Judge J. Michael Luttig on January 6 and the Indictment of President Donald Trump
August 10, 2023
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[00:00:00] Jeffrey Rosen: Earlier this month, President Trump was indicted in federal court in Washington, DC for conspiring to overturn the 2020 presidential elections.
[00:00:11] Jeffrey Rosen: Hello, friends, I'm Jeffrey Rosen, president and CEO of the National Constitution Center. And welcome to, We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people.
[00:00:31] Jeffrey Rosen: I wrote a piece in the Wall Street Journal last week offering some historical perspective for the latest federal indictment of President Trump. We're posting that piece on the podcast resource page, and because I've already weighed in on the topic, we're departing from our usual We the People format this week for a conversation about the indictment with Judge J. Michael Luttig. We'll focus on the questions I raised in the piece, including, "What would the framers think of the indictment and the future of American democracy?" We'll return to our usual debate format and host a range of diverse perspectives on these important questions in the months ahead. Judge J. Michael Luttig is a member of the National Constitution Center's board of trustees . He's served on the US Court of Appeals for the Fourth Circuit. He previously served as counselor and senior advisor to The Boeing Company, as assistant attorney general at the US Department of Justice, counselor to the attorney general and assistant counsel to the president under Ronald Reagan.
[00:01:27] Jeffrey Rosen: Judge Luttig, it is wonderful to have you back on We the People.
[00:01:31] Judge J Michael Luttig: Good afternoon, Jeff, and thank you very much. It's my pleasure to be here.
[00:01:35] Jeffrey Rosen: Judge, this is a historic moment in American history. And for a recent piece in the Wall Street Journal, you told me, "I do not believe that there is anything that approaches this in American history." And you went on to say, "These are the gravest offenses against the United States that an incumbent president could commit, save possibly treason." Tell us more about why you reached that grave conclusion.
[00:02:00] Judge J Michael Luttig: Jeff, this is not only the most historic moment in political history in America, it is also destined to be the most infamous sequence of events in all of American history. The events that I'm referring to, of course, are January 6th and the former president's effort to overturn the 2020 presidential election together with now the trials of the former president that will proceed between now and 2025.
[00:02:45] Jeffrey Rosen: I'm trying to put this in historical context, and that's why I thought it would be worthwhile for us to have this one-on-one conversation. In that Wall Street Journal piece, I thought that an instructive historical analogy to the current moment was the controversy surrounding the election of 1800. And the story begins before the election when the Federalist Congress passed the Sedition Act. It continues with the contested election itself, where of course Jefferson and Burr tied and Hamilton persuaded Federalists and Congress to favor Jefferson over Burr. And then it continues with Jefferson's retaliation against his enemies once in office, including indicting Burr for treason. And the Burr treason trial does seem significant because Jefferson received reports that Burr was conspiring to insight the western states to secede. Chief Justice Marshall presides over the trial. He's dubious about the indictment legally and tells a jury ultimately that for treason you need evidence of avert acts of war and two witnesses, so the jury acquits. Jefferson thinks about bringing impeachment charges against Marshall, but is dissuaded from doing so.
[00:03:54] Jeffrey Rosen: And ultimately, although American institutions almost break during this remarkable period, they survive because all the major players accept the outcome. Burr and Adams accept the election results. Jefferson accepts the Burr verdict. And the Federalist Congress decides not to impeach Marshall. What do you think that historical precedent tells us and what can it teach us moving forward?
[00:04:16] Judge J Michael Luttig: Well, Jeff, you're in a far better position than I am to know and explain the historical, analog here. But I agree with your assessment in the Wall Street Journal, that the nearest analog is that that you just described. However, I would make this point. that analog is far distant from what we face today in every respect, beginning with the reason for the
indictment. This is a President of the United States of America who attempted to overturn a presidential election that he had lost knowing that he had lost it. And it entailed literally an attack on the United States Capitol in an effort to prevent the counting of the electoral votes for the presidency of the United States. There is not in history an analog to that nor, I believe, will there ever be another analog to what we face today. Add to that, that now for the first time in history a United States president is being criminally tried for those grave offenses.
[00:05:54] Judge J Michael Luttig: Those offenses are as grave of offenses as an incumbent President of the United States could commit, save possibly treason. But as I have said over the past month or two, while these are not charges of treason under the Constitution's definition of treason, these offenses partake of a betrayal of the United States, which is the essence of treason. Add to all of this, Jeff, perhaps the most relevant fact now in all of history, is that the former president provoked the Department of Justice to indict him and prosecute him, and try him for these offens es. How do we know that? Because the last thing that we in America ever, ever want, Jeff, is to prosecute a President of the United States of America. There is not a doubt in my mind that Donald Trump would have never been indicted and prosecuted, even for these grave offenses, had he not chosen to be indicted by provoking the Department of Justice over the past two and a half years since January 6th. Needless to say, never acknowledging even that the events of January 6th were wrong, and he has persisted in those claims to this very day. That's why I believe that this prosecution and this trial had to come about less the former president succeed in making a mockery of America, the Constitution of the United States and the Rule of Law.
[00:08:26] Jeffrey Rosen: Well let's talk about the arguments on the other side. Critics of the indictment argue that even if President Trump did attempt to overturn the election, his efforts weren't illegal as long as he legitimately believed that the election had been stolen. And Alan Dershowitz made that point in the Daily Mail. He said, "In order to establish the underlying charges, the government would have to prove beyond reasonable doubt that Trump himself actually knew and believed he'd lost the election fair and square. I doubt they can prove that." you know, is that defense likely to succeed before the jury?
[00:09:01] Judge J Michael Luttig: Well, that argument is just incorrect Jeff. It's mistaken. It's mistaken as a matter of law for these reasons. Jack Smith and the Department of Justice were well aware that the potential defense by the former president would be the First Amendment. They scrupulously wrote this
indictment around that First Amendment defense, so as to charge the former president solely with conduct. Conduct that has nothing whatsoever to do with the former president's speech. And indeed, it is a matter of historical significance that this indictment, in it's opening paragraph, explained just that. That the president is not being charged in any way at all for his speech. Now, by way of slight digression, Jeff, I believe, and of course I don't know and we may never know, but I believe that it’s for the First Amendment reasons that Jack Smith did not charge the former president with insurrection against the United States of America. And remember, the former president could've been charged under the insurrection statute if he only aided or supported that insurrection. He would be chargeable under that statute without having himself actually incited the insurrection.
[00:11:12] Judge J Michael Luttig: My point here being, Jack Smith and the Department of Justice could've charged the former president with insurrection. And it could've proven its case without any question, but it would've required the United States of America to address and convince a jury that the president's speech was irrelevant to that charge of insurrection.
[00:11:49] Jeffrey Rosen: How much of the substance of the conspiracy charges will turn on whether or not President Trump understood that he had lost the election? The indictment does quote President Trump in a couple of cases for appearing to acknowledge that he lost the election. When Vice President Pence refused to overturn the election, thanks in part to your advice Trump said, "You're too honest." during a national security briefing, when Trump agreed not to take action he said, "You're right, it's too late for us, we're gonna give that to the next guy." And there's another instance where the acting attorney general told Trump that the DOJ wouldn't change the outcome and Trump replied, "Just say the election was corrupt and leave the rest to me and the Republican congressmen." Will his acquittal or conviction turn on whether the jury believes that statements like that indicates that he understood he lost or not?
[00:12:42] Judge J Michael Luttig: Well the state of mind, if you will, of the former president is important and even centrally important. But there is an overwhelming amount of evidence, some of which you just described, to establish that the former president knew that he had lost the election or I believe in the words of the law, Jeff, "reasonably understood" that he had lost the election. The same arguments will be made with respect to the former president's reliance on counsel. And for the same reasons, and additional reasons that defense will not carry the day under the law.
[00:13:49] Jeffrey Rosen: Some have suggested that because of the former president's elusive state of mind, that the indictment is less strong than the federal indictment for obstruction of justice and therefore that it shouldn't have been brought. Jack Goldsmith of Harvard Law School wrote a piece recently in The New York Times suggesting that given the extraordinarily fraught moment for American institutions, the attempt by both sides to delegitimize the courts and the timing of the indictment, which Goldsmith describes as delayed by a year and now politically questionable. For all these reasons the department should have erred on the side of caution and not brought the indictment.
[00:14:32] Judge J Michael Luttig: Professor Goldsmith is a professor of law at Harvard University and a longtime friend of mine. Jack worked on the Fourth Circuit when I was, when I was there, was a colleague of mine and we've been friends ever since, and even worked together closely, over the past couple of years. And I did read Jack's essay in The New York Times this morning. I disagree literally every single analytical point that Jack makes. And in fact as you know I actually felt the need to explain that in a Tweet this morning before Jack's essay could "gain traction" in the mind of thinking Americans, okay. But without going into the details I critiqued his essay at the highest level of generality, as we say in this way. Ja ck essentially said that this is the prosecution of the former president is catastrophic for America, regardless whether he is ultimately convicted or acquitted. And my response this morning to that overarching point of his was that this indictment and this prosecution, and this trial not only was forced upon the United States of America-
[00:16:11] Jeffrey Rosen: Mm-hmm.
[00:16:12] Judge J Michael Luttig: ... By Donald Trump, but this prosecution and trial had to take place, it had to take place in order to vindicate the Constitution of the United States and the Rule of Law in America. And I think, now here's a thought that I've not had an opportunity to say in, in my other public appearances. This is not a question of the equal application of the law to all citizens in America. As you know, Jeff, the potential prosecution of a sitting or former President of the United States of America is vastly different, actually, than the application of the law, even that same law, to the ordinary citizen. From that I would say that this is an extraordinary prosecution to be sure. But, there is no president in the history of American and there will be no president in the future in America who would have even contemplated these grave offenses against the United States. And for that reason, this particular prosecution and trial of this particular President of the United States had to occur in order for he not be allowed to get away with making a mockery out of America, our Constitution and our Rule of Law.
[00:18:35] Jeffrey Rosen: And it's for that reason that you have concluded that it's more important for the Constitution that the former president be charged with these offenses than he be convicted for them. I'm reading from your commentary, "Whatever the consequences of either a conviction or an acquittal will prove to be."
[00:18:51] Judge J Michael Luttig: Absolutely, Jeff. And I'm as certain of that for America as I have been of anything that I've ever said or thought. This is a singular and infamous moment in American history. And because it is such in American history, it is a singular and infamous event and events in world history also. I now recall when I spoke to Anderson Cooper on CNN the night of the indictment. I said that the world will never again be inspired b y American democracy in the way that it has been inspired since our founding almost 250 years ago.
[00:20:02] Jeffrey Rosen: Grave words. And of course, the survival of our constitutional republic will turn on whether or not people of different perspectives can now unite to support the legitimacy of the Rule of Law. And I wanna talk with you about that now, and I- I thought it would be helpful for us to have this one-on-one conversation because the stakes are so high. Well, it's an open question about whether or not both sides will in fact accept the legitimacy of the proceedings. We're seeing worrying signs, of course, by the former president and his counsel to call the proceeding's legitimacy into question. But also by Republican candidates to question the legitimacy of the courts. And on the other side we're seeing some of that court bashing, of course, by Democrats in their criticisms of the US Supreme Court. And then the political affects of this indictment, which are hard for us to envision, may further call the legitimacy of the courts into question. Well think through with me please how the legitimacy of the courts can survive in the face of these grave challenges.
[00:21:14] Judge J Michael Luttig: Well, you've posed two questions there, at least and I'll save for a moment that the second about the federal judiciary. But to your first question, to no surprise and to everyone's expectation we should have expected the very reaction that we're getting now from the former president and his allies. And in p articular, to your point, the Republican candidates for the presidency none of whom is running against Donald Trump for the presidency in 2024, and all of whom are running for Donald Trump in 2024, up to now. Why should have we expected and not be unsurpri sed? Because this is what the former president has done since the day that he assumed office in 2016, he has viciously attacked and assaulted the institutions of American law and the institutions of American democracy, and our
institutions of law enforcement. And he's continued that fairly well since he left office in January of '21. Certainly, his Republican Party and his Republican allies have followed suit, they're taking his lead.
[00:23:02] Judge J Michael Luttig: So that when this indictment came down and frankly, when the indictment came down for the Mar-a-Lago classified documents, offenses, at that point, at the latest, although it had been planned for years, the entire Republican Party turned and began campaig ning for the 2024 presidency on a platform that the American government is corrupt and its institutions are corrupt from the FBI to the Department of Justice, to the Federal Judiciary. You know, as I think about it now, remember, Donald Trump started off his presidency by, I don't even know what the words are by his attacks on the Federal Judiciary, you know, when, with respect to his immigration initiatives and things like that. So, this is what he's done his whole life. But for present purposes, you know, all Americans know that this is exactly what he's done for seven plus years now. He's not about to change. That's tragic in itself, but it's all the more tragic because he has brought along the Republican Party you know with him.
[00:24:26] Judge J Michael Luttig: And so, the next year and a half, before the 2024 presidential election is going to be an embarrassing spectacle in and for the United States of America.
[00:24:42] Jeffrey Rosen: Yeah.
[00:24:42] Judge J Michael Luttig: Wherein for the first time in history an American president is on criminal trial for the grave offenses against the United States at the same time, the very same time that he is the presumptive Republican Party nominee running for the presidency in 2024. These are just the reasons why I know that there has never been anything like this in American history and that there never will be again, Jeff.
[00:25:32] Jeffrey Rosen: Jack Goldsmith makes points that he says are not what about-ism points, but says they're the context in which a large part of the country will thoroughly judge the legitimacy of the election fraud prosecution. And Goldsmith notes the backdrop of earlier unfairness in the Justice Department's investigations of Mr. Trump's connection to Russia the discredited steel dossier, the perceived unfairness in the department's treatment of Mr. Biden's son Hunter. And he says that this is all before the Trump forces exaggerate and inflame the context. Without, of course, getting into the substance of these points it is undoubtedly true that both sides are perceiving their antagonists as having politicized the law. And this makes this a remarkably
fraught time for American democracy. How... And this was my, not only my second question, but the urgent mission of the National Constitution Center, to increase awareness and understanding of the Constitution on a nonpartisan basis. How can the National Constitution Center help maintain nonpartisan respect for the legitimacy of the Rule of Law at a time when there's no more urgent necessity facing the country?
[00:26:45] Judge J Michael Luttig: I think, Jeff, that the National Constitution Center can actually use Professor Goldsmith's analysis as a counterpoint going forward for the center's explanation of the constitutional imperative and significance of this trial. The enter premise and presupposition of Professor Goldsmith's New York Times essay is that this momentous decision should have been made on the basis of the public's political reaction to it. That is the fundamental flaw in his thinking and in the political thinking of the politicians. Thus, from your perspective at the National Constitution Center, the question is not at all what the public's political reaction to these indictments is or should have been, or should be, but rather the only question from our standpoint of those, of us concerned only with the Constitution and the Rule of Law, whether this president should have been charged and tried for these crimes. If the decision were made on any other basis, it would contradi ct the Founding Fathers views in anticipation of exactly this trial by this president today. And I've learned that from you Jeff. There's no one more knowledgeable or more eloquent about matters of the Founding Fathers and their thinking about the Constitution than you.
[00:29:13] Jeffrey Rosen: That's certainly too generous, but thank you so much. And thank you for your incredible service, calling attention to these issues around the country and also on the NCC board.
[00:29:22] Jeffrey Rosen: But back to Goldsmith's essay. What about his charge of what about-ism?
[00:29:28] Judge J Michael Luttig: Jeff, let me circle back around to a, another part of your good question. And the what about-ism, particularly with respect to Hunter Biden. As you know I had the great privilege of having an interview by the inestimable Judy Woodruff yesterday for several hours and she asked me this question about the what about-ism, specifically with respect to Hunter Biden. And this is what I said, "The matters of Hunter Biden and Donald Trump are non sequiturs in the sense that there is no comparison whatsoever between the two in any respect at all." To begin with, Donald Trump was a President of the United States of America and he attempted to overturn a presidential election. That's as grave an offense as can be committed by an
incumbent president, save treason, as I suggested. Very, very importantly, from the day that he did that two and a half years ago, he has persisted in his claim that he won that election and it was stolen from him by we don't know who, but clearly by America and America's government, and the Democrats, okay.
[00:31:25] Judge J Michael Luttig: And for two and a half years those persistent claims by a former president of the United States of America have corrupted American democracy. They have corrupted American's elections. They have corrupted the Rule of Law in America. So today, millions upon millions of Americans no longer believe in American democracy, nor do they any longer believe in the Rule of Law. But, Jeff, many of those same people no longer believe in the Constitution of the United States or even America as it has been for 230 years.
[00:32:26] Judge J Michael Luttig: That brings me to another response that, to a question that Judy asked me yesterday. This is fundamental stuff, Jeff. The question arose from a recent piece about John Eastman. It was titled sensationally tying something to the effect that John Eastman now admits that they were trying to overturn the United States governor, government. So, I of course looked at that quickly and it was not that per se at all, but it was this. And this is fundamental, Jeff. What John was saying in whatever context, and I don't remember it, and it doesn't matter, was, he was quoting from the Declaration of Independence. Saying that the Declaration, that, "We the people," saying that, you know, that there comes a point at which abuse of power is intolerable. And of course, you know exactly the words.
[00:33:50] Judge J Michael Luttig: And now we'll cut away from that and from this article, and just you and me talk. That of course was we Americans declaring our independence from the king and undertaking a revolution in order to establish our independence and create our own United States of America. At bottom, but fundamentally at bottom of the effort to overturn the 2020 presidential election was the idea and execution of a revolution against the United States government. And, eh, this'll sound paradoxical, you will understand it. The most thoughtful people on the radical right, but they are thoughtful, intelligent people, Jeff, believe that that's what was necessary on January 6th. That the abuse of power by the United States government had come to such a point that it was intolerable, requiring a "revolution" to overturn the government of the United States. And I spelled that out, unfortunately not quite as eloquently as I just did to Judy yesterday. But that is what we are talking about.
[00:36:02] Jeffrey Rosen: That's remarkable, Judge. And of course John Eastman was your former law clerk. You've assailed him for advancing this farflung legal theory, that as you've just suggested, is tantamount to a declaration of revolution. And it really does call to mind the periods around the crucial election of 1860 when southern secessionists, invoking the same nullification arguments that Thomas Jefferson had originally made to oppose the Sedition Acts, said that they could succeed from the union invoking the original right of revolution. Are we in a similarly dangerous existential moment for American democracy?
[00:36:45] Judge J Michael Luttig: You're exactly right in that analogy, Jeff. And yes, we are at that same moment today. Now you'll remember that in my testimony before Congress I laced throughout illusions to the American Civil War. I had been reading and studying about the Civil War for months and months for the purpose of testifying before Congress on that. And I, you know me [laughs] and I always tell you, I really don't know any of this stuff, Jeff. I'm only smart enough to go learn it from the people who do know it, and that's what I did in that instance. And so, I read the historians and the scholars about the Civil War. And especially those historians and scholars of the Civil War who were then, a year and a half ago, saying that we were on the verge of civil war. And I came to the same conclusion. Even so I was not prepared to tell the nation that we were in fact on the verg e of civil war and I would never have said anything like that. But what I did say is that as Americans, we do not want our legacy to be even a figurative civil war.
[00:38:41] Jeffrey Rosen: You have been a prophet on this question. You've been crying in the wilderness, like Jeremiah, about the grave existential dangers to American democracy, and you did indeed raise this analogy of civil war in your testimony. Let's now talk about moving forward. In the 19th century, civil war was averted after the election of 1800 because the major institutional players accepted the legitimacy of the institutions. But it, but the war came, as Lincoln said, when the various sides would not accept the legitimacy of those institutions. It seems an open question about what will happen today. What do you think, and what can be done to avert disunion?
[00:39:33] Judge J Michael Luttig: Well, I think I have, I agonized over this, Jeff, for two years now. And sitting here even today, I don't have an answer, an operational, practical answer, if you will. But I do know, I do know the answer in, you know in concept. And this is what I said to Congress in my testimony, America has to be led out of this and away from this abyss by someone or some number of people. Under the Constitution itself, literally, that person or those people are supposed to be our elected representatives in both the Congress and
the White House. This is not a role constitutionally committed or even contemplated for the Supreme Court of the United States. That’s just the opposite. But it is the responsibility of the Congress of the United States and the President of the United States of America to lead America out of this wilderness and away from the civil war, figuratively or literally that appears on the horizon.
[00:41:26] Judge J Michael Luttig: I have said, and I said in my testimony, the problem today is that there is no one person, but neither is there any collection of persons, who have the moral authority, the courage and the will to stand before the American people and say America is in peril and we must not continue down the path that we are headed today, lest this union will be dissolved. But Judy asked me this same question yesterday, Jeff, and I said, there is no such person today.
[00:42:34] Jeffrey Rosen: That is such an urgently important warning about the importance of leadership at such times. Alexander Hamilton did warn of exactly this moment. He said in 1790, "The only path to a subversion of the Republican system of government is by flattering the prejudices of the people and exciting their jealousies and apprehensions to throw affairs into confusion and bring on civil commotion." And then he warned of demagogues. He said, "When a man unprincipled in private life, desperate in his fortunes, bold in his temper is seen to mount the hobbyhorse of popularity, he may ride the storm and direct the whirlwind." Hamilton himself exerted the kind of leadership you describe after the election of 1800, when fearing Burr, a demagogue, he favored his rival, Jefferson, who he thought was less of a threat to the republic. You suggest that there's no Hamilton and indeed no Lincoln today to lead us. You also suggested that it could be groups of people, and indeed, it was the Senate led by Cicero that rejected the demagoguery of Catiline and saved the Roman Republic.
[00:43:43] Jeffrey Rosen: Today, our political leaders in the Senate seem unable to exercise that kind of leadership. Well then, what is to be done?
[00:43:53] Judge J Michael Luttig: There is no Abraham Lincoln in America today. There is no Alexander Hamilton in America today. Every leader in America today is closer to being the opposite of those two than they are to being those two. In fact, you know, with your quoted reference to demagogues, it reminded that me that in speeches throughout this past year, you know, I've quoted Lincoln and said that the first thing we Americans must do is take back our country from the demagogues. And then once having done that we must decide who we are as Americans and what we want our America to be. But the first matter of urgency is to disenthrall ourselves from the demagogues and then
decide anew as our forefathers and foremothers did 250 years ago what we want America to be.
[00:45:20] Jeffrey Rosen: Disenthrall is the perfect word. And it's so instructive to learn from history, and you're right to invoke Lincoln. And of course, Lincoln, in one of his earliest speeches, warned of demagogues, in particular, the idea of what he called the man who was lead by distinction, which would be his paramount object. “[A]lthough, he would [as] willingly, perhaps more so, acquire it by doing good as harm; yet, that opportunity being past, [and] nothing left to be done in the way of building up, he would set boldly to the task of pulling down.” And in that address to the Springfield Lyceum, Lincoln said that the solution was adherence to the Rule of Law that had to be taught every prattling child as a kind of civil religion, as an opposition to mob rule.
[00:46:11] Jeffrey Rosen: And Judge, what one thing that the Constitution Center can do, which we're doing now, is to learn from history. And by learning from Hamilton and Lincoln, and reminding ourselves that the constitutional structures that are meant to preserve us from demagogues, we can try to inspire our fellow citizens to adhere to the Rule of Law. And that's why I think this conversation is so important. That's why we're gonna continue to have these conversations. What more can we learn from history, as we wrap up this meaningful conversation, that may guide us in the precarious months ahead?
[00:46:47] Judge J Michael Luttig: Jeff, the National Constitution Center is the only person, organization or institution in the United States today that can possibly lead America out of the w ilderness and out of the way of the figurative or literal civil war that appears on the horizon.
[00:47:21] Jeffrey Rosen: Judge Michael Luttig, for inspiring Americans to adhere to the ideals of the US Constitution, thank you so much. And look forward to reconvening this conversation with Americans of all perspectives in the crucially important months ahead. Judge, thank you.
[00:47:43] Judge J Michael Luttig: Thank you, Jeff.
[00:47:47] Jeffrey Rosen: Today's episode was produced by Lana Urich, Bill Pollack and Samson Mostashari. Research was provided by Yara Daresi, Lana Ulrich, Samson Mostashari and Connor Rust. Please recommend the show to friends, colleagues or anyone anywhere who's eager for a weekly dose of constitutional illumination and debate. Sign up for the newsletter at constitutioncenter.org/connect. And always remember the National Constitution
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[00:48:34] Jeffrey Rosen: On behalf of the National Constitution Center, I'm Jeffrey Rosen.