Eastman Told Trump That Pence Plan for Jan. 6 Was Illegal

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The House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol dedicated a crucial portion of its hearing Thursday to demonstrating that Donald Trump’s plan to overturn the 2020 election was not only illegal, but that even the former president and the lawyer pushing it the hardest knew it.

In one of the most explosive findings of the hearings thus far, the committee revealed evidence that law professor John Eastman told Trump two days before the insurrection that his scheme to keep the president in power was against the law.

Greg Jacob, Vice President Mike Pence’s counsel, recounted a White House meeting on Jan. 4, 2021, in which Eastman said told Trump that his plan to thwart the counting of the Electoral College violated federal statute.

“I believe he did on the 4th,” Jacob said in response to a question from the panel.

Such an admission was consistent with the testimony of other witnesses present at Thursday’s hearing, the committee’s third this month. Multiple former White House aides testified, either in person or in taped deposition, that the plan proposed by Eastman, the chief architect of the effort to block Joe Biden’s election victory, was either illicit or certain to be struck down in the courts.

“Just like they knew the factual assertion was a Big Lie, the legal assertion was a big joke,” Rep. Jamie Raskin, Democrat of Maryland, told TIME after the hearing.

The panel also showed written evidence that Eastman knew he was pushing a fallacious argument. Rep. Pete Aguilar, the California Democrat who led the hearing Thursday, showed an earlier Eastman memo that recognized that the vice president didn’t have the unilateral authority to reject electors: “Nowhere does it suggest that the President of the Senate gets to make the determination on his own,” Eastman wrote.

In another bombshell from the hearing, the committee showed a Jan. 11, 2021, email from Eastman requesting a pardon from Trump for his role in the attempts to stop the transfer of power to Biden.

“I’ve decided that I should be on the pardon list, if that is still in the works,” Eastman wrote to Trump’s personal attorney and confidant Rudy Guiliani, according to an email obtained by the Jan. 6 committee. Aguilar said Eastman did not get one. Trump publicly announced 143 pardons on the last night of his presidency. Eastman was not among them.

In the opening hearing June 9, the committee teased out that it would unveil Republican members of Congress who sought pardons for their roles on Jan. 6—a request that they believe reveals a consciousness of guilt. “It tells us that they fear they’re going to be charged, or more generally, that they’ve engaged in conduct that’s a federal crime,” Harry Litman, a former U.S. attorney, tells TIME.

Much of the Thursday hearing was focused on White House aides who pushed back on Eastman’s universally debunked theory that the vice president had the constitutional power to reject slates of electors during the counting of the Electoral College.

Several Pence aides said they never found the argument persuasive. “There is no justifiable basis to conclude that the vice president has that kind of authority,” Jacob told the panel.

Jacob was the main legal mind in Pence’s inner circle helping him to resist Trump’s pressure campaign. He conducted extensive research on the Electoral Count Act of 1887, the arcane law that Eastman tried to exploit to invalidate the election. Jacob’s deconstruction of the text, he said, confirmed the vice president’s “instinct” that Pence had no right to block the certification of Biden’s victory.

In fact, according to testimony and evidence presented to the committee, even Eastman didn’t buy into such a theory. Rep. Liz Cheney, Republican of Wyoming and vice chair of the panel, said that Eastman admitted in a Dec. 19, 2020, email that “the fake electors had no legal weight—referring to them as dead on arrival in Congress.”

In other meetings, Eastman, the founding director of a California-based conservative think tank, also conceded that such an argument would hold no legal muster, according to Jacob.

One Pence aide shared a conversation with Eastman in which he acknowledged that the move wouldn’t be upheld in the courts, including the Supreme Court. “I said, ‘John, if the Vice President did what you were asking him to do, we would lose nine to nothing in the Supreme Court, wouldn’t we?” Jacob recalled. “He initially said maybe we’d only lose seven to wo, but ultimately acknowledged that, no, we would lose nine to nothing” Jacob said.

Still, Pence aides said, the conservative lawyer continued to advocate new schemes to keep Trump in power, even after the Capitol attack. Eric Herschmann, Trump’s legal adviser, told the panel in a taped deposition that Eastman called him in the days after the riot.

“He said he couldn’t reach others,” Herschmann said. “He started to ask me about something dealing with Georgia and preserving something potentially for appeal. And I said to him, ‘Are you out of your f—ing mind? I only want to hear two words coming out of your mouth from now on: orderly transition. I don’t want to hear any other f—ing words coming out of your mouth no matter what.’”

He said he also gave Eastman some legal advice: “‘Get a great f—ing criminal defense lawyer. You’re going to need it.’ And then I hung up on him. ”

The new revelations came days after a split among the committee members spilled into public view over whether they should make a criminal referral to the Department of Justice. Chairman Bennie Thompson, Democrat of Mississippi, told reporters Monday that such a referral was “not our job.” Other members of the panel, such as Cheney and Reps. Elaine Luria of Virginia and Adam Schiff of California, both Democrats, quickly pushed back.

But regardless of how the panel settles on that issue, Thursday’s hearing appeared to lay out a roadmap for prosecutors to pursue criminal charges.

At one point on Thursday, the committee aired clips from a taped deposition of Eastman repeatedly responding to a committee lawyer’s questions by pleading his Fifth Amendment right against not incriminating himself. Overall, Aguilar said, Eastman pleaded the fifth “a hundred times.”

At another point, Jacob shared an email correspondence he had with Eastman in the days after the Jan. 6 violence. The former Pence lawyer said he asked Eastman whether he advised Trump that the vice president had no authority to reject the Electoral College vote.

“He’s been so advised,” Eastman wrote back. “But you know him. Once he gets something in his head, it’s hard to get him to change course.”

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