Judge Luttig Weighs In

In advance of January 6, Mike Pence relied on the advice of highly esteemed conservative jurist and former Fourth Circuit Judge Michael Luttig, when he was pressed by Trump to interfere with certification of the Electoral College vote for Biden. But reading the tea leaves from Judge Luttig’s essay in the New York Times this morning, entitled “Mike Pence’s Dangerous Gambit,” it sounds like the former vice president didn’t take the Judge’s advice this time. So he has shared it with us directly.

Judge Luttig discusses the political optics for a presidential candidate who is ordered by the Supreme Court to testify pursuant to what Pence calls “the Biden DOJ subpoena” in the midst of a presidential campaign, but it’s his insider analysis of how the courts will handle the vice president’s efforts to block the subpoena—and how quickly—that’s most notable. He writes, “If Mr. Pence’s lawyers or advisers have told him that it will take the federal courts months and months or longer to decide his claim and that he will never have to testify before the grand jury, they are mistaken. We can expect the federal courts to make short shrift of this ‘Hail Mary’ claim, and Mr. Pence doesn’t have a chance in the world of winning his case in any federal court and avoiding testifying before the grand jury.”

The key to Luttig’s analysis is along the lines we discussed here earlier this week. Just because a privilege exists—here the speech or debate privilege—and because you have a person who falls (or may fall, in Pence’s case) within it, it doesn’t mean that everything they do is covered. Senator Lindsey Graham learned that lesson when he asserted the privilege and the 11th Circuit Court of Appeals ordered him to testify, telling him he could come back to them if anything he was asked to respond to actually fell within the privilege. As far as we know, he didn’t. That’s because Trump’s efforts to hold onto power after he lost the election don’t. They’re crimes, and Pence’s conversations and observations surrounding them do not implicate legitimate congressional conduct.

As Judge Luttig put it, “Any protections the former vice president is entitled to under the ‘speech and debate’ clause will be few in number and limited in scope. There are relatively few circumstances in which a former vice president would be entitled to constitutional protection for his conversations related to his ceremonial and ministerial roles of presiding over the electoral vote count. What Mr. Smith wants to know about are Mr. Pence’s communications and interactions with Mr. Trump before, and perhaps during, the vote count, which are entirely fair game for a grand jury investigating possible crimes against the United States.” Luttig clarifies that any privilege protections Pence may have will fall by the wayside in the face of prosecutors with legitimate reason to inquire into his conversations with Trump, who is under a criminal investigation for obstructing the proceedings Pence is essentially claiming he’s trying to protect by asserting the privilege. Luttig dismisses the vice president’s privilege claim as a “conjure.”

Judge Luttig then turns to Pence’s lawyers, presumably the ones whose advice Pence is taking, as he has disregarded Luttig’s in this matter, and issues this sharp rebuke: “Mr. Pence undoubtedly has some of the finest lawyers in the country helping him navigate this treacherous path forward, and they will certainly earn their hefty fees. But in cases like this, the best lawyers earn their pay less when they advise and argue their clients’ cases in public than when they elegantly choreograph the perfect exit in private—before their clients get the day in court they wished for.”

It has become popular in some quarters for pundits to dispense legal opinions that are results-oriented—they figure out what political corner they want to land in and then shoehorn their views of the facts and the law to get there. Judge Luttig doesn’t indulge in that sort of gamesmanship here. As a former Scalia law clerk who has been dismissed by progressive groups as an ultraconservative who leaned too far right to be considered for a Supreme Court seat, you might expect him to. But lawyers and judges are trained in law school to evaluate the facts and the law from 360 degrees and come up with the right answer, not the expedient one. That’s what the best ones do.

It’s important to examine issues and arguments from all sides. Rushing to knee jerk conclusions that are the product of confirmation bias does nothing to move us forward. But we must also be unafraid, when the situation merits it, to point out that only one view makes sense. That’s what underlies Mike Pence’s situation. What is it he’s trying to protect? Surely not the Constitution. Surely not the Congress, which Trump is under investigation for trying to obstruct.

The problem when it comes to the former president and those in his orbit is that there is not a legitimate view of what they tried to do to the 2020 election and to all of us. Trump crassly broke the law and defiled democracy. There are the people who are trying to hold him accountable. Yes, on some of the legal issues that come up—things like whether a piece of evidence will be admissible at trial or whether the facts fit a specific legal charge—there can be legitimate differences of opinion. With constitutional issues, there are typically two sides to be evaluated, even when we find one to be more compelling. But on the larger issue, whether there is any legitimate interpretation of what Trump tried to do and what people around him enabled or at least failed to expose, there are not two sides. When someone with Judge Luttig’s pedigree writes in the Times to lay that bare, we should pay attention.

“Mr. Pence’s lawyers would be well advised to have Jack Smith’s phone number on speed dial and call him before he calls them. The special counsel will be waiting, though not nearly as long as Mr. Pence’s lawyers may be thinking,” Luttig concludes. Pence, apparently, did not heed that advice. But the Judge wants us all to know.

We’re in this together,

Joyce