Attorney John Eastman told former President Donald Trump their plan to have the vice president unilaterally throw out electors from multiple states was illegal and would be shot down by the Supreme Court, witnesses testified Thursday during a hearing of the January 6th Committee.
Greg Jacob, who served as general counsel for former Vice President Mike Pence, testified in person Thursday. He said he had multiple conversations with Eastman – a former professor at the Chapman University School of Law who clerked for Supreme Court Justice Clarence Thomas – about two courses of action Eastman and Trump wanted Pence take on Jan. 6. In one, Pence would have thrown out certified electors from multiple states disputed by Trump and instead ratified slates of “alternate electors.” In the other, Pence would have adjourned the joint session of Congress for a 10-day recess to allow legislatures in the disputed states to “finish their work.” According to Jacob, after being pressed on the issue, Eastman acknowledged neither plan backed by historic or legal precedent and both violated multiple provisions of the Electoral Count Act.
Jacob testified that he believed Eastman’s plan would have created an unprecedented “constitutional jump ball” and could ultimately lead to violence in the streets once supporters found out it was unworkable.
“Well, there’s been violence before in the history of our country,” Eastman replied, according to Jacob.
Eastman’s work in promoting a six-step plan he’d written for Pence to overturn the results of the 2020 election – colloquially dubbed the “Eastman Memo” – was the central theme of Thursday’s testimony. In addition to Jacob, the committee heard from retired Judge Michael Luttig, who Pence turned to for legal advice leading up to Jan. 6 and for whom Eastman previously clerked.
Luttig wrote on Twitter on Jan. 5, 2021, that the vice president did not have the power Eastman claimed. In a more thorough refutation of Eastman’s theory written in September, Luttig wrote he believed his former clerk was “incorrect at every turn of the analysis” in the memo.
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Luttig, who served as an assistant attorney general before being appointed to the U.S. Court of Appeals for the Fourth Circuit by former President George H.W. Bush in 1991, said he thought Trump and his advisors had been “wound around the axle” by Eastman’s inaccurate claims of historical precedent. Those claims hung on actions taken by former presidents Thomas Jefferson and Richard Nixon while each was serving as vice president. Neither one, Luttig said, supported Eastman’s theories in any way.
“I would have laid my body across the road before I would have let the vice president overturn the 2020 election based on that historical precedent,” Luttig said.
Jacob said Eastman acknowledged all of that, eventually, in their conversations – admitting his theories would likely lose 9-0 at the Supreme Court and that both Jefferson and Nixon “did not at all support his position.”
“I concluded by saying, John, in light of everything we’ve discussed, can’t we both agree this is a terrible idea,” Jacob said. “He couldn’t quite bring himself to say that, but he said, yeah, I can see you can’t be persuaded to do this.”
Jacob said he left that meeting feeling like they’d beaten the plan – only to learn otherwise. Pence was called to Trump’s office for a private meeting. There, Jacob said, Pence reiterated his position that he didn’t have the power Trump wanted. But Trump didn’t accept it. A short time later, Trump released a statement saying he and Pence were “in total agreement” about his powers on Jan. 6. Trump Campaign senior adviser Jason Miller said in a video deposition, played during Thursday’s hearing, that Trump dictated that statement.
“Ultimately, it came out the way he wanted,” Miller said.
The “pressure campaign” to get Pence onboard escalated from there, according to Rep. Pete Aguilar (D-CA). That included Trump adding in references to Pence doing “the right thing” having the courage to “do what he needs to do” into his speech at the Ellipse on Jan. 6. It also included a “pretty heated” phone call on the morning of Jan. 6, overhead by multiple Trump and Pence staff – including Trump’s daughter, Ivanka – in which Trump called Pence a “wimp” and told him he didn’t have the courage to do what needed to be done.
“It was a different tone than I’d heard him take in a conversation with the vice president before,” Ivanka said in a video deposition.
Once the joint session of Congress had begun and things were already getting out of control at the Capitol, Trump’s staff believed he needed to tweet something to calm the situation down, according to a video deposition of former deputy White House press secretary Sarah Matthews. Instead, she said, communications looked down at a notification on their phones to see Trump had sent an inflammatory about Pence.
“The situation was already bad, and so it felt like he was pouring gasoline on the fire by tweeting that,” Matthews said.
Almost immediately after the tweet was sent, according to videos shown by the committee, Trump supporters at the Capitol began parroting its language – some even reading it verbatim through bullhorns – and becoming much more hostile to Pence. Eventually, members of the mob would walk through the halls of the Capitol chanting, “Hang Mike Pence!” while others built a gallows outside.
Eastman, along with fellow Trump lawyer Rudy Giuliani, also spoke on Jan. 6. He promoted a number of debunked claims about the election – dead people voting, machines changing votes – and demanded Pence “let the legislatures of the states look into this.”
The next day, according to former White House counsel Erich Herschmann, Eastman called to discuss a legal challenge in Georgia. Herschmann said in a video deposition he told Eastman to “get a great f’ing criminal defense lawyer” and hung up on him.
In an email to Rudy Giuliani on Jan. 11, 2021, Eastman suggested Trump should include him in his list of pardons on his way out of office.
“Third, I’ve decided that I should be on the pardon list, if that is still in the works,” Eastman wrote in the email. “Will taint me, but given the outright lies and false witness being spewed, having that protection is probably the prudent course.”
Eastman ended the email by noting he was drafting an invoice for his services.
The January 6th Committee was scheduled to meet next on Tuesday at 1 p.m. The focus of that hearing was expected to be Trump’s alleged efforts to encourage multiple states to send slates of “alternate electors” to D.C. on Jan. 6.
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