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The potential collapse of American democracy loomed over the third public hearing of the January 6 select committee: For the first time, the public proceedings directly addressed the counterfactuals possible if figures like Vice President Mike Pence had acted differently on that day.
Pence, and his refusal to use his ministerial role in certifying the election to overturn it, was central to Thursday’s hearing. Through the testimony of vice presidential aides, the committee established an extended campaign that saw President Donald Trump and his allies attempt to pressure Pence into overturning the result of the 2020 presidential election.
Obviously, that campaign failed. But the likelihood of a “paralyzing constitutional crisis” and fighting in the streets was discussed soberly during the hearings. That the US managed to avoid both, the committee argued, was thanks to “Pence’s courage.” These are five takeaways from Thursday’s hearing.
Trump lawyer John Eastman knew that what he was doing was illegal
The key figure in Trump’s efforts to persuade Pence to throw out the results of the election was John Eastman, a constitutional law professor who had clerked for Clarence Thomas on the Supreme Court.
The committee took pains to establish that Eastman knew his efforts to convince Pence that the vice president has the constitutional authority to unilaterally choose who won the election had no legal basis or historical precedent.
The committee not only used as evidence a legal memo from October 2020 in which Eastman explicitly refuted this argument, it also had Greg Jacob, Pence’s chief counsel, testify that Eastman acknowledged that what he was urging Pence to do on January 6, 2021, violated the Electoral Count Act.
As the icing on the cake, it published an email from Eastman to Rudy Giuliani in the days after the attack on the Capitol where the lawyer requested to be added to Trump’s “pardon list.” It also showed footage of a handful of the 146 times that Eastman invoked his Fifth Amendment right against self-incrimination in testifying before the committee.
The committee has continued to highlight a consistent theme: Trump knew or should have known that he lost the election and that efforts to overturn the election were wrong and illegal, but he continued them anyway.
Trump knew the scheme was illegal as well
The committee persistently established that nearly everyone in Trump’s orbit thought his attempt to overturn the election was illegal — and that even Eastman acknowledged that it violated the Electoral Count Act in Trump’s presence.
In her statement at the beginning of the hearing, Rep. Liz Cheney (R-WY) echoed Howard Baker’s famous question from the Watergate hearings to emphasize the impact of this. “What exactly did President Trump know? When exactly did President Trump know that it would be illegal for Mike Pence to refuse to count electoral votes?” she asked.
The committee showed video depositions that made clear that both his White House counsel and his campaign legal team repeatedly told Trump that Pence had no authority to overturn the election.
Trump lied about Pence as part of the pressure campaign
Trump not only ignored those who told him Pence did not have the power to overturn the election but increased public pressure for the vice president to act contrary to both law and historic precedent.
In fact, after Pence had told Trump that he would not overturn the election, Trump put out a statement insisting that the two men agreed that he could. Trump wrote in the January 5 statement that “the Vice President and I are in total agreement that the Vice President has the power to act.”
Trump went on to add “Our Vice President has several options under the U.S. Constitution. He can decertify the results or send them back to the states for change and certification. He can also decertify the illegal and corrupt results and send them to the House of Representatives for the one vote for one state tabulation.”
Of course, Pence did not have that power and the vice president had repeatedly made that clear to Trump. However, Trump unilaterally put out the statement that only increased the pressure on Pence and set up Trump supporters for anger and disappointment on January 6.
Mike Pence came very close to meeting insurrectionists on January 6
With his repeated false claims that Pence had the power to overturn the election, Trump put the former vice president at risk on January 6. In the eyes of Trump’s supporters, Pence’s refusal to use the powers that he did not legally have made him “a traitor.”
The committee showed just how close Pence came to the mob during their attack on the Capitol. The rhetoric of the attackers, including the chants of “Hang Mike Pence,” is infamous. And the committee described how, at one point, the vice president was within 40 feet of the rioters.
What this particular group of attackers would have done if they caught Pence is unclear. But affidavits the committee cited from an FBI informant within the Proud Boys said the far-right group “would have killed Mike Pence if given the chance.”
Eastman was trying to overturn the election even after the riot
Even after the attack on the Capitol and the deaths on January 6, Eastman was still mounting a last-ditch effort to persuade Pence to overturn the results of the election.
In an email to Jacob late on the night of January 6, Eastman claimed the fact the debate over whether to certify Arizona’s electoral votes had exceeded two hours at length and that speeches were given ahead of the certification created the legal predicate for Pence to overturn the election, since the Electoral Count Act doesn’t provide for such things.
“Now that the precedent has been set that the Electoral Count Act is not quite so sacrosanct as was previously claimed, I implore you to consider one more relatively minor violation and adjourn for 10 days to allow the legislatures to finish their investigations as well as to allow the full forensic audit of the massive amount of illegal activity that occurred here,” Eastman wrote.
These technical violations Eastman cited, of course, were the result of the mob storming the Capitol.
His recommendation, though, which was based on the legal theory that Pence could unilaterally overturn the election, was to try to drag out the process to amplify false claims of voter fraud and irregularities around 2020 in the last-ditch effort to install Trump in power before January 6.
What Eastman termed a “relatively minor violation” was something retired federal Judge J. Michael Luttig said he “would have laid [his] body across the road” to prevent and would have led to an unprecedented constitutional crisis.
