Wednesday, March 22, 2023

Michael Luttig helped stop Trump on Jan. 6. He wants to finish the job.


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An earlier model of this text misidentified the creator of the majority opinion in a 2000 case involving the Violence Against Women Act. It was written by Chief Justice William Rehnquist and joined by Justice Sandra Day O’Connor. The story has been corrected.

Late one night time in the spring of 1994, a 40-year-old federal choose was startled awake by loud pounding at the entrance door of his dwelling in Vienna, Va.

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The sound was so jarring, so insistent, so out of character for his quiet Washington suburb that it unnerved J. Michael Luttig, a product of Northeast Texas who had put down deep roots in Beltway energy circles.

Luttig informed his spouse, Elizabeth, to name the police. “Keep the line open,” he added.

Baffled, anxious, irritated, Luttig opened the door only a crack. There stood a stocky man with thick black eyebrows.

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Antonin Scalia. Associate justice of the United States Supreme Court.

Scalia had pushed by the night time at the request of Luttig’s mom, who needed him to be the one to break the news: Luttig’s 63-year-old father, John, had been killed in a carjacking exterior his Tyler, Tex., dwelling barely an hour earlier. And so the judicial legend confirmed up to sit together with his former clerk as he positioned one grim telephone name after one other, Luttig recalled in a latest interview, sharing the story publicly for the first time.

It had to be Scalia on this most terrible night time of their lives. Bobbie Luttig, who was critically injured in the assault, knew how her son seemed up to him. For a technology of conservative legislation college students, Scalia was a paragon of a judicial philosophy centered on reverence for the unique textual content of the Constitution. Luttig had clerked for him at the federal appeals court docket in Washington and later held one among the posts Scalia had occupied on his personal path to the bench, in the Office of Legal Counsel, an obscure however influential cadre of brainy attorneys who present authorized steering to the president.

Theirs had advanced into one thing greater than a mentor-mentee relationship, greater than a friendship. They had been integral components of a motion, the keepers of the conservative banner in Washington’s clubby authorized circles, the place shiny, younger aspirants may very well be tapped by their elders and set on a path towards the most necessary authorized jobs in the nation. Reared in the Ford and Reagan administrations, ascendant in George H.W. Bush’s, Luttig grew to become the protege and eulogist of 1 chief justice, Warren Burger; a groomsman for an additional, John Roberts. (In a latest interview, Luttig repeatedly turned to phrases like “one of my best friends in life” to describe a few of the most outstanding judges, attorneys, enterprise leaders and journalists in America.)

By the time Scalia stood in his doorway, the younger legislation college students had been wanting up to Luttig, too. His obsessively exact written opinions for the U.S. Court of Appeals for the 4th Circuit in Richmond had marked Luttig as one among the main conservative intellectuals in the authorized system — the most conservative choose on the most conservative court docket in America.

More than a quarter-century later, it was Luttig (pronounced LEW-tig) who would get a late-night name to come to the help of his tribe: Mike Pence, in his closing days as vp, would search out Luttig’s authorized recommendation on the night time of Jan. 4, 2021, as Donald Trump pressured him to assist overturn the outcomes of the 2020 election. But Pence and his allies would want extra from Luttig than his non-public counsel.

They wanted his imprimatur.

What started as a late-night telephone name has was the quest of a lifetime for Luttig, the pinnacle of a protracted and storied profession, highlighted final summer time by his stirring look earlier than the congressional panel investigating the Jan. 6 rebellion at the U.S. Capitol and by the committee’s closing report launched in late December, which mentions his identify greater than 25 occasions.

Key findings from the Jan. 6 committee’s closing report

“Donald Trump and his supporters and allies are a clear and present danger to American democracy,” Luttig informed the committee on dwell tv.

Retired conservative Judge J. Michael Luttig testified on June 16 that President Trump and his allies pose a “clear and present danger” to American democracy. (Video: Reuters)

But Luttig wasn’t simply condemning Trump and Trumpism. He was attempting to convey a nation to its senses.

“We Americans no longer agree on what is right or wrong, what is to be valued and what is not, what is acceptable behavior and not, and what is and is not tolerable discourse in civilized society,” he mentioned. “America is adrift.”

Months faraway from that star flip, Luttig’s worries have begun to ebb ever so barely. He now envisions a nation sooner or later disentangled from Trump’s affect, whilst the former president launches a brand new marketing campaign. It’s a future Luttig is attempting to form in court docket circumstances, in legislative chambers the place he’s helped craft election legislation adjustments and in professorial public appearances the place he explains in painstaking element how American democracy, although imperiled, can nonetheless be preserved.

Luttig can consider just one cause he would have been wrested out of quiet semiretirement for this mission.

It was, he’s concluded, nothing lower than “divine intervention.”

The books are at all times by his aspect, wherever Michael Luttig sits down to suppose. Massive dictionaries, writing manuals, something that may inform his fixation with phrases, with the intricacies of their meanings and the methods they are often deployed. Even by the requirements of the authorized career, he can appear to be a strolling, speaking thesaurus, with an affection for phrases like “charlatanic,” “obeisantly” and “annihilative.”

At 68, Luttig is ruddy-faced and thickset in a means that is likely to be anticipated from a person who has a house in Vail however doesn’t ski. In dialog, he can seem pained as he searches for an applicable phrase. He’ll press his fingers in opposition to his brow, looking at the floor, beginning and stopping, self-narrating (“Part One … Part Two …”) in his faintly nasal Texas twang, enhancing himself in actual time — a waterfall of phrases and concepts, however in super-slow-mo. One may as nicely get snug as a result of it’s going to take awhile. It’s additionally unlikely to be boring.

During his 15 years on the federal bench, from 1991 to 2006, he grew to become legendary for his voluminous and intricately detailed writing, each periodically piquant and staunchly conservative. Once, in a case that outraged ladies’s teams, he wrote a 214-page opinion declaring {that a} portion of the Violence Against Women Act permitting rape victims to sue their attackers for violating their civil rights was unconstitutional. The legislation, he concluded, couldn’t be “reconciled with the principles of limited federal government upon which this nation is founded.” (The Supreme Court affirmed his ruling, with an opinion written by Chief Justice William Rehnquist and joined by Justice Sandra Day O’Connor.)

“He was out there articulating a set of legal principles that were moving the law in a conservative direction,” mentioned Noel Francisco, who clerked for Luttig and would later function solicitor basic in the Trump administration. “A sharp focus on rules when it comes to separation of powers, a healthy skepticism of the administrative state, upholding laws that reflect more culturally conservative viewpoints. It was very much of a pro-law-and-order approach to the law, very much in favor of holding criminals accountable for their conduct.”

He was simply 37 years previous when the first president Bush tapped him for the bench, the youngest federal appeals choose in the nation, however already a veteran of the political world. His specialty: screening and prepping the Supreme Court nominees of Republican presidents. His dwelling served as the “safe-house” lodging for future justice David Souter, the night time earlier than Bush interviewed him for the job in 1990. After Clarence Thomas’s 1991 nomination was imperiled by sexual harassment allegations, Luttig was urgently summoned from a Hawaii trip to assist. His involvement was criticized by some authorized ethicists as a result of Luttig, although not but sworn in, had already been confirmed as a choose.

Years earlier, Luttig had even inspired his first mentor, Chief Justice Burger, to retire whereas Reagan was nonetheless in workplace to exchange him with a like-minded jurist; Luttig says he hosted a dinner through which Burger may bond with Fred Fielding, the powerhouse White House counsel who would steer that choice.

On the appeals court docket, Luttig was thought-about such a dependable vote on abortion that attorneys arguing for restrictive measures — parental notification guidelines, “partial-birth” abortion bans — would angle to steer their circumstances to him. He strongly supported the second Bush White House’s controversial post-9/11 coverage of declaring terrorism suspects “enemy combatants” in order that they may very well be held by the navy with out costs. He was additionally considered as a surefire supporter of capital-punishment sentences. Yet some well-informed members of the authorized neighborhood had no concept about his father’s homicide. When Francisco interviewed for his 1996 clerkship with Luttig, they’d a protracted, “very earnest and very heartfelt conversation” about their opposing takes on the dying penalty — however Luttig by no means talked about his father.

Luttig at the moment was urging the courts to uphold the dying penalty for his father’s killer, Napoleon Beazley. In an interview with The Post, Luttig says he would have been open to prosecutors looking for a lesser sentence if the killer’s household had apologized on behalf of their son, who was 17 at the time of the homicide, and if he hadn’t perceived a “coldness” from them. Beazley’s case reached the Supreme Court, the place totally one-third of the court docket — Scalia, Thomas and Souter — recused themselves due to their shut ties to Luttig; he was executed by deadly injection in 2002.

For all his perceived reliability as a conservative bulwark, Luttig may befuddle the political proper. He dominated that Title IX protected a feminine place-kicker on an all-male soccer workforce from gender discrimination. He upheld a Black defendant’s proper to exclude a White juror who had displayed the Confederate flag. And in 2000 he declared that the constitutional proper to abortion established with Roe v. Wade had achieved the standing of “super-stare decisis” — a time period of his coining — as a result of the Supreme Court mentioned it had repeatedly upheld the case and that it was irrefutably embedded in the legislation at the time.

He famously saved his clerks — the “Luttigators” — working for hours as he fastidiously pored over every sentence of the draft opinions they helped him write. Luttig’s desk had a pc monitor and a keyboard so he may tweak and re-tweak; the clerks sat at a spherical mahogany desk with laptop screens however no keyboards. Occasionally he would invite them to his home on weekends, ostensibly to watch soccer, solely to flip the channel to C-SPAN.

If they devoted themselves to him for a yr, he would inform them, “I’ll devote myself to you for the rest of your career.”

Almost all of his clerks — greater than 40 over the years — went onto clerkships at the Supreme Court.

“That was eye-popping to everyone,” says fellow former federal choose, Thomas Griffith, a classmate of Luttig’s at the University of Virginia legislation faculty. “For Mike, that was a badge of honor.”

The one particular person Luttig couldn’t get a job at the Supreme Court was J. Michael Luttig. He was lengthy thought-about by many to be virtually a shoo-in however was handed over in 2005 in favor of Roberts and Samuel Alito. He left the federal bench the following yr for a profitable however low-profile job as basic counsel at Boeing, noting the looming price of his youngsters’s school tuition.

And so it was that one among the most celebrated authorized minds of his technology failed to ascend to the highest court docket in the land — liberating him to play one other, maybe extra consequential position.

Just ask Neal Katyal, a former deputy solicitor basic in the Obama administration who discovered himself crossing the aisle to work with Luttig in an ongoing authorized battle in opposition to a idea from the Trumpian fringe of the GOP that might basically let state legislatures resolve nationwide elections.

“There’s a good argument,” says Katyal, who teared up twice throughout an interview, “that Judge Luttig, by not being on the Supreme Court, did more for our democracy than most any sitting Supreme Court justice or past one.”

On the night time of Jan. 4, 2021, Luttig was consuming dinner together with his spouse at their dwelling in Vail when the telephone rang. It was Richard Cullen, a longtime pal and former U.S. lawyer in Virginia who was then serving as an out of doors lawyer for Pence.

Cullen was determined for intel. An lawyer he’d by no means heard of however who had represented Trump in lawsuits difficult the presidential election outcomes was going round saying Pence had the authority to block certification of the 2020 election outcomes. Cullen realized that it was a person named John Eastman and that in a earlier life he had clerked for Luttig.

Luttig, puzzled, informed Cullen that Eastman is “brilliant.”

“You don’t know why I’m calling, do you?” Cullen mentioned.

Once Cullen defined what Eastman was up to, Luttig informed Cullen to advise Pence he merely couldn’t block the certification. When Luttig hung up, his spouse turned to him: “Oh my God, you have to stop this.”

Luttig was at a loss. He mentioned he didn’t suppose there was something he may do past providing his authorized opinion. Retired from Boeing, he’d been out of the public eye for years, avoiding partisan politics.

But Cullen known as once more in the morning, and once more pushed Luttig to say one thing publicly earlier than Pence sat down for a deliberate lunch with Trump. They lastly agreed that Luttig would publish one thing on Twitter.

The downside: This man of many, many phrases couldn’t think about confining his remarks to 280 characters — and he had no concept how to string a number of tweets right into a Twitter thread. His very first tweet, barely two months earlier, had taken him 5 hours to compose; he ended up posting a photograph of the prolonged assertion he’d printed out. But feeling the “gravity of this moment,” as he put it, Luttig known as his son, who despatched him a tutorial on how to assemble a thread.

His 7-tweet thread, posted early on Jan. 5, supplied Pence each authorized and political cowl. Luttig defined — as if talking to first-year civics college students — that, no, the vp couldn’t simply change the vote whole. And, no, refusing to accomplish that didn’t imply he was disloyal to the president.

Luttig’s shut pal William P. Barr had been a Trump-enabling lawyer basic till quitting a month earlier, fed up by the president’s false election claims. Luttigators had been sprinkled all through the administration, together with Health and Human Services Secretary Alex Azar; Courtney Elwood, the basic counsel of the CIA; and Kate Comerford Todd, who was deputy White House counsel. Another led the Trump-acolyte wing of the Republican Party: Sen. Ted Cruz of Texas.

Luttig’s feedback resonated with a sure section of Republicans as a result of he had assiduously averted taking public political stances over the years. He was nonetheless Judge Luttig — emphasis on choose.

“He couldn’t be dismissed as a Never-Trumper,” says Bill Kristol, the outstanding conservative commentator. “His emergence was a big deal.”

Ignoring the Jan. 6 hearings? Michael Luttig explains why you shouldn’t.

Luttig’s highlight look, a yr and a half later, earlier than the congressional committee investigating Trump’s position in the Jan. 6, 2021, riot, was a good greater deal — so extremely anticipated that the textual content of his remarks was thought-about a news scoop. He’d refused to give an advance copy to the committee as a result of he feared it might be leaked. He needed to reserve the possibility to make tweaks up to the final minute and didn’t need a model on the market that was even one syllable totally different from the remarks he delivered.

Conservative jurist J. Michael Luttig mentioned on June 16 had Vice President Mike Pence declared Donald Trump president it might’ve plunged America right into a “crisis.” (Video: The Washington Post, Photo: Jabin Botsford/The Washington Post)

Instead he leaked it himself to CNN, for release moments before his appearance. (Earlier that year he’d leaked to CNN his endorsement of Biden’s Supreme Court nominee Ketanji Brown Jackson, whom he differed from on judicial interpretations but thought would benefit the solidly conservative court by adding much-needed diversity because she is an African American woman.)

In his testimony, Luttig spoke soooooo slowly that social media lit up with speculation that he was recovering from a stroke, a baseless theory amplified by the crimson complexion of his face that day. He was simply sunburned, it turned out — and intentionally spoke so deliberately because he wanted Americans to absorb e-v-e-r-y single word that he spent nearly 18 months writing and rewriting at his homes in Chicago, Vail and coastal South Carolina.

“I’ve never seen him as simultaneously focused and at peace,” Cullen says. “It’s almost a religious experience for him.”

When Luttig was a young, lowly staffer in the Ford White House, he worked on a book meant to bolster the president’s ill-fated 1976 campaign.

Part of that effort involved explaining Ford’s rationale for pardoning predecessor Richard M. Nixon for his involvement in the Watergate scandal. Luttig has concluded Ford made the right decision, in the interest of not prolonging the national upheaval. He has been thinking a lot about those days, now that the Justice Department is faced with deciding whether to indict Trump for his role in the Jan. 6 insurrection and his hoarding of classified documents after leaving office.

“What Nixon did was just an ordinary crime,” Luttig says. “What Trump has done is quite arguably the worst crime against the United States that a president could commit.”

Luttig sees “ample evidence” of criminal activity and believes Trump will be indicted. But he has been judicious about not calling for an indictment. Instead, in his professorial manner, he’s been laying out the factors that he believes should be considered by Attorney General Merrick Garland (yet another close acquaintance, of course, from their time as federal judges).

When he posts them on social media, he’s come to expect that his friend, renowned liberal legal scholar Laurence Tribe, will retweet or reply with exactly what Luttig has been careful not to say — that Trump should be indicted. The ideological opposites struck up a correspondence, bonded by their mutual resolve that Trump is a threat to democracy, Tribe says. (They’re also working together on a multibillion-dollar tax case for Coca-Cola, where Luttig is a special adviser to the board.)

As Luttig sees it, the decision about indicting Trump should also take into account whether it would “split the nation,” given the certainty that Trump would put up a years-long fight against any charges and the worldwide “spectacle” that would ensue.

Even if an indictment never materializes, Luttig now believes the nation is ready to relegate Trump and Trumpism to irrelevancy. The former president’s political future was dealt triple blows, Luttig says, by his recent assertion that parts of the Constitution should be “terminated” to return him to office, the criminal referrals by the Jan. 6 committee and the failure of his favored candidates in the 2022 midterm elections. He calls it “the beginning of the end of Donald Trump.”

Still, he says, the mission of vanquishing Trump — and thus, in Luttig’s mind, saving American democracy — is not entirely complete. “Donald Trump has proven that the only thing that can stop him is the law,” he says.

But if there’s something J. Michael Luttig locations religion in, it’s the legislation.


An earlier version of this article misstated the court where J. Michael Luttig clerked for Antonin Scalia.

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