J. Michael Luttig, a conservative former judge, has emerged as an unofficial legal adviser of the Donald Trump era. He famously counseled former Vice President Mike Pence that he couldn’t throw the 2020 election for Trump (Pence took that advice) and, more recently, he argued that Pence couldn’t get out of testifying in special counsel Jack Smith’s ongoing probe into Trump’s efforts to overturn the election (Pence resisted but wound up testifying in April).
Now, on the heels of Trump’s first federal indictment — his second indictment so far — Luttig took to Twitter with a thread explaining that the former president and 2024 Republican candidate has only himself to blame for such charges.
Luttig, who was appointed to the bench by George H.W. Bush and was floated as a possible GOP Supreme Court pick, wrote on Tuesday night that any administration, Democratic or Republican, would have charged Trump for violating the Espionage Act and other federal statutes:
There is not an Attorney General of either party who would not have brought today’s charges against the former president.
— @judgeluttig (@judgeluttig) June 13, 2023
Indeed, following Trump’s arraignment, Luttig wrote that the defendant “dared, taunted, provoked, and goaded” Smith and his team to bring charges:
He has dared, taunted, provoked, and goaded DOJ to prosecute him from the moment it was learned that he had taken these national security documents.
— @judgeluttig (@judgeluttig) June 13, 2023
Echoing points I’ve made here on the Deadline: Legal Blog that Trump’s alleged obstruction is likely what put him over the edge into charging territory, Luttig wrote that Trump “could have avoided and prevented this prosecution” and “would never have been indicted for taking these documents.”
On any given day for the past 18 months — doubtless up to and including the day before the indictment was returned — the former president could have avoided and prevented this prosecution. He would never have been indicted for taking these documents. The former federal judge’s point aligns with past Justice Department practice, as I’ve noted in explaining why others who’ve cooperated in classified documents investigations — such as Pence — haven’t been charged but Trump has. Luttig’s lessons likely won’t reach Trump supporters as they desperately mount avant-garde legal defenses by misreading and misapplying the Presidential Records Act and prior precedent. But it’s nonetheless important to make these points — not only for those willing to hear them but for the historical record as well. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump investigations and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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