Jan. 6 committee holds third hearing

The House Select Committee highlighted on Thursday how Trump attorney John Eastman knew his plan to try to block the election would fail if it went to the Supreme Court — yet the right-wing attorney continued to fuel Trump’s hope. 

Jacob said Eastman first tried to say the Supreme Court would land at 7-2 in their vote, if it came to them, then admitted his legal theory would lose 9-0, Jacob said. 

Eastman's legal theory was to have Pence unilaterally decide the results of the election, the House public hearing on Thursday has explained.

Jacob previously told the anecdote behind closed doors to the House – and that testimony became a cornerstone of the House’s argument that Eastman and Trump likely engaged in planning a crime. A federal judge has agreed with their argument. 

Democratic Rep. Pete Aguilar, member of the Jan. 6 select committee, discussed how testimony given to the committee outlined concerns White House counsel and others had over the false theory that Vice President Pence could overturn the 2020 election results.

Fox host Sean Hannity even reached out to the White House, expressing concerns that the White House counsel would resign over the perpetuation of the false theory.

Hannity wrote to Meadows again a few days later on Jan. 5, 2021, reiterating his concern about the counsel's office resigning.

The Fox host reached out to the White House numerous times between Election Day 2020 and President Biden's inauguration on Jan. 20, 2021, according to texts obtained by CNN that Meadows provided to the Jan. 6 select committee.

Read part of the Hannity and Meadows text exchange:

Greg Jacob, former Vice President Mike Pence’s chief counsel, told the House select committee on Thursday that Pence’s legal team reviewed every election in American history as they examined whether a sitting vice president had the authority to reject Electoral College votes.

“In the entire history of the United States, not once had a joint session ever returned electoral votes back to the states to be counted,” he said.

Jacob also testified that he told Trump lawyer John Eastman, who pushed the theory, that if the vice president did have that power, it would stand to reason that Democrats would have discovered the “obvious quirk” and that Al Gore would have tried to declare himself president in 2000.

“And of course [Eastman] acknowledged Al Gore did not and should not have had that authority at that point in time,” Jacob testified Thursday.

Former Trump White House attorney Eric Herschmann told the Jan. 6 Committee that conservative attorney John Eastman told him he was willing to accept violence in order to overturn the 2020 election.

The committee played video from Herschmann’s deposition where he described a conversation with Eastman about his claims that Vice President Mike Pence could overturn the election in Congress.

Herschmann continued by telling Eastman: “They’re not going to tolerate that. You’re going to cause riots in the streets.”

Herschmann’s interview was played as part of a video montage where numerous former Trump advisers said that Eastman’s views that Trump could overturn the election were “crazy” and did not have any validity.

Trump campaign spokesperson Jason Miller told the committee in a deposition that White House counsel Pat Cipollone “though the idea was nutty” and had confronted Eastman about it.

Marc Short, Pence’s former chief of staff, said that Trump chief of staff Mark Meadows told him “a couple of times” that he understood the vice president did not have a role to block the certification of presidential electors.

“I believe that Mark did agree,” Short said of Meadows.

Former White House lawyer Eric Herschmann told the House Select Committee that former President Donald Trump’s then-attorney, Rudy Giuliani, seemed to concede on the morning of Jan. 6 that the vice president did not have the authority to decide the outcome of the election or send it back to the states.

During Thursday’s public hearing, the committee played previously unseen video from Herschmann’s closed-door deposition where recalls his conversation with Giuliani on the morning of US Capitol riot where he appeared to break with conservative attorney John Eastman on the “VP’s role.”

“He was asking me my view and analysis and the practical implications of it. And when we finished, he said, 'Look, I believe, that you know, you’re probably right,'” Herschmann said, describing how Giuliani ultimately acknowledged that former Vice President Mike Pence likely did not have the authority to do what Trump was asking.

Still, Giuliani’s conversation with Herschmann did not stop him from saying the exact opposite just hours later while on stage at the Trump rally while standing alongside Eastman.

“Every single thing that has been outlined as the plan for today is perfectly legal,” Giuliani said during his speech on Jan. 6 at the Ellipse. “I have Professor Eastman here with me to say a few words about that.”

“It is perfectly appropriate … that the vice president can … decide on the validity of these crooked ballots, or he can send it back to the legislators, give them five to 10 days to finally finish the work, Giuliani added.

Herschmann is just one of several witnesses who have testified about how those closest to Trump and the former President himself, were warned that their plan to overturn the election was on shaky legal ground but they continued to pursue it any way. 

Even John Eastman, the conservative lawyer who helped craft the scheme to overturn the election results on Jan. 6, 2021, knew his legal theory was bogus, the House select committee argued Thursday. 

In a document revealed in the committee's third public hearing, Eastman picks apart a proposal that former Vice President Mike Pence could determine which electors to count in the Jan. 6 congressional session.

Writing comments in a blue font into an October 2020 draft letter to then-President Donald Trump, Eastman pointed out that "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."

"Nowhere does it suggest that the President of the Senate gets to make the determination on his own," he continued, referring to Pence in his role as the head of the Senate.

"The person writing in blue eviscerates that argument," committee member Rep. Pete Aguilar said.

J. Michael Luttig, an adviser to vice president Mike Pence and a former judge, testified that Trump attorney John Eastman's claims that the vice president could decide the outcome of the election at the joint session of Congress on Jan. 6, 2021, is not supported by the Constitution and does not follow any historical president.

Committee vice chair Liz Cheney explained a memo written by Eastman outlined his theory. In it, Cheney said Eastman falsely claimed seven states "transmitted dual slates of electors to the President of the Senate," which former Pence attorney Greg Jacob said they did not exist.

"He knew the outcome he wanted and he saw a way to go forward if he simply pretended the fake electors were real," Cheney said, explaining that Eastman continued to spread the false theory. Cheney said Eastman argued that Pence could reject the Biden electors and declare Trump the winner in the states he said were "disputed."

"There is a very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes," the memo written by Eastman showed by the committee said.

"There was no support whatsoever in either the Constitution of the United States, nor the laws of the United States for the vice president, frankly, ever to count alternative electoral slates from the states that had not been officially certified," Luttig said, testifying at the hearing.

Luttig said he read Eastman's memo and knows what he was referring to when he argued there is a historical precedent, but said, "he was incorrect."

In today's hearing, two former advisers for former Vice President Mike Pence are testifying on how former President Trump attempted to pressure Pence into overturning the 2020 electoral college results.

Witnesses and lawmakers are citing the 12th Amendment frequently during today's hearing and here's why: The 12th Amendment outlines the electoral vote counting process and how a president and vice president of the United States will be certified into office.

Trump and his attorney John Eastman perpetuated a false theory that the vice president could overturn the electoral college results, undermining the process stated in the 12th Amendment.

Read the full text of the 12th Amendment of the US Constitution here.

J. Michael Luttig, a former federal judge who advised former Vice President Mike Pence, said that if Pence followed former President Donald Trump's orders to reject the 2020 election result, it "would have been tantamount to a revolution within a constitutional crisis."

Luttig added that he believes the Jan. 6 select committee investigating the Jan. 6 insurrection is examining the "profound truth" of the US.