MLRC Zoom Preview: Judge Michael Luttig – Trump’s Shenanigans in the 2020 Election Were Just a Dry Run for 2024

We will be honored, on July 27, to have as a participant on one of our Zoom calls J. Michael Luttig, former Judge on the 4^th Circuit Court of Appeals. Judge Luttig doesn’t neatly fit the profile of one of our usual guests. After law school, he worked in the White House Counsel’s office in the Reagan Administration. He then clerked for Antonin Scalia on the D.C. Circuit, followed by a clerkship for Chief Justice Burger on the Supreme Court. He then worked in the DOJ in the Bush 41 Administration, where among his noteworthy roles was preparing Justices Clarence Thomas and David Souter for their Senate confirmation hearings.

In 1991 he was appointed by President George H.W. Bush to the 4^th Circuit, where he served for 15 years, and was considered to be on the short list for the Supreme Court bench. Among his opinions was one in the notorious Hit Man case, where he penned an impassioned passage excoriating the mainstream media companies for submitting an amicus brief supporting the publisher of that How To book.

“That the national media organizations would feel obliged to vigorously defend Paladin’s assertion of a constitutional right to intentionally and knowingly assist murderers with technical information which Paladin admits it intended and knew would be used immediately in the commission of murder and other crimes against society is, to say the least, breathtaking.” Rice v. Paladin Enterprises, Inc, 128 F.3d 233 (4^th Cir. 1997)

His piece not only criticized and belittled Trump and his enablers’ attempts at overturning the election results, but even more dauntingly laid out the facts supporting his view that what occurred in 2020 was merely a test drive for what Trump and his team were already preparing for 2024 – an election which would not be decided by the vote of the people.

But with that background, Judge Luttig’s words today on the imperiled state of our democracy are particularly poignant. A few months ago he wrote an opinion piece on cnn.com which not only criticized and belittled Trump and his enablers’ attempts at overturning the election results, but even more dauntingly laid out the facts supporting his view that what occurred in 2020 was merely a test drive for what Trump and his team were already preparing for 2024 – an election which would not be decided by the vote of the people. On top of that, last month he testified before the January 6 Committee in Congress as to the constitutionally invalid attempts by the Trump forces to steal the last election and his views on the dangers those strategies hold for our future.

While these are not, narrowly speaking, First Amendment or media law concerns, they are vitally important. They threaten our democracy, which, of course, undergirds our rights of free expression. Tampering with election results to take power away from the will of the people would destroy the democratic traditions and values we have enjoyed for over two centuries. So we should pay heed to the well-crafted and factually supported words of Judge Luttig.

Judge Luttig’s article on cnn.com is aptly – and frighteningly – entitled “The Republican blueprint to steal the 2024 election.” He lays out his thesis that 2020 was “never about a stolen election or even about voting fraud”, but instead a sparring bout to steal the 2024 Presidency:

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.

That objective is not somehow to rescind the 2020 election, as they would have us believe. That’s constitutionally impossible. 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 last presidential election was a dry run for the next.

The article then painstakingly explains the Trumpian strategy from long before Election Day 2020 “to overturn the presidential election by exploiting the Electors and Elections Clauses of the Constitution, the Electoral College, the Electoral Count Act of 1877, and the 12th Amendment, if Trump lost the popular and Electoral College vote.”

“That objective is not somehow to rescind the 2020 election, as they would have us believe. That’s constitutionally impossible. 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.”

He explains how “the cornerstone of the plan was to have the Supreme Court embrace the little known ‘independent state legislature’ doctrine, which, in turn, would pave the way for exploitation of the Electoral College process and the Electoral Count Act, and finally for Vice President Mike Pence to reject enough swing state electoral votes to overturn the election using Pence’s ceremonial power under the 12th Amendment and award the presidency to Donald Trump.”

However, the Supreme Court did not quite endorse Trump’s independent state legislature doctrine, partially because in some cases they deadlocked 4-4 (before Amy Coney Barrett’s confirmation), partially because of the procedural posture of some of the cases.

As Judge Luttig put it, “Thwarted by the Supreme Court’s indecision on that doctrine, Trump and the Republicans turned their efforts to the second stage of their plan, exploitation of the Electoral College and the Electoral Count Act.”

Yet that too failed when “the Republicans were unable to secure a single legitimate, alternative slate of electors from any state because the various state officials refused to officially certify the Trump-urged slates.”

Judge Luttig went on:

Thwarted by the Supreme Court in the first stage, foiled by their inability to come up with alternative state electoral slates in the second stage, and with time running out, Trump and the Republicans began executing the final option in their plan, which was to scare up illegitimate alternative electoral slates in various swing states to be transmitted to Congress. Whereupon, on January 6, Vice President Pence would count only the votes of the illegitimate electors from the swing states, and not the votes of the legitimate, certified electors that were cast for Biden, and declare Donald Trump’s reelection as President of the United States.

The entire house of cards collapsed at noon on January 6, when Pence refused to go along with the ill-conceived plan, correctly concluding that under the 12th Amendment he had no power to reject the votes that had been cast by the duly certified electors or to delay the count to give Republicans even more time to whip up alternative electoral slates.

To the contrary, as we all know, Pence declared Joe Biden the 46th President early in the morning of January 7, roughly 14 hours after rioters stormed the US Capitol, disrupting and preventing Congress from counting the Electoral College votes for president until late that night, after the statutorily designated day for counting those votes.

But the scary part of the Trump strategy had just begun. As Judge Luttig warns: “Trump and his allies and supporters in Congress and the states began readying their failed 2020 plan to overturn the 2024 presidential election later that very same day and they have been unabashedly readying that plan ever since, in plain view to the American public. Today, they are already a long way toward recapturing the White House in 2024, whether Trump or another Republican candidate wins the election or not.”

“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 – 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.”

He shows that Trump and Republicans are preparing to return to the Supreme Court, “where this time they will likely win the independent state legislature doctrine, now that Amy Coney Barrett is on the Court and ready to vote.” He notes that “Barrett has not addressed the issue, but that it turns on an originalist interpretation of the Constitution, and Barrett is firmly aligned on that method of constitutional interpretation with Thomas, Alito, and Gorsuch, all three of whom have written that they believe the doctrine is correct.” Justice Kavanaugh is a likely ally.

Equally daunting, Judge Luttig points out that the Republicans

are also in the throes of electing Trump-endorsed candidates to state legislative offices in key swing states, installing into office their favored state election officials who deny that Biden won the 2020 election, such as secretaries of state, electing sympathetic state court judges onto the state benches and grooming their preferred potential electors for ultimate selection by the party, all so they will be positioned to generate and transmit alternative electoral slates to Congress, if need be.

Finally, they are furiously politicking to elect Trump supporters to the Senate and House, so they can overturn the election in Congress, as a last resort.

Forewarned is to be forearmed.

The frightening conclusion is that “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.”

As he poignantly writes in his last paragraph, “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.”

While this cnn.com account is possibly the most detailed description of Trump and his enablers’ notorious strategy, Judge Luttig wasn’t done. Just last month he testified before the House Select Committee investigating the January 6 attack on the Capitol. Though his presentation – as I would expect his Zoom call with us – was made in an understated fashion, his substance was a direct warning that our democracy, as he put it, is on “a knife’s edge.” Judge Luttig was apparently asked to testify not because of the power of the cnn.com article, but because he had advised Vice President Pence that it would be illegal to follow Trump’s directions to interfere with the ordinary ratification of the electoral vote count – for the purpose, of course, of having the election overturned.

Judge Luttig was unsparing in his criticism of the Trump enablers who had given him “frivolous and beguiling” legal theories. He argued that their totally unsupported advice in aid of attempting to overturn the election was “the product of the most reckless, insidious and calamitous failures in both legal and political judgment in American history.”

In his testimony, Judge Luttig went further than just demolishing Trump’s so-called legal theory. He went on to warn the Committee – and the country – that January 6 was “a war irresponsibly instigated by the former president and his political allies, and his supporters,” one that “only the party that instigated…can bring to an end.” He didn’t mince words in saying that the insurrection was “conceived and instigated from our nation’s capital” and “cynically prosecuted by them to fever pitch, now to the point where they have recklessly put America herself at stake.”

After underscoring the polarization and divisiveness in the country, leading to disagreement on our most basic values and goals, as well as a lack of civilized discourse, he concluded that this was a foreseeable culmination of the war for America. In turn, Trump had worked to follow a strategy to cling to power “that the American people had decided to confer on his successor.” Luttig underscored that Trump’s unsupported insistence that the election was stolen “laid waste to Americans’ confidence” in the election process. Looking forward, he argued that Trump’s premature insistence that he won’t allow the 2024 election to befall the same fate shows that he is planning to subvert that election too – “an affront without precedent” to our democracy.

At bottom, he testified that while we can withstand offensives from the outside, it is far more difficult to deflect attacks on our democracy from within. He warned that unless we learn the lessons from Jan. 6, “we will consign ourselves to another Jan. 6 in the not-too-distant future, and another after that, and another after that.”

Judge Luttig was unsparing in his criticism of the Trump enablers who had given him “frivolous and beguiling” legal theories. He argued that their totally unsupported advice in aid of attempting to overturn the election was “the product of the most reckless, insidious and calamitous failures in both legal and political judgment in American history.” He testified that the RNC’s claims that the Jan 6 attack was either “legitimate political discourse” or, even more absurdly, a visitor’s tour of the Capitol that went awry, were cynical and embarrassing rationalizations. And in the end, he argued, they were primarily responsible for rescuing the situation: “The logic for reconciliation of these wars being waged in America today needs to include a critical mass of leaders from the former president’s party and that those leaders need to go first.”

He compared the current “crossroads” we are in to the Civil War, and pleaded that no American should ignore this crisis “until all of America comes to grips with what befell our country that day, and what we want from our democracy from this day forward.” Unabashedly pessimistic, he testified that “In the moral, catatonic stupor America finds itself in today, it is only disagreements we seek, and the more virulent that disagreement, the better.” He had some proposals as to how to overcome these threats to our democracy, but I will leave that to our discussion on the 27^th.

At bottom, he testified that while we can withstand offensives from the outside, it is far more difficult to deflect attacks on our democracy from within. He warned that unless we learn the lessons from Jan. 6, “we will consign ourselves to another Jan. 6 in the not-too-distant future, and another after that, and another after that.”

While the threat Judge Luttig fears is not within the immediate ambit of the MLRC’s mission, it seems plain that the attack he describes on our fair electoral system – both the failed, but outrageous and ultimately violent attempts, amazingly still ongoing, to reverse the results in 2020, and the work currently being done to set the groundwork for a skewed result in 2024 – is vital to all of us. The First Amendment is part of the Constitution and our rights of free expression are inherent in our traditional democratic values. If you read Judge Luttig’s words, it is plain that both the Constitution and our democracy are at risk when an extreme slice of one party tries to tamper with the most basic element of our democracy, fair and free elections.

I hope you join us on Zoom on July 27.

The opinions expressed in this column are those of the author and not the MLRC. We welcome responses at gfreeman@medialaw.org; they may be printed in next month’s MediaLawLetter.