Jan. 6 panel pits Trump against Pence

A weeks-long campaign by former President Trump to pressure his vice president to overturn the 2020 election results was based on a “nutty” legal theory — rejected by top aides to both men — that led directly to the violence on Jan. 6, 2021, according to congressional testimony presented Thursday.

In its third hearing scheduled this month, the House select committee investigating the Capitol attack lionized former Vice President Mike Pence, showing him as “unwavering” in his resistance to Trump’s arm-twisting effort that extended straight into Jan. 6, when rioters forced Pence into hiding for four hours.

At one point, Pence was just 40 feet from the angry mob, while Trump did not reach out to check on his vice president, according to testimony presented Thursday. Pence was seen in photos huddling with staff and security while watching on his phone as Trump tweeted missives to his followers amid the riot.

The revelations were just the latest instance of the select committee — a bipartisan panel created by Democrats — tapping leading Republican voices to go after their own party’s standard bearer, portraying Trump as a lawless figure hellbent on clinging to power at any cost. 

It’s a strategy requiring some of the most liberal Democrats on Capitol Hill, including Rep. Bennie Thompson (D-Miss.), the investigative chairman, to cast aside partisan differences to join forces with the ultra-conservative Pence, who is himself eyeing a run at the White House in 2024.

Whether Pence’s defiance of Trump ultimately helps or hurts his political future remains to be seen. But the Democrats on the committee appear happy to gamble with the idea of advancing Pence’s reputation for a shot at holding Trump to account for his actions leading up to and during the riot.

“We’re fortunate for Mr. Pence’s courage on January 6th,” Thompson said. “Our democracy came dangerously close to catastrophe.”

Beyond Pence, one particular campaign lawyer took center stage in the hearing Thursday: John Eastman. 

The conservative law professor crafted two strategies for Trump’s campaign: one in which Pence could outright refuse to certify the electoral votes from certain states; another in which Pence would refer those votes back to the states for a recount.

In a departure from its first two hearings, the panel relied heavily on in-person witnesses — two legal advisers to Pence — who spared no detail in refuting the legality of Eastman’s approach.

“There is almost no idea more un-American than the notion that any one person would choose the American president,” Greg Jacob, who was Pence’s top lawyer in the White House, told the committee. 

But perhaps the most damning revelation to undermine the legal masterminds behind Trump’s efforts was an email shared by the committee showing Eastman approaching fellow campaign attorney Rudy Giulani with a request: “I’ve decided that I should be on the pardon list if that is still in the works,” the email read.

“Dr. Eastman did not receive his presidential pardon,” said Rep. Pete Aguilar (D-Calif.), a member of the committee who was featured on Thursday.

The hearing was built to lead to a central climax: the break between Trump and Pence, to prove the lengths the former was willing to go to overturn the election. The panel showed never-before-seen photos, released by the National Archives, as the two men spoke on Jan. 6 and Pence informed Trump he would do nothing beyond certify the results as laid out in the Constitution. It was a moment designed to showcase how the risk that Pence would later face once he was in the Capitol fell on deaf ears.

But the hearing painstakingly detailed the overall pressure campaign that preceded that moment, from forcing Pence’s staff to repeatedly meet with Eastman to a public admonishment from Trump that he would not “like him quite as much” if Pence did not reject the vote on Jan. 6.

“There was no way our framers, who abhor concentrated power, who had broken away from the tyranny of George III, would ever have put one person, particularly not a person who has a direct interest in the outcome because they were on the ticket of the election, to have a role, to have decisive impact on the outcome. And our review of the text, history, and frankly, common sense all confirm the vice president’s first instinct on it,” said Jacob, who was alongside the vice president as he and others were rushed to safety.

Other White House lawyers also rejected Eastman’s theory. 

“I said, ‘Are you out of your effing mind, right?’ And I was pretty blunt. I said, ‘You’re completely crazy.’ I said, ‘You’re going to turn around and tell 78-plus million people in this country that your theory is this is how you’re going to invalidate their votes, because you think the election was stolen?’” White House lawyer Eric Herschmann said.

“And I said they’re not going to tolerate that; I said you’re going to cause riots in the streets.”

Another bombshell of the day was the extent that the committee was able to detail that Eastman himself knew the plan was illegal.

One document shared by the committee was a draft memo to Trump that was redlined by Eastman in a way that refuted his own legal argument that the vice president has the power to single-handedly reject electoral votes. 

“Nowhere does [the Constitution] suggest that the President of the Senate gets to make the determination on his own,” Eastman noted. 

The discrepancy was not lost on the committee, which accused Eastman of not only pushing illegal theories, but of doing so knowingly at the expense of millions of voters whose voices would be nullified. 

“​​Dr. Eastman knew it was false. In other words, it was a lie,” said Rep. Liz Cheney (R-Wyo.), a member of the select committee. 

The day of the attack, witnesses said Trump’s focus on Pence accelerated violence in the crowd.

The committee had previously suggested Trump was supportive of those rioters who had chanted “hang Mike Pence” on Jan. 6. On Thursday, it offered new details about how the former president was informed about the violence at the Capitol before he sent a 2:24 p.m. tweet that targeted his vice president directly: “Mike Pence didn’t have the courage to do what should have been done,” Trump said. 

The message alarmed a number of White House staffers, who were already scrambling to have Trump send a tweet defusing the violence. One former aide, Sarah Matthews, said, “The situation was already bad, and so it felt like he was pouring gasoline on the fire by tweeting that.”

White House staff also told the committee about how they were in discussion about how bad the riot was getting and the need for Trump to tweet something to quell the violence when he instead fired off a tweet criticizing Pence. 

“Our investigation found immediately after the president’s 2:24 tweet, the crowds both outside the Capitol and inside the Capitol surged,” said Aguilar, who played an elevated role in walking through the evidence. 

“Approximately 40 feet — that’s all there was between the vice president and the mob,” Aguilar said, describing the scene as Pence was whisked away from the crowd.

“The vice president did not want to take any chance that the world would see the Vice President of the United States fleeing the United States Capitol. He was determined that we would complete the work that we had set out to do that day, that it was his constitutional duty to see through,” Jacob said. 

Jacob said Pence never heard from Trump that day, a detail he said the vice president met “with frustration.”

The committee also played clips of White House aides offering new details about the 11:20 a.m. call between Pence and Trump that day. 

“The conversation was pretty heated,” Ivanka Trump, the former president’s daughter, told the committee. “It was a different tone that I’d heard him take with the VP before.”

Another aide said Trump called Pence “a wimp,” and that he had “made the wrong decision four or five years ago” in choosing Pence as his vice president. 

A central design of the investigative committee is not only to examine the violence of Jan. 6, but also to ensure that it doesn’t happen again. One of the witnesses on Thursday, former federal judge J. Michael Luttig, said they have their work cut out for them. The conservative Luttig warned that even 17 months after the attack, Trump and his allies remain “a clear and present danger to American democracy.”

“I don’t speak those words lightly,” he said.