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J. Michael Luttig, former U.S. Court of Appeals judge for the Fourth Circuit, testifies before the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol in the Cannon House Office Building on June 16, 2022 in Washington, D.C. (Photo: Anna Moneymaker/Getty Images)

Trump and His Allies Are 'A Clear and Present Danger to American Democracy'

Every responsible media representative should have been amplifying Luttig's stark message, not deducting points based on performance.

Steven Harper

On Thursday, June 16, a conservative icon issued an ominous warning about the most influential Republican in the country. Former federal appellate judge J. Michael Luttig concluded his testimony before the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol with these words:

"Today, almost two years after that fateful day in January of 2021, still Donald Trump and his law allies and supporters are a clear and present danger to American democracy."

Judge Luttig's concerns carry enormous weight. In 1991, President George H.W. Bush appointed him to the federal appeals court. Years later, he landed on President George W. Bush's short list of U.S. Supreme Court nominees twice. On the evening of January 4, 2021, Vice President Mike Pence's outside counsel sought Luttig's advice on a critical question:

Could the Vice President overturn the election, as Trump was demanding of Pence? Along with every other legal adviser whom Pence consulted on the subject, Luttig said no.

In a series of tweets the following morning, Luttig published his view. Immediately, reporters called him, and the New York Times reported on his tweets. Pence's January 6 letter refusing Trump's demand cited Luttig's analysis.

Luttig's testimony on June 16, 2022, was stunning. But MSNBC host Ari Melber—himself a lawyer—complained, "What Judge Luttig offers in credentials, he lacks in delivery. Out of the 1,000 witnesses, should he be one of the handful of live ones?"

Chyrons accompanying Melber's program criticized Luttig's "dry, meandering testimony" that was "drowned in legalese."

Melber and his fellow media performance critics probably would have panned Abraham Lincoln's delivery of the Gettysburg Address. In a slow, shrill, and unpleasant voice, Lincoln began the speech with obtuse words in a meandering introduction: "Four score and seven years ago, our fathers brought forth on this continent…"

Déjà Vu—Over and Over Again

The Beat with Ari Melber is among the most watched cable news programs, regularly beating CNN in its 6:00 p.m. (EDT) time slot. Viewers rely on his "quick-takes" to synthesize important stories that they don't have time to follow closely themselves. Melber wasn't alone in criticizing Luttig's performance, but such commentary is neither "news" nor meaningful "analysis." Every responsible media representative should have been amplifying Luttig's stark message, not deducting points based on performance.

When style displaces substance, calamity follows. The nation has been down that dangerous road with Trump.

In 2019, special counsel Robert Mueller generated similar criticism. Dwarfed by the commentary about his "halting, faltering performance" before Congress was the undisputed evidence underlying his key conclusions: Vladimir Putin wanted Trump to win the 2016 election; the Trump campaign embraced Russia's help; and Trump systematically obstructed justice by interfering with investigations into the scandal. Future historians reading Mueller's report will ask only one question about Trump-Russia: How did Trump remain in office and avoid prison?

The answer Is that Attorney General William Barr issued a deceptive "summary" of Mueller's report that gave Trump the opening he needed to push a Big Lie that stuck: "No Collusion, No Obstruction, Complete and Total EXONERATION." Then congressional Republicans closed ranks in his defense.

But the final blow came when reporters and self-proclaimed "analysts" said that Mueller's congressional performance wasn't sufficient to resurrect the rule of law that Trump and his allies had destroyed. A powerful message dissolved in a critique of the messenger. What should have been Trump's first impeachment never happened.

America paid the price. Emboldened by the failure to hold him accountable, Trump then attacked democracy by extorting Ukraine's president to pursue a phony investigation into Joe Biden. This time, the House impeached Trump, but Senate Republicans left him free to strike again.

And strike again he did, mounting an even more aggressive assault on democracy with a new Big Lie—that the 2020 election had somehow been stolen from him. He set the stage for an attempted coup that resulted in death and destruction at the U.S. Capitol.

Next Time Will Be Worse

As Judge Luttig observed last week, "A stake was driven through the heart of American democracy on January 6, 2021…."

The House impeached Trump again, but once again, Senate Republicans let him off the hook. As a result, "[O]ur democracy today is on a knife's edge," said Luttig, who also explained that Trump's newest attack is, as before, open and notorious:

"To this very day, the former president, his allies, and supporters pledge that in the presidential election of 2024, if the former president or his anointed successor as the Republican party presidential candidate were to lose that election, that they would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election, but succeed in 2024 where they failed in 2020."

To that end, Trump is endorsing 2020 election "deniers" of President Biden's victory. More than 100 of them have already won Republican primaries. Some are seeking critical positions that will control future elections in key states.

Three years ago, Robert Mueller urged that no one—not even the President of the United States—was above the law. Trump and his Republican allies in Congress proved him wrong.

Last week, J. Michael Luttig warned that if Trump slips away this time, the consequences will be catastrophic:

"I don't speak those words lightly, I would never have spoken those words in my life, except that is what the former president and his allies are telling us… the former president and his allies are executing that blueprint for 2024 in open and plain view of the American public.

"I repeat, I would've never uttered one single one of those words unless the former president and his allies were candidly and proudly speaking those exact words to America."

Luttig Gets the Last Word

Two days after testifying, Luttig responded to his performance critics—some of whom even questioned his health, just as they had Mueller's. The ellipses in that series of tweets are his:

"I believed I had an obligation to the Select Committee and to the country, first to formulate . . . then to measure . . . and then . . . to meter out . . every . . . single . . . word . . . that I spoke . . . , carefully . . . exactingly . . . and . . . deliberately, so that the words I spoke were pristine clear and would be heard, and therefore understood, as such.

"I believed Thursday that I had that high responsibility and obligation—to myself, even if to no other. Also please bear in mind that Thursday was the first time in 68 years, to my knowledge, I had ever been on national television, let alone national television like that.

"And though not scared, I was concerned that I do my very best and not embarrass myself, as I think anyone who found themselves in that frightening circumstance would be."

Judge Luttig closed with a personal rule that those offering media "quick-takes" would do well to follow:

"What I will say, though, is this. And I think it explains it all. All my life, I have said (as to myself, and at times, by way of sarcastic prescription for others) that I never . . . talk . . . any . . . faster . . . than . . . my . . . mind . . . can . . . think."

Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.

Steven Harper

Steven J. Harper is an attorney, adjunct professor at Northwestern University Law School, and author of several books, including Crossing Hoffa — A Teamster’s Story and The Lawyer Bubble — A Profession in Crisis. He has been a regular columnist for Moyers on Democracy, Dan Rather’s News & Guts, and The American Lawyer.

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