Former Federal Judge: Court challenge to keep Trump off GOP Presidential Primary in Colorado is not about politics

· Dec. 6, 2023, 4:00 am
Electoral College ProtestsElectoral College ProtestsJose Luis Magana/AP Photo
Supporters of President Donald Trump rally at the U.S. Capitol on Wednesday, Jan. 6, 2021, in Washington.

J. Michael Luttig said he’s unaware of the politics behind the group trying to keep former President Donald Trump off Colorado’s presidential primary ballot – he just wants their effort to succeed.

“It certainly doesn't matter to me. I don't do politics. I only do law and in this instance constitutional law,” the former federal judge told Colorado Matters host Ryan Warner. “All that matters as a matter of constitutional law and constitutional interpretation is that the framers wrote into our constitution that any person who having previously taken an oath as an officer of the United States to support the Constitution and have thereafter engaged in an insurrection or rebellion shall not be permitted to hold high offices including the office of the President of the United States.”

Citizens for Responsibility and Ethics in Washington (CREW), a group of six Republican and unaffiliated voters filed a lawsuit saying that clause of the 14th Amendment should disqualify Trump. However, in November, Denver District Court Judge Sarah Wallace found that while Trump did engage in an insurrection, the Constitution does not bar him from seeking the presidency again.

CREW has filed an appeal with the Colorado Supreme Court, and oral arguments in the case will be heard beginning Wednesday, Dec. 6, (attorneys for Trump have also filed an appeal, disputing Wallace’s finding that he did engage in insurrection and questioning whether a state court judge like her, rather than Congress, should settle the issue).

Luttig, who was appointed to the bench by George H.W. Bush, helped CREW craft their appeal; said he expects Wallace’s finding on Trump’s eligibility to be overturned.

“I don't have any doubt that the Supreme Court of Colorado will see the error that Judge Wallace made in her holding that the 14th Amendment doesn't even apply to the former president,” he said. 

Luttig addressed a number of topics in the conversation, including the argument that Trump’s ultimate political fate should be decided at the ballot box and not in a courtroom, how he expects that the Colorado case will ultimately reach the United States Supreme Court, as well as dismissing the attempt by one of his former law clerks – John Eastman – to halt the electoral college vote in 2021 and keep Trump in power.

Luttig on the courtroom versus the ballot box:

“I understand the argument, but it's not either or. The Constitution of the United States is our charter of government. It is not an option not to apply any provision of the Constitution of the United States if it is applicable. And that's what the states are about doing today, just like in Colorado.”

On the Colorado case reaching the Supreme Court (and what might happen there):

“The Colorado District Court addressed the 14th Amendment question and both the significant question of insurrection as well as the applicability of section three to the former president. That's the first court in the land who's done so, and therefore the Colorado Supreme Court case could well be the first case to go to the United States Supreme Court."

"The nine members of our Supreme Court, they are charged and bound by oath to decide questions under the Constitution of the United States without regard to any other variable, including politics writ large or their own political viewpoints or biases … I believe that this Supreme Court will decide that the former President is disqualified from higher office by the Section 3 of the 14th Amendment, because that's what the Constitution of the United States says.”

On former University of Colorado visiting scholar John Eastman’s attempt to convince then-vice-president Mike Pence to halt the electoral college certification process:

“I got the call on the night of January 4th from the Vice President's Council and dear friend of mine, Richard Cullen. Richard said, ‘What do you think of John Eastman?’ I said, ‘Well, he's a former clerk. He's a brilliant constitutional scholar, and why are you asking?’ And Richard said, ‘Well, Professor Eastman was in the Oval Office this afternoon telling the President of the United States and the Vice President of the United States that the vice president could overturn the election two days hence on January 6."

“And so my first initial response to Richard was, ‘You could tell the vice president that he has no such authority under the Constitution at all … ’ I said that perhaps these were arguments that would be appropriate for a constitutional law class, but they were singularly inappropriate as counsel to a President of the United States of America who was about to try to overturn a presidential election that he had lost fair and square.”

The following interview has been edited for length and clarity:

Ryan Warner: The initial lawsuit was filed by Citizens for Responsibility and Ethics in Washington or CREW. That's a liberal group that brought the case on behalf of six voters, a mix of Republicans and unaffiliates. They argued that a section of the 14th Amendment bars those who've taken an oath to uphold the US Constitution and later rebelled against the government from holding elected office again. And this is a legal approach you helped bring to light.

Judge J. Michael Luttig: Ryan, first, let me just say that January 6th is not a political event. It constituted grave crimes against the United States of America on all of these legal issues that are going to move forward through the courts in the year ahead, including this one in Colorado. We're not talking about politics. So you mentioned CREW. I don't know much about CREW at all. I don't know that they're a liberal organization. My only point to you as we get started is that it doesn't matter and it certainly doesn't matter to me.

I don't do politics. I only do law and I've evaluated section three of the 14th Amendment and that's exactly what CREW has done in its briefs in the lower court and now in the Colorado Supreme Court.

And tell me more about coming to this section, section three of the 14th Amendment.

My good friend, the esteemed Harvard Law Professor Laurence H. Tribe and I have tried to walk the country through these myriad of legal issues beginning on January 6, 2021 together. He's been studying section three of the 14th Amendment his entire professional career. The bottom line is that Professor Tribe and I had been thinking and thinking deeply about section three for the past two years, and that eventually led to the day when Professor Tribe and I wrote an article in The Atlantic. And from that moment on, Ryan, it took off.

And how do you respond to the argument that this section of the 14th Amendment stems from the Civil War and is not relevant today? I imagine you faced that question very quickly.

Yes. There is no provision in the Constitution of the United States that's anachronistic or irrelevant.

There are any number of people on both sides of the aisle who argue that this ultimately should not be decided in a courtroom but at the ballot box. Let voters scrap Trump if they so choose. How do you respond?

I understand the argument, Ryan, but it's not either or. The Constitution of the United States is our charter of government. It is not an option not to apply any provision of the Constitution of the United States if it is applicable. And that's what the states are about doing today, just like in Colorado.

Let's get back specifically to the Colorado case and its appeal. In her decision last month, Denver District Court Judge Sarah Wallace said that although Trump engaged in an insurrection, this section of the Constitution doesn't appear to apply to candidates for president. Basically, the Constitution lists a lot of offices it does apply to, and the president isn't one of them explicitly. So she concluded the drafters may have meant to leave it out. Your side argues she got it wrong here. How are you making that case?

It's interesting the way that you phrased Judge Wallace's holding because she did appear to agonize over that ladder holding, that the office of the president is not an office under the United States, and that the former president, therefore had not taken an oath to support the Constitution as an officer of the United States. So then to the argument that I believe is correct, the Constitution itself refers to the office of the President as many as nine or 10 times.

There simply is not an argument that the president does not occupy an office under the United States or that he is not an officer of the United States. Judge Wallace wrestled and grappled with that, but nonetheless came to the conclusion that the section three doesn't include the office of the president because it was not explicitly and expressly listed as an office from which one could be disqualified.

And let me just say for his part, former President Trump's side has argued that he did not engage in insurrection and has questioned whether a state court judge rather than Congress should settle this issue. And his attorneys make the case that the clause doesn't apply to him for a slightly different reason, that it covers officials who swear to support the Constitution. And the President actually promises to preserve, protect, and defend the Constitution when taking the oath of office, just to inject a little bit more legal and constitutional nuance.

That's not what we call constitutional nuance, Ryan. That's what we call a frivolous argument.

Do you think that's a distinction without a difference?

No, I think it's worse than that, Ryan. That's not my point at all. That's a frivolous argument. There's no court in the land who would ever accept that argument.

What do you think a better ruling would look like?

Well, having studied this now for years, I really believe, Ryan, that literally the only argument that is persuasive and therefore that should prevail, and I can't state it any simpler than is stated in the Constitution itself, which is that the presidency is an office under the United States, one. Two, the president is an officer of the United States.

And three, the presidential oath is an oath to support the Constitution of the United States, which is referenced in section three of the 14th Amendment. Now, that's not to address at all yet the insurrection.

Is it important that the judge in the Colorado case on the first go-round found it to be insurrection?

It is of momentous significance, Ryan. Momentous significance. I can't imagine that the Supreme Court of Colorado would ever reverse that decision by Judge Wallace. By the same token, I don't have any doubt that the Supreme Court of Colorado will see the error Judge Wallace made in her other holding that the 14th Amendment doesn't even apply to the former president. Incidentally, Ryan, there were two decisions that came out of enormous significance, not just for the former president's criminal trials that are going to be held this coming year, but also for this 14th Amendment question.

In the first decision, the DC Circuit held that the former president is not entitled to civil immunity from suit for his conduct up to and including January 6th. And then two hours later, the federal district court in the District of Columbia held that the former president is not entitled to immunity from criminal prosecution for the former president's conduct up to and including January 6th. So that the significance of those twin holdings is that the president will now be prosecuted. And that hearing, that criminal trial will begin in March just two or three months from now.

Meanwhile, you've got these other 14th Amendment cases like Minnesota and Michigan both rejected on different grounds by the courts. Care to comment on the lack of success of this argument elsewhere?

Yes, in fact, I'm glad you asked that question. It's not a lack of success at all, Ryan. This is the normal judicial process in the state and federal courts in which various courts that are deciding the same question decide different parts of the case. So these other courts, for instance, they did not decide the federal constitutional question at all. Rather, they decided only the issues under state law as to whether the plaintiffs, if successful, could bar the former president from being on the state ballots in the primaries in those states.

So they did not address this question at all. The Colorado District Court addressed the 14th Amendment question and both the significant question of insurrection as well as the applicability of section three to the former president. That's the first court in the land who's done so, and therefore the Colorado Supreme Court case could well be the first case to go to the United States Supreme Court.

Ah, I'm glad you invoked the highest court in the land, and its nine members where conservatives are in the majority, three of the justices nominated by the former president. I don't want to paint judges as purely political animals by any means but does this all become moot at the US Supreme Court?

No, that's not my view at all, Ryan. I understand and appreciate the view you just expressed, but the nine members of our Supreme Court, they are charged and bound by oath to decide questions under the Constitution of the United States without regard to any other variable, including politics writ large or their own political viewpoints or biases.

You have faith in this court as objective?

I have faith in the institution of the Supreme Court of the United States. I have always had a reverence.

You've made a distinction there with a difference that you respect the institution, but I'm asking you pretty specifically about these nine justices.

I understand, and I'll answer that specific question, Ryan. I believe that this Supreme Court will decide that the former President is disqualified from higher office by the Section 3 of the 14th Amendment, because that's what the Constitution of the United States says.

Am I hearing bravado? Or am I just hearing certainty on the legal facts? I just want to make sure to parse that out.

Yeah, I barely know what bravado means in the legal context, Ryan. I take your question. No, it's not bravado. The only thing I do. The only thing I've ever done in my whole life is analyze the law and come to a conclusion as to what the law says and means. That's all I'm doing here.

I just want to note as well for those, maybe trying to parse the politics here, that you were appointed to the bench, I believe, by George HW Bush.

That's correct. In 1991, I think, Ryan.

I guess that you'd be nominated and then the Senate would confirm you, not appointed. But I do want to ask you a political question. Do you think that Mr. Trump is his own distinct entity, trend, animal force movement? Or is this indicative of deeper trends in society?

Well, I believe the former president is unique in all of the history, and I'm confident that he will always be. That's not to say though, that his movement will not continue for decades to come, because of the obvious reason that essentially all of the Republicans have supported and defended the president in the past three years up to and including this day. And they seem prepared to nominate him as their standard-bearer, notwithstanding, if not despite, the facts that he tried to overturn the 2020 presidential election in flagrant violation of the Constitution of the United States, that he has been criminally charged by the United States for his efforts to overturn the 2020 presidential election. He will be tried in a court of law beginning in March for that offense. In addition, the former president will be tried this coming year for his retention of the classified documents at Mar-a-Lago, and he'll be tried in other jurisdictions for other state offenses that your listeners know about. This will be a spectacle unlike anything that we've ever witnessed in American history, a spectacle that the former president himself decided that he wanted to thrust upon the nation. It bears repeating even at this late date that the former president is the first president ever in our history since our founding almost 250 years ago, who has even been criminally charged, let alone tried to conviction or acquittal.

It's fascinating how many of his supporters point to that novelty, to that first, and say that's about the corrupt judicial system, not about Mr. Trump. But I think what I hear you saying is that is extraordinary, and it's not extraordinary because there's been some huge sea change in the judiciary, and in law enforcement and criminal justice. But this is indeed a new animal.

No, this is a new animal. And frankly, Ryan, a new Republican Party.

In the days leading up to January 6th, Trump supporters, including John Eastman, the attorney who at the time was a visiting scholar at the University of Colorado, argued that Trump's Vice President Mike Pence should halt the certification of the electoral college count and prevent Joe Biden from taking office, and Pence declined to do so. But I'm wondering about the idea of verdict shopping, looking for a narrow, even non-existent legal window where possible to achieve desired results. If there were someone who saw what you are up to and thought, well, that seems familiar, going to lots of different courts and shopping an idea around, how would you make a distinction for them?

Well, of course, as you know, the world knows now that Professor Eastman was a law clerk of mine some 25 years ago, but also that I got the call on the night of January 4th from the Vice President's Council and dear friend of mine, Richard Cullen, and during that evening call, which by the way, took place in Colorado because my wife and I were there in Vail. Richard said, "What do you think of John Eastman?" I said, "Well, he's a former clerk. He's a brilliant constitutional scholar, and why are you asking?" And Richard said, "You don't know, do you?" And I said, "No, I don't." And he said, "Well, Professor Eastman was in the Oval Office this afternoon telling the President of the United States and the Vice President of the United States that the vice president could overturn the election two days thence on January 6th." And so my first initial response to Richard was, "You could tell the vice president that he has no such authority under the Constitution at all." And Richard said, "He knows that." I guess Richard had told the vice president that. And I said, "Well, Richard, I don't know what I can do, but I'll be glad to help in any way possible if you or the vice president can think of a way that I can help."

You are plainly saying there is a constitutional underpinning, foundation for the latter, and absolutely none for the former?

Yes, I am saying that as to the former president's effort to overturn the 2020 presidential election, and the advice that my former clerk, John Eastman, gave the then President of the United States, it was not even arguable, Ryan. I think for purposes of my congressional testimony, I said that perhaps these were arguments that would be appropriate for a constitutional law class, but they were singularly inappropriate as counsel to a President of the United States of America who was about to try to overturn a presidential election that he had lost fair and square.

You care.

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