Opinion How a conservative judge’s attack on the GOP could shift the debate


HR King
May 29, 2001
The revelatory blows to the Supreme Court are coming fast and hard. We just learned that Justice Clarence Thomas’ wife corresponded by email with John Eastman, who developed Donald Trump’s coup blueprint. We also learned Eastman might have had inside knowledge of the court’s deliberations about election cases.
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But the timing of that new reporting — in The Post and the New York Times — is fortuitous in a hidden way. A retired conservative federal judge who is well respected by Republicans just happens to be scheduled to testify to the Jan. 6 select committee on Thursday afternoon.
This provides an opening for Democrats to question the judge, J. Michael Luttig, about these new Supreme Court developments. That would mark a new turn in the Jan. 6 hearings.

The committee has been reluctant to tackle questions about Virginia “Ginni” Thomas, despite evidence of her direct discussions with top Trump advisers about the coup plot. But someone with Luttig’s pedigree could compellingly address such questions — and indict the broader pro-coup spirit infecting some GOP and conservative elites.

Luttig’s opening statement for the Thursday hearing shows why. The line making news is Luttig’s claim that Trump developed a “well developed plan” to cling to power illegitimately. He aptly says this would have “plunged” our country into a “paralyzing constitutional crisis.”

But there’s something more important in Luttig’s testimony. He indicts the Republican Party as a whole, not just for 2020, but also for going all in on a future in which election losses will henceforth be treated as inherently illegitimate and subject to subversion.

Much of the GOP, Luttig will suggest, is still wedded to the idea that reversing the 2020 election might in some sense have been a legitimate or at least understandable mission. Many Republicans, he will say, have adopted the principle that a future overturned election might be needed “to accomplish that which the previous revolt failed to accomplish.”

Luttig warns this portends an era of dangerous democratic instability. He says only Republicans can end this madness: “Only the party that instigated this war over our democracy can bring an end to that war.”
This willingness to unambiguously indict the GOP’s radicalization against democracy suggests questioning him about the latest Supreme Court revelations could help clarify matters in a big way.

Those revelations are striking. The Post reports that the committee has obtained emails between Thomas and Eastman which show her involvement in the effort to overturn the 2020 election was more involved than previously known, though it’s not clear how.
We already know Thomas extensively corresponded with White House chief of staff Mark Meadows about the coup plot during a period when Trump and his allies pressured many government actors to help execute that plot. She also pressured state legislators to subvert Joe Biden’s electors.


The latest news suggests the possibility that Thomas corresponded directly with Eastman about deliberations within the Supreme Court with regard to upcoming election cases involving Trump’s effort to overturn the election.

Indeed, the Times reports that Eastman emailed another Trump lawyer to report a “heated fight” inside the court about one such case. Though there is some reason for skepticism that Eastman had such knowledge, at the least this raises unknowns that need filling in.
Luttig is testifying as a fact witness, having advised the staff of then-Vice President Mike Pence that subverting the election for Trump would be illegal. But Luttig wants to go bigger about the long term threat to democracy. So why not ask him about all the Supreme Court-related revelations?
“I don’t think it’s unreasonable for the committee to push Judge Luttig about the growing pile of circumstantial evidence connecting Ginni Thomas to the story in multiple respects,” Stephen Vladeck, a law professor at the University of Texas at Austin, told me.

Vladeck noted that the murky nature of her involvement makes it hard to tease out its institutional implications for the high court. As Vladeck put it, we still don’t know “just how well coordinated the antidemocratic faction was” across all branches of government. Luttig could shed light on this in a high profile, authoritative way.
The judiciary performed very well under intense pressure from Trump and his co-conspirators in 2020. Similarly, there’s a faction of conservative elites — albeit perhaps a rapidly shrinking one — that wants the GOP to unambiguously renounce Trump’s coup effort, and with it, the GOP’s drift into treating future election losses as illegitimate and nonbinding as party dogma.
That faction includes Pence and Rep. Liz Cheney (R-Wyo.), vice chair of the committee, and a number of others. Luttig could boost this faction, perhaps by calling on conservative judicial elites to unambiguously condemn Thomas’s involvement, and more broadly, that ongoing GOP drift.

“Luttig is clearly a part of that faction,” Vladeck said. “Luttig saying these things is far more important to conservative legal circles than Liz Cheney saying these things.”
Or, as constitutional law expert Eric Segall put it to me, Luttig has the power to reach conservative judicial elites who “deep down know how dangerous 1/6 was, and need a hook to help make sure it doesn’t happen again.”
Luttig’s testimony offers a real opening to shift this debate. Democrats should make the most of it.

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