, for the court to see is what the clear federal question was. I think the lawyers in the Pennsylvania case, they worked hard to articulate a federal interest. And look, obviously, you've got a presidential election. So that's a huge federal interest, although finding the federal constitutional issue was more complicated. And so the court turned it down. They did not write an opinion. So we don't have any reasoning as to why they turned it down. It was simply a one-line order. What that means is there weren't five votes. It takes five votes to grant an injunction. And so there were not five votes to issue extraordinary relief to grant an injunction. We know that. And then subsequently, the Texas case was filed. Now, I want to make clear for people, we're recording this Thursday night. You've been up on the Hill all day dealing with a number of other issues unrelated to the election that I do want to hit on in just a moment. So we're just waiting to find out if the Supreme Court is even going to hear this other lawsuit from Texas suing Georgia, Pennsylvania, Michigan, and Wisconsin with the support of 17 other states and President Trump. That lawsuit is coming up. You have been asked to give the argument in that case as well. The court, if they didn't take the Pennsylvania case, I fear it maybe won't take this case either. That may be right. So the Texas case I first learned about Monday night, actually, I was doing Sean Hannity's TV show. And so I was on Hannity and Hannity asked me about the Texas case. And I actually wasn't entirely sure what he was talking about. And so, I mean, I just kind of spoke generally about suits between states, but I didn't know the details of it. The reason was the Texas case wasn't filed until late that night. I actually think it was early the next morning at like 1250 in the morning or something like that. And so I saw the case went after it was filed. And then Tuesday is when the Supreme Court turned down the Pennsylvania case. And that evening, I was at dinner and got a call on my cell phone from the president. And the president was unhappy that the court had turned down the Pennsylvania case. I understood that. I was unhappy, too. I vocally and vigorously urged them to take it. And the president asked me at the time, said, were you surprised the court didn't take the case? And I said, look, I was not I was not shocked they didn't take the case because of the challenge we just talked about a minute ago of the difference between state law and federal law. And that was a challenging hurdle. And so the president on that call, he asked me, he said, look, this Texas case has just been filed. And and he said publicly, this is the case. As you noted, the president has since intervened in it. And he asked me, would you be willing to argue this case? And I said, sure, I'd be happy to, if the court grants it, I'll argue it. And your question was an insightful one. Like the Pennsylvania case, there are hurdles to get it granted. And one of the things to understand is just the overall numbers. The Supreme Court doesn't take that many cases in a given year. You get anywhere between 8000 and 10000 appeals to the Supreme Court. They typically grant about 80. So it's about 1 percent. A suit between the states is different. And this is a suit between Texas and four other states, Georgia, Pennsylvania, Michigan, Wisconsin. Under the Constitution, the Supreme Court has what's called original jurisdiction and suits between states. That means, you know, typically, if you file a federal lawsuit, you go file it in federal district court. Like if that's how virtually all federal lawsuits begin. A suit between two or more states, you can file it in the U.S. Supreme Court. It has original jurisdiction, but it's not mandatory jurisdiction. So they don't have to conduct a trial. And actually in suits between states. So they usually come up in the context of, say, a dispute over boundaries or a dispute over a river. Those are the circumstances where you get a fight where two states are saying our line is here and the other state is saying, no, no, no, our line is here. And the way the court normally resolves that is it will appoint a special master that is basically a trial judge and they can go conduct a trial on behalf of the U.S. Supreme Court. And then they'll prepare a report that typically the Supreme Court will adopt or change or and they review it then. In this instance, the court has a decision whether to grant leave for the state to file a complaint. That, again, takes five votes. And so the Texas lawsuit is much broader than the Pennsylvania lawsuit. It raises a lot of the issues about fraud and irregularities and and different players in the different states changing the law in the middle of the process. That breadth is good. But on the other hand, that breadth may be a factor. I don't know if there are five votes and if they're not five votes, the court won't take the case. And we could find out you and I are sitting here Thursday evening. The court set a deadline for the defendant states to respond 3 p.m. today. And so after the response, the court could could resolve it at any time. It could be tonight. It could be tomorrow. Now, the court could say we're going to set a oral argument date for day after tomorrow. I mean, they could move really fast and they could move really slow. They could deny it altogether. So by the time this this pod comes out, which I think will be sometime Friday when we get get it all edited and processed and put out, we may know the answer. But as of right now, we don't know what the Supreme Court is going to do. And if they tell you that you've got an oral argument the following day, then you are going to have a very busy night and day. And I know there's other work that you have to pay attention to on Capitol Hill. So I I do want to touch on a few of these issues, because I fear that in the craziness of the election drama, we're missing out on some some pretty important changes that have been going on. The Senate today backed a massive arms sale to the United Arab Emirates. There was a major peace deal between Morocco and Israel. You've got a big debate over the National Defense Authorization Act. Can you just move us for a second from domestic to foreign policy, regardless of how the election turns out? What's going on abroad? So there's a lot of foreign policy moving forward, and much of it is very, very positive. We saw a couple of months ago, and we talked about it in an earlier pod, the Abraham Accords, which were the historic peace agreements between Israel and the UAE and Israel and Bahrain, where both Arab nations normalized relationships with Israel. That hadn't happened in decades. And it was a major step forward for peace. I'll say a couple of things. One, it is a vindication of a foreign policy approach that I've been advocating for a long time, which is that the best way to produce peace is clarity and lack of ambiguity. For eight years of Obama-Biden, they deliberately embraced an ambiguity of, we're with Israel, we're not with Israel. They embraced the notion that you must resolve the Palestinian situation before anything else can be done. And we now know that view was unequivocally wrong. It was simply baloney. And I spent the last half of the Obama administration, the time I was in the Senate, blasting that view and saying, this is foolish. Instead, make unequivocal, we stand with Israel. That will facilitate peace. Well, when President Trump came in, he agreed with me. He moved the embassy to Jerusalem, a huge decision that I advocated for. He pulled out of the Obama-Iran nuclear deal, a huge decision I advocated for. Both of those, the State Department and Defense Department had argued against. So President Trump overruled his own Secretary of State, his own Secretary of Defense, to move the embassy to Jerusalem to end the Obama-Iran deal. That clarity set the stage for the Abraham Accords. I'll tell you, the week the Abraham Accords were signed, I was at the White House for the signing. I spoke with the foreign officials in both UAE and Bahrain. Both said, we want to be friends with America. It's really important with us to be friends with America. And what we figured out is one of the best ways to be friends with America is be friends with Israel. So we're doing this because it's clear that this will make America happy. And it really is the fruits of that unambiguous clarity. Now, I worry if we have a President Biden that that'll all get screwed up, that they'll go back to the same strategic ambiguity. Now, you asked about the votes this week. There were two big votes this week, yesterday, on arms sales, American arms sales of drones and F-35s to the UAE, the United Arab Emirates. They were controversial. They were closely contested. Rand Paul wanted to disapprove of the arms sales, and most of the Democrats wanted to disapprove of the arms sales. And I got to tell you, this week, I struggled on this question. This was not an easy question for me. It was a close question. And the reason is, look, if you look at the history of the Middle East, the Middle East has been a tinderbox. Weapons like the F-35, the most advanced airframe we have, only Israel has it in the Middle East right now. And so I view that as a big threshold for another Middle East country to get the F-35. And so I spent hours on the phone with the Israeli ambassador, Ron Dermer, who's a very good friend of mine. And we talked about it at great length with the UAE ambassador, who I've also gotten to know well, with Jared Kushner, with others in the administration, with others on my team, really trying to understand the pros and cons of it. And ultimately, I voted in favor of the arms sale. And I did so because I think it was a component of the Abraham Accords. It's part of how we brought UAE to the table to make peace with Israel. That was a big deal. Also Israel, both Benjamin Netanyahu and Benny Gantz, so the prime minister and the lead opposition figure, both of them supported the sale. That is weird to unite them. That doesn't happen very often. They were united on the Abraham Accords. They were united on the arms sale. One of the important pieces of that, U.S. federal law requires that our policy ensure Israel have what's called a QME, a qualitative military edge, basically that their military can kick the butt of every other military in the Middle East. That's how you avoid warfare, by making it clear nobody else can take out the Israelis so you don't have what we saw in the 60s and 70s, which is Middle East war after Middle East war. Based on extensive conversations with the Israelis and with our own Pentagon and based on classified briefings, I became comfortable that this sale didn't undermine Israel's qualitative advantage. The UAE ambassador, he said, look, we stuck our neck out. We made this peace deal with us. We're standing with you. We want to stand with you. We've sent our soldiers into combat alongside you. This is an important part of defending ourselves against Iran. That ultimately, to me, was persuasive. Here's the interesting thing, Michael. I think it is likely that my vote was decisive on this. I was one of the last senators to vote, and I deliberately, I wanted to wait and see where the vote shook out. When I walked up, so they were whipping pretty hard, and John Thune, the Republican whip, was kind of leaning in on me. Although I will say that they've actually learned that whipping hard, like beating me with a stick, doesn't work. So he was kind of asking me where you're going to be, but wasn't being too aggressive. When I went up to vote, I was looking at the vote tally, and John just said, I think your vote will probably decide it. I said, okay, and so I voted in favor of the sale. What's interesting is that two Democrats immediately after me, Kyrsten Sinema and Mark Kelly, both from Arizona, both voted the same way within a minute. Now Sinema had been talking about doing it anyway, but it was just, it ended up being approved 50 to 46. So those three votes that clustered at the end, if the three of us had gone the other way, it would have been disapproved. Right, and it's interesting also, Senator, to note that when you look at national politics from an outsider's perspective, you just assume there are no gray areas, there's no deliberation, people know exactly where they stand, we have a very polarized country. And I remember during impeachment, this kind of surprised me, which is that things are happening in real time. People are taking in new information, they're deliberating, they're making up their minds. The way one person votes is going to affect perhaps the way other people vote. And that these issues have a little more complexity, maybe, than some of the more knee-jerk issues that we all know exactly where we stand. No, I think that's right, and particularly questions of foreign policy and national security. There can be close calls. They're calls about standing with allies and resisting those who are enemies. They're easy calls. They're things like the Obama-Iran nuclear deal being a train wreck, which I actually think is a very easy call. And if we end up with a Joe Biden administration, I expect that they will try to gallop back into that terrible deal. And if that happens, I'm going to spend the next four years fighting hard against that. That's an easy call. This one was much more on the edge. And I spent, as I said, hours really trying to listen to the relevant players, listen to the experts, understand the details to get comfortable with the right call. Right. And I love your point about clarity with our friends and clarity with our enemies. I would be remiss if I didn't mention that as we're talking about the threats from Iran, the threats from China, it did come out this week that a certain Democratic member of the House of Representatives got extraordinarily close with a Chinese spy. Well, I got to say, Michael, for a long time, I've accused the Democrats of being in bed with the Chinese communists. I just didn't realize that that was not that that was more than a metaphor. Yes. Representative Eric Swalwell appears to perhaps in particular have taken that message to heart. This is a real issue, though. I mean, China has spies in the United States and the United States spies on other countries, too. You know, a lot of countries do it. But the degree of infiltration that China seems to have taken with the top ranks of the Democratic Party is troublesome. Well, and let me be fair about what we know publicly, and I don't know anything beyond what you've read in the newspapers, so I'm not divulging any anything confidential. But what's been released publicly is there was this spy for the Chinese government, a communist spy, who's a beautiful woman who apparently was assigned to get very close to two Democrats and it appears California Democrats in particular. And what's been been made public is apparently she had sexual relations with two different mayors, I think one of whom is described as a small town mayor, another who is described as an older mayor. So I don't know. I don't know beyond what I've read. Swalwell, to be clear, what's been released has not alleged that he went to bed with her, but he spent three days refusing to answer that question. And you and I are both married and I can say in your marriage and mine, if you come home and your wife said, did you sleep with that woman? And your answer isn't immediate and unequivocal, you got a problem. Yes, yes, very wise. It doesn't take a total political genius to read that situation. But obviously worrisome, especially if we do get a Biden administration, that there will be cozying up to Iran, cozying up to China. And then there is this other contentious issue. We only have a few more minutes before we can get to mailbag. But the NDAA, the National Defense Authorization Act, this is another issue where the fights are breaking out within the GOP. We don't know how the vote necessarily is going to go. What's the controversy here? Well, the National Defense Authorization Act passes every year and authorizes our military across the board. I've been very active in drafting it for eight years now. There are a lot of good things in the NDAA. It includes actually additional sanctions that I authored on Nord Stream 2. We did a pod a while back on the natural gas pipeline that Russia is trying to build a Germany that so far sanctions I authored has killed. And this is a second wave of sanctions that will really drive a nail in the coffin of the Nord Stream 2 pipeline. The first version of the NDAA that came out of the Senate I voted for was a good bill. It had a lot of good elements in it, including the Nord Stream 2 stuff. The House bill was much worse. And in the conference committee, this bill has gotten a whole lot worse. So I still haven't decided 100% how I'm going to vote, but I got to say I'm quite unhappy with the direction the bill has gone in conference committee. It includes a provision from Elizabeth Warren on renaming bases that is really mandatory that I've got real concerns with. It also includes a provision that restricts the ability of a president to draw down military from overseas conflicts like Afghanistan. And one of the things I very much agree with President Trump on is, as he puts it, ending endless wars, that I think we ought to be bringing our sons and daughters home, that we should use the military where needed, but be very reluctant to engage in foreign military conflict. And this provision, you know, some of us were talking in the cloakroom and, you know, one senator put it this way. So let me get this straight. A president unilaterally can get us into war anywhere in the world, but can't get us out of war anywhere in the world. That's kind of a weird standard. And so I'm still assessing the details of it, but I think there's a pretty good chance I'll vote no. My guess is there'll be enough yes votes to pass it, and maybe even to override a presidential veto. The president has suggested he might veto the bill. In the House, at least, there was a big enough margin that if the president does veto the bill, the House had a big enough margin to override a veto. It takes two-thirds of the House, two-thirds of the Senate. If you were to guess, it's a pretty good guess that there will be a similar margin in the Senate, but I think we'll lose some of the votes we have. This actually brings us to a mailbag question from Real Truth Cactus, which, if you're not following Real Truth Cactus on Twitter, is the cactus from our show. But whoever created that account, really great work, terrific stuff. This gets to the Senate majority, or what it really means to have a Senate majority. Cactus writes, I don't know the gender of cactus. Cactus writes, I know the Georgia Senate races are important. Is gender ever knowable, Michael? It remains to be seen, day by day, how the cactus will identify. But the cactus wants to know, the Georgia races are very important, but should we also not be worried about rhinos such as, and then he puts in a name of a colleague of yours. I will not mention that, to be polite to your colleague, but I think we all know who we're talking about, siding with the Democrats' agenda, assuming that Joe Biden does win. Let's say we win and we have a majority in the Senate, but then we've got all these squishes that vote with the Democrats. What does that get us? Look, absolutely we should be worried about that. If we win in Georgia, if we are 52-48 Republican, which is what we are right now, and Joe Biden is sworn in as president, we're going to have a rough couple of years. Yes, there are going to be squishy Republicans wanting to make deals with the Democrats, wanting to make deals with Joe Biden. That's going to be a real issue. And I fully expect some terrible spending bills of a trillion dollars here, a trillion dollars there. I think there's a real risk of a big amnesty bill. I'm very worried about that. I actually met yesterday with a number of leaders against illegal immigration, helping mobilize efforts to fight a Biden amnesty, if God forbid we have a Biden administration. And are there Republicans who would go along with that? Sadly, yes, in a heartbeat. So these fights will not be done if we have a narrow Republican majority. But having the majority is enormously important because if there's a Schumer majority, there will be a massive tax increase. If there's a Republican majority, we're not going to have a massive tax increase. If there's a Schumer majority, the District of Columbia will become a state which will elect two new Democratic senators. If there's a Republican majority, D.C. is not becoming a state. If there's a Schumer majority, I think they will pack the U.S. Supreme Court. They'll add four new left-wing justices to the Supreme Court. We've talked about that a lot in this podcast. Obviously, my book, One Vote Away, talks about the consequences of that. If there's a Republican majority, the chances of packing the Supreme Court are 0.00 percent. Ain't going to happen. So the majority gives you ball control. What you can do is you can control what comes to the floor. So I'm not suggesting winning Georgia will solve all our problems. But losing Georgia, I think, would likely create massive structural damage to the country. Right. This is one of my favorite parts about doing this show, is we get down into the detail, into the granular level. And often people just want to talk in all-or-nothing kind of terms. But what you're saying is, yeah, having the majority doesn't give us everything. You might still get a ton of terrible legislation, especially with the squishes. But there are certain fundamental pieces of legislation that have a 0 percent chance of passing. And that that is more than enough to keep me fighting. Last question. This one. Actually, this question also from Real Truth Cactus, who writes great questions. Can this lawsuit. All right, Michael, is that you? I know. I wish. I'm not nearly clever enough at social media. Actually, I clicked on the account on Real Truth Cactus, and it's just a cartoon version of the cactus from this show, and very often adds his name to the show title. So this show is actually called Verdict with Ted Cruz and Cactus. But he wants to know, can this lawsuit between the states delay the finalization of the election? Or will we have a president no matter what in January? You know, I know we've got these deadlines coming up. The electors are going to vote. But January comes along. Do we have a certainty on the president or not? So in the ordinary course of things, we will have a new president, either a new president or the same president sworn in on January 20th. That is the date set by law. You know, you can go through all sorts of hypotheticals if the Supreme Court takes the case and issues an extraordinary order. But I think in 999 out of 1,000 universes, we're going to know by January 20th. To paraphrase Jim Carrey from Dumb and Dumber, what I'm hearing you say is, we have a chance. That's what I'm hearing. We will find out. Obviously, these things are happening in real time. You are in many ways at the center of this, because the president has asked you to argue this most recent case if it goes to the court. There's a lot happening. So I suppose we'll have to just come right back again and do another pod when we know more. In the meantime, I'm Michael Knowles. This is Verdict with Ted Cruz.