While he is a conservative, he has been an outspoken stalwart defender of democracy and that's what he does in this excellent interview with Michael Popok of Meidas Touch.
Judge Michael J Luttig is a legal hero for democracy. We disagree, no doubt, on plenty of important things with him, but right now we face an existential threat to our democracy and Judge Luttig is one of the very few brave people with the character and the integrity to choose country over partisanship. Michael Popok of Meidas Touch had an interview with Former Appellate Judge on the topic of the oral argument that took place in Court.
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The argument that is apparently gaining some traction with the conservatives is that the president must have absolute immunity for all acts performed in the fulfillment of his office or an aggressive partisan prosecutor will prosecute the former president for merely performing.
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Michael Popok: In this pivotal moment as our democracy is teetering, I welcome back to the show for a special interview Former Federal Appellate Judge Michael J Luttig for his strong views on what just happened at the Supreme Court in oral arguments about whether Trump and future presidents will be given immunity from criminal prosecution when they try to overthrow democracy and stop the peaceful transfer of power required by our Constitution. Judge Luttig, conservative icon, renowned Constitutional scholar, short list for the Supreme Court, he pulls no punches as a firebrand a defender of the rule of law and the Constitution. Welcome back to our show.
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Judge Luttig: Thank you Michael, it’s always a real pleasure to be on with you.
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Michael Popok: Let’s dive right in, Judge. You just declared, I read it on your social media, based on your observations in what happened in oral argument this week, the right wing justices of the Supreme Court if they rule to provide immunity to an American president for attempting to overturn a presidential election and cling to power would in your words, “cut the heart out of America’s democracy and the rule of law and unsoul the nation. We love this country, the rule of law, the Constitution, and the Supreme Court’s historic role in protecting our democracy from threats foreign and domestic. Why are you so disturbed by what you observed at this oral argument?
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Judge Luttig: Michael, America’s democracy, the rule of law, are the heart and soul of the nation. It’s for our democracy and for our rule of law that America has been known as the beacon of freedom to the world for the past almost two hundred and fifty years. The former president’s effort to overturn the 2020 presidential election in order to remain in power and to deprive his successor, Joe Biden, of the presidential powers to which he was entitled that he assumed by virtue of having been elected by the American people which prevented for the first time in American history the peaceful transfer of power, from one president to the next drew into question America’s democracy and the rule of law. Three and a half years since January 6, 2021, the former president has continued to defy America and the Constitution and he’s unapologetic about what he caused on January 6, 2021. This week, the Supreme Court heard the former president’s argument that he is entitled to absolute immunity, absolute presidential immunity, from prosecution for those crimes, those grave crimes against the United States of America.
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And frankly any other crimes that he may have committed) while he was in office. In fairness, I suppose, to his argument, he argues that every president, all future presidents for crimes they committed while in the office of the president of the United States. His argument which gained some receptivity with the Supreme Court this past week is that unless a president and in this case he in particular have absolute immunity for crimes that they commit against the United States of America , then he and they will be unable to effectively discharge their constitutional responsibilities to faithfully execute the laws of the United States. That’s frankly a preposterous argument . It’s never even been thought of until Donald Trump came along. Under the Constitution and the laws of the United States a president, is never, must never be immune from prosecution for offenses against the United States. Once he leaves office and is prosecutable under the rules of the Department of Justice
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Michael Popok: I tell you that you saying that to our audience is so powerful, to have somebody in a position formerly an appellate judge who knows this court well, who knows the people and the players on this court, we’re going to talk about people like Justice Gorsuch, Justice Kavanaugh, Chief Justice Roberts and what you observed, about how they were leading the conversation and the direction they were leading in our democracy too, but first I want to play a clip that I think is you hit on right now and for me it resonated the most Justice Ketanji Brown Jackson who for me is becoming an intellectual heavyweight if she wasn’t already, but she was when she got on, but she is quickly establishing herself at least at the modern left wing of the Court, being an intellectual heavyweight. Let’s listen to how she put her fears about a a lawless president who is in office
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(sound) Jackson ???
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Justice Jackson- So I think I now understand better your position in your discussions with Justice Kavanaugh it became clear that you are saying that for the private acts of a president, there is no immunity but for the official acts of the president there is immunity. Is that your position?
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D. John Sauer: I agree with that
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Justice Jackson: Alright. Um. So, one thing that occurs to me is this sort of difficult line drawing problem that we are having with all of these hypotheticals, is this a private act or a public act is being necessitated by that assumption because of course if official acts didn’t get absolute immunity, then it wouldn’t matter. We wouldn’t have to identify which are private acts and which are private and which are public, correct?
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D. John Sauer: That, in fact, is the approach of the DC circuit. There is no determination that needs to be made. (unintelligible). ..
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Justice Jackson: Right. But I am just making, to the extent that we’re worried about how do we figure out if it’s private or public, we have to understand that we are only doing that because of an underlying assumption that the public acts get immunity. So, let me explore that assumption. Umm, Why is it, as a matter of theory, and I am hoping that you can sort of zoom way out here that the president would not be required to follow the law when he is performing his official acts. But other people who have consequential jobs and who are required to follow the law make those determinations against the backdrop of that same kind of risk.
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So what is it about the president, I mean I have heard you say, ‘It’s because the president has to be able to act boldly, do, you know, make those kinds of consequential decisions, I mean sure, but again there are lots of people who have to make life and death kind of decisions and yet they still have to follow the law and if they don’t they could be sent to prison. I guess more, you seem to be more worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn’t chilled, someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes. I am trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country.
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Michael: Do you agree with Justice Jackson?
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Judge Luttig: Well, I absolutely do, Michael. This entire distinction between official acts, official acts that might give rise to criminal prosecution and private or personal or candidate acts that might give rise to criminal prosecution is a tempest in a teapot (meaning overblown !) For almost 250 years since the founding of this nation this line has never been suggested, let alone, held to exist by the Supreme Court of the United States.
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But I am so confused by this for this reason: As Justice Jackson was saying, if anything, if anything, the president should be accountable for criminal acts taken in his official capacity. I, of course, agree that he or she should also be accountable for private or personal and, of course, candidate acts, but it’s counter-intuitive to me, Michael, to argue as the former president has done and as the Supreme Court is considering that the president of the United States should not be prosecutable and, therefore, should be immune from prosecution for criminal acts against the United States committed in his official capacity as the president of the United States. I simply do not get it.
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But there’s no question at all that the Supreme Court is considering just that. Now I will add this the Supreme Court is concerned about the criminalization of presidential acts and actions should not be criminalized. I understand that concern. That’s not the case here. The Supreme Court has before it one single case that presents one single question for decision. and that is whether a president of the United States can seek to overturn an election that he lost fair and square, so as to remain in power, depriving his successor his rightful power by virtue of having been elected by the American people and at the same time, preventing the peaceful transfer of power for the first time in American history is the narrow, specific and profoundly important question before the Supreme Court today. and it’s the only question. and during this week’s argument which lasted over two and a half fours , the Supreme Court barely even discussed that issue. .
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Judge Luttig’s tweet: As with the three-hour argument in Trump v. Anderson, a disconcertingly precious little of the two-hour argument today was even devoted to the specific and only question presented for decision.
There doesn’t seem to be any debate that a former president does not have immunity for acts outside of the scope of their official duties of their office. So, as Justice Ketanji Brown Jackson pointed out, the entire argument is really about whether or not there is absolute immunity for any conduct performed while in office.
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Something relevant to the upcoming discussion:
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Constitution?
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Article I, Section 9, Clause 7: No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
https://constitution.congress.gov › ...
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Article I, Section 8, Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; . . . Cummings v.
https://constitution.congress.gov › ...
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The point of the quotations from our Constitution, as everybody here must have anticipated, is that the Congress has the power of the purse.
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I have something else to say about absolute immunity for "official acts" while in office. This is a practical example that we all know about and remember.
When the defendant was in office, one of his duties was to speak with leaders of other nations. Congress approved $400 million in aid for Ukraine in 2019. President Zelensky was, as can see now, rightly concerned that Putin's Russian Federation was going to attack and invade his country of Ukraine. The defendant knew this. It happens to be the case that foreign aid goes out from the Department of Treasury which falls within the executive branch.
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The defendant knew that President Zelensky would grow increasingly nervous and concerned when the aid that he knew had passed Congress had not yet been delivered to his country. The defendant did this to put enormous pressure on President Zelensky and use this as leverage on President Zelensky to get him to perform a political favor for him. The defendant and President Zelensky were finally on the telephone speaking to each other. The defendant knew that President Zelensky would bring up and ask for the aid approved by Congress to be delivered. The defendant was ready for this. He had planned it out. He was setting a trap. He had decided to demand a personal political favor for him as a condition for having the aid approved by Congress for Ukraine delivered to Ukraine. The defendant executed his plan. When President Zelensky asked for the aid already approved by Congress to be delivered, then the defendant replied, "But I need a favor first."
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By saying this immediately after President Zelensky asked for the aid approved by Congress to be delivered, the defendant placed an additional condition for receiving the aid, something he had no legal or Constitutional right to do. This was an abuse of power. The defendant demanded that President Zelensky announced that Joe and Hunter were under investigation in Ukraine as a condition for receiving the aid. This was not true.
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This was a crime in the midst of performing his official duties. This, thus, is not hypothetical. It has already been.
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On the other hand, let's consider this unjustified hypothetical fear that the Trumper partisan hacks on the Supreme Court have. They are afraid that a president may get prosecuted in bad faith by a partisan district attorney or partisan attorney general.
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Okay, so first, this has never happened in the nearly 250 years that this country has existed. The four indictments against the defendant are based on actual crimes that he committed and if anybody else had committed these crimes, they would have been prosecuted as well. It is the year of our Lord 2024 and the defendant has still not yet been held accountable for the serious crimes he committed. Therefore, the evidence says that their fear is irrational and not based in reality and the real danger is that a president would never be prosecuted no matter what crimes he committed. Richard Nixon was not prosecuted for Watergate nor was Ronald Reagan for the Iran Contra affair nor was President Clinton nor was President Bush for authorizing waterboarding which is a violation of the Geneva Convention.
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A president is clearly not going to be prosecuted while in office. A president will not in the foreseeable future be removed from office after being impeached because the threshold to realize this is too great. So, the president would need to be prosecuted after they have left office. Neither major political party will gain a huge majority of the voters within their coalition in the foreseeable future. Any partisan hack having an interest in prosecuting the other party's president would have to foresee that they would HAVE ZERO PROBABILITY of successfully prosecuting a former president unless there was extremely strong evidence and it was not simply selective prosecution.
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It seems to be the case that just getting an indictment would be a heavy lift, but if there were not extremely strong evidence or there were any grounds for believing that it was selective prosecution, then the prosecutors would lose. All the president on trial would need to get to is one juror to have reasonable doubt. If the defense, therefore, could show that there was any rational basis for concluding that this act was arguably in performance of his duties, then even in the worst case scenario, there would be a hung jury. In such a case, there is zero chance for a successful prosecution.
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Therefore, the hypothetical worry that the Trumper partisan hacks on the Court have is never going to be realized in the real world. On the other hand, the defendant has made it crystal clear that it is not only possible for a president to commit a serious crime while nominally performing the official duties of their office, he actually has done it. He, the defendant, committed serious crimes while nominally performing his official duties of his office.
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Thus, as Justice Ketanji Brown Jackson made clear, we don't even need to consider how to determine if an act is an official duty of the president's office or not because there cannot be absolute immunity for a president even while nominally performing the duties of his office. There is no absolute immunity for anybody in this country including the president of the United States. If there were absolute immunity for the president whether while doing his official duties or not, the president would no longer be equal under the law. Rather, the president would be a dictator. This is clearly the opposite of what the framers of the Constitution wanted which should be decisive if one is a conservative, textualist jurist.
