Democracy in the United States is “in grave peril” because of the path the Republican Party has embraced in the Trump era, warned a prominent conservative movement figure and longtime federal judge on Wednesday.
“American democracy simply cannot function without two equally healthy and equally strong political parties,” J. Michael Luttig said on CNN on Wednesday.
“In my view, there is no Republican Party,” the retired judge added.
Luttig played a key role in informing then-Vice President Mike Pence’s decision not to participate in then-President Donald Trump’s efforts to overturn the 2020 presidential election, which culminated in the Jan. 6, 2021, attack on the U.S. Capitol.
When asked by CNN anchor Poppy Harlow if former President Donald Trump represented a “clear and present danger to American democracy,” Luttig said the 2024 Republican primary frontrunner was threatening democracy “more so today than he was last summer” when the former judge testified in front of the House Jan. 6 committee and sharply criticized Trump and his allies.
“In the two and a half years since Jan. 6, these false claims [of election fraud] have corrupted American democracy, they’ve corrupted American elections and they’ve corrupted the perception of the American people of America itself,” Luttig said.
Luttig also dissected the argument Trump’s legal team is making in the Jan. 6 case Trump was arrested and indicted for last week. Trump, who faces four federal charges connected to his efforts to stay in power, has argued he was simply using his First Amendment right to question the election and encourage thousands of his supporters to march on the Capitol.
But special counsel Jack Smith has not charged Trump for his speech, but for his conduct in the days between Election Day in November 2020 and Jan. 6, 2021, Luttig explained.
“The indictment makes crystal clear that the former president was not being charged in any way whatsoever with his speech,” Luttig said. “That defense will not carry the day for the former president.”
Neither will the claim that Trump truly believed he had won the election, the judge argued, agreeing with Smith’s case that Trump knew full well he lost and was repeatedly warned by administration, intelligence and campaign officials that there was no widespread fraud.
“The evidence is overwhelming that the former President knew full well that he had lost the election,” Luttig said.
Pence went to Luttig for advice less than 48 hours before Jan. 6 and adopted his argument that the vice president did not have the authority to overrule the Electoral College results. On the other side was John Eastman, a former clerk of Luttig’s who the retired judge described as a “brilliant constitutional scholar” until he helped mastermind Trump’s scheme to keep Biden from taking office.
“I said to the vice president that it was the highest honor of my life that he had asked me [for advice] and I will be grateful to him for the remainder of my life,” Luttig told Politico last year.
Earlier in his career, he spent years working to fill the judiciary with conservatives, including helping shepherd Supreme Court nominees David Souter and Clarence Thomas at their Senate confirmation hearings. After serving in the Reagan and Bush Sr. administrations and clerking for Supreme Court Chief Justice Warren Burger and Justice Antonin Scalia, Luttig was nominated to the U.S. Court of Appeals for the Fourth Circuit in 1991 as the youngest judge on a federal appeals court at the time.
“Luttig was among the leading feeder judges on the U.S. Court of Appeals with more than 40 of his law clerks going on to clerk with conservative justices on the Supreme Court,” according to the Ronald Reagan presidential library. He was on President George W. Bush’s shortlist to fill Supreme Court seats in 2005.
But since the Jan. 6 attack and the scheme to keep Trump in the White House, Luttig has emerged as a major critic of the party he served loyally for decades. Last year, he co-authored a 72 page report titled “Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election.”
And on Wednesday, Luttig appeared on CNN with former Homeland Security Secretary Jeh Johnson, a Democrat and Obama administration alumnus, to promote their newly launched Task Force for American Democracy, an American Bar Association initiative co-chaired by the two, ideologically opposed men.
“At our core, lawyers have a special responsibility to ensure an enduring democracy that protects the rule of law,” ABA President Mary Smith said in a statement. “We do not have the luxury to stay on the sidelines to see what happens when the foundations of our democracy are under attack. We have seen enough. We have a duty to act.”
In his testimony to the House Jan. 6 committee last year, the conservative giant warned Trump and his allies “would attempt to overturn the 2024 election in the same way that they attempted to overturn the 2020 election, but succeed in 2024 where they failed in 2020.”
“I don't speak those words lightly,” Luttig testified. I would have never spoken those words ever in my life, except that's what the former president and his allies are telling us.”