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Don Lemon Tonight

Mike Pence's Aide Knew What He Can't Do; Donald Trump's Former Adviser In Hot Water; Criminal Case Is DOJ's Job. Aired 10-11p ET

Aired June 16, 2022 - 22:00   ET




LAURA COATES, CNN HOST: DON LEMON TONIGHT starts right now. Hey, Don Lemon.

DON LEMON, CNN HOST: Hi. How are you? We'll see you tomorrow night.

COATES: All right.

LEMON: Great job tonight, Laura Coates. Thanks very much.



Devastating testimony from the January 6th committee hearing on Donald Trump's relentless campaign to pressure the vice president, the former Vice President Mike Pence to overturn the 2020 election. And it all came from Trump's inner circle.

White House staffer and attorneys and aides to Pence as well saying this, that Trump was warned repeatedly that Pence had no authority to toss out the results and that a scheme to do so hatched by a conservative law professor John Eastman was bogus and it was unconstitutional.

Witnesses testifying that Trump went so far to badger and belittle Pence in a phone call on the morning of January 6th, just hours before the deadly insurrection. Listen to this.


UNKNOWN: Then he said at some point there's a telephone conversation between the president and the vice president, is that correct?


IVANKA TRUMP, DONALD TRUMP'S DAUGHTER: When I entered the office the second time, he was on the telephone with who I later out to found out to be, was the vice president.

UNKNOWN: Could you hear the vice president or only hear the president's end? HERSCHMANN: I only hear the president's end. At some point it started

off as a calmer tone, everything, and then became heated.

TRUMP: The conversation was -- was pretty heated.

UNKNOWN: Did you hear any part of the phone call even just the end that the president was speaking from?


UNKNOWN: All right. What did you hear?

LUNA: As I was dropping off the note, I -- my memory, I remember hearing the word, wimp. Either he called him a wimp. I don't remember he said, you are a wimp. You'll be a wimp. Wimp is the word I remember.

UNKNOWN: It's also been reported that the president said to the vice president, that something to the effect that you don't have the courage to make a hard decision.

KEITH KELLOGG, FORMER NATIONAL SECURITY ADVISOR TO VICE PRESIDENT MIKE PENCE: Words -- I don't remember exactly but something like that. Yes.


KELLOGG: -- being -- like, being, you're not tough enough to make the call.

UNKNOWN: Something to the effect this is the wording is wrong. I made the wrong decision four or five years ago.

UNKNOWN: And that the word that she relayed to you that the president called the vice president, I apologize for being impolite but do you remember what she said her father called him.

UNKNOWN: The p word.


LEMON: Well, there's much ground to cover on the extensive testimony at today's hearing. So, I want to turn right away to CNN's chief political analyst, Gloria Borger, Olivia Troye, the former Homeland Security and COVID task force adviser to Vice President Pence, and counterterrorism analyst Philip Mudd. Also with us, CNN political commentator Scott Jennings.

Good to see all of you. Good evening. Thanks for joining.

Gloria, you first. That heated phone call between Donald Trump and Mike Pence on January 6th. I mean, we see the photos. The idea that Trump was still bullying and pressuring his vice president knowing the plan to overturn the election was illegal it is stunning.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Yes, it is stunning. Particularly since there was no more loyal vice president in the world than -- than Pence was. I mean, remember how he spent years telling us we all stood on the broad shoulders of Donald Trump. Remember that? And you know, I was talking to some people on the committee and they said, look, it seemed a little bit as if, for a while, Pence was looking for way to figure out how maybe he could make Trump happy. Maybe there was some way to work this out.

And of course, after he talked to legal scholars and his own counsel, he discovered there wasn't, that it would have been illegal. And Trump knew that he had lost the election, knew that he was asking his vice president to do something that was completely illegal. And decided he still would bully him up until the very last minute when he tweeted about him before that crowd and then the crowd invaded the capitol.

LEMON: Yes. But listen, we shouldn't be surprised by it.

BORGER: Right.

LEMON: And I don't think Pence probably should have been either knowing the history --

BORGER: Probably wasn't.

LEMON: -- of Donald Trump over the years. Olivia, I want to come to you because you were in that hearing room. Trump calling your former boss the Vice President Pence, a wimp. Another witness said that he was told that he called him pushy. I mean, this call was scathing, it makes it really clear how intense the pressure was that Pence was facing that morning.

OLIVIA TROYE, FORMER HOMELAND SECURITY ADVISER TO VICE PRESIDENT PENCE: Yes, doubt. And look, this pressure went on for days, right, in the lead up. And the worst part is it was not only internal, it was external facing as well with all of these multiple layers of actors. And also, never mind the coordination of getting this message of the potentially stolen election supposedly, to domestic extremist groups who were being called to arms on January 6th and directly putting Mike Pence's life at risk all as a result of all of these things going on behind the scenes.

And I'm just grateful that in that moment Mike Pence did hold the line for our democracy and he did, you know, stand up and held up his oath to the Constitution.


LEMON: Scott, you know what's clear here and that is how little concern that the former president had for the former vice president's safety. I mean, even after Trump was informed about the violence on the capitol knowing his V.P. is there and in danger, he tweeted about Pence's lack of courage and the rioters reacting. Watch this.


UNKNOWN: Here is what the president in his 2.24 p.m. tweet while the violence at the capitol was going on. And here is what the rioters thought.

UNKNOWN: Nothing but a traitor and he deserves to burn with the rest of them.

UNKNOWN: So, it escalated after Pence. Pence -- Pence didn't do what we wanted.


UNKNOWN: Pence voted against Trump.

UNKNOWN: OK. And that's when all this started?

UNKNOWN: Yes. That's when we marched on the capitol. We have been shot at with rubber bullets and tear gas.

UNKNOWN: We just heard that Mike Pence is not going to reject any fraudulent electoral votes.


UNKNOWN: That's right. You've heard it here first. Mike Pence has betrayed the United States of America. Mike Pence has betrayed this president and he has betrayed the people of the United States and we will never, ever forget.


UNKNOWN: It's really simple. Pence betrayed us, which apparently everybody knew he was going to and the president mentioned it like five times when he talked.


LEMON: So, the committee detailed how after Trump's 2 -- was it 2.24 tweet. The tweet at 2.24 that the crowds outside and inside the capitol surged. They heard that. I mean, do you think they heard that as a call to action, Scott?

SCOTT JENNINGS, CNN POLITICAL COMMENTATOR: Well, of course. I mean, listen to their own words. And I mean, the mob had already been whipped into a frenzy to some degree. And then that ended up even further and, you know, one of the things I was struck by today was that the mob got within 40 feet of the vice president. I mean, we're darn lucky that something worse didn't happen and it was already a bad enough day.

You know, Do, I've been thinking about the politics of this of course as a political commentator, and you know, as we get into 2024, Donald Trump is going to run, Mike Pence is going to run, other people are going to run. You know one of the first questions in this campaign in a debate somewhere is going to be, would you have done what Mike Pence did the day he turned -- turned away Donald Trump's (Inaudible) to overturn this election.

And I want to know what all those candidates are going to say to that question. You know, Trump is going to put them on the spot. A reporter or a moderator is going to put them on the spot. This is going -- what we learned about today and what Mike Pence did is going to be one of the central questions for all these candidates as they ramp up their own campaigns in '24. So today, to me was seminal for a number of reasons, not the least of which is how folks are going to deal with it as they seek the White House themselves.


BORGER: It will be seminal --

LEMON: Hold on. Trump is going to put who on the spot?

JENNINGS: He's going to put anybody who runs against him on the spot.

LEMON: OK. I get it.

JENNINGS: I'm telling you that if he and Pence are on a stage somewhere together, he is going to put Pence on blast again and he is going to demand answers out of everybody. This debate, this idea that Mike Pence did his duty versus Trump's version of events where Mike Pence is a traitor, this central debate, to me, is going to be one of the defining items of the presidential primary in 2024. This is a big deal.

LEMON: Is he going to want to bring that up? I mean, well, I guess so. You know, it is the -- his election lies. Go on, Gloria. Sorry.


BORGER: But it's already playing out -- I'm just going to say, it's already playing out in congressional races.


BORGER: And Senate race, primaries. I mean, that has been the question. You know, do you believe the election was rigged? Do you believe Mike Pence was wrong? It's starting already. And it will continue.

LEMON: Yes. So, speaking of the vice president, and Scott mentioned this, Phil, that Pence was just 40 feet from the mob. They got, you know, of those Trump supporters they gotten within 40 feet of the vice president.

We also learned today that an FBI informant from the Proud Boys said that the group would have killed Mike Pence. Did the committee connect the dots between Trump and actual threat to the vice president's life?

PHILIP MUDD, CNN COUNTERTERRORISM ANALYST: Boy, I think that's a really difficult connection to make. Look, if you're sitting in the seat of Mike Pence, you don't know what's going on. I think one of the things going forward into a political campaign as people saying what did Mike Pence do? Would I have done that?

Let's assume, and I think this is a safe assumption. He doesn't know what's going on. He is sitting there saying if I leave, I appear to be weak. I appear to be setting up my boss. That is the president to say I left when there was a critical decision going on the Congress that I was a party too.


I think Mike Pence wins this one because of a basic question, Don. And that is, if you're going -- if you go out saying what would I have done in Mike Pence's position, the answer is, the tough guys stay and deal with the situation. That's what Mike Pence did.


MUDD: He didn't walk away. That's the answer.

LEMON: Olivia, listen. Mike Pence did the right thing. Give credit where credit is due. But I mean, the bar, has the bar become so low now where someone does their constitutional duty is now being lauded as doing something that was extraordinarily great. That's what the vice president is supposed to do. That's his job.

TROYE: You're right. He does his duty that say. And that's what he did, certainly. And look, I've had my, you know, I've been critical of my former boss when he has tried to be half in and half out in MAGA world still. Right?

And the aftermath, he was still going along with the election integrity negative, which we can clearly see stems from this ongoing discussion internally in the White House at the time of how to do this illegal act.

And so, when you draw the thread and you pull the thread a little bit and you draw across the narrative, this -- this thing is still living today. I mean, you watch it play out in the threats to Mike Pence's life on January 6th and to the leadership of our country. But this threat is still looming across our country, because there are several people out there either being installed in critical positions for future elections, or they're running for office and they're still pushing and running off of the fact that they are telling people that the election in 2020 was stolen from them.


TROYE: And so, I think that is the question for Republicans today. They've seen that Trump has no loyalty. He will send a mob to -- to his own vice president for the sake of obtaining power. And they all know this.

LEMON: You're right. I think we should also be cognizant of the fact that in considering what's happening with these elections all around the country. There are going to be many people who will be put in the same position or similar positions as to Mike Pence. Right? Look what we're having in one state now where they won't even certify the election. So, I think we're going to be seeing a lot of that and that people are going to have really, the courage to be able to stand up and do what is their constitutional duty as with Mike Pence did. Gloria, I want to play some more and get a response. This is a

committee. They're explaining Trump's clips speech. Initially, he didn't even include the attacks on Pence. Watch this.

BORGER: Right.


REP. PETE AGUILAR (D-CA): Our investigation found that early drafts of the January 6th ellipse speech prepared for the president included no mention of the vice president. But the president revised it to include criticism of the vice president, and then further adlibbed. Here is what the president said on January 6th after his call with Vice President Pence.

DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES OF AMERICA: I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election. All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.


D. TRUMP: And I actually, I just spoke to Mike, I said Mike that doesn't courage. What takes courage is to do nothing.


LEMON: I said eclipse, I should have said ellipse, but it was a total eclipse of democracy that day at an attempt at least.

BORGER: Right.

LEMON: So, he kept attacking Pence beyond what we just heard. He was not going to told no.


BORGER: He couldn't stop.


BORGER: He couldn't stop. And first of all, he already knew what Pence was going to do. He was standing there saying to his supporters well, gee, I hope Mike Pence does the right thing. He knew Mike Pence was going to certify the election. So purposefully, he was lying to his supporters, because he knew what Pence was going to do. And he was revving them up, because that is exactly what he wanted to do.

And there is now a picture that I'm assuming will become iconic of somebody giving Pence a cell phone and him watching the president give that speech. I don't know if it was in real-time or YouTube, or whatever, but him watching the president at some point do that. I believe it was a YouTube.

But, you know, so, Pence, mister loyal, is watching the president lie, knowing what he told the president. Knowing that the president called him a wimp and everything else. And then pretty soon his life is going to be, you know, at stake here. He is going to be 40 feet away from, you know, the rioters. And he's going to be stuck in that basement for four hours. And he's not going to get one phone call. Not one phone call from the President of the United States.

LEMON: Yes. He's standing at looks like the loading dock.

BORDER: A loading, yes.


LEMON: Yes, at the -- right. Or a garage and he's on the phone and then he's looking at the phone as well as to what you were saying, Gloria.

I want everybody to stay with me. Because we have much more ahead of our coverage of the testimony from today's January 6th committee hearing. One person behind the plot was ready and willing to accept violence as an effect of it.


LEMON: So, we're back and we're talking about the testimony from the January 6th hearing. It could not have been more direct. Trump knew the plan to overturn the 2020 election was illegal, but he pressured Mike Pence to do it anyways.

So, Gloria is back with me, Olivia, Scott and Philip, as well. Philip, let's start with you. And I want to play this for you. This is some of the taped testimony from the Trump White House attorney, Eric Herschmann. He says that John Eastman was willing to tolerate violence to overturn the election. Watch.


HERSCHMANN: I said you're going to turn around and tell 78 plus million people in this country that your theory is this is how you're going to invalidate their votes because you think the election was stolen? I said, they're not going to tolerate that. I said you're going to cause riots in the streets.


And he said, words to the effect of there's been violence in the history of our country or to protect the democracy or protect the republic.


LEMON: So, Phil, what he's talking about here is John Eastman, the lawyer advising the president but is it clear to you that Trump was also willing to accept violence to stay in power?

MUDD: Heck, no. There's two questions here. There's a question of whether I think the president did the right thing. No. There's a question of what I think the Department of Justice will do, let me give you a couple of perspectives, Don.

Number one, what's the likelihood you could win a conspiracy case? That is a really difficult case to prove. Not only what happened but what people were thinking when they went down the path that happened on January 6th. Very difficult to prove. That's going to take a lot of people and millions of dollars to pursue.

So, let's guess that you don't win that case. If you don't win that case at the back end, if you are the Department of Justice, Merrick Garland, the attorney general, you are perceived to be someone who is pursuing Donald Trump because you have partisan political interests.

I'm not saying that Trump did the right thing, I'm not saying that the case is the wrong thing, I'm saying that if you are at the Department of Justice, the likelihood that you win that case is low. The risk of losing that case is high. I wouldn't pursue it if I were the attorney general.


LEMON: Even if people are telling you what they thought and that they are telling you that they were inspired --


MUDD: Yes. But -- sure.

LEMON: -- to act by the former president.

MUDD: The president could have said my advisers told me I won. I thought I won. That wasn't a conspiracy. I tried to do something --


LEMON: No, but none of his advisers told him that he won.

BORGER: But they didn't.

LEMON: Not one of his advisers told him he won.

MUDD: Don, you've got to go not to court of public opinion but the court of law.

LEMON: No, no, no, no. No, no, no, no. Hold on. You're not hearing what I'm saying.

MUDD: I'm hearing you.

LEMON: Every single person who testified, his advisors told him -- and I'm not saying you're wrong, I'm saying on this one every advisor -- on this one you're wrong. Every single adviser told him that he lost.

MUDD: No, you're wrong.

LEMON: The only people who told -- (CROSSTALK)

MUDD: No, Don, you're wrong.

LEMON: The only person who told him that he won was Rudy Giuliani --

MUDD: You're wrong.

LEMON: -- and the crazy, you know, voting box people.

MUDD: Don't you think that the defense can find witnesses who said the president thought that he won. Come on, Don. The defense is going to find people who said the president believed he was right. How can this be a conspiracy if the president said he was trying to defend democracy.

LEMON: You didn't ask me -- we didn't talk about, you said that -- you said that the president's advisers told him that he won.

MUDD: Correct.

LEMON: Not one from the president's advisers told him he won.

MUDD: I don't buy it. I'm going to tell you, defense attorneys are going to find people who say --


MUDD: -- that the president thought he won.

LEMON: Fine. OK.

MUDD: Let's go, Don. Come on.

LEMON: No. I just don't see how, and when he had 60 different court cases, there is no way in hell that he thought he won, and no one with any sense told him that he won. You're not making sense, I'm sorry. You're not making sense right now, Phil.

MUDD: All right. You lose.


MUDD: But go ahead.

LEMON: All right. Show me the evidence. Present to me one person who told him that he won, an adviser. Which adviser told him he won?

MUDD: I'm just saying, are you going to tell me, Don, are you going to tell me, yes or no, that you cannot find a defense witness who says the president thought he won. Yes, or no?


LEMON: I'm not saying you can't find one.

MUDD: Come on, Don.


LEMON: But to this point there isn't one. There is not one.

MUDD: Come on.

LEMON: I'm asking you to tell me one person who is --

MUDD: You're going --

LEMON: -- one adviser, legitimate adviser who testified to the committee and they told --


MUDD: Well, because --

LEMON: -- them that Donald Trump won.

MUDD: Because they told the committee something different than they told the president.

LEMON: Phil, you are --

MUDD: Come on.

LEMON: Come on, man. You're fishing for -- go ahead.


MUDD: Did you -- did you read the press reports about the difference --

LEMON: Scott -- of course.

MUDD: -- between what people said two years ago --


LEMON: It's not about the press reports. I've read the evidence. The evidence --


MUDD: Come on. You're wrong.

LEMON: The evidence that presented -- OK, fine. If that makes you happy then you're doing exactly what Trump and Giuliani did. So, if that makes you feel good, then go ahead.


MUDD: Yes. Yes, I am.

LEMON: So, Scott another -- another wow moment for Pence attorney Greg Jacob talked about a conversation that he had with John Eastman on January 5th . Eastman makes this distinction between Pence's authority to overturn the election and whether Democratic vice president could do the same. Watch that.


GREG JACOB, FORMER COUNSEL TO VICE PRESIDENT PENCE: You weren't jumping up and saying Al Gore had this authority to do that. You would not want Kamala Harris to be able to exercise that kind of authority in 2024 when, I hope Republicans will win the election and I know you hope that too, John. And he said absolutely. Al Gore did not have a basis to do it in 2000. Kamala Harris shouldn't be able to do it in 2024 but I think you should do it today.


LEMON: Is there anything that you could take from that other than he knew it was wrong and illegal and he wanted to go along with it anyway? Are you going to -- are you going to put me on the spot like Phil just did?


JENNINGS: No, I'm going to be -- I'm going to be short and sweet and tell you, a, he knew he's wrong. B, we know he knew he was wrong because he asked for a pardon. And c, if you want to make this relevant to what's going on in Congress today, it is past time for Congress to reform the Electoral Count Act and make crystal clear that the vice president's role in all this is purely ceremonial.

Because obviously, people were trying to, you know, fool around with this -- with law and it could be updated. I know there's a bipartisan group working on it in the Senate. Go ahead, pass the reforms. Take this off the table.

So, you know, I mean, it's inconceivable to me that someone this Looney Toons got this close to the President of the United States but at least we can prevent it from happening again.

LEMON: Hey, Phil. What Scott said. So, listen, so, Olivia, you know Marc Short. You know Greg Jacob. You worked for the vice president and all these people knew that this scheme was happening and that it was illegal. Why didn't they speak up at the time?

TROYE: You know, I got to say, as someone who was very outspoken prior to this day, yes, it makes you wonder when all of these people knew and witnesses, why didn't they come forward. You know, for the sake of Greg Jacob, I did work with him. He has tremendous integrity. He was one of my closest colleagues on the staff and he showed that integrity on a daily basis.

And so, I am grateful that someone like him was there in this moment to help Mike Pence navigate the situation. Imagine what would have happened if someone like Greg Jacob wasn't there. If someone wasn't there to help push back on these people. Like, that's why, you know, the service of these people does matter in the moment especially. Imagine what would have happened if it was Eastman instead kind of

enabling the whole process and not holding the line.

So, I think you're hearing their voices now. I think these hearings are critically important because of that. Because I think Americans out there, they need to hear from these people who are firsthand witnesses of just how bad it was.

And again, these are Republicans talking. Right? Coming forward and saying this is what it was. Everyone knew that this was illegal. They were pressuring Pence to do this thing. And I'm grateful that, you know, we are very lucky that it could have been worse. It could have been that much worse.

LEMON: Gloria, I have a -- I have a question for you but let me ask Olivia. Were they just scared? I mean, this is simple answer. Maybe they were just afraid.

TROYE: Yes. So, I did want to get to that actually because part of the reason that I was there today was really in support for someone like Greg Jacob. Because I know how hard it is to come forward. And I know the wrath that comes your way. There's no doubt that these people are going to get death threats now that their names are known.


LEMON: Yes. That's what I was getting at.

TROYE: And when you see someone like me --

LEMON: I'm glad you're saying this. yes, go on.

TROYE: -- come forward, they watched what happened to me.


TROYE: They saw, you know, the wrath and the ire that this -- comes with telling the truth and that's what these people are doing. They are just telling the truth.

LEMON: Gloria, that's very real what, you know.

GLORIA: You know, look, absolutely. And you know, the thing that it makes me think about is people who have talked about being in the administration after they've left and said the reason I stayed was because I needed to be a guardrail.

We were the guardrails in the, you know, in the Trump administration. But when you really lift the veil as this committee has done, you see that people weren't guardrails. People, you know, the president said the election was stolen. He led all these outsiders in. And they were there and there was nothing they could do about it until the very end when there was no other choice. When democracy was at stake. When there were rioters on steps of the capitol.

When -- but when you look at how the president was able to surround himself with outsiders and push away most of the insider except maybe for the White House chief of staff, you kind of begin to understand how the guardrails when it came to Donald Trump really didn't matter.

And there's one more thing I want to say. That picture I was talking about before was not of the president at the ellipse that Pence was looking at on somebody's iPhone. I believe it was Pence in that secure location looking at someone's iPhone watching the president praise the rioters --


BORGER: -- on the video that he did.

LEMON: Got it.

BORGER: And can you imagine -- there is the picture. That's right. Can you imagine being the vice president, hiding in the capitol while the president is out there on a video praising the rioters. I think you could see it on the woman's face standing next to him, presumably a staffer. It's just -- it's just kind of a remarkable Shakespearean moment --


BORGER: -- that the man that he had supported entirely was suddenly out there praising the people who said they wanted to kill him.


LEMON: Yes. Yes.

TROYE: I believe that's actually Pence's daughter too.

BORGER: Is it? I'm sorry.

TROYE: Which is striking. It's such a heartbreaking photo to see.

BORGER: Is that Pence's daughter? Thank you.

TROYE: I think that's Charlotte?

LEMON: Well, thank you all. And Scott, you see I don't just fight with you. I fight with Phil as well. So, you got off easy to me.

MUDD: Don't ever fight with me again.


JENNINGS: I believe you and I were in harmony.

LEMON: Thank you, guys. I really appreciate it. I'll see you soon.

BORGER: Thanks.

LEMON: Thank you. LEMON: The committee laying out Trump's pressure campaign to get Pence to overturn the election but is any of it actually criminal? That's next.



LEMON: Today's hearing highlighting just how much pressure Mike Pence was under by the former president to overturn the 2020 election. Testimony from former Pence counsel Greg Jacob made it very clear that the mastermind behind the plan, John Eastman knew his proposal was unconstitutional.


UNKNOWN: Did John Eastman ever admit, as far as you know, in front of the president, that his proposal would violate the electoral counting?

JACOB: I believe he did on the 4th.

UNKNOWN: Did Dr. Eastman ever told you what he thought the U.S. Supreme Court would do if it had to decide this issue.

JACOB: Yes. We had an extended discussion an hour and a half to two hours on January 5th and when I pressed him on the point, I said John, if the vice president did what you're asking him to do, we would lose nine to nothing in the Supreme Court, wouldn't we? And he initially started, well, I think maybe you would lose only seven to twp. And after some further discussion acknowledged, well, you're right. We would lose nine, nothing.


LEMON: So, I want to discuss now with CNN legal analyst Elie Honig is here, and Ben Ginsberg, the Republican election lawyer who was a witness at Monday's hearing. We're glad to have both of you. Good evening.

Elie, I'm going to start with you. It's clear that Eastman knew his proposal wouldn't hold water in court. Is what he suggested just provocative or is it outright criminal?

ELIE HONIG, CNN SENIOR LEGAL ANALYST: Well, Don, John Eastman thinks it might be criminal, we know that because he asked for a pardon. And we know that because he took the fifth amendment. They are trying to lay the ground work that it may be criminal. I think the committee is certainly trying to lay the groundwork that they can

hand over to DOJ. The DOJ can pick up on it that it maybe criminal.

And there were really two aspects to the argument we saw today. One, Eastman's theory was not just wrong but outrageous, ridiculous, absurd and dangerous. But lawyers are allowed to have outrageous, ridiculous argument sometimes. I maybe have seen a couple of them. Maybe Ben has as well. But the difference is, here they showed that Eastman knew it, that he

admit it, I know this is a loser. I know this won't win. And if you would advance that kind of argument in furtherance of some other criminal objective, obstructing the counts of votes in Congress -- then I think the argument that the committee is trying to make here is that that would be criminal.

LEMON: So, Ben, even after the insurrection, Eastman continue to pressure the former vice president to overturn the election. Listen to this and we'll discuss.


UNKNOWN: And what was Vice President Pence reaction when you showed him the e-mail when Dr. Eastman after the attack on the capitol still asked that the vice president delay certification and send it back to the states?

JACOB: He said, that's rubber room stuff.

UNKNOWN: What did you interpret that to mean?

JACOB: I understood it to mean that after having seen play out what happens when you convince people that there is a decision to be made in the capitol, legitimately, about who is to be the president and the consequences of that, he was still pushing us to do what he had been asking us to do for the previous two days that that was certifiably crazy.


LEMON: Yes. So, I mean, Ben, he didn't mince words. Rubber room stuff, certifiably crazy. I mean, what does it tell you that Eastman pushed this plan even after a violent mob attacked the capitol?

BEN GINSBERG, FORMER BUSH AND ROMNEY CAMPAIGN ATTORNEY: Well, nothing good. I mean, this was a coup in search of a legal theory. They never found one anywhere close to the constitutional bounds. I think John Eastman pushing this is sort of an object lawyer for all, an object lesson for all young lawyers which is you can get too far into a representation that you sort of lose track of truth, justice in the American way. And you get in a really bad spot. It happened to John Eastman on the biggest stage imaginable and the most important case imaginable.

LEMON: Why haven't any of these guys been sanctioned? When you said you get too far into representation?

GINSBERG: Well, John Eastman never did this in court, among other things. And I think the sanctions, universally have been kind of slow to come. I think -- I think that it isn't exactly clear who would sanction John Eastman for advice he was just giving a counsel -- a client as opposed to filing in court.

LEMON: So, we learn today that days after the insurrection that Eastman e-mailed the former Trump lawyer, Rudy Giuliani, about receiving a presidential pardon. I mean, that ended up not happening and then Eastman pleaded the fifth more than 100 times in his deposition. You know, Elie talked about this, you know, just a moment ago. Is that a tell to you? That's for you Ben.


GINSBERG: I'm sorry. Yes, it is a tell that he took the fifth so many times. I mean, Donald Trump, infamously said himself that only the mob takes the fifth amendment. And so, it is a tell. I think John Eastman, especially after the fact, realized exactly how much trouble he was in for propounding these theories.

LEMON: Elie, you know, we just in the last conversation we talked about, this many people in Trump's circle told him time and time again that he lost the election yet he still pressured Pence to overturn it. How does Trump's blatant knowledge of this play into any potential future prosecution?

HONIG: OK, Don, I'm going to solve the case of Lemon v. Phil Mudd that we just saw play out in the last segment. There is a question of did he know.

LEMON: Right.

HONIG: And perhaps that's debatable. But here is where prosecutors would go next. It's enough for a prosecutor to show wither the person knew or was willfully blind, meaning buried his head in the sand, meaning covered his ears and close his eyes and said, I don't want to hear anything, I don't want to hear. I just want to hear what I do want to hear from Rudy and Sydney Powell and the pillow guy. And that kind of thing.

And I think that's the argument that you'll hear from prosecutors. The other argument that I think you would hear from prosecutors in this scenario is at a certain point when all the lawsuits are done, when all the recounts have been conducted, when all the states have certified, it doesn't even matter if you genuinely think you win, you still can't try to disrupt Congress from counting the votes on January 6th. So, I think those are the fallback arguments. Not just fall back, legitimate arguments that a prosecutor would make.

LEMON: So, can he claim, my -- the whole thing that I was talking about with Phil, and listen, I was still sort of tongue and cheek about some of it.


LEMON: But there were -- he didn't have any legitimate advisers telling him that he won. I mean, the pillow guy and Sydney Powell and Rudy Giuliani, I mean, they're not -- they weren't official presidential advisers. They were just part of his whack-a-doo team.

HONIG: Well, and when you put them on sort of both sides of the scale you have that team on one side of the scale and what -- what one of the witnessed called team normal.

LEMON: Right.

HING: From the other side.

LEMON: Right.

HONIG: But again, these aren't sort of, liberal anti-Trump lawyers who are telling him the truth. These are his own lawyers. These are -- these are --

LEMON: That was my point.

HONIG: -- respected, conservative attorneys, former judges and like.

LEMON: Yes. And think of today Luttig I thought was --


LEMON: -- very good. Thank you, gentlemen. I appreciate it. Ben, thanks so much. I'll see you next time.

GINSBERG: Thank you.

LEMON: Yes. Trump is watching the hearings and he is angry. John Kasich weighs in right after this.



LEMON: The angry mob coming within 40 feet of Vice President Pence on January 6th. The select committee saying make no mistake, Pence's life was in danger.

Joining me CNN senior commentator and former Ohio governor, John Kasich. Hi, John. How are you?


LEMON: So, listen, Pence's former attorney testifying today. So did his former chief of staff, you know, they lied -- they, excuse me, they laid out this picture of the former V.P. knowing what Trump was asking was illegal and sticking to his guns to not overturn the election. He's the hero of their story. What do you think?

KASICH: I don't think he's a hero. I mean, he couldn't overturn the election any way. He didn't have the authority to do that. But Don, it's been interesting the narrative that the committee is sort of spinning here that, you know, these people who were enablers of Donald Trump for over four years.

I mean, remember the tape that came out that was so terrible that was condemned by many Republicans. Then you had the problem down in Charlottesville. You had the kind of condemnation he did towards John McCain. The fact that he didn't sell the weapons to the Ukrainians soon enough because he wanted them to investigate Joe Biden. And then all of a sudden, in the 11th hour they say well, we didn't really like him. It's a little bit dangerous when you label people who are enablers as heroes. It's better that they came to their senses at the end. And you know, in terms of Mike Pence, I don't think he had a whole lot of choice. What was he going to, he didn't have the power to try to overturn the election? Good for him. But you know, --


LEMON: He could have held things up, though.

KASICH: These people who went along for all these years, Don, and they did nothing. And when you enable then and at the end, you get real problem which is what the committee has found here.

LEMON: I understand that. But what I'm saying is that he could have held things up. He could have tried to send it back and then --


LEMON: Yes. It just extended the process. But you're right, legally, constitutionally, he could not overturn the election. You're right about that.

KASICH: Look, when people -- when people see things that are going on that they don't like and they don't say anything about it when it's unethical or improper without principle, and then, you know, at the end when they see a real car crash and go, well, that's a terrible thing.

Well, my comment is, they should have been there from the beginning. And I don't -- I don't know why the committee is doing that. Maybe they just want to focus everything on Trump. But, you know, to me, there were a lot of enablers there around Donald Trump that got us to this point.

LEMON: You'll get no pushback on me from that. You're exactly right about that. Why isn't Pence testifying himself, though?

KASICH: I don't know. That I can't answer why he's not testifying. I don't have the answer to that. Don, one thing that has been interesting to me and I've been hearing this more from people, is you cannot never go back at course and be a Monday morning quarterback.

But what you wonder is would it have been better if Pelosi had allowed McCarthy to appoint some Republicans. It would have been disruptive but wouldn't that create an atmosphere where people who now say, I'm not going to watch that, that's just a kangaroo court, would it have been better if we truly had a bipartisan committee there even though you would have disrupters because that's what gave Watergate the power.


It was Republicans who finally turned against Nixon. The public turned against Nixon. In the beginning many of them supported him. But at the end they said, no, the evidence was too much. So, it's something we have to ask ourselves. And I think also, Don, that despite all of this --


LEMON: Do you want the answer to that? You ask me a question.

KASICH: -- whether people watch it or not --

LEMON: I know it was rhetorical.


LEMON: By my answer is no. No. This is a 1970s --

KASICH: You don't think?

LEMON: No, this is in 1973.

KASICH: Yes, I hear you.

LEMON: And mucking up the process with -- and I think it was truly bipartisan because they offered them -- she offered them the opportunity to put sensible Republicans on the committee, and he refused. She offered him the opportunity to really, to do whatever he wanted to, except that she did not want to put crazy people. People who are going to tell you --


KASICH: I understand that.

LEMON: -- it's not raining when it is raining.

KASICH: I understand it.

LEMON: So, what's the point? What would be the point of it?

KASICH: Don, I'm just --

LEMON: So, Cheney and Kinzinger, I mean, come on? Look at me. Liz Cheney, do you get any more conservative than Liz Chaney?

KASICH: No, I --

LEMON: Do you get any more conservative than Adam Kinzinger. A man who fought for our country, and he's a Republican, a lifelong Republican and most of them voted for the president, 90 percent of the time. They're not Republicans all of a sudden because they're not crazy.

KASICH: Don, you and I -- you and I understand it.


KASICH: At the time I thought, well, you know, Pelosi didn't want these disrupters on here. The question is, for the future, do we really want to -- do we want to just put people on even when at times they are not going to be very tolerable in terms of the way that they discuss things. I'm just concerned that it's taken away from this sort of --


KASICH: -- this sort of definition of bipartisan. That's just the point I make.


LEMON: But I think if we were in a time --

KASICH: It's interesting to even think about it.

LEMON: Look, I think if, you know, if Romney was the president --

KASICH: I got you.

LEMON: -- then maybe, OK. If this is a different time where we didn't have --


KASICH: Or if I were president, Don.

LEMON: -- an insurrection at the capitol or people who were trying to kill the democracy, I would say yes. But we don't live in those times. It's great. It would be great. This isn't 1973, though. Yes. John. Love you. See you.

KASICH: Well, I hear you. I hear you, Don. My only question is if I were president and this was going on around me, would you be there helping me out or would you be against me? I, the jury is out on --

LEMON: That's not my job as a journalist. I would just report them.

KASICH: I got you.

LEMON: See you. We'll be right back.

KASICH: Thanks, Don. See you.



LEMON: The State Department confirming tonight a third American volunteering on the front lines in Ukraine is missing. Grady Kurpasi is a marine veteran. A family friend tells CNN his wife hasn't heard from him since late April.

This coming as a photo emerged appearing to show two other missing Americans. It looks like they are in the back of the truck. Their hands seem to be bound. Andy Tai Ngoc Huyn and also, Alexander Drueke, they traveled to Ukraine to join the fight and have been missing for a week now. The undated photo was posted on Telegram today by a Russian blogger. We will keep on top of the story and bring you updates as we get them.

He was told it was not legal, but Trump kept pushing Pence to overturn the election anyway. The biggest bombshells from day three of the January 6th committee's public hearings. That's next.