Donald Trump’s narrative about a “stolen” 2020 election and the efforts from many in his inner circle to repeatedly challenge those claims dominated much of the first two hearings stemming from the investigation into the Jan. 6 Capitol attack and the push to undermine the results.
But at Thursday’s hearing, it was all about Mike Pence: the debunked theory that a vice president could unilaterally alter the outcome of an election, the “relentless” pressure campaign from within the White House to not certify the electoral votes and the “tremendous” danger he faced on Jan. 6 when he evacuated the Senate chamber and came within 40 feet of rioters.
The third hearing in a month-long series from the House select committee painted a vivid picture of Pence’s world in the month leading up to congressional certification of President Joe Biden’s victory and what unfolded for the former vice president and his family as they sought shelter in an undisclosed underground location in the Capitol complex.
The committee used live testimony and taped interviews to dismantle the legal theory pushed by conservative lawyer John Eastman that a vice president can alter an election outcome. Such testimony from people in Trump and Pence’s orbits gave rare insight into what happened inside the White House, the deteriorated relationship between the two and disputes over how Pence should handle his largely ceremonial role during Congress’ joint session on Jan. 6.
“President Trump was told repeatedly that Mike Pence lacked the constitutional and legal authority to do what President Trump was demanding he do,” Vice Chairwoman Liz Cheney of Wyoming, one of two Republicans on the panel, said in opening remarks.
Pence’s former counsel Greg Jacob delivered some of the most damning testimony on Thursday afternoon. He gave thorough accounts of his meetings and conversations with Pence and Eastman and why he believes it was “common sense” that a vice president couldn’t unilaterally interfere in an election – something he said was Pence’s “first instinct.”
Jacob said he first spoke to the then-vice president about the Electoral Count Act of 1887 and his role in overseeing the certification of the presidential election results in December 2020, a month before the attack. Jacob said his team reviewed the legal theories presented about “unilateral authority to alter the outcome,” concluding they were “inconsistent” with the Constitution.
“Our review of text, history and, frankly, just common sense all confirmed there is no justifiable basis to conclude that the vice president has that kind of authority,” Jacob said Thursday.
Michael Luttig, a retired federal appeals court judge who had also advised Pence, gave a similar account as the one portrayed by the select committee over the past week: Trump and his allies knew he lost the election but still carried out a false narrative about the results and efforts to overturn it. And he sharply disputed Eastman’s claim that there was precedent for what Trump and his allies wanted Pence to do on Jan. 6.
“Had the vice president of the United States obeyed the president of the United States, America would immediately have been plunged into what would have been tantamount to a revolution within a paralyzing constitutional crisis,” Luttig said.
“There was no historical precedent from the beginning of the founding in 1789 that, even as mere historical precedent, … would support the possibility of the vice president ‘counting alternative electoral slates’” not certified by Congress, Luttig said in response to a question.
The Trump-backed pressure campaign went even further than the discredited and obscure legal theories.
Jacob described two lawsuit attempts against Pence that he said were “successfully resisted” with the help from the Justice Department that “sought to compel him to exercise imagined extraconstitutional authority” about the Electoral College count.
But Jacob recalled Eastman sending mixed messaging on the matter, saying that Eastman flipped on his position for Pence to reject the electors in states that Trump’s team disputed. Jacob recalled Eastman not recommending the vice president do so in a meeting on Jan. 4. Less than 24 hours later, Eastman “expressly requested” it on Jan. 5.
“I was surprised because I had viewed it as sort of one of the key concessions we secured the night before,” Jacob told the committee about the change from Eastman at the Jan. 5 meeting.
Pence and Trump’s team had contact a few more times on Jan. 5. Trump held a one-on-one meeting with Pence in the Oval Office where no other aides attended. By early evening on Jan. 5, Jacobs confirmed a call between Pence and his team with Trump and Eastman, where he again suggested suspending the joint session of Congress on Jan. 6 and requesting that “state legislatures reexamine certification of the electoral votes.”
But the committee didn’t just focus on the timeline and logistics leading up to Jan. 6. Lawmakers drew on footage to emphasize the danger to Pence, which included violent threats to “hang” him. They also presented unreleased photos from the National Archives that showed Pence and his family sheltering from the mobs and viewing a tweet from Trump later in the day seeking to call off the riots.
Rep. Pete Aguilar of California, who’s also a member of Democratic leadership, said that Trump was aware of the threat at the Capitol when he tweeted around 2:24 p.m. that Pence didn’t have the “courage” to stop the counting of electoral votes. Aguilar pointed to testimony that former White House chief of staff Mark Meadows was notified about violence at the Capitol around 2 p.m.
One of the most notable parts of the hearing was a montage of taped interviews from White House aides describing a “heated” call between Trump and Pence the morning of Jan. 6. Some recalled Trump called his second-in-command a “wimp.” Julie Radford, chief of staff to Ivanka Trump, testified that her boss told her that Trump called Pence “the p-word.”
By the end of that day, any remaining parts of their relationship appeared to be nonexistent. Trump didn’t call Pence to see how he was doing after the evacuation from the Senate floor, Jacob testified.
Aguilar teased more revelations at future hearings related to Pence, including insight about drafts of Trump’s Jan. 6 rally speech that originally had no mention of Pence. The congressman said Trump made revisions and also “ad libbed” criticisms about his vice president.
The select committee has at least two more scheduled hearings for next Tuesday and Thursday.