June 16, 2022
On CNN this morning, Representative Jamie Raskin (D-MD), a member of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, said: “New evidence is breaking every single day now. Suddenly, a lot of people want to tell the truth.”
After the committee’s third public hearing today, we can see why. The window for getting onto the good side of the investigation by cooperating with it is closing, and the story the congress members are laying out makes it clear that those sticking with Trump are quite likely in legal trouble.
It appears that the former president thinks the same thing. Before today’s hearing, he wrote: “I DEMAND EQUAL TIME!!!”
But it seems unlikely Trump wants to tell his version of what happened around January 6 under oath, and if he were misled by his advisors, who can doubt that he would already have thrown them under the bus?
And, so far, the committee has used testimony and evidence only from those high up in Trump’s own administration. Today was no exception. The committee covered the former president’s pressure campaign against his vice president, Mike Pence, to overturn the results of the 2020 election. Instead of following the law, codified in the 1887 Electoral Count Act, Trump wanted Pence to use his role as the person charged with opening electoral votes to throw out the votes that gave Democrat Joe Biden victory, or at least to recess the joint session of Congress for ten days to send the electoral slates back to the states, where pro-Trump legislatures could throw out the decision of the voters and resubmit slates for Trump.
In interviews with Pence’s former counsel Greg Jacob, as well as retired federal judge J. Michael Luttig, formerly of the U.S. Court of Appeals for the Fourth Circuit, the committee established that this plan, advanced by lawyer John Eastman, was illegal. Indeed, Eastman himself called it illegal, first at length in October 2020, and then in both written and verbal admissions after the election. And the committee established that Eastman, as well as others, told Trump the plan was illegal.
The hearings today hammered home that the centerpiece of our government is that the people have the right to choose their leaders. That concept is central to the rule of law. And yet, Trump embraced an illegal and unconstitutional theory that, instead, the vice president—one man—could overrule the will of the people and choose the president himself. Such a theory is utterly contrary to everything the Framers of the Constitution stood for and wrote into our fundamental law.
And yet, by early December 2020, after their legal challenges to the election had all failed, Trump’s people began to say that Pence could throw out the electoral slates that states had certified for Biden, or could send those certified electoral slates back to the states for reconsideration so that Republican-dominated legislatures could then submit new slates for Trump. Judge Luttig hammered home that there is nothing in either legal precedent or historical precedent that gave any validation to the idea that one man could determine the outcome of the election.
Still, on December 13, the day before the Electoral College met, lawyer Kenneth Chesebro wrote to Trump lawyer Rudy Giuliani arguing that Pence could refuse to count the votes from states that had “alternative” electors (we also know that he wrote about this idea for the first time on November 18, so that might have been the chatter Pence was hearing). At the time, the scheme to create second slates of electors was underway.
Eastman then took up the cause, saying that seven states had submitted “dual” slates of electors. When Jacob dismissed that claim, Eastman just said that Pence could just call them disputed anyway and throw the votes from those states out. Luttig reiterated that these fake electors had no legal authority whatsoever and that there is no historical or legal precedent at all to support the idea that the vice president could count alternative electoral slates to the ones certified by the states.
Both Pence’s counsel Jacobs and his chief of staff Marc Short believed that Eastman’s plan was bananas, and an avalanche of White House advisors agreed. According to today’s testimony, those agreeing included Trump’s chief of staff Mark Meadows, White House counsel Pat Cipollone, Trump lawyer Eric Herschmann, and Trump advisor Jason Miller, who testified that people thought “Eastman was crazy.” Herschmann testified that even Trump lawyer Rudy Giuliani agreed on the morning of January 6 that Eastman’s argument wouldn’t stand up in court.
Nonetheless, Giuliani went out in front of the crowd at the Ellipse on January 6, insisted that the theory was correct, and lied that even Thomas Jefferson himself had used it.
Meanwhile, beginning in December, Trump had been pressuring Pence to go along with the scheme. Pence had refused, but Trump kept piling on the pressure. At rallies in early January, he kept hammering on the idea that Pence could deliver the election to Trump, and in meetings on January 4 and 5, he kept demanding that Pence overturn the election. When Pence continued to refuse, Trump appeared to try to lock him in by tweeting on January 5 that he and Pence were “in total agreement” that Pence could act to change the outcome of the election.
By then, Short was so worried about what Trump might do on January 6 that he told the Secret Service he was concerned about Pence’s safety.
On January 6, Trump called Pence on the phone and, according to witnesses, called him a “wimp” and a “p*ssy.” Pence then issued a statement saying it was his “considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.” Trump then went before the crowd at the Ellipse and added to his prepared speech sections attacking Pence.
After Trump’s chief of staff Mark Meadows told him that violence had broken out at the Capitol, Trump tweeted that “Mike Pence didn’t have the courage to do what needed to be done,” and violence ratcheted up. The committee showed rioters claiming they were there because Pence had let them down. “Pence betrayed us…the president mentioned it like 5 times when he talked,” one said. That 2:24 tweet was “pouring gasoline on the fire,” one White House press member told the committee. At 2:26, Pence and his family were evacuated to a secure location, where he would stay for more than four hours. The rioters missed the vice president by about 40 feet. A Proud Boy told the committee that if they had found Pence, they would have killed him.
Even after the crisis ended, Eastman continued to write to Pence’s people asking him to send the electoral slates back to the states. Herschmann advised him to “get a great effing criminal defense lawyer. You’re going to need it.” Eastman then put in writing that he wanted a presidential pardon: “I’ve decided I should be on the pardon list,” he wrote. When he did not get a pardon, he took the Fifth Amendment before the committee, asserting his right against self-incrimination more than 100 times.
There were lots of places where Pence and his team were no heroes. They could have warned any number of people about what Trump was up to long before January 6, and Pence’s apparently noble stance was undoubtedly informed by a realization that if Pence did as Trump asked and it went wrong—even Eastman acknowledged the scheme was illegal—Pence would be the one holding the bag.
But the committee left all that unsaid. Instead, it went out of its way to make a very clear distinction between Trump, who was out for himself and damn the country, and Pence, who risked his own safety to follow the law. Indeed, that theme was so clear it appeared to have been carefully scripted. Today’s testimony highlighted the principles of Jacob and Short and their boss, Mike Pence. It even took a deliberate detour to let both Jacob and Short talk about how their Christian faith helped them to stand against Trump and do what was right, an aside that seemed designed to appeal to the evangelicals supporting Trump. And it highlighted how Pence continued to do the work of governing even while he was in the secure location, which looked much like a loading dock according to new photos shown today.
The committee seems to be presenting a clear choice to Republicans: stand with Trump, a man without honor who is quite possibly looking at criminal indictments and who is trying to destroy our democracy, or stand with Pence, who embraces the same economic and social ideology that Republicans claim to, without wanting to destroy our democracy.
The appearance of Judge Luttig today was in keeping with this theme. Luttig is such a giant in conservative legal circles that he was talked of for the Supreme Court in place of Samuel Alito, and his words bear extraordinary weight. Luttig hammered home that Trump’s scheme was an attempt to overturn the rule of law and to destroy our democracy. And, he warned, the danger is not over. Trump and his supporters remain “a clear and present danger to American democracy.”
Luttig’s testimony was powerful, but even more extraordinary was a statement he released before today’s hearing. Luttig, for whom both Eastman and Senator Ted Cruz (R-TX) clerked, warned that “January 6 was…a war for America’s democracy, a war irresponsibly instigated and prosecuted by the former president, his political party allies, and his supporters.”
That is, Luttig laid the responsibility for today’s national crisis at the door of the Trump wing of the Republican Party. He went on to warn that only it could reject the attempt of the president and his supporters to undermine the faith in our elections that underpins our democracy: “[O]nly the party that instigated this war over our democracy can bring an end to that war…. These senseless wars…were conceived and instigated from our Nation’s Capital by our own political leaders…and they have been cynically prosecuted by them to fever pitch, now to the point that they have recklessly put America herself at stake.”
Luttig urged Americans to remember that the fate of our democracy is in our hands and to reject the fever dreams of the Trump Republicans in favor of “a new vision, new truths, new values, new principles, new beliefs, new hopes and dreams that hopefully could once again bind our divided nation together into the more perfect union that ‘We the People’ originally ordained and established it to be.”
“The time has come,” Luttig wrote, “for us to decide whether we allow this war over our democracy to be prosecuted to its catastrophic end or whether we ourselves demand the immediate suspension of this war and insist on peace instead. We must make this decision because our political leaders are unwilling and unable, even as they recklessly prosecute this war in our name.”
Chair Bennie Thompson closed today’s hearing by asking anyone who might be on the fence about cooperating with the committee’s investigation, please to reach out.