WASHINGTON — Former vice-president Mike Pence would have touched off a constitutional crisis "tantamount to a revolution" had he acceded on Jan. 6 to Donald Trump's demands that he reject the results of the 2020 presidential election, a retired U.S. judge testified Thursday.
J. Michael Luttig, a former judge on the U.S. Court of Appeals, ended up playing a key role in influencing Pence's ultimate choice to reject those demands — a decision that proved to be of profound consequence to the future of democracy in the United States.
Had Pence opted otherwise and declared Trump the next president, it "would have plunged America into what I believe would have been tantamount to a revolution within a constitutional crisis," Luttig told members of the congressional committee investigating the Capitol Hill riots.
Luttig was of particular interest to the committee because one of his former law clerks, John Eastman, is the legal scholar whose debunked theories came to form the basis of Trump's plan to overturn the election results and remain in the White House.
That plan hinged on Pence rejecting the electoral votes of several key states where the president was claiming to have been a victim of electoral fraud — baseless, long-debunked claims that Trump continues to this day to stand by.
Luttig tweeted extensively the day before the riots in hopes of giving Pence's team some additional leverage to push back against the president. Indeed, Pence cited Luttig's expertise in a statement he issued shortly before the ill-fated joint session of Congress that day — a statement that rejected Eastman's scheme and enraged the protesters outside the Capitol.
"Mike Pence has betrayed the United States of America," protesters can be heard bellowing in footage of the rioting shown at the hearing. The ensuing chaos featured the construction of a makeshift gallows and chants of "Hang Mike Pence" and "Bring out Pence."
Eastman's theories amounted to little more than "constitutional mischief" that was "incorrect at every turn," Luttig told the committee, who sat Thursday alongside Greg Jacob, Pence's former chief counsel, the hearing's other star witness.
The hearing also heard that Eastman later asked to be considered for a presidential pardon — a request that ultimately went unheeded.
Jacob described meeting with Eastman the day before the riots, an encounter in which the professor explained the plan, arguing that the U.S. Constitution gave Pence the power to do what was being asked: reject electoral votes outright or send them back to the states for a recount.
Jacob said Eastman ultimately conceded that his arguments would have been unanimously rejected by the U.S. Supreme Court were they ever to be tested there — a perspective he said was shared by Pence himself.
"There was no way that our framers … would ever have put one person — particularly not a person who had a direct interest in the outcome, because they were on the ticket for the election — in a role to have decisive impact on the outcome," Jacob said.
"Our review of text, history and, frankly, just common sense all confirmed the vice-president's first instinct on that point, that there is no justifiable basis to conclude that the vice-president has that kind of authority."
The committee also heard recorded video testimony from a number of ex-insiders, including former Trump adviser Jason Miller, who called the idea "crazy," and White House lawyer Eric Herschmann, who described his reaction to what Eastman was proposing.
"'You're going to cause riots in the streets,'" Herschmann said he told Eastman, who replied with "words to the effect of, there has been violence in the history of our country in order to protect the democracy, or to protect the republic."
Later in the hearing, California Rep. Pete Aguilar described in detail the pandemonium and violence that did ensue that day, linking the anger toward Pence to a tweet Trump sent in the midst of the rioting that characterized the vice-president's decision as a callous betrayal.
Pence's prompt evacuation from his Capitol Hill office to a secure location within the complex passed within just 12 metres of where the rioters were surging on to the scene, said Aguilar, who asked Jacob if he was aware how close they had come.
"I could hear the din of the rioters in the building while we moved," Jacob said. "I don't think I was aware they were as close as that."
Investigators were subsequently told by a confidential informant that the white-supremacist Proud Boys, who were on the scene in force on Jan. 6, would have indeed killed Pence and other U.S. lawmakers had they encountered them, Aguilar said.
"Make no mistake about the fact that the vice-president's life was in danger."
Jacob and Eastman exchanged several emails in the immediate aftermath of the riots, the hearing heard.
"Thanks to your bull----, we are now under siege," Jacob wrote. The reply that came back blamed Jacob and Pence for the violence.
And even as the day gave way to night and Pence returned to the chamber to resume the joint session, Eastman was still urging him to send the electoral votes back to the states — a demand that under the circumstances Pence himself described as "rubber-room stuff."
Eastman, for his part, tried earlier this year to convince a judge to withhold a number of his emails from the committee's grasp. That effort failed in spectacular fashion when the court declared it was "more likely than not" that Eastman and Trump had engaged in a criminal conspiracy.
The hearing also saw video of Eastman's deposition, in which he pleaded the Fifth Amendment 100 separate times in response to detailed questions about his role in the events of Jan. 6.
Jacob wrapped up his testimony Thursday by describing how he turned to his faith for comfort, describing how the biblical figure of Daniel is confronted with an order from his king that he cannot follow.
"He does his duty consistent with his oath to God," Jacob said. "I felt that that's what played out that day."
The committee is scheduled to reconvene again Tuesday.
This report by The Canadian Press was first published June 16, 2022.
James McCarten, The Canadian Press
