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Judge Luttig Has a Warning for America
Our democracy is “under vicious, unsustainable, and unendurable attack—from within.”
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.
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.
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.
Maybe Chris Christie?
Mona and I discuss our complicated (and nuanced) feelings about Christie, as well as the lack of antibodies in the body politic; our toxic news diet; Trump’s declining polls; a new podcast about J.K. Rowling; and more. I invite you to listen in on our private conversation…
Bulwark+ members can listen here. Members can carry on the conversation in the comment section.
BONUS: Josh Kraushaar reports over at Axios: Christie pledges never to support Trump again.
Former New Jersey Gov. Chris Christie, who is seriously considering a 2024 presidential campaign, told Axios that he will never support Donald Trump for president again — even if he wins the Republican nomination.
Why it matters: No potential GOP candidate has made such an explicit pledge, underscoring the degree to which Christie is betting on the viability of an anti-Trump lane in the primary…
Asked whether he'd support Trump as the GOP nominee in 2024, Christie said: "I can't help him. No way."
"Look, I just can't," Christie went on. "When you have the Jan. 6 choir at a rally and you show video of it — I just don't think that person is appropriate for the presidency."
Glenn-mentum? Via Politico’s John Harris: “Why a Glenn Youngkin Presidential Candidacy Makes Sense for the Republican Party.”
The Virginia governor offers two things Republicans need: A non-hostile alternative to Trump and a compelling centrist challenge to Biden.
1. Wisconsin’s Ugly and Important Supreme Court Race
Must-read report from Bill Lueders: The acrimony continues to rise in the days leading up to the pivotal April 4 election.
How ugly? A right-wing news outlet is peddling accusations that the liberal candidate in the race, Milwaukee County Circuit Court Judge Janet Protasiewicz, physically abused her former husband and used “the N-word” in conversations decades ago. The conservative contender, former state Supreme Court Justice Daniel Kelly, is promoting these stories on his campaign website. He has called the abuse allegations “credible” and said they “should be investigated.”
As the clock to the April 4 election ticks down, Protasiewicz (pronounced “pro-tuh-SAY-witz”) is flooding the airwaves with commercial after commercial accusing Kelly, somewhat more plausibly, of being an ideological extremist, based on his pronouncements and affiliations. As I discussed in earlier coverage, one of her ads faults Kelly for having defended “monsters” who sexually abused children. The ad’s gravel-voiced narrator demands, “Do you want someone like that”—a lawyer performing an essential and constitutionally mandated role within our legal system—“on the Supreme Court?”
2. DeSantis Keeps Letting Trump Take Shots at Him
How many times can you let someone punch you before everyone else thinks you’re a sucker?
Ron DeSantis is about to find out.
Donald Trump has disgustingly smeared DeSantis on social media, gone after DeSantis at his presidential campaign rally in Waco on Saturday, and used a primetime interview on Fox News on Monday to question DeSantis’s ability to win Florida without his help.
So far, DeSantis has accepted it all as if he were being initiated into the 2024 race with a “Thank you, sir, may I have another?” plastered-on smile.
3. From TikTok to Tesla: Congress Warily Eyeing U.S.-China Business Relations
Musk’s considerable business interests in China have occasionally put him in hot water with both U.S. lawmakers and the Chinese propaganda machine. Here are some examples:
In 2019, Tesla opened an enormous independent factory reportedly employing some 15,000 people in Shanghai. During the pandemic, itt was among the first few hundred companies allowed to reopen during the city’s strict lockdowns. China produces roughly half of Tesla’s cars and its market makes up about a quarter of the company’s revenue.
At the end of 2021, Tesla opened a showroom in Xinjiang, the region in China where the state is conducting its ongoing genocide of Uyghur Muslims, around 100,000 of whom have been forced into slave labor, according to the U.S. Department of Labor’s Bureau of International Labor Affairs. The showroom opening prompted a letter of protest from several Democratic members of Congress.
Musk said in a Financial Times interview last fall that China would be smart “to figure out a special administrative zone for Taiwan that is reasonably palatable, probably won't make everyone happy.” The comment drew sharp criticism from Taiwanese officials and representatives, who called his proposal “belittling” and accused him of “trading with the devil.” (Unsurprisingly, the Chinese ambassador to the United States, Qin Gang, had a more positive reaction to Musk’s comments.)
During a podcast appearance earlier this month, Steve Bannon called Musk “a total and complete phony” and “owned lock, stock, and barrel by the Chinese Communist Party” for allegedly blocking anti-CCP accounts from Twitter.
When Musk inadvertently angered China by lending credence to the lab leak theory of COVID-19’s origins, CCP propaganda outlets issued a warning to him not to engage with such content lest he upset his governmental benefactors.