staff counsel -- Agee Lahr --
rep. Aguilar: We are fortunate
to have a bipartisan staff.
John would served as united
States attorney in Missouri
under George W. Bush.
We will share the lines of
questioning.
Mr. Wood: I had the incredible
honor as serving as one of your
law Kurt -- Clark's.
Another one who did was John
Eastman and you have written
that his theory that the vice
president can determine who the
next president of the united
States is, is in your words
"Incorrect at every turn." Could
you please express -- explain
briefly your analysis?
Hon. Luttig: It was my honor,
Mr. Wood, that you served as my
law clerk.
I could answer that question
perfectly if I had at my
disposal either Mr. Eastman's
tweet or my own analytical tweet
on September 21 but I don't.
But that said, let me try to
remember the analysis of Mr.
Eastman's analysis.
Rep. Aguilar: Judge, I can read
to you and the audience what was
a key passage of your very
insightful analysis when you
wrote "I believe professor
Eastman was incorrect at every
turn of the analysis in his
memorandum to getting with his
claim that there were legitimate
competing slates of electors
presented from seven states" and
you addressed that.
"Continuing to his conclusion
that the vice president could
unilaterally decide not to count
the votes from the seven states
from which competing slates were
allegedly presented," so what
was your basis for concluding
Dr. Eastman was incorrect in his
conclusion the vice president
could unilaterally decide not to
count the votes from these
states?
Hon. Luttig: Understand.
As I previously stated in
response to congresswoman
Cheney, there was no basis in
the constitution or laws of the
United States at all for the
theory espoused by Mr. Eastman
at all, none.
With all respect to my
co-panelists, he said I believe,
in partial response to one of
the committee's questions, that
the single sentence in the 12th
amendment was he thought in
artfully written -- inaartfully
written.
That single sentence is not
inartfully written.
It was pristine clear.
But the president of the senate
on January 6, the incumbent vice
president of the United States,
had little substantive
constitutional authority if any,
at all.
The 12th amendment, the single
sentence that Mr. Jacob refers
to says in substance, that
following the transmission of
the certificates to the congress
of the United States, and under
the electoral count act of 1887,
the archivist of the united
States that the presiding
officer shall open the
certificates in the presence of
the congress of the united
States in joint session.
It then says unmistakably not
even that the vice president
himself shall count the
electoral votes, it clearly says
merely that the electoral count
votes shall then be counted.
It was the electoral count act
of 1887 that filled in, if you
will, the simple words of the
12th amendment in order to
construct for the country a
process for the counting of the
sacred process for the counting
of the electoral votes from the
states.
That neither our original
constitution nor even the 12th
amendment had done.
The irony, if you will, is that
from its founding until 1887,
when congress passed the
electoral count act, the nation
had been in considerable turmoil
during at least five of its
presidential elections beginning
as soon thereafter from the
founding as 1800.
So it wasn't for almost 100
years later until the electoral
count act was passed so that's
why in my view that piece of
legislation is not only a work
in progress for the country but
at this moment in history, an
important work in progress that
needs to take place.
That was long-winded, I
understand.
Mr. Wood: Judge, at the risk of
oversimplifying for the
nonlawyers, is it fair to say
that the 12th amendment
basically says two things
happen, the vice president opens
the certificates in the
electoral votes are counted, is
it that straightforward?
Hon. Luttig: I would not want
that to be my testimony before
the congress of the united
States.