The third public hearing, which took place Thursday, focused on efforts by former President Donald Trump and his allies to pressure Vice President Mike Pence into overturning the election.
By Nikoel Hytrek
Former Vice President Mike Pence had no authority to overturn the results of the 2020 presidential election, and his refusal to do so at former President Donald Trump’s direction put him in direct danger on Jan. 6, 2021.
That was the main argument in the third hearing of the US House Select Committee investigating the Jan. 6 attack on the US Capitol, which took place Thursday.
Using testimony from Greg Jacob, former counsel to Pence, and former federal Judge J. Michael Luttig, as well as recorded depositions, video from the attack, and emails obtained in their investigation, the Committee laid out evidence of the former president and his lawyer John Eastman’s repeated attempts to convince Pence and his staff to delay or halt the certification of the election.
The pressure continued, the Committee showed, even after Eastman’s reasoning was rejected over and over. Former White House lawyers and other staffers described the law professor’s plan as “nutty,” and “un-American.”
Here are the big takeaways from the third hearing:
Trump and Eastman Were the Only Ones Who Thought the Vice President Had Legal Authority to Change the Election’s Outcome—Though Eastman Had Doubts
Testimony on Thursday revealed that every legal expert who looked at or heard about the scheme to overturn Trump’s loss in the 2020 election said there was no legal authority for Pence to either approve alternate electors, or send the results back to states to recertify.
Even former Trump lawyer Rudy Giuliani privately appeared to doubt the scheme would hold up in court.
Several people told Trump multiple times leading up to Jan. 6 that the attempt was baseless and illegal.
“It made no sense to me that in all the protections that were built into the Constitution, for a president to get elected and steps that had to be taken, to choose a next president, would be sitting with the vice president,” said Eric Herschmann, a former White House lawyer, in a pre-recorded interview.
In his testimony, Jacob described Eastman agreeing there was no authority as well.
“When I pressed him on the point, I said ‘John, if the vice president did what you’re asking him to do we would lose 9 to nothing in the Supreme Court wouldn’t we?’” Jacob told the Committee. “And he initially stated, ‘Well, I think maybe you’d only lose 7-2’ and after some further discussion acknowledged, ‘Yeah, you’re right we would lose 9 to nothing.’”
Jacob also told the committee that Eastman acknowledged in front of Trump on Jan. 4, 2021, that the plan violated the Electoral Count Act, which he considered “unconstitutional” anyway.
Luttig, a widely respected conservative judge, said: “There was no support whatsoever in either the Constitution of the United States, nor the laws of the United States, for the Vice President, frankly ever, to count alternative electoral slates from the states that had not been officially certified by the designated state official in the Electoral Count Act of 1887.”
If Pence had gone through with Trump’s “orders,” Luttig continued, it would have “plunged America into what I believe would have been tantamount to a revolution within a constitutional crisis in America.” He also described Eastman’s arguments as “constitutional mischief.”
Pence Never Believed He Had the Authority to Change the Election Results
Jacob testified that Pence was called to the Oval Office the day before the Capitol attack. In that meeting, reporting from Bob Woodward and Robert Costa in their book “Peril” revealed, Trump tried to talk Pence into overturning the election results, emphasizing how powerful it would make him.
Woodward and Costa’s reporting showed Pence refused, saying he didn’t think a single person should have that authority. After that, Trump reportedly said, “I don’t want to be your friend anymore if you don’t do this.”
Jacob confirmed that Pence never wavered from his position that he could not and should not do what Trump and Eastman suggested.
“The vice president’s first instinct,” he recalled, “when he heard this theory was that there was no way that our framers, who abhorred concentration of power, who had broken away from the tyranny of George III, would ever have put one person, particularly not a person who a direct interest in the outcome because they were on the ticket for the election, in a role to have decisive impact on the outcome of the election.”
In a video clip shown Thursday, Marc Short, Pence’s former chief of staff, said the vice president directly told Trump he couldn’t and wouldn’t do it “many times.”
On Jan. 6, Trump called the vice president and people who overheard that call, including Ivanka Trump, told the Committee that Trump’s tone got heated and he accused Pence of being weak.
Many People Knew Trump’s Pressure Campaign Could Lead to Violence
During this deposition, Herschmann, the Trump White House lawyer, indicated he was concerned about Eastman’s plan leading to violence.
“I said, ‘You’re completely crazy. You’re going to turn around and tell 78-plus million people in this country that this is how you’re going to invalidate their votes because you think the election was stolen? They’re not going to tolerate it. You’re going to cause riots in the streets.’”
“He said words to the effect of ‘there’s been violence in the history of our country,’” Herschmann said.
In fact, Short was so concerned about Trump lashing out, especially after staff released a memo falsely saying Pence did agree he could change the election, that he talked to Pence’s security detail on Jan. 5.
“My concern was for the vice president’s security and so I wanted to make sure the head of the vice president’s secret service was aware that likely as these disputes became more public that the president would lash out in some way,” Short said.
The following day, Trump’s tweet about Pence during the riot appeared to cause the crowds outside and inside the Capitol to surge. Rioters also began explicitly chanting for violence against the vice president, calling him a traitor to the country.
“It’s real simple,” one Trump supporter said in a video shown by the committee. “Pence betrayed us, and the president mentioned it like five times when he talked.”
Former White House Deputy Press Secretary Sarah Matthews told the Committee: “When that tweet, the Mike Pence tweet, was sent out I remember us saying that that was the last thing that needed to be tweeted at that moment. The situation was already bad, so it felt like [Trump] was pouring gasoline on the fire by tweeting that.”
Within minutes after Trump’s tweet went out, Secret Service rushed Pence to a secure underground location. The route they took brought them within approximately 40 feet of the mob, the Committee showed.
Recent FBI testimony from an informant also revealed members of the Proud Boys would have killed Pence if given the chance, and anyone else they came across that day.
According to Jacob, while sheltering in the secure location, Pence refused to get into a car because he didn’t want the American people to see the vice president fleeing the Capitol.
After the Attack, Eastman Again Asked Pence to Break the Law
Jacob also testified that after the riot was over and Congress was back in session to certify the results, Eastman emailed him to again ask that Pence send the votes back to the states.
“He emailed me to point out that, in his view, the vice president’s speech violated the Electoral Count Act. That the Electoral Count Act had been violated because the debate on Arizona had not been completed in two hours,” Jacob said. “Of course, it couldn’t be since there was an intervening riot of several hours.”
He said Eastman argued that apparently the law wasn’t so important, and so could the vice president “consider one more relatively minor violation” and adjourn the joint session for another 10 days.
The email came in at 11:44 p.m. Pence read the tallies at around 3:40 a.m. and closed the session at 3:44 a.m.
Twice, Jacob testified that if Pence had gone along with the scheme, it would have created chaos in the country.
“In the long term we would have established a situation where a vice president would have asserted that one person could have the authority to determine the outcome of an election, which is antithetical to everything in our democracy,” he said.
The Threat Isn’t Over
Luttig, the other witness in Thursday’s hearing, wrote previously that the threat to American democracy is far from over. The Committee asked him to explain his point of view.
“Today, almost two years after that fateful day in January 2021, and still Donald Trump and his allies and supporters are a clear and present danger to American democracy. That’s not because of what happened on January 6,” Luttig said.
“It’s because, to this very day, the former president, his allies and supporters pledge that in the presidential election of 2024, if the former president or his anointed successor is the Republican party candidate and were to lose that election, that they would attempt to overturn that 2024 election in the same way they attempted to overturn the 2020 election.”
“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,” he continued. “The former president and his allies are executing that blueprint for 2024 in plain view of the American public.”