By J. Michael Luttig — CNN-Wed April 27, 2022
(CNN) Nearly a year and a half later, surprisingly few understand what January 6 was all about.
Fewer still understand why former President Donald Trump and Republicans persist in their long-disproven claim that the 2020 presidential election was stolen. Much less why they are obsessed about making the 2024 race a referendum on the “stolen” election of 2020, which even they know was not stolen.
January 6 was never about a stolen election or even about actual voting fraud. It was always and only about an election that Trump lost fair and square, under legislatively promulgated election rules in a handful of swing states that he and other Republicans contend were unlawfully changed by state election officials and state courts to expand the right and opportunity to vote, largely in response to the Covid pandemic.
The Republicans’ mystifying claim to this day that Trump did, or would have, received more votes than Joe Biden in 2020 were it not for actual voting fraud, is but the shiny object that Republicans have tauntingly and disingenuously dangled before the American public for almost a year and a half now to distract attention from their far more ambitious objective.
That objective is not somehow to rescind the 2020 election, as they would have us believe. That’s constitutionally impossible. Trump’s and the Republicans’ far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if Trump or his anointed successor loses again in the next quadrennial contest.
The last presidential election was a dry run for the next.
From long before Election Day 2020, Trump and Republicans planned to overturn the presidential election by exploiting the Electors and Elections Clauses of the Constitution, the Electoral College, the Electoral Count Act of 1877, and the 12th Amendment, if Trump lost the popular and Electoral College vote.
The cornerstone of the plan was to have the Supreme Court embrace the little known “independent state legislature” doctrine, which, in turn, would pave the way for exploitation of the Electoral College process and the Electoral Count Act, and finally for Vice President Mike Pence to reject enough swing state electoral votes to overturn the election using Pence’s ceremonial power under the 12th Amendment and award the presidency to Donald Trump.
The independent state legislature doctrine says that, under the Elections and the Electors Clauses of the Constitution, state legislatures possess plenary and exclusive power over the conduct of federal presidential elections and the selection of state presidential electors. Not even a state supreme court, let alone other state elections officials, can alter the legislatively written election rules or interfere with the appointment of state electors by the legislatures, under this theory.
The Supreme Court has never decided whether to embrace the independent state legislature doctrine. But then-Chief Justice William Rehnquist, and Justices Antonin Scalia and Clarence Thomas in separate concurring opinions said they would embrace that doctrine in Bush v. Gore, 20 years earlier, and Republicans had every reason to believe there were at least five votes on the Supreme Court for the doctrine in November 2020, with Amy Coney Barrett having just been confirmed in the eleventh hour before the election.
Trump and the Republicans began executing this first stage of their plan months before November 3, by challenging as violative of the independent state legislature doctrine election rules relating to early- and late-voting, extensions of voting days and times, mail-in ballots, and other election law changes that Republicans contended had been unlawfully altered by state officials and state courts in swing states such as Pennsylvania, Wisconsin, North Carolina and Michigan.
These cases eventually wound their way to the Supreme Court in the fall of 2020, and by December, the Supreme Court had decided all of these cases, but only by orders, either disallowing federal court intervention to change an election rule that had been promulgated by a state legislature, allowing legislatively promulgated rules to be changed by state officials and state courts, or deadlocking 4-4, because Justice Barrett was not sworn in until after those cases were briefed and ready for decision by the Court. In none of these cases did the Supreme Court decide the all-important independent state legislature doctrine.
Thwarted by the Supreme Court’s indecision on that doctrine, Trump and the Republicans turned their efforts to the second stage of their plan, exploitation of the Electoral College and the Electoral Count Act.
The Electoral College is the process by which Americans choose their presidents, a process that can lead to the election as president of a candidate who does not receive a majority of votes cast by the American voters. Republicans have grown increasingly wary of the Electoral College with the new census and political demographics of the nation’s shifting population.
The Electoral Count Act empowers Congress to decide the presidency in a host of circumstances where Congress determines that state electoral votes were not “regularly given” by electors who were “lawfully certified,” terms that are undefined and ambiguous. In this second stage of the plan, the Republicans needed to generate state-certified alternative slates of electors from swing states where Biden won the popular vote who would cast their electoral votes for Trump instead. Congress would then count the votes of these alternative electoral slates on January 6, rather than the votes of the certified electoral slates for Biden, and Trump would be declared the reelected president.
The Republicans’ plan failed at this stage when they were unable to secure a single legitimate, alternative slate of electors from any state because the various state officials refused to officially certify these Trump-urged slates.
Thwarted by the Supreme Court in the first stage, foiled by their inability to come up with alternative state electoral slates in the second stage, and with time running out, Trump and the Republicans began executing the final option in their plan, which was to scare up illegitimate alternative electoral slates in various swing states to be transmitted to Congress. Whereupon, on January 6, Vice President Pence would count only the votes of the illegitimate electors from the swing states, and not the votes of the legitimate, certified electors that were cast for Biden, and declare Donald Trump’s reelection as President of the United States.
The entire house of cards collapsed at noon on January 6, when Pence refused to go along with the ill-conceived plan, correctly concluding that under the 12th Amendment he had no power to reject the votes that had been cast by the duly certified electors or to delay the count to give Republicans even more time to whip up alternative electoral slates.
Pence declared Joe Biden the 46th President of the United States at 3:40 a.m. on Thursday, January 7, roughly 14 hours after rioters stormed the US Capitol, disrupting the Joint Session and preventing Congress from counting the Electoral College votes for president until late that night and into the following day, after the statutorily designated day for counting those votes.
Trump and his allies and supporters in Congress and the states began readying their failed 2020 plan to overturn the 2024 presidential election later that very same day and they have been unabashedly readying that plan ever since, in plain view to the American public. Today, they are already a long way toward recapturing the White House in 2024, whether Trump or another Republican candidate wins the election or not.
Trump and Republicans are preparing to return to the Supreme Court, where this time they will likely win the independent state legislature doctrine, now that Amy Coney Barrett is on the Court and ready to vote. Barrett has not addressed the issue, but this turns on an originalist interpretation of the Constitution, and Barrett is firmly aligned on that method of constitutional interpretation with Thomas, Alito, and Gorsuch, all three of whom have written that they believe the doctrine is correct.
Only last month, in a case from North Carolina the Court declined to hear, Moore v. Harper, four Justices (Alito, Thomas, Gorsuch and Kavanaugh) said that the independent state legislature question is of exceptional importance to our national elections, the issue will continue to recur and the Court should decide the issue sooner rather than later before the next presidential election. This case involved congressional redistricting, but the independent state legislature doctrine is as applicable to redistricting as it is to presidential elections.
The Republicans are also in the throes of electing Trump-endorsed candidates to state legislative offices in key swing states, installing into office their favored state election officials who deny that Biden won the 2020 election, such as secretaries of state, electing sympathetic state court judges onto the state benches and grooming their preferred potential electors for ultimate selection by the party, all so they will be positioned to generate and transmit alternative electoral slates to Congress, if need be.
Finally, they are furiously politicking to elect Trump supporters to the Senate and House, so they can overturn the election in Congress, as a last resort.
Forewarned is to be forearmed.
Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine (thus allowing state court enforcement of state constitutional limitations on legislatively enacted election rules and elector appointments) and Congress amends the Electoral Count Act to constrain Congress’ own power to reject state electoral votes and decide the presidency.
Although the Vice President will be a Democrat in 2024, both parties also need to enact federal legislation that expressly limits the vice president’s power to be coextensive with the power accorded the vice president in the 12th Amendment and confirm that it is largely ceremonial, as Pence construed it to be on January 6.
Vice President Kamala Harris would preside over the Joint Session in 2024. Neither Democrats nor Republicans have any idea who will be presiding after that, however. Thus, both parties have the incentive to clarify the vice president’s ceremonial role now.
As it stands today, Trump, or his anointed successor, and the Republicans are poised, in their word, to “steal” from Democrats the presidential election in 2024 that they falsely claim the Democrats stole from them in 2020. But there is a difference between the falsely claimed “stolen” election of 2020 and what would be the stolen election of 2024. Unlike the Democrats’ theft claimed by Republicans, the Republicans’ theft would be in open defiance of the popular vote and thus the will of the American people: poetic, though tragic, irony for America’s democracy.
Background on J. Michael Luttig:
|One Judge and the Shaping of Abortion Law
By Spencer S. Hsu
Washington Post Staff Writer
Thursday, July 2, 1998, Front pageJust before midnight Tuesday, a federal judge reversed a lower court ruling and so preserved — at least for now — Virginia’s new ban on late-term, “partial birth” abortions. The state attorneys defending the law had sought out a judge who they thought wouldn’t disappoint them, and J. Michael Luttig came through.Luttig, a 44-year-old federal appeals judge from McLean known for his conservative philosophy, rejected a District Court judge’s ruling that the Virginia ban was too vague and likely unconstitutional.
Luttig’s ruling — which abortion rights advocates said they will appeal — put the 4th U.S. Circuit Court of Appeals in conflict with courts in all 17 other states where bans on the late-term procedure have been challenged.
He dismissed the lower court’s contention that Virginia’s law could be interpreted as a ban on abortions during the first six months of pregnancy and that it is unconstitutional because it does not include a clause guaranteeing a woman’s right to a late-term abortion if her health is at risk.
The “undisputed purpose” of Virginia’s ban, Luttig said in his 18-page opinion, is to bar any procedure in which a physician delivers a fetus, ruptures its skull and then dislodges it from a woman’s body — a method of abortion that Virginia clinics challenging the ban say they do not use.
Luttig’s ruling came one year to the day after he issued a similar ruling that allowed the state to require teenagers to notify a parent before having an abortion, a statute that is still under challenge before the circuit.
The story of how one judge has become such a key player in shaping abortion law in Virginia is in part a reflection of court rules that have allowed the state’s Republican attorneys general to steer such cases to him.
But it also shows how Luttig’s close relationships with U.S. Supreme Court Justice Antonin Scalia and former U.S. chief justice Warren E. Burger — Luttig clerked for both of the conservative jurists — have influenced him. According to a profile last year in American Lawyer magazine, Luttig has become a “nationally recognized jurist and spokesman for a conservative judicial philosophy who stands poised to shape case law well into the next century.”
That’s just the type of judge state attorneys were looking for this week when they were seeking to reverse the District Court injunction that blocked the new Virginia law.
Under 4th U.S. Circuit Court rules, appellants in “emergency” cases — those that involve some type of deadline — can choose to have their appeal heard by a single judge, rather than the usual three-judge circuit panel.
On Monday, 4th Circuit Court clerks said, Deputy Virginia Attorney General William H. Hurd’s office contacted Luttig’s court and said the state would send the judge an appeal to preserve Virginia’s law the next morning. Abortion rights advocates protested and sought a three-judge appeals panel, but Luttig declined.
“Judge Luttig is very scholarly, and he is a judge with a very self-evident respect for the federal system,” Hurd said in explaining his selection.
Critics of Luttig’s ruling on the procedure that antiabortion activists call “partial birth” abortion were dismayed that the judge’s opinion did not mention Roe v. Wade, the landmark 1972 Supreme Court decision that guaranteed a woman’s right to have an abortion.
But other critics who have followed Luttig’s rulings weren’t so surprised. They see him as a crusading conservative jurist who opposes abortion, supports the death penalty and is a literal interpreter of the Constitution.
“At least on the conservative front, he is the leader of the [4th Circuit] court,” said Cornell University Law School professor John H. Blume, a death penalty opponent.
Blume’s study of the 4th Circuit’s rulings indicates that since his appointment in 1991 by President George Bush, Luttig has never sided with a capital murder defendant in 23 cases. Some defense lawyers have suggested that this is connected to his father’s murder in Texas during a 1994 carjacking.
“He tries to push the law toward a more conservative bent, hoping the Supreme Court will take these cases,” Blume said.
Some defense lawyers have argued that Luttig should recuse himself from certain murder cases, but Luttig has declined.
In legal papers he has written since his father’s slaying, Luttig said his impartiality should not be questioned any more than that of jurists who have been victims of race or sex discrimination and yet hear such cases.
Luttig declined to be interviewed for this story. But interviews with former college classmates, court clerks, mentors and friends and Luttig’s own opinions flesh out the beliefs of a judge who is seen by some conservatives as a rising judicial star.
His supporters say Luttig’s rulings typically are densely reasoned, strictly literal constructions of the law, in the spirit of his mentors, Burger and Scalia.
“Mike is not a politician,” said Fred F. Fielding, the former Reagan White House counsel who hired Luttig out of the University of Virginia law school in 1981 at the recommendation of his friend Burger. “He’s a very careful, very deliberate . . . judge.”
Thurgood Marshall Jr., an assistant to President Clinton and son of the former Supreme Court justice, attended law school with Luttig. He recalled that Luttig was virtually a member of Burger’s family and delivered a moving eulogy at the chief justice’s funeral.
But Luttig’s career has not been free of controversy or political intrigue.
In 1991, he was criticized by legal ethicists for helping prepare Supreme Court nominee Clarence Thomas for hearings into sexual harassment allegations raised by Anita F. Hill. At the time, Luttig was a senior Justice Department official who had been confirmed by the Senate to the appeals bench and was waiting to be sworn in.
In 1990, Luttig was the Bush administration official charged with providing a “safe house” for eventual Supreme Court Justice David H. Souter before his confirmation hearings.
“He is a perfectionist,” said Tim Flanigan, who followed Luttig at the high court and as assistant U.S. attorney general for the Office of Legal Counsel.
“His approach is a judicial literalist approach,” said Flanigan, a close friend who is writing a biography of Burger. “There are many who . . . say a judge’s job is more than that. I happen to think Mike has it right.”