On Thursday, the Jan. 6 committee says it will unravel evidence it has collected on the swirling pressure campaign directed at former Vice President Mike Pence by former President Donald Trump and attorney John Eastman as a scheme to overturn the results of the 2020 election accelerated to an insurrection.
The committee previewed what’s to come, in part, with the release of colorful recorded testimony from former White House attorney Eric Herschmann.
In short and no uncertain terms, Herschmann summed up a response he had for Eastman during a phone call three days after the Capitol was sacked.
“I only want to hear two words coming out of your mouth from now on: orderly transition,” Herschmann recounted to investigators.
Then, he told Eastman to get himself a “great fucking criminal defense lawyer.”
That “orderly transition” nearly wasn’t.
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When the third hearing hosted by the select committee gets underway June 16 at 1 p.m. ET, the panel will present live witness testimony and air more videos from its wealth of depositions collected from Trump administration officials high and low.
The live witnesses will include Greg Jacob, Pence’s former counsel and J. Michael Luttig, a former judge who advised Pence on what he could or could not do legally when he presided over the counting of Electoral College votes on Jan. 6.
The session Thursday is expected to last at least two hours. Marc Short, Pence’s former chief of staff, was originally expected to testify in person. He will not appear; instead, investigators will share clips of his previously recorded testimony from earlier points in its investigation. Significantly, it was Short who reportedly warned a Secret Service agent one day before the insurrection that Pence could be in danger and that the reason might be Trump.
Leading questioning of the witnesses will be investigative counsel John Wood.
Panel member and Rep. Pete Aguilar will step up to deliver parts of the committee’s presentation as well. It will be similar to the way Rep. Zoe Lofgren spearheaded the second hearing.
Breaking up events around the pressure campaign and the alternate elector scheme—which go hand-in-hand—into chapters, the panel will present extensive evidence that it claims demonstrates how Trump persistently attacked the rule of law while escalating bogus claims of widespread voter fraud even as his senior-most advisers urged him to stop pushing for victory where there was none.
Pence, court records and public reporting has so far shown, was the linchpin holding together a plan to keep Trump in office.
Eastman presented this scheme to Trump two days before the mob stormed the Capitol.
Eastman Memo by Daily Kos
The strategy, in six steps, proposed having Pence throw out electors in seven battleground states. Eastman, the Federalist Society attorney, argued the Electoral Count Act—which he also said he believed was unconstitutional—permitted Pence to preside over the count during the joint session on Jan. 6. Eastman argued, incorrectly, that would leave Pence with total discretion over which slates of electors to accept or not.
That is overwhelmingly considered to be, by legal experts and attorneys throughout the nation, an incorrect interpretation of the Electoral Count Act. Notably, in October 2021, Eastman himself dubbed the strategy “crazy” once he was revealed as the author. He changed his mind a day later when he told the National Review there was “no question” that his plan was legally sound.
The strategy suggested that, once the first objection was lodged by lawmakers, that would trigger a process activating Pence. If Pence threw out the votes, Democrats would be up in arms, Eastman surmised in his memo.
This chaos would prompt Pence to say that a clear Electoral College winner had not been established and no candidate had reached the necessary 270 votes. This way, the election would then go to the House of Representatives, giving each state one vote. With Republicans controlling 26 state delegations—and Democrats controlling 22—all Trump would need to stop Biden from becoming president was a simple majority vote.
And if that didn’t work, due to a stalemate over the count, then that would be a benefit for Trump, Eastman wrote.
We talk to expert Brandi Buchman about everything you need to know for the Jan. 6 committee, hearings, and investigation on Daily Kos' The Brief podcast
It would “give the state legislatures more time to weigh in formally to support the alternate slate of electors if they had not already done so.”
“The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind,” the memo reads.
In truth, the Vice President was not the ultimate arbiter. But he held the keys to a victory Trump couldn’t win honestly, popularly, or through the Electoral College.
A federal judge reviewed correspondence between Eastman, Trump, and members of Trump’s legal and inner circles as Eastman has fought to keep records shielded from investigators who first subpoenaed him last year. Eastman was unable to evade a subpoena when it was sent to his employer, Chapman University and for the last several months, he has been handing over reams of emails and other documents to the committee.
A federal judge declared in a ruling this March that Eastman’s views on the Electoral Count Act were “not a good faith interpretation of the law.”
“They are a partisan distortion of the democratic process,” U.S. District Judge David Carter wrote. “his plan was not driven by preserving the Constitution but by winning the 2020 election.”
Carter emphasized that the scheme “was not confined to the ivory tower—it was a coup in search of a legal theory.” The plan, the judge wrote as he ordered Eastman to detail his work for the 45th president to investigators, “spurred violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers and deepened political distrust in our political process.”
“If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution,” Carter wrote. “If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”
Other court records have shown how Eastman and Pence’s counsel, Greg Jacob, traded emails frantically in the run up to Jan. 6 and importantly, how Eastman pushed to get the alternate electors recognized despite the hard deadline of Dec. 14 having long passed for any challenge to elector slates to be issued.
Jacob questioned the constitutionality of Eastman’s methods. Eastman resisted him, telling the vice president’s chief of staff he was “small minded.”
Once the riot started, Jacob fired off an email to Eastman. It is presented below in its entirety with emphasis added by this reporter for clarity.
(Note: The reference to former President Abraham Lincoln was made because Eastman drew a comparison earlier in the conversation suggesting Trump’s situation was akin to when Lincoln suspended the writ of habeas corpus during the Civil War.
This was first reported by The Washington Post.)
“John, very respectfully, I just don’t in the end believe that there is a single Justice on the United States Supreme Court, or a single judge on any of our Courts of Appeals, who is as “broad minded” as you when it comes to the irrelevance of statutes enacted by the United States Congress, and followed without exception for more than 130 years.
They cannot be set aside except when in direct conflict with the Constitution that our revered Framers handed us. And very respectfully, I don’t think that a single one of those Framers would agree with your position either. Certainly, Judge Luttig has made clear he does not. And there is no reasonable argument that the Constitution directs or empowers the Vice President to set a procedure followed for 130 years before it has even been resorted to.
Lincoln suspended the writ when the body entrusted with that authority was out of session, and submitted it to them as soon as it returned. I understand your argument that several state legislatures were out of session. But the role for state legislatures has for our entire history ended at the time that electoral certificates are submitted to Congress. Congress has debated submissions, including competing submissions. It has never once referred them out to state legislatures to decide.
I respect your heart here. I share your concerns about what Democrats will do once in power. I want election integrity fixed.
But I have run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a results oriented position that you would never support if attempted by the opposition, and essentially entirely made up.
And thanks to your bullshit, we are now under siege.”
By the time Jacob had sent this, Pence had been forced to hide from the mob calling to hang him.
Eastman recoiled on the vice president’s counsel.
“My bullshit, seriously? You think you can’t adjourn the session because the [Electoral Count Act] says no adjournment while the compelling evidence that the election was stolen continues to build and is already overwhelming,” Eastman wrote.
Trump had already lost more than 50 lawsuits at this time challenging election results and citing fraud. This was an opinion shared by the nation’s most credible intelligence apparatuses as well as Trump’s own appointee at the Department of Justice, then-Attorney General Bill Barr.
But, much like Barr described Trump during his recorded deposition for the committee, Eastman was “detached from reality,” the email shows.
“The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened,” Eastman wrote on Jan. 6.
Jacob told Eastman it was “gravely, gravely irresponsible” of him to “entice the president with an academic theory that had no legal viability.”
He continued:
”And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.”
J. Michael Lutting, who will testify Thursday, told Frontline last month that Pence’s team reached him on the morning of Jan. 6 and told him they needed a public declaration of his legal advice.
Luttig obliged the vice president and, with his son to help, the retired judge posted a thread on Twitter explaining how “the only responsibility and power of the vice president under the Constitution is to faithfully count the Electoral College votes as they have been cast.”
Pence, Luttig advised, could do no more, no less.
They hoped it would go viral and news outlets would pick up faster than they could spread it alone.
Luttig’s opening statement was obtained by CNN ahead of the hearing Thursday morning.
"It is breathtaking that these arguments even were conceived, let alone entertained by the President of the United States at that perilous moment in history," Luttig will say, according to the prepared remarks. "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."
On the morning the mob attacked, Trump spent it angrily tweeting at Pence. Pence had finally issued a statement at the 11th hour declaring he did not have the authority to unilaterally decide which slates would count or not. He cited Luttig in his official statement.
Trump had been counting on Pence to come through for him since the wee hours. He had already bellowed at his second-in-command at 1 a.m. ET on Jan. 6.
“If Vice President @Mike_Pence comes through for us, we will win t
he Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!” Trump tweeted.Just after 8 a.m. ET on Jan. 6, Trump tweeted at Pence again:
“States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”
When White House counsel Eric Herschmann told Eastman to get a criminal defense lawyer it was because he didn’t believe Eastman’s theories existed in any factual basis.
And so much surrounding the so-called “alternate elector” gambit failed to really exist in any factual basis.
The Washington Post analyzed the importance of this scheme last week just before the committee commenced its public hearings.
It boils down, however, to this: In seven states—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin—if Trump could pass off his slates of allied electors as authentic, then Congress would at least consider them. When his electors met, they did so of their own accord, largely publicizing their meetings and drawing significant attention as they cried fraud despite a total lack of credible evidence.
Trump campaign operations manager Robert Sinners, however, told the fake electors in Georgia to conduct their affairs in “complete secrecy.” They were to tell security guards there that they had a meeting with state senators.
Under law, electors are required to meet at the State Capitol to enter their slates.
Sinner’s instruction came just one day before authentic electors were slated to meet at the Capitol.
RELATED STORY: Email obtained by prosecutors shows Trump’s campaign asked fake GOP electors for ‘complete secrecy’
Sinners has since told the Post that he was instructed to give those orders by David Shafer, the chairman of the Republican Party in Georgia.
After Thursday’s hearing at 1 p.m. ET, the committee is scheduled to meet again on June 21 and June 23 at 1 p.m. ET. Additional hearings may be added but the committee has not confirmed this as of Wednesday.
If you want to catch up on what you may have missed during the first two select committee hearings, check out related coverage here:
RELATED STORY: Day of damning evidence from Jan. 6 committee as they pathway for possible prosecution for Trump
RELATED STORY: Jan. 6 committee follows the money, builds fraud case against Trump and team in the ‘Big Ripoff’
RELATED STORY: The Jan. 6 committee is just getting started
RELATED STORY: The BIG Guide: Who’s who in the Jan. 6 committee’s investigation
