Judge J. Michael Luttig, former federal appeals court judge, who advised Vice President Mike Pence on his constitutional duties before January 6, 2021.
Author’s Note
I’ll be honest about where I stand. I have enormous respect for Judge J. Michael Luttig, and I’m not neutral about him.
When I think about who saved American democracy after the 2020 election, his name is at the top of my list.
On the eve of January 6, 2021, Mike Pence was under enormous pressure to reject the electoral votes. Luttig, a lifelong conservative who had served in the Reagan White House, publicly laid out the truth: the Constitution gave the Vice President no power to overturn the election. Pence cited that guidance when he refused. Luttig didn’t have to put his reputation on the line that day, and he did it anyway.
He has spent the years since doing the same thing, telling the country uncomfortable truths without regard to party.
So when a man like that says he’s concerned about January 3rd, I listen. I think you should, too.
Judge Michael Luttig: The Loophole in Article I That Could Freeze America
In 2021, Judge Luttig told Mike Pence to certify the election. Now he's sounding the alarm about a scheme aimed at the new House.
The Jack Hopkins Now Newsletter #1,037: Saturday, September 26th, 2026
Let me tell you something you won’t hear on the evening news.
You probably think the midterms end when the polls close on November 3rd. Votes get counted. Winners get announced. Done.
Judge J. Michael Luttig says you’re wrong. Dead wrong.
And he’s no cable-news pundit chasing clicks. He spent 15 years on the U.S. Court of Appeals for the Fourth Circuit. He worked in Ronald Reagan’s White House.
He helped prepare Supreme Court nominees for their confirmation hearings. And…on January 6, 2021…he’s the man who publicly told Mike Pence the Constitution left him no choice but to certify the election.
So when this man says he’s alarmed…you should pay attention.
Here’s what alarms him.
The Phone Call
About a month ago, Luttig got a call he didn’t expect.
On the line was a small group of very senior former House of Representatives staff, plus a couple of other notable figures.
Their message was simple. Something is afoot in the House. We want you to warn the country.
He said no. He’s trying to retire. He knew that the moment he spoke up…he’d be on the hook for months.
Then he slept on it.
“Oh my god,” he remembers thinking. “This is exactly where Donald Trump and Mike Johnson are going.”
The Scheme, in Three Steps
This is where it gets uncomfortable.
The plan Luttig describes doesn’t need tanks in the streets. It needs a few people using rules that already exist.
Step One: Fire the Clerk.
The Speaker of the House can fire the Clerk of the House at any time, for any reason or no reason at all. He can replace that clerk with anyone he chooses. Anyone. When commentators asked Luttig whether that could legally be someone like Steve Bannon, his answer was yes.
The current clerk…Kevin McCumber…has a reputation for integrity. That’s exactly why he’d be the one removed.
Step Two: Leave the Democrats Off the Roll.
At noon on January 3rd, the old Congress ends. But…the new one doesn’t exist yet. It comes into being…when the Clerk enters the certified winners onto the official roll.
A loyalist clerk could simply decline to enter the Democrats.
Step Three: Refuse to Seat Them.
Article I, Section 5 of the Constitution makes the House the judge of its own members’ elections. By a simple majority, the members who were seated could decide who else gets in.
That’s it. That’s the whole thing.
Luttig thinks there’s an even more likely version: red-state officials refusing to certify Democratic winners in the first place. Combine the two…he says…and the result becomes almost unimaginably complex.
“Why Wouldn’t They Do It?”
You might be thinking: come on, nobody would actually try this.
Luttig’s answer is chilling in its simplicity. From the standpoint of Trump, Johnson, and House Republicans, he says, this is easy. Why wouldn’t they?
And…he doesn’t think you need to guess at intentions. He says they’ve been planning it in plain view.
He points to the record:
Six years of Trump denying that Joe Biden won in 2020.
Years of talk about a “final battle” against his political enemies.
A year and a half of attempts to take control of elections the president has zero constitutional authority over. Luttig says the lower courts struck every one of them down.
And on September 10, the same day Luttig’s essay ran…Trump stood before the Republican midterm convention in Dallas. He led the crowd in a pledge that included the line: “I’m going to try and cheat like hell.”
House Speaker Mike Johnson (R-La.), who told the Republican midterm convention in Dallas, "We cannot and will not allow them to take the majority in the Congress."
The next night, Speaker Mike Johnson took the same stage. Here’s what he said:
“We cannot and will not allow them to take the majority in the Congress.”
Read that again. He didn’t say we’ll beat them, or we’ll win. He said we will not allow them.
Maybe it was just convention bluster. But Luttig heard it one day after insiders warned him about a plan to keep Democrats from being seated. And to him…it all clicked.
He admits he’d never even considered this scenario until insiders brought it to him. Once they did, he says, a light went on.
Why the Courts Can’t Save You in Time
Here’s the part that should keep you up at night.
Luttig believes the federal courts do have the power to review a refusal to seat duly elected members. He revealed that Harvard’s Laurence Tribe, whom he calls the greatest constitutional mind in American history, agrees with him.
But he concedes that 250 years of tradition cuts the other way. That tradition treats the question as a “political question” that courts won’t touch.
And…even if Luttig is right, the courts would take weeks. Maybe months.
During that stretch, he argues, there would be no legitimate Congress at all. The Senate can’t step in…because nothing happens without both chambers.
He calls it a “paralyzing constitutional crisis.” That’s nearly the same phrase he used before the January 6 committee. It was his description of what would have happened if Pence had caved.
Now…picture the world watching America frozen. Luttig does. In his essay…he warns it would be the ideal moment for China to move on Taiwan. It would also be the perfect moment for Vladimir Putin to finish his conquest of Ukraine…and possibly move against Estonia.
Every day…would bring a deeper economic crisis. And the allies Trump has mocked… would have little reason to help.
So What Can You Do?
Katie Couric asked him point-blank. His first answer was brutally honest.
Technically? Nothing. If House Republicans decide to do this at Trump’s demand, Luttig says, it cannot be stopped.
But…he didn’t leave it there. He gave two answers…and both are in your hands.
Answer #1: Demand the promise. Out loud. On the record.
Luttig described a recent call where someone who knows Johnson insisted the Speaker would never do such a thing. Luttig’s reply was that if Johnson would never do it, he owes the American people that assurance today.
He wants every American to demand public commitments that they will never attempt what he calls a “congressional coup.” That means from Johnson…from Trump… and from every Republican member of the House.
Couric pushed back: why trust promises from people who lie? Luttig admitted he’s just as cynical. But, he said…we the people have no other choice.
Answer #2: Make the margin too big to steal.
This is the one that matters most.
Luttig said that if Democrats win by an overwhelming margin, it would be all but impossible for House Republicans to deny them their seats. He floated something like 30 or 40 seats.
His closing message was blunt. If everyone gets out and votes against the people attempting this, he said, it will never happen.
He wants 100% turnout. For this election…if for no other in American history.
The Bottom Line
Luttig won’t talk about civil war.
People look to him for hope…he says…and he tries to give it wherever he can.
But…he left a warning worth sitting with. Refusing to seat a majority the American people elected, he says…would be a revolutionary act under the Constitution.
You don’t have to agree with every word he says. But…you should know this scenario exists. Most Americans have no idea.
Now you do.
So here’s your assignment. Read his piece in The New Republic. Talk to the people in your town square…whatever its size. And…vote like the margin depends on you.
Because according to one of the most respected conservative judges in the country…it just might.
Q & A:
Q: Can the Speaker really just fire the Clerk of the House?
Yes. According to Judge Luttig, House rules let the Speaker fire the Clerk at any time, for any reason or none at all. The Speaker can then appoint anyone he chooses. That person serves until the full House either ratifies the pick or chooses a different clerk.
Q: Why does the Clerk matter so much?
At noon on January 3rd, the old Congress ends. The new one begins when the Clerk enters the certified winners onto the official roll. Luttig warns that a loyalist clerk could leave elected Democrats off. The members who were seated could then vote on whether to seat anyone else.
Q: Isn’t this unconstitutional? Won’t the courts stop it?
Luttig believes the courts do have the power to step in, and Harvard’s Laurence Tribe agrees with him. But he acknowledges that long tradition treats House seating as a “political question” that courts stay out of. Even if the courts do act, it could take weeks or months. During that time, he argues, the country would have no legitimate Congress.
Q: Couldn’t the Senate keep things running in the meantime?
No. Luttig was clear that the Senate can’t fill the gap. Congress requires both chambers, so without a legitimate House, no law can be passed.
Q: Is there any evidence Republicans are actually planning this?
Luttig says senior former House staff reached out to warn him that a plan was afoot. He also points to Trump’s years of denying the 2020 results and his talk of a “final battle.” And he cites recent remarks: by his account, Speaker Johnson said Republicans would never let Democrats take the House. Johnson has not publicly said he would refuse to seat anyone.
Q: What can ordinary Americans do?
Luttig gave two answers. First, demand public, on-the-record assurances from Speaker Johnson, President Trump, and every House Republican that they will never attempt this. Second, vote in overwhelming numbers. He says a large enough Democratic margin would make the scheme all but impossible. His message was that if everyone shows up, it will never happen.
#HoldFast
Back soon.
-Jack
Jack Hopkins
P.S. The date to circle isn’t November 3rd. It’s January 3rd. Tell one person about it today.
Sources
The Essay and the Interview
The Final Battle for America’s Democracy (The New Republic, September 10, 2026). Luttig’s essay arguing that January 3, not November 3, is the date to watch. newrepublic
Election Nightmare Scenario. Katie Couric’s live video interview with Judge Luttig, posted September 16, 2026. Substack
Judge Luttig’s Substack, where he republished the essay.
The Supreme Court Mail-In Ballot Ruling
Supreme Court says Trump can’t enforce new mail-in ballot regulation (NBC News). The Court rejected the administration’s emergency application to block a lower court ruling that found the regulation most likely unlawful. NBC News
Supreme Court denies Trump administration’s request to implement parts of rule on mail-in voting (SCOTUSblog)
In blow to Trump, Supreme Court blocks mail ballot restrictions from taking effect in 2026 (Votebeat)
The Dallas Convention Remarks
Trump leads convention in pledge (The Hill). Includes the full pledge wording, including the “cheat like hell” line. The Hill
GOP midterm convention live updates (ABC News)
2026 Republican Midterm Convention, Night 2 (PBS NewsHour / AP). Includes Speaker Johnson’s remark: “We cannot and we will not allow them to take the majority in Congress.” PBS
Legal and Historical Background
Powell v. McCormack, 395 U.S. 486 (1969) (official U.S. Reports, via GovInfo). The Court held that the House may not exclude a duly elected representative for any reason not listed in the Constitution’s qualifications clause. Wikipedia
Luttig’s advice to Pence and his January 6 testimony (CNN via ABC17). On January 5, 2021, Luttig tweeted that the Constitution gave Pence no power to reject electors, and Pence cited that statement in his January 6 letter. abc17news
Other Perspectives
Responding to Judge Luttig’s latest article (Robert Hubbell). He agrees courts can review a rogue clerk’s actions, but disputes that judicial review would take weeks or months. Substack
Conservative Judge Warns of Constitutional Crisis After Midterms (Newsweek via Yahoo), which includes experts who do not all share Luttig’s fears. yahoo
Jack, conspiracy theory or not, I have been beating the drum for some time. The Arizona Rep was a test. Dragging his feet. Now, he will simply refuse to seat the Dems.
Our only recourse if they do this is a national strike. We must shut down the entire country. Immediately. And we must have millions descend on Washington!