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J. Michael Luttig, a conservative former judge, has emerged as an unofficial legal adviser of the Donald Trump era. He famously counseled former Vice President Mike Pence that he couldn’t throw the 2020 election for Trump (Pence took that advice) and, more recently, he argued that Pence couldn't get out of testifying in special counsel Jack Smith’s ongoing probe into Trump’s efforts to overturn the election (Pence resisted but wound up testifying in April).
Now, on the heels of Trump’s first federal indictment — his second indictment so far — Luttig took to Twitter with a thread explaining that the former president and 2024 Republican candidate has only himself to blame for such charges.
Luttig, who was appointed to the bench by George H.W. Bush and was floated as a possible GOP Supreme Court pick, wrote on Tuesday night that any administration, Democratic or Republican, would have charged Trump for violating the Espionage Act and other federal statutes:
Indeed, following Trump's arraignment, Luttig wrote that the defendant “dared, taunted, provoked, and goaded” Smith and his team to bring charges:
Echoing points I’ve made here on the Deadline: Legal Blog that Trump’s alleged obstruction is likely what put him over the edge into charging territory, Luttig wrote that Trump “could have avoided and prevented this prosecution” and “would never have been indicted for taking these documents.”
The former federal judge’s point aligns with past Justice Department practice, as I’ve noted in explaining why others who’ve cooperated in classified documents investigations — such as Pence — haven’t been charged but Trump has.
Luttig’s lessons likely won’t reach Trump supporters as they desperately mount avant-garde legal defenses by misreading and misapplying the Presidential Records Act and prior precedent. But it’s nonetheless important to make these points — not only for those willing to hear them but for the historical record as well.
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