The Witnesses
J. Michael Luttig, a conservative judge, tweeted his analysis that a vice president had no power to alter the election results.
The morning before the Jan. 6 attack on the Capitol, former Judge J. Michael Luttig posted a series of messages on Twitter weighing in on a dispute that had been quietly brewing between President Donald J. Trump and Vice President Mike Pence.
In his thread, Judge Luttig, a former appeals court judged revered by conservatives, asserted that the vice president had no power to use his own discretion in the counting of electoral votes when Congress held a joint session to make its formal tally of the election results.
“The only responsibility and power of the Vice President under the Constitution is to faithfully count the electoral college votes as they have been cast,” Judge Luttig wrote.
“The Constitution does not empower the vice president to alter in any way the votes that have been cast, either by rejecting certain votes or otherwise,” Judge Luttig continued.
The messages, Judge Luttig would later say, were part of an urgent effort on the part of Mr. Pence’s inner circle to bolster the vice president’s stance that he could not do what Mr. Trump was demanding of him: unilaterally decide to invalidate the election results when he presided over the joint session on Jan. 6.
Richard Cullen, Mr. Pence’s outside counsel, had called the judge and implored him to intervene somehow. Judge Luttig’s commentary was of particular interest because John Eastman, the lawyer who was advising Mr. Trump that his vice president could, in fact, obstruct the count, once served as one of his clerks.
Mr. Pence’s team ultimately incorporated Judge Luttig’s analysis, citing him by name, into a letter announcing the vice president’s decision not to try to block electors for Joseph R. Biden Jr. Not long after, Judge Luttig told The New York Times that it was “the highest honor of my life” to play a role in preserving the Constitution.
In February, Judge Luttig, who served on the U.S. Court of Appeals for the Fourth Circuit and was close to being nominated for the Supreme Court, wrote in a guest essay for the The Times that Mr. Trump had exploited the convoluted language of the Electoral Count Act to delegitimize electoral votes for Mr. Biden in the 2020 election, and that he believed Mr. Trump could do so again in 2024.
“At the moment, there is no other way to say it: This is the clearest and most present danger to our democracy,” Judge Luttig wrote in the piece, in which he called for an overhaul of the statute.
Our Coverage of the Capitol Riot and its Fallout
The Events on Jan. 6
Timeline: On Jan. 6, 2021, a mob of supporters of President Donald Trump raided the U.S. Capitol. Here is a close look at how the attack unfolded.
A Day of Rage: Using thousands of videos and police radio communications, a New York Times investigation reconstructed in detail what happened — and why.
Lost Lives: A bipartisan Senate report found that at least seven people died in connection with the attack.
Jan. 6 Attendees: To many of those who attended the Trump rally but never breached the Capitol, Jan. 6 wasn’t a dark day for the nation. It was a new start.
The Federal Case Against Trump
The Indictment: Trump was indicted on Aug. 1 after a sprawling federal investigation into his attempts to cling to power after losing the 2020 election. Here is how the indictment was structured.
Trump’s Immunity Claim: The Supreme Court has agreed to decide whether Trump is immune from prosecution on charges of plotting to overturn the 2020 election. The justices scheduled arguments for the week of April 22.
The Trial: In February, the federal judge in the case decided to delay the trial, which was set to start on March 4. In doing so, she acknowledged that time had run out to get the proceeding going, mostly because of the wrangling over Trump’s immunity claim.
Advertisement