In the days before Jan. 6, 2021, President Donald Trump pressured Vice President Mike Pence to reject Joe Biden electors or delay certification and send them back to states. But those options were rejected by White House legal advisers — and even the man who pushed the faulty legal theory, John Eastman, who asked for a pardon after the Capitol attack.
The Jan. 6 select committee on Thursday showed that top Trump and Pence advisers agreed that Pence lacked the constitutional authority, as president of the Senate and while presiding over both chambers counting states’ Electoral College votes, to unilaterally determine who would be the next president.
“The answer cannot possibly be that the vice president has that authority” to reject electors or send them back to the state legislatures, Greg Jacob, Pence’s counsel, told the select committee, citing a combination of text, structure and history.
The idea that Pence could have a say on the electoral votes was one that Pat Cipollone, the White House counsel, thought was “nutty,” according to informal Trump adviser Jason Miller. Eric Herschmann, a White House lawyer, said “it made no sense” to him that the power to choose the next president would be in the hands of the vice president.
Pence’s team told Trump “many times” and was “very consistent” in communicating that he could not refuse to count the electoral votes, Marc Short, Pence’s former chief of staff, told the panel.
“President Trump plotted with a lawyer named John Eastman,” panel Vice Chair Liz Cheney, R-Wyo., said at the top of the session. She added that the then-president knew it likely was illegal to pressure his vice president to reject states’ Electoral College votes during lawmakers’ mandatory count.
“He did his duty,” Cheney said of Pence, who, after the riot, ensured Congress finished its count. “President Trump unequivocally did not.”
In fact, Pence never bought Trump’s argument that a sitting vice president has the power to reject one or more states’ Electoral College votes even after state legislatures had certified them, his senior staffers told the select committee.
After hearing Trump push the Eastman proposal the very first time, “the vice president’s instinct … was there was no way that our framers … would have ever put one person … who was on the ticket in the election … in a role to have decisive impact on the election,” Jacob said.
“We concluded that what you have is a sentence in the Constitution that is inartfully drafted,” Jacob said of a legal review Pence’s staff conducted before Jan. 6 about a vice president’s role and power during a congressional electoral count.
Pence’s legal team combed through “texts, history and, frankly, just plain common sense,” Jacob said. That analysis, he added, “just confirmed the vice president’s first instinct on that: There is no justifiable basis to conclude the vice president has that kind of authority.”
Not even Eastman, according to Jacob and other then-White House officials, believed the legal theory he was pushing.
“I believe he did on the 4th,” Jacob told the panel Thursday when asked if his proposal violated the Electoral Count Act of 1887.
Despite this, Eastman, a former law professor at Chapman University, continued pushing his legal theory that Pence had the ability to interfere in the electoral vote count. The options presented by Eastman were to reject the electoral votes outright or suspend proceedings and declare a 10-day recess and issue a demand for up to seven states to reexamine their Electoral College votes.
Eastman, on Jan. 4, 2021, recommended that the preferred course of action would be to suspend the joint session and send the votes back to the states, not simply to reject them, arguing this approach was more politically palatable, Jacob said.
But Pence “never budged” on his position that he alone could not decide who the president would be, Jacob said.
On Jan. 5, 2021, Eastman changed his recommendation and said he wanted Pence to choose to reject electors rather than send them back to the states. “I’m here to request that you reject the electors in the disputed states,” Jacob said, recounted a meeting in Short’s office in the Eisenhower Executive Office Building.
Eastman allegedly acknowledged to Jacob that his legal argument would be struck down had Pence followed through and the matter reached the Supreme Court. Jacob contended he told Eastman he thought Eastman’s theory would lose 9-0 in the Supreme Court. Eventually, Eastman agreed — but kept pushing his proposal.
Meanwhile, Trump was increasingly putting pressure on Pence in the public sphere through Twitter and during public speeches. Short recounted to the committee in a video recording that he told the lead of Pence’s Secret Service detail on Jan. 5 that he was concerned Trump would “lash out” at his No. 2.
On Jan. 6, Pence and Trump spoke. The president pressed hard on Pence to follow his orders in a conversation that was “pretty heated,” according to Ivanka Trump, the president’s oldest daughter and then a White House aide. Ultimately, rioters stormed the Capitol and called for Pence to be hung.
“When Mike Pence made it clear that he wouldn’t give in to Donald Trump’s scheme, Donald Trump turned the mob on him,” select committee Chairman Bennie Thompson, D-Miss., said Thursday. A mob that was chanting ‘Hang Mike Pence,’ a mob that had built a hangman’s gallows just outside the Capitol.”
After Jan. 6, Eastman, remarkably, asked to be placed on Trump’s pardon list.
“Third, I’ve decided that I should be on the pardon list, if that is still in the works,” Eastman wrote to then-Trump lawyer Rudy Giuliani.
J. Michael Luttig, a retired federal judge and informal adviser to Pence, said at Thursday’s hearing had it not been for Pence’s action on Jan. 6, the country would have entered a constitutional crisis.
If Pence obeyed Trump’s orders, Luttig said, the move would have “plunged America into what I believe would have been tantamount to a revolution within a constitutional crisis for America, which, in my view, and I’m only one man, would have been the first constitutional crisis since the founding of the republic.”
John T. Bennett contributed to this report.