Trump aides told him that using Pence to overturn election was illegal

President Donald Trump and his aides knew that it was not legal for his vice president, Mike Pence, to attempt to thwart Joe Biden’s victory on Jan. 6, 2021, but they nonetheless mounted an unrelenting pressure campaign that did not abate even after rioters stormed the Capitol and threatened Pence’s life, according to new evidence presented Thursday by the House committee investigating the attack.

Leading the campaign was Trump lawyer John Eastman, who over the two days before Jan. 6 spoke repeatedly with top Pence aides about whether the vice president would either reject outright Biden’s winning electoral college count or suspend the day’s proceedings to allow seven contested states to reexamine their popular votes, witnesses said.

Pence never considered it, former vice-presidential counsel Greg Jacob testified — and even Eastman acknowledged that the gambit was not legal, Jacob said. In addition to that apparent admission, several former White House aides testified that they — and Pence — told Trump the same.

“I said, ‘John, if the vice president did what you were asking him to do, we would lose nine to nothing in the Supreme Court, wouldn’t we?' " Jacob recalled. “And after some further discussion, he acknowledged, ‘Well, yeah, you’re right, we would lose nine to nothing.’ ”

The committee also displayed a Jan. 11, 2021, email from Eastman to Trump’s lead campaign lawyer, Rudy Giuliani, seeking a pardon from the outgoing president, though Eastman did not ultimately receive one. A member of the committee, Rep. Pete Aguilar (D-Calif.), said that in his deposition with the committee, the lawyer asserted his Fifth Amendment right against self-incrimination “a hundred times.”

The House committee, which has spent a year investigating the Jan. 6 attack, continued making its case at Thursday’s three-hour afternoon hearing that the assault was the violent culmination of an attempted coup led by Trump.

With new details and never-before-seen video and photos, the proceeding focused on Pence and his largely ceremonial role presiding over the final step in the quadrennial process of declaring the winner of a presidential election: counting the electoral college vote in a joint session of Congress.

Committee members made the case not only that Trump and his advisers knew that Pence did not have the power to block Biden’s victory, but that their public statements to the contrary incited the rioters who invaded the Capitol that day, some of them chanting “Hang Mike Pence!” as they walked past a mock gallows erected outside the building.

“Donald Trump wanted Mike Pence to do something no other vice president has ever done,” said Rep. Bennie G. Thompson (D-Miss.), the committee chairman. “The former president wanted Pence to reject the votes and either declare Trump the winner or send the votes back to the states to be counted again. Mike Pence said no. He resisted the pressure. He knew it was illegal. He knew it was wrong.”

The committee presented new evidence of how close the rioters came to confronting Pence — within 40 feet — as his Secret Service detail escorted him to a secure location within the Capitol complex.

“Does it surprise you to see how close the mob was to the evacuation route that you took?” Aguilar asked Jacob, who was with Pence that day. “Forty feet is the distance from me to you, roughly.”

Jacob replied: “I could hear the din of the rioters in the building while we moved, but I don’t think I was aware that they were as close as that.”

Diagrams show — for the first time —how Pence was evacuated from the Senate chamber and how close rioters came to him on Jan. 6, 2021. (Video: The Washington Post)

Several witnesses said there was never any question that Pence would not interfere with the count that day. The Constitution calls for states to establish how their presidential electors are chosen; all states follow the popular vote. As far as the counting of those electoral votes, the Constitution’s 12th Amendment instructs only that the president of the Senate — Pence at the time — “open all the certificates” and that “the votes will be counted.”

Jacob said Pence began inquiring about his powers and duties to oversee the count in early December.

“There was no way that our framers, who abhorred concentrated power, who had broken away from the tyranny of George III, would ever have put one person, particularly not a person who had a direct interest in the outcome because they were on the ticket for the election, in a role to have a decisive impact on the outcome of the election,” Jacob said.

Former counsel to Vice President Pence George Jacob made a point on June 16 that vice presidents do not have the authority to reject the slate of electors. (Video: The Washington Post, Photo: Jabin Botsford/The Washington Post)

J. Michael Luttig, a retired federal appeals judge and renowned conservative who advised Pence during the crisis, testified that what Trump was asking Pence to do amounted to “constitutional mischief” and posed a grave threat to American democracy.

“I would have laid my body across the road before I would have let the vice president overturn the 2020 election,” Luttig testified.

None of that stopped Trump from ratcheting up the pressure as the Jan. 6 congressional proceedings approached. On that day, the effort began in the morning, when Trump called Pence at his official residence. Both Jacob and Pence’s former chief of staff, Marc Short, recalled being with the vice president when the call came in, and watching Pence step out of the room.

Several Trump aides — including his daughter, Ivanka — were in the Oval Office at the time and could hear the president’s side of the conversation. In video testimony played at the hearing, Ivanka Trump described her father taking a “different tone” than she had heard him take with the vice president before.

Ivanka Trump also told others in the West Wing that her father had called the vice president “the p-word” and talked about Pence’s lack of courage, her former chief of staff, Julie Radford, testified Thursday. During the conversation, Pence made it clear to Trump that he did not have the authority to do what Trump asked.

The committee also detailed how Trump’s pressuring of Pence during his rally appearance on the Ellipse that day was not part of his original speech, and was instead ad-libbed.

Trump told those gathered that he talked to Pence before the rally about needing to have the “courage” to help him stay in office for four more years.

“I hope Mike is going to do the right thing,” Trump told his supporters. “I hope so. I hope so, because if Mike Pence does the right thing, we win the election.”

Later, with the attack at the Capitol underway, Trump “poured gasoline on the fire” by tweeting an angry message directed at Pence, Sarah Matthews, a former Trump press aide, said in a videotaped interview with investigators that was aired Thursday.

“Mike 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,” Trump tweeted at 2:24 p.m. “USA demands truth!”

The committee showed footage of rioters reading the tweet aloud, and of others angrily demanding Pence’s head. Moments later, rioters inside the Capitol reached the eastern side of the Rotunda.

Several Pence aides testified that they were shocked and disappointed when Trump issued a statement the day before the riot that Pence and Trump were “in total agreement that the Vice President has the power to act” in overturning the results of the 2020 election.

Short, Pence’s chief of staff, said the information in the statement was “incorrect” and he recalled an angry conversation with Trump aide Jason Miller, who separately testified that he wrote the statement with Trump’s input.

“I was irritated and expressed displeasure that a statement could have gone out that misrepresented the vice president’s viewpoint without consultation,” Short said he told Miller.

More than any other figure in the days leading to and including Jan. 6, Thursday’s hearing showcased Eastman, a Trump attorney who outlined scenarios for denying Biden the presidency in legal memos and in an Oval Office meeting on Jan. 4 with Pence and Trump.

Eastman repeatedly sought to convince Pence and his lawyers that the vice president could unilaterally overturn the results of the election. A prolific emailer, Eastman fought for months to withhold emails the committee requested and only last week did a federal judge order that Eastman hand over an additional 400 documents to the committee.

Thursday was likely only the first hearing to feature Eastman as the committee continues its investigation behind closed doors, shaping the proceedings as new information rolls in.

Thompson said the panel plans to invite Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, to be interviewed. The Post reported Wednesday that the committee has obtained email correspondence between Thomas and Eastman. The emails show that Thomas’s efforts to overturn the election were more extensive than previously known, according to two people with knowledge of the correspondence who spoke on the condition of anonymity to discuss sensitive matters.

Jacob, along with former Trump White House lawyer Eric Hershmann, made clear in testimony Thursday they believe Eastman’s plan was ridiculous and illegal. Jacob recalled emailing Eastman after Pence had been evacuated to a secure location: “Thanks to your bull---t, we are now under siege.”

Eastman was unrepentant in reply, blaming Pence for not having gone along with the plot, and encouraging Pence’s team to consider a “relatively minor violation” of the law, by adjourning Congress for 10 days so state legislatures could reconsider their electoral college votes. Jacob said Pence described Eastman’s response as “rubber room stuff.”

Hershmann recounted speaking to Eastman the next day, when Eastman brought up a new idea to contest the result in Georgia, “And I said to him, ‘Are you out of your effing mind?’ I said, ‘I only want to hear two words coming out of your mouth from now on: Orderly transition,' " Herschmann said.

“Now I’m going to give you the best free legal advice you’re ever getting in your life,'” Herschmann said he added. "'Get a great effing criminal defense lawyer. You’re going to need it.”

White House attorney Eric Herschmann on June 16 said Trump lawyer John Eastman was fine with causing violence by saying the election was stolen. (Video: The Washington Post, Photo: Jabin Botsford/The Washington Post)

Separately Thursday, tensions ratcheted up between the Jan. 6 committee and the Justice Department, with prosecutors complaining their lack of access to committee interview transcripts is hampering their ability to complete criminal cases, as evidence is aired in widely watched public hearings ahead of key trials.

In a letter to the committee Wednesday, the heads of the Justice Department’s national security and criminal divisions wrote that not granting the department access to transcripts complicates the “ability to investigate and prosecute those who engaged in criminal conduct.”

The letter is the strongest salvo in the months-long back-and-forth between the committee and the department, whose parallel investigations have generally tried to steer clear of each other but now seem to be on a collision course.

The committee has repeatedly turned to Trump’s own aides, and Republicans generally, to make its case against the former president. Thursday’s hearing at times had the feel of a meeting of the Federalist Society, the conservative legal group.

Jacob and Luttig are conservative lawyers. One of Thursday’s questioners was John Wood, a Republican lawyer who noted that he and Eastman clerked for Luttig. Eastman, Jacob and the vice chairwoman of the committee, Rep. Liz Cheney (Wyo.), received their law degrees from the University of Chicago, which is known for producing conservative lawyers.

Luttig on Thursday was unsparing in describing the harm that his fellow conservatives who have cast their lot with Trump could have done to the U.S. government — and still could do.

“Donald Trump and his allies and supporters are a clear and present danger to American democracy,” Luttig said.

Devlin Barrett, Matthew Brown, Rosalind S. Helderman, Eugene Scott, Mariana Alfaro, Amy Wang, Seung Min Kim and Cleve R. Wootson Jr. contributed to this report.