The new book Peril by Robert Costa and Bob Woodward details how, in the final weeks ahead of the Jan. 6 vote to certify the election former Vice President Mike Pence consulted with Judge J. Michael Luttig, who is now speaking out about the role he played in saving American democracy.
Pence was getting pressure from President Donald Trump to refuse to certify the election results and send the vote back to GOP-run state legislatures. John Eastman, a Federalist Society figure who clerked for Justice Clarence Thomas, penned a two-page memo outlining the legal argument for overturning the election. Pence didn't take the memo as gospel and reached out to Judge Luttig.
According to a series of tweets, the judge recalled that "I believe(d) that Professor Eastman was incorrect at every turn of the analysis in his January 2 memorandum, beginning with his claim that there were legitimate, compelling slates of electors presented from seven states."
He continued, saying that if the former vice president followed Eastman's conclusion it would mean that the "VP could unilaterally decide not to count the votes from the seven states from which competing slates were alleged presented."
Judge Luttig went on to say that "to determine that the VP himself could decide that the Electoral County Act of 1887 is unconstitutional to his recommendation that the VP not consult with the Joint Session of Congress as to whether the election should be submitted to both Houses or only to one; to his urging that the VP not seek a decision from the federal courts, including from the Supreme court; and finally, to his belief that the federal courts and the Supreme Court would decline to decide every one of these fundamentally constitutional questions on the grounds that they were non-justiciable political questions."
His thread closed by saying, "I believe(d) the Supreme Court would have decided each of these issues had they been presented to the Court, which they undoubtedly would have been had the VP proceeded as outlined in the Jan. 2 memorandum."