Hearing Number Three

The tale of Mike Pence

Just a few thoughts to close out this third day of January 6 Committee hearings. A little bit random because there is so much here that we would be up all-night picking at every single stitch if I went through it methodically (and I’ll be on Morning Joe first thing, so I need a little sleep tonight).

But first, let me get this off my chest: I said this on Twitter, and I’ll say it again. None of these guys who were Trump-adjacent are heroes. They tolerated Trump’s failure to honor his oath for far too long. They sat through the pre-election claims Trump made that the only way he could lose would be if there was fraud, the election night claim of victory, and the absolute insanity as Trump tried to steal the election from Joe Biden while claiming it was Biden doing the stealing. That they stood up to Trump at the end, everyone from the White House lawyer Herschman (who’d represented Trump during the first impeachment trial and presumably knew what he was getting into) to Pence himself, demonstrates how far off the rails the scheme was.

Mike Pence was campaigning in Cincinnati today. You read that right. Not only did he refuse to testify himself, or even speak with the committee, he’s off making the kinds of moves that pre-presidential candidates make. By failing to testify, he withheld important information from the committee. From some of the comments today, it sounds like Pence’s staff refused to discuss the contents of conversations between Pence and Trump that they were privy too. But we now know there was at least one key conversation that was just between the two of them. It was on the morning of the 6th and testimony included only bits and pieces of it.

It’s likely to become known as the p-word call, since Ivanka’s chief of staff (why did she have one?) testified Ivanka told her Trump called Pence “the p-word” while they spoke. The call was apparently Trump’s last effort to pitch Pence, so the details of the call are important for obvious reasons and likely also to DOJ. But we don’t know if Trump conceded he’d lost the election, tried to threaten or bribe Pence to cooperate or anything else along those lines, because Mike Pence isn’t talking.

Here are three things from the hearing to chew on a little bit more:

1.    Who is Michael Luttig?

Judge Luttig graduated from my law school, the University of Virginia, the year before I started at the law school, 1981. He had worked in an administrative role at the Supreme Court before starting law school and went straight to a White House job in the Reagan administration afterwards. He clerked for Antonin Scalia while he was on the D.C. Circuit and then for Warren Burger on the Supreme Court. During the Bush administration, Luttig did a stint as the head of the Office of Legal Counsel at DOJ (the office that writes memos a lot of people dislike, like the one that says you can’t indict a sitting president). Luttig became a judge on the 4th Circuit, sitting in Richmond, Virginia, when he was 37.

After a storied, conservative-fast-lane-trajectory judicial career, he stepped down from the bench in 2006 to become Boeing’s general counsel. Luttig is a legend in conservative legal circles. If you wanted to convince the people who run in them, and who are in turn highly influential in the own orbits, of Trump’s complicity, then it would be hard to find a better person than Judge Luttig to turn to. And, of course, amazingly, Judge Luttig had a special connection here, because John Eastman clerked for him (at the same time Ted Cruz did).

Yes, Judge Luttig got down in the legal weeds, talking about the language of the 12th Amendment and the 1877 Electoral College Act. Those are the laws that govern how the Vice President is supposed to conduct the electoral vote certification. But the conclusion was clear. The vice president’s job is to certify the votes each state has duly submitted. Pence had to certify the vote for Biden. Just like Al Gore certified his own, hotly contested, loss to George Bush. Luttig, and other witnesses today explained this: there is no way the founding fathers, who were breaking away from a tyrant, would have left the decision about who the next president would be in the hands of just one man. The people make the choice, not the vice president from the outgoing administration.

But Luttig went further, and it was chilling. He called Trump "a clear & present danger." In other words, the threat isn’t over. He said that wasn’t because of what happened on January 6, but rather because of Trump’s ongoing efforts to regain control in 2024 and the serious concerns he would attempt to overturn the results in 2024 if Trump or his handpicked successor is not the winner.  

Here’s Judge Luttig’s full statement: https://s3.documentcloud.org/documents/22061497/jml-final.pdf

2.    John Eastman’s self-assessment of his role

Eastman to Rudy Giuliani: "I've decided that I should be on the pardon list, if that is still in the works."

The lawyer thought he needed a pardon. Of course, a federal judge in California agrees (read more about Judge Carter’s ruling in the largely unsuccessful civil case Eastman brought against the committee here: https://www.washingtonpost.com/opinions/2022/03/28/federal-judge-rules-donald-trump-probably-committed-crime-jan-6-insurrection/)

Subsequently, Eastman took the 5th more than 100 times when he testified before the January 6 committee, and he’s still trying to keep some of his emails out of the committee’s hands.

Before long, we’ll all be saying, “but his emails…”

If you’d like to read a nice, short primer on just how off base Eastman was, try the memo written by Greg Jacob, Trump’s chief counsel who was also a witness today. In three pages, Jacob summarizes the legal and political nuances of Eastman’s illegal, flawed proposal here: https://www.documentcloud.org/documents/22058340-greg-jacob-jan-5-memo

3.    Does it matter to DOJ?

There are two different ways to approach top level January 6 crimes from a prosecution perspective and we’ve seen DOJ use both so far. One is to prosecute people for obstructing Congress – for trying to prevent Congress from certifying the election. The other is seditious conspiracy. It’s a more serious charge because it requires proof of use of force or the intent to use it. So far, there are two different seditious conspiracies charged, one involving members of the Proud Boys and the other involving members of the Oath Keepers.

My working assumption has been that if Trump gets charged, it would be for obstruction, which is easier to prove because you don’t have to show use of force.

But after today’s layout, it’s clear there’s evidence, perhaps not enough yet to say with confidence that you’d prosecute, but enough to merit serious consideration of seditious conspiracy charges against Trump. It started with Rep. Pete Aguilar (D-Ca), who conducted the testimony today and laid out the first two pieces of evidence:

• ·      The mob was only 40 feet away from Pence at one point.

• ·      DOJ wrote in a pleading that a confidential informant says the Proud Boys would have killed Mike Pence if given the chance.

That’s pretty stunning alone, but there’s more. The committee juxtaposed Trump’s tweets with the crowd’s reactions to them. Between the speech on the Ellipse and the tweets, the crowd was chanting hang Mike Pence. The kicker is a tweet sent at 2:24p.m., after Trump was told the Capitol had been breached, that reads:

“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. USA demands the truth!”

Someone in the video montage the committee played, I didn’t catch who it was—perhaps one of the President’s aides, said it “felt like he was pouring gasoline on the fire.”

Although the committee didn’t go into it today, we know we’re heading straight for those 187 minutes while the Capitol was being overrun. Congress was under attack and Capitol police were fighting for their lives and the lives of the people they were protecting. Mike Pence was a target. And Trump did….nothing. That could be viewed as circumstantial evidence that he intended for violence to be used.

…

There’s so much more. Ginni Thomas for one thing. But we’ll continue to try to eat this elephant just a few bites at a time, so that we don’t get overwhelmed. Tomorrow is neither a Supreme Court opinions day nor another committee hearing. We’ll get a chance to catch up. If you, like me, have Republican representatives and senators, let them know you’re watching the hearings and what you think. It’s easy to be cynical and think nothing can change. But the committee’s work has been nothing short of amazing, so let’s do our part and not make it easy for them.

We’re in this together.

Joyce