As I watch Greg Jacob on television, as I hear him quoting Bible passages, I can't help but to recall my interactions with him.
I don't want to restate the events; it's all chronicled in my original post here. You should probably read that before reading the rest of this post, as it won't make sense without that background. But I'll add one bit of color here. The mid-2015 St. Louis trial that I described in that original post was a trial for Boeing. In a conference room during that trial, Boeing's General Counsel Michael Luttig -- the person who testified alongside Greg Jacob today -- lectured us about why the United States was justified in the way it dealt with alleged enemy combatants. He sat next to Brian Boyle, praised Mr. Boyle's skills as an attorney, and then explained that when dealing with terrorists, you want them to think that you're crazier and more unpredictable than they are, and that's why the war on terror's methods are justified.
Remember, this was an ERISA case. Why was he giving a speech on this other far off topic? Now that I know how close he was to Greg Jacob, I think I might know why. The reason I was abruptly assigned to that case was probably because Brian or Greg called their buddy Michael Luttig, explained the memo I had written, and had me assigned to the case in order to get me to drop it. It worked; I e-mailed human resources and told them to drop the matter. I didn't want to be sitting next to Brian Boyle in a small war room as they investigated my complaint against him. You can read about how that story turned out in the original post if you're interested, but it wasn't good.
That's the impact Greg Jacob and his pal Michael Luttig had on my life. And I'm not sure I buy the hero story they are now writing about themselves. Let me start by distilling what happened in the months preceding January 6, because the facts get lost in the rhetoric. Mr. Trump thought that the election had been stolen from him. That opened the door for John Eastman to give Mr. Trump a strategy to litigate his dispute. At that time, Mr. Eastman thought he could win based, among other things, on prior statements by law professor Laurence Tribe. (According to Mr. Jacob, Mr. Eastman later retracted this prediction and acknowledged that he would lose in court.)
Mr. Luttig, Mr. Jacob and others then argued that Mr. Eastman's position was not worthy of a resolution in the courts. Mr. Pence listened to them, and told Mr. Trump that he would not carry out the plan. That is presumably what caused Mr. Trump and others to assemble a protest, seemingly to pressure Mr. Pence, and the protesters broke into the capitol building.
Mr. Eastman certainly should not have proffered his litigation strategy. But once he did, what would have happened if Mr. Pence had followed the plan? Everyone involved agrees that the Supreme Court would have struck it down swiftly and provided closure, rather than letting it linger for years as it has. That is all that would have happened. Democracy wouldn't have ended, and the apocalyptic things Mr. Jacob and Mr. Luttig say they prevented would not have occurred. All that would have happened is that the matter would have been dealt with authoritatively by the highest court, with closure.
And for all his talk of respecting and honoring the law . . . Mr. Luttig doesn't respect it when it goes against him. Here he writes about a possible Supreme Court ruling on election law. He first explains why the court will likely rule against the position that he wants. He then declares that if they rule that way -- if they rule for the side that he doesn't like -- then it's tantamount to "Trump and the Republicans stealing . . . the 2024 election." The highest court in the country would be nothing more than a thief's accomplice if it disagrees with him.
Similarly, Mr. Pence was reportedly fine with abuse of executive power, if it got him something that he wanted. According to Salon magazine, he and President Trump had concocted a scheme to bomb Iran in the final months of Trump's term. This plan "reflected Trump's seeming willingness 'to do anything to stay in power.'" The article quotes General Milley as saying Mr. Pence was "intent" on carrying out the military attack. If the article is accurate, then Mr. Pence would have let the president start a possible war to stay in power. That's who Mike Pence is. President Trump cancelled the plan only after other advisors counseled against it.
If you want to predict how lawyers like Mr. Pence or Mr. Luttig will act, perhaps don't rely on the normative values they exhort. Lawyers were trained to say whatever will advance their client's interest. It's their job to say one thing in one setting, and say the exact opposite in another setting, depending on what they were trying to advance in each of those two settings. They'll say whatever suits them at that moment. So please don't expect Mr. Pence to not abuse executive power when it suits him, and please don't expect Mr. Luttig to respect the rule of law, including the Geneva Convention, when it goes against him.
Ultimately, a lawyer started the mess by advancing a frivolous theory, then other lawyers exacerbated it by preventing an authoritative court from deciding the matter. And now with Joe Biden's approval rating at an all-time low -- lawyers Liz Cheney and Jamie Raskin are conducting what some call a "show trial" in an attempt to prevent Mr. Trump from running again. Things are a mess and I have no clue how this will all turn out.
[Addendum: Apparently Mr. Jacob had been trying to leave O'Melveny. In 2018, he reportedly used O'Melveny's connections to the Trump administration to apply for a career position at the Department of Labor (a career government position is often held for decades, as opposed to a political one that ends with the president's term.) Only after that stalled did he take the job as Vice President Pence's advisor. I wouldn't be surprised if he's still looking to leave. I suspect it's unfortunate at O'Melveny at all levels.
Mr. Luttig seems to be trying to become a social media star. Here he asks a handful of established social media lawyers for a retweet, presumably to get more likes and followers. Good luck on your next tweet Mr. Luttig.]
O'Melveny OMM
