The January 3 Threat: Judge J. Michael Luttig’s Warning to Democracy: Interview by Katie Couric
Click picture above to play the video of the interview.
Key points from Katie Couric’s interview with Judge J. Michael Luttig
For readers who prefer a written account, this companion article summarizes Katie Couric’s interview with retired federal appeals court Judge J. Michael Luttig. He describes a possible effort to prevent duly elected Democrats from taking their seats in the U.S. House—a scenario he considered serious enough to “alert the nation.”
For the complete interview watch the video or read the transcript.
How Luttig learned about it
Luttig said the idea had not occurred to him until about a month earlier, when “a very small group” of distinguished former House staff and other prominent figures called him. They told him, “This is what we’re hearing is afoot in the House of Representatives,” and asked him to “alert the nation.”
He initially declined. After thinking overnight, however, he concluded: “Oh my God, this is exactly where Donald Trump and Mike Johnson are going.” He called it “Donald Trump’s final battle in his war against America’s democracy.”
What Luttig says could happen
Luttig’s concern centers on January 3, when a newly elected House organizes. Before then, the sitting Speaker can replace the Clerk of the House for any reason. The Clerk prepares the initial roll of members-elect who participate in organizing the new House.
The Speaker could dismiss the current Clerk and install a loyalist.
That temporary Clerk could attempt to omit certified Democratic winners from the opening roll.
Those listed could then organize the House, elect a Speaker, and claim authority before excluded members can challenge the action.
A related—and, Luttig said, possibly more likely—danger is that officials in Republican-led states could refuse to certify Democratic winners in the first place.
Why he calls it a constitutional crisis
Luttig warned of a “paralyzing constitutional crisis.” If certified winners were excluded, the central question could become whether a legitimate House—and therefore a functioning Congress—had been constituted at all.
Judicial review could take “weeks, if not months.”
The House could tell the Supreme Court that it has “no power whatsoever” because the matter is a non-justiciable political question.
Until the dispute was resolved, Luttig said, “there is no legitimate Congress of the United States.”
Without both chambers, he explained, Congress could not pass laws or respond to crises.
Luttig compared the stakes to January 6, 2021, when he advised that Vice President Mike Pence had no constitutional authority to reject electoral votes. In his words, refusing to seat a Democratic majority elected by the people would be “a revolutionary act under the Constitution.”
What can be done now
Luttig’s “technical answer” was that Americans cannot guarantee prevention if the Speaker and House Republicans decide to proceed. He nevertheless identified two steps that could make the scenario less likely:
Demand public assurances. Luttig said Americans should demand assurances from Mike Johnson, Donald Trump, and every Republican House member that they “will never attempt this coup.”
Elect an overwhelming Democratic majority. He said a margin of “30 or 40 seats,” or whatever the right number might be, would make an effort to deny those seats “all but impossible.”
Act on Luttig’s message
Luttig’s final message was direct: “If all of us get out and vote and we vote against those people who are attempting to do what these people are doing, this will never happen.” He added that, ideally, there would be “100% turnout” because the election is “that important to the future of this nation.”
Vote, encourage others to vote, demand that Republican leaders publicly commit to seating the duly elected majority, and use your own “town square,” as Couric urged at the close of the interview, to tell people how important this election is.
Who Is Judge J. Michael Luttig?
J. Michael Luttig is a retired federal appellate judge and longtime conservative legal figure. Appointed by President George H. W. Bush, he served for 15 years on the U.S. Court of Appeals for the Fourth Circuit, from 1991 to 2006. Earlier, he worked in the Reagan White House, held senior posts in the Justice Department’s Office of Legal Counsel, and clerked for then-Judge Antonin Scalia and Chief Justice Warren E. Burger.
After leaving the bench, Luttig served as Boeing’s general counsel and senior legal adviser. He later gained broad public attention for advising Vice President Mike Pence that the vice president had no constitutional authority to overturn the 2020 election results and for testifying before the House committee investigating January 6. He now holds roles with several organizations focused on constitutional government, the rule of law, and American democracy.
Photo courtesty: House Creative Services, Public domain, via Wikimedia Commons
