Judge J. Michael Luttig’s opening remarks below as prepared for
the Jan. 6 select committee’s public hearing Thursday.
Honorable Members of the House Select Committee --
A stake was driven through the heart of American democracy on
January 6, 2021, and our democracy today is on a knife’s edge.
America was at war on that fateful day, but not against a foreign
power. She was at war against herself. We Americans were at war with each other
-- over our democracy.
January 6 was but the next, foreseeable battle in a war that had
been raging in America for years, though that day was the most consequential
battle of that war even to date. In fact, January 6 was a separate war unto
itself, a war for America’s democracy, a war irresponsibly instigated and
prosecuted by the former president, his political party allies, and his
supporters. Both wars are raging to this day.
A peaceful end to these wars is desperately needed. The war for
our democracy could lead to the peaceful end to the war for America’s cultural
heart and soul. But if a peaceful end to the war for America’s democracy is not
achievable, there is little chance for a peaceful end to that war. The
settlement of this war over our democracy is necessary to the settlement of any
war that will ever come to America, whether from her shores or to her shores.
Though disinclined for the moment, as a political matter of fact only the party
that instigated this war over our democracy can bring an end to that war.
Like our war from a distant time, these twin wars are “testing
whether th[is] nation or any nation . . . so conceived in Liberty . . . can
long endure.” We must hope that January 6 was the final battle of at least the
deadly war for America’s democracy.
These senseless wars are of our own making, and they are now being
waged throughout the land, in our city centers and town squares, in our streets
and in our schools, where we work and where we play, in our houses of worship
-- even within our own families. These wars were conceived and instigated from
our Nation’s Capital by our own political leaders collectively and they have
been cynically prosecuted by them to fever pitch, now to the point that they
have recklessly put America herself at stake.
America is now the stake in these unholy wars.
Serious thinkers about the American experiment who are not given
to apocalyptic prophesying question whether America is on the verge of a
literal civil war. But is even this figurative civil war to be our generation’s
legacy to posterity?
These wars that we are waging against each other are immoral wars,
not moral ones, being immorally waged over morality itself. We Americans no
longer agree on what is right or wrong, what is to be valued and what is not,
what is acceptable behavior and not, and what is and is not tolerable discourse
in civilized society. Let alone do we agree on how we want to be governed or by
whom, or where we go from here and with what shared national ideals, values,
beliefs, purposes, goals, and objectives -- if any at all.
America is adrift. We pray that it is only for this fleeting
moment that she has lost her way, until we Americans can once again come to our
senses.
The war on democracy instigated by the former president and his
political party allies on January 6 was the natural and foreseeable culmination
of the war for America. It was the final fateful day for the execution of a
well-developed plan by the former president to overturn the 2020 presidential
election at any cost, so that he could cling to power that the American People
had decided to confer upon his successor, the next president of the United
States instead. Knowing full well that he had lost the 2020 presidential
election, the former president and his allies and supporters falsely claimed
and proclaimed to the nation that he had won the election, and then he and they
set about to overturn the election that he and they knew the former president
had lost.
The treacherous plan was no less ambitious than to steal America’s
democracy.
Called to Washington D.C. that day by the president, the president
himself, and the president’s followers, supporters, and allies gathered near
The White House for a “Stop the Steal” rally. The president maintained at that
rally that the 2020 presidential election had been “fraudulently stolen” from him.
The president addressed his faithful followers thus: “We’re going to the
Capitol. . . . We’re going to try and give them [the Republicans in the
Congress, presumably] the kind of pride and boldness that they need to take
back our country. . . . We will never give up. We will never concede.”
Inflamed, the gathered mob marched up the hill from The White
House to the United States Capitol to protest, disrupt and prevent the counting
of the electoral votes for the presidency, which the president falsely charged
were wrongly about to be counted by the Congress in his political opponent’s
winning favor and in his own losing favor.
Once staged at the Capitol, the mob soon erected gallows on the
United States Capitol grounds, chanting that Vice President Mike Pence should
be hanged. Hanged, the mob chanted, for “cowardly” refusing the president’s
lawless entreaties that his Vice President declare their president reelected,
against the will of the American People, though he had lost both the Electoral
College and the popular vote for the presidency.
There were many cowards on the battlefield on January 6. The Vice
President was not among them.
Soon thereafter, the rioters stormed the Capitol itself,
breaching, occupying, and ransacking the temple of our democracy for seemingly
endless wrenching hours -- at the precise democratic moment when the Congress
of the United States convened in Joint Session to begin the constitutional
counting of the votes for the presidency of the United States.
Not until over three hours after the riot had begun, and then only
after the siege had achieved what by that time was its truncated objective to
interrupt and indefinitely delay the counting of the vote, did the president
finally yield to the pleas and prayers from his own family, friends, and
political allies, and grudgingly ask his supporters in a hastily forced video
tweet to disperse and return to their homes.
The Nation wept during the evening of January 6, as the Capitol
police began to clear and resecure the Capitol at day’s end. Finally, at 8:00
p.m. on January 6, seven hours after the siege on the Capitol had begun, Vice
President Pence gaveled the Joint Session back into order with measured,
understated resolve: “Today was a dark day in the history of the United States
Capitol. . . . Let’s get back to work.”
January 6 was a dark day in the history of the United States, too.
It was not until the next day, January 7, 2021, at 3:42 a.m. in the morning --
almost fifteen hours after the Joint Session had first been gaveled into session
by Speaker Nancy Pelosi -- that the Vice President finally declared that Joe
Biden had been elected the 46th President of the United States.
On January 6, 2021, the prescribed day for choosing the American
president, there was not to be a peaceful transfer of power -- for the first
time in the history of our Republic.
Over a year and a half later, in continued defiance of our
democracy, both the former president and his political party allies still
maintain that the 2020 presidential election was “stolen” from him, despite all
evidence -- all evidence now --that that is simply false. All the while, this
false and reckless insistence that the former president won the 2020
presidential election has laid waste to Americans’ confidence in their national
elections. More alarming still is that the former president pledges that
his reelection will not be “stolen” from him next time around,
and his Republican Party allies and supporters obeisantly pledge the same.
False claims that our elections have been stolen from us corrupt
our democracy, as they corrupt us. To continue to insist and persist in the
false claim that the 2020 presidential election was stolen is itself an affront
to our democracy and to the Constitution of the United States -- an affront without
precedent.
Those who think that because America is a republic, theft and
corruption of our national elections and electoral process are not theft and
corruption of our democracy are sorely mistaken. America is both a
republic and a representative democracy, and therefore a sustained attack on
our national elections is a fortiori an attack on our
democracy, any political theory otherwise notwithstanding.
Accordingly, if, and when, one of our national elections is
actually stolen from us, our democracy will have been stolen from us. To steal
an election in the United States of America is to steal her
democracy.
As in all things, the essence of our participation in democracy is
not knowledge, but judgment -- studied, discerning judgment. No more so is this
true than in the Constitution and in the Law.
Very few ever have the honor of counseling the President of the
United States of America. That highest of honors carries with it the highest of
obligations. Counsel provided to the President of the United States must be the
product of not only exquisite, penetrating legal analysis but also profound,
insightful legal judgment. These two combined are so far from mere technical
legal competence as almost to be its polar opposite. The President and the
country deserve nothing less from those who counsel the President, so
consequential are the stakes for the Nation when the President acts upon the
advice of his or her Counsel.
Whatever else, the President of the United States did not receive
such counsel during his sustained effort to overturn the 2020 presidential
election. It is as much the former president’s fault as anyone’s that he did
not.
Irrespective of the merits of the legal arguments that fueled the
former president’s efforts to overturn that election -- irrespective of them,
though there were none -- those arguments, and therefore those efforts, by the
former president were the product of the most reckless, insidious, and
calamitous failures in both legal and political judgment in American history.
From their inception, the legal arguments that underlaid the
efforts to overturn the 2020 election were, in that context, little
more than beguiling and frivolous, perhaps appropriate for academic classroom
debate, but singularly inappropriate as counsel to the President of
the United States of America in his effort to overturn the presidential
election -- an election he had lost fair and square and as to which there was
not then, and there is not to this day, evidence of fraud.
It is breathtaking that these arguments even were conceived, let
alone entertained by the President of the United States at that perilous moment
in history.
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.
The former president’s accountability under the law for the riot
on the United States Capitol on January 6 is incidental to his responsibility
and accountability for his attempt to steal the 2020 presidential election from
the American People and thereby steal America’s democracy from America herself.
This said, willful ignorance of law and fact is neither excuse nor defense in
law. Willful ignorance, thus, is neither political nor legal excuse or defense
available to the former President of the United States, his allies, and his
supporters.
On January 6, 2021, revolutionaries, not patriots, assaulted
America and American democracy. The walls of all three of our institutions of
democracy were scaled and breached on that appalling day. And almost two years
thence, one of America’s two political parties cannot even agree whether that
day was good or bad, right or wrong. Worse, it cannot agree over whether
January 6 was needed, or not. Needed or not. Pause for a moment and
reflect on that. The former president and his party cannot decide whether the
revolt at the United States Capitol to disrupt and prevent the constitutional
counting of the votes for the presidency was needed, and therefore
whether another revolt might be needed at a future date to
accomplish that which the previous revolt failed to accomplish.
If one of our national political parties -- one of the two
political guardians of our democracy -- cannot agree even as to whether the
violent riot and occupation of the United States Capitol, inspired by the
President of the United States and carried out by his followers to prevent
Congress from counting the votes for the presidency of those same United
States, was reprehensible insurrection or needed, legitimate political
discourse, we all can agree on nothing.
Nor should we.
The former president’s party cynically and embarrassingly
rationalizes January 6 as having been something between hallowed, legitimate
public discourse and a visitors tour of the Capitol that got out of hand.
January 6, of course, was neither, and the former president and his party know
that. It was not legitimate public discourse by any definition. Nor was it a
civics tour of the Capitol Building -- though that day proved to be an
eye-opening civics lesson for all Americans.
January 6 was, rather, a defining, and a redefining,
day in American history -- defining and redefining of America itself. On that
day, America finally came face to face with the raging war that it had been
waging against itself for years. So blood-chilling was that day for our
democracy, that America could not believe her eyes and she turned them away in
both fear and shame. Even so, many have already forgotten, and many more
have chosen to forget. Some who rioted and occupied the
Capitol that day had already decided how this war for our democracy must end,
while others of their compatriots, upon sober reflection afterward, decided
that no, no, this war must end now, before there is further bloodshed.
As did we, these latter saw how this war ends, and they realized
that no one should want for such end.
For their part, the former president and many of his party remain
to this day undecided as to which end of this war they will commit themselves
-- undecided, that is, as to which end they want to commit
themselves. To be undecided today as to whether to end this war over our
democracy is to have decided how one wants this war to end.
Thus, for the rest of us Americans, the time has come for us to
decide whether we allow this war over our democracy to be
prosecuted to its catastrophic end or whether we ourselves demand the immediate
suspension of this war and insist on peace instead.
We must make this decision because our political leaders are
unwilling and unable, even as they recklessly prosecute this war in our name.
We Americans begin to make this consequential decision this week, when
Congress, rightly if painfully, takes us back to that day in January we want so
much to forget but mustn’t, and reminds us of what was at stake that day and
still, in what is this most unholy of wars.
America is at a perilous crossroads. Who is it that we have become
and what is it that America has become? Is this who we want to be and what we
want America to be? And if not, just who is it that we Americans want to be?
And just what is it that we want our America to be?
Many will again turn their eyes away, miscalculating that this is
the last time they must see, and thus remember. The partisan mercenaries, who
have no interest in either understanding or peace, will be the first who turn
away and, in their determined ignorance, ignore. The mercenaries know better
than we that what we forcibly put out of our minds or what we forget, we are
destined to repeat.
No American ought to turn away from January 6, 2021, until all of
America comes to grips with what befell our country that day, and we decide
what we want for our democracy from this day, forward.
The genius that is America’s democracy is this. The Constitution
vests all power in “We the People.” We agreed in the Constitution to delegate
our power to our representatives, only during their time in our service, and at
that, exclusively for the purpose of representing our interests
in the Nation’s Capital, not theirs. Our democracy is the process through which
our representatives, using the power that we have delegated to them, in turn
and in trust, govern us. We choose in our national elections those who we want
to represent us, including most importantly the President of the United States.
It is for this simple reason that to steal an election for the presidency from
us is to steal our democracy from us.
America’s democracy was almost stolen from us on January 6.
Our democracy has never been tested like it was on that day and it
will never be tested again as it was then if we learn the lessons of that
fateful day. On the other hand, if we fail to learn the lessons that are there
to be learned, or worse, deny even that there are lessons there to be learned,
we will consign ourselves to another January 6 in the not-too-distant future,
and another after that, and another after that. While for some, that is their
wish, that cannot be our wish for America.
America can withstand attacks on her democracy from without. She
is helpless to withstand them from within. The relentless assaults on America
and its democracy from within, such as January 6, which designedly call into
question the very legitimacy of the institutions and instrumentalities of our
democracy, are simply not contemplated by the Constitution of the United States
and are therefore not provided for by that Great Charter for our governance.
America is not in constitutional crisis until and unless the
Constitution and the institutions and instrumentalities of our democracy are
under withering, unsustainable, and unendurable attack from within. Then, and
only then, is the constitutional order in hopeless constitutional disorder.
Only then is America in peril. Today, America is in constitutional crisis --
and at a foreboding crossroads with disquieting parallels to the fateful
crossroads we came to over a century and a half ago.
It is no wonder that America is at war over her democracy. Every
day for years now we have borne witness to vicious partisan attacks on the
bulwarks of that democracy -- our institutions of government and governance and
the institutions and instrumentalities of our democracy -- by our own political
leaders and fellow citizens. Every day for years now we have witnessed vicious
partisan attacks on our Institutions of Law themselves, our Nation’s Judiciary,
and our Constitution and the Laws of the United States -- the guardians of that
democracy and of our freedom. For years, we have been told by the very people
we trust, and entrust, to preserve and to protect our American institutions of
democracy and law that these institutions are no longer to be trusted, no
longer to be believed in, no longer deserving of cherish and protection.
If that is true, then it is because those with whom we entrusted
these institutions have themselves betrayed our sacred trust.
And, indeed, it does seem at the moment that we no longer agree on
our democracy. Nor do we any longer seem to agree on the ideals, values, and
principles upon which America was founded and that were so faithfully nurtured
and protected by the generations and generations of Americans that came before
us. Yet we agree on no other foundational ideals, values, and principles,
either.
All of a sudden it seems that we are in violent disagreement over
what has made America great in the past and over what will make her great in
the future. In poetic tragedy, political campaign slogan has become divisive
political truth. And there is no reason to believe that agreement about America
by we Americans is anywhere on the horizon, if for no other reason than that
none of us is interested in agreement. In the moral catatonic stupor America
finds itself in today, it is only disagreement that we seek, and the more
virulent that disagreement, the better.
This is not who we Americans are or who we want to be. Nor is this
America or what we want America to be.
Reeling from twin wars, leaderless, and rudderless, America is in
need of help. Our polarized political leaders have shamefully and shamelessly
failed us. They have summoned our worst demons at the very moment when we
needed summoned our better angels.
As a consequence, America finds itself in desperate need of either
a reawakening and quickening to the vision, truths, values, principles, beliefs,
hopes, and dreams upon which the country was founded and that have made America
the greatest nation in the world -- a revival of America and the
American spirit.
Or, if it is to be, we are in need of a revival around a new vision, new truths,
new values, new principles, new beliefs, new hopes and dreams that hopefully
could once again bind our divided nation together into the more perfect union
that “We the People” originally ordained and established it to be.
We cannot hobble along much longer, politically paralyzed and
hopelessly divided, directionless and undecided as to which revival it will be
-- if any at all.
Where do we begin? This is the easier question. Who has the
patriotic and political courage to go first? This is the harder question.
As to the first question, we begin where the reconciliation of all
broken human relationships, be they broken from war, anger, betrayal, or love,
begins -- by talking with each other, and listening to one another again, as
human beings and fellow citizens who share the same destiny and the same belief
in America and hope for her future. For years now, taking the lead from our
politicians, we Americans have spoken only coarse, desensitizing, dehumanizing
political vile at each other, which enables us to speak to each other without
guilt or regret. For too many years now, we have spoken to each other as
charlatanic political gladiators in an arena that today has become annihilative
of America’s future, not promising of that future.
By constitutional order, We the People of this great Nation confer
upon our elected representatives the power that they are then, by solemn
constitutional obligation, directed to wield on our behalf and on
America’s behalf. But today our politicians live in a different world from
the rest of us, and in a different world than that ordained by the
Constitution. They live in a fictional world of divided loyalties between party
and country, a world of their own unfaithful making.
Today’s politicians believe that they never have to choose between
partisan party politics and country, when in fact they are obliged by oath to
choose between the two every day, and every day they defiantly refuse to
choose. For today’s politicians, never the twain shall meet between partisan
ambition and country, and never the latter before the former, either. The
politicians in today’s America only sponsor partisan incitement and only
traffic in the same, rather than sponsor bipartisan reason and lead in
thoughtful deliberation. They have purposely led us down the road not in the
direction toward the bridging of our differences, but in the direction away
from the bridging of those differences. They have proven themselves incapable
of leading us.
But still, all it would take to turn America around is a consensus
among some number of these political leaders who possess the combined necessary
moral authority and who would agree to be bound together by patriotic covenant,
to stand up, step forward, and acknowledge to the American People that America
is in peril.
In order to end these wars that are draining the lifeblood from
our country, a critical mass of our two parties’ political leaders is needed,
to whom the remainder would be willing to listen, at least without immediate
partisan recrimination. The logic for reconciliation of these wars being waged
in America today dictates that this number needs to include a critical mass of
leaders from the former president’s political party and that those leaders need
to go first. All of these leaders then need to summon first the moral courage
and then the political courage, the strength, and the patriotic will to extend
their hands, and ask of the others -- and of all Americans -- “Can we talk?
America needs us.”
While Memorial Day is still fresh in our minds, we would all do well
to remind ourselves of the immortal words spoken to the West Point cadets at
the United States Military Academy a half century ago: “Duty, Honor, Country.”
Those three sacred words of profound American obligation were spoken on that
occasion to reassure those who had given their lives for their country in the
past, and who would give them in the future, that their sacrifice would not be
in vain. Those words are as apt today for this occasion as they were on that
day for that occasion, if not more.
Then we need to get back to work, and quickly. We need to get back
to the solemn business of preserving, protecting, and defending the
Constitution of the United States and the United States of America.
The hour is late. God is watching us.
