The Arch Conservative Jurist Who Helped Save American Democracy From Trump
His personal ideology was no barrier to defending the rule of law
A decisive moment leading up to the riot at the U.S. Capitol came when Vice President Mike Pence was considering whether he could reject electoral votes submitted by some states, thus blocking the certification of the 2020 presidential election. A lawyer for Pence reached out to J. Michael Luttig, a former federal appeals court judge, who told him that the vice president had no such authority.
In a series of tweets on Jan. 5, Luttig proceeded to refute the claim of John Eastman and others who told Donald Trump that Pence could keep him in office,. Luttig wrote: “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. The Constitution does not empower the Vice President to alter in any way the votes that have been cast, either by rejecting certain of them or otherwise.” Pence followed that guidance—and, despite the mob attack the next day, Congress proceeded with the transfer of power to Joe Biden.
The former judge has won considerable praise for his counsel to Pence. To many people familiar with Luttig’s record as a devout conservative, his decision to oppose Trump’s effort and to testify against him before the Jan. 6 House committee last summer may have been a surprise. But it was not the first time Luttig had shown the courage and integrity to stand up to an overreaching Republican president.
At first glance, Luttig would seem an unlikely candidate to become a hero to liberals and Never Trumpers.
As assistant attorney general under President George H.W. Bush, he helped to guide Clarence Thomas through his confirmation to the Supreme Court. Among his closest friends were Justice Antonin Scalia and Trump Attorney General William Barr. His law clerks included Alex Azar, who was secretary of health and human services under Trump, Texas Sen. Ted Cruz, who once described Luttig as “like a father to me,” and John Eastman – the same one who told Trump that Pence could refuse to accept electors. Being highly conservative, intellectually formidable and suitably young, Luttig was on George W. Bush’s shortlist for the Supreme Court. Though he was passed over for two vacancies, filled by John Roberts and Samuel Alito in 2005, he remained a strong contender for a future nomination.
But while innumerable prominent conservatives fell under the spell of Trump before or during his presidency, surrendering their principles in the process, Luttig did not. And in the aftermath of Trump’s attempted coup, he was an unsparing critic. Appearing before the Jan. 6 committee, he said Trump’s “treacherous plan was no less ambitious than to steal America’s democracy.” He has described Trump’s attacks on the democratic process as “utter madness” and denounced the GOP’s “failed leadership” in not standing up to him and, instead, censuring those Republicans who do.
George W. Bush could have foreseen that Luttig was not someone a Republican president could take for granted. That became obvious in the case of Jose Padilla, an American citizen who traveled to Afghanistan, received training from al-Qaeda, and was arrested in Chicago for allegedly planning to detonate a radioactive “dirty bomb” in Washington, D.C.
Rather than prosecute him on terrorism charges, the Bush administration designated Padilla an “enemy combatant” and placed him in a Navy brig in South Carolina. Padilla challenged his confinement, arguing that the president had no power to hold him in military custody and must either charge him with a crime or let him go. A federal district court agreed, and the government appealed to the Fourth Circuit. On Sept. 9, 2005, a unanimous three-judge panel of the Fourth Circuit that included Luttig upheld Padilla’s detention.
In an opinion that Luttig wrote, the court said that under the relevant Supreme Court precedents as well as the 2001 Authorization for Use of Military Force approved by Congress, the president had every right to hold him without trial as an enemy combatant. The opinion stressed “the need to defer to the President’s determination that Padilla’s detention is necessary and appropriate in the interest of national security.” Prosecuting him for a crime, Luttig noted, could allow him to return to the field of battle if he were acquitted. “Equally important, in many instances criminal prosecution would impede the Executive in its efforts to gather intelligence from the detainee and to restrict the detainee’s communications with confederates,” he wrote.
The decision was a resounding victory for presidential power on a matter of great consequence to Bush—and a defeat for civil libertarians troubled by an executive who could unilaterally, without judicial oversight, designate an American citizen an “enemy combatant” and then hold him indefinitely—and incommunicado. However, Bush’s victory was shortlived, thanks in no small part to Luttig.
The administration was not sure it would prevail in the Supreme Court. So instead of risking a ruling that would permanently curtail executive authority, the Justice Department suddenly decided to transfer Padilla to civilian custody and charge him.
To do that, though, it needed the approval of Luttig’s appeals court—which, given the previous ruling, it may have assumed was a mere formality. That was an epic miscalculation.
Luttig and his colleagues’ response boiled down to: “Oh, hell no.” For three and a half years, the Bush administration had maintained that national security required Padilla’s military detention without trial—and suddenly, without explanation, it dropped that claim. The about-face, wrote Luttig, left “the impression that Padilla may have been held for these years, even if justifiably, by mistake—an impression we would have thought the government could ill afford to leave extant.”
The switch, warned Luttig, might exact “substantial cost to the government’s credibility before the courts.” He, and his fellow judges, were having none of it: “We believe that this case presents an issue of such especial national importance as to warrant final consideration by that [Supreme] court.”
For all the lawyerly language, it was a scathing rejection of the administration’s shift. SCOTUSblog called it “the sternest of judicial rebukes on issues of fundamental importance to President Bush’s war against global terrorism.” The Fourth Circuit court, noted Columbia law professor Michael Dorf, was “accusing the government of falsely crying ‘Wolf!.’” Furthermore, “The not-so-subtle message from Judge Luttig is: ‘Don't expect us to put our necks out for you the next time you come before us asking for extraordinary powers on national security grounds. If you didn't need them for Padilla, why should we believe that you need them the next time you say you do?’”
In the end, the Supreme Court allowed Padilla’s transfer to the criminal courts, while holding out the possibility of intervening should the administration decide to return him to military custody, signalling its qualms about such a sweeping assertion of executive power. He was convicted and sentenced to 21 years in prison. In an important sense, though, the court vindicated Luttig. He and his colleagues thought the justices should have the final say, and they agreed.
Luttig’s ruling against what he considered a dangerously irresponsible maneuver by the administration was not likely to endear him to those around Bush. Maybe Luttig would have gotten serious consideration if another Supreme Court seat had opened up under Bush, but this decision would have counted against him—as he had to know when he wrote it. In 2006, he resigned to become general counsel of Boeing, where he remained until his retirement in 2019.
Since 2005, a lot of conservatives have abandoned the ideals they once championed, moving into a Trumpian realm where lies, abuses of power, violence and contempt for the Constitution flourish. But not Luttig. In standing up for the rule of law, he’s right where he’s always been.