J Michael Luttig, the renowned conservative legal scholar and retired federal appellate judge, will appear to give evidence before the House January 6 select committee at its next hearing on Thursday.
Mr Luttig’s participation in the hearing, which was first reported by NBC News, comes as the panel prepares to present its findings on the pressure campaign mounted against then-Vice President Mike Pence by former president Donald Trump and his allies in the run-up to the worst attack on the US Capitol since Major General Robert Ross ordered British troops to burn it in 1814.
The retired federal jurist, who served on the US Court of Appeals for the Fourth Circuit from 1991 to 2006, was one of the scholars consulted by Mr Pence as he was weighing arguments from Mr Trump’s allies who posited that he could unilaterally reject electoral votes from swing states won by Joe Biden.
According to multiple reports, an attorney representing Mr Pence contacted him the night before the Capitol attack asking him to weigh in publicly on whether the then-vice president could take the actions desired by Mr Trump and his aides, which would have thrown the election into chaos by preventing either Mr Trump or Mr Biden from garnering a majority of electoral votes.
Asked how he would advise Mr Pence, Mr Luttig reportedly replied: “You can tell the vice president that I said that he has no such authority at all”.
The conservative legal stalwart had set up a Twitter account several weeks prior, and after writing out a brief statement, began tweeting it out as part of a thread.
It began: “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”.
In a subsequent tweet, he added that the US 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”.
The urgency of Mr Luttig’s public statement had been made clear to him in conversations with Mr Pence’s attorney, through which he learned that a former clerk of his, John Eastman, had been pressing Mr Pence to do exactly what Mr Luttig was advising that he could not.
Earlier this year, a California federal judge found that it was “more likely than not” that the plan concocted by Mr Eastman and pushed for by Mr Trump violated several federal criminal statutes.
In an interview with the PBS programme Frontline, Mr Luttig said Mr Trump’s plan “was to overturn the election through the exploitation of what I’ve called the institutions of democracy and the instruments and instrumentalities of our democracy”.
Mr Luttig opined further on the matter in an April opinion column for CNN, in which he argued that the January 6 attack was a “dry run” for what Republicans intend to do in 2024.
“The Republicans are also in the throes of electing Trump-endorsed candidates to state legislative offices in key swing states, installing into office their favored state election officials who deny that Biden won the 2020 election, such as secretaries of state, electing sympathetic state court judges onto the state benches and grooming their preferred potential electors for ultimate selection by the party, all so they will be positioned to generate and transmit alternative electoral slates to Congress, if need be,” he wrote.
He added that the GOP is also “furiously politicking to elect Trump supporters to the Senate and House, so they can overturn the election in Congress, as a last resort”.
