Pence Adviser: Trump Lawyer Admitted Pence Overturning the Election Would Lose in Supreme Court

The witnesses at Thursday’s hearing on the events leading up to the January 6 attack had a very clear point: lawyer John Eastman’s theory that Mike Pence could single-handedly stop Joe Biden from becoming president—an idea Donald Trump and his allies parroted to supporters just before, and during, the storming of the Capitol—was quackery.

“There was no basis in the Constitution or laws of the United States, at all, for the theory espoused by Mr. Eastman. At all. None,” testified retired federal judge and lawyer J. Michael Luttig, who advised Pence while Trump was pressuring the vice president to block the certification of the election. Another crucial voice in Pence’s ear at the time was Greg Jacob, his chief counsel, who also summarily dismissed Eastman’s theory in testimony Thursday. “No vice president in 230 years of history had ever claimed to have that kind of authority, hadn’t claimed authority to reject electoral votes, had not claimed authority to return electoral votes back to the states,” Jacob said, noting that Eastman had privately conceded that his theory wouldn’t hold up before the Supreme Court. If it made it there, Eastman admitted, “we would lose 9-nothing,” according to Jacob.

Thursday’s presentation, the third in a series of public hearings on the House committee’s investigation into January 6, 2021, focused on Trump’s attempt to pressure Pence to use his traditionally ceremonial role as president of the Senate to overturn the 2020 election results. At one point, the committee aired a taped deposition of Trump White House attorney Eric Herschmann recalling how, presented with Eastman’s unconstitutional theory, he’d asked the lawyer, “Are you out of your effing mind?” In another tape, former Trump campaign spokesperson Jason Miller said multiple Trump White House officials thought Eastman’s theory was “crazy” and “nutty.” Two officials “there was no validity to it in any way, shape, or form” prior to the Capitol riot, Miller said, and “would tell anyone who would listen.”

Pence obeying Trump and blocking the certification of Biden’s victory “would have plunged America into what I believe would have been tantamount to a revolution within a constitutional crisis,” Luttig said Thursday. During the hearing, the committee presented evidence that Eastman himself knew that this theory was legally dubious, but stood on stage with Rudy Giuliani on January 6 ahead of the attack on the Capitol in support of it anyway. Minutes into the presentation, the committee aired a clip in which Jacob told investigators that Eastman had admitted in front of Trump on January 4th that Pence would have to break the law to carry out their plan.

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Mark Meadows, Trump’s chief of staff, had also privately agreed that the vice president did not have the power to reject electoral votes outright, Pence chief of staff Marc Short told the committee in a deposition shown Thursday.

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