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CNN Live Event/Special

January 6 Committee Hearings Continue. Aired 1-1:30p ET

Aired June 16, 2022 - 13:00   ET



RYAN NOBLES, CNN CONGRESSIONAL CORRESPONDENT: When it came to the idea that Mike Pence could stand in the way of the certification of the election results, and he kept opening those doors until he found an attorney who would do his bidding, and that attorney turned out to be John Eastman.

So that will be part of what the committee shows here as this hearing kicks off -- Jake.

JAKE TAPPER, CNN HOST: All right. Thank you so much, Ryan.

And we should note, Greg Jacob was not the only White House attorney who was dismayed and disgusted with the advice that was being given to President Trump by John Eastman.

Just a few minutes ago, with John King at the Magic Wall, I noted Eric Herschmann, the White House Counsel Office member who was talking to John Eastman, and I want to play that clip. This is what Herschmann says he told Eastman.


ERIC HERSCHMANN, FORMER WHITE HOUSE ATTORNEY: I said to him: "Are you out of your F'ing mind?"

I said: "I only want to hear two words coming out of your mouth from now on, orderly transition."

Eventually, he said: "Orderly transition."

I said: "Good, John. Now I'm going to give you the best free legal advice you're ever getting in your life. Get a great F'ing criminal defense lawyer. You're going to need it."


TAPPER: Then he hung up.


That's my favorite part. They cut it out, "And then I hung up."

Eric Herschmann testifying there before the January 6 Committee talking about what he told John Eastman and suggesting that what he was doing was illegal.

GANGEL: And Eastman actually took his advice, because what we now know is, when he came in for his testimony, he took the Fifth 146 times. I'm told today we will see some of that on tape.

TAPPER: Yes, I just want to note that the members of the January 6 Committee, Chairman Bennie Thompson, Democrat of Mississippi, Vice Chair Liz Cheney, Republican of Wyoming, and others -- there's Congressman Aguilar of California, who will be presiding today -- are coming in. And we expect them to gavel in.

But, before we do, Gloria?

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, one more thing about Eastman.

Judge Carter wrote that Eastman's e-mails -- and I'm going to quote this -- "was a coup in search of a legal theory." And Greg Jacob, whom you spoke to John about just a few minutes ago, another part of that -- another part of that e-mail...

TAPPER: Let's listen in.

BORGER: Oops. There you go.

TAPPER: Let's listen in. There's the gavel.

REP. BENNIE THOMPSON (D-MS): The Select Committee to Investigate the January 6 Attack on the United States Capitol will be an order.

Without an objection, the chair is authorized to declare the committee in recess at any point. Pursuant to House Deposition Authority Regulation 10, the chair announces the committee's approval to release the deposition material represented during today's hearing.

Good afternoon.

This is almost no idea more un-American than the notion that any one person could choose the American president, no idea more un-American. I agree with that, which is unusual, because former Vice President Mike Pence and I don't agree on much.

These are his words spoken a few months ago about Donald Trump's attempt to pressure the former vice president, pressure him into going along with an unlawful and unconstitutional scheme to overturn the 2020 election and give Donald Trump a second term in office that he did not win.

Today, the Select Committee is going to reveal the details of that pressure campaign. But what does the vice president of the United States even have to do with a presidential election? The Constitution says that the vice president of the United States oversees the process of counting the Electoral College votes, a process that took place on January 6, 2021.

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.

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 January 6. Our democracy came dangerously close to catastrophe. That courage put him in tremendous danger.

When Mike Pence made it clear that he wouldn't give in to Donald Trump's scheme, Donald Trump turned the mob on him, a mob that was chanting, "Hang Mike Pence," a mob that had built a hangman's gallows just outside the Capitol.


Thanks in part to Mike Pence, our democracy withstood Donald Trump's scheme and the violence of January 6. But the danger hasn't receded.

Led by my colleague Mr. Aguilar, today, we will lay out the facts for the American people.

But, first, I recognize my colleague from Wyoming, Ms. Cheney, for any opening statement she'd care to offer.

REP. LIZ CHENEY (R-WY): Thank you very much, Mr. Chairman.

Let me take just a few minutes today to put the topic of our hearing in broader context.

In our last hearing, we heard unequivocal testimony that President Trump was told his election fraud allegations were complete nonsense. We heard this from members of the Trump campaign. We heard this from President Trump's campaign lawyers. We heard this from President Trump's former attorney general, Bill Barr.

We heard this from President Trump's former acting attorney general, Jeff Rosen. And we heard this from President Trump's former acting deputy attorney general, Richard Donoghue. We heard from members of President Trump's White House staff as well.

Today, we're focusing on President Trump's relentless effort to pressure Mike Pence to refuse to count electoral votes on January 6.

Here again is how the former vice president phrased it in a speech before the Federalist Society, a group of conservative lawyers.


MIKE PENCE, FORMER VICE PRESIDENT OF THE UNITED STATES: ... this week that President Trump said I had the right to overturn the election.

But President Trump is wrong. I had no right to overturn the election. The presidency belongs to the American people, and the American people alone. And, frankly, there is no idea more un-American than the notion that any one person could choose the American president.


CHENEY: What the president wanted the vice president to do was not just wrong. It was illegal and unconstitutional.

We will hear many details in today's hearing, but please consider these two points. First, President Trump was told repeatedly that Mike Pence lacked the constitutional and legal authority to do what President Trump was demanding he do.

This is testimony from Marc Short, the vice president's chief of staff, who served in the Trump administration in multiple positions over four years.


QUESTION: But just to pick up on that, Mr. Short, was it your impression that the vice president had directly conveyed his position on these issues to the president, not just to the world through a dear colleague letter, but directly to President Trump?


QUESTION: And he had been consistent in conveying his position to the president?

SHORT: Very consistent.



CHENEY: But President Trump plotted with a lawyer named John Eastman to pressure Pence to do so anyway.

As a federal court has explained -- quote -- "Based on the evidence, the court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the joint session of Congress on January 6, 2021."

What exactly did President Trump know? When exactly did President Trump know that it would be illegal for Mike Pence to refuse to count electoral votes? Here is one sample of testimony given by one of the witnesses before us today, the vice president's general counsel.


QUESTION: Did John Eastman ever admit, as far as you know, in front of the president that his proposal would violate the Electoral Count Act?




CHENEY: That was January 4, two days before the attack on Congress.

A second point. Please listen to testimony today about all of the ways that President Trump attempted to pressure Vice President Pence, including Donald Trump's tweet at 2:24 p.m. condemning Vice President Mike Pence, when President Trump already knew a violent riot was under way at the Capitol.

In future hearings, you will hear from witnesses who were present inside the White House, who were present inside the West Wing on that day.

But, today, we focus on the earnest efforts of Mike Pence, who was determined to abide by his oath of office. As Vice President Pence prepared a statement on January 5 and 6 explaining that he could not illegally refuse to out electoral votes, he said this to his staff:



JACOB: I mean, the vice president had said: "This may be the most important thing I ever say." And so...

QUESTION: This meaning the statement?

JACOB: The statement.

And he really wanted to make sure that it was just so.


CHENEY: You will hear today that President Trump's White House counsel believed that the vice president did exactly the right thing on January 6, as did others in the White House, as did FOX News host Sean Hannity.

Vice President Pence understood that his oath of office was more important that his loyalty to Donald Trump .He did his duty. President Trump unequivocally did not.

Thank you, Mr. Chairman. I yield back.

THOMPSON: Without objection, I recognize the gentleman from California, Mr. Aguilar, for an opening statement.

REP. PETE AGUILAR (D-CA): Thank you, Mr. Chairman.

Today, we intend to show the American people that January 6 was not an isolated incident in the weeks culminating before it was a legal scheme and deception. We have already learned that President Trump knew he lost the 2020 election. Shortly after, he began to look for a way to circumvent our country's most fundamental civic tradition, a peaceful transfer of power. The president latched onto a dangerous theory and would not let go

because he was convinced it would keep him in office. We witnessed firsthand what happened when the president of the United States weaponized this theory. The Capitol was overrun. Police officers lost their lives.

And the vice president was taken to a secure location because his safety was in jeopardy.

Let's take a look at the effect of Donald Trump's words and actions.

I want to warn our audience that the video contains explicit content.


DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: Mike Pence is going to have to come through for us. And if he doesn't, that will be a sad day for our country.

And Mike Pence, I hope you're going to stand up for the good of our Constitution and for the good of our country. And if you're not, I'm going to be very disappointed in you, I will tell you right now.

UNIDENTIFIED MALE: I'm telling you what. I'm hearing that Pence -- I'm hearing that Pence just caved.





UNIDENTIFIED MALE: I'm hearing -- I'm hearing reports that Pence caved.


UNIDENTIFIED MALE: I'm telling you, if Pence caved, we're going to drag motherfuckers through the streets. You fucking politicians are going to get fucking drug through the streets.


UNIDENTIFIED MALE: I guess the hope is that there's such a show of force here that Pence will decide to just do the right thing, according to Trump.









RIOTERS: Hang Mike Pence! Hang Mike Pence! Hang Mike Pence! Hang Mike Pence! Hang Mike Pence! Hang Mike Pence! Hang Mike Pence!


AGUILAR: How did we get to this point? How did we get to the point where President Trump's most radical supporters led a violent attack on the Capitol and threatened to hang President Trump's own vice president?

You will hear from witnesses that Donald Trump pressured Mike Pence to adopt a legally and morally bankrupt idea, that the vice president could choose who the next president can be.

You will hear about how the vice president, the White House counsel and others told Donald Trump that the vice president had no such authority, but President Trump would not listen. You will hear how Vice President Pence withstood an onslaught of pressure from President Trump, both publicly and privately, a pressure campaign that built to a fever pitch with a heated phone call on January 6.

You will also hear that the president knew there was a violent mob at the Capitol when he tweeted at 2:24 p.m. that the vice president did not have the -- quote -- "courage" to do what needed to be done.

Let me be clear. Vice President Pence did the right thing that day. He stayed true to his oath to protect and defend the Constitution. I look forward to hearing from our witnesses this afternoon.

Mr. Chairman, I yield back.

THOMPSON: Thank you, Mr. Aguilar.

We are honored to have two distinguished witnesses who advised the vice president regarding his role on January 6.

Judge J. Michael Luttig is one of the leading conservative legal thinkers in the country. He served in administrations of President Ronald Reagan and George H.W. Bush. He was appointed by the latter to serve on the U.S. Court of Appeals for the Fourth Circuit, where he served from 1991 to 2006.


He provided critical advice for Vice President Pence regarding the role of the vice president in a joint session of Congress shortly before that fateful moment. He's written that the vice president does not have the power to select the next president of the United States.

He's also written that contrary theory espoused by one of his own former law clerks was -- quote -- "incorrect at every turn."

We are also joined today by one of the people who was with Vice President Pence on January 6. Greg Jacob was counsel to Vice President Pence. He conducted a thorough analysis of the role of the vice president in the joint session of Congress under the Constitution, the Electoral Count Act, and 230 years of historical practice.

But he also has firsthand information about the attack on the Capitol because he lived through it. He was with vice -- the vice president, and his own life was in danger.

I will now sweat in our witnesses.

The witnesses will please stand and raise their right hand.

Do you swear or affirm, under penalty of perjury, that the testimony you're about to give is the truth, the whole truth and nothing but the truth, so help you God?

Thank you. You may be seated.

Let the record reflect the witnesses answered in the affirmative.

I now recognize myself for questions.

In the United States, the people choose our representatives, including the highest official in the land, the president of the United States. The American people did this on November 3, 2020. But President Trump did not like the outcome. He did everything he could to change the result of the election.

He tried litigation, 62 cases, in fact. And that failed. He tried to pressure state legislatures to reverse the results of the election in their states. But they refused. He tried to enlist the Department of Justice in his efforts to overturn election results. But officials leading the department refused to comply.

So, eventually, he latched onto a completely nonsensical and anti- democratic theory that one man, his own vice president, could determine the outcome of the election. He wanted the vice president to unilaterally select the president.

This theory, that the vice president could unilaterally select the president, runs completely contrary to our Constitution, our laws and the entirety of our American experience. But that didn't stop -- didn't matter to President Trump.

I would now like to explore how President Trump came to latch on to this ridiculous legal theory that the vice president can select the president of the United States.

Mr. Jacob, how did this theory first come to your attention? JACOB: The first time that I had a conversation with the vice

president about the 12th Amendment and the Electoral Count Act was in early December, around December 7. The vice president called me over to his West Wing office and told me that he had been seeing and reading things that suggested that he had a significant role to play on January 6 in announcing the outcome of the election.

He told me that he had been first elected to Congress in 2000, and that one of his earliest memories as a congressman was sitting in on the 2001 certification. And he recalled that Al Gore had gaveled down a number of objections that had been raised to Florida. And he asked me, mechanically, how does this work at the joint session? What are the rules?

And I told the vice president that, in fact, I had a fairly good idea of how things work, that, actually, there aren't rules that govern the joint session, but what there is, is a provision of the Constitution that's just one-sentence-long, and then an Electoral Count Act that had been passed in 1887.


And I told the vice president that I could put a memo together for him overnight that would explain the applicable rules.

THOMPSON: So, Mr. Jacob, when you looked at this theory, what did you conclude?

JACOB: So, we concluded that what you have is a sentence in the Constitution that is inartfully drafted.

But the vice president's first instinct when he heard this theory was that there was no way that our framers, who abhorred concentrated power, 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.

And our review of text, history and, frankly, just common sense all confirmed the vice president's first instinct on that point. There is no justifiable basis to conclude that the vice president has that kind of authority.

THOMPSON: Thank you, Mr. Jacob.

We will hear more today about how, despite this conclusion by you and other top legal advisers, the former president used this discredited theory in his campaign to pressure the vice president to decide the outcome of the presidential election.

I now recognize the gentlewoman from Wyoming, Ms. Cheney, for questions.

CHENEY: Thank you very much, Mr. Chairman.

Judge Luttig, thank you as well for being here with us today.

You issued a very important statement earlier today, which I urge all Americans to read. And I'd like to ask you, Judge, about one of the sentences in your statement and ask if you could explain to us the significance of it.

You say: "Had the vice president of the United States obeyed the president of the United States, America would immediately have been plunged into what would have been tantamount to a revolution within a paralyzing constitutional crisis."

Could you elaborate on that for us, Judge?


That passage in my statement this morning referenced the most foundational concept in America, which is the rule of law. Thus, as I interpret your question, you were asking about that foundational truth of these United States, which we call America.

The foundational truth is the rule of law. That foundational truth is, for the United States of America, the profound truth. But it's not merely the profound truth for the United States. It's also the simple truth, the simple, foundational truth of the American republic.

Thus, in my view, the hearings being conducted by this Select Committee are examining that profound truth, namely, the rule of law, in the United States of America. The specific question, of course, before you and before the nation, not before me, is whether that foundational rule of law was supremely violated on January 6, 2021.


Now, to the question specifically that you asked, Madam Vice Chair, I believe that had Vice President Pence obeyed the orders from his president and the president of the United States of America during the joint session of the Congress of the United States on January 6, 2021, and declared Donald Trump the next president of the United States.

Not withstanding that then-President Trump had lost the Electoral College vote, as well as the popular vote in the 2020 presidential election, that declaration of Donald Trump as the next president would have plunged America into what I believe would have been tantamount to a revolution within a constitutional crisis in America, which, in my view -- and I'm only one man -- would have been the first constitutional crisis since the founding of the republic.

CHENEY: Thank you very much, Judge, for your solemn attention to these issues and for your appearance here today.

We're going to describe and discuss in detail what happened. And, as we do, I'm going to describe a few of the details now of some of the actions taken by a gentleman named Kenneth Chesebro.

After the Electoral College met and cast their votes on December 14 -- actually, the day before they met, Kenneth Chesebro sent a memo to Rudy Giuliani, the president's lead outside counsel.

Mr. Chesebro wrote to Mayor Giuliani that the vice president is charged with -- quote -- "making judgments about what to do if there are conflicting votes" -- close quote.

Mr. Chesebro wrote that when the joint session of Congress got to Arizona in the alphabetical list of states, the vice president should not count the Biden votes -- quote -- "because there are two slates of votes."

His justification, which we will learn more about in our next hearing, was that a group of Trump supporters in Arizona and other swing states decided to proclaim themselves the true electors for the state, creating two sets of electors, the official electors selected by the state and a group of fake electors.

This document was ordered to be produced to the Select Committee by a federal district court judge. As you will see on the screen shortly, Judge David Carter wrote -- quote -- "The draft memo pushed a strategy that knowingly violated the Electoral Count Act."

The judge concluded that -- quote -- "The memo is both intimately related to and clearly advanced the plan to obstruct the joint session of Congress on January 6, 2021."

A few days later, Professor John Eastman took up this cause. Eastman was at the time a law professor at Chapman University Law School.