Role in aftermath of 2020 presidential election
On January 5, 2021, John Eastman, an attorney representing president Donald Trump, and who had clerked for Luttig, met with vice president Mike Pence in the Oval Office to argue that the vice president had the constitutional authority to alter or otherwise change certified electoral votes for the presidential certification in Congress the next day. According to Eastman, he told the vice president that he might have the authority to reject electoral college votes, and he asked the vice president to delay the certification, a proposal which came to be known as the Pence Card. Pence rejected Eastman's argument and instead agreed with Luttig and another conservative scholar, John Yoo, that a vice president has no such constitutional authority. Pence released a letter on January 6 stating he would not attempt to intervene in the certification process, citing Luttig by name, who later said it was "the highest honor of my life" to be involved in preserving the Constitution.
A week later, as preparations were beginning for Donald Trump's second impeachment following the January 6 United States Capitol attack, Luttig argued in a Washington Post op-ed piece that the Constitution did not provide for the impeachment of former presidents. Senate Minority Leader Mitch McConnell later made the same argument while explaining his vote to acquit.
The following year, on June 16, 2022, Luttig testified during a televised hearing conducted by the United States House Select Committee on the January 6 Attack. Before the hearing, Luttig wrote a statement for the record, stating that Trump and his allies "instigated" a war on democracy "so that he could cling to power." He continued, "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" and that January 6 "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." At the close of the hearing, Luttig said:
Donald Trump and his allies and supporters are a clear and present danger to American democracy. They would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election, but succeed in 2024 where they failed in 2020. I don't speak those words lightly. I would have never spoken those words ever in my life, except that that's what the former president and his allies are telling us.
Luttig co-authored a 69-page report refuting claims of fraud in the 2020 election, published in July 2022.
On August 19, 2023, Luttig and liberal legal scholar Laurence Tribe, published an article that argued that Trump is barred from presidential office pursuant to the Insurrection Clause (section 3 of the 14th Amendment) because of his apparent support for the January 6 United States Capitol attack and, regardless of the riot, "no person who sought to overthrow our Constitution and thereafter declared that it should be 'terminated' and that he be immediately returned to the presidency can in good faith take the oath that Article II, Section 1 demands of any president-elect." This view has been furthered by other legal scholars. Luttig makes the point that
[Groups that filed lawsuits to bar Trump from the ballot] do not yet understand what disqualifies the former president, namely an insurrection or rebellion against the constitution. They have argued the cases as if he is disqualified because he engaged in insurrection or rebellion against the United States. That's why they have, unfortunately, focused their efforts on establishing or not that the former president was responsible for the riot on the Capitol. The riot on the Capitol is incidental to the question of whether he engaged in a rebellion against the constitution."
In November 2023, with Donald Trump leading the race for the Republican presidential nomination, Luttig said "I am more worried for America today than I was on January 6. For all the reasons that we know, his election would be catastrophic for America's democracy." Luttig followed up with an essay in The New York Times describing a possible way that lawyers can improve the political landscape.
On July 1, 2024, Luttig was interviewed on MSNBC regarding the Supreme Court's ruling in Trump v. United States (2024), which granted Trump and other presidents immunity from prosecution for crimes committed in their official capacity as president. Luttig stated that "There is no support whatsoever in the Constitution or even in the Supreme Court's precedents, for the past 200 years, for this reprehensible decision by the Supreme Court. Needless to say, the decision is irreconcilable with America's democracy, the Constitution, and the rule of law." He stated that "America's democracy and the rule of law are this country's heart and soul. Our democracy and the rule of law are what have made America the envy of the world and the beacon of freedom to the world for almost 250 years. Now, today, the Supreme Court cut that heart and soul out of America."
In August 2024, he endorsed Kamala Harris in the 2024 presidential election, writing, "In the presidential election of 2024 there is only one political party and one candidate for the presidency that can claim the mantle of defender and protector of America’s Democracy, the Constitution, and the Rule of Law. As a result, I will unhesitatingly vote for the Democratic Party’s candidate for the Presidency of the United States, Vice President of the United States, Kamala Harris." He added "In voting for Vice President Harris, I assume that her public policy views are vastly different from my own, but I am indifferent in this election as to her policy views on any issues other than America’s Democracy, the Constitution, and the Rule of Law, as I believe all Americans should be.
