On January 4, 2021, President Donald Trump, Vice President Mike Pence, and key members of Pence’s staff met with law professor John Eastman inside the White House.
According to Pence counsel Greg Jacob’s testimony on Thursday to the House select committee investigating January 6, over the course of that meeting, Eastman laid out what he claimed were the two remaining legally viable paths to a second Trump term. Both would have relied on Pence taking dramatic actions during the joint session of Congress two days later, and both would have involved, in Rep. Liz Cheney’s words, “pretend[ing] that fake electors were real.”
The first option was for Pence to reject outright the electoral votes of the swing states where illegitimate “alternate” slates of electors claimed to exist, shifting the Electoral College math in Trump’s favor.
The second option was for Pence to use his capacity as presiding officer to declare a 10-day recess and demand that the state legislatures in the allegedly disputed states reexamine and recertify their electors.
Former federal judge Michael Luttig, a highly respected conservative jurist who advised Pence in the days before January 6, said in written testimony that if Pence had obeyed Trump’s wishes, “America would immediately have been plunged into what would have been tantamount to a revolution within a paralyzing constitutional crisis.”
Thursday’s hearing of the House committee investigating the Capitol attack explored the public and private pressure Trump, Eastman, and their associates placed on Pence in the days leading up to January 6, as well as Pence’s resistance to that pressure even as a mob threatened his life.
Part 1: The Days Leading Up to January 6
Jacob testified that he first learned of Eastman’s legal theories—infamously recorded in a pair of memos—in early December 2020. In both written and oral testimony, he said that Pence’s initial instinct was that Eastman’s theory was absurd, writing that Pence knew “the Framers could not possibly have intended to empower the Vice President to reject duly ascertained electoral votes, or to unilaterally suspend the constitutionally mandated vote counting proceedings.” Jacob also recounted to the committee his own detailed review of the text, structure, and history of the Constitution, the 12th Amendment, and the Electoral Count Act of 1887. This review, combined with, “frankly, common sense,” confirmed Pence’s instinct.
In video of past deposition testimony, Pence chief of staff Marc Short said that Pence had expressed this view to Trump “many times” and that he had been “very consistent.”
Luttig said that the alleged dual or alternate slates of electors had no legal significance because they had not been “officially certified” by their respective states. Jacob agreed, and he reiterated the unambiguous truth that the vice president cannot reject electors. Still, he and his colleagues needed to thoroughly research the vice president’s role due to the high likelihood of objections being raised, as had happened in 2000, 2004, and 2016. They found that in 230 years of presidential transitions, no vice president had ever claimed the authority over the proceedings that Eastman wanted to claim, and no electoral votes had ever been returned to the states for recertification—despite some states actually submitting more than one certified slate of electors in 1876.
According to testimony from Pence aides, Eastman admitted on multiple occasions that his theory did not hold weight. On January 4, he eventually verbally acknowledged to Jacob that his theory violated the Electoral Count Act of 1887—but that he, Eastman, thought the Electoral Count Act was unconstitutional. In a conversation with Jacob during a meeting on January 5, Eastman first claimed that he thought his plan, if executed, would be struck down at the Supreme Court 7-2 before eventually conceding that the Trump team would lose 9-0. He pivoted from there to claim that the courts wouldn’t intervene in such a political matter.
Rep. Pete Aguilar, who along with senior investigative counsel John Wood led the questioning of witnesses in the hearing, noted (as did Jacob) that if Eastman’s theory were true, then it would almost certainly have been used by the Democratic lawyers advising Al Gore in 2000. Another objection Jacob said he raised to Eastman was what future vice presidents would do: Did he really want Kamala Harris to have the same authority in 2025 that Eastman claimed Pence had in 2021? Remarkably, Jacob testified that Eastman said that it would have been wrong for Gore to do it in 2001 or for Harris to do it in 2025, “but I think we should do it today.”
By January 4, Trump had engaged in what Aguilar called a “multi-week campaign” to pressure Pence in tweets, private conversations, and at least one meeting with members of Congress. After meeting with Pence, Short, Jacob, and Eastman in the White House that day, Trump flew to Georgia, where he publicly lashed out at Pence.
“I hope Mike Pence comes through for us, I have to tell you,” he told a crowd of supporters at a rally for Republican Senate candidates. “Of course, if he doesn’t come through, I won’t like him quite as much.”
According to Jacob, on January 4 Eastman had advocated for sending the electors back to the states because he thought the other option “would be less politically palatable.” But in a meeting the next day he changed his preference and told Jacob that he recommended the vice president reject the electors. It was in a conversation with Jacob that day that Eastman said he thought the courts would not intervene.
Part 2: The Day of January 6
During a meeting with his staff on the morning of January 6, Pence stepped out of the room to take a call from Trump—who was calling from the Oval Office with many of his family members present.
The committee played a video Thursday of deposition testimony about this call and photographs taken in the Oval Office during the call. Trump’s daughter Ivanka said it got “pretty heated,” and White House staffer Nicholas Luna said he overheard the president use the word “wimp.” Other witnesses said Trump told Pence that he had “made the wrong decision” in picking him as his running mate in 2016.
Then, Trump revised the draft of his upcoming speech at the Ellipse, adding lines criticizing Pence, who had been perhaps the most loyal Trumpist in the entire federal government for four years.
“I hope Mike has the courage to do what he has to do, and I hope he doesn’t listen to the RINOs and the stupid people that he’s listening to,” Trump said at the rally.
At 2:13 p.m., the mob breached the Capitol building, and Trump was told shortly thereafter. Ben Williamson, an adviser to White House Chief of Staff Mark Meadows, and Sarah Matthews, the deputy White House communications director, testified in their depositions that they asked Meadows to tell Trump to tweet or say something to stop the assault on the Capitol. Instead, at 2:24 p.m., Trump tweeted that Pence “didn’t have the courage to do what should have been done to protect our Country and our Constitution.”
Aguilar said while presenting evidence that the committee has evidence that the mob “surged” after this tweet. As the Secret Service took Pence and his entourage to a secure, undisclosed location in the Capitol complex, they came within 40 feet of the mob. A Proud Boy informant told the FBI that the group would have killed Pence if given the chance.
At the secure, undisclosed location, Jacob testified that Pence continued the work of government, including placing a call to the acting defense secretary. At no point during the day did Trump call Pence to inquire about his safety, according to Jacob.
Remarkably, Eastman continued to defend his plan. In an email to Jacob at 11:44 p.m., he wrote, “[n]ow that the precedent has been set that the Electoral Count Act is not quite so sacrosanct as was previously claimed, I implore you to consider one more relatively minor violation and adjourn for 10 days to allow the legislatures to finish their investigations as well as to allow the full forensic audit of the massive amount of illegal activity that occurred here.”
Eastman later emailed Trump adviser Rudy Giuliani, “I’ve decided that I should be on the pardon list, if that is still in the works.” He did not receive a pardon. While being deposed for the committee’s investigation, he pleaded the Fifth Amendment 100 times.
White House lawyer Eric Herschmann said that on the morning of January 6, Giuliani seemed to privately admit in a phone call that Eastman’s theory was wrong, before he later introduced Eastman at the rally at the Ellipse and told the crowd the plan was “perfectly legal.”
In his written statement, Judge Luttig described the legal arguments of Eastman and the Trump legal team as “the product of the most reckless, insidious, and calamitous failures in both legal and political judgment in American history.”