In its third public hearing Thursday, the January 6 Select Committee continued to establish a powerful criminal case that we analyze in the third edition of our criminal evidence tracker (available below and as a PDF).
The two prior hearings showed that former President Donald Trump was well aware that there was no factual basis for his attacks on the election. On Thursday, the committee made clear Trump knew there was no legal basis as he pressured Vice President Mike Pence to illegally disrupt the counting of the electoral votes on January 6. The committee also brought the first main co-conspirator into the story line: John Eastman.
In its first two hearings, the committee presented an overview of Trump’s seven-part plan to overturn the results of the 2020 presidential election, and then dissected his patently false claim that he lost the election because of voter fraud. The committee showed that advisers in his own campaign, White House and Justice Department – including former Attorney General Bill Barr – repeatedly told Trump that there was no evidence of fraud that could change the outcome of the election and that his claims to the contrary were, in Barr’s words, “bullshit.”
In its third hearing Thursday, the committee turned to the heart of Trump’s coup attempt – his relentless effort to pressure Pence to illegally disrupt the counting of the electoral votes on January 6.
The committee continued its method of weaving together video of witness interviews with live testimony to paint an organized and clear picture of the evidence. The live witnesses were former federal appeals court judge J. Michael Luttig and former general counsel to Vice President Pence, Greg Jacob. They were guided through their testimony by committee chair Bennie Thompson, vice chair Liz Cheney, committee member Pete Aguilar, and the committee’s senior investigative counsel John Wood.
The hearing and the testimony focused on the role played by Trump and John Eastman, a lawyer who helped sell the then-president on a completely unprecedented legal theory that on January 6, the vice president would have unilateral authority under the 12th Amendment and under an 1887 statute, the Electoral Count Act, to reject electoral votes cast for Joe Biden. On that bizarre theory, Pence could then simply declare that Trump and he had won reelection.
Alternatively, Eastman argued, Pence could suspend the counting of electoral votes on January 6 and send the votes back to state legislatures to “re-certify” the electoral votes, which would have thrown the presidential election into chaos.
Judge Luttig, a conservative Republican jurist who advised Pence in the days leading up to January 6, said in his written testimony that Eastman’s legal theory was “the product of the most reckless, insidious, and calamitous failures in both legal and political judgment in American history.” He said he would have “laid my body across the road before I would have let the Vice President overturn the 2020 election” on the basis of Eastman’s argument.
Pence’s counsel, Greg Jacob, explained why this was the case – because Eastman’s argument that one person can choose the President is fundamentally “un-American.” There is “no way,” Jacob said, that the Framers would ever put one person in a position to have that kind of power. It would, he said, violate the text of the law, the history of presidential elections and, most importantly, common sense.
Eastman knew his legal argument was wrong – and even told Trump it would require violating several provisions of federal law to enact their scheme. According to Jacob, at a meeting on January 4 with Trump, Pence, Marc Short, and Jacob, Eastman agreed that his plan would violate the Electoral Count Act, but said either that the Act itself was unconstitutional, or that the courts would not get involved. The next morning, however, Eastman admitted to Jacob that his legal theory would be rejected – unanimously – by the Supreme Court. What’s more, after the January 6 attack, in an email exchange, which was discussed at the hearing, Jacob asked Eastman, “Did you advise the President that in your professional judgment, the Vice President does not have the power to decide things unilaterally?” And ended the email saying, “it does not appear that the President ever got the memo.” Eastman replied, “He’s been so advised,” and ended his email saying, “But you know him – once he gets something in his head, it’s hard to get him to change course.”
White House counsel Pat Cipollone said the Eastman theory was “nutty.” And according to another White House lawyer, even Rudy Giuliani grudgingly admitted the theory was wrong.
Jacob testified that when it was first suggested to Pence that he should use his role as presiding officer to throw the election to Trump, Pence’s immediate instinct was to reject the idea. That started a two-week campaign by Eastman and Trump to pressure Pence into changing his mind. The pressure campaign, which started with phone calls and meetings, escalated into public statements and tweets to apply more pressure to Pence as January 6 approached.
Ultimately, of course, Trump on the morning of January 6 spoke directly to the mob he had assembled on the Mall and urged them to go to the Capitol as Pence presided over the counting of the electoral votes. The committee showed video that made clear that the attack on the Capitol was in part a hunt for Pence after he had refused to do Trump’s bidding. As the mob chanted “Hang Mike Pence,” Trump inflamed them by tweeting at 2:24 p.m. that “Mike Pence didn’t have the courage to do what was necessary.”
According to committee evidence, a member of the Proud Boys later testified that they would have killed Pence if they had found him. At one point, as the Secret Service moved Pence to a more secure location in the Capitol, he was only 40 feet from the mob.
Judge Luttig provided sobering context and perspective on the events in the days leading up to January 6. His written testimony, in particular, is a jeremiad warning of the danger to our democracy.
In near apocalyptic terms, Luttig said America is “adrift” and “at a perilous crossroads.” Saying that “America’s democracy was almost stolen from us on January 6,” Luttig added that “if we fail to learn the lessons that are there to be learned…we will consign ourselves to another January 6 in the not-too-distant future, and another after that, and another after that.”
Hammering the point home in his oral testimony, he warned that in effect the insurrection has not ended. “Donald Trump and his allies and supporters are a clear and present danger to American democracy… The former president, his allies, and supporters pledge that in the presidential election of 2024, if the former president… were to lose that election, they would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election, but succeed in 2024 where they failed in 2020.”
That ongoing threat in the states is dire, with over 100 election deniers, many endorsed by Trump, having made it through the primary process.
The first three public hearings nicely set up what will happen when the committee continues its hearings next week. That includes the committee’s turning on Tuesday to examine Trump’s efforts to pressure state election officials to alter election results and Trump’s scheme to have state legislators appoint slates of fake electors to generate confusion in the counting of electoral votes. As Luttig suggested, that is also an ongoing, forward-looking effort and we hope the hearing will address it.
We will continue to update our charts after that and future hearings. The current editions are provided below and as a separate PDF.