Jun 16, 2022 - Politics & Policy

Legal concerns swirled in Trump's inner circle over Jan. 6 plans

Jan. 6 committee hearing

Photo: Tom Brenner/Bloomberg via Getty Images

The Jan. 6 select committee on Thursday presented evidence that top Trump allies in the administration, the campaign and the media were well aware his plans to overturn the election had no legal basis.

Why it matters: The committee is using the hearings to make a comprehensive case for Trump's culpability in the attack on the Capitol as the Justice Department watches closely.

Driving the news: In both live and pre-recorded testimony, onetime aides to former President Trump and former Vice President Mike Pence described the pressure campaign on Pence and how Trump's closest allies raised doubts there was any legal or historical justification.

  • Specifically they doubted a theory, championed by conservative legal scholar John Eastman and embraced by Trump, that Pence had the authority to unilaterally reject electors.
  • Another revelation: that Eastman sought a presidential pardon in the waning days of Trump’s presidency.

The details: Pence's former chief of staff Marc Short testified that White House Chief of Staff Mark Meadows told him multiple times Pence lacked that power.

  • Former Trump campaign aide Jason Miller said lawyers at the White House counsel's office, DOJ and Trump campaign all shared that view. They saw the theory, and Eastman, as "nutty" and "crazy," he testified.
  • White House lawyer Eric Herschmann testified that Trump lawyer Rudy Giuliani agreed with his view on a Jan. 6 call that the theory was wrong.
  • Even Eastman repeatedly acknowledged the proposal lacked legal weight and explicitly asked a Pence lawyer on Jan. 6 to "consider one more relatively minor violation" of statute, leading to him seeking a White House pardon, according to the testimony.
  • Fox News host Sean Hannity texted Meadows on Dec. 31: "I do NOT see January 6 happening the way he is being told."

Between the lines: All this was aimed to demonstrate Trump's own knowledge about the lack of legal basis for the theory even as he continued to promote it publicly.

  • Short testified that Pence told Trump "many times" he lacked that authority, and that Eastman admitted in front of Trump on Jan. 4 that the proposal would violate the Electoral Count Act.
  • Trump and Pence also had a call on the morning of Jan. 6 that aides recounted got "heated," with Trump calling Pence a "wimp" and "the p-word."

The committee also linked Trump's pressure campaign against Pence to the violence on Jan. 6.

  • Sarah Matthews, a former White House deputy press secretary, testified that aides had already told Press Secretary Kayleigh McEnany that Trump should "tweet something" to stop the violence by the time Trump tweeted that Pence "didn't have the courage to do what should have been done."
  • Rep. Pete Aguilar (D-Calif.), who led the hearing, revealed an affidavit in which a confidential informant from the Proud Boys told the FBI the far-right group would have killed Pence "if given the chance."
  • New photos shown in the hearing showed Pence in hiding as the riot went on. Aguilar said that the rioters who breached the U.S. Capitol came within 40 feet of the former vice president.
  • "Make no mistake about the fact that the Vice President's life was in danger," Aguilar said.

What they're saying: "He knew that the vice president had no authority to nullify the results," Rep. Jamie Raskin (D-Md.), a member of the committee, told reporters after the hearing.

  • "All of these lawyers were saying that Trump continued to try to persuade them, even though they had categorically rejected this idea ... everybody was telling Trump there was no constitutional basis for what he was asking for."
  • Raskin also said Eastman's request for a pardon "indicates some consciousness of guilt, or at least fear of guilt."
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