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.”