Disclaimer
This post is transcribed from my handwritten notes from a live interview that took place at the Texas Tribune Festival 2024 in Austin Texas. Any errors or inaccuracies are solely mine. Retired Judge J. Michael Luttig speaks slowly, with care and with great deliberation. I used italics or bold italics to show places where he placed great emphasis.
The founders feared this moment
Litman: How vulnerable is the U.S. Constitution at this time?
Luttig: “The founders feared this moment: a demagogue. 230 years ago, Hamilton warned of a demagogue who would throw us into confusion, ride the storm, and direct the world. Thomas Jefferson agreed. (Luttig paraphrases) ‘If once elected, if he were to lose a second election he will pretend falsehoods, foul play, and be supported by the states who are for him.’ Jefferson wrote this to Hamilton in 1787. The founders had this concern. No constitution can protect us when the threat comes from those in the highest positions in our government.
On January 5, 2021, the constitution prevailed. But those who are in charge of protecting it failed.”
Jefferson to Madison: “If once elected, and at a second or third election outvoted by one or two votes, he will pretend false votes, foul play, hold possession of the reins of government, be supported by the states voting for him, especially if they are the central ones lying in a compact body themselves and separating their opponents: and they will be aided by one nation of Europe, while the majority are aided by another.”
https://founders.archives.gov/documents/Jefferson/01-12-02-0454
Litman: Is Trump the singular demagogue—or have there been others, but do external factors, such as our current environment creates more danger for our country?
Luttig: “Donald Trump – the ‘but for cause’ example…his actions demonstrate contempt for the U.S. Constitution and for the rule of law. The Republicans know this, along with the rest of us.
Trump denied the fact that he lost and denies the constitution and the law. He is on the verge of being elected again As for the Republican Party: there is no Republican Party. There is only one man.
Our system must have two robust political parties, but now we have only one. I assert that as a fact and I defy anyone today to deny this fact.
Judges don’t speak in sound bites. But one might be that we have only one political party and one candidate who can claim the mantle and protect democracy. I will vote for Kamala Harris for president.
In 250 years, this country never failed to have a peaceful transfer of power, which is a fundamental tenet of this country.
Reflect upon what we have today. The Republican Party nominee tried to overthrow an election and declares that he will not accept the results of the 2024 election, unless he wins.”
Luttig grew up in Tyler Texas
Luttig says that he was raised in Tyler Texas.
Luttig: “I learned everything I needed to know in Tyler Texas. I have not changed. What has changed is the Republican Party. They want to change everything America stands for. If Trump and the GOP wants to call me a Communist… (he scoffs). And if they went to say that I am a “Democrat” then I am a proud Democrat!”
Chief Justice John Roberts referred to his role as that of an umpire, calling balls and strikes.
John and I are friends to this day. But…an umpire? A judge enforces the constitutional rules of the United States. A reference to a baseball game trivializes his role.”
Litman says “That’s a meme.”
Luttig says, “I don’t know what that means.”
Litman explained the definition of what meme is in common usage.
Insurrection Ruling by Supreme Court (Trump v. Anderson)
Litman: We should discuss the two legal rulings of the Supreme Court affecting Trump’s prosecution. The first case to discuss is the Insurrection Case. Based on the 14th Amendment, Colorado tried to remove Trump from the ballot. The Supreme Court overruled it. What is your opinion on their ruling?
Luttig: There are no anachronisms in the U.S. Constitution.
Litman: That is a meme.
Luttig: So be it.
The Supreme Court betrayed the U.S. Constitution and America
Luttig: “Anyone who takes an oath to support the constitution and then takes action against the Constitution. Every single element of history confirmed, nothing to deny it, when he tried to remain in office after losing the election, under section three – and this is YOUR constitution – We the People –
When this came before the Supreme Court and was argued for three hours, they asked not one question.”
(Luttig said that he knew by the lack of questions that they were not going to rule to support removing Trump from the ballot based on insurrection.)
Luttig: “Essentially, they decided to say, ‘We cannot decide.’ They decided they would throw it issue back to Congress because they will never be able to figure it out.
Justice Elana Kagan said, ‘If the Supreme Court today decides to rule [against Colorado], it is in order to protect one man….’
This is but one example of how Trump has corrupted the rule of law.”
Luttig explains why he reached out to the media to make a statement after this ruling.
“I don’t call television people – I am more likely to hide from them. But I called. People were saying it would be undemocratic. [Based on Trump’s clear act of insurrection, which Luttig has stated is self-executing and does not require a trial and conviction,] , the disqualification is not undemocratic.
The Supreme Court betrayed the U.S. Constitution and America.”
Litman: They said that their concern was that it would create a patchwork across the states.
Luttig: “That’s a softball question – I thought better of you!”
(audience laughs, as do the speakers)
Luttig: “When that argument was made, it was the most sophistic constitutional argument ever made in the court chamber. It was the Court’s responsibility to decide the question!”
Presidential Immunity Ruling by Supreme Court (Trump v. U.S.).
Litman asks Luttig to respond to the Supreme Court’s ruling on Presidential Immunity (Trump v. U.S.).
Luttig: “It is an abomination.”
Litman reacts to this word choice and says that it is a strong condemnation, a strong word for Luttig to use.
Luttig: “The highest honor I could be paid is that I choose my words carefully. For the past four years I have felt the highest obligation to choose my words with precision.
My court aides argued for the immunity. John Eastman, the principal architect of the case; also, Jonathan Mitchell…and another one of my clerks argued in the immunity case.”
(Jonathan F. Mitchell, a clerk for Judge Luttig, argued on Trump’s side in the Colorado ballot case. D. John Sauer, who clerked for Luttig, argued for immunity.)
Luttig: “I’ve spent my life studying the powers of the presidency. Never before—not in 250 years—has anyone, let alone a judge or a Supreme Court judge, suggested that a U.S. President could be immune from criminal prosecution. This is antithetical to the Founders. We revolted against the Crown 250 years ago to set up a democracy and the rule of law where no man is above the law.”
An abomination
Luttig: “When they said that one person could be above the Constitution and the rule of law: this was an abominable decision. Worse than Dred Scott v. Sanford [the 1875 ruling that upheld slavery even in the free states]. Worse that Plessy v. Ferguson [the 1896 ruling that condoned segregation with “separate but equal]. Worse than Korematsu v. U.S. [the WWII ruling that detention was a military necessity not based on race]. It is worse than those three decisions because their ruling on immunity did violence to the Constitution.”
Litman: What will be the effect of having the Supreme Court held, as it is, in such low regard?
Luttig: “A disproportionate amount of the disrespect is due to self-inflicted wounds.
I got a call from the Senate Congressional Committee asking me to speak on ethical standards for the Supreme Court. Rather than come to the hearing, I wrote my testimony, to be read into the record for the committee hearing. The Supreme Court members should want to be constrained by the highest ethical standards so that they are beyond reproach. The Court’s credibility and the respect of its judgments depends in part on the way in which they conduct themselves when they are off the bench.
Judge Jackson said, ‘Of course they must be bound [to ethical rules]’ They are not above the American people.
In order to protect against any similar future situation, such as the arguments that were made about the Vice President and the counting of the Electoral Votes, the Electoral Count Act has been amended.
With their plans to refuse to certify ballots at the state level for the November election, the Republican Party is holding the American people as political hostages.
Traitors to democracy
The conservatives and the liberals are one and the same in their views about America.
These people are not conservatives and do not call themselves conservatives: they call themselves revolutionaries and patriots, as if they were akin to the patriotic revolution of 250 years ago. They plan to re-take the government and the country away from the people in order to serve their own purposes.
The intellectuals behind the MAGA movement, people such as John Eastman, claim that there is a need for another ‘American revolution.’ Americans fought the war of independence against a monarch to begin a democratic country, designed with a constitution and the rule of law. It is impossible to have a ‘revolution”’ against our democracy. They are traitors to democracy.“
The Tribune Event was “One on One With J. Michael Luttig“
J. Michael Luttig: Former Judge, United States Court of Appeals for the 4th Circuit
Luttig served on the appeals court from 1991 to 2006. He is currently counselor and special adviser to the Coca-Cola Company and its board of directors. Luttig served as assistant attorney general for the Office of Legal Counsel and counselor to the U.S. attorney general in the U.S. Department of Justice from 1990-91.
Harry Litman: Host, “Talking Feds” Podcast; Senior Legal Columnist, Los Angeles Times
Litman’s podcast and YouTube channel bring together prominent figures from government, law and journalism. He is also the senior legal affairs columnist for the Los Angeles Times, a regular commentator on MSNBC and CNN, and a former U.S. Attorney and Deputy Assistant Attorney General.
Texas Tribune Festival, 2024
The Texas Tribune’s signature event of the year, The Texas Tribune Festival brings Texans closer to politics, policy and the day’s news from Texas and beyond. For more information, visit the festival online. The event is a part of the Texas Tribune.
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