Jan. 6 hearing: Pence lawyer says overturning election 'tantamount to a revolution'

A video depicting a mock gallows brought to the U.S. Capitol on January 6, 2021, is shown as the House select committee investigating the attack holds a third public hearing to discuss its yearlong investigation, on Capitol Hill in Washington on June 16. Photo by Ken Cedeno/UPI | License Photo

June 16 (UPI) -- The House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol centered its third hearing Thursday on how former President Donald Trump -- through one of his lawyers -- tried and failed to pressure former Vice President Mike Pence to reject the outcome of the 2020 presidential election.

The hearing featured testimony from Pence lawyer Greg Jacob and J. Michael Luttig, a retired judge who served as an informal adviser to the vice president. The two laid out discussions they had with Pence, Trump and other White House figures in the days leading up to the insurrection as the president sought to prevent the certification of the Electoral College votes in favor of Joe Biden.


Jacob and Luttig said they and Pence disagreed with attempts made by Trump counsel John Eastman to present a legal theory to justify overturning the election.


Ahead of the riots at the Capitol, Trump called on Pence not to certify the Electoral College results in favor of Biden or else he'd be "disappointed" in him.

The idea that Pence could have done such a thing was "incorrect," Luttig testified at Thursday's hearing. He took issue with a memo written by Eastman, who said dual slates of electors had been given to Pence.

"There was no support whatsoever in either the Constitution of the United States, nor 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 said.

Jacob testified that the alternative electors mentioned in the Eastman memo didn't exist.

Had Pence rejected the Electoral College, it "would have been tantamount to a revolution within a constitutional crisis," Luttig said.

Jacob said he spoke with Pence in early December about the possibility of determining the outcome of the election.

"The vice president's first instinct when he heard this theory was that there was no way that our framers, who abhorred concentrated power and 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 decisive impact on the outcome of the election."


Jacob said during an Oval Office meeting with himself, Pence, Trump and Eastman, the latter admitted that any attempt to have Pence reject the Electoral College votes likely wouldn't hold up to Supreme Court scrutiny.

"John, basically, what you have is some text that may be a little ambiguous, but nothing else," Jacob said he told Eastman, "including that nobody would ever want that to be the rule.

"Wouldn't we lose 9-0 in the Supreme Court?"

Jacob said Eastman initially said they'd likely lose 7-2, before conceding the entire high court would rule against the Trump administration.

In recorded testimony, White House lawyer Eric Herschmann said Eastman didn't appear to mind that the repercussions of having Pence overturn the election could turn violent.

"I said, 'You're going to cause riots in the streets,' and he said words to the effect of, 'There has been violence in the history of our country in order to protect the democracy, or to protect the republic.'"

Rep. Pete Aguilar, D-Calif., a member of the select committee, said Eastman invoked his Fifth Amendment right not to answer during a deposition by the panel. The congressman also shared an email Eastman sent to Trump counsel Rudy Giuliani after the Jan. 6 riots asking to have his name included on a list of pardons.


Aguilar laid out a timeline of the riots, revealing that Trump supporters breached the Capitol Rotunda as the Secret Service escorted Pence and his team to a secure location.

"Approximately 40 feet -- that's all there was -- 40 feet between the vice president and the mob," Aguilar said.

Jacob said Pence refused to leave the Capitol and instead remained on site for more than 4 hours until the mob could be cleared and the certification process could continue.

Rep. Bennie Thompson, D-Miss., chairman of the select committee, opened the hearing praising Pence for not giving in to Trump's demands.

"Donald Trump wanted Mike Pence to do something no other vice president has ever done: 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," Thompson said in opening remarks.

"Mike Pence said 'no.' He resisted the pressure. He knew it was illegal. He knew it was wrong. We're fortunate for Mr. Pence's courage on Jan. 6. Our democracy came dangerously close to catastrophe. That courage put him in tremendous danger."


Before getting into questioning of witnesses for the day, the committee showed footage from the Jan. 6 attack depicting Trump's speech ahead of the riots, calling on Pence to refuse to certify the Electoral College results. The video then showed Trump supporters calling for Pence and a makeshift gallows and noose set up outside the Capitol.

Thursday's public hearing was originally scheduled for Wednesday, but was delayed by a day due to what the committee said were "technical difficulties."

The committee said Thursday it will seek to interview Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas. Ginni Thomas is a conservative activist who discussed efforts to keep Trump in power after the 2020 election in communications with White House Chief of Staff Mark Meadows and White House attorney John Eastman.

Thompson said the panel is seeking testimony from Ginni Thomas because her involvement in efforts to overturn the election appears to run deeper than previously thought. To date, there are no indications that Justice Clarence Thomas was involved in any efforts related to the election.

The committee is expected to hold several more hearings before September.


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