” All my life, I have said (as to myself, and at times, by way of sarcastic prescription for others) that I never . . . talk . . . any . . . faster . . . than . . . my . . . mind . . . can . . . think.”

—Judge Michael Luttig. June 16, 2022 before the January 6^th Committee.

Nancy and I had the same reaction as we listened to Judge Luttig’s testimony.  We both recalled a routine by the comedy duo of Bob Elliott and Ray Goulding, Bob & Ray, in which Ray interviewed the President of the Slow Talkers of America.

Sometimes we talk too rapidly.  We are so accustomed to talking rapidly, even before we have understood a question or a discussion point, ignoring the admonition from the Gospel of James: “Everyone should be quick to listen, slow to speak and slow to become angry, because human anger does not produce the righteousness that God desires”

The most underrated part of speech is the pause.

—-because pauses give listeners the chance to process what we say.

As we watched, it became apparent to us that Judge Luttig realized the gravity of his appearance before the committee, and wanted to so carefully respond to questions that there could be no lack of clarity in his responses or misunderstandings of what he said. His pauses made us listen more closely.

We were drawn into his answers not only by the pauses but by the exactness of his words.  And it was because his pauses caused us to listen so carefully that one line had an impact (at least to this listener) greater than all of the others. It came as the committee was discussing the erroneous advice given President Trump that history and law establish a precedent for the Vice-President to overturn a presidential election.  Judge Luttig, after refuting that claim, told the committee: “I would have laid my body across the road before I would have let the Vice President overturn the 2020 election on the basis of that historical precedent.”

He didn’t say that as the written transcript preserves it. Without raising his voice, the pacing of his statement carried an unmistakable power and a passion as he carefully formed his thoughts, pausing as he did so, knowing that his words became history a soon as he spoke them.*

Near the end, his carefully-delivered words carried a warning:

Today, almost two years after that fateful day in January 2021, that still Donald Trump and his allies and supporters are a clear and present danger to American democracy.

In the days since his testimony an unusual thing has happened.  The judge has explained why he spoke as he did.  Several organizations have reported his explanation.  It began with praise from a writer for Vanity Fair, Joe Hagan, who wrote on Twitter:

“I like how this guy treats every line of his testimony like he’s engraving it on a national monument. And frankly, he really *is* engraving it for history. And he seems to know it. I also respect, despite how halting he may sound, that Luttig is not setting himself up to be a mere soundbite maker. He’s speaking to history, not TV. His sobriety, his graveness, his hallowedness, is so foreign to our modern sensibilities — but that’s the point. That is the precise point.”

Judge Luttig saw what Hagan had written and responded that Hagan “almost presciently understood precisely what I was at least attempting to do…”

What you could not know, and did not know, but I will tell you now, is that I believed I had an obligation to the Select Committee and to the country, first to formulate . . . then to measure . . . and then . . . to meter out . . .every . . . single . . . word . . . that I spoke . . . , carefully . . . exactingly . . . and . . . deliberately, so that the words I spoke were pristine clear and would be heard, and therefore understood, as such.

I believed Thursday that I had that high responsibility and obligation — to myself, even if to no other. Also please bear in mind that Thursday was the first time in 68 years, to my knowledge, I had ever been on national television, let alone national television like that. And though not scared, I was concerned that I do my very best and not embarrass myself, as I think anyone who found themselves in that frightening circumstance would be.

I decided to respond to your at once astute and understanding tweet finally this afternoon, because I have been watching the tweets all day suggesting that I am recovering from a severe stroke, and my friends, out of their concern for me and my family, have been earnestly forwarding me these tweets, asking me if I am alright. Such is social media, I understand. But I profoundly believe in social media’s foundational, in fact revolutionary, value and contribution to Free Speech in our country, and for that reason I willingly accept the occasional bad that comes from social media, in return for the much more frequent good that comes from it — at least from the vastly more responsible, respectful speech on those media.

That is why, 16 years after my retirement from the Bench, even then as a very skeptical, curmudgeonly old federal judge, I created a Facebook account and then a Twitter account — slowly . . . very slowly . . . one account first . . . and then . . . followed . . . by the other. All of this said, I am not recovering from a stroke or any other malady, I promise…

I was more ready, prepared and intellectually focused (I had thought) during Thursday’s hearing than I have ever been for anything in my life. I gather my face appeared ‘too red’ for some on Twitter, betraying to them serious illness. The explanation was more innocent than that. At the last minute, I had been able during the weekend preceding my testimony to help my daughter get settled into her new home, where the temperatures were in the upper 90s, and where I was appreciatively, though unwittingly, to get just a little bit of needed suntan!

What I will say, though, is this. And I think it explains it all. All my life, I have said (as to myself, and at times, by way of sarcastic prescription for others) that I never . . . talk . . . any . . . faster . . . than . . . my . . . mind . . . can . . . think. I will proudly assure everyone on Twitter that I was riveted, laser-like as never before, on that promise to myself… beginning promptly at the hour of 1:00 pm Thursday afternoon.

What is more, as consciously as one can be aware of something subconsciously, I was…supremely conscious that, if I were chiseling words in stone that day, it was imperative that I chisel the exact words that I would want to be chiseled in stone, were I chiseling words in stone for history.

He concluded, “I can assure you that on last Thursday, June 16, I had never felt, or been, better in my life.”

Judge Luttig, in addition to contacting Politico to explain his careful presentation, shared with the political news site a reflection he wrote in February about those who were heroes on January 6.  He called the piece “the most important words to him that he has ever written” and said they are the words “that he wants remembered.”  You can find it at:

https://www.politico.com/f/?id=00000181-76c7-d970-af8d-f6cf735d0000

Writing has no pauses.  We, and many others, will remember Judge Luttig not for those words he wrote in February but the words and the pauses that he gave us on June 16, 2022.

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*National Public Radio (and others, probably) has been publishing transcripts of each day’s hearings.  We have edited the NPR transcript for that hearing to highlight Judge Luttig’s testimony.  For the full transcript, please go to https://www.npr.org/2022/06/16/1105683634/transcript-jan-6-committee

The transcript (excerpted)

LIZ CHENEY:

Thank you very much, Mr. Chairman. Judge Luttig, thank you as well for being here with us today. You issued a very important statement earlier today, which I urge all Americans to read. And I’d like to ask you, Judge, about one of the sentences in your statement and ask if you could explain to us the significance of it. You say, had the Vice President of the United States obeyed the President of the United States America would immediately have been plunged into what would have been tantamount to a revolution within a paralyzing constitutional crisis.

Could you elaborate on that for us, Judge?

1. MICHAEL LUTTIG:

Thank you, Madam Vice Chairman. That — that passage in my statement this morning referenced the — the most foundational concept in America, which is the rule of law. Thus, as I interpret your question, you are asking about that foundational truth of these United States, which we call America. The foundational truth is the rule of law.

That foundational truth is, for the United States of America, the profound truth, but it’s not merely the profound truth for the United States, it’s also the simple truth, the simple foundational truth of the American republic. Thus, in my view, the hearings being conducted by this select committee are examining that profound truth, namely the rule of law, in the United States of America.

The specific question of course before you and before the nation, not before me, is whether that foundational rule of law was supremely violated on January 6, 2021. Now, to the question specifically that you asked, Madam Vice Chair, I believe that had Vice President Pence obeyed the orders from his President and the President of the United States of America during the joint session of the Congress of the United States on January 6, 2021 and declared Donald Trump the next President of the United States, notwithstanding that then President Trump had lost the Electoral College vote as well as the popular vote in the 2020 Presidential election, that declaration of Donald Trump as the next President would have plunged America into what I believe would have been tantamount to a revolution within a constitutional crisis in America, which in my view, and I’m only one man, would have been the first constitutional crisis since the founding of the republic.

LIZ CHENEY:

Judge Luttig, did the Trump electors in those seven states who were not certified by any state authority have any legal significance?

1. MICHAEL LUTTIG:

Congresswoman, there — there was no support whatsoever and either the Constitution of the United States nor the laws of the United States for the Vice President frankly ever to count alternative electoral slates from the states that had not been officially certified by the designated state official in the Electoral Count Act of 1887. I did notice in the passage from Mr. Eastman’s memorandum and I took a note on it, and correct me if I’m wrong, but he said in that passage that there was both legal authority as well as historical precedent.

I do know what Mr. Eastman was referring to when he said that there was historical precedent for doing so. He was incorrect. There was no historical precedent from the beginning of the founding in 1789 that even as mere historical precedent as distinguished from legal precedent would support the possibility of the Vice President of the United States quote, “Counting alternative electoral slates that had not been officially certified to the Congress pursuant to the Electoral Count Act of 1887.” I would be glad to explain that historical precedent if the committee wanted, but it — it would be a digression.

JOHN WOOD:

Judge Luttig, I had the incredible honor of serving as one of your law clerks. Another person who did was John Eastman. And you’ve written that Dr. Eastman’s theory that the Vice President could determine who the next President of the United States is in your words incorrect at every turn.

Could you please explain briefly your analysis?

1. MICHAEL LUTTIG:

It was my honor, Mr. Wood, to have you serve as my law clerk. I — I could answer that question perfectly if I had at my disposal either Mr. Eastman’s tweet or my own analytical tweet of September 21st. But I don’t. But that said, let me try to remember the analysis of — of Mr. Eastman’s analysis.

JOHN WOOD:

And — and Judge, I can read to you and to the audience I think what was a really key passage from your very insightful analysis when you wrote, “I believed that Professor Eastman was incorrect at every turn of the analysis in his January 2nd memorandum beginning with his claim that there were legitimate competing slate of electors presented from seven states.”

You’ve already addressed that issue. But your next sentence said, “Continuing to his conclusion that the Vice President could unilaterally decide not to count the votes from the seven states from which competing slates were allegedly presented.” So what was your basis for concluding that Dr. Eastman was incorrect in his conclusion that the Vice President could unilaterally decide not to count the votes from these disputed states?

1. MICHAEL LUTTIG:

I understand. As I previously stated in response to Congresswoman Cheney, the — there was no basis in the Constitution or laws of the United States at all for the theory espoused by Mr. Eastman at all. None. With all respect to my co-panelist, he said I believe in partial response to one of the select committee questions that the single sentence in the 12th Amendment was he thought [unartfully] written.

That single sentence is not [unartfully] written. It was pristine clear that the President of the Senate on January 6th, the incumbent Vice President of the United States, had little substantive constitutional authority if any at all. The 12th Amendment, the single sentence that Mr. Jacob refers to, says in substance that following the transmission of the certificates to the Congress of the United States and under the Electoral Count Act of 1887, the archivist of the United States that the presiding officer shall open the certificates in the presence of the Congress of the United States in joint session.

It then says unmistakably not even that the Vice President himself shall count the electoral votes. It clearly says merely that the electoral count votes shall then be counted. It was the Electoral Count Act of — of 1887 that — that filled in, if you will, the simple words of — of the 12th Amendment in order to construct for the country a process for the counting of the — the — the sacred process for the counting of the electoral votes from the states that neither our original Constitution nor even the 12th Amendment had done.

The irony, if you will, is that, from its founding until 1887 in — when Congress passed the Electoral Count Act, the nation had been in considerable turmoil during at least five of its presidential elections, beginning as soon thereafter from the founding as 1800. So, it wasn’t for — almost 100 years later until the Electoral Count Act was passed.

So, that’s why, in my view, that piece of legislation is not only a work in progress for the country, but at this moment in history an important work in progress that needs to take place. That was long winded. I understand.

JOHN WOOD:

Well, Judge Luttig, at the risk of oversimplifying for the non-lawyers who are watching, is it fair to say that the 12th Amendment basically says two things happen, the vice president opens the — the certificates and the electoral votes are counted. Is it that straightforward?

1. MICHAEL LUTTIG:

I would not want that to be my testimony before the Congress of the United States. The language of the 12th Amendment is that simple.

JOHN WOOD:

Thank you, Judge.

PETE AGUILAR:

I appreciate that. In our investigation, the select committee has obtained evidence suggesting that Dr. Eastman never really believed his own theory. Let me explain. On the screen, you can see a draft letter to the President from October 2020. In this letter, an idea was proposed that the Vice President could determine which electors to count at the joint session of Congress.

But the person writing in blue eviscerates that argument. The person who wrote the comments in blue wrote, quote, “The 12th Amendment only says that the President of the Senate opens the ballots in the joint session. And then in the passive voice that the votes shall then be counted”. The comments in blue further state, “nowhere does it suggest that the President of the Senate gets to make the determination on his own”. Judge Luttig, does it surprise you that the author of those comments in blue was in fact John Eastman?

1. MICHAEL LUTTIG:

Yes, it does Congressman. But let me — watching this unfold, let me try to unpack what was at the root of what I have called the blueprint to overturn the 2020 election. And it is this.

And I had foreshadowed this answer in my earlier testimony to Congresswoman Cheney.

Mr. Eastman, from the beginning, said to the President that there was both legal as well as historical precedent for the Vice President to overturn the election.

And what we’ve heard today, I believe is — is what happened within the White House and elsewhere as all of the players, led by Mr. Eastman, got wrapped around the axle by the historical evidence claim by Mr. Eastman. Let me explain very simply, this is what I said would require a digression, that I would be glad to undertake if you wished, in short, if I had been advising the Vice President of the United States on January 6th, and even if then Vice President Jefferson, and even then Vice President John Adams, and even then Vice President Richard Nixon had done exactly what the President of the United States wanted his Vice President to do, I would have laid my body across the road before I would have let the Vice President overturn the 2020 election on the basis of that historical precedent.

But what this body needs to know, and now America needs to know, is that that was the centerpiece of the plan to overturn the 2020 election. It was the historical precedent in the years — and with the Vice Presidents that I named, as Congressman Raskin understands well, and the — the effort by Mr. Eastman and others was to — to drive that historical precedent up to and under that single sentence — single pristine sentence in the 12th Amendment to the United States Constitution.

Taking advantage of, if you will, what many have said is the inartful wording of that sentence in the 12th Amendment. Scholars before 2020 would have used that historical precedent to argue, not that Vice President Pence could overturn the 2020 election by accepting non-certified state electoral votes, but they would have made arguments as to some substantive, not merely procedural, authority possessed by the Vice President of the United States on — on the statutorily prescribed day for counting the Electoral College votes.

This is — this is constitutional mischief.

BENNIE THOMPSON:

The gentlelady yields back…

Judge Luttig, I want to give you an opportunity to share your thoughts on the ongoing threat. You’ve written the clear and present danger to our democracy now is that former President Donald Trump and other political allies appear prepared to seize the presidency in 2024 if Mr. Trump or one of his anointed candidates is not elected by the American people.

What do you mean by this?

1. MICHAEL LUTTIG:

Mr. Chairman, I’m honored beyond words by your words. I was honored on January 6th, 2021, and also honored beyond words to have been able to come to the aid of Vice President Mike Pence. I prayed that day just like the vice president prayed that day. I believe we may have prayed the — the same prayer to the same God. I prayed that same prayer with my wife this morning before I came into these hearings.

I have written, as you said, Chairman Thompson, that today, almost two years after that fateful day in January 2021, that still Donald Trump and his allies and supporters are a clear and present danger to American democracy. That’s not because of what happened on January 6th. It’s because, to this very day, the former president, his allies, and supporters pledge that, in the presidential election of 2024, if the former president or his anointed successor as the Republican Party presidential candidate were to lose that election, that they would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election, but succeed in 2024 where they failed in 2020. I don’t speak those words lightly.

I would have never spoken those words ever in my life, except that that’s what the former president and his allies are telling us. As I said in that New York Times op-ed, wherein I was speaking about the Electoral Count Act of 1887, the former president and his allies are executing that blueprint for 2024 in open, in plain view of the American public.

I repeat, I would have never uttered one single one of those words unless the former president and his allies were candidly and proudly speaking those exact words to America. Chairman, thank you for the opportunity to appear here today for these proceedings.