5.3 President Trump and his Allies Continue to Pressure the Vice President on January 6th, Threatening His Life and Our Democracy.
5.3 President Trump and his Allies Continue to Pressure the Vice President on January 6th, Threatening His Life and Our Democracy.
January 6, 2021: President Trump Continued to Falsely Assert in Multiple Tweets Posted the Morning of January 6th that the Vice President Had a Role to Play in the Outcome of the Election.
¶Despite the public pressure initiated by the President and amplified by Bannon, Navarro and others, there was no ambiguity in the Vice President’s decision. By January 6th, President Trump had been told multiple times that Vice President Pence was not going to reject the certified electors from any State. Nor was Vice President Pence going to move for a delay and send the electors back to the States. Either move would have been illegal, requiring Vice President Pence to break the law, violating his oath to the U.S. Constitution. Pence made his decision clear “[m]any times” to President Trump, and he was “very consistent” in rejecting the President’s demands.230 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 26-27 (“But just to pick up on that, Mr. Short, was it your impression that the Vice President had directly conveyed his position on these issues to the President, not just to the world through a Dear Colleague Letter, but directly to President Trump?” A: “Many times.” Q: “And had been consistent in conveying his position to the President?” A: “Very consistent.”); see also Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 102 (“[T]hat’s where the Vice President started. That’s where he stayed the entire way.”); Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Chris Hodgson, (Mar. 30, 2022), p. 181 (“I believe that the Vice President was consistent in his understanding of the law and the precedent and his belief as to what his authority was and was not on January 6th.”). President Trump continued to publicly pressure the Vice President anyway.
¶At 1:00 a.m. on January 6th, President Trump tweeted:
457If Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!231 Donald J. Trump (@realDonaldTrump), Twitter, Jan. 6, 2021 1:00 a.m. ET, available at https://web.archive.org/web/20210106072109/https://twitter.com/realdonaldtrump/status/1346698217304584192 (archived).
¶Later that morning, at 8:17 a.m., President Trump tweeted again:
States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!232 Donald J. Trump (@realDonaldTrump), Twitter, Jan. 6, 2021 8:17 a.m. ET, available at https://web.archive.org/web/20210106131747/https://twitter.com/realdonaldtrump/status/1346808075626426371 (archived).
¶And, at 8:22 a.m., President Trump tweeted again, making a pitch for Congress to choose him, as if people’s votes on election day and the electoral college didn’t matter:
THE REPUBLICAN PARTY AND, MORE IMPORTANTLY, OUR COUNTRY, NEEDS THE PRESIDENCY MORE THAN EVER BEFORE—THE POWER OF THE VETO. STAY STRONG!233 Donald J. Trump (@realDonaldTrump), Twitter, Jan. 6, 2021 8:22 a.m. ET, available at https://web.archive.org/web/20210106132244/https://twitter.com/realdonaldtrump/status/1346809349214248962 (archived).
¶President Trump’s tweets made it clear that he thought the Republican State legislatures would simply deliver him victory. President Trump emphasized this point, writing twice that if Vice President Pence gave in, “we win.” However, there was no sign of a change in the Vice President’s position. A moment of truth was looming.
January 6, 2021: President Trump Has a “[H]eated” Conversation with Vice President Pence Before his Rally on the Ellipse.
¶President Trump tried to reach Vice President Pence by phone early that morning.234 At 9:02 a.m., President Trump instructed the White House operator to call back with the Vice President; the operator instead informed the President at 9:15 a.m. that a message was left for the Vice President. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000261 (Presidential Call Log, White House Switchboard), P-R000255 (Daily Diary). He finally talked to his Vice President at approximately 11:20 a.m.235 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000285 (“11:20 –c w/ VPOTUS”); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000255 (“The President talked on a phone call to an unidentified person”); see also Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), p. 12 (stating that a military aide interrupted Pence’s meeting with staff to inform the Vice President that the President was holding to speak with him). The exchange quickly became contentious.
¶President Trump on the phone in the Oval Office. Photo provided to the Select Committee by the National Archives and Records Administration.
¶Eric Herschmann, a lawyer in the White House Counsel’s Office, overheard the conversation. Members of President Trump’s family and other White House officials were present as well.236 Present in the Oval Office during the call with the Vice President were Melania Trump, Donald Trump, Jr., Ivanka Trump, Eric Trump, Kimberly Guilfoyle, and Lara Trump, as well as Mark Meadows, Stephen Miller, Eric Herschmann, and Gen. Keith Kellogg. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Ivanka Trump, (Apr. 5, 2022), pp. 30-32, 37. Herschmann recalled that “it started off as a calmer tone, everything, and then it became heated.”237 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 47. Ivanka Trump also described the call as “pretty heated.”238 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Ivanka Trump, (Apr. 5, 2022), p. 39. Ivanka Trump elaborated: “It was a different tone than I’d heard him take with the Vice President before.”239 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Ivanka Trump, (Apr. 5, 2022), p. 41. Ivanka Trump told her Chief of Staff, Julie Radford, that “her dad had just had an upsetting conversation with the Vice President.”240 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Julie Radford, (May 24, 2022), pp. 17-18. President Trump had even called Vice President Pence the “P Word.”241 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Julie Radford, (May 24, 2022), p. 19 (“And the word that she relayed to you that the President called the Vice President—apologize for being impolite—but do you remember what she said her father called him?” “The ‘P’word.”). See also Peter Baker, Maggie Haberman, and Annie Karni, “Pence Reached His Limit with Trump. It Wasn’t Pretty,” New York Times, (Jan. 12, 2021), available at https://www.nytimes.com/2021/01/12/us/politics/mike-pence-trump.html; Jonathan Karl, Betrayal: The Final Act of the Trump Show, (New York: Dutton, 2021), at pp. 273–74 (“[Y]ou said, ‘You can be a patriot or you can be a pussy.’ Did you really say that or is that an incorrect report? ‘‘I wouldn’t dispute it,’ [President Trump] answered.”).
¶Nick Luna, President Trump’s personal assistant (commonly known as the “body man”), was also in the Oval Office during the conversation. Luna told the Select Committee that President Trump called Vice President Pence a “wimp” on the call, with President Trump adding that he “made the wrong decision” in choosing Pence as his running mate.242 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Nicholas Luna, (Mar. 21, 2022), p. 127.
458¶Keith Kellogg, Vice President Pence’s National Security Advisor, also heard the conversation. President Trump “told the Vice President that, you know, he has legal authority to send these folks [the electors] back to the respective States,” Kellogg told the Select Committee.243 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Keith Kellogg, (Dec. 14, 2021), p. 90; see also Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Donald J. Trump, Jr., (May 3, 2022), p. 84 (“I know the line of questioning was about sending it back to the States, but that’s about the extent of my recollection.”). President Trump insisted that Vice President Pence had the “constitutional authority to” reject certain electoral college votes.244 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Keith Kellogg, (Dec. 14, 2021), p. 91 (“Q: [Y]ou said he told the Vice President that he has the legal authority to reject certain votes. Is that what you said? A: That he had the constitutional authority to do that, yes.”); see also Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann (Apr. 6, 2022), p. 48 (describing it as “a general discussion about the legal and constitutional authority of the VP”). When Vice President Pence would not budge, President Trump told him “you’re not tough enough to make the call.”245 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Keith Kellogg, (Dec. 14, 2021), p. 92.
¶But Vice President Pence would not be bullied. The Vice President, who was at his residence at the time, had been meeting with Greg Jacob to finalize the statement he would be releasing later that day. When the President called, Pence stepped away to answer the phone. According to Jacob, when Pence returned, he did not say anything about the call—but he looked “steely, determined, [and] grim,” as he reentered the room.246 Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 16, 2022), available at https://www.govinfo.gov/committee/house-january6th; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 169.
459c. January 6, 2021: Trump, Eastman and Giuliani Continue to Pressure Vice President Pence at the Ellipse Rally.
¶Despite the Vice President’s unwavering stance, the President and his outside counsel continued to turn up the heat of public pressure.
¶At President Trump’s urging, thousands had gathered on the morning of January 6th to hear the President and others speak at a rally held at the Ellipse, a park just south of the White House. Before President Trump spoke, Eastman took the stage alongside Giuliani. Both would further amplify the President’s public pressure on the Vice President, but when Giuliani spoke on the Ellipse, he already knew that what Eastman had outlined would never practically happen.
¶At 9:31 a.m. that morning, Giuliani called Eric Herschmann “out of the blue” to ask him for his view and analysis of the practical implications of Eastman’s theory.247 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 40; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol, (AT&T Production, Feb. 9, 2022). According to Herschmann, after an “intellectual discussion about . . . the VP’s role,” Giuliani agreed that the “practical implication of [what Eastman had proposed] would be almost impossible.”248 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), pp. 40–41. Immediately after this 5½ minute conversation with Herschmann, Giuliani had two calls with the White House, at 9:41 a.m. and 9:53 a.m.249 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol, (AT&T Production, Feb. 9, 2022).
¶Giuliani recognized Eastman who joined him on stage, claiming that he was “one of the preeminent constitutional scholars in the United States.”250 “Rudy Giuliani Speech Transcript at Trump’s Washington, D.C. Rally: Wants ‘Trial by Combat,’” Rev, (Jan. 6, 2021), available at https://www.rev.com/blog/transcripts/rudy-giuliani-speech-transcript-at-trumps-washington-d-c-rally-wants-trial-by-combat.
¶Giuliani said Vice President Pence could either “decide on the validity of these crooked ballots, or he can send it back to the legislat[ures], give them five to 10 days to finally finish the work.”251 “Rudy Giuliani Speech Transcript at Trump’s Washington, D.C. Rally: Wants ‘Trial by Combat,’” Rev, (Jan. 6, 2021), available at https://www.rev.com/blog/transcripts/rudy-giuliani-speech-transcript-at-trumps-washington-d-c-rally-wants-trial-by-combat. He added that that they had “letters from five legislat[ures] begging us to do that.”252 “Rudy Giuliani Speech Transcript at Trump’s Washington, D.C. Rally: Wants ‘Trial by Combat,’” Rev, (Jan. 6, 2021), available at https://www.rev.com/blog/transcripts/rudy-giuliani-speech-transcript-at-trumps-washington-d-c-rally-wants-trial-by-combat (“We now have letters from five legislators begging us to do that. They’re asking us. Georgia, Pennsylvania, Arizona, Wisconsin, and one other coming in.”). This was not true. At most, what Giuliani, Eastman and other allies of President Trump had managed to procure were letters from individual State legislators or groups of State legislators. None of the letters came from a majority of any State’s legislative chamber, let alone a majority of an entire State legislature.253 See, e.g., Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Marc Short Production), J6C-TSM-0003, J6C-TSM-0004, (January 6, 2021, email from Molly Michael to March Short containing subject line “2057Rayburn_20210106_002040.pdf” and an attached letter). The letter bore the signatures of 19 of the 60 members of the Arizona House and 4 of the 30 members of the Arizona Senate.
¶For instance, a letter that Eastman described to Jacob as a “[m]ajor new development” on the evening of January 5th contained the signatures of 21 members of the Pennsylvania Senate.254 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman005235, Chapman005236, (January 5, 2021, email from John Eastman to Greg Jacob with an attached letter dated January 4, 2021). In an interview given after January 6th, Eastman argued that the Vice President still should have acted on the basis of the statement of a minority of the Pennsylvania legislature because “it was over Christmas, and they were having trouble getting ahold of people to sign the letter.” John McCormack, “John Eastman vs. the Eastman Memo,” National Review, (Oct. 22, 2021), available at https://www.nationalreview.com/2021/10/john-eastman-vs-the-eastman-memo/. Eastman claimed that it “now looks like PA Legislature will vote to recertify its electors if Vice President Pence implements the plan we discussed,” but the letter asked only for a “delay” in certification to “allow for due process.”255 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman005235, Chapman005236. The Select Committee learned from the most senior Pennsylvania Senate Republican that he signed the letter because of pressure he was feeling due to the voluminous post-election outreach from President Trump, Trump allies, and the public.256 Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Interview of Jake Corman, (Jan. 25, 2022). And, he only agreed to sign a letter directed to Congressional leaders—not the Vice President—after raising in a conversation with Vice President Pence’s brother, Congressman Greg Pence, his desire to avoid pressuring the Vice President.257 Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Interview of Jake Corman, (Jan. 25, 2022). Corman told the Select Committee that he understood the Vice President’s role at the joint session was not substantive.
460¶Moreover, as Jacob explained, “what any of the State legislatures said they did or did not want to do had no impact on the legal analysis of what the Vice President’s authorities were.”258 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 167-68; see also Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), p. 14; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Chris Hodgson, (Mar. 30, 2022), pp. 166-67. There was simply no legal path to send any votes back to the States on January 6th.
¶On the stage at the President’s rally on the Ellipse, Giuliani repeated a conspiracy theory about the “crooked Dominion machines . . . deliberately” changing votes via an algorithm.259 “Rudy Giuliani Speech Transcript at Trump’s Washington, D.C. Rally: Wants ‘Trial by Combat’,” Rev, (Jan. 6, 2021), available at https://www.rev.com/blog/transcripts/rudy-giuliani-speech-transcript-at-trumps-washington-d-c-rally-wants-trial-by-combat. He explained that the 10-day delay in the certification would be used “to see the machines that are crooked” and “to find criminality there”—demonstrating that his repeated assertions of a stolen election were not based on any real proof, or even evidence, of actual widespread fraud or criminality.260 “Rudy Giuliani Speech Transcript at Trump’s Washington, D.C. Rally: Wants ‘Trial by Combat’,” Rev, (Jan. 6, 2021), available at https://www.rev.com/blog/transcripts/rudy-giuliani-speech-transcript-at-trumps-washington-d-c-rally-wants-trial-by-combat.
¶“Let’s have trial by combat,” Giuliani told the crowd.261 “Rudy Giuliani Speech Transcript at Trump’s Washington, D.C. Rally: Wants ‘Trial by Combat’,” Rev, (Jan. 6, 2021), available at https://www.rev.com/blog/transcripts/rudy-giuliani-speech-transcript-at-trumps-washington-d-c-rally-wants-trial-by-combat.
¶Eastman came to the microphone following Giuliani, and he proceeded to repeat proven falsehoods regarding voting machines. He then issued his “demand”:
And all we are demanding of Vice President Pence is this afternoon, at 1:00, he let the legislatures of the state look into this so we get to the bottom of it, and the American people know whether we have control of the direction of our government, or not. We no longer live in a self-governing republic if we can’t get the answer to this question. This is bigger than President Trump. It is a very essence of our republican form of government, and it has to be done. And anybody that is not willing to stand up to do it, does not deserve to be in the office. It is that simple.262 “Rudy Giuliani Speech Transcript at Trump’s Washington, D.C. Rally: Wants ‘Trial by Combat’,” Rev, (Jan. 6, 2021), available at https://www.rev.com/blog/transcripts/rudy-giuliani-speech-transcript-at-trumps-washington-d-c-rally-wants-trial-by-combat (emphasis added). Note in particular Eastman’s assertions regarding voting machines, for example, “They put those ballots in a secret folder in the machines. Sitting there waiting until they know how many they need.” Eastman would later describe what he was calling on the Vice President to do as merely “to pause the proceedings.” John C. Eastman, “Setting the Record Straight on the POTUS ‘Ask’,” The American Mind, (Jan. 18, 2021), available at https://americanmind.org/memo/setting-the-record-straight-on-the-potus-ask/.
¶Eastman told the assembled crowd that nothing less than the fate of the American Republic was in Vice President Pence’s hands.
President Trump Directs the Angry Mob at the Capitol to Pressure Vice President Pence.
¶When President Trump later took the stage at the Ellipse, he heaped praise on Giuliani and Eastman. “He’s got guts, unlike a lot of people in the Republican Party,” President Trump said of Giuliani. “He’s got guts. He fights, he fights.”263 Brian Naylor, “Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial,” NPR, (Feb. 10, 2021), available at https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial. President Trump described Eastman as “one of the most brilliant lawyers in the country.”264 Brian Naylor, “Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial,” NPR, (Feb. 10, 2021), available at https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial. President Trump claimed that Eastman had looked at the election and said, “What an absolute disgrace that this can be happening to our Constitution.”265 Brian Naylor, “Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial,” NPR, (Feb. 10, 2021), available at https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial. Trump falsely argued that the keys to the election were in Vice President Pence’s hands, saying:
461And he [Eastman] looked at Mike Pence, and I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election. . . . [T]his is from the number one, or certainly one of the top, Constitutional lawyers in our country. He has the absolute right to do it.266 Brian Naylor, “Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial,” NPR, (Feb. 10, 2021), available at https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial.
¶President Trump repeatedly lied, claiming that several States wanted to overturn former Vice President Biden’s victory:
States want to revote. The States got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the States to recertify and we become president and you are the happiest people.267 Brian Naylor, “Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial,” NPR, (Feb. 10, 2021), available at https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial.
¶Contrary to the statement President Trump dictated the night before, he all but admitted that Vice President Pence did not agree with him:
And I actually, I just spoke to Mike. I said: “Mike, that doesn’t take courage. What takes courage is to do nothing. That takes courage.” And then we’re stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.268 Brian Naylor, “Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial,” NPR, (Feb. 10, 2021), available at https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial.
¶Later in his speech at the Ellipse, President Trump repeated:
So, I hope Mike has the courage to do what he has to do. And I hope he doesn’t listen to the RINOs and the stupid people that he’s listening to.269 Brian Naylor, “Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial,” NPR, (Feb. 10, 2021), available at https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial.
¶This was nothing less than a direct appeal to the large angry crowd to pressure Vice President Mike Pence to change his settled and oft-repeated conclusion about the limits of his authority. It was a shocking attempt to use public opinion to change the Vice President’s position. President Trump launched a mob toward the Capitol with the false hope that there was a scenario in which Vice President Pence would do what Eastman and President Trump had asked him to do, preventing the transfer of authority to President-elect Biden.
Vice President Pence Fulfilled his Duty on January 6th
The Vice President Waited to Release His Statement Out of Deference to President Trump, Who Was Still Speaking on the Ellipse, and Ultimately Released It Just Minutes Before the Joint Session Convened at 1:00 p.m.
¶President Trump’s speech began late and ran long. He didn’t finish speaking until approximately 1:10 p.m.—after the joint session had begun at 1:00 p.m. Minutes before he gaveled the joint session into order, Vice President Mike Pence released the “Dear Colleague” letter he had been working on for days with his staff.270 Mike Pence (@Mike_Pence), Twitter, Jan. 6, 2021 1:02 p.m. ET, available at https://twitter.com/Mike_Pence/status/1346879811151605762. Between 12:45 and 1:00 p.m., Vice President Pence processed with the Senate to the House Chamber. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Chris Hodgson, (Mar. 30, 2022), pp. 202-03. The Vice President’s statement was issued publicly and distributed on the House floor before the Vice President convened the joint session at approximately 1:05 p.m. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 173; see also Donna Cassata and Felicia Sonmez, “Congress Meets in Joint Session to Confirm Biden’s Win, Over the Objections of Dozens of Republicans,” Washington Post, (Jan. 6, 2021), available at https://www.washingtonpost.com/politics/2021/01/06/congress-electoral-college-vote-live-updates/#link-DUX3QUF3TVDNZDEGO7KIK2JSYE. There was never any ambiguity in Vice President Pence’s understanding of his role and authority, but he wanted to make it clear for everyone to see. “This may be the most important thing I ever say,” Vice President Pence remarked.271 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 164.
462¶“Today it will be my duty to preside when the Congress convenes in Joint Session to count the votes of the Electoral College, and I will do so to the best of my ability,” Vice President Pence wrote. Vice President Pence explained that his “role as presiding officer is largely ceremonial” and dismissed the arguments that he could take unilateral action as contrary to his oath to support and defend the Constitution:
As a student of history who loves the Constitution and reveres its Framers, I do not believe that the Founders of our country intended to invest the Vice President with unilateral authority to decide which electoral votes should be counted during the Joint Session of Congress, and no Vice President in American history has ever asserted such authority. Instead, Vice Presidents presiding over Joint Sessions have uniformly followed the Electoral Count Act, conducting the proceedings in an orderly manner even where the count resulted in the defeat of their party or their own candidacy.272 Mike Pence (@Mike_Pence), Twitter, Jan. 6, 2021 1:02 p.m. ET, available at https://twitter.com/Mike_Pence/status/1346879811151605762; see also Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000121, (January 6, 2021, Dear Colleague letter issued by Vice President Pence).
Vice President Pence Adheres to the U.S. Constitution and Complies with the Law Governing the Certification of the Presidential Election.
¶Vice President Pence during the Joint Session of Congress. (Photo by Win McNamee/Getty Images)
¶When Vice President Pence gaveled the opening of the joint session, he knew that many of his Republican colleagues planned to challenge the election’s results based on fictitious claims of fraud. The Vice President took steps to ensure that those objections adhered to the process set forth in the Electoral Count Act.
¶Every four years, on January 6th, vice presidents read from a script that remains essentially unchanged. Eastman’s theory of the Vice President’s power and the Trump Campaign’s scheme to convene and submit the slates of “alternate” (fake) electors motivated Vice President Pence and his advisors to alter the script and to make sure they were prepared to respond to any unexpected actions in the joint session.273 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 27-28 (testifying that, in consultation with the Senate Parliamentarian, the Vice President purposefully revised the standard language used by previous vice presidents at the joint session of Congress because of efforts by the Trump Campaign and allies to create the public perception that there were “other slates of electors that were being considered or [] being put forward.”).
¶Vice President Pence met with the Senate Parliamentarian on January 3rd to discuss the joint session and revised the joint session scripts in consultation with her office.274 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 186-88; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 53-54; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Chris Hodgson, (Mar. 30, 2022), pp. 50-51. The Senate Parliamentarian offers advice and guidance on compliance with the Senate’s rules. See CRS Report, The Office of the Parliamentarian in the House and Senate, (Nov. 28, 2018) RS20544. The Office of the Secretary of the Senate, on behalf of the Senate Parliamentarian and her staff, declined requests for information about this topic, as well as other January 6-related topics, from the Select Committee citing the independent relationship of the Senate and House as well as “historical congressional norms.” Vice President Pence and the Parliamentarian agreed that the Vice President’s role is ministerial.275 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 64; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Chris Hodgson, (Mar. 30, 2022), pp. 54-56 (testifying that the Vice President’s understanding of his role as explained in the Dear Colleague letter he released on January 6th was set as of his meeting with the Parliamentarian on January 3rd).
¶The Vice President knew that the fake slates of electors organized by the Trump Campaign were not certified by the States and thus were not valid; he revised the script for the joint session to be transparent with the American people about what the Vice President would—and wouldn’t—be doing during the joint session.276 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 68-70; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 2728; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), 00163, (Vice President Superscript for Joint Session to Count Electoral Ballots January 6, 2021), 00181, (Response to Submissions NOT Certified by a State); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000103_0001 (Pence joint session scripted responses).
463¶One of the most noticeable and important changes to the script was directed specifically at thwarting the fake electors scheme. The Vice President knew, informed by the research and analysis of his staff, that absent certification of the electoral votes by a State authority, the purported “alternate” slates were “not consequential” and would play no role in the certification of the Presidential election at the joint session.277 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), p. 42. Jacob learned through the media that Trump electors had met and purported to cast electoral votes but, seeing no indication that any of the groups that met had “an imprimatur of State authority,” he concluded that they would not qualify as competing slates under the Electoral Count Act. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 51; see also Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 54 (“I’m sure I, either in my oral conversation with Elizabeth [MacDonough] or in looking at this spreadsheet, confirmed my conclusion that none of these had the requisite State authority.”). The Senate Parliamentarian confirmed this understanding.278 The Senate Parliamentarian and her staff tracked the receipt of legitimate electoral votes from the states as well as the private citizen submissions (including the fake slates submitted by Trump electors) and identified the many deficiencies of the fake documents. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP R0000323_0001 (Jan. 3, 2021 email exchange with Senate Parliamentarian), VP R0000417_0001 (Jan. 2 and 3, 2021 email exchange with Senate Parliamentarian), VP R0000418_0001 (list of deficiencies in alternate elector slates); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), 00094, (list of deficiencies in alternate elector slates). The Senate Parliamentarian reviewed each purported slate of electoral votes to separate those in regular form and authorized by a State from those submitted by private citizens—the Trump Campaign’s fake electors fell into this latter category. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 53—54; see also Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Chris Hodgson, (Mar. 30, 2022), pp. 44-45.
¶For decades, Vice Presidents read a similar simple passage concerning the ascertainment of the vote. Most recently, Vice President Joseph Biden read this passage aloud in 2017, as did his most recent predecessors:
After ascertainment has been had that the certificates are authentic and correct in form, the tellers will count and make a list of the votes cast by the electors of the several States.
¶On January 6, 2021, Vice President Pence read from a revised script (emphasis added):
464After ascertaining that the certificates are regular in form and authentic, tellers will announce the votes cast by the electors for each state, beginning with Alabama, which the parliamentarians advise me is the only certificate of vote from that State and purports to be a return from the State that has annexed to it a certificate from an authority of that State purporting to appoint or ascertain electors.279 “House Chamber During Joint Session,” C-SPAN, at 11:07–11:37, Jan. 6, 2021, available at https://www.c-span.org/video/?507748-1/house-chamber-joint-session (emphasis added).
¶Vice President Pence used the same phrasing for each of the 50 States counted.
¶The Vice President’s attention to this issue was warranted. Trump’s allies pushed the fake electors scheme until the very end. Although the Trump Campaign had taken pains to direct the fake electors to send their documents to the appropriate authorities immediately after voting on December 14th, and though the Senate Parliamentarian’s and Vice President’s offices had been tracking the receipt by mail of both the legitimate and fake certificates, the Trump Campaign apparently became concerned that two States’ documents had not been received before the joint session.280 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Andrew Hitt, (Feb. 28, 2022), pp. 94-95. See also Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000076, VP-R0000417, VP-R0000418, (January 3, 2021, emails and spreadsheet showing OVP staff tracking the arrival of fake electors’ certificates).
¶On January 4th, the Trump campaign asked Republican Party officials in Wisconsin to fly their fake electors’ documents to Washington, DC.281 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Andrew Hitt Production), Hitt000090 (text messages exchanged between Republican officials in Wisconsin, including statement that “[f]reaking trump idiots want someone to fly original elector papers to the Senate President.”). Shortly after, staffers for Representative Mike Kelly (R–PA) and Senator Ron Johnson (R–WI) reached out to Vice President Pence’s Director of Legislative Affairs, apparently seeking to deliver the fake certificates.282 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), 00012, (message from Rep. Kelly’s Chief of Staff, Matt Stroia, to Chris Hodgson on Jan. 6, 2021, at 8:41 am), 00058, (messages from Senator Johnson’s Chief of Staff, Sean Riley, to Chris Hodgson on Jan. 6, 2021, around 12:37 pm). A message from Senator Johnson’s staffer was sent just minutes before the beginning of the joint session. This staffer stated that Senator Johnson wished to hand-deliver to the Vice President the fake electors’ certificates from Michigan and Wisconsin. The Vice President’s aide unambiguously turned him away.283 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), 00058 (Chris Hodgson responding to Sean Riley, “Do not give that to him. He’s about to walk over to preside over the joint session, those were supposed to come in through the mail[.]” And, “The VP absolutely should not receive any mail that hasn’t been screened.”).
¶Vice President Pence made certain to call for objections as well, in compliance with the Electoral Count Act. After the tellers read off the votes cast for each State, he asked: “Are there any objections to counting the certificate of vote of the state . . . that the teller has verified, appears to be regular in form and authentic?”284 See, e.g., “House Chamber During Joint Session,” C-SPAN, at 15:33–15:59, Jan. 6, 2021, available at https://www.c-span.org/video/?507748-1/house-chamber-joint-session.
¶For most States, there were no objections. Republicans only rose to object to the States that President Trump contested. The first such state was Arizona. At approximately 1:46 p.m., Congressman Paul Gosar (R–AZ) announced his objection.285 Karoun Demirjian, “GOP Members Object to Arizona’s Electoral Votes for Biden,” Washington Post, (Jan. 6, 2021), available at https://www.washingtonpost.com/politics/2021/01/06/congress-electoral-college-vote-live-updates/#link-TSWL74F2SVHBHET7GQR5IEP6FI . “I rise for myself and 60 of my colleagues to object to the counting of the electoral ballots from Arizona,” Gosar said.286 “House Chamber During Joint Session,” C-SPAN, at 15:59–17:16, Jan. 6, 2021, available at https://www.c-span.org/video/?507748-1/house-chamber-joint-session.
¶Vice President Pence then asked: “Is the objection in writing and Signed by a senator?” It was. Senator Ted Cruz endorsed the unfounded challenge to Arizona’s electoral votes.287 “House Chamber During Joint Session,” C-SPAN, at 17:16–18:01, Jan. 6, 2021, available at https://www.c-span.org/video/?507748-1/house-chamber-joint-session. Because the objections complied with the law, Vice President Pence directed the House and Senate to withdraw from the joint session so that the House and Senate could separately debate and vote on the objection.288 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), p. 29.
465¶When the joint session finally resumed after the attack on the Capitol, the clerks announced the results of each chamber’s vote. Just six U.S. Senators voted for the objection to the counting of Arizona’s electoral college votes. The objection was also defeated in the House, though 121 Republican Members voted to reject Arizona’s legitimate electors.289 House vote on Arizona (Roll No. 10): 167 Cong. Rec. H93 (daily ed. Jan. 6, 2021): 121-303; House vote on PA (Roll No. 11): 167 Cong. Rec. H112 (daily ed. Jan. 6, 2021): 138-282; Senate vote on Arizona (Rollcall Vote No. 1 Leg.): 167 Cong. Rec. S31-32 (daily ed. Jan. 6, 2021): 6-93; Senate vote on PA (Rollcall Vote. No. 2 Leg.): 167 Cong. Rec. S38 (daily ed. Jan. 6, 2021): 7-92. Pennsylvania was the only other State the chambers debated, after the House’s objection was signed by Senator Josh Hawley (R–Mo.).290 Katie Meyer, “Congress Certifies Pa. Results, Biden’s Victory After Chaotic Day of Violent Insurrection,” WHYY, (Jan. 6, 2021), available at https://whyy.org/articles/casey-fitzpatrick-condemn-violent-insurrection-as-congress-moves-toward-certifying-biden/.