Judge Luttig: America Under Assault From Within

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I’d also say that it was under assault by Russians who are helping to divide and conquer us.

It was called the “tweet heard round the world.”

On the morning before the January 6th attack on the Capitol, one of the nation’s most prominent conservative jurists, former Federal Appeals Court Judge J. Michael Luttig, posted a message aimed at Vice President Mike Pence.

A close friend of the late Justice Antonin Scalia, Luttig had frequently been mentioned as a possible Supreme Court nominee, and when he spoke, conservatives paid close attention.

That day his message was brief and clear: The vice president had no power to alter the election results.

“The only responsibility and power of the Vice President under the Constitution is to faithfully count the electoral college votes as they have been cast,” Judge Luttig wrote.

“The Constitution does not empower the vice president to alter in any way the votes that have been cast, either by rejecting certain votes or otherwise,” Luttig continued.

If Pence had caved to Donald Trump’s demands and refused to count the electoral votes, Judge Luttig told the House January 6th Committee last summer, the nation “would immediately have been plunged into what would have been tantamount to a revolution within a paralyzing constitutional crisis.”

Now, Judge Luttig is back, with even a starker warning.

The institutions of our democracy and law, he says, “are under vicious, unsustainable, and unendurable attack — from within.” 

Last week, at the University of Georgia School of Law, Luttig said:

With the former president’s and his Republican Party’s determined denial of January 6, their refusal to acknowledge that the former president lost the 2020 presidential election fair and square, and their promise that the 2024 election will not be “stolen” from them again as they maintain it was in 2020, America’s Democracy and the Rule of Law are in constitutional peril — still. And there is no end to the threat in sight….

We are a house divided and our poisonous politics is fast eating away at the fabric of our society….

The Republican Party has made its decision that the war against America’s Democracy and the Rule of Law it instigated on January 6 will go on, prosecuted to its catastrophic end.

**

On Tuesday’s Bulwark podcast, I sat down with Judge Luttig. He recounts the story behind his decision to speak out; the call he received from Pence the day after the insurrection; and his reaction to Donald Trump’s ongoing efforts to spread lies about the 2020 election.

It’s a remarkable conversation, and very much worth your time. You can listen to the whole thing here.

“Treason-like”

Charlie Sykes: Here you have the former president very openly saying we should terminate the Constitution in order to overturn this election. And yet the Republican party still looks at him and says, ‘Yeah, if he’s the nominee, we’ll support him again for return to the Oval Office.’ What has happened to conservatives and Republicans that they are willing to tolerate that kind of thing?

Judge Michael Luttig: In another day, those words spoken by a president or a former president, for that matter, would be treason-like — not treason. Treason is a defined term in the Constitution. It’s treason-like because that statement, as well as January 6th, the events inspired by the former president, were a betrayal of America and a betrayal of Americans. The former president and his allies betrayed the sacred trust that had been conferred on them by the American people.

Indicting Trump

Sykes: “I don’t want to put words in your mouth. But my sense is that you’re not calling for Trump’s indictment, but you now believe that he will be indicted, and you’ve been laying out the factors … that Merrick Garland should be considering. So, what should we do about this, and what does it say if the legal system does not hold Donald Trump accountable for his attempts to overturn the election and for his role in January 6th?

Judge Luttig: Yes, it’s not my role to call for the indictment and prosecution of the former president — and I’ve studiously not done that. As these various prosecutions have come to the forefront, I have commented on what I thought was their legitimacy and their likelihood. The four in particular that I’ve commented on, beginning with the most important is January 6th — the investigation being conducted now by the Department of Justice in the person of Jack Smith, for the former president’s conduct on January 6th. Second, the investigation of the taking and retention of classified documents to Mar-a-Lago, followed closely by the investigation in Georgia by Fani Willis of the former president’s effort to interfere with the election in Georgia in 2020. And last and most recently, this expected indictment in Manhattan related to the Stormy Daniels case.

But I would say today, Charlie, that I would have hoped that the first of any prosecutions of the former president would not have been either the Stormy Daniels matter in Manhattan, or frankly, the classified documents from Mar-a-Lago. And that instead, if there are to be prosecutions of the former president, the first would be by the Department of Justice and Jack Smith, for January 6th.

I’ll go even one step further and say that if it happens to be the case that the Stormy Daniels prosecution and the classified documents investigation are the only two prosecutions of the former president coming out of all of his antics, and that he’s not prosecuted for January 6th, I will believe that that’s a great disservice to democracy and to the rule of law in America.

Source: Judge Luttig Has a Warning for America – by Charlie Sykes (thebulwark.com)

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