Michael Luttig: Lessons of January 6 and the Ongoing Threat to American Democracy

[Music] hi i'm bill crystal welcome back to conversations i'm very pleased to be joined today by an old friend uh mike luedig who with whom i worked a bit in the first george h and the george h.w bush administration when he had very senior position a very important position at the justice department as head of the office of legal counsel uh became was appointed as a federal judge and in 1991 to the fourth circuit was one of the most distinguished circuit judges for what 15 years after that famously i think you said war supreme court war clerks to the supreme court than any other felony judge perhaps and and very highly respected and conservative not just a conservative legal circles but in all legal circles i was reviewing your your biography the last night and uh like your mentor and hero i guess justice scalia you dissented from conservative orthodoxy on a couple of occasions and um see that one terrorism case i remember where you uh dissented saying that as an american citizen someone i think we captured in afghanistan had certain legal rights and you were the minority on the circuit i think but the supreme court upheld your your view in 2004. uh judge ludwig left the court in 2006 was a corporate council for over a decade very interesting career executive branch judicial branch private sector we have to we'll have to have a separate discussion about what you learned about america from all these different aspects of your career but today i want to talk about 2020 and and our the current crisis uh the crisis of 2020 and the questions of today in terms of uh our democracy and our presidential elections so mike ludwig thank you very much for joining me thank you bill i i don't think i've ever uttered these words to anyone but uh it's a pleasure to be on your show this morning a little yeah these judges are kind of averse to mere discussions with the hoi polloi but that's okay you know it's nice of you to to bend once for for us so you were there someone who knows his government so well and follows the thought so much about the rule of law on the constitution and served elections every four years i mean you were what were you thinking i guess i mean you played a role which we'll come to in a second in 2020 very important one but as you watched it unfold both before the election day and then between november 3rd and january 4th which i guess is when you get directly involved or you're brought in directly it's not your choice um what were you thinking and how alarmed were you did you think this was just a little bit of noise and kind of silliness or were you seriously alarmed about uh our the election of democracy bill i i had been uh watching the the lead up to to uh uh january 6 uh for um you know several months uh even before the election uh in particular i was i was focused on the former president's uh statements that uh that he would was going to win the election and if he and if he didn't he was going to to uh contest the election uh post november uh and uh and and in particular i remember you know it was about that time that that uh you know thoughtful people uh begin asking uh uh whether president trump would leave the white house even even if he uh uh were to lose uh you know my wife and i she's about the only one i talked to about anything sensitive and and uh and she first raised it with me and said uh i don't think that uh that trump's going to leave the white house and uh you know i i dismissed that and i said well look first off that's just not a possibility it's not an option uh and of course it would be unprecedented in all of history uh and uh you know she continued to to say as the weeks and months progressed that no she was utterly convinced that he would never leave and you know when um there finally came a day before the election oh though only uh uh days before the election where she you know you know how wives are she said look i told you so and uh you know you didn't listen to me and and he's not gonna leave and uh and that was the first time where i said to her uh uh look um i i'm not sure that he's going to leave even if he loses but i had been watching the the the uh the lead up to the election and of course the post-election uh activities uh uh very closely uh i was uh you know i don't do politics never have um and but i you know i was uh very interested in uh the constitutional and legal questions that that uh were going to were going to be presented to the nation yeah i know and you ended up uh opening on them in a very important way but i'm just curious on that between november 3rd and january 6th you were were our friend of bill barr the attorney general i think you've been in touch with them times during his tenure um many mutual friends as well anything particular alarm you in that period that maybe other people didn't notice as much i'm thinking of course of his leaving his his rather sudden resignation or and or firing depending on how you think about it in december of of of 2020 something pretty unprecedented i mean to sort of the at first the secretary of defense is fired a week after the election then the attorney general the united states uh resigns because for some other things trump was asking that he felt he couldn't do or just you know a month before the inauguration did that particularly alarm you or was it just everything the state legislators the whole the speeches the whole behavior of the former president well you know bill and i are very close friends uh i don't remember talking uh in that period time period though we could have and we certainly could have emailed with each other but to your question bill uh i i understood in a way that that that probably uh others could not by virtue of our friendship uh the uh monumental significance of of uh of bill the attorney general bill barr um you know stating publicly that there was the department had uh quote investigated and uh and concluded that there was there was um insufficient evidence of fraud uh to uh to turn the election around and of course that was the trigger for uh the showdown between the attorney general and former president trump that we now know through bill's book uh you know occurred in in the oval office yeah and i think that was key it's good to be reminded of that because that's what really made the former president go to outside legal counsels and start you know embracing various theories of what state legislatures could do and how they could sort of override the actual vote counts in their states which if he had a compliant justice department of course could have looked quite different don't you think yeah there's there's no question but to elaborate just a a moment more um you know i knew when bill barr came forward and said that there was insufficient fraud uh i knew personally and deeply uh that that was the the most significant moment you know uh to date uh and and you know i i knew good and well how uh uh the former president would respond to that uh very public statement so then on december 14th whatever the electors are selected in the different states and there's a lot of hub up still and trump the former president is trying to call people and pressure of people to overturn it and there are legal arguments floating around about that and you're you're following and then the role of the vice president becomes a question because of january 6 and what would congress do what could he do and you're following all this and then why don't you just tell us how how you become a a player in it not simply a very intelligent and attentive follower of it yes um you know as now has been reported you know widely um i was uh my wife and i were out in colorado um at the time and uh i think it was on the uh for us in the evening of january 4th uh we were having dinner and and uh i got a call from you know my good friend um and incidentally bill barr's good friend uh richard cullen uh uh who is is now with uh governor young in um you know in virginia uh and uh you know richard and i have been talking frankly for two years straight uh about all things uh political um because uh he was for those two years uh representing uh vice president pence um primarily in connection with the uh the robert mueller investigation and then of course our mutual friend was attorney general so uh you know i mean we were we talked multiple times every day for you know months and months uh and i say that for the that background for this reason um you know when when richard called me that night uh you know uh it was just like old friends talking as if you you and i were talking um but you know he said uh on that night he said uh you know he calls me judge which is fine and uh i said he said judge uh um do you know john eastman uh and i said yeah i do and he said uh i said you know john was one of my clerks uh uh maybe 25 years ago or so and uh and after clerking with me uh he went on to clerk at the supreme court with uh justice thomas and uh he said uh i said well why why why why are you asking and he said uh uh so you don't really know why i'm calling and i said no i don't he said uh well uh you know john eastman professor eastman uh is advising uh president trump and uh vice president pence that vice president pence has the power under the constitution to uh um reject electoral slates uh uh from various states and and in effect richard said uh you know unilaterally decide the the presidency um and uh i said uh uh you know because i had been following it and and you know this this is my whole life the legal legal parts of this i you know i knew and i understood uh instantly the the gravity of the of the uh and significance of of the moment so i said uh i said well look richard um you can tell the vice president if you want that that i said that he has no such authority under the constitution and laws of the united states and that his only uh his only choice at this point is to uh uh uh accept and and and and for congress to count the uh electoral college votes as as they have been cast and richard said uh uh he knows that i've told him that and i said uh okay you know fine uh and i said look you know really casually uh bill i said look you know i i'll be glad to help in any way i can you know and uh and we hung up so um you know my wife who had been hearing one side of that conversation you know said you know what on earth was that and uh and so i explained to her and you know and she you know said something like you know oh my god you know uh and i said uh you know i said yeah i mean look it's it's a big deal but you know i'm not involved in this at all uh you know and uh so that was it and uh so so the next morning um i get up around 4 30 in the mornings uh early bird and um and uh so i was having my coffee as i remember somewhere around 5 30 in colorado time 7 30 on the east coast and uh and richard calls uh and and again it was you know fairly casual conversation at its inception uh you know because richard and i often talk in the early morning hours so i didn't think much of it um but but he said you know the first words out of her his mouth or something to the effect that uh that you know um you know we we have to to help the vice president uh and uh i said uh i said well what do you mean and uh and he says well i i don't really know what i mean and i said you know uh even though i i'm a ham i i was i was not a ham on that call and i said uh but i did say well what do you mean what you don't know what you mean if you don't know what you mean how do i know what you mean uh and he said uh he said look uh this is deadly serious uh you know the the vice president uh uh need needs your help uh because he's uh i believe he said uh the vice president was going to meet with the with president trump in the oval office for launch uh um later that day and uh uh so you know then begin something of a surreal um hour frankly for me uh um you know because i i told richard you know i i said uh richard i you know uh i literally said look i'm i'm a nobody uh i said you know what's worse than that i don't even have a job i had retired from uh boeing um and was but was going to take a job with the coca-cola company literally on the morning of january 6. but i said to richard look i have no job i don't i'm out in colorado i don't have a a printer i you know there's what can i possibly do and he said um he says well i i don't know i said well what does the vice president want me to do and he says well he doesn't know either uh and i said well so what does what's going on and he said look you know we just need to get your voice out to the country well at that i was like flummoxed i'm going well the the one thing that i i know i'm incapable of doing is getting my voice out to the country uh in the next hour um and and he said uh look this is serious i said i get it he said i'll call you back in five minutes uh so i said fine and you know hung up and continued you know my coffee thinking about what i could possibly do he calls back in five minutes he says if he figured out anything i said no richard frankly i i don't even have a thought and he said i'll call you back in 10 minutes but we don't have much time so he calls back in 10 minutes and he says you know what what can you do and i said richard uh honest to god i i i'm racking my brain but i don't have a thought at all i mean just think what you're asking me to do i said i i i don't even know where to start and he said look you know i'll call back in five minutes and i said okay so we called back in five minutes and uh and he said what are you going to do and i said well look i had one thought uh i i guess i could tweet something but between you and me i said uh i i don't know how to to tweet at all and i certainly don't know how to tweet uh anything more than whatever the number of characters is that you're allowed to tweet which i didn't even know at the time uh and he said this is absolutely perfect this you have to do this and i said i told you i don't know how to and he said he said get get it done uh so um uh i sat there on my iphone uh you know and it's still very early in colorado and i and i typed out on my iphone um what what all of you now know is is the tweet um and then uh i called richard back and i said okay look i got something here i i said but look uh i will never utter a single word that the vice president himself doesn't personally approve i said that's just me i'm traditional conventional and and uh i'm just not gonna do it and he said uh the vice president will be fine with anything you said so and i said well i don't really care if he's fine with that i'm not fine with it uh and and he must approve it or i will not tweet it and uh and uh you know richard said i'll call you right back so he calls me right back and he says um the vice president will be perfectly fine with anything that you say and i said i'm still not going to do it richard he said you must do it now and i said okay but i don't like this so i go down to my office down down a floor in colorado uh and i begin this uh uh tortured process of trying to to get this tweet done uh you know with the clock ticking and and richard breathing down my my my neck uh and i don't think we want to know your your viewers and listeners care much about the details of that it's hilarious but the basic idea was i had i i took the text that i had written on my iphone in a in an email and blocked and copied it and and pasted it into a word document and then i divided the word document into a 180 characters or fewer tweets and then i and then i went on twitter and not knowing how to do this but i my son you know told me and uh to send a i guess it's called a thread and and uh and then i typed each individual piece of that thread in uh proofed it uh you know multiple times uh frankly i i didn't want to do it i was nervous um i was i was even scared um um but finally uh you know hit the tweet button um not knowing and not having any idea even what i was doing who if anyone would ever see those words and and and as far as i knew and believed that was the last that i would ever hear of the tweet okay i mean i'm struck i guess you ended up speaking to the vice president you said the day after january 7th but i mean is he clearly wanted reputable and more than reputable conservative legal authorities to be justifying what he was already planning to do is that your sense it's not that he was wavering it's that he wanted help in bolstering himself and his case against the pressure he was getting i don't want to put words in his your mouth or his mouth but that sounds like that and of course i i will not put words in his mouth um but i i would just say what we know uh is that uh well first off to answer your question uh you know i was working with his staff uh in particular mark short through richard cullen uh and never the vice president personally uh until after january 6th uh but uh you know there was no question in my mind but that the vice president had made his decision uh and that and i didn't i didn't know or believe this at the time but uh you know he he was uh he was marshaling you know as as much uh support nationally as he could for what he had decided he must do yeah i know that's really uh interesting i'm i'm uh it's great that you did that my my former boss dan quayle who through my works in the obviously in the george h w bush administration with whom you worked as well some on various uh issues uh when you were at the justice department then also i think god you know felt that he was called i think he said this publicly that you know he the vice president wanted to be reassured that he had to do what he was going to do and it was the right thing to do but and then of course you get cited by the vice president in the letter he sends on january 6. i interject there because um i i don't know the vice president even to personally to to this day uh and and i would never say that i i'm friends with or no former vice president quail but the vice president pence and and former vice president quail apparently or are close friends so um there's no question that that uh you know we know there's no question that vice president pence you know sought you know the opinion of vice president quayle yeah i mean i guess it's so striking that it got to that point right i mean it's one thing to sort of pressure some stateless it's not great but to pressure some state legislators to float some legal doctrines of how they can discount certain votes or not count certain votes and all that but that after december 14th people both thought in terms of public pressure but in terms of legal arguments as well that it was reputable to have the vice president just overrule everything at this last ditch moment does that i guess did that surprise you then does that still surprise you the degree to which the the the people were willing to go to even that uh extent as i kind of remember people giving a bit of a sigh of relief after december 14th that okay we probably threw the worst of it yeah of course you know it only came to that race to that point not because of vice president pence but because of of former president trump right um you know it's the the real story in all of this is the uh uh excruciating hydraulic excruciating pressure that that uh trump put the vice president pence under uh and and you know vice president pence even though he was only doing his constitutional duty what was a hero of that day of course uh but to your second question uh i i really didn't get grievously concerned until um you know after the january 6th when i learned uh all that had been going and we can talk about that as much or as little no no we should i because i think that's a key point you make in the excellent beach you write for cnn which people should take a look at from late april which is i mean the degree to which this was a real plan a real uh it had its goofy elements you might say and it's in its elements that were you know kind of long shots and so forth but this was not just a you know let's assemble a crowd and be sort of responsible and in uh in egging them on which i think the former president was it's not just have some you know outside attorneys make some kind of wild charges there was a pretty sustained effort for the whole period of time you know to overturn the results of the election i think that's something you've stressed subsequently so talk a little bit about that and then we can maybe talk about of because what that shows about the the guardrails we do have and don't have and and that we ended up depending on vice president pence doing the right thing uh you know against a lot of pressure is is so striking yeah i i you know with the rest of the country i i believed initially that uh that you know all of this uh was um just a bunch of kooks okay uh yeah uh sidney powell people like that and and and giuliani uh i was greatly concerned about it because you know if you have that kind of person's persons around the president of the united states of america and they are bent on overturning an election uh it's it's a consequential thing but you know i guess probably my subconscious belief and hope was that you know because this was the kind of people behind it it was destined to fail of of necessity uh it wasn't until much later when i at the same time the rest of the country began to understand uh that there were a seriously intelligent people uh involved uh you know in in the the effort that i begin to appreciate the uh the the real gravity of the situation no that's that's such an important point i think and you make that on the cnn piece that uh the kookiness tends to just the clown show aspect of it tends to distract us from the gravity of what was of what the effort was and then to transition i guess of what what our current situation is if we fixed it we haven't if we fix things that i mean apart from having the character the president matters a lot of course but if we fix the guard rails that uh did hold but but without that much of a margin of error uh uh last time no bill we we haven't even begun uh and and and my fear uh because the country is is is now in my view completely politicized and politically polarized uh that that there's an um a natural unwillingness for any of the players who can address the problems to address them in fact uh that's a mouthful you know you understand all of what i just said probably better than i do uh you know as as someone who's followed politics closer but uh you know what we what we experienced on january 6th what was a uh a full-scale uh assault on the uh our institutions of democracy and the in what i call the instrumentalities of our democracy um the former being literally uh you know the our tripartite system of government uh in each each uh each part of that that triumphant of of institutions and by instrumentalities uh i mean all of the uh i think what you would what you refer to as the guard rails is what i refer to as the instrumentalities right meaning the constitution and laws uh that uh that are the uh constitute the bull work of our democracy uh and so uh because of this uh uh frightening uh politicization of everything and of american society and uh complete polarization of the politics um you know i believe that we're in greater danger if you will today than we were on january 6th and uh and by the way you know the new york times asked me on the anniversary of january 6th uh you know this past january uh to reflect on on where i thought the country was uh a year later and uh uh you know i said for the new york times something to the effect that i was grieving grievously worried for the country on january 6 20 21 uh and i'm i'm even more concerned for the country on january 6 2022 and then i was then and and by that i meant what i just said to you if the uh if the if if the reaction of the nation had been to january 6 had been what what it ought to have been then i would not have any worries uh today and going forward about our country or or our democracy but of course the the reaction has been uh you know the collective reaction i'll say has really been just the opposite of what what it ought to have been uh namely you know we have a a a complete denial of of the 2020 election uh we have a denial of the significance of january 6 for our country uh and uh and we have a a a continued war uh uh really you know and i i i i hate to say this but we have a war going on now over um america and and over its uh its institutions of democracy i mean that's that's a i i think a fair statement the uh discouraging one i mean let's leave aside for a second the as we're political side of it which i of course totally agree with you on how bad it is to have the denial of 2020 and as you've argued i mean that that's really about 2024. it's not about 2020 anymore and that's very worrisome and dangerous but on these sort of more institutional side the instrumentalities you've urged that the electoral count act be reformed and strengthened and that they be bipartisan efforts to simply make it harder to pull off what uh people tried to pull off in 2020 clarify certain things uh say a word about just what two or three key things that should be fixed are at least in you know well i would say general terms or specific terms you know but state legislators the vice president's role etc and uh that seems like that's i i sort of agree with you though from the someone came down from mars and said we had this terrible thing in january and from november 3rd to january 6 uh 2020 to january 6 2021 and we really don't want to go through that again surely by the summer by what are we talking about the end of april uh i guess beginning of may 2022 at least congress will have gotten together to fix some of the problems they can't fix everything and it's always you know that you can't you can't plug every hole so to speak and you can't make legislation perfect against bad actors as you know very well having been a judge but you can strengthen the system that obviously had real holes in it and it's pretty astonishing that nothing has happened i mean it hasn't you you've written a bit on this and others have weighed in but there's been no hearings no no legislation really even introduced i think formally yet or certainly nothing no great momentum not that much of a sense of urgency anyway but i know so that's what i find kind of astonishing and say word about that if you want but also i really would be curious what what tools do you think should we focus on that are fixable i understand your astonishment the astonishment of of millions and millions of americans um but i'm not astonished at all for this reason the reasons that i just explained previously um the politicization total politicization uh but of the country uh which began of course on on capitol hill and then in the white house but um you know i for a year now i i've been uh consulting with and advising um a critical uh number of senators and house members on on the electoral account act and their amendments um and uh i have begun every single conversation i think uh with my observation that look um uh i don't really think that that that uh there will ever be a uh a consensus to even to amend the act for the simple reason that uh all of you here on on on capitol hill want the power to determine the presidency if the time comes that you want that power and uh and every single you know person you know has has said to me yes that's correct and that's our problem and then i've said okay well then i'll talk to you as long as you want and and and brainstorm and give you you know uh whatever you want and and when you go forth and see if you can get it done um now that that i've been doing that for a year uh and and and frankly i haven't gotten a hint that there's any uh momentum uh to to amend the electoral count act uh until the ir the cnn piece ran and then i got some feedback uh you know to the effect that oh wow okay so you laid this bear and uh and and uh you know that's that may get things moving uh yeah but you know for purposes of our discussion today do i have any any hope that that this will actually get done let alone done done properly no not really um but uh to the particulars yeah so if yes let's see let's let's have some uh ray of hope here and so what what if mcconnell and schumer called you in and said okay look we are gonna make something happen here what are the two or three things we can we must do and not those two in particular but that's what i've been telling the people that uh that i've been uh advising and consulting with uh look here first off i think all of your viewers and listeners listeners understand that this is uh the the law pursuant to which we count the electoral uh uh votes that are transmitted to congress uh for the election of the president and the vice president um and uh very interesting to know it is by as background is that the 12th amendment uh which is is the constitutional provision that speaks to this process says little or nothing about the process so uh in the in the electoral account act of 1887 congress took a stab at uh uh filling out if you will the process that would have to take place now in in that process i believe that the congress um irrigated to itself a power under the constitution to decide the presidency the constitution doesn't give to to uh congress but for today that's neither here nor there and i haven't stood on that uh position and my advice and counsel to on the hill um as you know bill i you know my friend and i david rifkin wrote a piece about it almost exactly a year ago about saying that the uh for the wall street journal saying that the act is unconstitutional for the reason that it that it it it gives too much more power to the congress than than than than it it could have uh but in any event so as would be relevant today uh under the current act uh it takes only a single uh member of the house and a single senator to uh present an objection to a a slate of electors uh and and and if one from each house does that then it triggers the the the balance of the electoral account act which is a circuitous uh labyrinthine to the point of being you know utterly indecipherable to any but a talismanic scholar um and uh in that process you know it's triggered uh for both the house and the senate to decide the objections to that state slate of state electors uh in various a host of circumstances that all depend upon in essence uh the um whether the the state electoral votes were quote regularly regularly given and the uh electors and their for their votes were lawfully certified both terms that are undefined and inherently ambiguous essentially giving the congress uh unchecked power and authority to decide the presidency uh and so um the first thing that that ought to be done is to to change the the number in the house and senate who can object to a slave and increase that number uh you know substantially uh from one and one to whatever is uh i've advised is politically palatable on the hill and then the second thing is that uh once once the the act is triggered by an objection being uh forwarded to the house and senate by the presiding uh officer of the senate the vice president of the united states um that there are you know votes that have to be taken and and and what under right now under the act the the thresholds for sustaining an objection are far too low and so to to amend the act they they need to increase the the number of votes in the house and senate that are necessary to uh to sustain an objection and therefore not to count the electoral votes from the particular state as to which the objections have been made uh so for instance i know that some of the drafts uh on the hill have ratcheted up that ladder number uh as high as 50 so 50 in the house and 50 of the senate would be would be required to sustain an objection and and throw out an electoral slate by the state so in a nutshell those are the the the two most important changes that could be made and are are and frankly they're they're necessary uh to be made uh in order to uh to uh uh prevent another january 6. is there a way to make the it harder for state legislators to simply step in and as an act of will override their own previous laws and and the judgment of the voters so so this this begins to get us into the weeds but but i'll try to keep us out of the weeds um that's okay weeds are useful if they're important weeds to help preserve our rule of law you know um we don't want to chase away your viewers though that's true the um so this all begins you know really uh for me and i think for our purposes today with um the constitution uh and the uh what's known as the elector's clause of the constitution um that that clause of the constitution purports to give what's what's known as plenary authority to the state legislatures uh over all things state electoral votes uh and uh there's been a debate that will soon be resolved by the supreme court united states as to whether uh that legislative power that's uh that's granted uh uh in the constitution uh is is subject to uh first in the first instance to state judicial review by the by the individual state supreme courts uh the the conservative view if you will uh just as a proxy for conversation uh is that uh the legislatures have um [Music] not only plenary but exclusive authority so that there can be no review by either the state courts or frankly uh the the the federal courts up to and including the supreme court except as the uh as decisions by the state legislatures uh uh might implicate federal constitutional law so uh that's where the the the 2020 election uh uh challenge began as i said in the cnn piece uh the pre former president's lawyers and legal team they they knew all about this uh what's called the independent state legislature doctrine they knew that it had never been embraced by the supreme court and at least never embraced by the current supreme court and uh and they believe that there were five votes on the on the court to embrace the independent state legislature doctrine and therefore deny all review of any decision made by the legislatures of the states so knowing that uh that they they initially you know tried to legitimately uh through the legislatures uh changed the electoral slates uh that had been uh uh uh voted and cast for uh president biden who had won the popular vote uh one i'm sorry won the presidency through the electoral college one um and and also the population uh and uh uh but they were not able to get uh what they would have considered legitimate uh alternative electoral slates uh certified by the state legislatures and then uh uh unable to do that they eventually uh were attempting to uh to uh as i said in the cnp scare up illegitimate uh electoral slaves but you know hearing myself uh nearing if not emerging into the weeds i'll just step back and say uh the the point being that trump and his lawyers believed at least initially that they could uh they could get alternative slates from the legislatures in the individual states swing states to forward the congress alternative slates uh and the vice president would then uh and congress would count those electoral votes rather than the electoral votes that were cast for um for for president bible uh and then eventually uh you know when they were turned away on that effort uh you know they tried to get you know frankly just illegitimate electoral slate sent to congress but by which i mean uh not lawfully certified by the states as being the the electoral slaves uh and of course they were eventually unable even to do that and that's what led to the uh the most far-fetched of the legal team's view that that even so the vice president could could reject uh legitimate electoral slates that had been forwarded by the states uh and at the very least uh send send it all back to the states uh you know uh for new slates uh delaying the uh the electoral count uh on january 6. and are you friendly to proposals that to try to also deal with the let's call it quote legitimate efforts or more legitimate efforts by saying legislatures to in this case suddenly after the election overturn their own state laws change their own state laws and recognize whoever they wish to recognize even if they did that in a so to speak lawful way with you know votes of the actual pennsylvania state legislature in accord with their own rules and so forth do you think that should be has to be sort of that can't be quite foreclosed as a possibility or or could you that at least have a court judgment about whether this was legitimate or not or i mean are we still in a sort of wild west situation if the independent state legislature doctrine takes hold i'm going to avail myself of the elegance of your question and and answer in this way no bill i'm not friendly uh to to that that attack he either as a political matter or as a constitutional manner that attack being the uh bringing in the judges in effect no the opposite the attack i'm talking about now is the attack you referenced which was to uh to to get uh alternative slates from the state legislatures oh thank you good no no that's what i thought but i wasn't sure yeah i was the ambiguity of my own question was uh haunting that but yeah i just think i mean leaving aside what could or couldn't be parsed from constitutional law i suppose i mean the politically i think it would cause incredible disarray and disruption and and put everything up for grabs at every swing state for weeks after the vote and i mean it's just uh something we've managed to avoid in this country pretty well actually for quite a long time we would be the country would be on tender hooks uh for the rest of history at the point of every quadrennial election you know it's funny until you go through something like we all went through a year ago you don't always realize how i how how big a gift it is to live in a country where whatever our slightly quirky way of counting and the electoral college and some places come in later than what we count some balance you know after others depending on if they were cast early still at the end of the day you know we kind of look at the results and it's up there on the screen and we know how the electoral college works and pennsylvania's votes go this way and arizona's go that way and it's resolved and um you know what not having an election resolved clearly what it has been dissolved clearly it's bushfie gore would be a different situation i think but when it's been resolved clearly by the rules under which the election was conducted that's a very dangerous situation for a country don't you think oh there's no question i was about to say that that that our uh our our system is uh you know um famously uh complex but actually as a result of some of the most recent uh presidential elections um we are we're able to see that it is the system actually allows us to uh um uh determine the presidency to near perfection uh and i'm only speaking now not about any possible kind of fraudulent voting i'm just talking about the system and i'm specifically referring to you know bush versus gore you know so so the system is capable of determining the presidency down to the individual vote is is the point i'm trying to make which is uh you know frankly uh to use your phrase that that's an astonishing uh um accomplishment of the system that was designed hundreds of years ago so as we look ahead to 2024 i guess there are several causes for alarm maybe to speak about each there's the possible failure to fix what could be fixed in terms of the electoral count act there are legal doctrines out there and and political doctors out there that might encourage a kind of misbehavior let's call it or or trying to jimmy the system after the fact which has been very much discouraged in the us for a long time and so and third there's the actual um uh the fact that major parts of at least one party don't accept 2020 as a prelude to presumably not accepting the uh the clear results if they are clear on election night of 2024 so which how alarmed should we be about each of those i guess uh the the legal situation the the current state of law or the failure to fix the law the uh doctrines political and legal that are floating around and then third the kind of broader political sentiment out there you've discussed that last one a bit of course already the five alarm fire alarm has been going off continuously uh since january 6th uh and and and and that's on all of the aspects that you've uh that you've mentioned that's why i am um uh very concerned about the uh where the country is today uh in my view we haven't even begun to to address the the problems and as i said as of this moment i believe there's a complete unwillingness uh to address the problems that's why i believe as to the larger problem that you you reference which i've described as a well i've said publicly that um that that uh you know america is at war um but it's not a war against a foreign power uh we are at a war with each other uh and uh that that is a war that that's one war that america cannot win uh and and that's the uh umbrella observation that that i i would make uh in in response to your you know your last question about where are we on the larger political um issue well no i i i'm not going to call them political the larger um fundamental issues uh about america and our and and our democracy uh that must be addressed uh in the first instance before we there's any hope of addressing uh the uh the sub issues of legislative changes and and and voting voting changes one point i've tried to make i think rather ineffectually when talking to also the members of congress and those talking to members of congress about the electoral contact reforms is they can quickly become a it can become a quite complicated discussion of course as you know much better than i and both in terms of how many senators should be required to raise an objection and also what about how does the three judge court that might be look at an attempt in you know conflict in states about who the legitimate electors are how does that work i i i have no view on any of that but i i i always try to say sort of in the role that maybe you're suggesting here look it's really important uh to show that we can come to some agreement on at least partial fixes if they're not 100 maybe they're 80 or 90 they're in good faith at least they're directionally in the right direction and that itself will be good for our political culture so reversing what you say that i mean it's true you can't really have much in the way of legislative achievements probably without a change in the broader understanding and attitude but maybe a modest legislative change could help nudge some people into a more constructive attitude but i i but having said that it's not we haven't had those changes so i i think you're you're right and i'm just whistling past the graveyard at this point it seems like you know you know you're uh you're a practical political leader of high order uh i'm not i'm not a leader of anything and i'm certainly not a political uh leader of anything but as i've i've said and and written um the ultimate disillusionment of all of this is that in my view not one single uh national leader of ours with them with the moral authority uh the the the conviction uh and the courage and the willingness has uh spoken out and and and called us a halt a stop to all of this nonsense in my view not one single person now you know you're already with that mind of yours going well you know this person this person spoke out and and just i i cabin my thought with with the words not a leader with the moral authority first that is to speak to the the country and have the country listen that carves out some of the names that i know that you you you were already thinking uh and and then the willingness uh and the courage and and you know it's uh for me when i had all of those uh conditions not one single leader in america has spoken out of frankly for the past six years oh that's a strong statement but i think a maybe a fair one it is kind of striking again as to my people coming down from mars i mean you think gee we have former presidents of both parties we have former uh people like yourself very respected judges were appointed by presidents of both parties you have spoken out now but how many of them have gotten together and said look we we would differ on who we support in 2024 perhaps if it's i don't know making this up but obviously president obama and president bush but we can't have this go through this again and we need to do what we can to fix this both in terms of legal changes but also asking candidates to vow not to do what on either side and sadly it's not like democrats won't be tempted if vice president harris is presiding in in january of 2025 to to follow in that footsteps in those footsteps perhaps if the conditions are are comparable so uh but it is striking how little of an effort there's been to get pledges from candidates to to to to educate the public to get members of congress on board of course one way to get them on board is to pass legislation um behind let's make sure our system doesn't crash after what we went through in 2020 2021. well we you know uh i was going to say that that i'm way out of my depth and even suggesting it and so i'll qualify it you know um and you can tell me if if i'm way way beyond my my skis but you know we don't have we we don't have and haven't had for a long time now uh in the single person uh a leader who can speak out and be heard by both sides of the aisle uh some a hubert humphrey type figure or uh and you can name five others you know uh readily but to the last point you made bill uh the one thing i am convinced of which may not sound to to be saying much is that um the first thing that must happen is we must uh talk to each other okay and and i wanna i wanna say it in just that way right now america is not talking to each other let alone discussing these things let alone reasoning through them to a consensus as to how we address this historic moment of of utter chaos in america yeah that's a task for everyone and and what to which you've contributed you're contributing but um i do think yeah to come back to the legislative side which you've been involved in some it is a case where at its best uh of course these conversations happen everywhere in civil society and in the legal sphere and in so many spheres but uh one good thing that congress can do has in the past at least is provide an example of coming together in a bipartisan way to do some things that have to be done people making compromises and and then that does give a little bit of a green light or yellow light to other people to move in that direction we have of course the opposite dynamic now where people are screaming members of congress are screaming that one's no one's coming yeah every it's a vicious cycle in in the uh snowball as it were in the in the other direction right now that of course you're right and that would be a beginning let's hope that people watching this conversation uh members of congress and and their aides and others who influence them will be energized to make make this beginning which they've been talking about a little happen i do think you are not an alarmist by nature you said earlier you were ham i'm not sure about that but well i think you have you are capable of doing that but you're also an optimistic person and someone who served the country so well and and then a lot to be proud of in your public life and what's happened in our public life in the years you've been in it but for you to be this alarmed is not like you know someone on twitter saying oh my god i'm alarmed as i've done in the past or people on the outside who don't have your experience saying well looks bad to me you have thought about this a lot and lived through this and i think it's very important that people take your alarm seriously it's not lightly offered i believe it's not lightly offered i am alarmed but i am hopeful that's a good a good a good um note to end on and we'll have to get back together and see maybe a year from now honestly about whether things have moved in a hopeful direction or even uh continued down this very unfortunate path um judge mike luke ludwig thank you so much for uh for joining me today i really appreciate this uh not always uh most cheerful discussion but very i think an important one for people to listen to your your voice of wisdom and experience here so thank you mike thank you bill i appreciate it and thank you all for joining us on conversations

Channel: Conversations with Bill Kristol

Views: 50,062

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Id: aQIL4kGANt0

Length: 67min 55sec (4075 seconds)

Published: Thu May 12 2022