The Constitution as a star witness.

June 17, 2022

[Audio version here]

          In an extraordinary third hearing, the January 6th Committee proved that Donald Trump knew his vice president could not overturn or delay the electoral count but persisted to the point of endangering Pence’s life. The hearing recounted a harrowing “trial by fire” for democracy and its narrow escape. In that story, the Constitution was the star witness.

          In the first session of the day, two witnesses explained the provision of the 12th Amendment that controls the count of electoral ballots (called “certificates” in the Constitution). The pertinent sentence of the 12th Amendment provides that the Vice President shall “in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”

          As Judge Michael Luttig testified on Thursday, that sentence of the 12th Amendment is

pristinely clear [that] following the transmission of the certificates to the Congress [the Vice President] shall open the certificates in the presence of the Congress [and] the electoral votes shall then be counted. . . . The language of the 12th Amendment is that simple.

          It’s that simple: Open the certificates and count them. The Constitution speaks for itself.

          There is no provision in the Constitution granting the Vice President the power to reject the electoral ballots or send them back to state legislatures for reconsideration. And yet, Trump and his attorney, John Eastman, repeatedly demanded that VP Pence reject the electoral ballots from “contested states” and declare Trump the winner. Alternatively, Eastman argued to Pence’s counsel that the vice president should send the ballots back to the states for reconsideration. [A complete transcript of the hearing is here: NPR, Transcript: The third Jan. 6 committee hearing.

          Eastman acknowledged that neither the Constitution nor the Electoral Count Act permitted the unlawful outcomes Eastman and Trump were urging on Pence. But Eastman believed the Supreme Court would decline to hear the case, so there was no one to stop Pence if he violated the Constitution. Critically, Eastman told Trump that the proposed scheme was illegal. That evidence is sufficient to establish that Trump and Eastman knew they were promoting an illegal scheme—thereby establishing criminal intent (“scienter”).

          The Committee then established Trump mounted a pressure campaign on Pence to violate the Constitution, a campaign that included incitement to violence that succeeded in the assault on the Capitol. John Eastman admitted to Pence’s attorney that violence “in the streets” was the likely outcome if their scheme succeeded. The incitement and expectation of violence as part of their scheme to overturn the electoral count is sufficient to establish a charge of seditious conspiracy.

          Let’s pause here. Although the remaining details are important and shocking, they are unnecessary to convict Trump and Eastman of seditious conspiracy and conspiracy to defraud the United States. Trump and Eastman knew that the Constitution required Pence to “open” and “count” the electoral ballots, but both publicly called on Pence to violate that constitutional command. On the basis of those facts alone, the DOJ should indict both, ASAP.

          But it gets worse. Much.

          In speeches on the Ellipse before the assault on the Capitol, Trump, Eastman, and Giuliani told the crowd (falsely) that Mike Pence had the power to send the electoral votes back to the legislatures for reconsideration. Trump said that if Pence “doesn’t come through, I won’t like him quite as much.” A few hours later, a group of insurrectionists came within 40 feet of Mike Pence and his family as they hid in a secure location.

          The mob that came within 40 feet of the VP Pence intended to kill him. Rep. Aguilar made the following statement during the hearing:

          A recent court filing by the Department of Justice explains that a confidential informant from the Proud Boys told the FBI that the Proud Boys would have killed Mike Pence if given a chance. This witness, whom the FBI affidavit refers to as W1, stated that other members of the group talked about things they did that day and they said that anyone they got their hands on they would have killed including Nancy Pelosi.

          Fortunately, the mob did not find or kill Mike Pence, Nancy Pelosi, or other congressional leaders. But it was only a matter of luck and a difference of a few minutes that prevented an unthinkable outcome.

          When the mob of insurrectionists assaulted the Capitol, Congress was considering an objection to electors from the state of Arizona. Under the Electoral Count Act, Congress must complete deliberations on objections within two hours. Because of the violent assault on the Capitol, Congress did not complete its deliberations with the two-hour prescribed period.

          Incredibly, John Eastman emailed Mike Pence’s attorney and claimed that because Congress had not completed its consideration of the Arizona objection in two hours, Congress had violated the Electoral Count Act. Pence’s attorney testified as follows:

Mr. Eastman emailed me to point out . . . that the Electoral Count Act had been violated because the debate on Arizona had not been completed in two hours.

Of course, it couldn’t be since there was an intervening riot of several hours. . . . . And then he implored me, “Now that we have established that the Electoral Count Act isn’t so sacrosanct as you have made it out to be, I implore you one last time, can the Vice President please . . .  [s]uspend the joint session, send it back to the states.”

          Again, let’s pause here. Eastman was arguing that Pence should surrender to the insurrectionists and send the electoral ballots back to the states because the insurrectionists had succeeded in delaying the congressional count of the electoral ballots! Eastman’s request demonstrates that the aim of the violent assault on the Capitol was delay—the delay that Pence refused to order in violation of the 12th Amendment.

          Eastman and Trump engaged in an illegal conspiracy to overturn the Constitution, and Eastman knows it. In the last two weeks of Trump’s tenure, Eastman asked Rudy Giuliana to add Eastman’s name to the “pardons list.” Eastman then invoked the 5th Amendment right against self-incrimination more than 100 times in his testimony before the January 6th Committee. Eastman remains an attorney in good standing in the State Bar of California (for now).

          Judge Micheal Luttig, who testified in the third hearing, is one of the nation’s most respected conservative judges. He filed a written “opening statement” that is worth reading in it entirety. See Statement of J. Michael Luttig. His statement summarizes the threat posed by Eastman’s reckless and unfounded legal theories. Judge Luttig wrote in part:

From their inception, the legal arguments that underlaid the efforts to overturn the 2020 election were, in that context, little more than beguiling and frivolous, perhaps appropriate for academic classroom debate, but singularly inappropriate as counsel to the President of the United States of America in his effort to overturn the presidential election . . . It is breathtaking that these arguments even were conceived, let alone entertained by the President of the United States at that perilous moment in history.

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.

          Judge Luttig correctly described the efforts of Trump and Eastman as “tantamount to a revolution.”

          The evidence against Trump and his co-conspirators is accumulating at an astonishing rate. Though painful to watch, the Committee is inscribing this chapter of our nation’s history in tablets of stone for future generations.

Coda.

          As the third hearing was unfolding at the Capitol, three breaking stories added drama to an already dramatic hearing.

          First, the New York Times reported that a federal grand jury is investigating Rudolf Giuliani, John Eastman, Jenna Ellis, and Kenneth Cheseboro in connection with the “fake electors” scheme. That scheme was a central part of the plan to delay the count of electoral ballots on January 6th.

          Second, the Department of Justice sent a letter to the January 6th Committee demanding copies of all transcripts of depositions taken by the Committee (more than 1,000). The DOJ wrote:

It is now readily apparent that the interviews the Select Committee conducted are not just potentially relevant to our overall criminal investigations, but are likely relevant to specific prosecutions that have already commenced.

          The Committee should grant the DOJ’s request in order to advance the public interest in securing convictions of all responsible parties. The request is a testament to the diligence and quality of the Committee’s work product. The request is an embarrassment to the DOJ, which should do its own damn work. (DOJ apologists: Please, no emails telling me that DOJ needs to test the credibility of its witnesses, if any. Prosecutors do that all the time without demanding the entire catalogue of work-product from a congressional committee.)

          Third, Ginni Thomas told the Daily Caller that she would gladly “meet” with the Committee to “clear up” any misimpressions regarding her collaboration with coup-plotters John Eastman and Mark Meadows. The Committee accepted her offer with a polite invitation for a deposition in early July. Don’t hold your breath for this testimony. If Ginni Thomas knows anyone with a superficial knowledge of criminal law, that person would advise her to decline the invitation and invoke the 5th Amendment if subpoenaed or seek transactional immunity from prosecution.

Concluding Thoughts.

          The content of the third hearing was shocking, but the presentation was a tour de force by the Committee. It was shocking to learn that our democracy hung by a thread for weeks as Trump pressured Mike Pence to violate the Constitution. But for the fact that Pence’s legal counsel and informal advisers (like Judge Luttig) told Pence he had no choice but to honor the Constitution, we could have experienced the “revolution” described by Judge Luttig.

          But the hearing was reassuring in several respects. Putting aside the misfits and bottom-feeders assembled by Trump in his last days in office, no serious person in the administration believed the nonsense that John Eastman was peddling. Trump and Eastman thought they were trying to overcome resistance by Mike Pence. In truth, they were trying to overcome resistance by the Constitution, whose presence hung in the air in every discussion. The heft and history of our great charter was too much for Eastman’s “beguiling and frivolous” arguments. The Constitution prevailed because it defined the landscape in which the coup-plotters were forced to navigate, and they could not circumvent the guardrails and bulwarks erected by the Framers.

          Although the coup-plotters have not given up, I am hopeful that a few well-placed indictments will dissuade future misfits and bottom-feeders from trifling with the Constitution. The superb efforts by the January 6th Committee are increasing the likelihood of major indictments soon. For that, we owe a debt of gratitude to the members and staff of the Committee.

          Talk to you on Monday!