After watching the first three days of the House Select Committee investigating the events of January 6, I reached a conclusion about where the committee is heading, and shared it at New York:
The third day of hearings by the House select committee investigating January 6 focused on the backstory of Donald Trump’s very public effort to coerce then-Vice-President Mike Pence into stopping the certification of Joe Biden’s election during a joint session of Congress. Witnesses (most critically, former Pence counsel Greg Jacob) made it abundantly clear there was no real support in legal circles within or beyond the White House for the scheme cooked up by Trump campaign attorney John Eastman whereby Pence was expected to either reject Biden electors or suspend the process of counting them in order to give Republican legislators time to flip the election.
In a carefully reconstructed ticktock of discussions involving Trump, Pence, legal advisers to both men, and Eastman, the committee sought to allay any significant doubts that virtually everyone other than Eastman thought his claim of vast vice-presidential powers over the certification of electors was nuts. Indeed, Jacob, who was most directly involved in conversations with Eastman, indicated that Eastman repeatedly betrayed his own lack of faith in his outlandish claims about the veep’s breathtaking 12th Amendment powers. But Eastman and his boss continued to pressure Pence to violate the law and abandon his own clearly stated position right up to the fraught hours on January 6, 2021, when Trump allegedly told Pence in a phone call that he was a “wimp,” then informed a crowd of soon-to-be rioters that Pence had to stop the Biden certification.
Jacobs’s account was strengthened by taped testimony concerning Trump’s other legal advisers, as Above the Law’s Joe Patrice noted when the hearing concluded:
“White House Counsel Pat Cipollone thought it was wrong according to testimony. Eric Herschmann said he told Eastman that it didn’t make any sense beforehand and, according to Herschmann, Eastman concluded that it probably would be a loser at the Supreme Court. Herschmann even testified that he told Eastman before January 6 that “you’re going to cause riots in the streets.” Certainly that also crossed the mind of other lawyers in the building.”
Even Rudy Giuliani, Trump’s personal attorney, thought it was a bad idea (though he reversed himself in the excitement of January 6 itself). And just to emphasize the point that Eastman’s theory had no respectable support, conservative legal titan J. Michael Luttig was brought in to denounce it as antithetical to the Constitution and democracy and to warn that Republicans might try the same play again in 2024.
The committee went on to describe how Trump’s rage at Pence put the lives of the veep (and presumably many members of Congress) in danger when the insurrectionists stormed the Capitol to stop the Biden certification since Pence didn’t “do his duty.” That provided some gripping images, but the real point of the hearing became plain when Representative Pete Aguilar, who directed much of today’s proceedings, quoted from a March 2022 ruling by California federal judge David Carter, who was reviewing Eastman’s claims that his subpoenaed communications with Trump were privileged. Here is the pertinent language, as I described it at the time:
“Until this week, no one in the U.S. judicial system had officially suggested the 45th president might have committed a crime. Now California federal district court judge David Carter (a Clinton appointee) has ruled that Trump ‘more likely than not … corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021,’ and that Trump and his attorney John Eastman ‘more likely than not … dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.’”
All the evidence in today’s hearing reinforced this potentially explosive conclusion: A rogue lawyer and his rogue client cooked up a ridiculous justification for an illegal action that risked lives and endangered democracy itself. Much of the evidence incriminated Eastman, who took the Fifth Amendment 100 times when forced to testify before the committee and had tried to secure a pardon from Trump. A telling exchange between Eastman and Jacob occurred when the latter asked the former via email, as the Capitol riot raged, whether he had finally advised Trump “that in your professional judgment the vice president DOES NOT have the power to decide things unilaterally.” Eastman replied, of Trump, “You know him — once he gets something in his head, it is hard to get him to change course.”
The lawyer and client were a match made in hell. And now they may both be in actual danger of legal consequences, or so the January 6 committee seems to believe. But that will presumably be up to Attorney General Merrick Garland, whose department will have to make the call on potential prosecutions coming out of these hearings.
