David Remnick: This year's midterm elections ended with a sigh of relief for defenders of democracy. There seems to have been no violence and relatively few races that were challenged by the losers. Extremism fared poorly, but a significant number of election deniers did win seats in the House of Representatives, and states are still chipping away at voting rights. Donald Trump will continue to do everything he can to undermine faith in the process. We're going to take a look at where we stand now in the wake of that election.

In our next episode, I'll be talking with the authors of the cheerfully named best-seller How Democracies Die, and we'll start today with J. Michael Luttig, a retired judge of the US Court of Appeals. Luttig is quite a prominent figure in legal circles. He's close to everyone from Clarence Thomas to William Barr, and he was mentioned as a Supreme Court pick during the George W. Bush administration. Luttig finds himself at odds now with the Republican Party, and in his testimony to the January 6 committee, he harshly condemned all efforts to cast doubt on the 2020 election.

J. Michael Luttig: Donald Trump and his allies and supporters are a clear and present danger to American democracy. I don't speak those words lightly.

David Remnick: This well-established conservative is now allied with the Democratic Party on a legal case of enormous consequence. Judge Luttig is co-counsel in Moore v. Harper, which is appearing in front of the Supreme Court on December 7. That case hinges on what is known as the independent state legislature's theory. That was the justification that Trump and his team gave further effort to overturn the presidential election. The stakes for that case could not be higher.

Judge Luttig, you told our writer Jane Mayer, that you signed on as co-counsel because you regard Moore v. Harper as without question, the most significant case in the history of our nation for American democracy. What exactly is this case, and why is it as you put it legally the whole ballgame?

J. Michael Luttig: The reason that Moore v. Harper is the most important case since the founding for American democracy is this. At issue in the case is something called the Independent State Legislature theory of constitutional interpretation. Whether the state Supreme Courts are authorized to review redistricting decisions under the state constitutions and invalidate those redistricting decisions where they are unlawful.

To cut to the chase, I think I would say this, gerrymandering of congressional districts is one of the most nettlesome and important political issue of our times. The independent state legislature theory that is being argued by the petitioners in Moore v. Harper, that would allow for partisan gerrymandering to go unchecked from now on. It would, in theory, allow the state legislators to appoint electoral slates, who would vote for a presidential candidate who did not win the popular vote in the states and transmit those votes to Congress to be counted on January 6, in exactly the same way that Donald Trump and his supporters attempted to do in 2020.

David Remnick: Now, this all comes with an enormous amount of political context. You are a figure, I think it's fair to say on the conservative end of the legal establishment, you clerked for Antonin Scalia and Warren Burger, you help Clarence Thomas prepare for his extremely dramatic confrontation with the Senate Judiciary Committee. You have a close relationship with the Chief Justice Roberts, and on January 5th, on January 5th, a lawyer for Mike Pence came to you for advice about what Vice President Pence should do in the face of the President of the United States, pressuring Pence to, in essence, reverse the election come the next day. That came to you as a surprise. What was your reaction to that? Tell me that story.

J. Michael Luttig: Well, in short, Richard Cullen, who was then outside counsel to the Vice President and had been for a couple of years, and who is a dear friend of mine, called me first on the night of January 4th, and asked me what I knew about John Eastman. John Eastman was a clerk of mine 25 years ago. I told Richard, "John was a constitutional scholar, an academic, a brilliant individual." I told him that and I said, "Why are you asking?"

Richard said, "You don't know, do you?" I said, "No." He said, "Well, John is advising the President and the Vice President, that the Vice President has the authority to overturn the election by rejecting state elector's votes from some of the swing states, and/or delay the counting of the vote on January 6th in order to give swing states opportunities to submit alternative electoral slates."

I said, "No, I didn't know that." I said, "You can tell the vice president that I said he has no such authority, and he has no choice but to accept the electoral votes as they had been transmitted to Congress." Richard said, "He knows that that's your view." I said, "Okay, I'm available to help in any way that I can." We hung up. My wife said, "Well, what was that?" I told her. She said something like, "Oh, my God, you have to do something about this now. You have to stop this." I said, "Well, I really have no role here whatsoever, and there's nothing I can possibly do."

David Remnick: Was it your immediate sense that John Eastman had a sincere legal belief that this was possible, legal, and right, or that he was part of a plot, to be perfectly honest, as it's been put by the January 6th committee, "part of it attempted a coup d'etat."

J. Michael Luttig: I thought, knowing John, that there had to be something to what he was saying. I knew at that point, from my own knowledge of all the issues, there was nothing there that would warrant advice to the President of the United States of America, who was at that point attempting to overturn a presidential election. Did I think that John must be thinking something? Yes. It turns out that he was. Once I knew what he was thinking, I categorically rejected it as a basis for advising the vice president. My wife and I went to bed that night with her pleading with me to do something, and I saying to her repeatedly, "There was nothing I could do."

Then the next morning, the phone rang, and it was Richard Cullen, this is the morning of January 5th. He calls and he says, "Judge, what are you doing?" I said, "I'm just having my coffee." He says, "Look, we have to do something immediately." I said, "Well, what do you mean?" He said, "The Vice President is meeting for lunch with the President to tell him that he's not going to yield to the President's demands the next day." Richard said, "We need to get your voice out to the country explaining that the Vice President doesn't have the authority either to award the presidency to Donald Trump or even to delay the counting of the votes."

That set in motion me scurrying around trying to figure out what it even meant for me to get my voice out to the country. I was retired. I didn't even have a fax machine or a box of stationery.

David Remnick: I've got to assume that you were not that active on Twitter.

J. Michael Luttig: Did never even crossed my mind because I didn't know how to tweet. At the end of the day, I ended up tweeting what the country knows now to be the tweet that the Vice President included in his letter to the nation on the morning of January 6 as he was on his way to the Capitol.

David Remnick: For those who don't recall the tweet read, "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." Now I've gotta ask, did you have a hard time setting up a Twitter account?

J. Michael Luttig: Oh, my gosh. My very first tweet took five hours. I literally asked five of the country's leading Supreme Court reporters to help me. At that I believe I ended up printing out what I wanted to say in word, taking a snapshot of it, and posting a picture of that Word document.

David Remnick: The Republic is hanging in the balance and you're having a hell of a time figuring out how to be Paul Revere and set up a Twitter account. That's a little nerve-wracking.

J. Michael Luttig: It was more nerve-wracking than the actual drafting of the words that went into the tweet, David.

David Remnick: What was your reaction when you heard that the Supreme Court had agreed to consider the independent legislature theory of John Eastman's? In the case of Moore v. Harper, four justices of the Supreme Court signed on to hear this case. Why do you think the Supreme Court has agreed to consider what really can be described as a fringe legal theory?

J. Michael Luttig: The Supreme Court takes many cases in which it as in this context affirms the decision below. The fact that the court took it means nothing beyond the fact that the court understands that this issue is of great national importance and that it has an obligation to decide the case.

David Remnick: You strike me as someone who does not think that the alarm about the state of American democracy is overstated. Tell me what you think has happened in the conservative movement in the Republican Party as somebody who's now retired and free to speak about this. What happened that things shifted to such an alarming degree that we're in the state we're in?

J. Michael Luttig: Yes, I'm deeply concerned that American democracy today is on a knife's edge. There's no dispute as to why it is either because you had an incumbent president who was intent on overturning a presidential election and tried and almost succeeded. The Constitution doesn't contemplate and therefore does not provide for something like was attempted on January 6th. Suppose the Vice President had gone along and announced in the joint session that Donald Trump was elected the next president of the United States. There is no entity of government and no official of the government, including the Supreme Court of the United States who would've known what to do.

David Remnick: We've just come through a midterm election where elections [unintelligible 00:13:36] were often defeated at the polls, and some people are responding [unintelligible 00:13:39] saying, problem solved. Do you have that level of hope? I just watched an interview on public television with Bill Barr, in which he couldn't have been more critical of Donald Trump, and obviously hopes that he will be eliminated as a candidate. When press to say, "Would you refuse to vote for Trump if it came to that in a general election?" He said, well, it would have to depend on who the opponent is. He didn't rule out. He didn't rule out another term for Trump even though he's so obviously repelled by Trump, even though he reside at the very end. That to me is very, very curious.

J. Michael Luttig: Bill's a political figure, just like all of the other political figures and the political leaders in our country today. Our politicians and our political leaders have failed us. That's the way I see it. In this instance, they failed us at the very end by refusing to speak up.

David Remnick: If I can interrupt, I'm sorry. How do you analyze that, or is it so wonderful being in power that you sell your soul for it? I don't quite understand it. I just don't for the life of me. Forgive my naivete. I do not understand why at this late date.

J. Michael Luttig: It is embarrassing. Our political leaders will claim to power at any cost, and they will say anything necessary in order to cling to their own power. They actually don't even try to rationalize it, which in itself is disturbing but revealing. That's abdication of official obligation and responsibility of the highest order. That brings me then to the heart of the question you just implicitly asked, which is where do I see things today. I've said very recently on the heels of the midterm elections that American democracy was victorious in that election primarily because the election deniers were resoundingly defeated at the polls.

Now, of course, that statement predated the former president's announcement that he would run for the presidency again in 2024. Unless he tells us differently, his intent is to carry forward with his plan to overturn the 2024 election if it becomes necessary.

I've been sounding the alarm as to the Electoral Count Act reform also. I've been advising both the Senate and the House to increase the percentage of each house necessary to sustain an objection that is made. Right now, literally, it only takes one member of each house to object to a state electoral slate and send it into the joint session for decision on the objection. Well, we saw how pernicious that provision is. All it takes is one senator, one member of the house, and of course, we had that in 2020.

David Remnick: Judge Luttig, thank you so much for your time.

J. Michael Luttig: Thank you again for having me.

David Remnick: J. Michael Luttig is a retired judge of the US Court of Appeals, and he's co-counsel in the upcoming Supreme Court case Moore vs. Harper. Oral arguments will begin in the case next week.

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