A conservative judge who helped stop Trump on Jan. 6 wants to finish the job
The Washington Post January 31, 2023
Late one night in the spring of 1994, a 40-year-old federal judge was startled awake by loud pounding at the front door of his home in Vienna, Va.
The sound was so jarring, so insistent, so out of character for his quiet Washington suburb that it unnerved J. Michael Luttig, a product of Northeast Texas who had put down deep roots in Beltway power circles.
Luttig told his wife, Elizabeth, to call the police. “Keep the line open,” he added.
Baffled, anxious, annoyed, Luttig opened the door just a crack. There stood a stocky man with thick black eyebrows.
Antonin Scalia. Associate justice of the United States Supreme Court.
Scalia had driven through the night at the request of Luttig’s mother, who wanted him to be the one to break the news: Luttig’s 63-year-old father, John, had been killed in a carjacking outside his Tyler, Texas, home barely an hour earlier. And so the judicial legend showed up to sit with his former clerk as he placed one grim phone call after another, Luttig recalled in a recent interview, sharing the story publicly for the first time.
It had to be Scalia on this most awful night of their lives. Bobbie Luttig, who was seriously injured in the attack, knew how her son looked up to him. For a generation of conservative law students, Scalia was a paragon of a judicial philosophy centered on reverence for the original text of the Constitution. Luttig had clerked for him at the federal district court in Washington and later held one of the posts Scalia had occupied on his own path to the bench, in the Office of Legal Counsel, an obscure but influential cadre of brainy attorneys who provide legal guidance to the president.
Theirs had evolved into something more than a mentor-mentee relationship, more than a friendship. They were integral parts of a movement, the keepers of the conservative banner in Washington’s clubby legal circles, where bright, young aspirants could be tapped by their elders and set on a path toward the most important legal jobs in the nation. Reared in the Ford and Reagan administrations, ascendant in George H.W. Bush’s, Luttig became the protege and eulogist of one chief justice, Warren Burger; a groomsman for another, John Roberts. (In a recent interview, Luttig repeatedly turned to phrases like “one of my best friends in life” to describe some of the most prominent judges, lawyers, business leaders and journalists in America.)
By the time Scalia stood in his doorway, the young law students were looking up to Luttig, too. His obsessively precise written opinions for the U.S. Court of Appeals for the 4th Circuit in Richmond had marked Luttig as one of the leading conservative intellectuals in the legal system — the most conservative judge on the most conservative court in America.
More than a quarter-century later, it was Luttig (pronounced LEW-tig) who would get a late-night call to come the aid of his tribe: Mike Pence, in his final days as vice president, would seek out Luttig’s legal advice on the night of Jan. 4, 2021, as Donald Trump pressured him to help overturn the results of the 2020 election. But Pence and his allies would need more from Luttig than his private counsel.
They needed his imprimatur.
What began as a late-night phone call has turned into the quest of a lifetime for Luttig, the pinnacle of a long and storied career, highlighted last summer by his appearance before the congressional panel investigating the Jan. 6 uprising at the U.S. Capitol and by the committee’s final report released in late December, which mentions his name more than 25 times.
“Donald Trump and his supporters and allies are a clear and present danger to American democracy,” Luttig told the committee on live television.
But Luttig wasn’t just condemning Trump and Trumpism. He was trying to bring a nation to its senses.
“We Americans no longer agree on what is right or wrong, what is to be valued and what is not, what is acceptable behavior and not, and what is and is not tolerable discourse in civilized society,” he said. “America is adrift.”
Months removed from that star turn, Luttig’s worries have begun to ebb ever so slightly. He now envisions a nation one day disentangled from Trump’s influence, even as the former president launches a new campaign. It’s a future Luttig is trying to shape in court cases, in legislative chambers where he’s helped craft election law changes and in professorial public appearances where he explains in painstaking detail how American democracy, though imperiled, can still be preserved.
Luttig can think of only one reason he would have been wrested out of quiet semiretirement for this mission.
It was, he’s concluded, nothing less than “divine intervention.”
— — —
The books are always by his side, wherever Michael Luttig sits down to think. Massive dictionaries, writing manuals, anything that can inform his fixation with words, with the intricacies of their meanings and the ways they can be deployed. Even by the standards of the legal profession, he can seem like a walking, talking thesaurus, with an affection for words like “charlatanic,” “obeisantly” and “annihilative.”
At 68, Luttig is ruddy-faced and thickset in a way that might be expected from a man who has a home in Vail but doesn’t ski. In conversation, he can appear pained as he searches for an appropriate phrase. He’ll press his fingers against his forehead, staring at the ground, starting and stopping, self-narrating (“Part One ... Part Two ...”) in his faintly nasal Texas twang, editing himself in real time — a waterfall of words and ideas, but in super slow-mo. One might as well get comfortable because it’s going to take awhile. It’s also unlikely to be boring.
During his 15 years on the federal bench, from 1991 to 2006, he became known for his voluminous and intricately detailed writing, both periodically piquant and staunchly conservative. Once, in a case that outraged women’s groups, he wrote a 214-page opinion declaring that a portion of the Violence Against Women Act allowing rape victims to sue their attackers for violating their civil rights was unconstitutional. The law, he concluded, couldn’t be “reconciled with the principles of limited federal government upon which this nation is founded.” (The Supreme Court affirmed his ruling, with Sandra Day O’Connor writing the majority opinion.)
“He was out there articulating a set of legal principles that were moving the law in a conservative direction,” said Noel Francisco, who clerked for Luttig and would later serve as solicitor general in the Trump administration. “A sharp focus on rules when it comes to separation of powers, a healthy skepticism of the administrative state, upholding laws that reflect more culturally conservative viewpoints. It was very much of a pro-law-and-order approach to the law, very much in favor of holding criminals accountable for their conduct.”
He was just 37 years old when the first president Bush tapped him for the bench, the youngest federal appeals judge in the country, but already a veteran of the political world. His specialty: screening and prepping the Supreme Court nominees of Republican presidents. His home served as the so-called “safe-house” lodging for future justice David Souter, the night before Bush interviewed him for the job in 1990. After Clarence Thomas’s 1991 nomination was imperiled by sexual harassment allegations, Luttig was urgently summoned from a Hawaii vacation to help. His involvement was criticized by some legal ethicists since Luttig, though not yet sworn in, had already been confirmed as a judge.
Years earlier, Luttig had even encouraged his first mentor, Chief Justice Burger, to retire while Reagan was still in office to replace him with a like-minded jurist; Luttig says he hosted a dinner in which Burger could bond with Fred Fielding, the powerhouse White House counsel who would steer that selection.
On the appeals court, Luttig was considered such a reliable vote on abortion that attorneys arguing for restrictive measures — parental notification rules, “partial-birth” abortion bans — would angle to steer their cases to him. He strongly supported the second Bush White House’s controversial post-9/11 policy of declaring terrorism suspects “enemy combatants” so that they could be held by the military without charges. He was also viewed as a surefire supporter of capital-punishment sentences. Yet some well-informed members of the legal community had no idea about his father’s murder. When Francisco interviewed for his 1996 clerkship with Luttig, they had a long, “very earnest and very heartfelt conversation” about their opposing takes on the death penalty — but Luttig never mentioned his father.
Luttig at that time was urging the courts to uphold the death penalty for his father’s killer, Napoleon Beazley. In an interview with The Post, Luttig says he would have been open to prosecutors seeking a lesser sentence if the killer’s family had apologized on behalf of their son, who was 17 at the time of the murder, and if he hadn’t perceived a “coldness” from them. Beazley’s case reached the Supreme Court, where fully one-third of the court — Scalia, Thomas and Souter — recused themselves because of their close ties to Luttig; he was executed by lethal injection in 2002.
For all his perceived reliability as a conservative bulwark, Luttig could befuddle the political right. He ruled that Title IX protected a female place-kicker on an all-male football team from gender discrimination. He upheld a Black defendant’s right to exclude a White juror who had displayed the Confederate flag. And in 2000 he declared that the constitutional right to abortion established with Roe v. Wade had achieved the status of “super-stare decisis” — a term of his coining — because the Supreme Court said it had repeatedly upheld the case and that it was irrefutably embedded in the law at the time.
He famously kept his clerks — the “Luttigators” — working for hours as he fastidiously pored over each sentence of the draft opinions they helped him write. Luttig’s desk had a computer monitor and a keyboard so he could tweak and re-tweak; the clerks sat at a round mahogany table with computer screens but no keyboards. Occasionally he would invite them to his house on weekends, ostensibly to watch football, only to flip the channel to C-SPAN.
If they devoted themselves to him for a year, he would tell them, “I’ll devote myself to you for the rest of your career.”
Almost all of his clerks — more than 40 over the years — went onto clerkships at the Supreme Court.
“That was eye-popping to everyone,” says fellow former federal judge Thomas Griffith, a classmate of Luttig’s at the University of Virginia law school. “For Mike, that was a badge of honor.”
The one person Luttig couldn’t get a job at the Supreme Court was J. Michael Luttig. He was long considered by many to be almost a shoo-in but was passed over in 2005 in favor of Roberts and Samuel Alito. He left the federal bench the following year for a lucrative but low-profile job as general counsel at Boeing, noting the looming cost of his children’s college tuition.
And so it was that one of the most celebrated legal minds of his generation failed to ascend to the highest court in the land — freeing him to play another, perhaps more consequential role.
Just ask Neal Katyal, a former deputy solicitor general in the Obama administration who found himself crossing the aisle to work with Luttig in an ongoing legal battle against a theory from the Trumpian fringe of the GOP that would essentially let state legislatures decide national elections.
“There’s a good argument,” says Katyal, who teared up twice during an interview, “that Judge Luttig, by not being on the Supreme Court, did more for our democracy than most any sitting Supreme Court justice or past one.”
— — —
On the night of Jan. 4, 2021, Luttig was eating dinner with his wife at their home in Vail when the phone rang. It was Richard Cullen, a longtime friend and former U.S. attorney in Virginia who was then serving as an outside attorney for Pence.
Cullen was desperate for intel. An attorney he’d never heard of but who had represented Trump in lawsuits challenging the presidential election results was going around saying Pence had the authority to block certification of the 2020 election results. Cullen learned that it was a man named John Eastman, and that in a previous life he had clerked for Luttig.
Luttig, puzzled, told Cullen that Eastman is “brilliant.”
“You don’t know why I’m calling, do you?” Cullen said.
Once Cullen explained what Eastman was up to, Luttig told Cullen to advise Pence he simply could not block the certification. When Luttig hung up, his wife turned to him: “Oh my God, you have to stop this.”
Luttig was at a loss. He said he didn’t think there was anything he could do beyond offering his legal opinion. Retired from Boeing, he’d been out of the public eye for years, avoiding partisan politics.
But Cullen called again in the morning, and again pushed Luttig to say something publicly before Pence sat down for a planned lunch with Trump. They finally agreed that Luttig would post something on Twitter.
The problem: This man of many, many words couldn’t imagine confining his remarks to 280 characters — and he had no idea how to string multiple tweets into a Twitter thread. His very first tweet, barely two months earlier, had taken him five hours to compose; he ended up posting a photo of the lengthy statement he’d printed out. But feeling the “gravity of this moment,” as he put it, Luttig called his son, who sent him a tutorial on how to construct a thread.
His 7-tweet thread, posted early on Jan. 5, offered Pence both legal and political cover. Luttig explained — as if speaking to first-year civics students — that, no, the vice president couldn’t just change the vote total. And, no, refusing to do so didn’t mean he was disloyal to the president.
Luttig’s close friend, William P. Barr, had been a Trump-enabling attorney general until quitting a month earlier, fed up by the president’s false election claims. Luttigators had been sprinkled throughout the administration, including Human Services Secretary Alex Azar, Courtney Elwood, the general counsel of the CIA and Kate Comerford Todd, who was deputy White House counsel. Another led the Trump-acolyte wing of the Republican Party: Texas Sen. Ted Cruz.
Luttig’s comments resonated with a certain segment of Republicans because he had assiduously avoided taking public political stances over the years. He was still Judge Luttig — emphasis on judge.
“He couldn’t be dismissed as a Never-Trumper,” says Bill Kristol, the prominent conservative commentator. “His emergence was a big deal.”
Luttig’s spotlight appearance, a year and a half later, before the congressional committee investigating Trump’s role in the Jan. 6 insurrection, was an even bigger deal — so highly anticipated that the text of his remarks was considered a news scoop. He’d refused to give an advance copy to the committee because he feared it would be leaked. He wanted to reserve the option to make tweaks up to the last minute and didn’t want a version out there that was even one syllable different from the remarks he delivered.
Instead he leaked it himself to CNN, for release moments before his appearance. (Earlier that year he’d leaked to CNN his endorsement of Biden’s Supreme Court nominee Ketanji Brown Jackson, who he differed from on judicial interpretations but thought would benefit the solidly conservative court by adding much-needed diversity because she is an African-American woman.)
In his testimony, Luttig spoke soooooo slowly that social media lit up with speculation that he was recovering from a stroke, a baseless theory amplified by the crimson complexion of his face that day. He was simply sunburned, it turned out — and intentionally spoke so deliberately because he wanted Americans to absorb e-v-e-r-y single word that he spent nearly 18 months writing and rewriting at his homes in Chicago, Vail and coastal South Carolina.
“I’ve never seen him as simultaneously focused and at peace,” Cullen says. “It’s almost a religious experience for him.”
— — —
When Luttig was a young, lowly staffer in the Ford White House, he worked on a book meant to bolster the president’s ill-fated 1976 campaign.
Part of that effort involved explaining Ford’s rationale for pardoning predecessor Richard M. Nixon for his involvement in the Watergate scandal. Luttig has concluded Ford made the right decision, in the interest of not prolonging the national upheaval. He has been thinking a lot about those days, now that the Justice Department is faced with deciding whether to indict Trump for his role in the Jan. 6 insurrection and his hoarding of classified documents after leaving office.
“What Nixon did was just an ordinary crime,” Luttig says. “What Trump has done is quite arguably the worst crime against the United States that a president could commit.”
Luttig sees “ample evidence” of criminal activity and believes Trump will be indicted. But he has been judicious about not calling for an indictment. Instead, in his professorial manner, he’s been laying out the factors that he believes should be considered by Attorney General Merrick Garland (yet another close acquaintance, of course, from their time as federal judges).
When he posts them on social media, he’s come to expect that his friend, renowned liberal legal scholar Laurence Tribe, will retweet or reply with exactly what Luttig has been careful not to say — that Trump should be indicted. The ideological opposites struck up a correspondence, bonded by their mutual resolve that Trump is a threat to democracy, Tribe says. (They’re also working together on a multibillion-dollar tax case for Coca-Cola, where Luttig is a special adviser to the board.)
As Luttig sees it, the decision about indicting Trump should also take into account whether it would “split the nation,” given the certainty that Trump would put up a years-long fight against any charges and the worldwide “spectacle” that would ensue.
Even if an indictment never materializes, Luttig now believes the nation is ready to relegate Trump and Trumpism to irrelevancy. The former president’s political future was dealt triple blows, Luttig says, by his recent assertion that parts of the Constitution should be “terminated” to return him to office, the criminal referrals by the Jan. 6 committee and the failure of his favored candidates in the 2022 midterm elections. He calls it “the beginning of the end of Donald Trump.”
Still, he says, the mission of vanquishing Trump — and thus, in Luttig’s mind, saving American democracy — is not entirely complete. “Donald Trump has proven that the only thing that can stop him is the law,” he says.
But if there’s anything J. Michael Luttig places faith in, it’s the law.