There was a meandering discussion in today’s hearing of a tweet Luttig posted describing his analytical framework. Here is that thread:
I was honored to advise Vice President Pence that he had no choice on January 6, 2021, but to accept and count the Electoral College votes as they had been cast and properly certified by the states.
I believe(d) that Professor Eastman was incorrect at every turn of the analysis in his January 2 memorandum, beginning with his claim that there were legitimate, competing slates of electors presented from seven states;
continuing to his conclusion that the VP could unilaterally decide not to count the votes from the seven states from which competing slates were allegedly presented;
to his determination that the VP himself could decide that the Electoral Count Act of 1887 is unconstitutional and accordingly submit the 2020 Presidential Election for decision only to the House of Representatives, instead of to both Houses of Congress, as provided in the Electoral Count Act;
to his recommendation that the VP not consult with the Joint Session of Congress as to whether the election should be submitted to both Houses or only to one;
to his urging that the VP not seek decision from the federal courts, including from the Supreme Court;
and finally, to his belief that the federal courts and the Supreme Court would decline to decide every one of these fundamental constitutional questions on the grounds that they were non-justiciable political questions;
I believe(d) the Supreme Court would have decided each of these issues had they been presented to the Court, which they undoubtedly would have been had the VP proceeded as outlined in the January 2 memorandum.
Originally tweeted by @judgeluttig (@judgeluttig) on September 22, 2021.
This is a very interesting in light of the fact that Eastman apparently had reason to believe that the court would not take up the case. Maybe from his friend Ginni?