WASHINGTON – A preeminent conservative lawyer and former federal judge said Thursday that the theories pushed by his former law clerk, John Eastman, to pressure former Vice President Mike Pence to overturn the 2020 election results were completely baseless in every way, former President Trump tried to “steal America’s democracy” and said the former president remains a “clear and present danger to American democracy.”
“I would have laid my body across the road before I would have let the vice president overturn the 2020 election,” said J. Michael Luttig, in testimony to the select committee investigating the Jan. 6, 2021, assault on the US Capitol by Trump supporters.
Luttig served as a judge on the U.S. Court of Appeals for the Fourth Circuit for 15 years, and prior to that worked as a lawyer for Republican Presidents Ronald Reagan and George HW Bush. During his time on the federal bench, Luttig mentored numerous clerks who went on to positions of prominence in conservative legal circles and in Republican politics.
Sen. Ted Cruz, R-Texas, clerked for Luttig and the judge as “like a father to me.” Another lawyer who clerked for Luttig was John Eastman, who went on to clerk for Supreme Court Justice Clarence Thomas and became the dean of Chapman University Law School.
Eastman, after the 2020 election, became a legal adviser to Trump. Eastman was the chief advocate for the legal theory that Trump’s vice president, Pence, had the constitutional authority to reject and overturn the 2020 election results, or return them to the states so that Trump could remain in power.
Luttig was one of only two persons to testify before the committee on Thursday, during a nearly three-hour hearing that delved in great detail into the Eastman legal arguments made. Luttig gave Pence legal advice during that time. The other witness was Greg Jacobs, Pence’s top White House lawyer during that period, who engaged most directly with Eastman.
“There was no basis in the Constitution, or the laws of the United States – at all – for the theory espoused by Mr. Eastman, at all. None, ”Luttig told the committee.
Luttig called Eastman’s attempts to convince Pence to overturn the results “constitutional mischief.”
Jacobs detailed the many conversations and meetings between himself, Eastman and others in the days leading up to the Jan. 6 insurrection by Trump supporters. The portrait that emerged from Jacobs’ testimony was of an Eastman who was desperate to come up with some rationalization, anything, to justify a naked grab for power by Trump.
Jacobs made it clear that Eastman knew his legal arguments held no merit, and yet he continued to propound them anyway, even on the night of Jan. 6 after rioters had been cleared from the Capitol.
Yet it was Luttig’s that put things in the most strongly worded terms.
“A stake was driven through the heart of American democracy on January 6, 2021, and our democracy today is on a knife’s edge,” Luttig wrote in the first line of a 12-page letter.
Jan. 6, Luttig wrote, was “the final fateful day for the execution of a well-developed plan by the former president to overturn the 2020 presidential election at any cost, so that he could cling to power that the American People had decided to confer upon his successor. ”
“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, ”Luttig wrote. “The treacherous plan was no less ambitious than to steal America’s democracy.”
Luttig was halting in his personal testimony before the committee, speaking painstakingly and slowly, with long pauses. He looked down at the table, his expression pained.
Luttig’s written testimony, however, was blistering. That included this assessment of the legal advice that Eastman, his former clerk, had provided to Trump: “Those efforts, by the former president were the product of the most reckless, insidious, and calamitous failures in both legal and political judgment in American history . ”
“Had the Vice President of the United States promised the President of the United States, America would immediately have been plunged into what would have been tantamount to a revolution within a paralyzing constitutional crisis,” Luttig wrote.
Luttig also addressed, indirectly, Trump’s taunts of Pence as too weak to do what was required.
“There were many cowards on the battlefield on January 6. The Vice President was not among them,” Luttig wrote.
As the hearing wrapped up, Luttig was asked about his comments in his written testimony about the ongoing threat to democracy posed by Trump’s continued insistence – despite the lack of any evidence – that the 2020 election was stolen from him.
“Donald Trump and his allies are a clear and present danger to American democracy,” Luttig said. “To this very day, the former president, his allies and supporters, pledge that in the presidential election of 2024, if the former president or his anointed successor … were to lose that election, that they would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election. ”
“I don’t speak those words lightly,” Luttig said. “I would have never uttered one single one of those words except the former president and his allies were candidly and proudly speaking those exact words to America.”
In his written testimony, Luttig called on the leadership of the Republican Party to take the first step in charting a new course for America.
“In order to end these wars that are draining the lifeblood from our country, a critical mass of our two parties’ political leaders is needed,” Luttig wrote. “This number needs to include a critical mass of leaders from the former president’s political party.”
“Those [Republican] leaders need to go first, ”Luttig said, in laying aside their partisan grievances, and putting the preservation of democracy first.