Dear Commons Community,
Yesterday’s House January 6th Committee hearing had lots of interesting moments. As described by one media outlet, it was all about power, pardons, and Pence. In general, it was a very bad day for John Eastman, the Trump lawyer who helped craft his plan to overturn the election, a scheme that fueled the U.S. Capitol riot. I thought the testimony of retired federal judge J. Michael Luttig was especially riveting. Here are ten important takeaways as compiled by Lydia O’Connor of The Huffington Post.
Eastman told Trump their plan was illegal, a Pence aide said.
Greg Jacob, who was Pence’s legal counsel at the time of the Capitol riot, told the committee Thursday that Eastman made it very clear to Trump that the plan they’d crafted to overturn the election was illegal.
“I believe he did on the 4th,” two days before the riot, Jacob said of Eastman’s conversation with Trump about rejecting the official slates of state electors in order to stop the election’s certification by Congress on Jan. 6.
Rep. Liz Cheney (R-Wyo.), vice chair of the select committee, said of Eastman: “He knew the outcome he wanted, and he saw a way to go forward if he simply pretended that fake electors were real.” A memo he wrote asserting that Pence could declare Trump the winner “was false, and Dr. Eastman knew it was false. In other words, it was a lie,” she said.
Eastman knew the other legislative branches would dismantle their scheme.
In a December 2020 email the committee presented, Eastman acknowledged that his and Trump’s plan to use alternative electors in the certification would be “dead on arrival” if presented before Congress.
Jacob said Thursday that Eastman privately acknowledged to him that if Pence did what he was asking him to do and the matter went before the U.S. Supreme Court, they would “lose 9-0.” However, Jacob said Eastman didn’t think the matter would end up before the highest court.
Jacob said he asked Eastman to consider the absurdity of what he was suggesting, reminding him that Al Gore was vice president when he lost the presidential election to Gorge W. Bush in 2000: “If you were right, don’t you think Al Gore might have liked to have known in 2000 that he had authority to just declare himself president of the United States?”
Jacob summarized Eastman’s response as: “Al Gore did not have the basis to do it in 2000. Kamala Harris shouldn’t be able to do it in 2024. But I think you should to it today.”
Eastman reportedly shrugged off the possibility of inciting a riot.
The committee played testimony from Eric Herschmann, a lawyer and former senior adviser to Trump, who said Eastman cared little about the barbarity his plan could unleash.
“You’re going to cause riots in the streets,” Herschmann recalled telling Eastman, who allegedly replied: “There’s been violence in our history to protect the republic.”
Eastman asked for a pardon after the attack.
After all hell broke loose, Eastman sought a way out.
Rep. Pete Aguilar (D-Calif.), who led Thursday’s hearing, said Eastman wrote an email to Rudy Giuliani, another one of Trump’s lawyers, “a few days after” Jan. 6 asking for help avoiding legal repercussions.
“I’ve decided that I should be on the pardon list, if that is still in the works,” wrote Eastman. He also invoked his Fifth Amendment right to not incriminate himself 100 times during his testimony, the committee said.
Despite Trump’s claims otherwise, Pence allegedly told him “many times” he disagreed with him.
Pence’s onetime chief of staff, Marc Short, told the committee that Pence informed the president “many times” that he didn’t have the power to overturn the election and that it would be illegal for him to try to do so.
That contradicts statements made by Trump, who said before the insurrection that he and Pence were in “total agreement that the Vice President has the power to act.” Pence has never indicated that to be true.
Jacob also said Thursday that Trump’s claims were false.
“We were shocked and disappointed because whoever had written and put that statement out, it was categorically untrue,” Jacob said.
Weeks before the riot, Pence thought he didn’t have the power to overturn the vote, his aide said.
Jacob shared that in early December, he and Pence discussed whether the 12th Amendment gave him the power to overturn the election and that Pence’s first instinct was that it did not.
Jacob said he agreed and put together a memo stating that, adding at Thursday’s hearing that it’s “just common sense” that the Constitution’s framers would never “have put in the hands of one person the authority to determine who was going to be the president.”
Trump snapped at Pence in the heat of their Jan. 6 disagreement, according to Ivanka Trump.
In video testimony from Trump’s daughter Ivanka Trump, who served as one of the president’s advisers, she said her father had a profanity-laden call with Pence as the events unfolded on Jan. 6
“The conversation was … was pretty heated. It was a different tone than I’d heard him take with the vice president before,” she recalled in the testimony aired Thursday, adding that he used “the p-word.”
Nicholas Luna, a former assistant to Trump, said in his testimony: “I remember hearing the word ‘wimp.’ Either he called him a wimp — I don’t remember if he said, ‘You are a wimp, you’ll be a wimp.’ Wimp is the word I remember.”
The mob got dangerously close to Pence.
Aguilar said that the committee’s investigation found that the crowd of rioters were within 40 feet of Pence inside the Capitol at one point.
“Approximately 40 feet. That’s all there was. Forty feet between the vice president and the mob,” he said. “Make no mistake about the fact that the vice president’s life was in danger.”
The committee also played videos of the mob chanting, “Hang Mike Pence.”
The crowd surged when Trump tweeted his anger at Pence.
Aguilar also said they found evidence that the mob got more out of control when Trump tweeted mid-riot: “Mike Pence didn’t have the courage to do what should have been done,” referring to his refusal to throw out the election results.
“Our investigation found that immediately after the president’s 2:24 p.m. tweet, the crowds both outside the Capitol and inside the Capitol surged,” Aguilar said, adding that Pence then had to be moved to a secure location.
The committee aired testimony from White House staffers who said that was exactly what they feared might happen. Deputy press secretary Sarah Matthews said that after staff urged Trump to tweet something that would calm the crowd, he instead tweeted his attack on Pence.
“The situation was already bad, so it felt like he was pouring gasoline on the fire by tweeting that,” she said.
A Pence adviser said he believes Trump remains a threat to democracy.
Retired federal judge J. Michael Luttig, who served as a legal adviser to Pence before the Capitol riot, said at the hearing Thursday that he was still very worried about Trump’s influence, calling him, his allies and supporters “a clear and present danger to American democracy” because of their stated plans to overturn the 2024 presidential elections if Trump runs and loses again.
“Our democracy today is on a knife’s edge,” he said.
Had Pence done that Trump wanted of him, Luttig also said, “it would’ve been the first constitutional crisis since the founding of the republic.”