4 takeaways from the Jan. 6 committee’s hearing on Pence
Testifying were Pence’s general counsel, Greg Jacob, and renowned retired conservative judge J. Michael Luttig.
Below, some takeaways. (We’ll add to this as the news develops.)
1. Witnesses: Giuliani and Eastman knew this was probably illegal
A key argument of the committee’s hearing Thursday was that not even the proponents of having Pence overturn the election thought their plot was legal.
We recently found out that shortly before writing his memo in December 2020, Trump lawyer John Eastman had said the concept of dueling electors — without state legislative backing, which this effort never got — was “dead on arrival” in Congress. But there’s more.
Jacob testified Thursday that he told Eastman that the plan violated the Electoral Count Act and that “Mr. Eastman acknowledged that that was the case.” (Eastman has tacitly acknowledged this but said the law should be disregarded because he viewed it as unconstitutional.)
But crucially, Jacob said Eastman also conceded that his argument would lose on the merits in court — and not just lose, but “would lose 9-0 in the Supreme Court.” According to Jacob, Eastman believed that the courts might punt on the question because they wouldn’t want to intervene in a political dispute involving powers given to Congress.
Jacob said Eastman also conceded that a supposed historical parallel he had raised, involving Thomas Jefferson, wasn’t actually analogous. The committee also introduced evidence that Trump attorney Rudy Giuliani might also have understood the Jefferson example did not hold up — and had said so just that morning, though he went on to invoke the supposed parallel at the “Stop the Steal” rally on Jan 6.
The committee played testimony from then-White House lawyer Eric Herschmann, who recalled that Giuliani had called him that morning: “We had an intellectual discussion about … the VP’s role,” Herschmann said. “And he was asking me my view and analysis about the practical implications of it. And when we finished, he said, ‘Look, I believe that you’re probably right.’” Herschmann added that he thought Giuliani had realized “you couldn’t interpret or sustain the argument, long term.”
Giuliani, the committee noted, proceeded just hours later to tell “Stop the Steal” rally attendees that “every single thing that has been outlined as the plan for today is perfectly legal.” Giuliani added that “given the questionable constitutionality of the” Electoral Count Act, it was “perfectly appropriate” for a vice president to “cast it aside.”
Herschmann didn’t quite say Giuliani conceded the idea was definitely illegal. But he characterized Giuliani as less convinced of the legality of the plot than he later told the crowd — members of which would ultimately storm the Capitol.
Knowledge of the plot being illegal is significant when it comes to whether the Jan. 6 plotters committed a crime.
Giuliani declined to comment on Herschmann’s testimony later Thursday.
2. Eastman’s big pardon request
The committee has previously alluded to an effort by certain members of Congress to obtain preemptive pardons — which would obviously be significant, for reasons mentioned above. One lawmaker named in the hearings, Rep. Scott Perry (R-Pa.), has denied this.
But on Thursday, the committee revealed evidence that one key player did indeed seek a pardon: Eastman himself. In an email obtained by the committee from just days after Jan. 6, Eastman told Giuliani: “I’ve decided that I should be on the pardon list, if that is still in the works.”
This is big — and not just because Eastman sought a pardon, thereby acknowledging his own legal liability. Also consider how Eastman phrased it: He suggested there was a known “pardon list,” and he wanted to be on it.
You can bet we’ll be hearing plenty more about that list.
3. Pence said rejecting Trump plot was ‘most important thing I ever say'
There’s always a danger in putting too fine a point on what this effort to overturn an election meant. Maybe it didn’t actually get that close to succeeding. In many ways, it seemed to be pretty ragtag.
But at least one person seemed to think Jan. 6 was a historically singular and perilous moment: Pence himself.
The committee played video of earlier testimony from Jacob, in which Jacob described the process for drafting Pence’s statement rejecting the Trump team’s plan. He said Pence wanted it to be “just so” because “this may be the most important thing I ever say.”
Similarly, Luttig put one of the finest points on this that we’ve seen to date — at least from someone without a “D” after their name.
“That declaration of Donald Trump as the next president would have plunged America into what I believe would have been tantamount to a revolution within a constitutional crisis in America,” Luttig said, “which in my view — and I’m only one man — would have been the first constitutional crisis since the founding of the republic.”
There was often talk about the possibility of a constitutional crisis during Trump’s presidency, given his disdain for the legal process and the norms of American governance. But here is a major player in the conservative legal community — Luttig has advised not just Pence, but also Sen. Ted Cruz (R-Tex.), with whom he was particularly close — saying the country was on the precipice of such a crisis, if Trump were to get his way.
Both his and Pence’s comments make it significantly more difficult for Republicans to argue this wasn’t a big deal. If Pence views his rejection of Trump’s plan as perhaps his most significant statement ever, that says plenty.
Democrats have been reluctant to characterize Pence — someone whom they spent four years attacking for being obsequious to Trump — as some kind of hero. They’ve acknowledged that he did something politically difficult by defying Trump’s wishes but emphasized that he was merely following the law and perhaps could have done more earlier to thwart the plot.
But on Thursday, they were happy to hold up Pence as a righteous counterpoint to Trump.
“We are fortunate for Mr. Pence’s courage,” said the Jan. 6 committee’s chairman, Rep. Bennie G. Thompson (D-Miss.). “On Jan. 6, our democracy came dangerously close to catastrophe. That courage put him in tremendous danger when Mike Pence made it clear that he wouldn’t give in to Donald Trump’s scheme.”
Rep. Pete Aguilar (D-Calif.) added at the end of his opening statement: “Let me be clear: Vice President Pence did the right thing that day. He stayed true to his oath to protect and defend the Constitution.”
The committee also spent a significant amount of time detailing just how much peril Pence found himself in, showing footage of Jan. 6 protesters calling him “nothing but a traitor” and photos from the National Archives of Pence sheltering underground, waiting for order to be restored in the Capitol. Aguilar added: “Make no mistake about the fact that the vice president’s life was in danger.”