The Washington PostDemocracy Dies in Darkness

Ignoring the Jan. 6 hearings? Michael Luttig explains why you shouldn’t.

J. Michael Luttig did more than demolish Trump’s claims that Pence could have stopped the electoral counting. He delivered a frightening analysis of American democracy on the brink and the former president’s role in bringing the country to the edge of further chaos.

Retired conservative jurist J. Michael Luttig testifies before the House Jan. 6 select committee at its third public hearing in Washington on June 16. (Jabin Botsford/The Washington Post)
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J. Michael Luttig spoke softly and sometimes haltingly when he testified Thursday before the House select committee investigating the Jan. 6, 2021, attack on the Capitol. His understated presentation belied the five-alarm fire that was his written statement — a loud and clear warning to a country whose democracy, he said, is on “a knife’s edge.”

Luttig was there because he had advised Vice President Mike Pence that Pence could not legally do what President Donald Trump wanted him to do, which was to interject himself in the process of ratifying the electoral count on Jan. 6 and prepare the ground to have the election overturned.

But the former federal appellate court judge far more than demolished the legal arguments Trump had bought into. His prepared statement was a clear-and-present-danger document, describing the fraught state of American democracy, the war that rages internally, and the role Trump and his followers have played to bring us to this moment.

On June 16, the House committee investigating Capitol attack described a steadfast Vice President Mike Pence despite pressure from President Donald Trump. (Video: Adriana Usero/The Washington Post)

Jan. 6, Luttig said, was a war within a broader war over the future of the country, “a war irresponsibly instigated by the former president and his political allies, and his supporters.” The war rages today, he added, and “as a political matter of fact, only the party that instigated this war over our democracy can bring an end to this war.”

Luttig’s conservative credentials are unquestioned; he was twice seriously considered by President George W. Bush for the Supreme Court. His legal acumen has long been praised. His prepared testimony was written in language that is reasoned and thoughtful in its analysis, yet still piercing in its attempt to shake Americans not to turn away but to recognize the dangers and respond to them.

Follow The Post's ongoing coverage of the Jan. 6 House select committee

He spared few in public life. Though he is clear about Trump’s role in starting the war over the 2020 election that erupted into violence, he sees the broader internal political divisions, the war that preceded the insurrection, as the end result of the conduct of virtually the entire class of elected officials and their allies. In his telling, this war was “conceived and instigated from our nation’s capital … [and] cynically prosecuted by them to fever pitch, now to the point that they have recklessly put America herself at stake.”

Luttig described America as “adrift” and said he prays that it is only for a fleeting moment in the long span of American history. But his diagnosis of what he called “an immoral war” is frightening in its implications. He wrote: “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.”

Americans cannot agree on how to be governed or by whom or on a set of shared values, beliefs and goals. The attack that Trump instigated, he argued, was a natural “and foreseeable culmination” of the broader war for America. Trump was prepared to execute a plan to overturn the election to cling to power “that the American people had decided to confer upon his successor.”

The war launched by Trump that day has not ceased, and Luttig argued that the former president’s false insistence that he won the 2020 election has “laid waste to Americans’ confidence in their national elections” with potentially tragic consequences. He asserted that Trump’s insistence that he will not allow any future election to be “stolen” — an indication that he is prepared to subvert the 2024 election if he or a designated nominee loses — is “an affront without precedent” to American democracy.

Luttig offered some of his harshest words for those around Trump who advised and encouraged him in his pursuit to overturn the election, saying it was “the product of the most reckless, insidious and calamitous failures in both legal and political judgment in American history.” The legal theories presented to the president suggesting that Pence could legally block the counting were “frivolous and beguiling,” befitting a classroom exercise rather than advice offered to the nation’s highest elected official.

Trump’s Republican Party came in for special condemnation by Luttig. Even today, he noted, over a year and a half after the attack on the Capitol: “One of America’s two political parties cannot even agree on whether that day was good or bad, right or wrong, … needed or not.” He called claims that the attack was either “legitimate political discourse,” as the Republican National Committee said, or a visitor’s tour of the Capitol that went awry, as some Republican lawmakers have suggested, as cynical and embarrassing rationalizations.

Jan. 6 was the day America came “face to face with the raging war that it had been waging against itself for years,” he said. Many Americans have chosen to turn away, though in doing so they invite repeated episodes of Jan. 6 and the goals of those who incited it. Luttig said no American should turn away “until all of America comes to grips with what befell our country that day, and what we decide we want for our democracy from this day forward.”

He said the nation is facing a constitutional crisis and is at “a foreboding crossroads with disquieting parallels to the fateful crossroads we came to over a century and a half ago,” a reference to the Civil War.

This has been fed by what Luttig called “vicious partisan attacks” on democratic institutions by political leaders and citizens alike. He writes pessimistically that political campaign slogan “has become divisive political truth” and that one reason there is nothing on the horizon to change that is because few seem eager to find agreement with opponents. “In the moral, catatonic stupor America finds itself in today,” he said, “it is only disagreement we seek, and the more virulent that disagreement, the better.”

Luttig asks two questions: Where to begin to try to end the war, and who has the patriotism and courage to lead the way? He finds the first easier to answer.

The country can begin to move back from the barricades in the way that reconciling all broken relationships begins, “by talking to one another and listening to one another as human beings and fellow citizens who share the same destiny and the same belief in America.”

To do that, Americans must try to overcome the “coarse, desensitizing, dehumanizing political vile” that has become the vernacular of public life. Politicians have shamelessly failed the citizenry, leading down a road in the opposite direction of trying to bridge political and cultural differences, and “living in a fictionalized world of divided loyalties between party and country.”

But lest it seem as if Luttig has taken refuge in the idea that all sides in the political and governing classes are equally responsible, he offers a rejoinder that focuses on the former president and those who have echoed his false claims and sought to play down the meaning and significance of the insurrection.

To end the wars that threaten American democracy, he argued, a critical mass from the leadership of both political parties must be prepared to show the way. But then he wrote: “The logic for reconciliation of these wars being waged in America today dictates that this number needs to include a critical mass of leaders from the former president’s party and that those leaders need to go first.”

America can withstand attacks on its democracy from the outside, he wrote, but it is helpless in the face of attacks on democracy from within. If Americans do not learn the lessons from the attacks of Jan. 6, he warned, “we will consign ourselves to another Jan. 6 in the not-too-distant future, and another after that, and another after that.”

Luttig has joined Rep. Liz Cheney (R-Wyo.), the vice chairwoman of the Jan. 6 committee, in applying his conservative convictions and his devotion to the Constitution to part ways with much of the Republican Party and to take on the former president directly.

There was one more sobering warning from his prepared statement, one set against the backdrop of those who continue to defend or appease Trump in his lies about who won the election. “To be undecided today as to whether to end this war over our democracy,” he wrote, “is to have decided how one wants this war to end.”

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