luttig can hardly believe what he was hearing. he was respected eastman as a constitutional scholar, but he told his phone on the phone, look, you can tell the vice president that i said he has no such authority at all. by early the next morning, the situation had escalated. luttig received another urgent call from the outside counsel, who this time, ask not just for advice, but to intervene. he said quote, judge, can you help the vice president? we need you to say something publicly. we need to get your voice out to the country. luttig was willing to help, but he didn't quite know how. he was retired, he couldn't think -- he didn't think he had much of a platform. how would he get his message to the message? you remember thinking, i don't even have a fax machine. then he remembered that he opened an account on social media website called twitter a few months before, but he barely use the site, didn't really know how to work it. so with urgency, judge luttig typed out his statement. he looked up how to make a tweet thread, and on

michael luttig: totally fair. jake tapper: michael luttig is a highly respected conservative retired federal court judge. luttig did not hear any of the trump fraud cases, but he and his colleagues did analyze more than 60 of them. michael luttig: we reviewed each individual claim and decided that there was nothing that would have changed the result in a single precinct, let alone a single state, let alone nationally. jake tappeper: ahead.. rusty bowers: you'rere asking me to dodo somethingng that's against my oath, and i'm not-- i'm not going to do that. jake tapper: donald trump puts the squeeze on state house leaders s across thehe countr. donald trump: it's going to have a big impact on tuesday if you guys don't get this thing straightened out fast. laying] rusty bowers: we're in my office. this is the speaker's office. jake tapper: it's not every day a state house politician gets a call from a us president but that's what happened to arizona speaker republican rusty bowers after the 2020 election. rusty bower

brand-new brief to the supreme court alongside other prominent lawyers like george conway, michael luttig calls for the justices to take the 14th amendment very literally. they say, quote, because section 3 emerged from the hallowed ground of the civil war, this court must accord section 3 its fair meaning, not a narrow construction. mr. trump incited and therefore engaged in an armed insurrection against the constitution's express and foundational mandates that require the peaceful transfer of executive power to a newly elected president. in doing so mr. trump disqualified himself under section 3. regarding trump's argument the so-called insurrectionist ban can only be applied after a candidate is elected, luttig and others say that would deprive voters of the ability to make a truly informed decision because they could not know if they were voting for someone who could serve and it would risk chaos as courts litigation whether a newly inaugurated president is disqualified in the action. a group of historians with expert december in the civil war say not so fast. in their brief they say,

brand-new brief to the supreme court alongside other prominent lawyers like george conway, michael luttigls for the justices to take the 14th amendment very literally. they say, quote, because section 3 emerged from the hallowed ground of the civil war, this court must accord section 3 its fair meaning, not a narrow construction. mr. trump incited and therefore engaged in an armed insurrection against the constitution's express and foundational mandates that require the peaceful transfer of executive power to a newly elected president. in doing so mr. trump disqualified himself under section 3. regarding trump's argument the so-called insurrectionist ban can only be applied after a candidate is elected, luttig and others say that would deprive voters of the ability to make a truly informed decision because they could not know if they were voting for someone who could serve and it would risk chaos as courts litigation whether a newly inaugurated president is disqualified in the action. a group of historians with expert december in the civil war say not so fast. in their brief they say, quo

it >> andrew weissmann, what was a judge luttig talking about there saying, the supreme court will trydispose of this case without ruling on these central memes at the 14th amendment? >> here, this is what lawyers do. they take something seemingly simple and make it complicated. so, issues that the court can deal with, what is the discipline action of insurrection or rebellion, what is the definition of engage or comfort or aiding? what is the standard of proof, who decides it? something that professor phone or referred to is the president of the united states accomplished with this. as you know, donald trump says, no, it's not. it would be interesting to know the historical view of that. and then there are state law issues, that are complicated for the court to reach into, because they are supposed to be independence day programs. under federal governance, the supreme court does not reach into. there are some issues there, that i am sure donald trump will raise and i'll be interested in, as to whether this was procedurally done correctly. there are lots of, as judge luttig says, off-r

it >> andrew weissmann, what was a judge luttig talking about there saying, the supreme court will tryto somehow dispose of this case without ruling on these central memes at the 14th amendment? >> here, this is what lawyers do. they take something seemingly simple and make it complicated. so, issues that the court can deal with, what is the discipline action of insurrection or rebellion, what is the definition of engage or comfort or aiding? what is the standard of proof, who decides it? something that professor phone or referred to is the president of the united states accomplished with this. as you know, donald trump says, no, it's not. it would be interesting to know the historical view of that. and then there are state law issues, that are complicated for the court to reach into, because they are supposed to be independence day programs. under federal governance, the supreme court does not reach into. there are some issues there, that i am sure donald trump will raise and i'll be interested in, as to whether this was procedurally done correctly. there are lots of, as judge luttig

so there are lots of, as judge luttig said, off ramps.r maybe this issue of an officer, are ones that could lead to further fact finding by the colorado judge. in other words, if the court says the standard of proof was wrong, or when you define the following definition of insurrection, that just can go back to the trial court for their findings. so, it's not clear exactly how the supreme court is going to do this to get an off ramp that gets us completely done with and gone for all purposes. we >> will be right back. we >> will be right back if you're like me, one of the millions suffering from pain caused by migraine, nurtec odt may help. it's the only medication that can treat a migraine when it strikes and prevent migraine attacks. treat and prevent, all in one. don't take if allergic to nurtec. allergic reactions can occur, even days after using. most common side effects were nausea, indigestion, and stomach pain. relief is possible. talk to a doctor about nurtec odt. it's time. yes, the time has come for a fresh approach to dog food

a believe that michael luttig would agree with. to the legal questions there is no other decision the 6-3 majority court could come to other than to uphold colorado's decision to take trump off the ballot. here he is on this program last month. >> i believe that the supreme court of the united states when and if it takes this particular case should affirm this colorado supreme court's decision. i believe that based on the objective law, which in this instance is section 3 of the 14th amendment. there is no other decision that the supreme court could make. >> joining our conversation is nyu law professor and former clerk to judge sonia sotomayor and andrew weissmann. they're both co-authors of a new book out "the trump indictments: the historic charging documents with commentary." let's start with you, melissa. the likelihood that the supreme court does end up dealing with the issue of donald trump's eligibility to run and a comment on judge luttig's opinion it seems pretty obvious, particularly for the originalists on this court th

michael luttig is one of the leading conservative legal thinkers in the country.judge luttig had a kind of moral authority within the conservative community. a guy himself who had been short-listed for the supreme court. was on a first-name basis with members of the supreme court. >> judge luttig, i had the incredible honor of serving as one of your law clerks. another person who did was john eastman. and you've written that dr. eastman's theory is, in your words, "incorrect at every turn." >> mr. eastman said to the president that there was both legal as well as historical precedent for the vice president to overturn the election. this is constitutional mischief. i would have laid my body across the road before i would have let the vice president overturn the 2020 election. i diagrammed his, uh, his, his legal analysis, from beginning to end and concluded that we was wrong at every, every turn of his analysis, every turn of his thinking. >> judge luttig, you wrote that the efforts by president trump to overturn the 2020 election were, "the most reckless, insidiou

and there are steadfast conservatives like judge luttig, and they are all saying that donald trump shouldfied. and it's hard to ignore this number of diverse, qualified voices. >> and in each of these briefs, offer i find something valuable about a particular point. for example, the definition of what it means to engage in an insurrection, especially where the 14th amendment says engaged in or given aid or comfort during an insurrection. and we have a brief by these two law professors, they are brothers, and they talk about trump sits on his hands, smiling as the chaos erupts around him. they cite that as a very clear version of participating in an insurrection. they say that insurrections often involve a complex combination of devious actions, and in actions. and they emphasize the trump inactions as proof of his participation. >> right lawrence, i believe you are referring to the -- -- who are to constitutional scholars. and they re-cite a whole bunch of history to totally put to rest this idea that donald trump has, which is that you have to engage in an insurrection just like the civi

and there are steadfast conservatives like judge luttig, and they are all saying that donald trump should be disqualified. and it's hard to ignore this number of diverse, qualified voices. >> and in each of these briefs, offer i find something valuable about a particular point. for example, the definition of what it means to engage in an insurrection, especially where the 14th amendment says engaged in or given aid or comfort during an insurrection. and we have a brief by these two law professors, they are brothers, and they talk about trump sits on his hands, smiling as the chaos erupts around him. they cite that as a very clear version of participating in an insurrection. they say that insurrections often involve a complex combination of devious actions, and in actions. and they emphasize the trump inactions as proof of his participation. >> right lawrence, i believe you are referring to the -- -- who are to constitutional scholars. and they re-cite a whole bunch of history to totally put to rest this idea that donald trump has, which is that you have to engage in an insurrection just l

what do you make of that assessment on the part of judge luttig? >> yeah. i'm actually pretty confident that all of the judges who are involved in these cases, when i talk about the appellate judges, they will decide these cases as quickly as they can in a fair way. i don't think they would be intimidated by the trump maga people. i don't think that that is a concern. but he's right, the judicial systems are not really equipped to push back in a way that the executive branch can if they have attacks brought against them by members of congress for political parties. that is just the way that we've designed our system. so i think it is incumbent upon the courts, that is another reason why they need to expedite these matters so that they do not subject themselves to unnecessarily, unnecessarily long periods of criticism. because that is how a long term negative impact on the perception of the courts, if for instance, the delay goes on for two or three months and you have these withering, unfounded attacks on our judicial system. that will have a collateral imp

what do you make of that assessment on the part of judge luttig? >> yeah. i'm actually pretty confident that all of the judges who are involved in these cases, when i talk about the appellate judges, they will decide these cases as quickly as they can in a fair way. i don't think they would be intimidated by the trump maga people. i don't think that that is a concern. but he's right, the judicial systems are not really equipped to push back in a way that the executive branch can if there are attacks brought against them by members of congress for political parties. that is just the way that we've designed our system. so i think it is incumbent upon the courts, that is another reason why they need to expedite these matters so that they do not subject themselves to unnecessarily, unnecessarily long periods of criticism. because that has a long term negative impact on the perception of the courts, if for instance, the delay goes on for two or three months and you have these withering, unfounded attacks on our judicial system. that will have a collateral impact

michael luttig: i hope they are. jake tapper: our democracy in the united states relies upon good people in positions of power to do the lawful and right thing from the presidents all the way down to local officials. we're having these discussions because there were enough people, enough republicans who did the right thing in 2020. perhaps next time, there won't be. january 6 has taught us anything, it's that nothing is guaranteed. this is the american experiment, not the american proven theorem. for our republic to survive, we need our elected officials loyal not to one man but to the united states of america. [music playing] >>> hello and welcome to our viewers joining us around the world. just ahead, the door plug that blew off mid flight on an alaska airlines plane has been found. why it could be critical to figuring out what happened. >>> u.s. congressional leaders reached a deal on government funding but is it enough to avert a shutdown? and for the first time in decades, a high stakes mission to the moon is bl

michael luttig: i hope they are. jake tapper: our democracy in the united states relies upon good people in positions of power to do the lawful and right thing from the presidents all the way down to local officials. we're having these discussions because there were enough people, enough republicans who did the right thing in 2020. perhaps next time, there won't be. january 6 has taught us anything, it's that nothing is guaranteed. this is the american experiment, not the american proven theorem. for our republic to survive, we need our elected officials loyal not to one man but to the united states of america. [music playing] story". i'm anderson cooper. last week at tokyo's haneda airport, a jal airbus collided with a smaller aircraft. five crew members on the coast guard plane died. but amazingly, all 379 people on the airbus survived. they were safely evacuated before the plane was engulfed in flames. investigation into what happened is still under way. it got us thinking about that miraculous story of survival t

that is the position that michael luttig takes, and the federal society takes. i think it is a good one. >> well that is one argument. of course in america we have more than one politician facing criminal charges, including not just the president, you mentioned the, senate senator bob menendez also have new charges out right now, just a different country, laura. when you look at this, of course you have the tension politically between democrats and republicans who are constantly fighting for the moral high ground, in the public eye, you look at what is happening there, what are voters going to possibly be seeing? >> with bob menendez, democrats have largely abandon the senator menendez. and other democrats have already jumped in to run for her seat. now he's not necessarily saying he's not going to run for reelection which is -- >> he's not stopping the them either? >> he is not stepping down either, and he has not many friends amongst the senate democrats, they're not standing by him in this instance, many have called for him to resign, called on him to not run

. >> so how does the supreme court square that, because what luttig is saying if you have a rebellion the opposite of what we think democracy is, does the supreme court have to determine that donald trump is not involved in an insurrection or rebellion like colorado did? >> no, and it doesn't have to definitively decide that he did. its job is as a reviewing court, ali. all it has to determine is whether or not the colorado supreme court erred significantly in coming to that conclusion. and one of the reasons that claire and i agree that the supreme court will likely take a different off-ramp from this court is solely coming to the conclusion that colorado was within its power to reach those facts doesn't resuscitate other states reaching those facts. it may be if they were to uphold the colorado decision for all of the reasons that judge luttig shared with you is not like a light switch going off sand all of a sudden, trump is disqualified. it's like a massive power outage. the ensuing litigation of whether he should or should not be qualified. and whether he's estopped from argued t

that's not just the view of liberal constitutional scholars but conservatives like michael luttig, if the court follows the constitution as it claims to owe its fealty to, it shouldn't be that difficult a decision. but i have to say i don't have a lot of confident in this court. >> i think i share your lack of confidence. but let's just say by some miracle, five of these justices decided to rule that he should not be on the ballot. what do you tink the political consequences of that would be? >> well, i think it would be a good thing for the country. i think that the debate in the election could get back to a difference of policy rather than this kind of cult of personality around the former president. you know, i think we have to be concerned with the former president trying to egg on violence in the event of a court ruling like that. obviously on january 6th he was willing to do it. he would be willing to do it again. but i think we're a better, stronger country than that, and i think the country will accept the decision if the decision is to remove him from the ballot. i think the

[cheering] as conservative judge and constitutional expert michael luttig said, the 14th amendment isd provision of the constitution. it has to remain enforced. that's what the judges in the colorado supreme court have done." yes, the 14th amendment says if you try to destroy our democracy, you can't come back and try again. it's the same reason i'm not letting my appendix back into my abdomen no matter how well it polls in iowa. how is my appendix doing in iowa? [cheers and applause] now, no surprise, the trump campaign said it planned to appeal to the u.s. supreme court. and i'm guessing someone's gonna start calling in some favors. "you owe me, kavanaugh. you too, amy coney barrett. you're just a weird home school kid who won a contest. and gorsuch, you weren't even a judge. pretty sure i found you playing frankenstein at six flags halloween horror nights." and let us not forget, there's also clarence thomas. [booing] yes. exactly. who's been in the news a lot this year for all the free stuff he's hiding under that robe. according to propublica, conservative billionaires have given

so, michael luttig, they tried, and you, and other people have, that the law is the law.terpret it. the law says, if he's an eligible to run, that's what it is. the argument that you should just let him run so that people can decide is not a strong legal argument. >> the problem with that argument is let's just take it out of this context of that insurrection and rebellion, and we had somebody who as a teenager, running for office. >> he was very popular. people really liked him -- >> wonderful, exactly. but that is part of our democracy, which is the constitution. i don't understand the argument of it's somehow not democratic. the constitution was part of a democratic process and it took a supermajority to have the constitution. that's what we follow unless it's changed. -- the courts that decide ultimately what the constitution says. and regardless of which way the supreme court comes out, if every argument, they will have determined how we are supposed to interpret this provision which has not yet, to be fair, has not yet been the subject of litigation at this supreme

a lot of conservative legal scholars have commentated, including judge michael luttig.new york times david french, and also the two authors of the university of penn law debates, saying that section three is self executing of a criminal conviction. they all say that this is an open and shut case. of course, the supreme court is not guided only by the constitution, it is great guided by politics and partisanship. don't take my word for it, take the word of donald trump's own lawyer on fox this week. >> it should be a supreme court slammed, i have faith in them. people like kavanaugh, who the president fought for, who the president went through hell to get into place. she will step up. >> your justice kavanaugh, if you had any south we're specht, wouldn't you recuse yourself from this case right now? shouldn't all democrats be calling for kavanaugh's recusal? not to mention clarence thomas's recusal. clarence thomas, whose wife is accused of being involved in trump efforts to overturn the last election. on friday, president joe biden who will likely face off against trump

michael luttig: i hope they are. jake tapper: our democracy in the united states relies upon good people in positions of power to do the lawful and right thing from the presidents all the way down to local officials. we're having these discussions because there were enough people, enough republicans who did the right thing in 2020. perhaps next time, there won't be. january 6 has taught us anything, it's that nothing is guaranteed. this is the american experiment, not the american proven theorem. for our republic to survive, we need our elected officials loyal not to one man but to the united states of america. [music playing] [draramatic musisic] - - over the n next ten dada, wewe get to sesee the machinines that arare croo, the ballllots ththat are fraraudulent. anand if we'rere wrong, we will l be made fofools of. but ifif we're rigight, a a lot of thehem will go o to. [cheerers and applplause] so letet's have trtrial by com. [c[crowd clamomoring] ♪ ♪ - whwhen giulianani appeared alongsgside donaldld trump on jana

a lot of conservative legal scholars have commentated, including judge michael luttig.ew york times david french, and also the two authors of the university of penn law debates, saying that section three is self executing of a criminal conviction. they all say that this is an open and shut case. of course, the supreme court is not guided only by the constitution, it is great guided by politics and partisanship. don't take my word for it, take the word of donald trump's own lawyer on fox this week. >> it should be a supreme court slammed, i have faith in them. people like kavanaugh, who the president fought for, who the president went through hell to get into place. she will step up. >>if you're justice kavanaugh, if you had any self respect, wouldn't you recuse yourself from this case right now? shouldn't all democrats be calling for kavanaugh's recusal? not to mention clarence thomas 's recusal. clarence thomas, whose wife is accused of being involved in trump efforts to overturn the last election. on friday, president joe biden who will likely face off against trump t

you worked for judge's kealia and judge luttig and justice scalia.ying to do two things. one is delay. this is like football. they're trying to run up the clock till the election and get as close as they can to be able to claim election interference. the other thing they're doing, and this is very clear in the oral argument, they are setting the stage of what will happen if donald trump wins. donald trump's lawyers said this would open the floodgates. that there will be cycles of recrimination for anyone else in terms of political prosecutions. they actually said at one point, his lawyer said that joe biden could be prosecuted for mismanagement and the border. which is of course, not a crime. so, they are telling him what they are going to do if he wins. >> kristy greenberg, thank you so much for weighing in on all that. we'll see you again soon, no doubt. coming up next for all of you, the breaking news. more war? war as to work. i use secret aluminum free. just swipe and it lasts all day. secret helps eliminate odor, instead of just masking it. and

and that's an interesting question because there are many, like judge luttig, like jamie raskin, constitutionalng when it comes to something that and the constitution. you can say the court got the interpretation wrong. what if the constitution says x, you can't just decide, well, we'll just let the people decide. >> yes, this is an argument that has some appeal at a got level. we think about our democracy, everybody gets to cast a vote, and choose what they want for president. but the constitution itself is created by the will of the people. even the 14th amendment had to be approved by two thirds of congress, and then three quarters of the states. and so, we created through the democratic process, the qualifications for being president. there is an age limit. there is a term limit. there's a citizenship limit. and there's also a limit that you cannot be an insurrectionist. so, these are hard questions. the court is gonna have to look at this and decide how to sign this question. but the idea that we just disregard the 14th amendment, and say it's for the people, it's the weakest argument in t

he clerked for luttig, chris.ervative judge that is advancing the plain text of the constitution supporting the 14th amendment should remove donald trump from the ballot. he clerked for scalia, and by the way, elise stefanik, who is now saying, yeah, who cares about the rule of law, and is going to make up stuff, and the rule of law doesn't matter, she's a harvard crowd. so i've got a news flash for everybody out there. harvard is failing and brainwashing all of their we students into a progressive mindset. he does have the tools that are running around washington right now, whether it's cruz or wholly or stefanik or this guy that was in court today, our harvard educated. or yale. harvard or yale. so, i mean, it really kind of blows up this theory that there is some kind of like a vast conspiracy to have all the ivy league schools turn out woke robots. and it's on its face, knowing what impeachment is like, knowing what the process is, it's a political process. it's not a court of law. anybody who thinks impeachme

don't think the court would damage itself very much except with purists and people like me and judge luttig who take the text more seriously. >> that's a very interesting and plausible way of seeing both the legal reasoning here, the practical reasoning reasoning, the modes of constitutional interpretation, and the weird cross pressures with in them to go back to judge posner's view on judging. lawrence tribe, always such a great pleasure to hear you talk about this. thank you very much. >> thank you, chris. >> coming up, next month the supreme court is expected to answer the question what is an insurrectionist? but if trump isn't an insurrectionist, what exactly did he do? what was he? we'll answer that question, next. >>> that question next your best defense against erosion and cavities is strong enamel- nothing beats it. new pronamel active shield actively shields the enamel to defend against erosion and cavities. i think that this product is a gamechanger for my patients- it really works. we all need fiber for our digestive health, but less than 10% of us get enough each day. good thing

and that's an interesting question because there are many, like judge luttig, like jamie raskin, constitutionalhat's not an either or thing when it comes to something that is in the constitution. you can say the court got the interpretation wrong. what if the constitution says x, you can't just decide, well, we'll just let the people decide. >> yes, this is an argument that has some appeal at a gut level. we think about our democracy, everybody gets to cast a vote, and choose what they want for president. but the constitution itself is created by the will of the people. even the 14th amendment had to be approved by two thirds of congress, and then three quarters of the states. and so, we created through the democratic process, the qualifications for being president. there is an age limit. there is a term limit. there's a citizenship limit. and there's also a limit that you cannot be an insurrectionist. so, these are hard questions. the court is gonna have to look at this and decide how to sign this question. but the idea that we just disregard the 14th amendment, and say it's for the people, it

conservative scholars like judge luttig argued powerfully the text of the constitution requires trump'srom the ballot, and the 14th amendment is self-executing. in other words, there is no need for congress to pass enabling legislation before people can be disqualified. therefore, the justices who ordinarily care about text and history should disqualify him. on the other hand, as you suggested, they may be reluctant to have -- to kick him off the ballot and be concerned about the chaos that would result and that threat that president trump just made at the end of the clip you made. it is really sobering. for all those reasons, the justices might not intervene. another real dilemma for them is bush v gore. in bush v gore, they exalted pragmatic considerations like avoiding chaos and refused to follow original understanding. why shouldn't they follow original understanding here? it's no easy answer for the court but a very dramatic clash between the ordinary way they go about these cases and the way they may be inclined to rule this time. >> such a high-stakes decision indeed, jeffrey. le

so, michael luttig, they tried, and you, and other people have, that the law is the law.law says, if he's an eligible to run, that's what it is. the argument that you should just let him run so that people can decide is not a strong legal argument. >> the problem with that argument is let's just take it out of this context of that insurrection and rebellion, and we had somebody who as a teenager, running for office. >> he was very popular. people really liked him -- >> wonderful, exactly. but that is part of our democracy, which is the constitution. i don't understand the argument of it's somehow not democratic. the constitution was part of a democratic process and it took a supermajority to have the constitution. that's what we follow unless it's changed. -- the courts that decide ultimately what the constitution says. and regardless of which way the supreme court comes out, if every eight argument, they will have determined how we are supposed to interpret this provision which has not yet, to be fair, has not yet been the subject of litigation at this supreme court leve