Today, in his first in-depth interview on the subject, Luttig shares the story of those days before the insurgency, when he was unknowingly enlisted to help Pence defeat Trump’s efforts on January 6.
For “Playbook Deep Dive,” Ryan Lizza talks with Luttig about his advice to Pence, what needs to be done to rewrite the voter count law now, and why he’s choosing this time to make his legal commentary loud, clear, and very public – in panel discussions and opinion pieces in publications like the New York Times. A transcribed excerpt from that conversation is below, edited for length and readability.
J. Michael Luttig: I was first called by the Vice President’s outside counsel, Richard Cullen, on the evening of January 4. We now know that was after the fateful Oval Office meeting that day between the president and vice president, where John Eastman argued that the vice president could unilaterally nullify the election as president.
Ryan Lizza: And you know John Eastman?
Struggle : John Eastman was a clerk of mine — over 25 years ago — and Richard Cullen is one of my closest friends throughout my life. And we had, by then, been talking seemingly every day – if not multiple times a day – throughout the Trump administration because, of course, our close friend, Bill Barr, was the attorney general.
So he called me. I was having dinner. It’s okay: it’s like your best friend is calling you. He called the night of the 4th and said, “Hey Judge, what do you know about John Eastman?” And I said, “He was one of my clerks 30 years ago.” He said, “Well, what else do you know?” I said, “I don’t know. John is an academic, he’s a professor, he’s a constitutional scholar — and he’s a brilliant constitutionalist.
Lizza: It’s a little shocking to hear you say that, considering how most people were introduced to John Eastman.
Struggle : Well, read everything written about him before, you know, January 6th.
Lizza: So it’s interesting: the person who was the architect of the coup attempt, basically — I think it’s fair to use that language — was actually a well-respected legal mind with a sound outlook of the Constitution and not a legal charlatan.
Struggle : That’s right: The furthest thing from that. So Richard said, “Well, you don’t know, do you?” And I said, “You know what?” He said: “John informs the president and the vice president that the vice president has this authority [to reject electoral votes] January 6”—in two days. And I said, “Wow, no, I didn’t know that. Well, look, you can tell the vice president I said he had no such authority at all. And Richard said he knew that, I said OK, and we hung up.
So I told my wife about the call and said, “Wow. It’s big. I got up the next morning—I get up around 4:45 a.m.—and I’m having my coffee, and Richard calls me—which isn’t unusual. But the to call was unusual. He said, “Judge, can you help the vice president?” And I said, “Sure, what does he need?”
He said, “Well, we don’t to know what he needs. And I said, “What do you mean, you don’t know what he needs?” So why are you calling me? He said, “Look, this is serious.” I said, “Okay, I understand. What do you want?” He talks with Marc Short and the vice president. And he says, “We have to do something publicly, get your voice heard in the country.”
At that point, I said, “Oh my God, Richard, I don’t even have a job, let alone an official job. I have no platform to speak from. I’m here in Colorado at 6 a.m. I don’t even have a fax machine. I said, “I really don’t even have a thought.” And he said, “It’s urgent.” I said, “I understand.” He said, “I’ll call you back in five minutes. So we hung up, and I sat there, finished my coffee – racked my brains.
Just try to put yourself in my shoes. I had no idea [what to say].
So he calls me back in five minutes: “Do you have anything else?” And I said, “No, I don’t know, Richard.” He said, “I’ll call you back in 10 minutes. So he calls back in 10 minutes, and I said, “Richard, honestly, I have no idea what I can do.” And he said, “I’ll call you back in 10 more minutes, but we have to move.” He called back after 10 minutes and I said, “Okay, I got a Twitter account a few weeks ago, but I don’t know how to use it. He said, “Perfect”. And I said, “I told you, I don’t know how to use it. He said, “Understand it and do it.” So I called my tech son who works for Peter Thiel, and I said, “How can I tweet something longer than 180 characters?”
Lizza: Wait a second. You’re in the position here where the vice president is being pressured by the president of the United States to nullify the election results. And you’re the go-to legal mind that’s respected among Republicans to whom the vice president turns to stop a coup. Am I right?
Struggle : To answer your question: I understand the gravity of the moment and the momentous task for which I have been asked to assist the Vice President. I had followed all this very closely in the days that had preceded. It was then – and perhaps forever will be – one of the most important moments in American history. I’m cut, but I’m dead serious when the time comes, and that day I was as serious as I could get.
Lizza: But first, you have to learn to tweet.
Struggle : So my son… well, first of all he says, “Dad, I don’t have time for this. You have to learn this stuff on your own. …I’m busy.” To which I said something like, “Just tell me now how to do this, or I’ll cut you out of the will.”
The only thing I knew how to do was to type in prose everything I wanted to say. Well that was like 10 tweets [long]. So I go down to my office, and I open the [Twitter] instructions on my laptop and I copy and paste what I wrote on my iPhone into my laptop into a word document and then proceeded to break it up into 180 character tweets. I read and re-read it several times, then I take a deep breath and press “tweet”.
Almost immediately, reporters started calling me, “Judge, what are you doing? And I say, “What do you mean?” And they said, “You didn’t just tweet what you just tweeted for no reason.” And… I said, “If I tweeted that for a reason, I wouldn’t be free to tell you. Minutes later, the New York Times published the tweet…
Lizza: And more importantly, the VP quoted your January 6 legal analysis in his famous letter explaining what his responsibilities and powers were that day.
Struggle : Yes, this could be the greatest honor of my life. But it caught my attention in the least auspicious way. I received two consecutive e-mails on [January] 6th of two of my clerks—both to the effect of: “Judge, we know what you are doing. And I said, “Guys, I don’t know what you’re talking about.” They said, “The vice president is on his way to the Capitol, and he quoted you in his letter to the nation. And they sent me a copy.
This is the first time I knew what was going to happen with the tweet from the day before. No one had ever told me that. I had no idea. And they obviously didn’t want to and didn’t intend to tell me – and that’s fine; These are not my things. I was overwhelmed to read this and honored.
Lizza: Was it a total surprise? At the most important moment in Vice President Pence’s life, this letter saying no, he can’t overturn the results; his role as a simple minister — you were totally surprised that he cited your legal analysis as justification for his point of view?
Struggle : Complete, total surprise. And the vice president called me the next morning to thank me.
Lizza: Can you tell us a bit about this conversation?
Struggle : He was the most graceful person in the world. I was at a UPS store in Vail, Colorado, standing outside in the cold, and my wife was sending a package. A call came [on my phone] like spam. I never reply to spam, but I had nothing else to do. So I answered it. I didn’t say anything for apparently 15 seconds. And then a voice said, “Is that Judge Luttig?” And I was surprised and I said, “Yes, it is.” And the voice said, “Please wait for the vice president.”
I rushed to the car for some privacy. The Vice President continued, “Judge, this is Mike Pence.” And I told the vice president that it was the greatest honor of my life that he asked of me and I will be grateful to him for the rest of my life.