‘An Attack on America’: Former Federal Judge J. Michael Luttig, Who Advised Pence’s Team in Lead-Up to Jan. 6, Speaks Out
The morning before the violent Jan. 6, 2021, assault on the U.S. Capitol, the renowned conservative lawyer and former federal Judge J. Michael Luttig received an urgent call from Vice President Mike Pence’s outside counsel: “Judge, we need to help the vice president. … We have to do something very quickly. … Somehow, we need to get your voice out to the country.”
Luttig would soon issue the now famous tweets imploring Pence not to buckle to former President Donald Trump’s pressure to block certification of the 2020 election results.
“The plan was to overturn the election through the exploitation of what I’ve called the institutions of democracy and the instruments and instrumentalities of our democracy,” Luttig told FRONTLINE in his first television interview, conducted in the lead-up to his testimony before the Jan. 6 House select committee.
The hearings begin tonight. Luttig is expected to testify next week.
“And we know now there’s no question about it,” Luttig said. “They knew exactly what they were doing. And they believed it.”
In the expansive interview, Luttig said he believes America is in the midst of the first constitutional crisis in its history. “I believe that the Constitution never contemplated, and therefore didn’t provide for, process and mechanisms to withstand an attack on America and her democratic processes from within,” he said.
When confronted with word that another lawyer — John Eastman, who had once clerked for Luttig — was telling Pence the vice president could unilaterally overturn the 2020 election, Luttig said he responded, “you can tell the vice president that I said that he has no such authority at all.”
Read and watch: Luttig’s extended interview, with transcript
Luttig was part of the White House counsel’s office during the Reagan administration, clerked for the future Supreme Court Justice Antonin Scalia and for Supreme Court Justice Warren Burger, worked for the Department of Justice under George H.W. Bush, and spent 15 years as a federal judge before leaving government in 2006 for the private sector.
In his interview, an extended version of which is being published as part of FRONTLINE’s Transparency Project, Luttig stressed his ambitions to stay out of the political fray but took aim at the Republican Party and its leaders — especially their censure of U.S. Rep. Liz Cheney (R-Wyo.) — one of two Republicans on the Jan. 6 committee.
“The day that I read with the rest of the country that the Republican Party had censured Liz Cheney was the final straw for me, to the extent that I had a straw in the wind for Republican politics,” Luttig said. “Why? Because I don’t believe that you have a political party at all if the putative members of that party would censure Liz Cheney, simply and merely for wanting to investigate, as a member of Congress, the events of Jan. 6. It’s unimaginable to me and my worldview of politics that any person in America would not favor an investigation of Jan. 6.”
Luttig continued: “In my view, notwithstanding the politics, every single American citizen and every single member of Congress should have urged an investigation of the events of Jan. 6, which leads me to my pessimism at the moment.
“If the country’s reaction to Jan. 6 had been what it ought to have been, I would not have especially any concerns today for the country and for our democracy.”
In the FRONTLINE interview, conducted for an upcoming documentary on the challenges to American democracy, the former U.S. Court of Appeals judge recounted how, with the technological help of his son, he posted his Jan. 5, 2021, Twitter thread, stating, “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,” and, “the Constitution does not empower the Vice President to alter in any way the votes that have been cast, either by rejecting certain of them or otherwise.”
Luttig’s thread was picked up by major news outlets. “I now know what I didn’t know then, which is the vice president’s team — all-inclusive, because I don’t know who in particular — had The New York Times holding for what turned out to be my tweet,” he said in the May 25 interview with FRONTLINE producer Mike Wiser of the Kirk Documentary Group.
On Jan. 6, shortly before Pence began presiding over the congressional certification of Biden’s presidential election victory, Pence released a statement that cited Luttig’s reasoning. In bucking pressure from then-President Trump, Pence said the vice president did not have the “unilateral authority to determine which electoral votes should be counted and which should not.”
In the aftermath of the insurrection that followed, Luttig has called for reform of the Electoral Count Act of 1887, whose “convoluted language,” he wrote in The New York Times, “gives Congress the power to determine the presidency if it concludes that Electoral College slates representing the winning candidate were not ‘lawfully certified’ or ‘regularly given’ — vague and undefined terms — regardless of whether there is proof of illegal vote tampering.”
He also has warned that former President Trump and his allies appear poised to “exploit” the act in what Luttig called “The Republican blueprint to steal the 2024 election.”
