A former U.S. Court of Appeals judge who played a critical role in the Jan. 6 committee hearings said he is confident that a potential criminal conviction of former President Donald Trump would be upheld by the Supreme Court and any judge would have no choice but to sentence Trump to federal prison.
“I don’t know that a district judge would have any choice but to sentence the former president to imprisonment under the terms and provisions of these various offenses,” retired U.S. Court of Appeals Judge J. Michael Luttig said in a wide-ranging interview on the Yahoo News “Skullduggery” podcast.
Luttig, who for years was considered one of the leading conservative jurists in the country and who testified last summer as a star witness in the committee’s hearings, also said that he sees “poetic justice” in the panel’s investigation. In particular, he singled out the work of Vice Chair Liz Cheney, R-Wyo., who, despite losing a primary to a Trump-backed opponent, pressed the panel to make its criminal referral to the Justice Department, which recommended that the former president and others be investigated for violating four federal statutes in their efforts to overturn the 2020 election.
Luttig’s emergence as a prominent Trump critic was a surprise to many given his conservative Republican credentials: He had served as a lawyer in Ronald Reagan’s White House, and as a top Justice Department official under President George H.W. Bush who helped steer Clarence Thomas’s confirmation to the Supreme Court through the Senate. As a judge on the U.S. Court of Appeals in the mid-1990s, he hired two clerks who would later play major roles in Trump’s efforts to overturn the results of the 2020 presidential election: John Eastman and Ted Cruz. (In 2016, Cruz — now a Republican senator from Texas — referred to Luttig as “like a father to me.”)
When he hired them, Eastman and Cruz — who clerked for him at the same time — were “brilliant young lawyers” who were among “the best and brightest” to come out of their law school classes, Luttig said, adding that he was “very proud of them as law clerks.” But, he said, that was “25 years ago” and since then, they took a wrong turn, along with many others in the conservative legal movement, by adopting the “independent state legislative theory” — a doctrine pushed by Eastman that held state legislatures could override the results of an election and name their own electors to the Electoral College vote on who becomes president.
Since he has forcefully spoken out against the theory — the centerpiece of Trump’s legal strategy to nullify President Biden’s victory — Luttig has broken with both of his former clerks. “John Eastman, when he read what I wrote, would have, I think, died a thousand deaths,” he said. And while he had a perfunctory conversation with Eastman immediately after Jan. 6, 2021, he hasn’t spoken to Cruz since.
Luttig, in more detail than he has before, also explained his own personal evolution. He had been “alarmed” by Trump’s conduct ever since Trump announced his campaign for the presidency in 2015, and he was “deeply troubled throughout the entire Trump administration.” But Luttig didn’t go public until January 2021, after his wife of 41 years, Elizabeth, began pressing him to “do something” to make sure Trump left office.
“I said to her, ‘Honey, look, I now agree with you that it does not appear that he’s going to leave the White House, but I don’t have anything to do with this,’” Luttig said. “I haven’t been in Washington for 20 years. No one knows or cares what I think. There’s no possible way that I could even influence this.”
Then “she pled with me the night of January 4th, as we went to bed,” he said. “My wife said, ‘Mike, you must stop this.’ And I said, ‘Elizabeth, there’s nothing at all that I can do. I’m sorry.’”
Early the next morning, he got a call from Richard Cullen, an old friend and prominent conservative lawyer who was serving as Vice President Mike Pence’s outside counsel during the period Trump was aggressively pushing Pence to reject certified electoral votes when he presided over the ceremonial counting of the Electoral College ballots on Jan. 6.
At that point, Luttig made “the most important decision that I will ever make in my life.” After consulting with his son on how to do so, Luttig went public on Twitter. “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,” he wrote in a widely cited thread. Luttig’s constitutional position helped fortify Pence in his refusal to do Trump’s bidding. And last June, Luttig testified in the select committee hearings, excoriating the views of his former clerk, Eastman, saying his “blueprint to overturn the 2020 election” was “the most reckless, insidious and calamitous failure in both legal and political judgment in American history.”