Update to Judge Michael Luttig’s Prepared Statement For The January 6 Committee (Updated).
Charlie Sykes writes at The Bulwark, Judge Luttig Has a Warning for America:
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.
Some highlights:
“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.
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Author Jeff Sharlet has spent years interviewing conservatives and found many unassuming Americans are ready and eager for violence against their political enemies. “‘I see this as a global fascist moment’: author Jeff Sharlet on interviewing far-right Americans”, https://www.theguardian.com/books/2023/mar/30/jeff-sharlet-undertow-fascism-far-right-religion-trump
Sharlet’s latest book, “The Undertow: Scenes from a Slow Civil War,” is the culmination of more than a dozen years’ reporting on the US religious right and its machinations. The core of the book is Sharlet’s reporting from the midwest and the high plains, talking to ordinary people about their extraordinary predilection for violence. They see a country gone wrong under decades of “immoral decadence” and often see the expansion of rights for women, the poor and people of color as proof of this turpitude.
Sharlet has been sounding the alarm for a long time – but in this moment, when newscasters and senators alike use “Christian nationalism” and “fascism” fluently, the rest of us are finally catching on.
“I’ve been writing about the right for a long time; I’m always interested in the margins of things that tell us about what’s happening at the center. An undertow is a metaphor for that, for the force that’s been pulling us to this place for a long time. If you’d asked me 10 years ago if I ever thought another civil war would be possible in the United States, I would have said no. But to think so [now] is to not understand that the right in America is as dangerous as it is.”
“Two years ago, when I started traveling for The Undertow, suddenly civil war language, which had been fringe even on the right, was now mainstream right. Today we hear Marjorie Taylor Greene use it. Marjorie Taylor Greene doesn’t lead, she follows. Trump doesn’t lead, he follows.”
“Near Eau Claire, Wisconsin, I met a nice-looking family, dad, mom, son. You would never tag them for who they were. I see a little “Let’s go Brandon” sticker – a meme that rose among the right which means “Fuck Joe Biden”. And I get to talking to them. We talked for a long time. [The father said] he had a “Let’s go Brandon” sticker because he didn’t want to swear around his son. They’re a middle-class dad and mom. They were always gun people, but not a lot of guns. Now they’re up to 36, now they are arming up. The father had always been anti-abortion. But now it was like a dream had moved into his and his wife’s mind. He described, in incredibly violent detail, the process of abortion. Then he described, in incredibly violent detail, the punishment he thought he and others were going to give to abortion doctors. They were ready for executions.”
“If we’re going to pay attention to the right, we need to pay attention to the deep strata of the struggle for freedom, right? Because this fight isn’t new, it’s old. And it’s ongoing, although it does take new shapes. We are in one of the scarier moments that we have ever confronted – all the more reason to understand what came before and how they endured; not how they survived, because they didn’t win. As we confront this fascist moment – I see this as a global fascist moment – we’re going to need some imagination. There is little on the table right now.”