Hello, Deadline: Legal Blog readers! I had the chance on Thursday to interview retired federal judge J. Michael Luttig. As you may already know, Luttig has been at the center of the biggest legal and democracy issues of our time. He explained how Donald Trump is disqualified from retaking the White House under the 14th Amendment, why the former president is not immune from prosecution, and what a second Trump term would mean for the country (spoiler alert: it wouldn’t be good).
The interview has been edited for length and clarity.
Jordan Rubin: Judge, you’ve been thinking a lot lately about this 14th Amendment issue. Why is it so important to democracy, in your view?
J. Michael Luttig: Section 3 of the 14th Amendment … disqualifies any person who, having taken an oath to support the Constitution of the United States, thereafter engages in an insurrection or rebellion against the Constitution of the United States, disqualifying that person from holding high public office in the future, including the presidency.
So it’s more than just a proscription and disqualification for anti-democratic conduct by an individual, but, in this circumstance, it is that and it would apply in this instance to disqualify the former president from holding the presidency again, because of his effort, plan and attempt to overturn the 2020 presidential election, knowing that he had lost that election to then-candidate Joe Biden.
This is very, very important: Section 3 disqualifies one who has engaged in insurrection or rebellion against the Constitution of the United States, not an insurrection or rebellion against the United States, or the authority of the United States. And so that’s the issue in Colorado and in Minnesota, and in the other states that are currently involved in the constitutional process to determine whether the former president is disqualified.
JR: What do you think of criticism that suggests it’s wrong to keep Trump off the ballot using this process, as opposed to “letting the voters decide,” as a critic would say?
JML: I have seen that criticism, if you will, of applying Section 3 to the former president. And it concerned me because it’s a legitimate question to be asked. But I’ve responded publicly to that concern by explaining that the disqualification that’s provided for under Section 3 is not itself anti-democratic at all. Rather, it’s the conduct that can result in disqualification under the 14th Amendment that the Constitution says is anti-democratic. So there’s no question whatsoever that disqualification of an individual who satisfies the conditions of disqualification in Section 3 is not anti-democratic.
Again, it’s the conduct that gives rise to disqualification that the Constitution tells us is anti-democratic.
JR: Sometimes when I’ve heard these criticisms, it almost sounds like more of a criticism against the Constitution itself — sort of a problem with having the ability to take someone off the ballot — more than an application of it.
JML: That’s exactly the way to think of it. And another way of saying it is: it is the Constitution itself that provides for disqualification. So there’s no possible way that the Constitution itself can be understood as anti-democratic.
JR: As you mentioned, we have these cases that are playing out across the country. Whatever happens in Colorado, Minnesota, Michigan or wherever else, the issue has to get to the Supreme Court somehow, doesn’t it?
JML: It does. This is the process contemplated by the Constitution. And the Constitution likewise contemplates that this decision will ultimately be entrusted to the Supreme Court of the United States, which will interpret the language, the clear language, of Section 3, and decide whether or not the former president is disqualified.
JR: To ask the natural follow-up, do you have any inkling about how the Supreme Court might look at this issue?
JML: I would only say this: All that any of us are able to do is evaluate the positive, objective law — in this instance, the Constitution and Section 3 of the 14th Amendment. Under the plain, clear terms of Section 3, the former president would be disqualified from holding the presidency again — specifically, for the reason that his plan and effort and attempt to overturn the 2020 presidential election and remain in power, notwithstanding that the American people had voted to confer the powers of the presidency on Joe Biden, constitutes a clear violation of the Executive Vesting Clause in the Constitution, which prescribes that a president will hold office for only a four-year term, unless and until he is re-elected to the presidency by the American people. The former president’s effort to overturn the election and remain in power is precisely what constitutes a rebellion against the Constitution of the United States.
JR: I’d like to transition a bit to one of Trump’s criminal cases: the federal election interference case. He argues that he’s immune from prosecution. Now, the Supreme Court has extended that sort of immunity in the civil context. Why, then, should that not similarly extend in a criminal case like this?
JML: The Supreme Court, in the case to which you make reference [Nixon v. Fitzgerald], reserved the question of whether there would be absolute immunity in the criminal context. The question has never been decided by the Supreme Court. And perhaps, though perhaps not, it will be decided by the Supreme Court in the context of this proceeding against the former president.
A number of my colleagues from the prior five Republican administrations filed an amicus brief in that case, in the District of Columbia, in which we explained that there is not absolute immunity for the former president in the context of this criminal proceeding, for the very reason that I just explained, which is, again, that the president’s effort to overturn the election and remain in power was unmistakably a violation of the Executive Vesting Clause.
As a consequence, there’s no doubt in my mind that absolute immunity does not extend to the former president for that conduct. I am as confident as I am of anything that, were this case to make its way to the Supreme Court, the Supreme Court would so hold.
JR: And so here we are again, in the shadow of the Supreme Court, like with the 14th Amendment issue, potentially deciding this crucial immunity issue as well. Could this be an issue the Supreme Court decides before Trump is tried in D.C., potentially even delaying what’s scheduled in March to be the first of his four criminal trials?
JML: I don’t think that there’s any question whatsoever that the federal judiciary will decide the absolute immunity question before the former president goes to trial. That, of course, is not to say that the Supreme Court will make that final decision. It could well be that the United States Court of Appeals makes that decision and the Supreme Court of the United States denies cert. [declines to review that decision]. But the decision will be finally decided by the federal judiciary before the president goes to trial.
JR: And lastly, notwithstanding the legal issues we’ve discussed today and all the other ones too that surround the former president and current leading GOP presidential candidate, what do you think it would mean for the country if there is a second Trump term?
JML: I’ve said publicly, many times, that the former president and his Republican allies instigated a war on American democracy on Jan. 6. And that in so doing, they have corrupted American democracy and our elections, to the extent that, today, millions and millions of Americans no longer have faith and confidence in American democracy and in our elections.
It’s evident that the former president and his allies are going to prosecute that war against democracy to its catastrophic end, and if the former president were to be elected, again, to the office of the president, then I believe that that would be regrettable, for American democracy and the rule of law.
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