Boy, that escalated quickly. I mean, that really got out of hand fast.
The day before last week’s debate, Trump told us it was Democrats we needed to worry about when it came to Cruz’s eligibility. Why, he had only raised the issue because he feared that his good friend Ted would have a cloud over him as nominee if he didn’t seek a declaratory judgment about his “natural-born” status. That’s just the kind of thoughtful pal he is. Three days later, after the punch-up at the debate, a New York Times reporter asked him whether he might sue Cruz himself. Response: “I’ll think about it. t’s not something that I would want to do. It’s certainly something I would have standing to do.” Twenty-four hours later, after Cruz spent a day on the trail in South Carolina savaging Trump as a fake conservative, Trump had moved a bit further. Here’s what he told Stephanopoulos yesterday on “This Week”:
Stephanopoulos told Trump that some legal scholars have suggested Trump himself would have standing to sue Cruz.
“Oh, that’s an interesting case. Wow, that sounds like a very good case. I’d do the public a big favor,” Trump responded, but he would not say whether he’d actually file such a suit. “It’s a good idea– maybe I’ll talk to them about it. I’d like to talk to Ted about it, see how he’d feel about it. ‘Cause you know, when I file suits, I file real suits.”
Back in September, at the height of the Trump/Cruz alliance, Trump now famously said of Cruz’s eligibility, “I hear it was checked out by every attorney and every which way and I understand Ted is in fine shape.” Oddly enough, not only have his feelings about suing Cruz changed since then, his feelings about Cruz personally have too. At the December debate, he declared that Cruz had a “wonderful” temperament after calling him a “maniac” in Congress a few days later and catching flak for it on conservative talk radio. Watch below and you’ll find him dismissing Cruz as a nasty guy whom no one likes. What changed? I need to believe that true bromance is possible.
Here’s what Cruz said in SC, by the way. I thought that, if and when the war with Trump came, Cruz would pull his punches at first, not wanting to alienate Trump fans any more than is necessary. Nope. He’s throwing roundhouses:
“That has got to drive him nuts, and I imagine it sent him out of bed this morning tweeting and tweeting and tweeting,” Cruz said. “I think in terms of a commander in chief, we ought to have someone who isn’t springing out of bed to tweet in a frantic response to the latest polls.”…
Cruz also wondered aloud why Trump had reacted angrily to comments Cruz made a day earlier blasting the policies of New York Democrats. The two candidates have been tangled over Cruz’s use of the phrase “New York values.”
“It does raise the question of, ‘OK, if you are offended at my pointing out how much the failed policies of Hillary Clinton and Andrew Cuomo and Bill de Blasio have hurt New Yorkers, then which of those policies do you agree with?” Cruz said. “Given the fact that for much of his life, Donald was financially supporting those politicians, writing checks to Hillary Clinton, writing checks to Andrew Cuomo, it’s a fair inference that he supports their policies.”…
Cruz continued to sketch a number of other contrasts with Trump, bringing up gun and property rights when pressed to detail policy differences with the billionaire. Asked to say where he differs with Trump on national security, Cruz flatly replied, “To be honest, I don’t know what Trump’s position is.”
In case that was too subtle, last night before the Democratic debate Cruz tweeted, “As the #DemDebate begins, Republicans have to wonder which team @realDonaldTrump would play for,” along with a link to a YouTube video of Trump praising his old friend Hillary. Watch the second clip below and you’ll see what one of Cruz’s Super PACs is doing with an old bromantic Trump soundbite. Maybe the only proper way for this trainwreck of a primary to end, after month upon month of Trump and Cruz gladhanding each other in the most cynically unctuous, sickmaking way possible, is with a Trump v. Cruz lawsuit before the Supreme Court over Cruz’s eligibility. With Cruz representing himself.
The irony is, if Cruz decides he wants to settle the eligibility issue in court, where he’ll almost certainly win, he actually might need Trump to sue him. Popehat, who’s a lawyer by trade, wondered this morning who Cruz might sue if he followed Trump’s earlier advice and sought a declaratory judgment on his “natural-born” judgment. Who would the defendant be in a suit like that? I suggested the 50 individual secretaries of state, each of whom would be required by law to either certify a Cruz win on primary day or disqualify him as constitutionally ineligible, but Popehat notes that they’re not the final arbiters of victory in our system. The electors of the electoral college are. (In some states, an elector could legally vote for Cruz for president even if he didn’t win that state’s election or refuse to vote for him if he did.) Could Cruz sue all 538 electors? Have those electors even been named yet? Even if they have, could Cruz claim standing in a lawsuit against them before a single ballot has been cast?
Trump suing Cruz could solve this problem by sidestepping the problem with electors. In this case, it’d be Trump, not Cruz, who’s the plaintiff. He’d have standing, in theory, because as one of the candidates challenging Cruz for an office for which Cruz may be constitutionally ineligible, he’d suffer a concrete injury if Cruz was permitted to run and won despite not qualifying under Article II. (I’ll never understand why any random American couldn’t make the same argument. Haven’t we all suffered an injury as citizens if we’re being governed by someone who’s barred by the Constitution from holding those governing powers?) If anyone has legal grounds to drag Cruz before a judge on this question, you’d think it’d be one of the other contenders for the presidency. The question for Trump is whether suing would backfire. If Cruz wins, as he probably will, perennial winner Donald Trump will look like a loser and he won’t have the eligibility argument to hold over Cruz’s head anymore. On the other hand, we’re months away from a final ruling on appeal even if the courts fast-track the suit. Suing now would successfully place a cloud over Cruz’s head before voting begins in Iowa and New Hampshire. The real calculus for Trump is how many voters would be pissed off at him for trying to get Cruz thrown off the ballot versus how many voters would run scared from Cruz for fear that he won’t be able to hold the office if they vote for him.
Who knows? If Trump doesn’t sue Cruz, maybe Huckabee will. No one seems to hate Cruz more than Huck does. Exit question: Any of Cruz’s friends in Congress want to try floating a constitutional amendment in the meantime repealing the “natural-born” clause from Article II? Anyone? Bueller?