By Todd Lassa
Attorney John Eastman (at left, in photo above), purveyor of the debunked theory then-Vice President Mike Pence had the power to reject, or at least delay, certification of Electoral College ballots on January 6, after the coup attempt sought a presidential pardon from Donald J. Trump through his then-personal attorney, Rudy Giuliani. Trump did not grant one to Eastman, who after all was no longer useful to him.
As late as 11:44 p.m. Eastern time January 6, 2021, after the vice president had survived four hours in a secured room with rioters just 40 feet away outside, Eastman emailed the vice president’s counsel, Greg Jacob, arguing now that “precedent has been set … I implore you to consider one more minor violation” and suspend the vote count by 10 days in order for five to seven of the states to reconsider their electors. Pence by now already was proceeding with the count.
The vice president earlier in the day had declined a Secret Service plan to drive himself and his staff out of the Capitol grounds to safety, despite the chants of “hang Mike Pence.” Member of the House Select Committee investigating the January 6 insurrection, Rep. Pete Aguilar (D-CA) referred to testimony from an informant of the extremist group that the “Proud Boys would have killed Mike Pence given a chance” and House Speaker Nancy Pelosi (D-CA) along with him.
Let’s start at the beginning of the 1/6 panel’s third public hearing, Thursday afternoon. Jacob testified that the first time he spoke with Pence about the 12th Amendment governing the Electoral College was “around December 7” 2020. In that conversation, Pence recalled that one of his first memories as a Congress member was in 2001, when Vice President Al Gore rejected calls from fellow Democrats to challenge the Electoral College vote to certify George W. Bush as winner – over himself -- of the 2000 election.
“We concluded that what you have is a sentence in the Constitution that is inartfully drafted,” Jacob told the panel, referring to the basis for Eastman’s scheme.
But the panel’s other in-person witness, retired federal judge Michael Luttig told the House Select committee that had Pence obeyed Trump’s order to reject or stop the electoral vote it "would have plunged America into what I believe would have been tantamount to a revolution … which in my view would have been the first Constitutional crisis since the founding of the republic.”
Eastman had drafted a letter to President Trump before the election in October that Trump could use wording in the 12thAmendment to overturn the results, but on January 5, in a meeting with Jacob, Eastman agreed that such an attempt would be overturned, 9-0 by the Supreme Court.
On the following January 4, Trump, Eastman, Pence, Jacob and the vice president’s chief of staff, Marc Short, met in the Oval Office where Eastman outlined two paths he saw to overturning the November election:
•Reject the electoral votes outright, or ...
•Suspend the January 6 electoral vote count for 10 days during which five to seven state legislatures re-examine their election results.
“The vice president never budged in his initial position” that he did not have any such authority, Jacob said.
But the next day, Eastman took a meeting with Jacob “to request that you reject the electors in the disputed states.” Eastman was pushing the second scenario, the 10-day delay, Jacob said.
Trump began his pressure campaign on Pence with an early morning January 6 tweet; “Come through for us and send it back to the states,” and another at 8:17 a.m. that the vice president “could send it back to the states and we win…” Early drafts of Trump’s speech at his Elipse rally that morning made no mention of Pence, Aguilar said, but before the crowd that was about to head to the Capitol he reiterated his demand Pence reject the electoral count.
A 2:24 p.m. Trump tweeted: “Mike Pence didn’t have the courage to do what needed to be done to preserve our Country (sic)or Constitution.”
“Immediately after” that tweet, Aguilar said, “crowds outside and inside the Capitol surged.” At 4:19 p.m., with rioters within 40 feet of the office where Pence was being protected, Trump asked the rioters in a tweet to leave the Capitol.
Today’s Twitterverse is split between admiration for Pence and criticism that he has not appeared before the 1/6 panel in person.
At the conclusion of Thursday’s hearing, Luttig, the highly regarded conservative retired judge again warned that “if the former president or his anointed successor” were to lose the 2024 election, “they would attempt to overturn that 2024 election in the same way they attempted to overturn the 2020 election but would succeed. I don’t speak these words lightly.”
Aguilar concluded saying that Trump put party “ahead of the country.”
But the ranking Republican on the 1/6 panel, Liz Cheney of Wyoming more accurately identified Trump’s priorities: “An honorable man, a man who loved his country more than himself, would have conceded.”
(FRI 6/17/22)