Jan. 6 hearings: House committee focuses on Pence during Day 3

Today, Cheney emphasized that if Monday’s hearing focused on Trump’s knowledge that he lost, today would expose Trump’s knowledge “that Mike Pence lacked the constitutional and legal authority to do what President Trump demanded he do.”

But although Pence’s former chief of staff Marc Short testified to his “impression that the Vice President had directly conveyed his position... to the President” many times, the committee failed to elicit any direct evidence of who told Trump that using Pence to overturn the election was unlawful. Proving that Trump knew what he was doing was illegal is a key challenge for potential criminal prosecutions.

For example, although John Wood, a lawyer for the committee, questioned former Pence lawyer Greg Jacob today about a Jan. 5 call between Trump, Pence, Jacob, Short and John Eastman, he asked Jacob only what Eastman said during that call. 

The committee then shifted its focus to Trump’s public statement about that call, in which Trump insisted that he and Pence were in “total agreement” about the vice president’s ability to unilaterally decide the election.

Jacob testified that Trump’s characterization of that conversation was “categorically untrue;” Short also testified, at his videotaped deposition, that he felt Trump’s statement was false. 

But the committee failed to show who, beyond Pence himself, told Trump clearly that Pence lacked the necessary legal authority. At most, they showed that Jacob “believed” Eastman admitted in front of Trump, on Jan. 4, 2021, that “his proposal would violate the Electoral Count Act.”

That they could not marshal clearer proof is odd. Multiple people who would have been expected to convey that message to Trump, from former White House counsel Pat Cipollone to former White House lawyer Eric Herschmann, testified before the committee. Why the committee missed the opportunity to prove a critical element of Trump’s wrongdoing in an otherwise well-choreographed hearing is a mystery.

Today, the committee played several clips from the deposition of Eric Herschmann, the former Trump White House lawyer. As the committee previewed in a video Tuesday, Herschmann talked tough to Trump campaign lawyer John Eastman the day after the Jan. 6 attack when Eastman called to discuss an appeal of election litigation.

Herschmann recalled barking at Eastman, “I don’t want to hear any other effing words coming out of your month, no matter what, other than ‘orderly transition.’” 

But like former Attorney General Bill Barr, former Trump campaign manager Bill Stepien and others before him, Herschmann was fully onboard Team Trump until he wasn’t. Herschmann is even visible, smiling, in a video taken by Donald Trump, Jr. backstage at the Jan. 6 Ellipse rally as they awaited the elder Trump’s speech.

As some praise Herschmann for his testimony today, it’s worth remembering that like many other Trump aides, Herschmann not only failed to speak out publicly before Jan. 6 but also before these hearings commenced.

Day 3 of the Jan. 6 hearings ended with committee chair Bennie Thompson appealing to witnesses who "might be on the fence" to come forward and share their information with the House.

Thompson noted that the committee has a website — https://january6th.house.gov/ — where members of the public can review evidence. And the site also includes a dedicated tip line for anyone who may be newly inspired to reveal further tidbits. Color me intrigued.

Today, we listened to almost two hours of testimony during Day 3 of the Jan. 6 committee. As the hearing comes to a close, it seems increasingly clear that Trump knew what he was doing was unconstitutional. But for Pence deciding — either because of moral conviction or political expediency — that he would uphold his constitutional duty and certify the election results, our system of government could have collapsed. 

Our constitutional republic assumes that people will lie. It assumes people will behave badly. But it also assumes there will be safety valves. Some may not have realized until today how fragile those safety valves really are.

Trump’s notorious “grab ‘em by the p—--” Access Hollywood tape of 2016, in which he brags about being able to sexually assault women, remains a lowlight of American presidential history. According to the Jan. 6 committee, Trump employed the derogatory term once again during a tense call with Pence before the riot on Jan. 6, 2021.

The committee showed a video of Ivanka Trump telling congressional investigators that she remembered hearing the call in which the president tried to bully Pence into overturning the election.

“It was a different tone that I had heard him take with the vice president before,” the first daughter said during a recorded deposition.

 One of Trump’s personal assistants recalled hearing the president call Pence a “wimp” during that call. But an aide to Ivanka Trump said the president’s daughter heard him use the “p-word” to describe Pence.

Hours later, rioters erected a gallows outside the Capitol and chanted “hang Mike Pence.”

After the attack on the Capitol, Eastman still tried one last time to get Pence to follow along with his scheme. In an email to Pence lawyer Gregory Jacob that the committee displayed, Eastman wrote that the Electoral Count Act had already been violated that day: The debate over Arizona’s votes had exceeded two hours (thanks to the attack on the Capitol) and the majority and minority leaders’ speeches not counting against it.

“Now that we’ve established that the Electoral Count Act isn’t as sacrosanct as you’ve made it out to be,” Eastman wrote, can Pence please finally accede to one more “relatively minor” violation of the act and send the votes back to the states? 

Jacob said that he only showed Pence the email a day or two later. Pence — ever the Midwesterner — told his lawyer that it was “rubber room stuff.” Translation: That was absolutely insane of Eastman to write. And he was right!

Making the argument “in for a penny, in for a pound” to justify taking an action that you know is illegal after a violent mob had tried to kill the person who would be taking that action is really a bonkers move.

A lot of focus has been placed on what I’m going to call Eastman’s “Plan A” — namely, tossing out Electoral College votes unilaterally. But there was also a “Plan B,” which involved Pence suspending the joint session of Congress, according to a memo Eastman wrote, and “determining that the time restrictions in the Electoral County Act are contrary to his authority under the 12th Amendment and therefore void.”

“Taking the cue, state legislatures convene, order a comprehensive audit/investigation of the election returns in their states, and then determine whether the slate of electors initially certified is valid, or whether the alternative slate of electors should be certified by the legislature,” Eastman posits. Pence’s former lawyer Greg Jacob told the committee earlier today that Eastman believed this plan would also block Joe Biden’s win.

But it’s worth noting a similarity between Eastman’s plan and a proposal that Sen. Ted Cruz, R-Texas, offered up ahead of Jan. 6. Cruz suggested that instead of certifying the Electoral College votes, “Congress should immediately appoint an Electoral Commission, with full investigatory and fact-finding authority, to conduct an emergency 10-day audit of the election returns in the disputed states. Once completed, individual states would evaluate the Commission’s findings and could convene a special legislative session to certify a change in their vote, if needed.” 

Cruz’s plan could potentially lead to the same outcome as Eastman’s plan, if GOP-led state legislatures came together and decided to overturn the voters and appoint a new slate of electors to vote for Trump. The justification for both was Trump’s election fraud lies. But under Cruz’s plan, Congress would vote for this outcome instead of Pence doing it by himself.

I’m not saying that Cruz was in cahoots with Eastman. But I am saying that, like Eastman, Cruz is a lawyer who should have known how outrageous his proposal was.

For weeks, there have been questions as to whether these hearings will lead to criminal charges. A letter the Justice Department sent to the Jan. 6 committee on Wednesday could give us a clue.

In its letter, the DOJ requested the committee send over all of its witness interview transcripts, which it says are needed for ongoing investigations. 

“It is now readily apparent that the interviews the Select Committee conducted are not just potentially relevant to our overall criminal investigations, but are likely relevant to specific prosecutions that have already commenced,” according to the letter.

It continued: “The Select Committee’s failure to grant the Department access to these transcripts complicates the Department’s ability to investigate and prosecute those who engage in criminal conduct in relation to the January 6 attack on the Capitol.”

On Day 1 of the Jan. 6 hearings, Cheney promised, “You will also see evidence that John Eastman did not actually believe the legal position he was taking. In fact, a month before the 2020 election, Eastman took exactly the opposite view on the same legal issues.” The idea that Eastman, whose later communications reveal him to be a fervent, persistent true believer, had ever argued that Pence lacked authority to overturn the election was stunning. But where was the evidence for this claim? No one seemed to know.

Today, the committee showed its hand — or at least part of it, by revealing a slice of a draft letter to Trump in which Eastman inserted comments on Oct. 11, 2020. In response to text asserting that “the President of the Senate decides authoritatively what ‘certificates’ from the states to ‘open’ and what electoral votes are ‘counted,’ under the 12th Amendment and the Electoral Count Act, Eastman wrote, “I don’t agree with this. The 12th Amendment only says that the President of the Senate opens 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” — aka the Vice President — gets to make the determination on his own. Section 15 [referring to the Electoral Count Act] doesn’t either.”

Litigators electronically “mark up” briefs, letters, and other draft filings all the time. But I cannot recall any markup as potentially consequential as this one. After all, if the Justice Department is considering criminal charges against Eastman, who apparently was functioning as an unpaid attorney to the Trump campaign, it will have to show he knew his advice was unlawful. Having seen the October 2020 draft letter, however, Eric Herschmann’s off-color suggestion that Eastman should “get a great f------- criminal defense lawyer” seems downright prescient.

We’ve heard Thomas Jefferson’s name thrown around a lot today as a justification for Pence tossing out ballots. Same with the idea that there’s “historical precedent” for the vice president deciding between competing slates of electors. But both arguments are an abuse of history.

The Jefferson example is based around the idea that when presiding over the Electoral College count in the Senate in 1800, when he was vice president and a candidate for president himself, Jefferson tossed out ballots and declared himself the winner. I looked into this last year based on a memo from John McEntee, then-head of the Trump White House presidential personnel office, that used this claim as its basis — and it's total nonsense:

First of all, the mystery around the supposed discrepancies that McEntee described in his memo has long since been resolved. Law professors Bruce Ackerman and David Fontana investigated the possibility of a Jeffersonian scheme to snatch the presidency for himself and, looking at the Georgia electors’ ballot themselves, found no evidence of foul play. 

Second, unlike the scenarios that Trump’s lackeys dreamed up, there was no dispute over who’d won Georgia in 1800. All the reporting from the state indicated that they’d prevailed in the vote on Election Day. And Georgia’s congressional delegation, which included two Federalists, accepted the results, which it wouldn’t have done quietly, Ackerman and Fontana argued. 

The other example looks at the 1960 presidential election, when Richard Nixon was vice president and a candidate for president. Then, Nixon had initially won in Hawaii — but both Democratic and Republican electors had submitted signed certificates to Congress. Unlike in 2020, though, a recount of the ballots reversed the outcome: John F. Kennedy narrowly prevailed over Nixon. Nixon then counted the certified slate of Democratic votes that was submitted over the Republican slate.

Note that at no point did either Jefferson or Nixon actually try to toss out electoral votes and name themselves the winner.

To highlight Eastman’s hypocrisy, committee member Rep. Pete Aguilar asked Greg Jacob, the former Pence lawyer, about conversations he and others had in an attempt to dissuade Eastman from pushing for Pence to baselessly decertify the election results. Jacob said they told Eastman that he wouldn’t support Vice President Kamala Harris or former Vice President Al Gore meddling in elections the same way.  

Jacob said Eastman agreed. “But I think you should do it today,” Eastman said, according to Jacob. 

Truly shameless.

One of the biggest surprises for me in this hearing so far is that even Rudy “I know a guy in Ukraine” Giuliani didn’t believe that Pence could unilaterally overturn the election. Eric Herschmann, the former White House lawyer, said he had an “intellectual discussion” over the phone with Giuliani about Eastman’s theories on the morning of Jan. 6.

“When we finished, he said, ‘Look, I believe that you’re probably right,’” Herschmann told congressional investigators during his deposition. But, as the committee then showed, Giuliani still went in front of the crowd gathered at the Ellipse and praised Eastman’s cockamamie plan to have Pence toss out electoral college votes. I know, big shock that Rudy would say something he doesn’t mean, but this is still stunning levels of hypocrisy.

Eastman’s theory of the case — a convoluted series of machinations that would circumvent the vote in a variety of states and deliver the presidency to Trump — was “crazy.” At least, that’s how Trump senior advisor Jason Miller has previously described the reaction to the plot. But there’s a fine line between crazy and diabolical. According to White House lawyer Eric Herschmann, Eastman’s conduct leaned toward the latter.

“You’re going to cause riots in the streets,” Herschmann recalled saying to Eastman directly, before paraphrasing Eastman’s response, which was “something to the effect of, ‘there’s been violence in the history of our country.’”

Here, the prospect of mob violence arising from Eastman’s preferred course of action was raised and summarily dismissed, not because it was unlikely but because such an outcome may have been desirable. 

It seems to have been John Eastman’s intention to break things; first, the norms that have provided for the peaceful transfer of power from one political faction to another and, second, property and lives. This reckless disregard for American safety and U.S. law is, at the very least, unconscionable. And it could very well be criminal.

The vice president, acting under his authority as the president of the Senate, has NO power to be the sole decision maker when it comes to picking the next president. 

Our system of government is based on distrust. And specifically, distrust of power being concentrated in the hands of one or a few. Our Founding Fathers created our system of representative government to be miles away from a monarchy. 

Power is dispersed on every level of government. We share power between the federal government and the state governments. And on both the federal and state level, we share power between the three branches of government — legislative, executive and judicial. 

A government created, in part, on the idea that absolute power corrupts absolutely, would never allow one person to pick the next leader of that government. 

Our Constitution does not allow one elected official, the vice president, to invalidate the votes of approximately 80 million people who voted for Biden.  

This is not a close call. Eastman and others may claim there are ambiguities in the language of our Constitution and federal statutes. Even if the language in the Constitution or federal laws were vague — which it is not — nothing in the structure or history of our nation’s governing document would allow one person to overturn an election.

Luttig testified that there was no historical or legal precedent for the path Eastman, his former clerk, encouraged Trump to take in his Jan. 2, 2021, memo, which claimed the vice president could unilaterally decide to discard the votes from the seven states for which “alternate” (or fake) slates of electors were submitted.

A disagreement between a federal judge and a law professor on a matter of constitutional interpretation is common. What is far less common is an interpretive dispute between a judge and his former law clerk. That’s because judges are not only often lifelong mentors to their clerks but also because clerks frequently share the legal worldviews of the judges for whom they clerk. Therefore, as expected, when Luttig was first called by his friend and Pence’s personal lawyer, Richard Cullen, on Jan. 4, 2021, his reaction to Eastman was quite positive: Eastman was a “brilliant” constitutional scholar, Luttig remembered.

But Luttig today has had to practically eviscerate Eastman’s own analysis in order to demonstrate that what Eastman encouraged Trump to do was illegal. 

“The incumbent vice president of the United States had little substantive constitutional authority, if at all” under the Twelfth Amendment, Luttig testified.

We’re going to keep hearing about the Electoral Count Act of 1887 during the Jan. 6 hearings this month. The act was slapped together after a train wreck of an election that eventually ended with Congress declaring Rutherford B. Hayes the winner. The act was meant to clarify the process, but it’s pretty well acknowledged at this point that the thing is full of exploitable loopholes. 

A bipartisan group in the Senate has been working to close those gaps and prevent a future crisis. Last week, NBC News reported that the group is close to a deal that would “restrain the vice president’s role, raising the congressional threshold for objecting to electoral votes, overhauling the transition process and protecting election officials from threats.”

That’s great news — but the fact that the Senate seems willing to act before the Jan. 6 committee finishes its work is interesting. The findings of the committee are meant to help shape any legislative fixes. Time is of the essence, clearly, but I hope the Senate group’s staffers are talking with the Jan. 6 committee’s staff during the process.

Cheney just did the watching public a great service by breaking down the fake electors scheme and showing how it forms the basis of the John Eastman memo. She specifically noted how Trump supporters in various states falsely tried to proclaim themselves their states’ electors. And she prompted former Judge Luttig to explain why these people had no legal standing whatsoever to be counted by Pence in place of the official state-certified electors.

“There was no support whatsoever in either the constitution of the United States nor the laws of the United States for the vice president — frankly ever — to count alternative electoral slates from the states that had not been officially certified by the designated state official in the electoral count act of 1847,” Luttig said.

Luttig further debunked Eastman’s claims that there was “both legal authority and historical precedent” to alternate electors.

A shorter version of Luttig’s testimony? Eastman is dead wrong. 

In his testimony, Luttig made a serious allegation about the events leading up to the Jan. 6 violence. Had Trump’s plan succeeded, he said, it “would have been tantamount to a revolution within a constitutional crisis in America.” It would have represented a violation of the “foundational truth” that the United States is governed by the rule of law, he added.

Indeed, Trump and his allies acted in an ad hoc manner in pursuit of their objective — keeping Trump in power — which is entirely revolutionary. But that behavior also contradicts the committee’s effort to present to the public a contrived, muti-point plan to achieve that outcome.

As Chairman Thomson observed, Trump and his allies explored every avenue and, finding them closed, simply turned down another blind alley. As Eastman’s infamous memo attests, the conspirators invented a radically unconstitutional theory that rival slates of electors could be summoned into existence in “disputed” states, which the vice president would recognize and who would, subsequently, deliver the presidency to Trump.

This sequence of events is an indictment of Trump’s judgement, and a likely illegal subversion of the Constitution and U.S. law. But this doesn’t sound at all like a plan. It sounds like a harebrained scheme, one that evolved radically in response to the myriad obstacles it encountered along the way. If the committee’s goal is to establish a premeditated plot to overturn the election, this cabal’s improvisatory conduct suggests otherwise.

The deposition clips that the committee showed us from Marc Short, Pence’s former chief of staff, and Greg Jacob, Pence’s former counsel, are not surprising to journalists who have covered the Jan. 6 investigation extensively. Indeed, excerpts of both depositions were filed publicly in the court battle between the committee and John Eastman, the law professor who (incorrectly) advised Trump that Pence did have the authority to overturn the election under the Twelfth Amendment.

This excerpt from Short’s deposition was eye-popping to me the first time I read it. And it was just aired by the committee as proof that Trump not only knew he had lost the election, but had been repeatedly advised his plan for overturning the election in Congress was both unconstitutional and illegal. 

Essentially, Short was asked if it was his impression that Pence had directly conveyed his objections to Trump. To which Short replied, Pence had conveyed his position “many times.”  

Chairman Thompson raises something interesting as the questioning of witnesses begins. There were a lot of avenues that Trump went down after the 2020 election to try to stay in office. He filed lawsuits, he leaned on the Department of Justice, and he pressured state legislatures — the latter two of which we’ll hear more about in later hearings.

By the time we got to Jan. 6, Pence was the last-ditch effort for Trump to remain in power, given that the GOP members of Congress who were on board with Trump’s scheming didn’t have the votes to reject enough electoral votes on their own during the joint session that day. And we know that Trump doesn’t like being backed into a corner.

It is not a coincidence that the committee is using the words “illegal” and “unconstitutional.” This is not just a political hearing. This is a preview of legal arguments that could be made by federal prosecutors in a court of law. 

The committee’s focus today is on the illegal pressure campaign that Trump engaged in to try to get Pence to overturn the election. The hearing is designed to show that Trump knew Pence did not constitutionally have the power to overturn the election and that Trump went forward with the plan anyway. 

This gives rise to not just immoral behavior, but illegal behavior. Trump’s state of mind is key to some of the potential legal charges here. Prosecutors must, in some cases, show Trump had a corrupt intent.

Pence’s former counsel, Greg Jacob, intends to open his testimony before the Jan. 6 committee on Thursday with a warning to the country, albeit a veiled one.

“The vice president’s first instinct was that the Framers of our Constitution, who abhorred concentrated power, would never have entrusted any one person with the unilateral authority to alter the outcome of a presidential election,” Jacob will say of the vice president’s role in certifying electoral votes, “particularly not a person who is on the ticket.”

Jacob intends to relate to congressional investigators a story in which Pence was asked by a student “to name the person who told him that he was required to certify the 2020 election,” to which the vice president replied, “James Madison.” Repeatedly, Jacob cited Pence’s understanding of the Founders’ vision for a republic defined by laws, stressing his fidelity both to the Constitution and the “first principles” of self-governance. Therein lies Jacob’s warning.

Americans’ basic civic literacy has been on the decline for decades. A 2016 poll of American adults found that only 1 in 4 Americans could name the three branches of the federal government. A 2019 national survey conducted by the American Council of Trustees and Alumni found that less than half of college graduates knew the length of the terms served by U.S. representatives and senators, and less than 1 in 5 degree-holders could accurately describe the 13th Amendment. The percentage of Americans who read for themselves the Federalist Papers from which Jacob quoted is likely infinitesimal.

“We should not feign surprise when our citizens treat the law and the Constitution with the same level of respect that our leaders do,” Jacob will conclude. That’s a wise admonition, but what if it’s the other way around? What if we get the leaders we deserve, because we have only the most tenuous grasp of the “first principles” the Founding generation so regularly articulated?

Pence had privately turned down Trump’s final entreaties to reverse the election’s results when the president addressed his followers on Jan. 6. And that snub was at the front of Trump’s mind as this video from "The Medhi Hasan Show" makes clear.

Just after the last time Trump mentioned Pence’s name, Pence released a statement publicly rejecting the idea that he could unilaterally throw the results for Trump. Small wonder that Pence was such a major focus of the mob that ransacked the Capitol less than an hour later.

It’s clear by now that Virginia “Ginni” Thomas, the GOP activist married to Supreme Court Justice Clarence Thomas, was backing some of the wildest ideas about how to keep Trump in office. The Jan. 6 committee had been hesitant to reach out to someone who is so deeply connected to both the GOP establishment and the far-right fringe. But the fact that Thomas was in communication with John Eastman seems to have tipped the scales, according to The Washington Post. 

That’s bad news given Eastman’s views about the states being able to ignore the voters, which Thomas then echoed in emails to Arizona state lawmakers. But Eastman, according to The New York Times, also claimed in an email after Election Day in 2020 that “there is a heated fight underway” among the Supreme Court’s justices over whether to hear arguments from the Trump campaign about overturning the election results in key states. Which begs the question: How on earth would he know that?

The committee would like to find out. Chairman Benny Thompson, D-Miss., and vice chair Liz Cheney, R-Wyo., both told reporters today that they want to talk to Ginni Thomas. For now, that’s being framed as an “invitation” to speak to the committee, but it’s hard to see how she accepts. This moment has been a long time coming — but the idea that a Supreme Court justice’s wife faces a possible subpoena should she decline is something that’s hard to wrap one’s head around.

Pence’s lawyer says that the vice president never wavered during Trump’s pressure campaign. But that’s not what previous reporting has said. Instead, according to Bob Woodward and Robert Costa’s 2021 book “Peril,” Pence had to call up another former VP from Indiana for guidance: Dan Quayle.

In their Dec. 2020 phone call, Pence reportedly asked Quayle whether there was any wiggle room to give Trump what he wanted while counting electoral votes in January. Here’s how that moment went, per a Washington Post article based on the book’s reporting:

Quayle was adamant, according to the authors. “Mike, you have no flexibility on this. None. Zero. Forget it. Put it away,” he said.

But Pence pressed him, the authors write, asking if there were any grounds to pause the certification because of ongoing legal challenges. Quayle was unmoved, and Pence ultimately agreed, according to the book.

I mean, I get that Pence did the right thing in the end, but that sounds a lot like wavering to me!

Trump lost the 2020 election. Full stop. Congress, federal judges, state election officials and more have confirmed this many times. The Jan. 6 committee's public hearings have reaffirmed that fact through testimony from election experts and even former Trump aides.

But don't expect Trump sycophants to accept that even after these hearings.

As Steve Benen wrote for MaddowBlog this morning:

Are election deniers really prepared to make the case that Trump’s political operation was filled with nefarious RINOs who were secretly in on a mysterious conspiracy against their boss? The answer is, yes, they probably are.

Read Steve’s full story below.

The Jan. 6 committee hearings are aimed at two audiences: the voting public and federal prosecutors. The hearings are designed to show the first group, members of the electorate, that people who seek to undermine our government are not fit to represent it.

They are also designed to show the second group, Department of Justice officials, that Trump and others engaged in a federal criminal activity. This requires demonstrating something different from immoral or even reprehensible conduct. It requires pointing to a provision of the federal criminal code and having enough evidence to demonstrate proof beyond a reasonable doubt.

Federal prosecutors will be focused on potential crimes involving the obstruction of an official proceeding, conspiracy to defraud the government, and fraud.

Two witnesses are slated to provide live testimony during today's hearing: former Pence lawyer Greg Jacob and former federal judge Michael Luttig.

Luttig, who provided the legal guidance to Pence's team pushing back on Trump's efforts to overturn the election, called the events of Jan. 6 a “war on democracy” in a 12-page opening statement obtained by CNN.

As House lawmakers make their case against Trump, the Justice Department is dealing with its own investigation into the Jan. 6 attack. Attorney General Merrick Garland said Monday that he's watching "all the hearings" to see what evidence Congress as uncovered.

“I am watching, and I will be watching all the hearings, although I may not be able to watch all of it live,” Garland said during a news conference. “And I can assure you that the Jan. 6 prosecutors are watching all the hearings.”

Trump is facing legal battles from all sides — in federal and congressional investigations as well as mounting civil lawsuits. And though the beleaguered former president is still beloved in far-right circles, a recent straw poll shows his popularity may be slipping among some conservatives.

Trump's efforts to pressure Pence not to certify the 2020 election results will take center stage during today's hearings. Sure, Pence refused to follow along with Trump's anti-democratic scheme on Jan. 6 — but let's not give him too much credit where it's not due.

Pence was fine with the idea of disenfranchising voters in the Trump campaign’s failed court challenges to mail-in ballots. And he was complicit in Trump laying the groundwork for the "big lie." Only when he was faced with a task that fell outside of the rules that he had accepted as valid — and would result in personal consequences if broken — did Pence refuse Trump.

Read Hayes' full story below.

The Jan. 6 committee released a video Tuesday teeing up today's hearing and it was not a good look for John Eastman, the Trump lawyer who outlined a road map for Pence to overturn the 2020 election.

“Get a great effing criminal defense lawyer. You’re gonna need it," former Trump White House lawyer Eric Herschmann said he told Eastman the day after the Capitol riot, in a clip of his recorded deposition to the committee.

The statement appears to be one more piece of evidence the committee could use to make a criminal referral of Trump to the Justice Department. Committee members, however, are reportedly split on whether to do so.