The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Let Me Translate Mike Luttig's New Essay For You
"Mike Pence wouldn't listen to me, so let me blast his lawyers in the N.Y. Times."
If you were active in the conservative legal movement in the 1990s and early 2000s, Mike Luttig was a legal giant. He was a prominent circuit judge who was a SCOTUS short-lister. But I started law school in 2006. The first time I ever heard of Luttig was at the IJ Summer Boot Camp after my 1L year. Someone mentioned that Luttig had stepped down from the Fourth Circuit to become the general counsel of Boeing. I didn't give it much thought at the time. Over the next decade, I largely forgot about Luttig. He faded into legal obscurity. Indeed, I never saw him at a single Federalist Society meeting. If you graduated law school during the Obama years, there was no need to know who Luttig was, unless you skimmed an old Jeff Toobin or Jan Crawford book.
Then came Trump. Suddenly, Luttig, and some other stalwarts of the Reagan/Bush era, came to the forefront to criticize the Republican president. The media gladly gave their claims attention, because it was right-on-right action. Luttig's apex came in the run-up to January 6, 2021. As we all heard, over and over again, Luttig advised Vice President Mike Pence. Luttig also told Pence to disregard the views of John Eastman (who had clerked for Luttig). Some claimed Luttig saved the Republic! Alas, Luttig's moment in Pence's corner have come to an end.
The former-Vice President will resist the Special Counsel's subpoena based on the Speech or Debate Clause. I was skeptical of this claim as a textual matter, though Reb Brownell make a strong case based on judicial and congressional precedent. I'll concede this is a question on which the Supreme Court has not directly opined, and that Pence has a right to raise the argument as an institutional prerogative.
Luttig disagrees. He took to the New York Times with a piece titled, Mike Pence's Dangerous Gambit. The tenor of the piece is unexpected. We do not get a sober analysis of the text and history of the Speech or Debate Clause. Instead, Luttig repeatedly criticizes Pence's lawyers for giving the former Vice President bad advice. Luttig also calls out how much money Pence's lawyers are earning. Unsurprisingly, Luttig thinks these lawyers are leading Pence astray.
- If Mr. Pence's lawyers or advisers have told him that it will take the federal courts months and months or longer to decide his claim and that he will never have to testify before the grand jury, they are mistaken. We can expect the federal courts to make short shrift of this "Hail Mary" claim, and Mr. Pence doesn't have a chance in the world of winning his case in any federal court and avoiding testifying before the grand jury.
- Inasmuch as Mr. Pence's claim is novel and an unsettled question in constitutional law, it is only novel and unsettled because there has never been a time in our country's history where it was thought imperative for someone in a vice president's position, or his lawyer, to conjure the argument.
- Mr. Pence undoubtedly has some of the finest lawyers in the country helping him navigate this treacherous path forward, and they will certainly earn their hefty fees. But in cases like this, the best lawyers earn their pay less when they advise and argue their clients' cases in public than when they elegantly choreograph the perfect exit in private — before their clients get the day in court they wished for.
- Mr. Pence's lawyers would be well advised to have Jack Smith's phone number on speed dial and call him before he calls them. The special counsel will be waiting, though not nearly as long as Mr. Pence's lawyers may be thinking. No prosecutor, least of all Mr. Smith, will abide this political gambit for long. And Mr. Pence shouldn't let this dangerous gambit play out for long. If he does, it will be more than he wished for.
Let me translate Luttig's column: "Mike Pence wouldn't listen to me, so let me blast his lawyers in the N.Y. Times."
Luttig argue that Pence is undermining his legacy, undermining his role on January 6:
The former vice president should not want the embarrassing spectacle of the Supreme Court compelling him to appear before a grand jury in Washington just when he's starting his campaign for the presidency; recall the unanimous Supreme Court ruling that ordered Richard Nixon to turn over the fatally damning Oval Office tapes. That has to be an uncomfortable prospect for Mr. Pence, not to mention a potentially damaging one for a man who — at least as of today — is considered by many of us across the political spectrum to be a profile in courage for his refusal to join in the attempt to overturn the 2020 election in the face of Donald Trump's demands. And to be clear, Mr. Pence's decision to brand the Department of Justice's perfectly legitimate subpoena as unconstitutional is a far cry from the constitutionally hallowed ground he stood on Jan. 6.
Pence would be well advised to follow his legal counsel, and disregard the New York Times.
One final note. Luttig is often promoted as a "legal conservative." Luttig may have been an active member of the conservative legal movement in the 1990s and early 2000s, but he has been MIA for about fifteen years. Indeed, in recent years, he has consistently taken positions that are conducive to progressives, such as his brief on the Second Amendment. As far as I can tell, he did not say a word about Dobbs, the crowning moment of success for the conservative legal movement. I think there should be a statute of limitations for calling a person a legal conservative. Show me what you've done lately.
