The Bulwark Podcast - Judge Michael Luttig: A Betrayal of America

Episode Date: March 28, 2023

Trump's incitement of Jan 6 and his call to terminate the constitution were treason-like. And the Republicans who won't renounce him have betrayed the sacred trust Americans have conferred on them. Judge Luttig joins Charlie Sykes on today's podcast. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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reading about anything that I'd been doing, he would know that I was never Trump, but there he was. And for the next 17 minutes, we had a, I would say, a rather candid and tough exchange of views. In many ways, that was a turning point for me, I think. The good news is that back then, it looked like perhaps Wisconsin was going to be a speed bump for Donald Trump, and he lost Wisconsin by double digits to, of all people, Ted Cruz, who is not the ideal fit for Wisconsin politics. But people in Wisconsin, let's put it this way, people in Wisconsin were not buying what Donald Trump was selling around the country. And they were willing to vote for anyone that they thought could stop him. And so I'm kind of having flashbacks because in 2023, I'm getting a lot of 2015, 2016 vibes.

We have a very, very special guest today. Many of you will remember him from the January 6th hearing. Judge Michael Ludig is a former judge on the U.S. Court of Appeals for the Fourth Circuit, where he served for a decade and a half. And he was frequently mentioned as a potential Supreme Court nominee during the Bush years. And he sent more than 40 clerks into Supreme Court clerkships, and they were known as litigators. Which, by the way, is terrible, Judge Ludig. That's a terrible phrase. I agree, Charlie. And one of those clerks was Ted Cruz. So we'll come back to that in a moment. Thanks for joining me, Judge. I appreciate it very much. It's my pleasure, Charlie, to be a retired judge. And you had a long-term

relationship with clerking for the late Justice Antonin Scalia at the Federal Appeals Court. And the Washington Post described your relationship as more than mentor-mentee, more than a friendship, because there was a time when you and Judge Scalia were just integral parts of this conservative judicial movement. And I know you've given a lot of thought to this. What does it mean to be a a time when you and Judge Scalia were just integral parts of this conservative judicial movement. And I know you've given a lot of thought to this. What does it mean to be a judicial conservative in this particular age right now? Well, first off, Charlie, you know, you can't believe anything you read in the newspapers. Originally, you know, Justice Scalia was my boss and mentor. And then over time, we became fast friends. important, aligned as to what law is and what it is not, what law ought to be and what it is not,

and aligned, most importantly at that time in our lives, on the proper role of judges in interpreting the Constitution and laws of the United States. To your ultimate question there, I think that it was much different then than it is today to be a legal and judicial conservative. I attribute it to the politicization of the law and the courts that has been proceeding apace for the past 25 years, but that was accelerated in the past decade. And so, as you know, I've been trying to resist that politicization of the law and the courts for many years now, largely unsuccessfully. But this issue of the rule of law has come to a head now in America, beginning on January 6, 2021, if not before, because January 6 and the events of that fateful day were an unprecedented attack, if you will,

on the Constitution and the rule of law, as well as an unprecedented attack on American democracy. Well, let's go back to that. In fact, let's go back a couple of days earlier, because this is really an extraordinary moment. And you can look back and think, well, that night was a turning point. Let's go back to January 4th, 2021, two days before the insurrection. Again, relying on what the newspapers reported, you can correct this. You were eating dinner when a longtime friend, an attorney who was serving as outside counsel to Mike Pence, the vice president, called you, telling you that another attorney was telling Pence that he had the authority to block certification of the election results. And of

course, that other attorney who was giving him that terrible advice was John Eastman, who you also know because he clerked for you. And your wife turned to you and said, oh my God, you have to stop this. So you're at dinner, and among the many good life decisions you have made, you are not a regular on Twitter, but you felt you needed to say something. Can you tell me what happened then? How that series of tweets went out that arguably had one of the most consequential impacts on American political history over the last several years. So January 4th, you're at dinner. You get this call.

You have to do something. What happened? Tell me the story. Yeah, the best decision I ever made in my life, Charlie, was marrying my wife, Elizabeth. And of course, she, 40 plus years later, was and is today an integral part of this story. Elizabeth and I were having dinner in Colorado at the time, two hours behind Washington. And Richard Cullen, who was a longtime and dear friend, called and really just asked me what I knew about John Eastman. And I told him, you know, what I knew about John and thought about John. And then I asked,

well, why are you calling? And he said, well, you don't know, do you? And I said, no, I don't. And he said, you know, John is advising the former president and the former vice president that Vice President Pence can essentially overturn the 2020 presidential election two days thence on January 6th. Upon hearing this, I said to Richard, well, you can tell the vice president that he has no such power under the Constitution and laws of the United States, and that it would be catastrophic for America worried to attempt to overturn the election on January 6th. Upon hearing that, Richard said, I've already told the vice president that that's your view. And I said, well, okay, there's nothing else I can do, Richard. But if there eventually turns out to be anything that you think I can do, I'm more than willing to help the vice president.

And we hung up. And that's when my wife, you know, overhearing the conversation, literally said something to the effect of, oh, my God, you have to stop this. You have to stop this. This will be devastating to America. And I said, well, hon, I agree that it would be devastating, but there's nothing I can do. I don't have any role. I don't play any part here. There's literally nothing I can do. So we spent the rest of the night with her pleading with me to do something. And my responding to her that there's just nothing I could possibly do. We went to bed with those pleas to each other that night to wake up to January 5th. And then you decided you were going to put out something on Twitter. Yes, not in that way, Charlie. As you know, I got a call from Richard Cullen again on the morning of January 5th, very early in Mountain Standard time.

And Richard said, Judge, we have to do something immediately. And this is real. And the short story of that series of conversation is this. I said, well, what do you think that we need to do? And he said, you have to get your voice out across the country. I understood what he meant, but I had no earthly idea how I could do that. I was retired from the Boeing company at that point. It was the beginning of COVID. My wife and I were at a second home of ours. I said to Richard, I don't have any idea how to do this. I don't even have a box of stationery. And by the way, I told him, no one in the world cares what I have to say

about this at this particular moment. Well, he insisted. Which turned out not to be true. After several calls, five minutes and 10 minutes apart, I said to him, well, I guess I could tweet something, but I don't know how to tweet. And he said, perfect. You must do this immediately. And I said, well, Richard, I understand the gravity of the moment, but I don't know how to tweet. And he said, judge, this is perfect. You must do it immediately. So in short, that's what I did. During those several phone calls, intermittent phone calls, I had drafted on my iPhone what I would say if I could figure out how to say it. And so once he told me we must do this,

and he assured me that this was okay, because I was skeptical, I went downstairs to my office and figured out how to tweet, and tweeted what many commentators and news reports have called the tweet herd around the world. A seven-tweet thread that clearly was at least heard in the Vice President's office. Have you ever spoken to Mike Pence about this issue? The vice president actually called me in the morning of January 7th, hours after he had certified the election of President Biden. It's kind of an interesting quick story. My wife and I were down at the UPS store. She was mailing something, and I got a call from spam. And I never answer spam, but I was just standing in the lobby, and so I answered it. Well, when I do answer, I never say anything because it usually triggers a recording, so I didn't.

Well, after a long pause, a voice came on and said, is this Judge Ludig? And I said, yes, it is. And the voice said, please hold for the Vice President of the United States. And I was stunned. This was, of course, unexpected. And I, you know, hurried my way out to the car so I could take the call from the Vice President in private. And what did he say? It was, under those circumstances, a long call from my standpoint. It was as gracious a call as one could ever receive from anyone, let alone the Vice President of the United States, who the day before had been in the position and done what he did. Was he looking for validation? Was he just reaching out to reassure that he absolutely had done the right thing, the only thing that he could have possibly done under the Constitution? Why do you think he called you?

I've been asked that for two years now. And my answer to everyone else, as it is to you today, is that I don't know. The vice president has to speak for himself on that. I understand he's written a book recently. I've not read it, but I understand he spoke to this moment. Needless to say, I was honored for whatever reasons he called me. Now, it's a factual matter only, and I'm not suggesting that these were the reasons that the vice president called me. I don't know those reasons. You know, at that point, I was a widely recognized conservative and conservative judicial voice

in the country. And that's, of course, why it was so credible. I think my colleague Bill Kristol told the Washington Post that the reason your tweet was so influential was you couldn't be written off as, you know, just a liberal Democrat or even a never Trumper because you had that kind of gravitas. So you're talking about the factual situation. Let's just I know you probably thought a great deal about the counterfactual that if that morning we all woke up and Mike Pence had followed John Eastman's advice, what would it have meant for the country, for the Constitution, for the rule of law, if in fact Mike Pence would have stood up and refused to count those electoral votes? Well, I spent five months essentially in isolation at our home in South Carolina, Charlie, leading up to my testimony in June of last summer.

And I thought about nothing but every single aspect of January 6th in order to prepare for my testimony. And to my light of the many things I said in my testimony, the single most important was my answer to the question that you just asked. Namely, what would have happened in America had the vice president not defied the president's demands and overturned or attempted to overturn the election. And this is what I said to Congress and now to many others, that America would have been plunged into what would be tantamount to a revolution within a paralyzing constitutional crisis. Each one of those words, I could diagram, but the bottom line is that it would have been a constitutional crisis in America unlike any that we have ever seen or I believe could ever see because of the paralysis of our government that would

have resulted. And we don't have time to go into all that. But essentially, Charlie, the Constitution and therefore our government doesn't contemplate anything like happened on January 6th, and therefore the Constitution doesn't accommodate it, and therefore our government, the three institutions of our government, would not have known what to do, with each of them thinking that they might have responsibility, but knowing that the other two branches also had responsibility. So it'd be paralysis. So that's the paralyzing constitutional crisis that we avoided on January 6, 2021. So let's fast forward to today. How do you evaluate the risk?

Have we escaped this risk? How do you evaluate the risk? Have we escaped this risk? How do you evaluate the danger looking ahead? I mean, have we shored up these constitutional The primary progress we've made was in reforming the Electoral Count Act, which is the statutory law that the former president and his allies exploited in their effort to overturn that election. There is another feature of the plan known as the independent state legislature theory of interpretation of the electors clause and the elections clause, which I characterized at the time as the centerpiece of the plan to overturn the election. And we've not moved at all on that important centerpiece. Right now, the Supreme Court of the United States has that issue of the independent state legislature before it in a case called Moore versus Harper, a case that comes from North

Carolina and that arises under the elections clause, not the electors clause, which was the centerpiece of the 2020 effort. But just very recently, the Supreme Court has asked the parties to brief whether it still has what the court calls a final judgment before it to decide that case, because the North Carolina Supreme Court has granted rehearing in the case after the political composition of the North Carolina Supreme Court changed in the November election. So it's not even clear today that we will get a decision from the Supreme Court on the all important independent state legislature theory before the 2024 election. And then most importantly, Charlie, is that, you know, the former president and his allies and now the entire Republican Party, you know, have circled the wagons around the former president and January 6th and denied that the former president lost that election, denied the January 6th and its consequences. All toward the end of that being the Republican platform in 2024. And all the while, the former president and the Republicans, frankly, you know,

have caused the corrosion, if you will, of our democracy and the rule of law. I mean, it's interesting getting your reaction to this, because you've been part of, you know, the judiciary in the legal world for decades now. But late last year, when the former president tweeted out that we should terminate elements of the Constitution to restore him to power, one would have thought that that statement alone would be disqualifying for any judicial conservative or for the party of conservative constitutionalism of the Republican Party. Just give me your thoughts on all of that. Here you have the former president very openly saying we should terminate the Constitution in order to overturn this election. And yet the Republican Party still looks at him and says,

yeah, if he gets the nominee, we'll support him again for return to the Oval Office. What has happened to conservatives and Republicans that they're willing to tolerate that kind of thing? In another day, those words spoken by a president or a former president, for that matter, would be treason-like. Not treason. Treason is a defined term in the Constitution. It's treason-like because that statement, as well as January 6th, you know, the events inspired by the former president were a betrayal of America and a betrayal of Americans. The former president and his allies betrayed the sacred trust that had been conferred upon them by the American people. As to the Republicans writ large, Charlie, I don't any longer indulge or even acknowledge the whispers behind the back that they disagree

that the former president lost the election, and they disagree with the former president lost the election and they disagree with the former president that January 6th was needed and appropriate. In my view, Charlie, at this point, and frankly long before now, to not decide to renounce January 6th and the former president's actions on that day is to decide that you agree with the former president and with all that occurred on January 6th. I don't have time to, you know, to anymore to worry about that. That's my view of the Republicans. I don't want to put words in your mouth, but my sense is that you're not calling for Trump's indictment, but you now believe that he will be indicted and you've been laying out the factors that you consider that Merrick Garland should be considering. So what should we do about

this? And what does it say if the legal system does not hold Donald Trump accountable for his attempts to overturn the election and for his role in January 6th. Yes, it's not my role, you know, to call for the indictment and prosecution of the former president. And I've studiously not done that. As these various prosecutions, you know, have come to the forefront, I have commented on what I thought was their legitimacy and their likelihood. The four in particular that I've commented on, beginning with the most important, is January 6th. The investigation being conducted now by the Department of Justice in the person of Jack Smith for the former president's conduct on January 6th. Second, the investigation of the taking and retention of classified documents to Mar-a-Lago, followed closely by the investigation in Georgia by Fannie

Willis of the former president's effort to interfere with the election in Georgia in 2020. And last and most recently, this expected indictment in Manhattan related to the Stormy Daniels case. But I would say today, Charlie, that I would have hoped that the first of any prosecutions of the former president would not have been either the Stormy Daniels matter in Manhattan or, frankly, the classified documents from Mar-a-Lago, and that instead, if there are to be prosecutions of the former president coming out of all of his antics and that he's not prosecuted for January 6th, I will believe that that's a great disservice to democracy and to the rule of law in America. So do you think that Jack Smith will bring charges and what kind of charges would you expect? What kind of indictment? Would it be for conspiracy? Would it be for incitement?

You know, I have to state the obvious, which is I have no earthly idea. I have no insight. None of us do. None of us do. studying this for two years now, every day, and I do believe that the Department of Justice will indict and prosecute the former president for January 6th. As to what indictments for what offenses, the best I can do is point you to the offenses that were identified by the January 6th committee when it recommended prosecutions coming out of January 6th, and two of those were among the ones you referenced, which is defrauding the United States. The others would be obstruction of an official proceeding, being the joint session of Congress to count the electoral votes to determine the presidency. Then the January 6th committee recommended false statement prosecutions in connection with the

fake electors plan. And then last, and arguably most consequentially, the committee urged that the Department of Justice consider prosecution for incitement of an insurrection against the authority of the United States. I've not looked at the actual recommendations by the January 6th committee. note for your listeners today that that offense would exist even if the president did not actually incite the insurrection himself, although there are facts that would support such a charge, but even if the president merely aided and assisted such an insurrection. So those would be the federal charges coming out of January 6, as I understand it. So let's take a step back to go to more of the 35,000-foot perspective on the moment we're in right now. You're on a speaking tour. Last week, you gave a speech at the University of Georgia Law School, which I have a copy of and have been reading.

And I'm really struck by the language that you use. You start by noting that we're just three years shy of the 250th anniversary of the nation's founding. But your words, the institutions of our democracy and law are under vicious, unsustainable and unendurable attack from within. And you don't mince any words. You say that we're at a perilous crossroads. You point out that Abraham Lincoln, speaking in 1838, urged the Constitution and the rule of law become the political religion of the nation. So, you know, reading your comments, this is a deeper problem than just Donald Trump, just a few things that we are at a moment where, I mean, do you feel that we're at a tipping point? What do you mean when you describe it as unsustainable and unendurable attacks?

Yeah, that that you just read was essentially, if not literally, what I said to the Congress of the United States. I meant exactly what I said to the Congress of the United States. I meant exactly what I said. This is when I speak publicly, I try to speak as if I were still a sitting federal judge. So that's just factually what we have in America today and where we are in America today, namely that our institutions of democracy and law have been under vicious attack for years now, that is from within, not from without the United States. And these vicious attacks are unsustainable and unendurable. They've already taken their toll on American democracy and American law in their impact and consequence of their impact on the institutions of democracy and law. We are at a perilous crossroads.

That's what I said to Congress and the allusion to Congress. And in this speech that you have now, the allusion was to the Civil War. And I gave a great deal of thought to that before I testified. I knew what I was saying, of course, and I knew the way in which it would be appreciated and understood. You know, I didn't say to Congress that we were on the verge of a civil war, though many, many people at the time believed we were and still believe we are now, Charlie. Do you believe that we are now? Do you think that's possible? And what would it be like? I would say this. I've earlier said that the former president, now the presumptive nominee of the Republican Party in 2024, and his Republican Party and allies are poised to attempt to overturn the 2024 election if he were to lose that election.

Hmm. If he were to do that, then I believe that we would be on the verge of a civil war. You also, in your remarks in Georgia, you know, stressed your concern the Supreme Court, which is supposed to be the constitutional guardian of our rule of law, is losing the confidence of the public. This seems to be something else that Trump has been doing that he has been that I mean, leaving aside the Supreme Court for a second, that for years now he has been undermining and trying to delegitimize juries, judges, prosecutors, the whole idea of the rule of law. And now we have this moment where a larger and larger portion of the public seems to doubt the legitimacy of the Supreme Court. Just talk to me a little bit about this. We now have recent polls showing that not even a majority of the public view the Supreme Court favorably. What are the consequences if the court is perceived just to be another ideological tribal cudgel?

As I said in that speech that you had before you, Charlie, these efforts to undermine our institutions in America, frankly, all of them are deliberate and they're intentional and their object is to undermine the legitimacy of those institutions of democracy and law. And as I said in that speech before you, make no mistake, these attacks on our institutions have had the desired effect. Already. Already. Now. No longer do Americans believe in those institutions of our democracy and of our law. And that's the consequence of these unendurable attacks over these many years. So you say it would not be an overstatement to say that during our lifetimes, this nation of laws will effectively decide whether we live by the rule of law or by the rule of politics, because the politicization of all of our institutions has

become so all-consuming. And you call out members of the legal community who've participated in this assault on the rule of law. I mean, so talk to me a little bit about this, you know, the role of law professors practicing the lawyers in the courts in aiding and abetting this politicization of the rule of law. Look, I think it's just a, you know, it's a matter of fact. I don't think that anyone would even, deny it or try to refute that America today is consumed by politics, but more importantly, bipartisan politics, to the exclusion of all else. In a word, our elected officials and our political leaders, it never even occurs to them to put country ahead of their partisan politics or their own partisan political ambitions. In fact, it never occurs to them that that's the choice that's put before them every single day they're in their jobs. They just deny that's the case. So over time, you know, this politicization, you know, has seeped into the law

and now threatens to overcome the law, rendering the law little different than politics. And if and when that occurs, then there is no longer law or a rule of law in America. It's the rule of politics. Well, I don't know whether you've been able to follow what's going on here in my home state of Wisconsin, where we have the most expensive judicial election in American history, you know, more than $30 million on the state Supreme Court election, which is indistinguishable from a race for governor or for U.S. Senate. And I guess going back to the question that I raised a little bit earlier, the concept of being a judicial conservative, because it seems to have morphed in

the minds of many people on the right that a conservative judge is supposed to rule in favor of conservative public policy. There's two different visions, right? The conservative judge is supposed to rule in favor of conservative public policy. There's two different visions, right? The conservative judge who rules on the basis of what the law is, not what the ideological outcome should be. But increasingly, listening to a lot of these debates, there are people who believe that the only thing that matters are the outcomes, is the result, and they're prepared to do anything to get the proper result. Is that, so, I mean, there's been a corruption of what it means to be a conservative judge. And I'm not saying that the judges have necessarily gone along with it, but at least in the view, I

mean, I'm watching the conservative candidate for Supreme Court justice in Wisconsin basically promise that he will not do what other judges have done, you know, and show flashes of, you know, judicial independence because he's a reliable vote for the right to win on each of these cases. So, have you seen that? Is that part of this erosion, this changing of it from process to result-oriented? Charlie, I couldn't state it any clearer or any better. It's not merely a part of this corrosion. It is this corrosion, and it's not merely the corrosion of the view or perspective, as you called it, of the conservative lawyer or the conservative judge. It's nothing less than the complete corrosion of law and the rule of law for 25 years now. And the

conservatives, they won that war when Amy Coney Barrett was elevated to the Supreme Court at the 11th hour just prior to the election. Why is that? Because that put on the Supreme Court, or her appointment put on the Supreme Court, what we call a supermajority. And that conservative supermajority now will define what law is and is not for the foreseeable future in the country. But the point is the conservatives won that war, but it had been a war that had been waged in the country. But the point is, the conservatives won that war, but it had been a war that had been waged in the open, in plain view, in front of the country for 25 years. Every person understood what the war was about and the consequences of the war, and therefore, the consequences of a victory in that war. So let's go back to the heart of your warning here,

that America can withstand attacks on its democracy and rule from the outside, but we are really vulnerable when the attacks come from within. And Hugh Wright, in the moral catatonic stupor America finds itself in today, it is only disagreement that we seek. And the more virulent that disagreement, the better. We are a house divided and our poisonous politics is fast eating away at the fabric of our society. That's alarming. I personally don't think that it's overstated. when Abraham Lincoln spoke in 1838. Are you an optimist? Are you a pessimist? How do you feel about what's about to happen over the next decade or decade and a half? I've been my entire life an eternal optimist. But as to what we're talking about today,

at this moment, today, Charlie, I'm not optimistic because of all that we've been talking about. I propose the solution to the problem to Congress, the problem that you just identified, that we only want to disagree. That is the problem. And I propose the solution. And that solution was that a political solution from my years observing and participating in the political world in Washington, D.C. of each of the two parties comprised of those members who have the moral authority and the patriotic obligation to step forward and say that America is in peril and that we must come together to avoid the inevitable war. I'm not going to call it civil war, but the inevitable war. And based on my considerable experience in Washington, D.C., I do know that that's the

answer. Now, I testified to that six, eight months ago now, and not a single Republican leader has heeded my call to step forward. Not one single Republican elected official. I said to Congress, it's not the Democrats' role at this moment, because it's the Republicans who instigated this war on democracy and the rule of law on January 6th. So my point is the Republicans have to step forward. It's got to come from within them. Yeah, that's the crucial point. Yeah, it's absolutely. And not one of them has. And now, Charlie, it's obvious to the country that the Republican Party and Republicans, you know, as a political organization and party, they've cast their lot with Donald Trump and cast their lot with all that he did on January 6th.

You know, I don't do politics, but I'm not stupid. That's incomprehensible to me. And what that is, is nothing more or less than political cowardice. And so as far as I'm concerned, at this point, they get what they deserve. And if they lose every election from now on, that's fine by me. That's what they deserve. So what's your reaction to the way Mike Pence is handling this, given your role in influencing Mike Pence? He has given some speeches where he has pushed back on Donald Trump, but he's just not willing to go there, is he? And he's been resisting the various subpoenas. He wouldn't testify before January 6th. So in retrospect, given the role you played in getting Mike Pence to do the right thing, are you disappointed? Are you encouraged? How do you grade Mike Pence? I understand your question. And I'm not going to answer the question as you posed it.

But I will say this. The former vice president is a politician. In that way and respect, he's no different than the rest of them. And I've never had an ounce of respect for any politician that I remember and certainly will not ever, ever again. Smith subpoena to testify in front of the grand jury in the District of Columbia, I was sufficiently concerned that I first tweeted a legal analysis of his argument, which I said was barely an argument at all. And then a few days later, I wrote an essay in the New York Times explaining that in my view, this was a political error is all I would say and all I was willing to say. Judge, I do this every day, but talking with you is really, really an honor. Thank you so much for joining me today. Thanks, Charlie. Really enjoyed it.

Judge Michael Ludig, former judge in the U.S. Court of Appeals for the Fourth Circuit, where he served for 15 years. And of course, we know the historic role that he played in advising Mike Pence on January 6th. Thank you all for listening to today's Bulwark Podcast. I'm Charlie Sykes. We'll be back tomorrow. We'll do this all over again. The Bulwark Podcast is produced by Katie Cooper and engineered and edited by Jason Brown.