It's been a measure of former federal Judge J. Michael Luttig's stature in the conservative legal movement that Supreme Court justices hired so many of his law clerks — 40 over 15 years. Then two of those proteges became (in)famous: Texas Sen. Ted Cruz and Trump lawyer John C. Eastman, lead actors in the plot to overturn Joe Biden's election.
Now Luttig is doing penance of a sort: He's joined the Resistance — against former President Donald Trump, certainly, but also against his erstwhile mentees.
Early on, Luttig did so only by invitation: Two days before Jan. 6, 2021, then-Vice President Mike Pence sought Luttig's counsel to counter Trump's demands that Pence, in presiding over Congress' count of Biden's electoral votes, reject the votes of six states. Pence, in his letter to Congress ahead of the proceedings, name-checked Luttig to argue that a vice president has no such power.
For Pence, the opinion of a jurist so revered on the right was "armor" against the inevitable slings and arrows from the MAGA army, as conservative lawyer George Conway put it to me. Luttig told me he's testified behind closed doors about his role to investigators for the House committee probing the Jan. 6 insurrection.
Lately, however, events have provoked him to go public about his concerns about "the existential threat" to the Republican Party, and by extension our democracy. Many conservative readers tell me to get over Trump, forget Jan. 6 and quit fretting about democracy. I won't, but neither will Luttig, a protege of former Chief Justice Warren E. Burger, law clerk to Antonin Scalia, a judge for 15 years on the U.S. 4th Circuit Court of Appeals and a contender on George W. Bush's shortlist of Supreme Court candidates.
Here's Luttig's lament about Trump's Republican Party this month to a group of conservative lawyers:
"For the past six years, I have watched and listened in disgust that not one single leader of ours with the moral authority, the courage and the will to stand up and say, 'No, this is not who we are, this is not what America is and it's not what we want to be,' has done so."
The final straws for Luttig were the Republican National Committee's recent resolution that censured Republican Reps. Liz Cheney and Adam Kinzinger for participating on the Jan. 6 committee and called the insurrection "legitimate political discourse," and Trump's attacks on Senate Republican leader Mitch McConnell for criticizing the RNC and of Pence for publicly stating "Trump is wrong" to say Pence could overturn the election.
Luttig elaborated by email: "This feels like a seminal moment in America when all of what the country has witnessed and endured for these years seems to be building to volcanic crescendo…. We are in political war to the death — with each other," and "American democracy hangs in the balance."
That more Republicans aren't standing up to "this nonsense, this utter madness," he said, is "the definition of failed leadership."
That brings us back to Cruz and Eastman. They not only haven't stood up to the madness, but they also exemplify it — Cruz by leading a cabal of Republicans who opposed certification of Biden votes on Jan. 6, and by his general Trump toadyism, and Eastman by his authorship of the memo giving a false constitutional gloss to Trump's coup strategy.
The 67-year-old Luttig, relatively new to Twitter, has trolled his former clerks like a pro. Anyone familiar with the bonds typical between a judge and his or her clerks — Luttig's call themselves "Luttigators" — knows that his public chastisements have to bother Eastman and even the seemingly impervious-to-criticism Cruz, who once described Luttig as "like a father to me."
In threaded tweets, Luttig flayed Eastman's legal analysis, calling it "incorrect at every turn." He pounced after Cruz tweeted a photo of the removal of a 50-ton slab etched with the 1st Amendment from the defunct Newseum near the Capitol; Cruz snarkily suggested it was a metaphor for the wreckage ahead from the Biden administration. Turns out the slab was simply being relocated, partly at the expense of Luttig and his wife, Elizabeth.
"Had he asked," Luttig tweeted, "I would have told [Cruz] once again that the facts matter and it was foolish of him to demagogue the Constitution by mocking the removal of the iconic First Amendment tablet for reinstallation at its new home at the National Constitution Center in Philadelphia."
Ouch.
Luttig is now working with members of Congress and their aides to rewrite the flawed 1887 Electoral Count Act to prevent demagogues like Cruz and Eastman from potentially using it again to threaten democracy after the 2024 election.
He has been asked whether the Constitution empowers the states or Congress to disqualify Trump and others from seeking federal office if they are found to have participated in an insurrection. Luttig thinks federal courts would be willing to take such cases, but that it's unlikely the states or Congress would press the matter.
It's beyond sad that Trump has forced such questions. But, as Luttig told me, "that is because he was pushing the Constitution and the laws to their limits more than any president in history."
Take it from the Judge.
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