J. Michael Luttig

I mostly want to talk to you about 2020 and what you saw, what concerned you, and your role. But first, was there anything that was concerning to you about American democracy before 2020, before we get to the campaign, before we get to the election?

Yes, although I didn't frame it in that way at all. I had been concerned about our democracy, American democracy, beginning during the primaries in 2016, because I saw what everyone else saw, which was the—at that point, the bombast and the language, if you will, of politics that represented to me an assault on American democracy.

Which parts of that—which parts of what you were hearing were the things that really stood out to you?

Well, you know, I'm talking now about the Republican primary. It started off with 14 or 15 candidates. And you can recall those primary debates and then the campaigning during the primary itself. And the politicians, who I believe are at the root of all evil, they were beginning to talk the language of assault and attack on America herself, and the institutions of American democracy, which I consider to be the Congress of the United States, the executive office of the presidency and the federal judiciary. And those words sounded to me an assault or attack on democracy itself.

And then of course, much later—well, no, actually, now that I think of it, during the primaries, the moderator asked of the candidates in one primary debate whether they would accept the results of an election. And I don't remember how many, if any more than Donald Trump, said that they would not necessarily accept the results of the election. 11The Hill: Trump on whether he’ll accept election results in November: I have to seeAnd you know, to me—as it was, I think, to many people—was a stunning answer to that question. I think probably because I am a lawyer and a judge, I heard that response even differently than most people who were concerned about it.

I mean, during that period, you were a judge and stayed out of politics, and presumably when you're hearing something like that at that point, you must have a question of, you know, what do you do? How are the politicians going to respond? Are you talking to any of them at that point, to leaders inside the party or expressing your concerns?

I was actually not a judge on the bench at that point. I had gone off into the private sector. And I've never, to my knowledge, uttered publicly a partisan word or thought. And so back at the time, I would've been expressing this view almost exclusively probably to my wife, my wife of 40 years with whom I share everything. But I was profoundly concerned, even during the primaries, about the direction that the Republican Party seemed to be taking the country, though unwittingly.

What do you mean by that, by the Republican Party?

I don't think that any of the candidates, let alone the entire party, let alone the nation, had any concept that the primary, the Republican primary could lead to what it has led to today. And that's not to be critical of the public at all. I'm not one who believes that the public has any responsibility to understand and appreciate all of the nuance and all of the processes that underlay our democratic system of government. I believe that that's the responsibility of our elected representatives.

Now, as I hear myself say that, I was profoundly critical of our political leaders. So, for instance, I was actually angry that, in my view, not one single leader in America who had the moral authority, the courage and the will to speak up and say, "This has to stop," did so. Now, I put particular emphasis on the word "moral authority," by which I mean the moral authority to reach across the aisle to American citizens of all political stripes and be heard and listened to. I say that because I don't believe that there is any such political person or leader in America today, and I didn't think there was back in 2016.

As you watched the Trump presidency and watched it take place, did it confirm fears that you had going back to 2016? What did you see in that period between 2017 leading up to 2020?

What I saw was a straight line from the Republican primaries to and through the Trump administration, straight through to Jan. 6 and continuing until this moment.

… I mean, how are you evaluating how the party leaders were responding during the presidency? I mean, we talked to a lot of people back in 2016, and a lot of them said they went along because they thought he wasn't going to win and that there wasn't a harm that would come from it. And by 2017, he is the president. As you're going towards, as you say, on a trajectory towards Jan. 6, how did you evaluate the response of the country's leaders, other leaders besides the president, during—through that period?

To the person, I didn't—I thought that the political response by our leaders was abysmal and inexcusable. And of course I'm familiar with what you say, that then and even now, there are whispers everywhere that the politicians wish they had not performed their public office and service in the way that they did. But to this day, they are still just whispers. Now, was I—did I become disenchanted and disillusioned with our political leaders? No, because that's exactly what I would've expected of them.

But the argument that some of them make that may be more personal to you is they say there was flaws with Donald Trump, but, you know, the threat of a Clinton presidency—but in particular judges and the Supreme Court nominations and you know, that there was a trade-off that was made, and it was almost an explicit trade-off for somebody like a Mitch McConnell. How do you evaluate that balancing?

Of course this is a subject I'm intimately familiar with. And the way I evaluate it as to the politicians is in this way: I understand and appreciate very well the focus on the judiciary and ultimately on the Supreme Court. That was a war that had been going on in the country and between and among the politicians for literally half a century. And as that unfolded across that half a century, the whole country and all of the politicians knew exactly what was going on at every moment, up to and including the last three appointments and confirmations to the Supreme Court leading up to the victory for the Republicans and the conservatives in the war for the court. Now, I understand that, but against the larger backdrop of all of politics and the Trump administration, I don't excuse their larger and other behavior because of their insistence upon their different positions about the judiciary and the court.

That was really just a single issue, political issue, and not even the political issue of the greatest import to the nation or the country. So to the politicians who say, "Well, look, we did this in the name of the Supreme Court," I say, "Fine. That doesn't excuse your abysmal public service."

… As you watch the first impeachment, what do you take from that, from the moment from the result, from what President Trump at the time seems to take from being acquitted, and what it said about whether there were checks on him?

Well, without regard to former President Trump's view or any other political figure for that matter, the impeachment is a constitutional process that's provided for by the Constitution itself. And that's not a legal process. It is, by design of the Constitution, a political process. It's for that reason that a president or any other official subject to impeachment can be impeached for conduct or behavior that does not entail criminal violation of the law at all. It's to say even that impeachment is available for even purely political offenses to the nation as determined by the politicians themselves. Now, during the first and the second impeachment, I was greatly interested in the impeachment not just as a constitutional matter, though that was the preponderance of my interest, but I was also interested in it as the political process as well. But I've never done politics and don't care to.

So I know that's just to say that I understand all the political issues surrounding it, and I have a view on the—I wouldn’t say the appropriateness of the impeachment, but neither would I say the legal appropriateness of it. I have a view on whether as a political matter the Democrats should or should not have attempted the impeachment.

What is your view on whether they should have?

Well, my political view is neither here nor there, and I don't really care to give it to you.

I mean, but there is a larger question about it, which is in a—which is about whether the constitutional checks function in a highly polarized government and a highly polarized society. Do these institutions that the founders put into the Constitution work if you have not three separate branches of government, but really two parties that are polarized, that are united? I mean, did you sense any feeling of stress on those constitutional checks in that process?

No, zero. In my view, the constitutional process functioned throughout the entire Trump administration despite the pressure that was put on that constitutional process by the president, at many points deliberately and intentionally. But as to the impeachment process, that was really a perfect functioning of the impeachment process under the Constitution.

… So as we get to 2020—and this is in the run-up to the election period—what are you seeing that is concerning you?

Of course, in the run-up, defined to be, let's say, the fall and the fall leading up to the November election, that's when the former president began to suggest, if not more, that he was not prepared to willingly leave the White House were he to lose the election. That's the period in which, you know, some journalists began to write lengthier pieces about just that. And I was reading those pieces because that becomes a constitutional legal matter that is of great interest to me and has been my whole life. It was around that time that my wife, who, by the way, is also a lawyer and has worked in the White House previously, she said—began to say to me that she didn't think that the former president would leave the White House if he were to lose the election.

And in the early weeks and months when she was saying that, I was dismissing it, saying that that's just not really a possibility, and it's not an option to a president who loses the election to remain in the White House. And about that time, to her credit, some very respected journalists were writing longer pieces and asking me for comment, frankly, as to what would happen if the president didn't leave the White House. And so that moved my own thinking to the next phase. And then the third phase was I would pin around several weeks before the election, when the president came full circle to his—what was going to be his final position, that he would challenge the election no matter what if he were to lose. At that point, my wife came to me again and said, as wives are wont to do, "I told you so." And as husbands are not wont to do, I said at that point, "I think you might be right."

And I said to her, "If you're right, we will be facing a grave constitutional crisis." During that time, though, I would never go on the record as saying that ever, but I was being asked by many journalists and reporters in the media to say that we were in a constitutional crisis. And I did not believe, even at that point, that we were in a constitutional crisis, and I refused to tell the country through the reporters that I believed that we were.

… And the response that you were seeing to what the president was saying—what you were doing, what you were learning as you were researching and reading about the process of how the president is confirmed after the election—and what do you think of the response of especially Republican leaders, but of everybody else who's watching this? Do they seem to share your concern?

Yes. I was not reading or studying the Constitution or the law. I knew that. I was studying the public reaction of not just the public writ large, but in particular, our elected officials. And what I witnessed, I believed, was failed leadership in the form of knowing acquiescence in what was about to happen, reprehensible acquiescence.

And then it comes to the moment in the early hours after the election, and the president comes out—you'd been concerned about this already. And the president comes out and says, "Frankly, I did win this election." The counting is not done at that point. What are you thinking as you're watching that?

I thought the moment had arrived, the moment that would bring us into a constitutional crisis for what I believe then would've been the first constitutional crisis in American history. So maybe a word of explanation. I don't believe that the country's ever had a constitutional crisis unless and until we are confronting circumstances that were never contemplated by the Constitution. That view leads me to the conclusion that we're never in a constitutional crisis unless or until the attack on America and her democracy is from within, not from without. I believe that the Constitution provides the process and the mechanisms by which we can withstand any attack or assault on our country or our democracy from without.

But I believe that the Constitution never contemplated and therefore didn't ever provide for process and mechanisms to withstand an attack on America and her democratic processes from within. And that's what I believed was happening at that point.

… I want to just ask you about a couple of stops along the way and responses people had to that moment, and see where you think that they fit into this. And one of them is that the president comes out and says this, and it's Don Jr. and Alex Jones and some others are pushing the conspiracy theories. But by the end of the week, there are some senior Republicans who, if they're not saying the election was 100% stolen, are raising questions about the election by that weekend. How do you evaluate those responses from Republican leaders as they were coming out and saying, you know, it seems like there was fraud here; we need to be fighting on this?

The statements from political leaders merely that there was or might have been fraud in an election is contemplated in the Constitution and eventually in the statutes of the United States through the likes of the Electoral Count Act of 1887. And so those words, you know, alone are not offensive words. Now, in 2020, for me, it was the specific claims of fraud that were problematic, the conspiracy theories, if you will. They didn't even sound plausible or colorable to me, just as they didn't sound plausible or colorable to many people. They were—this was wacky stuff, right, that foreign powers had infiltrated the process down to the individual voting machines and the like. That's the stuff of science fiction to me.

Could that happen in today's world? Yes. But I wasn't willing to believe it for a second during the 2020 election. I had—of course we all knew at that point that Donald Trump had received, I believe—and you can correct me if I'm wrong—the largest number of votes in the country of not only any Republican president to that date, but I think any president of either party to that date due to the turnout in the 2020 election of course, which was massive. It turned out that now-President Biden did receive a greater number of votes than Trump did, and I believe than any other president has ever garnered in history. 22Newsweek: Donald Trump's 73.6 Million Popular Votes Is Over 7 Million More Than Any Sitting President in HistoryBut again, I'm out of my depth. But directionally, that's the way I saw the election. And so I thought that was enough for me to believe that Trump had lost the election. And so these farfetched claims by Sidney Powell and [Rudy] Giuliani, to say the least, did not resonate with me.

I mean, when you watch those moments—the Four Seasons Total Landscaping, the press conference at the Republican National Committee where Giuliani has the hair dye running down and the, as you say, conspiracy theories about the election, what are you thinking as you're watching that? Is that concerning to you? Is it reassuring because it almost seemed like a joke to some people at the time? What were you thinking as you were watching that?

Instances like that one and including that one were farcical. They were comedy to me, though tragicomedy. But there were many such moments and many such claims, again, against my worldview of politics and politicians. It was amusing at first, and then gradually, over a relatively short period of time, became disturbing as I believed we were nearing that moment of constitutional crisis that in fact occurred.

I mean, it does seem like, as we've talked to people, that there's really two periods, that there's a period of court cases and up to the Electoral College, and then there's a period after the Electoral College is voted in the middle of December. One of the questions—maybe the last question I want to ask you about in that first period is there was, as we've talked to people, there was a faith among a lot of Republicans that there wasn't too much harm that could be done; that the court system was going to take care of the claims that somebody like Mitch McConnell made a decision that he would recognize Joe Biden's election after the Electoral College certified in the middle of December and that there was no real harm in waiting to do that. There was no real harm in waiting to speak up against the claims of fraud during that period because the system was strong enough to handle it. What do you think of that argument, of that position of those who didn't believe the claims, but who felt we'll just let the system play out?

Well, of course it should be apparent by now, I don't think much of it at all. That's exactly what politicians do every day all the time. They wait and they wait before they ever take a position of any import to the country, and they wait until they no longer have to. And then they figure out what they need to say in the aftermath to protect themselves from their failures earlier to speak out.

Now, as to that view of, I'm sure, many—actually, of everyone, because the president resorted to the courts himself, as well as other Republicans who do not consider themselves supporters of the former president. And so all of the Republicans, and then of course by necessity the Democrats, turned to the courts. They were more than happy to do that. For the moment, it meant that they didn't ever have to make any decisions.

That's failed leadership. But that's what happens every day. So yes, they waited on the court. Now, the tragedy, the political tragedy in this instance was that the politicians understood what was at issue in the federal courts. They understood that the federal courts were being called upon to decide some of the most momentous constitutional issues possible in the context of that two- or three-month litigation of the election cases. In particular, what I'm focusing on and talking about is what's known as the independent state legislature theory. That theory is a theory of constitutional law that has been embraced—seemingly embraced now by at least seven Supreme Court justices, including two who are no longer on the Supreme Court. And the predicate, the foundation of these constitutional challenges to the election was built around the independent state legislature doctrine or theory. And the Republicans in particular had reason to believe after Justice Barrett was confirmed to the court that there were five votes on the Supreme Court to embrace that independent state legislature theory, making it a constitutional doctrine.

Now, what would that have meant? Under the theory, under what's known as the Electors Clause of the Constitution, the state legislatures have what's known as plenary and, under the theory, exclusive authority over the appointment of state electors who vote as part of the Electoral College, send those votes to the Congress to be counted to determine who the next president of the United States is. The significance, the momentous significance of this theory, if embraced by the Supreme Court, would be that the legislatures could never be second-guessed by, in particular, the state Supreme Courts. So in this context in 2020, if the legislatures wanted to send in alternative electoral slates to the official electoral slates that had been sent in under the laws of the states, they could do so, and it could not be second-guessed by either the state Supreme Courts or, eventually, even the federal courts.

And the state legislature theory applies both to the state electors for the purposes of electing the president and vice president of the United States, but also to congressional redistricting in every state. I go so far in that explanation so that I can say that right now, in 2022, literally in the past week or two, the various parties in a redistricting case out of North Carolina have filed their briefs in the United States Supreme Court variously asking the Supreme Court to either embrace the independent state legislature doctrine or reject it. And on this Supreme Court, as of—I think fair to say, as of only a few months ago, when the Supreme Court denied cert—denied an emergency application of the parties to decide this case, there are four justices on the current court who expressed an interest in deciding the independent state legislature doctrine theory, and even gone so far as to say this is a matter of great national importance that we, the Supreme Court, must decide before the 2024 election.

And four being enough to bring it to the court.

Four being enough to bring the case before the Supreme Court for decision, but not the requisite votes to uphold, you know, the doctrine. That takes five.

And as you evaluated that argument, where did you land?

At the time that I did my last writing, which was the CNN piece, which I titled "The Republican Blueprint to Steal the 2024 Election," I had not done the research and the thinking that would be necessary for me to come to a conclusion on that historic a question. 33CNN: Opinion: The Republican blueprint to steal the 2024 electionSince the publication of the CNN piece, I've been asked by seemingly everyone on both sides of the issue to join them in various amicus and other briefs before the Supreme Court on the issue. And so as I sit here today, I haven’t come to a conclusion on my view of the constitutionality of that theory.

But even if it is constitutional, I mean, at its heart what the theory means is even if the majority of the population—more a majority of voters voted for the electoral slate of one candidate that the legislature could overturn it. I mean, what are the implications of adopting that, even if it is actually constitutional and that's what the law should be? What are the implications—what are the implications of the political choice of a legislature to decide to exercise that power?

Well, I of course will leave to others the political implications and consequences of that, though I think we can stipulate that the political consequences for the politicians is enormous politically. But what I won't hesitate to say is that the implications and consequences for the Supreme Court's embrace of the independent state legislature theory are immensely consequential for democracy in America. And maybe that's the point at which I should say, you know, we are talking about American democracy. There's no subject of higher importance than that in America. And so we need to understand what we're talking about when we throw around the term "American democracy."

The dictionary definition of "democracy," and therefore of American democracy, would be something like this: Democracy is a system of government and governance by which the rules of government, of governance, and the policy of the citizens—that is, the will of the people—is expressed through the elected representatives of the people. That would be a textbook definition of democracy. And for sure, you can understand that what we are talking about when we are talking about the electoral processes in the United States is—would be fairly considered the core of the democracy and of the democratic process in the United States of America. Now, I personally distinguish all of these relevant terms in this way—that's what I consider to be American democracy itself.

Then I think that you have to—I distinguish out of American democracy as a whole the subset of the institutions of democracy that the Constitution created to protect and preserve that democracy, and that would be the Congress of the United States, the executive office of the president and the presidency, and the federal judiciary and the Supreme Court. Those are what I think of as the institutions of our democracy. And then I think of the constitutional processes that secure our democracy and the corresponding laws of the United States that protect and further our democracy as instruments or instrumentalities of our democracy. And so, in my view, I'll say for the moment over the past six years, there has been an unprecedented attack and assault not only on American democracy but also on the institutions of our democracy, but also on the instrumentalities or instruments of that democracy.

That's why I'm of the view that we're in a constitutional crisis, because those three assaults or attacks, if you will, on those three organs of American democracy have occurred from within, not from without. In other words, I think we are right now in a war with each other. We're not in a war against a foreign power. We're in a war with each other, and it's an immoral war over morality in America. And this is a war that America cannot win. This is one war that America can never win.

… That's a very useful explanation of where we are in the big picture of all this, because I think we do sometimes get lost in the details of the legal claims inside it, what's going on.

And I don't believe that the public has a responsibility at all to understand any of this. The responsibility, you know, rests with our public officials, our elected representatives. And that's where the blame lies for their failure to preserve and protect our country's democracy.

So as we get to this period where the cases have been dismissed, the Electoral College has voted, and they're starting to be—this is before you get a phone call from the vice president's attorney. But in that period, there's starting to be talk about Jan. 6; there's starting to be talk about the Electoral College. Are you growing more concerned in this period?

Yes, without any question. But not just concerned—I was gravely concerned.

Why?

Because I was beginning to see and witness the deliberate course that would lead to the crisis that occurred, whereas I could understand—just as a lawyer, I understood all of the pieces, and I could understand how they interlocked, and I could understand in those later weeks how they were going to interlock and to what you might tritely call a perfect storm that would lead the country into the constitutional crisis. … I have a very well-informed and well-considered view at this point in my life of the institutions of democracy, of American democracy, the institutions of democracy, and even now, the instruments and instrumentalities of democracy that I described.

And those interlocking pieces that you see where it's headed, and you see a constitutional crisis. But what was the goal of those pieces? What was the goal of those operating around the president as they were putting those pieces together?

I didn't have any idea of the precise goal in the lead-up to the election itself. It was not until after Jan. 6, and then even so, after the memos and emails and conversations became public—began to become public so that I could analyze them, if you will, and understand exactly what the plan was. I suspected the plan, and I understood what they were doing very well. I didn't want to believe that there was anyone behind it who was knowledgeable enough, intelligent enough to execute the plan successfully, and I didn't think there was any such persons until long after Jan. 6. And to complete the thought, now I think we all know that there were such people, and they were in fact executing the plan that we all saw.

I just want to be really clear about what that plan was. I mean, was that plan to raise questions about the future elections and change voting laws, or did that plan have a more concrete goal of what they wanted to accomplish on Jan. 6 and in the run-up to Jan. 20?

No, it was not about the future at all. It was about the immediate, the moment. The 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. And we know now there's no question about it. They knew exactly what they were doing. And they believed it. They believed in the rightness of that, at least legally and constitutionally. Whether they believed it writ large was right, I'll leave for someone else to assess.

I want to ask you about how you got involved with Pence. But first, one thing I forgot to ask you about earlier, which was Bill Barr. You know, we've talked about people who didn't say anything. And he, you know, as we know, planted—didn't just plant, said on the record to the Associated Press, said to the president that there was no fraud allegations. I know you know Barr, and you were at least watching that happen as it was publicly announced. What was the signal that was sent when that report came out that the Justice Department looked into it and that Barr was going on the record on the fraud allegations? 44Associated Press: Disputing Trump, Barr says no widespread election fraud

Well, Bill Barr, then-attorney general, is a longtime friend of mine. In fact—well, two things: Bill and I went into the Department of Justice together in 1989, he as assistant attorney general for the Office of Legal Counsel, and then he prevailed upon me to come in as his deputy. … And long story short, I agreed. So Bill and I went into the Department of Justice in the George H. W. Bush administration, and we were at the department under the leadership of then-Attorney General Dick Thornburgh from Pennsylvania. So then fast-forward. As has been publicly reported, Bill and I were both under consideration to succeed [Jeff] Sessions as Trump's attorney general. And then of course the president eventually called Bill. So that's a long way to bring me to your question. I knew Bill well, and the day that he first publicly said that there was not—there was insufficient evidence of fraud nationwide to call into question the final electoral—popular vote of the people for President Biden, I knew at that point—I hadn’t thought a bit about this until right now, but that's the moment at which I knew that we were heading into the constitutional crisis.

Why? Because I knew all too well what the former president's reaction would be to that. And knowing Bill, I knew what his reaction would be to it. And so I appreciated that that was the defining moment and that it would be the defining moment, and it was.

Not long after the election, the secretary of defense is pushed out. Bill Barr resigns before Christmas. I mean, how concerned, just watching that and knowing Bill Barr is not the attorney general as we're going into Jan. 6, how concerning was that for you?

Enormously concerning. Bill's successor was to be Bill's deputy, Jeff Rosen, who I knew of but did not know personally. But I knew that Jeff Rosen could not possibly stand his ground against Donald Trump. 55New York Times: Rosen "maintained that he would make decisions based on the facts and the law"By the same token, I understood well that if there was one person who could, it was Bill Barr. And he did. And his penalty, or his sentence, was exactly what he would have expected and the country would have expected: He was fired. But to your question, I became increasingly worried, if that was even possible, once Bill left, knowing that in my view, there was no one left who could stand against Donald Trump or who would stand against Donald Trump. At that point, I was utterly convinced that we were heading to Jan. 6. And so at that point, again, I don't even have a job at that point. I've been out of public service and the public sector for 15, 16, 17 years. And for the 15 years before that, I was a sitting federal judge. So I had not been in public life, much less in politics, for 30-plus years at that point, which is just a long way of saying that all I could do, I did, which was to think about what was happening and what was about to happen, which was not to belittle that enterprise. It was the most serious thing I've ever had to think about. But I did do that.

And then you get a call from Richard Cullen. Can you tell me about that?

Yes. On Jan. 4 in the night, certainly in the middle of the evening in Colorado, which is where my wife and I were, Richard called. Richard Cullen is a longtime and dear friend of mine, and had been Vice President Pence's outside counsel for several years at that point. … I knew on Jan. 4 that Richard was very close to the vice president. So my wife and I were having dinner, and Richard calls. It was nothing at all because Richard and I had been talking multiple times every day or two for two-plus years over everything that was going on in Washington, just because we're that close friends. So the call itself was nothing.

He called, and he said—he calls me "Judge," which is fine. And he said, "Judge, what are you doing?" I said, "Well, Elizabeth and I are having dinner. What's up?" And he said, "Do you know John Eastman?" And I said, "Yes." And he says, "Well, what can you tell me about John?" And I said, "Well, John was one of my law clerks perhaps 20, 25 years ago. He's a professor, an academic," I think I said, "at Chapman Law School in California." And I said, "Why are you asking?" And he said, "You don't have any idea, do you?" And I said no.

And he said, "Well, John Eastman is advising the president and the vice president that the vice president on Jan. 6 can essentially overturn the 2020 election unilaterally." I said to Richard, "Well, Richard, you can tell the vice president that I said that he has no such authority at all and that he must accept and the Congress must count the Electoral College votes as they have been cast, and that he is not free to not count any of the votes, count other votes, or otherwise discount any of the votes that have been cast. If that's to be done at all, that's an authority and a power that's vested in the Congress of the United States, and certainly not in the single person of the presiding officer of the Senate, which is the vice president of the United States."

And Richard said, "He knows that that's your view." And I said, "OK, OK." And I said, "Well, look, Richard, of course I understand the gravity of this. I'd be willing to help the vice president in any way I can, and please tell him that." And we hung up. My wife, having heard only one side of that conversation, said something like, "Oh, my God, what was that?"

And I said, "Well, that was Richard, and he said that John Eastman is advising the president and the vice president that the vice president can unilaterally—in effect, unilaterally overturn the election. And Richard just called to ask me about John." And my wife, who had been gravely concerned about this even for a longer period than I had been gravely concerned about it, was just deeply, deeply troubled and said that I had to do something. And I said to her—this is my wife of 40 years—I said, "Look, hon, I'm just not part of this. Jan. 6 is 24 hours away, essentially, and I'm not even part of this in any way at all." And as the wonderful wife that she is, she pled with me to do something. And then we later went to bed that night with my having told her that I was willing to do anything, but there was nothing that I could do, and this was in the hands of other people. So we went to bed on the night of Jan. 4.

Before we go on, we will come back to the story and pick up the second phone call, but I want to ask, just unpack some things that are going on inside that moment. I mean, the first is that you are getting a call from the vice president's personal lawyer to weigh in on this legal matter. I mean, you've worked in the Office of Legal Counsel, the White House. I mean, there's lawyers, there's institutions inside the executive branch. There's a Senate parliamentarian who you would think would be activated at this moment. What does it mean that you are being called?

I understood immediately why I was being called, because I understood everything about the process and the individuals involved. But at that point, none of that was relevant. I mean, we are at Jan. 5, and I had been following the lead-up to that day intensely for three or four days. And as I remember, the vice president was going to meet for lunch with the president in the Oval Office. And at that time, we now know the vice president was going to tell the president one last time that he was not going to do what the president wanted and that he was going to accept and count the Electoral College votes as they had been cast. So I understood from my life in all of those offices, including the White House and Department of Justice and the Supreme Court, I understood all too well that this was the final moment and this was a matter solely between the president of the United States and his vice president.

And when you hear the name John Eastman—because we've talked about Sidney Powell, about Rudy Giuliani, about the lawyers who are public, the public face of this—when you hear that John Eastman is involved, does that signal a change in the danger of the moment?

I didn't perceive it as a change in the danger, but I did know as of that moment—which for me, remember, was the night of Jan. 4 for the first time—that the president was being advised by a constitutional scholar and a constitutional historian of the highest order, which is to say that John Eastman, I'm confident at that moment, knew more about the Constitution, the constitutional history that informs the constitutional questions involved and the laws of the United States than probably anyone in the country. John's a brilliant scholar/academic with a particular interest in the Constitution and constitutional history. And the reason I emphasize that latter point is that for conversational purposes, there was little or no law on the several questions that were being pursued in those final days, and specifically the power under the Constitution that resides in the presiding officer of the Senate on Jan. 6.

There's just really little law in the past 235 years to inform us, the country, on the role of the vice president on that day. I knew that John knew everything that there was to know and had thought through the possible authority and power of the vice president in acting as presiding officer of the Senate on Jan. 6, so it did not increase the danger. The danger was upon us, and it was imminent. And from my standpoint, I knew to a certainty that I had—there was nothing I could do about it.

Were you surprised that he was involved? Were you surprised at the conclusion that he reached, somebody who you knew personally?

Well, we'll have to unpack those two questions. I suppose I was not surprised that he was involved, although I'd been around the White House and the presidency for enough years now to know, you know, it's a surprise when any person, you know, has access to the president of the United States at any time, let alone at a significant moment in history. But that said, John—I knew John had this background. I knew that he had access to a lot of high-ranking people in the legal community and also in the public community. So I was not surprised except in the one sense I mentioned, which is I would be surprised at any person at all, but I'd be especially surprised for any person that I knew personally to learn that they were advising the president of the United States in the Oval Office at such a moment.

Now, your second question. Before Jan. 6, and not until long after, did I have the understanding of exactly what John had been advising at each step along the way. And I gather now that his advice, you know, changed frequently during that short period of time in response to developing circumstances. His advice did not change. You understand what I'm saying, it's just that as circumstances changed, his specific counsel and advice changed to accommodate the circumstances that the president was confronting at that moment as opposed to the previous moment. But it was not until long after Jan. 6 when several of his memos came out in the [Bob] Woodward-[Robert] Costa book, Peril, that I could lay eyes on the specific legal reasoning that John was using to advise the president. And you know, as a lawyer and as a judge, that's the first and only time at which I could comment on anyone's legal analysis, and especially John's.

What did you think when you read those memos later?

I read them the first day that they were available from the Woodward-Costa book. I read them very, very carefully. I understood every word, and I understood the legal thinking behind every word. But I was greatly concerned that John had given the advice that he had given at every turn, and at every turn of his analysis, as I subsequently wrote. I subsequently wrote, I diagrammed his legal analysis from beginning to end and concluded and said that he was wrong at every turn of his analysis, every turn of his thinking.

I read the memos just in the run-up to this interview, and one thing that stood out in one of them, which wasn't a legal argument, it was the phrase, "We're no longer playing by the Queensbury rules." … Tell me when you read, when you see him say something like that, and what do you make of it?

Yeah, so that was certainly one—a troubling statement. That, to me, was a recognition by him to his client, the president of the United States, that they were not going to play by the—at least by the letter of the law from that point forward. That's not to say that what they did from that point forward was not within the law. I'm not commenting on that. I'm just saying when I read those words, they told me as a judge and a lawyer that John and the president, or anyone for that matter, had decided at that point that they were not going to play at least by the spirit of the law, if not worse. Those are the—of course I could be mistaken on this, but I'm 68 years old; I was a federal judge for 15 years; I've worked at the Supreme Court for a handful of years, and I've been a quasi-public figure for 40 years now. To my knowledge, or to my recollection as I sit here today, I've not uttered a single partisan or political word in public or in writing, and I've pledged to myself that I never would. And again, I don't believe I ever have. That's not to suggest in any way at all that I'm holier-than-thou. That's just to say really how I view myself and my—the privilege that I've had to work in the places that I've worked, and especially as a United States Court of Appeals judge. But every other lawyer is certainly free to make that decision for him- or herself, though I don't believe that any lawyer is permitted to say those kinds of words to a client in writing ever, let alone to the president of the United States of America at that particular moment. Those were ill-advised words.

… So let's go to the second phone call that you get the next day from Richard Cullen.

So I'm still in Colorado with my wife. I get up very early in the mornings, typically between 4:30 and 4:45, and that day was no exception. And we have a guesthouse in Colorado. My wife was over in the guesthouse, and I was up early having breakfast and having my coffee. I had had my breakfast, and I was having my cup of coffee probably around 6:00, I think no later than 6:30 Colorado time, and Richard called, and he said, "Judge, we need to help the vice president." And I said, "OK, what do we need? What does he need?"

And Richard, this longtime friend of mine, very seriously says, "Well, he and we don't know." And I said, "Well, we have to decide then what this even means. What are we dealing with? What are we talking about?" I believe in that first call, Richard told me that the vice president was going to meet with the president for lunch that day, that afternoon of Jan. 5. And my understanding, I think then, but I know subsequently, was that the vice president was going to tell the president one last time that he was not going to do what the president wanted him to do the next day.

And Richard said, "We have to do something very quickly." I understood that to mean before the vice president met with the president in the noontime hour. And again, it would have been 8:30, 8:00, 8:30 East Coast time. And I said, "Richard, I understand the momentous nature of the moment and the gravity of the moment, but I don't have any idea even what you're talking about." And Richard said, "Well, Judge, I don't really either." And then he said, "Somehow we need to get your voice out to the country." And I said, "OK. On what?," believing I knew what, but I just wanted to hear him say it.

And he said, you know, "On what the vice president must do tomorrow." And I said, "OK." I literally said, "Richard, as you know, I don't even have a job right now. I'm unemployed. I'm retired. I haven’t been in public life for, you know, 17 years, and I haven’t been in political life for 35 years. I don't have a fax machine. There's no possible way that I can, you know, get my voice out to the country. And besides," I said to Richard, "I'm a nobody. Nobody cares what I think anyway. So what's this all about?" And Richard said, "We need to get your voice out to the country very, very quickly somehow." And I said, "OK." And he said, "I'll call you back in 10 minutes." So I continued drinking my coffee and brainstorming and thinking as seriously as I can think about anything. And he calls back in 10 minutes, and he says, "So what are you going to do?"

And I said, "I have no idea, Richard. I haven’t had a single thought. Just think yourself about what you're asking me to do: get my voice out to the country. How is that even possible? And you want this done immediately." I said, "Richard, I honestly don't even have a thought as to what to do." And he said, "I'll call you back in five minutes." So he calls back in five minutes, and he said, "So, you thought of anything yet?" And I said, "Well, I've had one thought." I said, "I just opened a Twitter account within the past week or two or three. I guess I could tweet something. But, Richard, I don't know how to tweet something." And he said, "This is perfect." He says, "You have to do this right now."

And I said, "Richard, I don't know how to tweet something." And he said, "You just have to do it." He said, "I'll call you right back." So I'm sitting there, still in my dining room having my cup of coffee, and all I had there with me was my iPhone. So I typed out the words that I ended up tweeting and that everyone knows right now. And I typed them out essentially verbatim as I tweeted them. And then I go downstairs to my office to try to figure out how to tweet this. I had just learned how to tweet 100-and-whatever characters you're allowed, but no more. And I obviously had a lot more to say than 140 characters, or however many. And so I was panicked about all of this, but specifically about that.

You know, my wife and kids had always said that there's no way I could be on Twitter because it's not possible for me to say less than 140 characters, you know? But there I was on the morning of Jan. 5, and I had to do this. So I did the best I could. And what that meant was I copied and pasted from my iPhone an email that I sent to myself on the iPhone that included the text of the tweet. Then I copied and pasted that on my laptop into a Word document because a Word document was the only thing I knew how to do. So then I'm sitting there, and I'm nervous, right? I don't get stressed, but that's the word that would communicate, you know, to others. I was stressed out, not just because of the moment but because I didn't know how to do this. So I just thought, OK, the first thing I’ve got to do is divide this long Word document into 140- or 180-character individual tweets.

And so, you know, I won't digress to explain how one does that, but everybody knows how. But it's a Herculean task, because you don't want to break up the individual tweet except at the right point, but that's invariably more than the 180 characters that you have. So I go through all that rigmarole, and I have now what I think are 180 or 140 characters fewer than—for each individual tweet in the thread. So now I'm stuck. So my son sends me—my son's in the tech world and knows all things tech, and especially computer tech and all. So he sends me the instructions, the official instructions from Twitter on how to tweet a thread, which to a normal person, the instructions are very simple, but to me, they were not. But in any event, I followed those instructions over the next 30 minutes or 45 minutes and finally came up with the tweet thread. And I proofread it like I've never proofread anything in my life, which is not to say that there are not typos in it as I tweeted them. It's just that I gave it all I had.

And then I took a deep breath, and I tweeted it. At that moment, I had not a single thought in the world that anyone would ever even see the tweet. That's how little I knew about what was afoot in Washington, D.C. And I went about my business that whole day until about noon Eastern time Jan. 6 not knowing anything about what the vice president intended to do until then. But before I get to that, I will say that shortly after the tweet I tweeted, Richard called me. Actually, I should have included this part of the story. When I finally told Richard that I could tweet something, I said to Richard, I said, "Richard, I will never speak a single word on this subject unless every single word is personally approved by Vice President Pence." And I said, "Richard, I swear to you, I mean this: I will never say a single word unless he has personally approved it."

And Richard said, "Well, he doesn't need to approve it." I said, "Richard, I don't really care what he thinks. I will not do it unless he approves it." And Richard said, "Oh, OK, Judge. I'll call you right back." And he calls right back within five minutes, and he says, "The vice president will be comfortable and pleased with anything at all that you say." And I said, "Richard, I'm not doing it." And he said, "You really have to at this point, Judge. I've told you the vice president will be fine with anything you tweet, and that's the case. And we need to get this done now." And I said, "Richard, I don't like this one bit, but I'm going to do it."

So again, that exchange between Richard Cullen and myself occurred on the morning of Jan. 5. That would be—probably have occurred around maybe as late as 9:00 Eastern time.

It's an amazing story.

I'm sorry. So let me pick up now where I had left off previously. So within a few minutes, maybe 10, I've now tweeted. And, you know, I'm done. And Richard calls me back and says, "The New York Times has your tweet, and they're going to be running it on the front page momentarily." And I said, "Good grief, Richard. What on earth?" And he just said, "I just wanted to give you a heads-up." And I said, "Thanks a lot," you know? And I now know what I didn't know then, which is the vice president's team, all-inclusive, because I don't know who in particular, had The New York Times holding for what turned out to be my tweet. And for what purpose, the vice president or his team would have to explain that to you.

I mean, it's an amazing moment, and you're trying to figure out how to tweet. I saw in one detail of the story that you sort of had to convince your son to help you, that he was reluctant.

Well, yeah, I mean, as all millennials are toward their parents on all things tech, you know, both of my kids for years and have always—parents call their kids and go, "Can you help me do this on the computer?," and the kids say, "I don't have time for this. You're prehistoric; you're a dinosaur, and I'm busy," you know? And so for my son at that moment, I said, "Look, John, this is serious business. I don't have time to play around. You either tell me how to do this right now or I'll cut you out of the will." And that drew the typical millennial response, you can be sure. But we got the job done.

What was at risk in the vice president's decision? I mean, he's getting competing legal advice from John Eastman, from you, in whether they could have successfully overturned the election or not. But what was at risk if the vice president did decide that he had that legal authority to reject certain votes to follow one of the plans that's outlined in the Eastman memo?

You could not overstate what was at risk. And I'm not even sure that I can conjure up the words to describe what was at risk and what would've happened had the vice president gone along with the plan, if you will, and rejected the swing-state electoral slates and, God forbid, awarded the presidency to Donald Trump over Joe Biden, who had won the popular vote. And I'm careful about stating that while I think about the answer to your question. The first words are it would've thrown the country into a constitutional crisis of a kind that the Constitution doesn't contemplate and therefore provide for. And then if you want to begin to explain what would've happened, you know, I would say the first thing is no one in the world knows what would've happened next. No one in the world knows what should've happened next. And therefore, no one in the world knows what could’ve happened next.

The short and immediate answer is that all of this would be put before the Supreme Court of the United States for a final decision. That's under my view of the Supreme Court and the justiciability of a claim like this. Prior to Jan. 6, I believe many if not most scholars and knowledgeable people would suggest that perhaps the Supreme Court would not take that case. For technical reasons, they would argue that it's nonjusticiable. Either it's a political question or the answers are committed to a different branch of the government. In this case, those scholars would say the legislatures and the states or Congress have the final authority, not the courts. Again, I disagree with that. And the advice that I gave was premised on that understanding of mine that the Supreme Court would decide the several questions that would get the country out of the constitutional crisis that it would then have been in. I'm just making the point that I don't have any corner on the market as to that jurisprudential understanding of the Constitution, OK?

And many, many people, including John Eastman and the other scholars who assisted him, they, for instance, did believe that the Supreme Court would not decide the cases because the court would conclude that it, the court, did not have jurisdiction to decide the cases. And their plan was grounded, ultimately, in that belief as to the jurisdiction of the Supreme Court. But I digress too much. But that's to say that in the end, I believe the Supreme Court would intervene, but it's possible that I hold the minority view on that. I don't know. If the court had not intervened—and that really goes to your question—first, it would've meant that we would not have had a president on Inauguration Day, and likely for a considerable time thereafter while the political process figured out the answer to it.

That political process would've, of necessity, been one of utter chaos, utter chaos in America and consequently in the world. I mean, America cannot be without its leader of the free world for even a single moment, and that is contemplated in the Constitution itself. I mean, the Constitution provides for the next president to assume office at a date and time certain, and the then-incumbent president to leave office at that same date and time in order that there not be a single moment when there is not a president of the United States of America. Had the vice president not done what he did, there is no way that we would've had a president on Inauguration Day, and I don't believe we would've had a president on Inauguration Day even if the Supreme Court had to decide these issues, because these are enormously consequential constitutional questions that, of necessity, require some amount of briefing and deliberation by the Supreme Court. And at that moment, we would've been just weeks away from the inauguration. I don't think the Supreme Court could've decided it.

But the ultimate point is that, you know, at any moment where the United States does not have a president of the United States, the world is in danger and at risk. And needless to say, the United States is in danger and at risk literally including from a national security standpoint. So that's the short answer of the much, much longer, exceedingly complicated constitutional and legal answer to the question of what would we have been confronted with had the vice president not done what he did.

Thank you, I mean I think that really sets the stakes well, and it's hard to imagine that level of chaos—not just legal chaos, but political and America's place in the world that would've ensued. Let me ask you about —

I would just say the stakes could not have been any higher under our form of republican democracy than they would've been had Vice President Pence not done what he did. It's not possible for the stakes to be any higher under our form of government.

I mean, it's amazing, and it's amazing as we've made this film to realize you have a constitution, you have institutions, you have courts, and yet decisions made by one person, by multiple people throughout this story have real consequences; that the system depends on a level of goodwill or norms.

Yes, I would put it this way: The institutions and instruments and instrumentalities of our democracy, it is necessary that we have them, but it's not sufficient. Without leaders acting in good faith in the interest of the country as opposed to their partisan political interests, the country could not long exist. It's literally that significant. And what we saw play out on Jan. 6 was the assault or attack from within on our institutions of democracy and the American political process and the American political experiment, the attack and assault from within by our public officials who were acting themselves not in the interest of the country, but out of their own personal political interests. That is something that—that's the war that—the one war that America can never win.

Let me ask you about one other moment before we get to Jan. 6, which maybe didn't represent an existential threat in the way the vice president's decision did, but was the decision of Ted Cruz, who had clerked for you and a number of other senators, that they were going to try to—11 senators—that they were going to try to somehow delay the voting of the Electoral College to send things back to the state. It's not entirely clear to me what the goal—how they saw it playing out, but how did you evaluate his role, the efforts that they were making?

The role played by any senator or congressman, in my view unfortunately, is authorized by the Electoral Count Act of 1887. That's the act that explicitly gives Congress the authority to overturn a presidential election in a host of different circumstances. Those circumstances are circumscribed by design, but in actual effect are little circumscribed because of the ambiguity in the terms that permit Congress to overturn an election. Nonetheless, the law permits objections to electoral states. In the technical legal sense, that's what Sen. Cruz and other senators and other congressmen did. That's a frightening thought to me. But before Jan. 6, I suspect it was not a frightening thought to many people at all. My hope is that today, it's a frightening thought to everyone. But regrettably, I know it's not an especially frightening thought to anyone on Capitol Hill, because at this point, I don't believe that Congress will amend the Electoral Count Act in order to minimize to the greatest extent possible a repeat of Jan. 6, [2021].

And even if it was legal, what responsibility—or how do you evaluate those efforts?

Well, as I've said, the institutions of our democracy and the instruments of our democracy are necessary but insufficient for America to function. In some ways, the most important of those two ingredients of the process are the people, the individuals, the leaders of our country. That's where we as the people who are represented, we the people who have given the power to our elected representatives, are entitled to insist upon good faith and good judgment. In my own personal view, that expectation, you know, is ill-founded and ill-conceived at this point in our political world.

Another way that I have put it is that our political leaders face choices every day between country and politics, personal and partisan politics. Every day they are faced with a choice between those two, but they rarely believe that they're faced with that choice on anything. And in my personal view—admittedly, a cynical political view—they never act as if they believe that their choice was between country and politics. And that's a failure of the political process in America—political with a capital-P process. That's the failed leadership that I've referred to repeatedly over the past six months.

Is it disappointing personally? I mean, Ted Cruz has said you were like a father figure to him.

Well, I'm not going to speak to my view of what Ted did because that's neither here nor there. He's an elected senator of the United States. He has to live with the consequences of his decisions, just like every other elected official did. But am I disappointed with the entire political process and specifically our elected representatives? Yes, I'm beyond disappointed, as I believe all Americans should be. I don't want to believe that there's a single citizen in the United States who can look at what's going on in politics today and in Washington, D.C., and believe for one moment that this is even acceptable, let alone that this is what it ought to be. Again, we're at war with each other. And I don't see today any catalyst, any intervention, any off-ramp to this war on the horizon. To begin to walk ourselves off the ledge, even to begin, you have to have conversation with and among each other.

Today, there's no such thing as conversation. Conversation—we don't talk to each other. We don't talk to each other. We scream at each other; you know, we cast aspersions; we criticize with one-liners and sound bites and refuse to discuss any issue at all. As long as that's the case, the country's in a spiral—spiraling decline from which it can never recover. And this is just common sense.

Rhetorically, I would just ask, how can any person at all disagree with what I just said? All I said was, look, look at where we are. This is not where we want to be. This is not what America is. This is not where we want to go. Let's stop. Just stop. Right now, let's stop and begin talking to each other about how we go forward from here and eventually how we solve the problems that beset the country now. The reason why at this moment I don't believe that anyone even wants that conversation is because we're locked in this vicious political war, and there's no agreement among us on even the fundamental values and principles on which America was founded and has become the greatest nation in the world, and on the basis of which our—not just our freedom, but our hopes and dreams for America are entirely dependent. Not only do we not have agreement on even those most basic principles and values, we have fundamental disagreement as to those values and principles. It is almost like we are—we find ourselves back at the founding of the republic, the creation of this great nation, but with vastly different, antagonistic views of how to re-create the nation that we all created 235 years ago.

When we get to Jan. 6, the president and his lawyers and advocates, they’ve tried to overturn the election in the courts. They’ve tried state legislatures. They’ve put pressure on Mike Pence. He issues the statement that you mentioned quoting you. And by that point, John Eastman must know, if you have read his memos without Pence onboard, that there's not a legal route or a plausibly legal route to change the outcome of the election. And they have this rally, and the president goes out and speaks, and he mentions Pence, and he singles him out. And others at the rally are talking about fighting. What do you think when you look at that moment? What are you thinking as you watch it? What does it say about the story of American democracy?

So on Jan. 6, I was working in my office in Colorado up until around the noontime Eastern time. At that point, I went over to have lunch with my wife, not knowing anything about what was happening in real time at that moment in Washington, D.C. When I walked in the door, my wife was just—fear and terror in her eyes, and she said, "Have you been watching?" And I said, "No. Watching what?" And she said whatever words she used—I don't remember—but the U.S. Capitol's under attack. And, you know, just tingling went down my spine, just like everyone else. And I said, "Oh, my God, no. What's going on?" And she said, "Well, look, you have to see it," she said. "But first, I've got to tell you that there are—they’ve erected gallows on the grounds of the Capitol, and they're chanting to hang Mike Pence. And across the bottom of some screens, it is running that you advised the vice president that he should—to do what he has now told the world that he is going to do at the Capitol." And my wife said, "Look, Mike, I'm scared for us and for our safety."

And I said, "OK, I understand. I haven’t seen any of this." I said, "Let's talk about this. This is serious." And I said, "Look, no one knows where we are. No one knows we're in Colorado. No one really knows where we are at all. But if they wanted to do something to us, they would go to our home in Chicago. So if you want, I'll get some kind of security at our home in Chicago." And that's what we did.

So then we don't even know how to turn the television on, but we tried to turn the television on to watch it and couldn’t. And then I said, "Well, can you pull it up on the computer laptop?" And she said, "Maybe." So she pulls it up on the computer laptop. We set it on the mantel next to the dining room table, and we're watching the events at the Capitol. And my wife was in tears. And in a very short time, I told her that I couldn’t watch it and I was going to go back to work, and I left.

So, I mean, it would take me hours to explain everything that was going on in my mind. But it was everything going on in my mind was what was going on in everyone else's mind; that in the moment, the mental process is receiving so many, you know, inputs that the only output is just incomprehensibility of this and the bewilderment as to what's going on, and finally, if at all, what on earth does this mean for the United States of America?

… You got a call from the vice president the next day?

I got a call from the vice president, I believe, the morning of Jan. 7. My wife and I had gone down to the UPS Store there in Colorado because she had to mail something. I was standing inside because it was cold, and I got a call that registered as spam, S-P-A-M. And just like everyone else, I never answer a call from spam. I don't even answer calls that I don't recognize, let alone spam calls. But I was just standing there doing nothing, and I don't even know why; I answered the call. Whenever I answer a call like that, I say nothing at all, usually for the duration of the call because most typically, it's a recording that cuts off unless or until you say something. So I say nothing. So I said nothing for what seemed to me to be, you know, longer than I usually say nothing. And then a voice came on; it said, "Is this Judge Luttig?" And I said, guardedly, "Yes, it is." And the voice said, "Please hold for the vice president of the United States."

And so I scurried outside to get into our car so I would have some privacy. And as I was getting into the car, the vice president came on the phone, you know, and said, "Judge, Mike Pence." And that's how the conversation began. The vice president was as gracious and kind as any person could ever be under any circumstance at all, let alone the circumstance under which he was calling me. I couldn’t even—I couldn’t and I could never have imagined that the vice president would've called me, ever. But he did.

I think I forgot to ask you. When you find out you're quoted in the statement, was that—how surprised were you that that was? I mean, that was a very important statement when he issued it. Was it a relief to you to know that he was now on the record about what he was going to do? How did you react?

No, that was not my—I was not relieved to know that that's what the vice president was going to do at all, and I never even had that thought. You must remember that I had no idea even that anyone would see the tweet the day before. I had zero thought that the vice president would use it even if he saw it, which is to say I didn't really know, think or believe that the vice president would ever see the tweet. I know people can say, well, that's kind of naïve in light of what actually happened, but the way I would, in my defense, explain it is that no one knew that the vice president was going to issue that letter to the Congress and to the nation, nobody. And to the extent I even thought about it, I just assumed—and I think to 100% certainty—that the vice president would never mention anybody or anything from the podium in the chamber at noon on Jan. 6, [2021].

So I wasn't expecting anything at all. And then on the afternoon of the 5th, I believe now, as the vice president was on his way to the Capitol, he released the letter, and a couple of my clerks from years ago saw it for some reason. I now know it's because it was carried in the news. And they emailed to me, and characteristically for clerks and children, it was something—each of them separately said something like, "Judge, what on earth are you doing?" So I just responded and said, "What do you mean? Elizabeth and I are just out here in Colorado, and we're about to have lunch." And they both wrote back immediately and said, "Don't be coy with us." And I said, "Guys, I'm not being coy. I don't even know what you're talking about."

And then they wrote back immediately and said, "The vice president of the United States has just released his letter to the nation, and he cites you and some statement that you gave." And I wrote back to them and literally said, "Guys, I still don't even know what you're talking about. You know, if the vice president issued some letter that refers to a statement by me, do you have it? And if you do, send it to me." And they both sent it, and that was the first that I knew or ever expected or even imagined that the tweet would find its way into the public domain.

After Jan. 6, there's a lot of criticism of the president's conduct, of what went on before. It feels like maybe there's going to be a turning point, especially inside the Republican Party. But the farther that it moves beyond Jan. 6, the less of the condemnation of Jan. 6, of what happened after 2020, the quieter the voices are. And you describe the Republican Party as fallen through a rabbit's hole in Alice in Wonderland. What do you mean by that? What happens after Jan. 6th as you're watching the party?

Well, the allusion to Alice in Wonderland I think people generally understand. But the short explanation is that, you know, Alice finds herself in a subterranean world where nothing makes sense and everything is upside down, and there is, therefore, intellectual and rational chaos. That's what I meant to convey because that's where I believe the Republican Party, to the person, was at that time and is essentially today, a year and a half later. We've begun to see some cracks in the Republican Party recently, but only begun and only recently. And I believe that even those cracks are only due to the opportunity that's been presented, the convenience opportunity that's been presented to our Republican leaders to consider distancing themselves from the former president, the opportunity being the recent primaries.

But as I would've expected of all politicians, including the Republicans, you know, at best they're waiting for an opportunity that they can avail themselves of. They're not about to seize the opportunity and make it themselves by speaking out.

I mean, and when they make an active decision, say, to take Liz Cheney out of the leadership, for example, how important are those decisions that they're making on the way in the wake of Jan. 6?

I don't do politics and I never have, and I don't want to ever do politics, or even for that matter speak a word about politics. But the day that I read with the rest of the country that the Republican Party had censured Liz Cheney was the final straw for me to the extent that I had a straw in the wind for Republican politics. Why? Because I don't believe that you have a political party at all if the putative members of that party would censure Liz Cheney simply and merely for wanting to investigate as a member of Congress the events of Jan. 6. It's unimaginable to me and my worldview of politics that any person in America would not favor an investigation of Jan. 6.

I'm not naïve. I understand the politics involved just in that investigation. In my view, notwithstanding the politics, every single American citizen and every single member of Congress should have urged an investigation of the events of Jan. 6, which leads me to my pessimism at the moment. If the country's reaction to Jan. 6 had been what it ought to have been, I would not have especially any concerns today for the country and for our democracy. On the one-year anniversary of Jan. 6, [2021], The New York Times asked me to comment on where I thought the country was a year later, and I did. And I think I said something like, "On Jan. 6, [2021], I was gravely concerned for America and for our democracy." I said a year later for The New York Times that I was more concerned then than I was Jan. 6, [2021]. That's all I said. The reason I said that was that the reaction to Jan. 6, [2021], was the polar opposite of what it should have been, what it ought to have been by the country.

And if we can't agree that what occurred on Jan. 6 was wrong, and to digress, in the view of the Republican Party was, quote, "legitimate political discourse"—if we can't agree as a nation as to the wrongness of the event and that statement by the Republican Party, we'll never agree on anything.

You know that Judge [David O.] Carter has written about, and I think in the Eastman lawsuit, possible theories of criminal liability. Do you think there's a role for a criminal investigation or potential crimes in the run-up to Jan. 6?

I have studiously and scrupulously avoided comment on that, and many, many have asked me that. And I wouldn’t comment on that today. What I'll say as to the former president and to John Eastman is this: It's exceedingly difficult to bring criminal charges against a lawyer for his or her advice to a client. That's not to say that it's not—that it's impossible or that it's not at times appropriate, but it's exceedingly difficult, and it's rare. The only way that that could ever happen is if the lawyer was advising his or her client as to the law in bad faith, purposely advising the client as to the law when the lawyer did not believe that that was the law. From that, you can understand it's rare, and it should be rare, though it's not impossible.

As to the president, because he's not exercising a professional service in the way that a lawyer does—it's a political service to the nation—different rules apply to him, criminal rules. And those rules cut in both directions at the same time. No one believes that a president of the United States should be criminally prosecuted except in the most extraordinary circumstances possible under our system of government. By the same token, most people would agree that even a president could and should be prosecuted for the most egregious criminal acts that a president might commit. So the question for the country, and most immediately for the Department of Justice as to the former president, is the latter; namely, does the president's behavior and conduct first constitute a criminal offense under the United States code?

That's an awesome decision to have to make, a decision that only the attorney general of the United States can make, Merrick Garland. If he makes that decision, he must then decide the even more awesome decision of whether the United States should prosecute the former president, even assuming he had committed a criminal offense. So those two layers of decision for—as to the decision whether to prosecute former President Trump is to tell you how exceedingly difficult that decision is, how rare it will always be, and how rare it ought always be.

You write that in your New York Times editorial that there's a "clear and present danger to our democracy now," which is very strong language, language you didn't—you're borrowing that language. 66New York Times: The Conservative Case for Avoiding a Repeat of Jan. 6What did you mean to convey when you said that, and why were you issuing such a strong warning?

Yes, I of course borrowed that phrase. It's one of the most famous phrases in the law. And in the context, the question was, does free speech present a clear and present danger to our society? Yes, I borrowed that phrase. What I meant by it was exactly what the phrase intended to impart originally and is meant to impart today. It's clear. That's a legal term. It's clear that this—everyone understands it. Everyone sees it. There's no issue. It's not ambiguous; it's clear. Second, it is a present danger. It is a danger right now that's occurring in front of our eyes, a clear danger that's occurring in front of our eyes in plain view to all. So that's why I introduced that piece in The New York Times with that statement.

So what was the clear and present danger I was talking about? There I was talking about the—well, I was talking about even there in that piece the danger that President Trump and his allies in Congress and in the states were preparing to exploit the Electoral Count Act of 1887 in 2024 in the same way that they had exploited it in 2020.

But I was also saying in that New York Times piece a couple of months before the CNN piece that I wrote that this is the blueprint for Republicans in 2024, the blueprint to do exactly in 2024 what they attempted but did not succeed in doing in 2020. Now, in my own thinking, why was that a clear and present danger? It was easy to me, as I said in the New York Times piece. They are not only doing it in plain view; they're boasting that that's what they're doing, and they're telling us in complete transparency that that's what they're going to do. …

Because you've written a lot about ways to change the Electoral Count Act, ways to change the law where you could potentially prevent these abuses, and as you've said, they've run into a roadblock, which leaves us with the—as we've just been talking about it—the goodwill, the norms, the commitment not to the letter of the law but to democracy as a value. How important now is that? How much danger is there on that front, on the goodwill front, on the commitment to democracy?

That is the danger, and that is the threat. And that is the only danger and threat. It is the people. It is our elected representatives of we the people. If they are not willing to do their job, then democracy can't be saved, but neither can America. It's that simple. You could have America and American democracy without any rules at all if you could rely upon the good faith of our elected representatives. But our founders understood the folly in that, and that's why they created the constitutional system of governance that we have today in the Constitution. But they were—in fact, I just recently was reading and having this thought: The founders were political figures themselves.

But what I was reading recently convinced me where I had not been convinced before that they totally understood that a nation cannot be entrusted with its public officials and public representatives, and it's for that reason that the framers built and created the constitutional structure for our governance, which they believed, rightly, would protect America even from its public politicians. That's why today, I believe that America, and for sure American democracy, is at risk, because those representatives whom the founders completely understood would tend to act in their own self-political interest rather than the interest of the country, the founders believed that the system would constrain them. Today proves that the founders, as wise as they were as to that, were mistaken.

Thank you. Let me see first if Michael has a follow-up or anything that we missed. Did Vanessa have anything?

… You mentioned the tweet, the Twitter thread that you wrote on Jan. 5. I was wondering, would you be willing to read some of it—I have it right here if you don’t mind?

What I'd say as background for all of you is that words are the most important thing in my life. Every single word that I've ever spoken or written I've measured and calculated for at least minutes, every single word. I look up every word, even though I know the definition perfectly well and could recite it. I look up every important word. And then I look up the synonyms and the definitions of the synonyms before I choose the word that I use. And that's my whole life. And so just imagine Jan. 5, and I'm told to write something for the country on the biggest constitutional issue of our times, and to do it immediately. And what I'm going to read you is what came out.

And I'll tell you that my whole life, at many moments like that, I've literally prayed for the words to come, and not one single time in my life have the words not come when I needed them. That's where my mind was while I was preparing that tweet, I was more than conscious, even though I had no idea that I was writing for history. And I did the very best I could to choose the words that I wanted to be remembered in history. So that's a complete digression and a very personal one, but since she wants me to read it, I just wanted you all to have that backstory, as you call it.

The most important words to me, by the way, were the loyalty words because those were the words in which I understood that I was speaking to the personal relationship between the two men. As tortured as it was at that moment, I wanted to speak to that. So, relatively speaking, the first words were not as important to me as the latter. And of course, I don't think I've ever even seen the latter words quoted anywhere. But just in terms of your personal interest, those were the words that I summoned and asked for.

"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. The 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. How the vice president discharges this constitutional obligation is not a question of his loyalty to the president any more than it would be a test of a president's loyalty to his vice president whether the president assented to the impeachment and prosecution of his vice president for the commission of high crimes while in office. No president and no vice president would—or should—consider either event as a test of political loyalty of one to the other. And if either did, he would have to accept that political loyalty must yield to constitutional obligation. Neither the president nor the vice president has any higher loyalty than to the Constitution of the United States."

Thank you so much for doing this. One of the things that comes through from your story is how you've guarded your credibility throughout your career—every word that you issue, not weighing in on every moment of things, not getting involved in politics. And then this monumentous [sic] moment happens where the vice president's personal lawyer is calling you in a moment of constitutional crisis, and that reputation, that carefulness that you'd built up before, was part of the reason you were—probably was the reason you were in that position at that crucial moment in history.

Yeah, that's the whole story, and that's the whole story for me personally, too. I've never said a word about the rather lengthy conversation the vice president and I had on Jan. 7. And of course, he's not said anything about it publicly as to the pressure he was under and why he came to me. You know, I'll have to take that to my grave. But it was probably the most meaningful moment in my life because it brought my life full circle, you know, from where I began and to that historic moment that was like about as serendipitous as could ever be, you know? I'm just sitting there going, oh, my God. Look, I personally believe that that was divinely inspired, and it wouldn’t surprise me if the vice president thought the same. But whatever it was, for me, it was a big deal.