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January 6 Committee Hearings Continue. Aired 2-2:30p ET

Aired June 16, 2022 - 14:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[14:00:00]

REP. PETE AGUILAR (D-CA): I appreciate that.

In our investigation, the Select Committee has obtained evidence suggesting that Dr. Eastman never really believed his own theory. Let me explain.

On the screen, you can see a draft letter to the president from October 2020. In this letter, an idea was proposed that the vice president could determine which electors to count at the joint session of Congress, but the person writing in blue eviscerates that argument.

The person who wrote the comments in blue wrote -- quote -- "The 12th Amendment only says that the president of the Senate opens the ballots in the joint session and then, in the passive voice, that the votes shall then be counted."

The comments in blue further state: "Nowhere does it suggest that the president of the Senate gets to make the determination on his own."

Judge Luttig, does it surprise you that the author of those comments in blue was in fact John Eastman?

J. MICHAEL LUTTIG, FORMER FOURTH CIRCUIT COURT OF APPEALS JUDGE: Yes, it does, Congressman.

But let me -- watching this unfold, let me try to unpack what was at the root of what I have called the blueprint to overturn the 2020 election.

And it is this. And I had foreshadowed this answer in my earlier testimony to Congresswoman Cheney.

Mr. Eastman from the beginning said to the president that there was both legal, as well as historical precedent for the vice president to overturn the election. And what we have heard today, I believe, is what happened within the White House and elsewhere as all the players, led by Mr. Eastman, got wrapped around the axle by the historical evidence claim by Mr. Eastman.

Let me explain very simply. This is what I have said would require a digression that I would be glad to undertake, if you wished.

In short, if I had been advising the vice president of the United States on January 6, and even if then-Vice President Jefferson and even then-Vice President John Adams, and even then-Vice President Richard Nixon had done exactly what the president of the United States wanted his vice president to do, I would have laid my body across the road before I would have let the vice president overturn the 2020 election on the basis of that historical precedent.

But what this body needs to know and now America needs to know is that that was the centerpiece of the plan to overturn the 2020 election. It was the historical precedent in the years and with the vice presidents that I named, as Congressman Raskin understands well.

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And the effort by Mr. Eastman and others was to drive that historical precedent, up to and under that single sentence, single pristine sentence in the 12th Amendment to the United States Constitution, taking advantage of, if you will, what many have said is the inartful wording of that sentence in the 12th Amendment.

Scholars before 2020 would have used that historical precedent to argue not that Vice President Pence could overturn the 2020 election by accepting non-certified state electoral votes, but they would have made arguments as to some substantive, not merely procedural, authority possessed by the vice president of the United States on the statutorily prescribed day for counting the Electoral College votes.

This is -- this is constitutional mischief.

AGUILAR: Judge, I think that's -- I think that's a good point.

And I think it kind of begs the question, that, if the vice president had this power to determine the outcome of a presidential election, why hasn't it ever been used before? Why hasn't that ever happened? Why hasn't a vice president simply rejected the outcome of an election and declared someone else the winner?

And, instead, as the chairman mentioned in his opening, for over two centuries, vice presidents have presided over the joint sessions of Congress in a purely ceremonial role. This even includes, as Mr. Jacob mentioned, Vice President Al Gore.

For those of us who are old enough to remember, the 2000 election came down to one state, Florida. There were weeks of recounts and litigation after the election, and Al Gore conceded. Of course, Al Gore was vice president at the time, but he never suggested that he could simply declare himself the winner of the 2000 election when he presided over the counting of the electoral votes.

Let's hear what Vice President Gore said when he described the situation he faced in 2000.

(BEGIN VIDEO CLIP)

AL GORE, FORMER VICE PRESIDENT OF THE UNITED STATES: The importance of the United States of America in all of human history, in Lincoln's phrase, we still are the last, best hope of humankind. And the choice between one's own disappointment in your personal

career and upholding the noble traditions of America's democracy, it's a pretty easy choice when it comes down to it.

(END VIDEO CLIP)

AGUILAR: Mr. Jacob, did Dr. Eastman say whether he would want other vice presidents, such as Al Gore after the 2000 election or Kamala Harris after the 2024 election, to have the power to decide the outcome of the election?

GREG JACOB, FORMER COUNSEL TO VICE PRESIDENT MIKE PENCE: So, this was one of the many points that we discussed on January 5.

He had come into that meeting trying to persuade us that there was some validity to his theory. I viewed it as my objective to persuade him to acknowledge he was just wrong. And I thought this had to be one of the most powerful arguments.

"I mean, John, back in 2000, 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 2,000. Kamala Harris shouldn't be able to do it in 2024. But I think you should do it today."

AGUILAR: Marc Short told the Select Committee that Vice President Pence consulted with one of his predecessors, Vice President Dan Quayle, regarding the role of the vice president.

Vice President Quayle confirmed Pence his view that the role was purely ceremonial.

Mr. Short hours told the committee that he, Mr. Short, received a call from former House Speaker Paul Ryan.

Here's Mr. Short's description of his conversation with Speaker Ryan.

(BEGIN VIDEO CLIP)

MARC SHORT, FORMER CHIEF OF STAFF TO FORMER VICE PRESIDENT MIKE PENCE: Speaker Ryan wanted to call and say: "You know you don't have any greater authority."

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And I to him: "Mr. Speaker, you know Mike. You know he doesn't -- you know he recognizes that."

And we sort of laughed about it. And he said: "I get it."

And he later spoke to the vice president too to, I think, have the same conversation.

(END VIDEO CLIP)

AGUILAR: Fortunately, for the fate of our republic, Vice President Pence refused to go along with President Trump's demands that he determine the outcome of the presidential election.

Mr. Jacob, what was the vice president's reaction when you discussed with him the theory that the vice president could decide the outcome of the election?

JACOB: Congressman, as I have testified, the vice president's first instinct was that there was no way that any one person, particularly the vice president, who is on the ticket and has a vested outcome in the election, could possibly have the authority to decide it by rejecting electors or to decisively alter the outcome by suspending the joint session for the first time in history, in order to try to get a different outcome from state legislatures.

AGUILAR: Despite the fact that the vice president had a strongly held and correct view that he could not decide the outcome of the election, President Trump launched a multiweek campaign of both public and private pressure to get the vice president, Mike Pence, to violate the Constitution.

Here are some examples of the intense pressure the vice president faced from all sides and what his chief of staff thought of it.

(BEGIN VIDEO CLIP)

DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: I hope Mike Pence comes through for us, I have to tell you.

(CHEERING AND APPLAUSE)

TRUMP: I hope that our great vice president, our great vice president, comes through for us. He's a great guy.

Of course, if he doesn't come through, I won't like him quite as much.

(LAUGHTER)

QUESTION: 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?

SHORT: Many times.

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

SHORT: Very consistent.

RUDY GIULIANI, FORMER ATTORNEY FOR PRESIDENT DONALD TRUMP: I am aware of the fact that the president was upset with the way Pence acted.

STEVE BANNON, FORMER WHITE HOUSE CHIEF STRATEGIST: Are we to assume that this is going to be a climactic battle?

JOHN EASTMAN, TRUMP 2020 CAMPAIGN ATTORNEY: I think a lot of that depends on the courage and the spine of the individuals involved.

BANNON: That'd be a nice way to say a guy named Mike -- Vice President Mike Pence?

EASTMAN: Yes.

SHORT: I think we have been clear as to what the vice president's role is. I think the vice president made clear with the president, and I think I have been clear with Mark Meadows.

JASON MILLER, FORMER TRUMP 2020 CAMPAIGN SENIOR ADVISER: I think the vice president is going to throw down tomorrow and do the right thing, because, Lou, like I said before, this is a time for choosing.

People are going to look back at this moment tomorrow and remember where every single one of their elected officials were. Did they vote for the rule of law and getting these elections right, or did they give it away to the Democrats and the people who cheated and stole their way through this election?

Definitely in the -- when I got back into town, approximately, like the 5th and the 6th, the president was -- all the attention was on what Mike would do or what Mike wouldn't do.

SHORT: The vice president really was not wavering in his commitment to what he -- what his responsibility was.

And so, yes, was it -- was it painful? Sure.

(END VIDEO CLIP)

AGUILAR: The president's pressure campaign started in December.

For example, although the vice president made his views clearly and unmistakably known to the president and others in the White House, on December 23, President Trump retweeted a memo from an individual named Ivan Raiklin entitled "Operation Pence Card" that called on the vice president to refuse the Electoral College votes from certain states that had certified Joe Biden as the winner.

President Trump started his pressure campaign in December, but he dialed up the pressure as January 6 approached. The testimony we have received in our investigation indicates that, by the time January 4 arrived, President Trump had already engaged in a -- quote -- "multiweek campaign" to pressure the vice president to decide the outcome of the election.

This had included private conversations between the two leaders, Trump's tweets and at least one meeting with members of Congress. We understand that the vice president started his day on January 4 with a rally in Georgia for the Republican candidates in the U.S. Senate run- off. When the vice president returned to Washington, he was summoned to

meet with the president regarding the upcoming joint session of Congress.

Mr. Jacob, who attended that meeting?

JACOB: The attendees were the vice president, the president, Marc Short, the chief of staff to the vice president, myself, and John Eastman.

There was about a five-minute period where Mark Meadows came in on a different issue.

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AGUILAR: Let's show a photo of that meeting.

Mr. Jacob, during that meeting between the president and the vice president, what theories did Dr. Eastman present regarding the role of the vice president in counting the electoral votes?

JACOB: During the meeting on January 4, Mr. Eastman was opining that there were two legally viable arguments as to authorities that the vice president could exercise two days later, on January 6.

One of them was that he could reject electoral votes outright. The other was that he could use his capacity as presiding officer to suspend the proceedings and declare essentially a 10-day recess, during which states that he deemed to be disputed -- there was a list of five to seven states that -- the exact number changed from conversation to conversation, but that the vice president could sort of issue and demand to the state legislatures in those states to reexamine the election and declare who had won each of those states.

So, he said that both of those were legally viable options. He said that he did not recommend -- upon questioning, he did not recommend what he called the more aggressive option, which was reject outright, because he thought that that would be less politically palatable, that the imprimatur of state legislature authority would be necessary to ultimately have public acceptance of an outcome in favor of President Trump.

And so he advocated that the preferred course of action would be the procedural route of suspending the joint session and sending the election back to the states.

AGUILAR: Mr. Jacob, I know you won't discuss the direct conversations between the president and the vice president.

So, rather than asking you what the vice president said in that meeting, I will ask you a more general question. Did the vice president ever waver in his position that he could not unilaterally decide which electors to accept?

JACOB: The vice president never budged from the position that I have described as his first instinct, which was that it just made no sense, from everything that he knew and had studied about our Constitution, that one person would have that kind of authority.

AGUILAR: And did the vice president ever waver in his position that he could not delay certification and send it back to the states?

JACOB: No, he did not.

AGUILAR: Did Dr. Eastman admit in front of the president that his proposal would violate the Electoral Count Act?

JACOB: So, during that meeting on the 4th, I think I raised the problem that both of Mr. Eastman's proposals would violate several provisions of the Electoral Count Act.

Mr. Eastman acknowledged that that was the case, that even what he viewed as the more politically palatable option would violate several provisions. But he thought that we could do so because, in his view, the Electoral Count Act was unconstitutional.

And when I raised concerns that that position would likely lose in court, his view was that the courts simply wouldn't get involved, they would invoke the political question doctrine, and, therefore, we could have some comfort proceeding with that path.

AGUILAR: Mr. Wood?

JOHN WOOD, SENIOR INVESTIGATIVE COUNSEL TO JANUARY 6 COMMITTEE: But just to reiterate, he told you -- maybe this was in a later conversation, but he told you at some point that if, in fact, the issue ever got to the Supreme Court, his theory would lose 9-0, correct?

JACOB: The next morning, starting around 11:00 or 11:30, we met for an hour-and-a-half to two hours.

And in that meeting -- I have already described the text, structure, history conversation, but we started walking through all of that.

And I said -- I said: "John, basically, what you have is some text that may be a little bit ambiguous, but then nothing else that would support it, including the fact that nobody would ever want that to be the rule. Wouldn't we lose 9-0 in the Supreme Court?"

And, again, he initially started, "Well, maybe you would only lose 7- 2," but ultimately acknowledged that, no, we would lose 9-0. No judge would support his argument.

AGUILAR: After his meeting with the vice president, Donald Trump flew to Georgia for a rally in support of the Republican candidates in the United States Senate run-off.

Even though the vice president was -- had been steadfast in resisting the president's pressure, President Trump continued to publicly pressure Vice President Pence in his Georgia speech.

[14:20:05] Rather than focusing exclusively on the Georgia Senate run-off, Trump turned his attention to Mike Pence. Here's what the president said during that rally in Georgia.

(BEGIN VIDEO CLIP)

TRUMP: ... Pence comes through for us, I have to tell you.

(CHEERING AND APPLAUSE)

TRUMP: I hope that our great vice president, our great vice president, comes through for us. He's a great guy.

Of course, if he doesn't come through, I won't like him quite as much.

(LAUGHTER)

(END VIDEO CLIP)

AGUILAR: So the president had been told multiple times that the vice president could not affect the outcome of the election, but he nonetheless publicly pressured Mike Pence to do exactly that by saying -- quote -- "If he doesn't come through, I won't like him as much."

Let's turn now to January 5.

Mr. Wood.

WOOD: Thank you.

That morning, meaning January 5, the president issued a tweet expressly stating that the vice president had the power to reject electors.

Let's look at what the president wrote -- quote -- "The vice president has the power to reject fraudulently chosen electors."

Mr. Jacob, you have already told us about your meeting with Dr. Eastman and the president on January 4, and you briefly made reference to the meeting you had with Dr. Eastman the next day, January 5.

Can you tell us a little bit more about that meeting with Dr. Eastman on January 5? For example, where was the meeting? Who was there?

JACOB: So, at the conclusion of the meeting on the 4th, the president had asked that our office meet with Mr. Eastman the next day to hear more about the positions he had expressed at that meeting.

And the vice president indicated that -- offered me up as his counsel to fulfill that duty. So, we met in Marc Short's office in the Executive Office Building across the way from the White House. Dr. Eastman had a court hearing by Zoom that morning, so it didn't start first thing, but, rather, started around 11:00.

And that meeting went for about an hour-and-a-half, two hours. Chief of Staff Marc Short was at that meeting most of the time. There were a few times that he left. And, essentially, it was an extended discussion.

What most surprised me about that meeting was that, when Mr. Eastman came in, he said: "I'm here to request that you reject the electors."

So, on the 4th, that had been the path that he had said: "I'm not recommending that you do that."

But, on the 5th, he came in and expressly requested that. And I grabbed a notebook as I was heading into the meeting. I didn't hear much new from him to record. But that was the first thing I recorded in my notes was request that the V.P. reject.

WOOD: Just to be clear, you're saying that Dr. Eastman urged the vice president to adopt the very same approach that Dr. Eastman appeared to abandon in the Oval Office meeting with the president the day before? Is that correct?

JACOB: He had recommended against it the evening before and then, on the 5th, came in -- and I think it was probably his first words after introductions and as we sat down were: "I'm here to request that you reject the electors in the disputed states."

WOOD: And you referenced a moment ago some handwritten notes, which you have provided to the Select Committee.

I'd now like to show you those notes. As you can see, you wrote there at the top. The writing is a little bit faint in the copy, but you wrote: "Requesting V.P. reject."

Does that accurately reflect what Dr. Eastman asked of you in your meeting on January 5?

JACOB: Yes.

WOOD: And what was your reaction when Dr. Eastman said on January 5 that he was there to ask the vice president of the United States to reject electrodes at the joint session of Congress?

JACOB: I was surprised because I had viewed it as sort of one of the key concessions that we had secured the night before from Mr. Eastman that he was not recommending that we do that.

WOOD: So, what did you say to him?

JACOB: Well, as I have indicated, to some extent, it simplified my task, because the -- there are more procedural complexities to the "send it back to the states" point of view.

And I actually had spent most of my evening the night before writing a memorandum to the vice president explaining all of the specific provisions of the Electoral Count Act that that plan would violate.

[14:25:11]

So, instead, since he was pushing the sort of robust unilateral power theory, I have already walked the committee through the discussions that we had. We -- again, we -- I started out with our points of commonality, or what I thought were our points of commonality. We're conservatives. We're small-government people. We believe in originalism as the means by which we're going to interpret this.

And so we walked through the text. We walked through the history. The committee has shown footage of Mr. Eastman on the stage on the 6th claiming that Jefferson supported his position and a historical example of Jefferson.

In fact, he conceded in that meeting Jefferson did not at all support his position, that, in the election of 1800, there had been some small technical defect with a certificate in Georgia. It was absolutely undisputed that Jefferson had won Georgia. Jefferson did not assert that he had any authority to reject electors. He did not assert that he had any authority to resolve any issue during the course of that.

And so he acknowledged by the end that there was no historical practice whatsoever that supported his position. He had initially tried to push examples of Jefferson and Adams. He ultimately acknowledged they did not work. As we have covered, he acknowledged it would lose 9-0 in the Supreme Court.

He again tried to say: "But I don't think the courts will get involved in this. They will invoke the political question doctrine. And so, if the courts stay out of it, that will mean that we will have the 10 days for the states to weigh in and resolve it. And then the -- they will send back the Trump slates of electors, and the people will be able to accept that."

And I expressed my vociferous disagreement with that point. I did not think that this was a political question.

Among other things, if the courts did not step in to resolve this, there was nobody else to resolve it. You would be in a situation where you have a standoff between the president of the United States and, counterfactually, the vice president of the United States, saying that we have exercised authorities that, constitutionally, we think we have, by which we have deemed ourselves the winners of the election.

You would have an opposed House and Senate disagreeing with that. You would have state legislatures that, to that point -- I mean, Republican leaders across those legislatures had put together and put out statements -- and we collected these for the vice president as well -- that the people had spoken in their states and that they had no intention of reversing the outcome of the election.

We did receive some signed letters that Mr. Eastman forwarded us by minorities of leaders in those states. But no state had any legislative house that indicated that it had any interest in it.

So, you would have had just an unprecedented constitutional jump ball situation with that standoff. And, as I expressed to him, that issue might well then have to be decided in the streets, because, if we can't work it out politically, we have already seen how charged up people are about this election. And so it would be a disastrous situation to be in. So, I said: "I think the courts will intervene. I do not see a

commitment in the Constitution of the question whether the vice president has that authority to some other actor to resolve. There's arguments about whether Congress and the vice president jointly have a constitutional commitment to generally decide electoral vote issues. I don't think that they have any authority to object or reject them. I don't see it in the 12th amendment, but nonetheless."

And I concluded by saying: "John, in light of everything that we have discussed, can't you -- we just both agree that this is a terrible idea?"

And he couldn't quite bring himself to say yes to that, but he very clearly said: "Well, yes, I see we're not going to be able to persuade you to do this."

And that was how the meeting concluded.

WOOD: But you just described a terrifying scenario.

It sounds like there could have been chaos, under the Eastman approach. And you have described it as it potentially could be decided in the streets. And you described several concessions that Dr. Eastman made throughout that discussion or even debate that you had

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