When retired Appellate Court Judge J. Michael Luttig began his slow, laborious statement as a witness at the January 6 Committee hearings, I worried he’d lose half the viewing/listening audience. I could picture the outwardly composed committee members passing frantic messages back and forth, trying to figure out how to handle this important witness.
Judge Luttig Explains—on Twitter, No Less!
So many people expressed concern about his health after his testimony that he decided to respond to Joe Hagan, a Vanity Fair writer, who’d sympathetically tweeted:
“I like how this guy treats every line of his testimony like he’s engraving it on a national monument. And frankly, he really is engraving it for history. And he seems to know it.”
“I also respect, despite how halting he may sound, that Luttig is not setting himself up to be a mere soundbite maker. He’s speaking to history, not TV.
“His sobriety, his graveness, his hallowedness, is so foreign to our modern sensibilities — but that’s the point. That is the precise point.”
Judge Luttig thanked Hagan with his own tweets, which I’ve resisted the urge to edit.
He explained (possibly with self-deprecating humor?):
“What you could not know, and did not know, but I will tell you now, is that I believed I had an obligation to the Select Committee and to the country, first to formulate . . . then to measure . . . and then . . . to meter out . . .every . . . single . . . word . . . that I spoke . . . , carefully . . . exactingly . . . and . . . deliberately, so that the words I spoke were pristine clear and would be heard, and therefore understood, as such.
“What I will say, though, is this. And I think it explains it all. All my life, I have said (as to myself, and at times, by way of sarcastic prescription for others) that I never . . . talk . . . any . . . faster . . . than . . . my . . . mind . . . can . . . think. I will proudly assure everyone on Twitter that I was riveted, laser-like as never before, on that promise to myself beginning promptly at the hour of 1:00 pm Thursday afternoon.
“What is more, as consciously as one can be aware of something subconsciously, I was, in your poetic words of which I was, and am myself, incapable even of conjuring, Mr. Hagan, supremely conscious that, if I were chiseling words in stone that day, it was imperative that I chisel the exact words that I would want to be chiseled in stone, were I chiseling words in stone for history.”
His Historic Role Began Before January 6
In his testimony, he delivered some of the most important messages we’ve heard to date. And what he said, did, and wrote before January 6—and the statement he left with the committee after he testified, which has received far less attention—have convinced me that he may well play an enormous role in the preservation of our democratic republic.
During the hearings, there was, of course, his memorable assertion that former President Trump and his allies are a “clear and present danger” to our democracy, that what they tried to do before and after the election present ongoing threats, and that their claims of fraud, court cases, and attempts to persuade Vice President Pence to use the Electoral Count Act of 1887 were all dangerous nonsense. If Pence had done Trump’s bidding, the judge said, there would have been a “revolution within a paralyzing Constitutional crisis.”
His informal role in stopping the coup began on the night of January 4. This is a fascinating story that I’ll just allude to here.
Luttig’s friend Richard Cullen, Pence’s personal lawyer, called to ask him about John Eastman. Eastman, acting as Trump’s lawyer, was pushing hard using a conjured up story of faux Constitutional importance to persuade Pence that he didn’t have to accept the Electoral College vote.
According to CNN, Luttig said he understood this was a “signal moment in history” and that he was to play a role. He told Cullen emphatically that Eastman was wrong.
The pressure was mounting, as Eastman and Trump kept repeating their demands. Multiple calls were exchanged the next day. Cullen wanted Luttig to “do something,” but he wasn’t clear what that should be.
Luttig realized he needed to make a public statement to support Pence’s refusal to cave. But how? He’d just joined Twitter, but he didn’t know how to tweet.
Painstakingly, he followed a printout his son had sent him. Cutting his typed message into seven separate tweets, he made a thread stating that the Vice President had no power under the Constitution to reject electors and overturn the election.
On January 6, Pence cited Luttig’s tweets in his own public statement explaining that he didn’t have the authority to do anything other than count the votes, and he could not “alter in any way the votes that have been cast, either by rejecting certain votes or otherwise.”
Pence called Luttig the next day and thanked him—the first time they’d ever spoken.
The Public Statement Luttig Left With the Committee
Many outside observers with legal expertise have weighed in on the former President’s guilt. Some have pointed out that even though Trump sure as hell seems guilty, proving his knowledge of his lies may be difficult. The phrase “willful ignorance” often appears, and that strikes me as quite fitting.
After Judge Luttig concluded his testimony, he left the Select Committee with a fairly lengthy and somewhat repetitious statement addressed to the American electorate.
It begins dramatically:
“A stake was driven through the heart of American democracy on January 6,
2021, and our democracy today is on a knife’s edge.
“America was at war on that fateful day, but not against a foreign power. She
was at war against herself. We Americans were at war with each other — over our democracy.
The statement speaks of the Republican party’s culpability and responsibility.
“…a war irresponsibly instigated and prosecuted by the former president, his political allies, and his supporters….Though disinclined for the moment, as a political matter of fact only the party that instigated this war over our democracy can bring an end to that war.“
He leaves no doubt about his belief in Trump’s guilt. Here are several passages:
“Knowing full well that he had lost the 2020 presidential election, the former president and his allies and supporters falsely claimed and proclaimed to the nation that he had won the election, and then he and they set about to overturn the election that he and they knew the former president had lost.”
“The former president’s accountability under the law for the riot in the United States Capitol on January 6 is incidental to his responsibility and accountability for his attempt to steal the 2020 presidential election from the American People and thereby steal America’s democracy from America herself.
“That said, willful ignorance of law and fact is neither excuse nor defense in law. Willful ignorance, thus, is neither political nor legal excuse or defense available to the former President of the United States, his allies, and his supporters.
“The former president’s party cynically and embarrassingly rationalizes January 6 as having been something between hallowed, legitimate public discourse and a visitors tour of the Capitol that got out of hand. January 6, of course, was neither, and the former president and his party know that. It was not legitimate public discourse by any definition.
“Nor was it a civics tour of the Capitol building, though that day proved to be an eye-opening civics lesson for all Americans.”
He then distinguishes between the former president and many of his party—and “the rest of us Americans.” It’s “the rest of us Americans” who must be responsible for ensuring that our democracy prevails.
“We Americans begin to make this consequential decision this week, when Congress, rightly if painfully, takes us back to that day in January we want so much to forget but mustn’t, and reminds us of what was at stake that day and still, in what is this most unholy of wars.”
Luttig is decrying all partisanship and all attacks by politicians on our institutions. As he includes attacks on the judiciary, he obviously is being an equal opportunity scold.
He wants us, We the People, to talk to one another, listen to one another, and then encourage our political leaders to choose country over party.
“All it would take to turn America around is a consensus among some number of these political leaders who possess the combined necessary moral authority and who would agree to be bound together by patriotic covenant to stand up, step forward, and acknowledge to the American People that America is in peril.”
How will the consensus emerge?
“…the logic for reconciliation of these wars being waged in America today dictates that this number needs to include a critical mass of leaders from the former president’s political party and that those leaders need to go first.
“All of these leaders then need the patriotic will to extend their hands and ask of the others and of all Americans ‘Can we talk? America needs us.’”
And then, he writes, we must get to work.
Luttig’s Appearance Was a Select Committee Coup (a good coup, unlike the other one)
Luttig is no run-of-the-mill judge. Though he’s so conservative that his political philosophy has been identified with Scalia’s, unlike the radicals on this Supreme Court, he seems to have long eschewed politics.
He’s a revered jurist whose law clerks have included John Eastman, whose fanciful and malevolent power grab encouraged Trump and inspired the ideas fueling the January 6 mob. Senator Ted Cruz (R-TX), who played a role in the attempt to overturn the election results, also clerked for Luttig and has said “he’s like a father to me.”
(Perhaps Luttig’s determination to set the record straight about the Big Lie and the threats posed by the Big Liars in his party has been motivated in part by his sense of responsibility that his mentees have strayed so far from the Constitution, the law, and the truth…)
There is no way any Republicans can legitimately question his integrity and/or charge him with partisanship. Absolutely none.
If we think of the Big Lie as a balloon filled with hot air, Judge J. Michael Luttig may not have burst it, but he’s surely responsible for starting a steady leak.