The House select committee investigating the Capitol insurrection on Thursday detailed how former President Donald Trump tried to pressure his vice president to join in his scheme to overturn the presidential election – and how Pence’s refusal put his life in danger as rioters called for Pence’s hanging on January 6, 2021.
Two witnesses are testifying at Thursday’s hearing who advised Pence that he did not have the authority to subvert the election, former Pence attorney Greg Jacob and retired Republican judge J. Michael Luttig.
The committee walked through how conservative Trump attorney John Eastman put forward a legal theory that Pence could unilaterally block certification of the election – a theory that was roundly rejected by Trump’s White House attorneys and Pence’s team but nevertheless embraced by the former President.
Here are the key takeaways from the committee’s third hearing this month:
There were many revelations, but the perhaps most important one: Trump was told repeatedly that his plan for Pence to overturn the election on January 6 was illegal, but he tried to do it anyway.
According to witness testimony, Pence himself and the lawyer who concocted the scheme advised Trump directly that the plan was unconstitutional and violated federal law. Committee members argued that this shows Trump’s corrupt intentions, and could lay the groundwork for a potential indictment.
In a videotaped deposition, which was played Thursday, Pence’s chief of staff Marc Short said Pence advised Trump “many times” that he didn’t have the legal or constitutional authority to overturn the results while presiding over the joint session of Congress on January 6 to count the electoral votes.
Even Eastman, who helped devise the scheme and pitched it to Trump, admitted in front of Trump that the plan would require Pence to violate federal law, according to a clip of a deposition from Jacob, Pence’s senior legal adviser, which was played at Thursday’s hearing.
Legal scholars from across the political spectrum agree that Eastman’s plan was preposterous. Luttig, the former federal judge who advised Pence during the transition, testified at Thursday’s hearing that he “would have laid my body across the road” before letting Pence illegally overturn the election.
The committee tried to connect Trump’s pressure campaign against Pence to the violence on January 6, by weaving together testimony from Pence aides, Trump’s public statements and comments from rioters at the Capitol.
Some of the most compelling evidence came from the rioters themselves.
Many of them had listened to Trump’s rallies where he claimed – inaccurately – that the election was rigged against him, and Pence had the power to do something about it while presiding over the Electoral College certification. While the insurrection was underway, they cited Trump’s comments about Pence.
And many of them saw, in real-time, Trump’s tweet criticizing Pence while the Capitol was under attack, where he said Pence “didn’t have the courage to do what should have been done.”
The point of highlighting this on Thursday was to lay the blame for the violence at Trump’s feet. And right after the attack, many top Republicans agreed with that conclusion. But over the last year and a half, many Republicans have shied away from blaming Trump, and the committee hopes to change that.
Former Trump White House attorney Eric Herschmann told the committee that Eastman told him he was willing to accept violence in order to overturn the 2020 election. The panel played video from Herschmann’s deposition where he described a conversation with Eastman about his claims that the vice president could overturn the election in Congress.
Herschmann warned Eastman that his strategy, if implemented, was “going to cause riots in the streets.”
“And he said words to the effect of, ‘There’s been violence in the history of our country in order to protect the democracy, or to protect the republic,’ ” Herschmann said.
Eastman emailed Rudy Giuliani a few days after January 6, 2021, and asked to be included on a list of potential recipients of a presidential pardon, the committee revealed during Thursdays hearing.
The committee said Eastman made the request to Giuliani, Trump’s former attorney, in an email.
“I’ve decided that I should be on the pardon list, if that is still in the works,” the email from Eastman to Giuliani read.
Eastman did not ultimately receive a pardon and refused to answer the committee’s questions about his role in efforts to overturn the 2020 election, repeatedly pleading the Fifth during his deposition.
The committee argued during Thursday’s hearing that Eastman’s request for a pardon, and his decision to repeatedly plead the Fifth when questioned previously by the panel, indicates Eastman knew his actions were potentially criminal.
CNN previously reported that Giuliani and other Trump associates had raised the idea of receiving preemptive pardons in the weeks leading up to January 6 but the US Capitol riot had complicated his desire to pardon himself, his kids and personal lawyer. At the time, several of Trump’s closest advisers also urged him not to grant clemency to anyone involved in the January 6 attack, despite Trump’s initial stance that those involved had done nothing wrong.
One person noticeably absent on Thursday was the star of the hearing himself: the former vice president.
The committee cast Pence as the hero – making the case that American democracy would have slipped into a state of chaos had he succumbed to Trump’s pressure campaign.
But as the committee touted Pence’s commitment to the Constitution and bravery on January 6, it was impossible to ignore the fact that the former vice president was not in the room.
Instead, the committee relied on live witness testimony from two former Pence advisers who appeared to speak on his behalf.
Earlier this year, the committee’s chairman, Democratic Rep. Bennie Thompson of Mississippi, had suggested the committee would seek testimony from Pence. Still, the prospect of Pence appearing before the committee, particularly in public, has always been viewed as a long shot – to say the least.
Asked Wednesday if the committee is still interested in hearing from Pence, committee aides demurred, telling reporters the investigation is ongoing and therefore they cannot provide details about any engagement with a particular witness.
“Nothing new to share on that, other than we continue to search for facts and if there is more to share, we’ll share it in the future,” one of the aides said.
The fact that two of Pence’s former advisers appeared Thursday, and Short testified on camera behind closed doors, indicates that Pence was not actively seeking to block those around him from sharing information with the committee in his stead.
The January 6 committee’s hearings to date have been briskly produced affairs, with emotional, violent video interspersed with testimony from depositions – and minimal live witness testimony.
On Thursday, Luttig, a retired judge, had other ideas.
Luttig gave lengthy, meandering answers with a halting approach that stretched on while he dove into issues like the history of the Electoral Count Act.
Luttig’s comments were basically the opposite of “must-see TV,” the prime-time hearings that committee has signaled it’s holding to try to connect with the American public about the significance of the January 6 attack on the Capitol and on democracy.
At the same time, the points Luttig made – about how the legal schemes Eastman and Trump pushed were baseless and Trump was told as much before January 6 – were essential to the committee’s case trying to connect Trump’s efforts to overturn the election to the violence. But his delivery got in the way of his message.
This story has been updated with additional developments Thursday.