The third public hearing into the Capitol riot heard evidence that Donald Trump was repeatedly told his plan to overturn the election result was illegal, even by the lawyer urging him to do so.
Attorney John Eastman also asked for a pardon after pushing a scheme to pressure then vice president Mike Pence into unilaterally rejecting electoral votes from swing states won by Joe Biden.
Video depositions made public by the House January 6 select committee revealed that Mr Trump knew the plan to have his vice-president commandeer the 6 January 2021 session of Congress and declare themselves winners of the election violated the law.
Both Mr Eastman, the conservative law professor who promoted the plan, and the White House’s deputy counsel told the president the proposal was against the law, the committee’s hearing revealed.
The hearing also heard that Trump supporters were infuriated by Mr Pence’s refusal to go along with the plan and that during the riot – when many were chanting “Hang Mike Pence” – some came within 40ft of him.
An informant told the FBI that members of the Proud Boys were willing to kill the vice-president.
Shocking video shown at the hearings showed Trump supporters marching on the Capitol, with one saying: “You f***ing politicians are going to get f***ing dragged through the streets.”
Among the witnesses who testified that Mr Trump would have known the plan violated the law was Greg Jacob, who served as Mr Pence’s White House counsel during the last months of the Trump administration.
In his videotaped deposition, Mr Jacob told the panel of an Oval Office meeting which Mr Eastman participated in on 4 January 2021 — two days before a pro-Trump mob stormed the Capitol in hopes of preventing Congress from certifying Mr Biden’s 2020 election victory. During that meeting Mr Eastman told the then-president that his plan violated the Electoral Count Act, an 1887 law which governs the procedures by which Congress counts the electoral votes needed to certify presidential elections.
Under questioning by California Representative Pete Aguilar on Thursday, Mr Jacob said he had “raised the issue” of Mr Eastman’s plan violating the Electoral Count Act during the Oval Office meeting.
Mr Jacob added that Mr Eastman “acknowledged that it was the case” that his plan “would violate several provisions” of the Electoral Count Act.
But Mr Trump continued the pressure campaign he had started in December 2020 when he tweeted out, on 6 January 2021, a memorandum floating the theory that Mr Pence could decide the outcome of the election at the joint session of Congress.
Mr Trump’s effort continued when, following the news that a mob had breached the Capitol grounds, the president tweeted that Mr Pence “didn’t have the courage” to unilaterally step in to affect the electoral outcome, enraging the rioters and leading them to begin chanting “Hang Mike Pence” as they streamed through the Capitol.
Mr Trump’s decision to do so also contradicted the advice of others in his orbit, including his deputy White House counsel, Eric Herschmann.
In a videotaped deposition, Mr Herschmann described a conservation with Mr Eastman in which Mr Eastman had described his plan for Mr Pence to reject the electoral votes for Mr Biden.
“I said, hold on a second, I want to understand you’re saying. You’re saying that you believe that vice president – acting as president of the Senate – can be the sole decision-maker, in your theory, of who becomes the next president of the United States?” he recalled, adding that Mr Eastman replied: “Yes”.
Mr Herschmann told the committee his response was to ask Mr Eastman if he was “out of his effing mind”.
Eastman seemed to justify violence that could result from election plot
Continuing, Mr Herschmann said he asked Mr Eastman: “Are you completely crazy? You’re going to turn around and tell 78 plus million people in this country that you are – this is your theory – this is how you’re going to invalidate their votes? Because you think the election was stolen?”
“They’re not going to tolerate that, you’re going to cause riots in the streets,” Mr Herschmann recalled himself as saying.
He then told the panel that Mr Eastman dismissed the possibility of violence as something that has been necessary in the past “to protect the republic”.
The fact that Mr Trump apparently knew the plan he had pinned his hopes of remaining in office on was illegal could figure prominently in whether the Department of Justice takes action to charge Mr Trump for his role in attempting to overturn the results of the 2020 election.
George Conway, the veteran conservative attorney and prominent Trump critic, told The Independent that the testimony offered regarding Mr Trump’s knowledge of the Eastman plan’s illegality could carry significant weight in a decision on whether prosecute the former president.
“It goes directly to the question of fraudulent and corrupt intent,” he said, citing sections of the United States code which define the crimes of conspiracy to defraud the United States and obstruction of an official proceeding.
'No basis in the Constitution' for Eastman plot, says conservative former judge
Mr Eastman’s theory also drew scorn from another witness who appeared before the panel on Thursday, retired Fourth Circuit judge J Michael Luttig.
Asked about claims made by Mr Eastman – one of Mr Luttig’s former law clerks – that previous actions by former vice presidents John Adams, Thomas Jefferson, and Richard Nixon lent his theory historical precedent which Mr Pence could cite to justify a decision to send the swing state electoral votes back to the states, the veteran jurist replied: “If I had been advising the vice president of the United States on January 6th ... I would have laid my body across the road before I would have let the vice president overturn the 2020 election on the basis of that historical precedent”.
He said there was “no basis in the constitution” or in US law for anything resembling what Mr Eastman was urging Mr Pence to do.
Mr Pence appeared to share Mr Eastman’s view. His former chief of staff, Marc Short, told the panel in a videotaped deposition that it was his impression that Mr Pence had told Mr Trump “many times” and in a “very consistent” manner that he did not believe he, as vice president, had the authority to reject electoral votes or send them back to the states as the president wished.
Yet Mr Trump continued his pressure campaign and even went so far as to lie about Mr Pence’s opinion about his own power in a tweet claiming the two men were in “complete agreement”.
Mr Jacob told the panel Mr Trump’s tweet was “categorically untrue”.
Mr Trump’s pressure campaign triggered anger against Mr Pence
The select committee also presented evidence that Mr Trump’s reaction to Mr Pence’s decision not to unilaterally reject swing state electoral votes egged on the angry mob outside the Capitol that had gathered at the former president’s behest.
In videotaped testimony, several Trump aides and family members described Mr Trump’s final phone call with Mr Pence on the day of the riot.
Ivanka Trump, the former president’s daughter-turned-senior-adviser, recalled how Mr Trump had reacted angrily to Mr Pence’s declaration that he would not unilaterally reject the election results.
She told the panel she had overheard Mr Trump on the phone telling Mr Pence: “You are a wimp, you'll be a wimp.” She said the then-president had also told Mr Pence he was “too weak” and complained that he’d made the wrong choice when he selected him as his running-mate.
But Mr Jacob said that the vice president was not deterred from his decision despite Mr Trump’s harsh words.
“When he came back into the room, I’d say that he was steely, determined, grim,” he said.
Shortly after the call, Mr Trump posted a tweet in which he said Mr Pence "didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify”.
One rioter with a bullhorn informed the crowd of Mr Pence’s tweet: “Mike Pence has betrayed the United States of America. Mike Pence has betrayed this president and the people of the United States and we will never ever forget”.
The reaction from the mob at the Capitol was swift, with rioters starting chants of “hang Mike Pence” and calling for Mr Pence to be brought out from the Capitol.
A former White House aide told the January 6 committee that the tweet was like “pouring gasoline on the fire”.
A confidential FBI witness affidavit made public during the panel’s presentation related the reaction from a member of the Proud Boys, one of the violent extremist groups that participated in the Capitol attack, stating that members of the group were willing to kill numerous lawmakers, including House Speaker Nancy Pelosi. The witness also said the mob would’ve killed Mr Pence if he had been captured.
‘That’s rubber room stuff’: Eastman wanted Pence to follow through with his plan after riot
Even with the Capitol awash in shattered glass and with tear gas still hanging in the air, Mr Pence insisted on completing the electoral certification after law enforcement cleared the mob from the Capitol.
During the riot, Mr Jacob reportedly sent an email to Mr Eastman criticising his theory for causing the riot.
“Thanks to your bulls***, we are now under siege”, he wrote. Mr Eastman responded by saying “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 could see for themselves what happened.”
The then-vice president, who Mr Jacob said refused to follow the instructions of his Secret Service detail to get into his armoured car in preparation for evacuation from the Capitol because he “did not want to take any chance” that he would be seen by the world as “fleeing” from the building, returned to the Senate chamber roughly seven hours after he’d been pulled from the room, telling senators: “Let’s get to work”.
But Mr Eastman still did not give up his push for Mr Pence to do what he’d conceded to be illegal two days before.
In a text message to Mr Jacob, he said Mr Pence could now use the seven-hour recess brought on by the riot as precedent for calling a halt to the certification process and sending electoral votes back to the state legislatures.
Mr Jacob told the panel he showed the message to Mr Pence, who replied: “That’s rubber room stuff” – a reference to a padded cell.
‘A clear and present danger’
As Thursday’s hearing came to a close, Mr Luttig, the renowned conservative jurist, offered a warning to the select committee about the continuing danger to American democracy posed by Mr Trump and his allies, many of whom are running for office with the intention of overturning future elections should a Democratic candidate garner more votes than a Republican one.
He said the “rubber room stuff” described by Mr Pence still holds sway as an operating theory among members of the Republican Party, including Mr Trump.
“I have written ... that today, almost two years after that fateful day in January of 2021, that still Donald Trump and his allies and supporters are a clear and present danger to American democracy,” he said. “That’s not because of what happened on January 6th. It’s because to this very day, the former president, his allies, and supporters pledge that in the presidential election of 2024, if the former president or his anointed successor in the Republican party [loses the election] they would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election, but succeed in 2024 where they failed in 2020”.
