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The Next Coup

A Conservative Judge Tells the January 6 Committee How to Trump-Proof the 2024 Election

Despite the attempted coup, Congress hasn’t acted with urgency to fix the broken law that Trump tried to exploit.

Anna Moneymaker/Getty Images
J. Michael Luttig, a former U.S. Court of Appeals judge for the Fourth Circuit, testifies before the January 6 Committee.

Thursday afternoon’s January 6 committee hearing—the third session over the past week—included revelations and made-for-TV moments. There was the disclosure that John Eastman, the lawyer providing faux intellectual heft to Donald Trump’s scheme to convince Mike Pence to overturn the election, had asked the president for a preemptive pardon. The committee revealed that an unnamed Proud Boys witness has confessed that members of the extremist group intended to assassinate Pence—which was particularly frightening since Trump’s vice president was within 40 feet of the insurrectionists when Secret Service agents scurried him into a secure location. Ivanka Trump, in a pre-taped deposition, recounted Trump’s last phone conversation browbeating Pence before Congress met on January 6; Nicholas Luna, a presidential aide who was also in the room during the call, told of Trump telling Pence, “You are a wimp. You will be a wimp.”

But the lasting point of the hearing came with the monotone of J. Michael Luttig, a retired judge and conservative legal icon, who was about the most exasperating friendly witness at a high-profile congressional hearing in memory. Luttig reacted to every question with a long pause for serious contemplation before slowly responding word-by-word, mentally editing as he went, as if each answer would be treated as binding legal precedent. Yet there was emotional power in the gravity of Luttig’s words. The conservative jurist believes that not only was electoral democracy in peril after the 2020 election, but that the specter is looming over 2024.

At the core of Luttig’s argument, although it was not precisely spelled out, is the failure of Congress to update the vague and self-contradictory Electoral Count Act of 1887. This is the legislation that Trump and Eastman leaned on to make their case to Pence. As Luttig put it, with a rare dollop of energy in his words, “I would have laid my body across the road before I would have let the vice president overturn the 2020 election on the basis of … historical precedent.”

In his closing remarks, Representative Bennie Thompson, the committee’s chairman, said, “We will be reviewing the views shared by Judge Luttig and other experts on potential improvements to the Electoral Count Act among a range of other initiatives.” The implication from Thompson is that amending the Electoral Count Act would be part of the committee’s final report, scheduled to be delivered no earlier than September.

But September would be dangerously late to begin the legislative process of reform. As the leaves turn in an election year, Congress invariably rushes to get out of Washington, leaving any ambitious legislation on the cutting room floor. And then if the Republicans—as expected based on polls and portents—win back the House in November, any legislative changes to the Electoral Count Act would be at the mercy of would-be House Speaker Kevin McCarthy. Given McCarthy’s complicity in Trump’s “stolen election” craziness, he is not exactly the ally needed for fair-minded reform.

Unmentioned in the hearings was the apparent recent progress made by a bipartisan group of senators eager to rewrite this flawed law. Maine Republican Senator Susan Collins said last week, “We had an excellent meeting … where we resolved almost all the issues.” While many of the details remain murky, the proposed rewrite of the Electoral Count Act would underscore that the vice president’s role in counting ballots is entirely ceremonial. And, equally important, it would raise the bar to challenge a state’s electoral votes from just one member in each chamber to 20 percent of both the House and Senate.

The danger is that Congress will proceed with its traditional lassitude since the Electoral Count Act will not become relevant again until January 6, 2025. But delay would be tragic at a time when democracy—as Luttig stressed—is in peril. Any legislation this year probably requires a Senate compromise bill to hit the floor by the beginning of September at the latest. Also, like with guns, left-wing House Democrats would have to accept what is legislatively possible rather than demanding that the revision of the ECA also include voting rights protections that would never survive a Senate filibuster.

In his final statement, Luttig warned that Trump and his supporters are still out there plotting against democracy in the 2024 election. “If the former president or his anointed successor as the Republic Party presidential candidate were to lose that election,” Luttig said, “they would attempt to overturn the 2024 election in the same way that they attempted to return the 2020 election.”

While Luttig provided the legal grounding to overturn Eastman’s bogus arguments, Thursday’s other live witness, former Pence counsel Greg Jacob, provided the anecdotes. The garrulous Jacob recounted a conversation he had at the White House with Eastman the day before the electoral votes were counted. “If the vice president did what you were asking him to do, we would lose 9–0 in the Supreme Court,” Jacob told Eastman. Eastman’s initial counterargument? The Trump team would only lose 7–2. (While Eastman never named justices, it is a safe bet that one of the two possible dissenters would have been Clarence Thomas, whose wife Ginni the committee plans to question about her stop-the-steal plotting with Eastman and other Trump dead-enders). Finally, after further argument, Eastman conceded to Jacob that the verdict against Pence’s assertion of unilateral power would have been unanimous.

Video testimony provided other repudiations of Eastman’s nutcase legal theory. Eric Hershmann, the deputy White House counsel under Trump, recalled telling Eastman, “Are you out of your effing mind?… You’re going to turn around and tell 78-plus million people in the country that your theory is this is how you’re going to invalidate their votes?”

The first three hearings of the January 6 committee have built a powerful case that Trump both orchestrated the violence at the Capitol and then deliberately did nothing to stop it. What gives the hearings so much heft is that the case is being made by prominent conservatives such as Luttig and former administration officials like Jacob. And instead of a “smoking gun” of Watergate fame, there is instead the frightening noose erected on the Capitol grounds intended for Pence.