Former federal Judge J. Michael Luttig joins Yahoo News’ “Skullduggery” podcast and talks about the roles both John Eastman and Sen. Ted Cruz played in the unfolding of the Jan. 6 insurrection. Both Eastman and Cruz were law clerks under Luttig in the 1990s — and Luttig explains how their actions on Jan. 6 are symbolic of legal thought over the past decade.
video transcript
MICHAEL ISIKOFF: Judge, I said before that you played a not-insignificant role in all this because you were the constitutional scholar who Vice President Pence’s lawyers turned to for advice when the president was pressing him to overturn the results of the election. But you also have a history with two people who played an even more significant role in the events of January 6. As a judge, you had two clerks at the same time back in the 1990s, John Eastman and Ted Cruz. They served together working for you.
In your testimony, you said that Eastman’s blueprint to overturn the 2020 election was, quote, “the most reckless, insidious, and calamitous failure in both legal and political judgment in American history.” And you also have said that Cruz’s role in objecting to the certification of the votes on January 6 was the most important in triggering the process that took place. So how did two of your clerks who worked for you, presumably were tutored by you, end up going so– being so wrong?
J. MICHAEL LUTTIG: Well, Michael, you know me, and you know how I conducted myself on the federal court and how I conducted myself vis-a-vis my law clerks. They were always, each year, literally the best and brightest that are coming out of the law schools. And the year that Ted Cruz and John Eastman clerked with me together, they were two of the finest law students to graduate that year. They were both brilliant young lawyers at the time, and I was very proud of them as law clerks.
That said, this was 25 years ago. And as you understand and they understand, I’m the judge, not them. And neither one of them has been surprised by a single word that I’ve spoken in the past two years, beginning with the advice that I gave the vice president on January 6. John Eastman, when he read what I wrote, would have, I think died 1,000 deaths.
Story continues
But as to Ted, Ted Cruz, in the passage, I think, from “The Washington Post” that you’re referencing, I merely stated fact. That is that once Senator Cruz decided to object to the electoral slate, I think, out of Arizona, January 6 was foreordained. And that was because, as I said, he was a tremendously powerful and influential senator of the United States on that day. And under the existing Electoral Count Act– under the current Electoral Count Act, as you know, only one member from each house is required to object to a state’s electoral slates in order for the objection to be sent to the joint session for a decision .
Now, I’m not being coy with you. I don’t want to be coy, and I didn’t intend to be coy with Ted.
DANIEL KLAIDMAN: Go ahead. Keep going.
J. MICHAEL LUTTIG: That is the fact, and he knows it’s the fact. But Ted would have understood what I meant by it.
DANIEL KLAIDMAN: I had two quick follow-up questions. One is, have you spoken to either Senator Cruz or John Eastman since the events of January 6 transpired and since the hearings and your involvement in those hearings?
J. MICHAEL LUTTIG: I’ve not spoken to Ted. I spoke to John very, very soon after January 6. And he was just asking me what I had said in what he mistakenly thought was my written advice to the vice president. And I told John that, no, no, no, I had– the only advice I had given the vice president was to tweet on January 5.
DANIEL KLAIDMAN: So it was a perfunctory conversation.
MICHAEL ISIKOFF: yes
DANIEL KLAIDMAN: OK. And the follow up-is, I wonder about both of these former clerks of yours, if, in any way– and if this is something that you thought about– that their trajectory from when they clerked for you to the events of January 6 in any way is representative or symbolic of a kind of wrong turn that was made in the conservative movement or the conservative legal movement in this country or if you think they’re outliers?
J. MICHAEL LUTTIG: That’s a good question, Dan. I’ve never thought about that. But the answer to it is yes, that certainly, their actions on January 6 were representative of legal thought as it’s developed over the past decade– that’s exactly right– with particular emphasis, just by way of explanation, on the independent state legislature theory, which was the centerpiece of the effort to overturn the 2020 presidential election.
To this day, as you know, that is a– well, in fairness, the theory was first articulated by then-Chief Justice Rehnquist, joined by Scalia and Thomas in concurrence, in Bush v. gore But the conservative movement took up that independent state legislature theory in the 2020 presidential election and is now pressing it to this day in the context of the elections clause in Moore v. harpers
So yes, to whatever extent that you want to think of the trajectory of the conservative legal movement being represented by the independent state legislature theory, the effort to overturn the 2020 presidential election, and then today, the effort to give exclusive power to the state legislatures over redistricting at other time, place, and manner of holding congressional elections, the answer to your question is certainly yes. And that’s a very, very interesting question.