(The Hill) — The House committee investigating last year’s attack on the U.S. Capitol staged its third public hearing on Thursday, advancing its case that former President Donald Trump had tapped the powers of the White House to orchestrate an attempted coup.
The effort was unsuccessful, in the panel’s telling, only because Trump’s weeks-long campaign to recruit other White House figures failed to convince his own vice president, Mike Pence, to get on board. Pence, ignoring Trump’s entreaties, had refused to reject the state electoral votes that formalized Trump’s defeat — a defiance that saved the country from “a revolution within a constitutional crisis,” according to a conservative judge who testified Thursday.
To make their case, the select committee leaned heavily on Pence’s own words — “Trump is wrong; I had no right to overturn the election,” he said in February — and the in-person testimony of two former Pence advisors: Former federal judge J. Michael Luttig, and Greg Jacob, Pence’s former top lawyer.
Here are five takeaways from Thursday’s public hearing.
Lionizing Mike Pence
The ultra-conservative Pence is no darling of Democrats on Capitol Hill, where Pence was a member of the House for a dozen years before jumping to state politics and then the White House.
But the select committee on Thursday portrayed Pence as a heroic figure: a vice president brave enough to buck his party’s own standard bearer and put his responsibility to the country above his loyalty to Trump.
“Thanks in part to Mike Pence, our democracy withstood Donald Trump’s scheme and the violence of January 6th,” said Rep. Bennie Thompson (D-Miss.), the chairman of the panel.
It’s an unusual alliance, and one with risks for both Pence and the Democrats hailing his heroics.
It’s no mystery that Pence has designs on a White House run in 2024, and boosting his reputation as the country’s savior could hurt Democrats in the presidential contest.
But Pence’s prominence in the Jan. 6, 2021 investigation could also damage his own standing in the GOP, where Trump remains the single most popular figure nationwide, and the decision to cross the former president can spell the end of a political career.
In the near-term, however, committee members of both parties are only happy to have his help — even indirectly — in making their case against Trump.
“Vice President Pence understood that his oath of office was more important than his loyalty to Donald Trump,” said Rep. Liz Cheney (R-Wyo.), vice chairman of the committee.
“Vice President Pence did the right thing that day,” echoed Rep. Peter Aguilar (D-Calif.). “He stayed true to his oath to protect and defend the Constitution.”
No legal basis for Trump scheme
While Pence was praised for his valor, the committee painted Trump campaign attorney John Eastman as a villain.
Eastman suggested two different tracks for Trump to unwind the election – both revolving around Pence bucking his ceremonial duties to certify the election results.
The committee dedicated significant energy into showing just how widely rejected those theories were.
“There is almost no idea more un-American than the notion that any one person would choose the American president,” Greg Jacob, who was Pence’s top lawyer in the White House, told the committee.
“There was no way our framers, who abhor concentrated power, who had broken away from the tyranny of George III, would ever have put one person, particularly not a person who has a direct interest in the outcome because they were on the ticket of the election, to have a role, to have decisive impact on the outcome,” he said.
J. Michael Luttig, a conservative legal icon and former Fourth Circuit Appeal Court judge who advised Pence leading up to Jan. 6, 2021, was also critical of Eastman, who once clerked for the judge.
“There was no basis in the constitution or laws of the United States at all for the theory espoused by Mr. Eastman at all. None,” Luttig said.
Even some on the campaign were wary of Eastman’s legal advice.
Jason Miller, a former senior adviser to the Trump campaign, told the committee in testimony aired Thursday that campaign lawyers Justin Clark and Matt Morgan thought Eastman “was crazy” and said as much to “anyone who would listen.”
Lawyers warned of violence in the streets
The danger of Eastman’s plan was as apparent as the illegality to the White House lawyers that had summarily rejected the concept.
“I said, ‘Are you out of your effing mind, right?’ And I was pretty blunt. I said, ‘You’re completely crazy.’ I said, ‘You’re going to turn around and tell 78-plus million people in this country that your theory is this is how you’re going to invalidate their votes, because you think the election was stolen?’” White House lawyer Eric Herschmann said.
“And I said they’re not going to tolerate that; I said you’re going to cause riots in the streets.”
Jacob also got into a heated exchange with Eastman, who did not believe the courts would see fit to weigh in on the political questions his legal advice would raise.
“I told him, If the courts did not step in there was no one else to resolve it,” he said. “That might well be resolved through violence in the streets.”
Luttig also saw the potential for danger.
“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 of Eastman’s plan.
Eastman knew theory was faulty
Jacob sought to get Eastman to drop the strategy by pointing to how he wouldn’t approve of former Vice President Al Gore having rejected the election results in 2000.
“You would not want Kamala Harris to be able to exercise that kind of authority in 2024 when I hope Republicans will win the election. And I know you hope that too, John,” Jacob said.
“And he said, ‘Absolutely. Al Gore did not have a basis to do it in 2000, Kamala Harris shouldn’t be able to do it in 2024, but I think you should do it today.’”
Even on Jan. 6, 2021, Eastman was pleading with Jacob to get Pence to reject the vote though “one more relatively minor violation.”
“So now that the precedent has been set that the Electoral Count Act is not quite so sacrosanct as was previously claimed, I implore you to consider one more relatively minor violation and adjourn for ten days to allow the legislatures to finish their investigations,” Eastman wrote in an email that day.
The committee also revealed that Eastman had at one point rejected much of his own legal arguments, displaying an October memo prepared for Trump that was redlined by the attorney.
“Nowhere does [the Constitution] suggest that the President of the Senate gets to make the determination on his own,” Eastman noted.
But perhaps the biggest revelation offered by the committee was that Eastman asked fellow campaign attorney Rudy Giuliani to “be on the pardon list if that is still in the works.”
Warnings – and plans – for the future
A key goal of the committee is demonstrating not just how close America came to losing its Democratic system that day, but to show voters that it could very well happen again.
That warning was delivered most emphatically by Luttig, who attacked Trump’s ongoing and baseless claims that there is and was widespread voter fraud.
“This false and reckless insistence that the former president won the 2020 presidential election has laid waste to Americans’ confidence in their national elections. More alarming still is that the former president pledges that his reelection will not be ‘stolen’ from him next time around, and his Republican Party allies and supporters obeisantly pledge the same,” Luttig wrote in his opening statement.
Before the committee he warned that future candidates may “succeed in 2024 where they failed in 2020. I don’t speak those words lightly.”
Thompson, the committee chairman, said those concerns could inform the legislation the committee will recommend following its hearings.
“We will be reviewing the views shared by Judge Luttig and other experts on potential improvements to the Electoral Count Act, among a range of other initiatives,” he said.