Trump is a 'clear and present danger to American democracy,' former judge tells Jan. 6 panel

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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 baseless in every way, accused former President Donald Trump of trying to “steal America’s democracy” and said Trump 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 U.S. 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 H.W. 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.

J. Michael Luttig, a retired federal judge, testifies at the Capitol.
J. Michael Luttig, a retired federal judge, testifies at Thursday's hearing of the House select committee investigating the Jan. 6, 2021, attack on the Capitol. (Susan Walsh/AP)

Sen. Ted Cruz, R-Texas, clerked for Luttig and once described him as “like a father to me.” Another lawyer who clerked for Luttig was Eastman, who went on to clerk for Supreme Court Justice Clarence Thomas and became the dean of Chapman University Law School in Orange, Calif.

After the 2020 election, Eastman became a legal adviser to Trump and was the chief advocate of 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 Trump could remain in power.

Luttig, who gave Pence legal advice at the time, was one of only two people to testify before the committee on Thursday. The roughly three-hour hearing delved in great detail into the legal arguments Eastman made. The other witness was Greg Jacobs, Pence’s top White House lawyer during the 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.

He 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’s testimony portrayed Eastman as desperate to come up with some rationalization — anything — to justify a naked grab for power by Trump.

Jacobs made clear that although Eastman knew his legal arguments had no merit, he continued to insist on them on the night of Jan. 6, even after rioters had been cleared from the Capitol.

A picture of of John Eastman is projected above the House select committee.
An image of lawyer John Eastman is projected above the House select committee at Thursday's hearing. (Mandel Ngan/AFP via Getty Images)

Luttig’s written statement to the committee cast the situation in unflinching 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,” he 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.

His written testimony, however, was blistering, and included this assessment of the legal advice that Eastman 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 obeyed 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,” he wrote.

Luttig also addressed, indirectly, Trump’s taunts of Pence as too weak to do what was required.

Former U.S. Vice President Mike Pence.
Former U.S. Vice President Mike Pence speaks at a campaign event for Gov. Brian Kemp of Georgia on May 23 in Kennesaw, Ga. (Joe Raedle/Getty Images)

“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,” he 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 unless 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 the United States.

“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,” he wrote. “This number needs to include a critical mass of leaders from the former president’s political party."

Luttig called on these Republican leaders, saying they "need to go first,” laying aside their partisan grievances and prioritizing the preservation of democracy.


The rioters got within two doors of Vice President Mike Pence's office. See how in this 3D explainer from Yahoo Immersive.