In the days before Jan. 6, as former President Donald Trump pressured Vice President Mike Pence to intervene in Congress’ counting of Electoral College votes certifying Joe Biden’s 2020 presidential win, those around him in the White House did not believe the legal advice that Pence actually had standing to intervene.
Trump in the weeks leading up to the attack had latched onto a memo from conservative lawyer and adviser John Eastman that laid out a variety of scenarios in which Pence could change the electoral vote count and therefore the outcome of the 2020 election.
In video of closed-door testimony played during the House Jan. 6 committee’s June 16 hearing, former Pence chief of staff Marc Short, former Trump adviser Jason Miller and former White House attorney Eric Herschmann said there was consensus among advisers in the White House that the legal opinion of Eastman was unsound, and Pence had no legal standing to intervene either to reject votes or suspend Congress’ proceedings.
“It made no sense to me,” Herschmann told the committee in the video testimony.
He recalled a conversation with Eastman in which he asked: “You are saying you believe the vice president acting as president of the Senate can be the sole decision-maker as to, under your theory, who becomes the next president? And he said yes. I said, ‘Are you out of your f***ing mind?’ That was pretty blunt. I said ‘You are completely crazy. You are going to turn around and tell 78 plus million people in this country that your theory is this is how you are going to invalidate their votes, because you think the election was stolen? They are not going to tolerate that. You are going to cause riots in the streets.’”
Eastman responded with “words to the effect of, there’s been violence in the history of our country to protect the democracy or to protect the republic,” Herschmann said.
Miller said DOJ official Jeffrey Clark and Trump campaign counsel Matt Morgan also thought Eastman’s advice “was crazy.”
Short also said that Trump chief of Staff Mark Meadows indicated to him before Jan. 6 he also understood Pence had no grounding to intervene in Congress’ count, regardless of whether Meadows said that publicly or to the president himself.
The June 16 hearing was the third of several planned by the Jan. 6 committee, this one focused on Trump’s efforts to pressure former Pence. In the year since its creation, the committee has conducted more than 1,000 interviews, seeking critical information and documents from people witness to, or involved in, the violence that day.
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