Former federal Judge Luttig on how Eastman and Cruz’s Jan. 6 actions symbolize change in conservative legal thought

Former federal Judge J. Michael Luttig joins Yahoo News’ “Skullduggery” podcast and talks about the roles John Eastman and Sen. Ted Cruz, both former law clerks under Luttig, played in the unfolding of the Jan. 6 insurrection. Luttig explains how their actions on Jan. 6 are symbolic of how conservative legal thought has changed over the past decade.

Video Transcript

DANIEL KLAIDMAN: Have you spoken to either Senator Cruz or John Eastman since the events of January 6 transpired and since the hearings and your involvement in those hearings?

J. MICHAEL LUTTIG: I've not spoken to Ted. I spoke to John very, very soon after January 6. And he was just asking me what I had said in what he mistakenly thought was my written advice to the vice president. And I told John that no, no, no. I had only-- the only advice I had given the vice president was the tweet on January 5.

DANIEL KLAIDMAN: So it was a perfunctory conversation.

J. MICHAEL LUTTIG: Yes. It is.

DANIEL KLAIDMAN: Then the follow-up is what-- I wonder about both of these former clerks of yours, if in any way-- and if this is something that you thought about-- that their trajectory, from when they clerked for you till the events of January 6, in any way is representative or symbolic of a kind of wrong turn that was made in the conservative movement or the conservative legal movement in this country, or if you think they're outliers?

J. MICHAEL LUTTIG: That's a good question, Dan. I've never thought about that. But the answer to it is yes, that their-- certainly their actions on January 6 are-- were representative of legal thought as it's developed over the past decade-- that's exactly right-- with particular emphasis, just for-- by way of explanation, on the independent state legislature theory, which was the centerpiece of the effort to overturn the 2020 presidential election.

To this day, as you know, that is a-- well, in fairness, the theory was first articulated by then-Chief Justice Rehnquist, joined by Scalia and Thomas, and in a concurrence in Bush versus Gore. But the conservative movement, you know, took up that independent state legislature theory in the 2020 presidential election and is now pressing it to this day in the context of the elections clause in Moore versus Harper.

So, yes, to whatever extent that you want to think of the trajectory of the conservative legal movement being represented by the independent state legislature theory, the effort to overturn the 2020 presidential election, and then today, the effort to give exclusive power to the state legislatures over redistricting at other time, place, and manner of holding congressional elections, the answer to your question is certainly, yes. And that's a very, very interesting question.

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