On Jan. 6, 2021, just hours before the attack on the Capitol, then-Vice President Mike Pence issued a written statement explaining that he had no choice but to follow the law when certifying the election results. The Republican’s letter cited legal history, the Constitution, a former president, and a former Supreme Court justice.
But Pence also quoted someone else: former U.S. Court of Appeals Judge J. Michael Luttig.
While much of the country is probably unfamiliar with Luttig, in conservative legal circles, he has few rivals. As Politico recently noted, the jurist has spent much of his adult life operating “at the top of the conservative legal world.”
Luttig has been an attorney in the Reagan White House, a clerk for Antonin Scalia, and one of the nation’s most prominent conservative judges, overseeing clerks with familiar names such as Ted Cruz and John Eastman. Not surprisingly, Luttig was considered for the U.S. Supreme Court.
And so, when Pence and his team needed legal guidance after the 2020 election, they sought the former judge’s advice. He told them to follow the law. They did.
A year later, Luttig has had an opportunity to reflect, not only on what happened after Donald Trump’s defeat, but what might also happen in upcoming elections. To put it mildly, the conservative appears concerned.
The New York Times, for example, reported last week on far-right efforts to decertify 2020 election results some Republicans still reject based on ridiculous conspiracy theories. The article quoted Luttig.
“At the moment, there is no other way to say it: This is the clearest and most present danger to our democracy,” he said. “Trump and his supporters in Congress and in the states are preparing now to lay the groundwork to overturn the election in 2024 were Trump, or his designee, to lose the vote for the presidency.”
This week, Luttig fleshed this out in even more detail, writing an op-ed for CNN that was published yesterday. The conservative made the case that the public may not fully appreciate the severity of the ongoing threat. The Republicans’ mystifying claim to this day that Trump did, or would have, received more votes than Joe Biden in 2020 were it not for actual voting fraud, is but the shiny object that Republicans have tauntingly and disingenuously dangled before the American public for almost a year and a half now to distract attention from their far more ambitious objective…. Trump’s and the Republicans’ far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if Trump or his anointed successor loses again in the next quadrennial contest.
The 2020 election, the op-ed added, “was a dry run for the next.” Luttig went on to argue that a radicalized Supreme Court appears likely to endorse radical ideas about state legislatures rejecting election results, while Republicans try to elect Trump-endorsed candidates who will be “positioned to generate and transmit alternative electoral slates to Congress” at the state level, as pro-Trump Republicans in Congress welcome the opportunity to overturn results at the federal level. After endorsing efforts to reform the Electoral Count Act, Luttig concludes, “As it stands today, Trump, or his anointed successor, and the Republicans are poised, in their word, to “steal” from Democrats the presidential election in 2024 that they falsely claim the Democrats stole from them in 2020. But there is a difference between the falsely claimed ‘stolen’ election of 2020 and what would be the stolen election of 2024. Unlike the Democrats’ theft claimed by Republicans, the Republicans’ theft would be in open defiance of the popular vote and thus the will of the American people: poetic, though tragic, irony for America’s democracy.” Given Luttig’s prominence as a giant in conservative legal circles, a written piece like this one packs a serious punch.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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