Opening today’s hearing of the House Jan. 6 committee, Chairman Bennie Thompson, D-Miss., said the panel’s focus on former Vice President Mike Pence’s role will reveal the effort “to pressure him to go along with an unlawful and unconstitutional scheme to overturn the 2020 election and give Donald Trump a second term in office that he did not win.”
It’s the third of seven hearings expected this month to present evidence from the committee’s months-long investigation into the connection between Trump’s voter fraud conspiracy claims and the insurrection on the Capitol on Jan. 6, 2021.
Before the hearing began, committee leaders said they want to invite Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, to speak to the panel. The Washington Post reported that the committee has evidence of Ginni Thomas communicating with lawyer John Eastman about overturning the 2020 presidential election. The committee says Eastman was central to a pressure campaign against Pence to reject the election results. Ginni Thomas told the Daily Caller that she would “look forward” to speaking with the panel.
Monday’s hearing focused on Trump’s role in perpetuating the lie that the 2020 election was stolen from him and presented witness testimony and recorded interviews showing that many of the former president’s advisers knew the election wasn’t stolen and told him so, but he ignored them. Instead, he listened to those in his inner circle who urged him to declare victory on election night and embrace baseless claims of massive voter fraud.
- Pence’s legal role in the election count: Greg Jacob, an attorney for Pence, testified that vice president did not consider it his role legally to decide the election. “There was no way that our framers … would ever have put one person, particularly not a person who had a direct interest in the outcome … in a role to have decisive impact on the outcome of the election,” Jacob said. The lawyer said that on Jan. 5, the day before the riot, Trump ally John Eastman admitted the Supreme Court would reject his plan to have Pence reject electoral votes. Retired federal judge Michael Luttig testified that there was “no support whatsoever” in either the Constitution nor in U.S. laws for the vice president “frankly, ever to count alternative electoral slates from the states that had not been officially certified.”
- Who will not testify: Today’s hearing focuses largely on Mike Pence, but the former vice president won’t be in the room. And whether Pence will play an in-person role in the House panel’s proceedings at all remains an open question. Thompson, the panel’s chairman, has said it’s still engaging Pence’s lawyers, and hasn’t ruled out the possibility that he might testify.
A respected conservative judge is now a critic of his party -- and former clerks
Committee Senior Counsel John Wood noted the dynamic before proceeding to question Luttig about the role of fellow former clerk John Eastman in efforts to pressure then-Vice President Mike Pence to overturn the results of the 2020 election.
Luttig, a widely respected conservative judge who sent dozens of clerks to the Supreme Court after almost being nominated for the bench himself, had advised Pence to reject the advice of attorney and Trump ally John Eastman, who had urged Pence to overturn the results of the 2020 election.
Law professor and former acting U.S. Solicitor General Neal Katyal called the scenario “the nightmare for every federal law clerk ever.”
“I think of the two judges for whom I clerked akin to my parents, and every one of the clerks part of the family,” Katyal tweeted.
Luttig served as a federal appeals court judge for 15 years, earning a reputation as one of the country’s most prominent and conservative judges, as NPR’s Nina Totenberg has reported. He was frequently mentioned as a possible Supreme Court nominee himself in the Bush administration and sent more than 40 clerks (known as “Luttigators”) into Supreme Court clerkships. Of those, 33 worked for justices Antonin Scalia and Clarence Thomas.
Another one of Luttig’s clerks was Sen. Ted Cruz, R-Texas, a staunch Trump ally who has downplayed the events of Jan. 6 and publicly criticized the committee hearings. The two appear to have been close — Cruz described Luttig in 2016 as being “like a father to me.”
Luttig has broken with Cruz and some of his other high-profile proteges as an increasingly outspoken critic of Trump and the Republican Party.
He told the Los Angeles Times earlier this year that several final straws prompted him to action: The Republican National Committee’s resolution calling Jan. 6 “legitimate politial discourse” and censuring Reps. Liz Cheney and Adam Kinzinger for their roles on the House panel, and Trump’s public attacks on Pence for saying he couldn’t overturn the election and Senate Republican leader Mitch McConnell over his criticism of the RNC.
That more Republicans aren’t standing up to “this nonsense, this utter madness,” is “the definition of failed leadership, he added.
The 68-year-old, with his son’s help, had set up a Twitter account just weeks before Jan. 6 and turned to social media to try to help Pence reject Trump’s request to .
“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,” he tweeted on the morning of Jan. 5. Pence cited that thread the next day in his letter explaining why he certified the 2020 election results.
Luttig has remained active on Twitter ever since and has frequently used it to troll former clerks like Cruz and Eastman, who have been friends since clerking together in 1995.
In one thread, he called Eastman’s legal analysis “incorrect at every turn.” In another, he commented on a video of Cruz saying that then-Supreme Court nominee Ketanji Brown Jackson would be “the most extreme and furthest left justice to ever serve” on the court:
“I would not hesitate to retract my endorsement of Judge Jackson for the Supreme Court if there were anything at all to Senator Cruz’s statement, but there is not,” Luttig wrote. “In fact, quite the opposite is the case.”
Luttig has also criticized Cruz offline for his role in the events leading up to the Capitol riot.
“Once Ted Cruz promised to object, January 6 was all but foreordained, because Cruz was the most influential figure in the Congress willing to force a vote on Trump’s claim that the election was stolen,” he told The Washington Post in March. “He was also the most knowledgeable of the intricacies of both the Electoral Count Act and the Constitution, and the ways to exploit the two.”
Luttig said Cruz’s actions show the need to overhaul the 1887 Electoral Count Act to prevent a single senator from having such an outsize influence on the outcome of a presidential election. Luttig is working with lawmakers to rewrite the act.
“Such is Republican politics of the moment, that presidential and congressional aspirants will purchase the former president’s blessing and approval at any price,” Luttig told the Post.
The Justice Department asked again to see the committee’s transcripts, saying the lack of sharing is complicating its Jan. 6 probe
The Justice Department has asked the lead investigator for the House Select Committee for speedy access to transcripts of witness interviews, arguing the lack of information-sharing is complicating its ongoing criminal probe.
Top DOJ officials have renewed a request they first made in April -- before the congressional panel launched blockbuster public hearings in which they quoted from prosecutors’ court filings and played video featuring defendants in an ongoing seditious conspiracy case against the far-right Proud Boys group.
The transcripts will be critical to help prosecutors assess the credibility of people they consider witnesses or subjects of investigations, wrote the U.S. Attorney in Washington, D.C. and the Assistant Attorneys General in charge of the criminal and national security divisions in a letter dated June 15.
“Grand jury investigations are not public and thus the Select Committee does not and will not know the identity of all the witnesses who have information relevant to the department’s ongoing investigations,” wrote Matthew Graves, Kenneth Polite and Matthew Olsen.
The recipient of the letter is Timothy Heaphy, the chief investigative counsel for the committee and himself a former U.S. Attorney during the Obama administration.
The delay in getting access to the transcripts complicates the ongoing Justice Department criminal probe, already the largest and most complex in history, the DOJ officials said.
At least two Proud Boy defendants facing trial on seditious conspiracy and other charges have cited the congressional hearings as a basis to postpone their criminal trial in Washington, D.C., from early August until after the midterm elections this year.
House investigators so far have refused to turn over transcripts to DOJ but instead said they would be released en masse in early September, as the committee finishes its work and publishes a final report.
A judge has not yet ruled on a request to delay the Proud Boys trial. Assistant U.S. Attorney Jason McCullough appeared to consent to a delay in a new court filing.
“While we do not know precisely when copies of the transcripts will be released, if they are released as anticipated in early September 2022, the parties to this trial will face unique prejudice because the jury for the August 8 trial will have already been sworn...” he wrote in court papers filed Thursday.
Pence didn’t budge under relentless pressure, Jacob says
By NPR Washington Desk
Greg Jacob, Mike Pence’s former counsel, said that John Eastman told him: “Al Gore did not have a basis to [overturn the election results] in 2000, Kamala Harris shouldn’t be able to do it in 2024, but I think you should do it today.”
The pressure on Pence to do that was apparently relentless, Jacob told the Jan. 6 hearing.
On Jan. 4, Jacob and Pence met with Eastman, Jacob said. During that meeting, Eastman laid out two theories on how Pence could overturn the election. One, he could reject the electors; two, he could declare a 10-day recess and send slates back to “disputed” states. No state was disputed.
“The vice president never budged from the position that I described as his first instinct, which was that it just made no sense that one person could unilaterally decide the president of the United States,” Jacob said.
White House Chief of Staff Meadows apparently agreed that Pence couldn’t overturn election, according to Marc Short
Marc Short, former Vice President Mike Pence’s chief of staff, believed White House Chief of Staff Mark Meadows said that he agreed that Pence did not have the legal authority to overturn the 2020 election results.
“I believe that’s what he told me,” Short said in a videotaped deposition that the House panel played on Thursday afternoon.
“I believe Mark had told so many different people so many things that it’s not something I would accept as resolved,” Short added.
The committee played a video clip of former Trump White House attorney Eric Herschmann’s deposition in which he recalled a conversation he had with attorney John Eastman. The committee has described Eastman as the architect of the plan to keep Trump in power after he lost the presidential election. Eastman maintained it was possible for Pence to overturn the election as he presided over the Senate.
“I said, ‘Are you out of your effing mind?’” Herschmann said. “I said, ‘You’re completely crazy.’ I said, ‘You’re going to turn around and tell 78 plus million people in this country that...you’re going to invalidate their votes, because you think the election was stolen.”
In a separate videotaped deposition, Jason Miller, an aide to then-President Trump, said White House counsel Pat Cipollone “thought the idea was nutty and at one point confronted Eastman with the same sentiment.”
The accounts from top White House staff are a continuation of a theme of the hearings: that Trump’s aides privately acknowledged that what they were suggesting was illegal, even as they publicly worked to overturn the results of the election.
Ginni Thomas said she looks forward to talking to Jan. 6 committee
By Maya Rosenberg
Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, told the Daily Caller on Thursday that she would “look forward” to speaking with the House Jan. 6 committee after its leaders said they will invite her to testify about her contact with Trump allies in the lead up to Jan. 6.
“I can’t wait to clear up misconceptions. I look forward to talking to them,” Daily Caller reported her as saying.
Thomas has worked with the Daily Caller in the past, including producing an interview with her husband.
Eastman himself knew his legal theory to overturn election would be rejected by the Supreme Court, a witness says
Greg Jacob, counsel to then-Vice President Mike Pence, said he spoke with Trump ally John Eastman on Jan. 5, the day before the riot. In the conversation, Jacob said Eastman admitted the Supreme Court would vote 9-0 against his legal plan to have Pence step in and reject electoral votes.
Jacob said at first, Eastman thought they would have some support from the court, but ultimately acknowledged the Supreme Court would vote 9-0 against him.
Jacob added that Eastman said he didn’t think the court would take it up.
Jacob said that Eastman had also told him that Al Gore should not have been able to use his legal argument to overturn the election in 2000 and that Vice President Harris shouldn’t be able to do it in 2024 — but that Pence should follow his outlined plan on Jan 6. anyway.
The other witness on the day, former Judge J. Michael Luttig, added that Eastman’s argument to have Pence overturn the election was “constitutional mischief.” He repeated his assertion that Eastman’s argument that there was historical precedent for Pence to overturn the election was not true.
“If I had been advising the vice president of the United States on Jan. 6, and even if then-Vice President [Thomas] Jefferson and even then-Vice President John Adams and even then-Vice President Richard Nixon had done exactly what the president of the United States wanted his vice president to do, 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,” Luttig said.
Why is everyone talking about the 12th Amendment?
Witnesses at today’s hearing, which centers on the pressure campaign to get then-Vice President Mike Pence to overturn the 2020 electoral college results, keep discussing the 12th Amendment.
Why?
The 12th Amendment outlines the electoral vote counting process, which was at the crux of Trump and his allies’ scheme to overturn the 2020 election results. The amendment, ratified in 1804, also addresses how a president can be certified into office.
“The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted...The person having the greatest number of votes for President, shall be the President,” it reads.
Attorney John Eastman, who the committee claims was the architect of Trump’s plan to disrupt the certifying of votes in order to change the results of the 2020 election, maintained that the vice president could overturn the electoral college results.
J. Michael Luttig, a former federal judge and adviser to vice president Mike Pence, testified that Eastman’s claims are not supported by the Constitution.
Here’s the full text of the 12th Amendment:
“The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;–the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;
The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”
Witnesses disagree over the wording in the Constitution, but agree it says VP couldn’t overturn election
Greg Jacob, former Vice President Pence’s lawyer at the time, said in his testimony Thursday that he first had a conversation with Pence about the Jan. 6 certification process about a month prior, around Dec. 7, 2020.
“The vice president called me over to his West Wing office and told me he had been reading and seeing things that he had a significant role to play on January 6,” Jacob told the House committee.
Jacob told Pence he would put together a memo on what the legal rules were for Pence’s role that day.
“We concluded that a sentence in the Constitution that is inartfully drafted” was the primary legal explanation for a vice president’s role in an election certification, as well as an act from1887, Jacob said. But Jacob said that Pence did not interpret that to mean he could make a sole decision when it came to deciding the election.
“There was no way that our framers… would ever have put one person, particularly not a person who had a direct interest in the outcome… in a role to have decisive impact on the outcome of the election,” Jacob said.
“Our review of text, history and frankly just common sense, all confirmed the vice president’s first instinct on that point,” he said, adding that there was “no justifiable basis” that Pence had any authority to change the outcome of the election on Jan. 6.
Retired federal judge J. Michael Luttig, who is also a witness in the hearing, disagreed with Jacob’s description that the single line in the Constitution was unclear, calling it “pristine clear.”
Luttig said “There was no support whatsoever in either the Constitution of the United States nor in the laws of the United States for the vice president, frankly, ever to count alternative electoral slates from the states that had not been officially certified.”
Luttig also referenced the memo from Trump ally John Eastman, who drafted the plan to have Pence overturn the election results. Luttig said Eastman’s memo said there was historical precedence for doing so; Luttig said Eastman was incorrect.
Panel leaders say Trump broke the law by trying to pressure Pence
Committee leaders Bennie Thompson and Liz Cheney said the hearing today will reveal the details of a pressure campaign led by former President Donald Trump against his vice president — one that Thompson labeled “an unlawful and unconstitutional scheme to overturn the 2020 election and give Donald Trump a second term in office that he did not win.”
Cheney, a Wyoming Republican, added: “What the president wanted the vice president to do was not just wrong; it was illegal and unconstitutional.”
Thompson began his remarks by referencing a video clip of the former vice president in February, describing how he did not have the power to overturn the results of the presidential election.
“There is almost no idea more un-American than the notion that any one person could choose the American president,” Pence said at the time.
“I agree with that, which is unusual because former Vice President Mike Pence and I don’t agree on much,” said Thompson, who served alongside Pence in the House of Representatives from 2001-2013.
Thompson briefly described the role of a vice president in overseeing the counting of electoral votes, noting that Trump “wanted Mike Pence to do something no other vice president has ever done” — reject the votes and either declare Trump the winner, or send the matter back to the states.
Both Thompson and Cheney praised Pence for resisting Trump’s demands.
“We are fortunate for Mr. Pence for his courage,” Thompson said, adding that once Pence made it clear he wouldn’t bend to Trump’s will, the former president “turned the mob on him.”
“A mob that was chanting ‘Hang Mike Pence!’, a mob that had built a hangman’s gallows just outside the Capitol,” Thompson recalled.
Cheney played a clip of testimony from Marc Short, Pence’s then-chief of staff, in which Short said Pence had conveyed his position that he couldn’t do what Trump was asking of him “many times” to his boss.
Cheney added that Trump plotted with attorney John Eastman to pressure Pence. She quoted a federal judge, who wrote, “based on the evidence, the court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the joint session of Congress on Jan. 20, 2021.”
Cheney also played a clip of Pence’s former chief counsel Greg Jacob saying that he believed Eastman acknowledged on Jan. 4, 2021 — two days before the insurrection — that his proposal violated the Electoral Count Act.
Jacob is testifying live before the committee today.
Today’s hearing is focused on Mike Pence — but he isn’t testifying himself
While today’s hearing will focus largely on former Vice President Mike Pence, and will hear testimony from two of his close associates, he himself won’t be in the room.
Pence has spoken publicly about the Jan. 6 attack, telling the conservative Federalist Society this February, “I had no right to overturn the election” despite former President Donald Trump’s claims — and urging — to the contrary.
But whether Pence will play an in-person role in the House panel’s proceedings remains an open question, as Politico reports. Committee Chair Rep. Bennie Thompson, D-Miss., has said it’s still engaging Pence’s lawyers, and hasn’t ruled out the possibility that he might testify.
Thompson suggested in January that he would likely issue a formal invitation to Pence that month, but has since backtracked and indicated that his testimony might not be necessary since his close aides — including today’s witness, Greg Jacobs — are cooperating so extensively.
Citing people familiar with Pence’s thinking, The New York Times reported earlier this week that he has grown “increasingly disillusioned with the idea of voluntary cooperation” for several reasons.
He reportedly told aides that the committee is heading in a partisan direction by openly considering making possible criminal referrals to the Justice Department, a move he considers designed to hurt Republican congressional candidates in November.
The sources also said that Pence is annoyed with the way the committee has publicly described its interactions with his top aides, implying a closer degree of cooperation than in reality. He reportedly sees that as part of a pattern of Democrats trying to turn his team against Trump, The Times explains.
The former vice president is among a small group of Republicans reportedly considering running for president in 2024 regardless of whether Trump enters the race.
It’s not known how closely Pence is following the Jan. 6 public proceedings. Pence’s aides declined to comment to Politico on his intentions or whether he will be watching this month’s hearings.
Why a federal judge said Trump “likely violated two federal criminal statutes.”
By Maya Rosenberg
In a video previewing today’s hearing, Rep. Liz Cheney, the top GOP official on the House select committee, referenced a federal judge’s finding that former President Trump’s actions before Jan 6 “likely violated two federal criminal statutes.”
U.S. District Court Judge David Carter wrote in March that when Trump pressured former Vice President Mike Pence to dispute the electoral vote count on Jan. 6, he “more likely than not” tried to illegally obstruct Congress.
Carter also determined that Trump’s former legal advisor, John Eastman, the lawyer who devised a plan for Pence to overturn the election, “furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States.”
“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 in his ruling that Eastman had to hand over documents to the Jan. 6 committee.
“If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”
While Eastman won’t be testifying today, his legal advice to Trump will be a key focus of the hearing.
Eastman wrote a two-page memo in December 2020 proposing that Pence should refuse to count electoral votes from the seven states whose elections the Trump campaign contested, according to the court case. Under that plan, that refusal would have then resulted in Trump winning the election with 232 electoral votes. If Congress had declared that a candidate wasn’t able to win the election without 270 electoral votes, Pence could have sent the election to the House of Representatives. The House, which was Republican-majority at the time, then could have voted to certify Trump as the winner.
Trump and Eastman met with Pence and his legal counsel, Greg Jacob, who is testifying today, at the White House in January 2021, days before the Jan. 6 attack. It was then the Vice President was presented with the plan to overturn the election and pressured by the President to do so.
Committee to ask wife of Justice Clarence Thomas to testify
By NPR Washington Desk
The chairman of the Jan. 6 committee Rep. Bennie Thompson, D-Miss., and vice chair, Rep. Liz Cheney, R-Wyo., say they plan to invite Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, to speak to the committee in the wake of reporting by The Washington Post that the committee has evidence of Thomas communicating about overturning the 2020 presidential election.
Ginni Thomas communicated with lawyer John Eastman, who the committee says was central to a pressure campaign against then-Vice President Mike Pence to reject the election results when Congress convened on Jan. 6 to count the Electoral College vote, according to the reporting.
Thompson told this to reporters on Capitol Hill and Cheney’s view was confirmed to NPR’s Deirdre Walsh by an aide.
It’s unclear if the committee will first ask for a voluntary appearance or a closed door deposition, or send a subpoena.
Ginni Thomas was previously revealed to have been in touch with Trump White House chief of staff Mark Meadows via text message between the election and Jan. 6. At the time of those revelations, Chairman Thompson had said he would recommend the committee ask Thomas to appear before them, but no request materialized. Some committee members have said that Thomas didn’t play a significant role ahead of Jan. 6 before the latest reports emerged last night.
The Supreme Court rejected an 11th hour effort by Trump allies to have it step in during the legal fight over the election results, during which dozens of lower court cases were almost uniformly decided against Trump. However, Justice Thomas and Justice Samuel Alito disagreed with that decision.
Justice Thomas was also the lone dissenter when the Supreme Court ruled against Trump as he sought to have his White House records shielded from the Jan. 6 committee investigation.
Retired Republican judge says Jan. 6 was a “well-developed plan” by Trump to overturn the election “at any cost”
Testifying before the panel today is retired federal Judge J. Michael Luttig.
In a written statement to be entered into the committee’s record — first obtained by CNN — Luttig describes the “blood-chilling” events of Jan. 6, claiming that former President Donald Trump and his allies carried out a “well-developed plan...to overturn the 2020 presidential election at any cost, so that he could cling to power that the American People had decided to confer upon his successor.”
Luttig is appearing as a fact witness because of his role in advising then-Vice President Mike Pence and his team to reject the advice of attorney and Trump ally John Eastman, who was pushing for Pence to overturn the results of the 2020 election.
In his statement, Luttig writes that Trump and his allies knew “full well that he had lost” and yet carried out a “treacherous plan...no less ambitious than to steal America’s democracy.”
Luttig, who writes that American democracy stands today “on a knife’s edge,” will detail in his testimony how Trump assembled a “mob” of his supporters and goaded them into marching to the U.S. Capitol to “disrupt and prevent the counting of electoral votes for the presidency.”
He praises Pence for not “obeying” Trump. “There were many cowards on the battlefield on January 6. The Vice President was not among them,” he writes.
Luttig, who says he is testifying as a “private citizen, and as a non-partisan disinterested, independent former federal judge...who happens to have been a fact witness to the events [of] Jan 6),” will also comment on the state of the Republican Party. He writes that the party “cynically and embarrassingly rationalizes Jan. 6 as having been something between hallowed, legitimate public discourse and a visitors tour of the Capitol that got out of hand.”
