During a town hall event on CNN Wednesday night, former President Donald Trump made multiple incriminating remarks about his efforts to overturn the 2020 presidential election. Trump’s responses will further hurt his case should Special Counsel Jack Smith charge the former president in connection with his role in the attack on the U.S. Capitol and other attempts to hold onto power unlawfully. Trump’s statements were also valuable to Fulton County DA Fani Willis in her investigation and possible prosecution.
Consider what Trump had to say about former Vice President Pence. CNN’s Kaitlan Collins pointed out that Pence has blamed Trump for endangering his life. Trump interjected with a lie. “I don’t think he was in any danger,” Trump claimed.
That is clearly false. Some of Trump’s followers erected a hangman’s gallows outside of the Capitol. And the mob chanted, “Hang Mike Pence! Hang Pence!” Shortly after the Capitol was breached, Secret Service agents had to whisk Pence away to safety (which Sen. Tommy Tuberville (R-Al) told Trump as it happened). Even so, the rioters came within 40 feet of the vice president.
The main reason the rioters focused their anger at Pence was because Trump repeatedly told them that the vice president had the power to alter the outcome of the election. That is where Trump’s statements Wednesday night were important from a legal perspective.
Trump stated: Pence “did something wrong. He should have put the votes back to the state legislatures. I think we would have had a different outcome, I really do.” The reason that puts the former president in legal jeopardy is because Trump’s own legal adviser (John Eastman) admitted during an Oval Office meeting that the Electoral Count Act would not allow Pence to take such action. Trump’s remarks on CNN provide additional evidence that he does not and did not care about the scope of Pence’s actual legal authority. (One of the tells is that Trump told Collins it was Pence’s lawyers who said the proposal violated the Electoral Count Act, when the record is clear that Trump’s legal adviser also said that it did.)
The audience, made up primarily of Republican-leaning voters, loudly applauded Trump’s statement of what Pence should have done – but they were cheering for lawlessness and lies, whether they knew it or not.
To understand why, some brief context is in order — namely, this passage from Chapter 5 of the Select Committee’s final report (footnotes omitted) describing a key meeting in the Oval Office with the president, vice president, and their respective legal advisers:
On January 4, 2021, President Trump summoned Vice President Pence to a meeting in the Oval Office with John Eastman, a law professor representing President Trump in litigation challenging the election result. Eastman argued, on President Trump’s behalf, that the Vice President could take matters into his own hands during the joint session on January 6th. Eastman offered Vice President Pence two options. First, the Vice President could unilaterally reject the certified electors from several States won by former Vice President Biden, thereby handing the presidency to President Trump. Or, according to Eastman, Vice President Pence could delay the joint session to give State legislatures the opportunity to certify new electors loyal to the President. Eastman admitted, in front of the president, that both options violated the Electoral Count Act of 1887, the statute that sets forth the process for counting and disputing electoral votes during the joint session. Eastman admitted as much in a subsequent conversation with the Vice President’s staff as well.
Therefore, President Trump knew, or should have known, that this scheme was illegal—in fact, it violated the Electoral Count Act and the U.S. Constitution. President Trump repeatedly demanded that Vice President Pence go through with it anyway.
And Wednesday night on CNN, Trump repeated his illegal demand. We know from Vice President Pence’s book and other evidence that Trump and Eastman tried to get Pence to take the first option as well – that is, to unilaterally reject electors from the swing states and hand the victory to Trump. Here is how Pence writes about that same January 4, 2021, meeting in his book, So Help Me God (emphasis added):
Eastman argued that I had the authority to simply direct that electoral certificates not be counted and instead order that they be returned to the states until each state legislature certified which of the competing slate of electors for the state was correct. It was the first time I had ever heard anyone suggest that we send votes back to the states. The president and many of his defenders later repeatedly made the case that that was all I had ever been asked to do. It wasn’t.
Since I had already confirmed that there were no legitimate competing electors, I was tempted to dismiss Eastman’s proposal out of hand, but I let him drone on. He repeatedly qualified his argument with the words that it was just a legal theory, and I decided it was necessary to press him in front of the president. I was seated in my usual chair to the right of the president near the Resolute Desk, and Eastman was in the next chair to my right. I turned to him and asked, “Do you think I have the authority to reject or return votes?”
He stammered, “Well, it’s never been tested in the courts, so I think it is an open question.”
At that I turned to the president, who was distracted at the time, and said, “Mr. President, did you hear that?” He turned his attention to me, and I said, “Even your lawyer doesn’t think I have the authority to return the electoral votes.” The president nodded. As Eastman tried to get out some explanation, the president replied, “I like the other thing better,” presumably referring to his previous opinion that I could simply choose to reject electoral votes altogether.
According to Pence, therefore, Trump acknowledged during the Jan. 4, 2021 meeting that the vice president didn’t have the legal authority to return electoral votes back to the states. Yet, Trump still demanded that he do so (and defended that unlawful option again on CNN). Trump went even further in also pressuring Pence to reject electoral votes outright (the more radical option).
There’s much more evidence concerning Trump’s pressure campaign against his own vice president. But he further damaged himself last night when it comes to that part of the criminal case.
The former president’s responses to other January 6-related questions were problematic as well. One audience member asked, “Will you pardon the January 6 rioters who were convicted of federal offenses?”
Trump responded: “I am inclined to pardon many of them. I can’t say for every single one because a couple of them probably got out of control.” He then pivoted to whataboutism-style talking points concerning Antifa.
Collins followed up, asking if Trump would even consider pardons for the four members of the Proud Boys who were convicted of seditious conspiracy and other charges earlier this month.
“I don’t know, I’d have to look at their case,” Trump replied. “But I will say, in Washington, D.C. you cannot get a fair trial. You cannot.”
It is not surprising that Trump dangled the prospect of pardons for convicted January 6th rioters. He has done so before. But now he has added the convicted Proud Boys to his list of potential pardons. And that is even more troubling. As the Department of Justice has explained, the four convicted felons “directed, mobilized, and led a group of Proud Boys and other members of the crowd onto the Capitol grounds, leading to dismantling of metal barricades, destruction of property, breaching of the Capitol building, and assaults on law enforcement.” They were the spearhead for the attack.
Following the attack on the Capitol, Trump wanted to say he would issue a blanket pardon of the rioters, but White House lawyers strongly objected, and no such statement was made. Suffice it to say, Trump’s remarks on CNN exceeded what any reasonable defense lawyer would advise him.
In another potentially incriminating exchange, Trump acknowledged his own power over the mob.
Collins asked: “Why did you wait three hours to tell them to leave the Capitol? They listen to you like no one else. You know that.”
“They do, I agree with that,” Trump said, before trying to shift the blame to then Speaker of the House Nancy Pelosi and Mayor Muriel Bower.
This is potentially important because it demonstrates, again, that Trump was aware that he could have told the mob to go home earlier and ended the insurrection, prevented further damage to the Capitol and harm to the police. The former president and his defenders like to point to a few tweets, issued during the attack at 2:38pm and 3:13pm, in which he told his followers “to support our Capitol Police and Law Enforcement” and to “Stay Peaceful!” But in neither of those tweets did the president tell the crowd to go home. (People close to the president, including his son Donald Trump Jr., pleaded for the president to say more.) He could have acted much sooner, just as Collins claimed, and many of the rioters would have listened.
It was not until 4:17pm that Trump released a video calling for rioters to go home in “peace.” Even then, however, he endorsed their cause. “I know your pain, I know you’re hurt. We had an election that was stolen from us,” President Trump said at the outset of his video. “It was a landslide election, and everyone knows it, especially the other side.”
On CNN, Trump said he was “very proud of that video” because it was a “great video” and a “beautiful video.”
Nor does the legal harm Trump did himself stop there. He also reaffirmed that he would make the damning Jan. 2, 2021 call to Brad Raffensperger again, despite the fact that it may lead to criminal charges by Fulton County DA Fani Willis this summer (and possibly by the Justice Department as well). That is important because it shows he is unrepentant, which is an added incentive for the DA to seek accountability (not as if she needed one).
Moreover, Trump also provided a window into his intent by vehemently insisting that it was a perfect phone call. As a matter of law, it absolutely was not. Once the election had been certified, as it was, that constituted electoral vigilantism and apparent criminal activity to overturn the election in Georgia.
Over the coming months, we should expect more talk along these lines from the former president. The bottom line is that he has accepted no responsibility for January 6th, he portrays the extremists and rioters who attacked the Capitol as victims, and he tries to shift blame onto others, even while recognizing that the mob was his.