Former President Trump’s outside legal adviser and his chief of staff continued to push a discredited legal theory that said then-Vice President Mike Pence could unilaterally reject the 2020 election results, even though everyone involved repeatedly spoke about how they knew the theory was flat out wrong.
And when the clearly illegal plan failed, Trump’s cooky outside lawyer, John Eastman, tried to avoid ever being prosecuted for it.
“I’ve decided that I should be on the pardon list, if that is still in the works,” he emailed former New York Mayor and outside Trump lawyer Rudy Giuliani.
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On Thursday, the Jan. 6 Committee presented new documents and testimony from insiders that showed how Trump’s attempts to pressure his vice president to act outside his authority and interrupt the certification of the nation’s election weren’t just wrong—they were also in bad faith.
John Eastman, the conservative law school professor who became an outside legal adviser to Trump, ultimately convinced the president this plan could work. But Eastman was actually considering this plan back in October 2020, before the election. And Eastman’s take in October wasn’t that this strategy would be successful; it was that the approach would be insane.
Faced with an alternative reading of the 12th Amendment of the U.S. Constitution laying out how the vice president could just reject ballots, Eastman wrote on Oct. 11, 2020: “I don't agree with this. The 12th Amendment only says that the President of the Senate open the ballots in the joint session and then, in the passive voice, that the votes shall be counted.”
"Nowhere does it suggest that the President of the Senate gets to make the determination on his own," he added.
Nevertheless, Eastman pushed that same theory straight to Trump after his election loss as a surefire way to guarantee a second term.
While the president entertained the idea—and whipped up his loyalists by tweeting about the cockamamie plan—his own chief of staff, Mark Meadows, repeatedly told Pence’s right-hand man that it wouldn’t work.
Meadows acknowledged “the vice president doesn’t have any broader role. And I think he was understanding that,” Pence chief of staff Marc Short recalled in a videotaped deposition with committee investigators that the panel played at Thursday’s hearing.
There was even concern that the White House lawyers, tasked with guiding the president to abide by the law, would quit in protest. The committee presented evidence showing how Fox News host Sean Hannity texted Meadows on the day before the eventual attack on the Capitol building by a mob of Trump loyalists that he was “very worried about the next 48 hours,” warning that “Pence pressure. WH counsel will leave.”
But Trump’s son-in-law and adviser, Jared Kushner, told the committee in a videotaped deposition that he was too busy arranging for presidential pardons to take seriously Pat Cipollone’s threats to leave.
"I kinda took it up just to be whining to be honest with you,” Kushner testified to the committee from his computer in March.
Meanwhile, Rudy Giuliani—the lead outside counsel to Trump helping him dispute the election results—privately revealed that this mission wouldn’t work. The committee played a snippet of a videotaped deposition of former White House lawyer Eric Herschman, who recalled Giuliani engaging in an “intellectual discussion about Eastman's theory” on the morning of Jan. 6, in which he eventually “seemed to admit the theory was wrong.”
Hours later, Giuliani spoke to incensed Trump loyalists at The Ellipse park near the White House but hours later at the ellipse, he told the rally that everything in Eastman’s plan “is perfectly legal."
“It is perfectly appropriate given the questionable constitutionality,” Giuliani told them. “The vice president can cast aside... he can decide on the validity of these crooked ballots.”
At the onset of the hearing Thursday, the Jan. 6 Committee has sought to explore how Trump knew his plan for Pence to disregard the electoral votes wasn't legally viable.
“Donald Trump wanted Mike Pence to do something no other vice president has ever done. The former president wanted Pence to reject the votes and even declare Trump the winner,” said Chairman Bennie Thompson, (D-MS). “Mike Pence said no. He resisted the pressure. He knew it was illegal. He knew it was wrong. We are fortunate for Mr. Pence's courage on January 6th. Our democracy came dangerously close to catastrophe. That courage put him very close to tremendous danger.”
The committee’s co-chair, Rep. Liz Cheney (R-WY), added that “President Trump was told repeatedly that Mike Pence lacks the constitutional and legal authority to do what President Trump was demanding he do.”
The committee is set to hear from two of Pence’s right-hand men: Greg Jacob, who served as counsel to the vice president, and J. Michael Luttig, a retired federal appellate judge who examined cases in five mid-Atlantic states and the District of Columbia.
Luttig’s opening statement, which was obtained by CNN shortly before the hearing, describes a ”war on democracy instigated by the former president and his political party” that resulted in “a stake… driven through the heart of American democracy on January 6, 2021.”
As the committee’s work has continued, investigators have increasingly found how Trump’s legal advisers fed him nonsensical legal advice—that they knew was wrong—in a toxic mix of opportunism and appeasement.
One of them was John Eastman, who taught law at Chapman University in California and gained a reputation in conservative politics. On the day before the insurrection, Eastman emailed Jacob urging him to get the vice president to take unprecedented illegal action as a monumental sign of loyalty to his commander in chief.
Jacob has long wanted to expose what he privately described as “a fool’s errand” by Trump’s legal advisers to pressure Pence to violate the law and refuse to count electoral ballots certifying now-President Joe Biden’s 2020 victory.
He drafted an op-ed in January 2021 that never ran—that is, until The Washington Post obtained a copy and made it public nine months later—that criticized Trump’s cadre of attorneys for “using their credentials to sell a stream of snake oil to the most powerful office in the world, wrapped in the guise of a lawyer’s advice.”
When Eastman testified before the Jan. 6 Committee in December, he refused to answer any questions and invoked his Fifth Amendment right against self-incrimination more than 140 times.
However, the committee obtained emails in which Jacob sparred with Eastman and called him out on how “it was gravely, gravely irresponsible for you to entice the President with an academic theory that had no legal viability.” The tension is thick in those messages, as Jacob was with the vice president at the Capitol building just as it was being attacked by a violent mob of insurrectionists while his wife and children watched on TV.
“Thanks to your bullshit, we are now under siege,” Jacob wrote to Eastman at 3:14 p.m. that day.
Eastman, incredulously, responded by putting the blame on Pence and his advisers.
“My ‘bullshit’ — seriously?” he shot back. “The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.”
Jacob, who was much more forthcoming with investigators than his nemesis, added context to that evidence when he sat down behind closed doors with the committee in February.
"The president latched on to a dangerous theory and would not let go because he was convinced it would keep him in office," said Rep. Pete Aguilar (D-CA).
The committee’s chairman ended the hearing with a strong message of gratitude to Pence’s two legal advisors for resisting the calls of tyranny.
“There are some who think the danger has passed,” Thompson said. “Our system nearly failed, and our democratic foundation destroyed—but for people like you.”
