7.12 President Trump Still Sought to Delay the Joint Session

¶Even after President Trump finally told the rioters to go home, he and his lead attorney, Rudolph Giuliani, continued to seek to delay the joint session of Congress.

¶Giuliani began frantically calling the White House line the very minute that the President’s video went up on Twitter.²⁹²²⁹² Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (AT&T Production, Feb. 9, 2022). Failing to get through, he called back, once every minute—4:17 p.m., 4:18 p.m., 4:19 p.m., 4:20 p.m.²⁹³²⁹³ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (AT&T Production, Feb. 9, 2022). He managed to get through, briefly, to Mark Meadows at 4:21 p.m., and then kept calling the White House line: at 4:22 p.m., three times on two different phones at 4:23 p.m., 4:24 p.m., and once more at 5:05 p.m.²⁹⁴²⁹⁴ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (AT&T Production, Feb. 9, 2022). He finally managed to speak with President Trump at 5:07 p.m., and the two spoke for almost 12 minutes.²⁹⁵²⁹⁵ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (AT&T Production, Feb. 9, 2022).

¶After he spoke with President Trump, Giuliani’s phone calls went nearly without fail to Members of Congress: Senator Marsha Blackburn, and then Senator Mike Lee.²⁹⁶²⁹⁶ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Rudolph Giuliani Production, Mar. 11, 2022). He made three calls to Senator Bill Hagerty, then two to Representative Jim Jordan.²⁹⁷²⁹⁷ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Rudolph Giuliani Production, Mar. 11, 2022); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (AT&T Production, Feb. 9, 2022). He called Senator Lindsey Graham,²⁹⁸²⁹⁸ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (AT&T Production, Feb. 9, 2022). Senator Josh Hawley,²⁹⁹²⁹⁹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Rudolph Giuliani Production, Mar. 11, 2022). and Senator Ted Cruz.³⁰⁰³⁰⁰ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Rudolph Giuliani Production, Mar. 11, 2022). Giuliani had two calls with Senator Dan Sullivan over the course of the evening.³⁰¹³⁰¹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Rudolph Giuliani Production, Mar. 11, 2022). There were another three calls to Representative Jordan, none of which connected.³⁰²³⁰² Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (AT&T Production, Feb. 9, 2022). After 8:06 p.m., when the joint session resumed, the calls to Members of Congress finally stopped.³⁰³³⁰³ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Rudolph Giuliani Production, Mar. 11, 2022); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (AT&T Production, Feb. 9, 2022). Shortly afterward, at 8:39 p.m., Giuliani had one final call of 9 minutes with the President.³⁰⁴³⁰⁴ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000255 (Jan. 6, 2021, Daily Diary of President Donald J. Trump); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (AT&T Production, Feb. 9, 2022).

¶When asked about these calls during his deposition before the Select Committee, Giuliani initially refused to answer. Giuliani insisted his calls to Members of Congress—none of whom were his client—were all attorney-client privileged.³⁰⁵³⁰⁵ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Rudolph Giuliani, (May 20, 2022), p. 206. (“You were leaving messages or having phone calls with United States Senators about the joint session of Congress. How could that possibly be [a] privileged conversation?” “Because the conversation is about the theory of the case, and my representation of the client.”).Show full note But Giuliani eventually relented.

¶“I was probably calling to see any—if anything could be done,” he said. “About the vote—the vote.”³⁰⁶³⁰⁶ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Rudolph Giuliani, (May 20, 2022), p. 207.

¶We know definitively what Giuliani was up to because he left a voice message for Senator Tuberville—inadvertently on Senator Lee’s phone—recording his request.³⁰⁷³⁰⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Rudolph Giuliani, (May 20, 2022), p. 206; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Robert O’Brien Production), NSA 0040 (January 6, 2021, text message from Sen. Mike Lee to Robert O’Brien at 10:55 p.m. EST reading, “You can’t make this up. I just got this voice message [from] Rudy Giuliani, who apparently thought he was calling Senator Tuberville.” “You’ve got to listen to that message. Rudy is walking malpractice.”).Show full note He wanted for “you, our Republican friends to try to just slow it down,” referring to the electoral count, and delay the joint session.³⁰⁸³⁰⁸ Steve Hayes, “Giuliani to Senator: ‘Try to Just Slow it Down,’” The Dispatch, (Jan. 6, 2021), available at https://thedispatch.com/p/giuliani-to-senator-try-to-just-slow. Here are his own words:

The only strategy we can follow is to object to numerous States and raise issues so that we get ourselves into tomorrow—ideally until the end of tomorrow. So if you could object to every State and, along with a congressman, get a hearing for every State, I know we would delay you a lot, but it would give us the opportunity to get the legislators who are very, very close to pulling their vote.³⁰⁹³⁰⁹ Steve Hayes, “Giuliani to Senator: ‘Try to Just Slow it Down,’” The Dispatch, (Jan. 6, 2021), available at https://thedispatch.com/p/giuliani-to-senator-try-to-just-slow.

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¶The President, too, was at home, but he remained focused on his goal. Between 6:54 p.m. and 11:23 p.m., he spoke with 13 people, some more than once.³¹⁰³¹⁰ Those 13 people are Pat Cipollone, Dan Scavino, Kurt Olsen, Mark Martin, Cleta Mitchell, Rudy Giuliani, Kayleigh McEnany, Jason Miller, Mark Meadows, Steve Bannon, Eric Herschmann, Sean Hannity, and John McEntee. See Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000255 (Jan. 6, 2021, Daily Diary of President Donald J. Trump); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000261 (Jan. 6, 2021, the Presidential Call Log).Show full note Of the 13, six ignored or expressly refused to comply with Select Committee requests for their testimony.³¹¹³¹¹ H. Rept. 117-152, Resolution Recommending that the House of Representatives Find Stephen K. Bannon in Contempt of Congress for Refusal to Comply with a Subpoena Duly Issued by the Select Committee to Investigate the January 6th Attack on the United States Capitol, 117th Cong., 1st sess. (2021), available at https://www.congress.gov/117/crpt/hrpt152/CRPT-117hrpt152.pdf; H. Rept. 117–216, Resolution Recommending that the House of Representatives Find Mark Randall Meadows in Contempt of Congress for Refusal to Comply with a Subpoena Duly Issued by the Select Committee to Investigate the January 6th Attack on the United States Capitol, 117th Cong., 1st sess. (2021), available at https://www.congress.gov/117/crpt/hrpt216/CRPT-117hrpt216.pdf; H. Rept. 117–284, Resolution Recommending that the House of Representatives Find Peter K. Navarro and Daniel Scavino, Jr., in Contempt of Congress for Refusal to Comply with a Subpoena Duly Issued by the Select Committee to Investigate the January 6th Attack on the United States Capitol, 117th Cong., 2d sess. (2022), available at https://www.congress.gov/117/crpt/hrpt284/CRPT-117hrpt284.pdf; Erik Larson, “Lawyer Who Talked to Trump on Day of Capitol Riot Sues over Subpoena,” Bloomberg, (Mar. 25, 2022), available at https://www.bloomberg.com/news/articles/2022-03-25/lawyer-who-talked-to-trump-on-day-of-mob-riot-sues-over-subpoena (discussing Kurt Olsen); Caleb Ecarma, “Sean Hannity Wants the January 6 Committee to Believe He’s a Journalist,” Vanity Fair, (Jan. 5, 2022), available at https://www.vanityfair.com/news/2022/01/sean-hannity-january-6-committee-journalist.Show full note Two agreed to appear but refused to answer questions about their phone calls with the President, citing executive privilege.³¹²³¹² Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 118; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Pasquale Anthony “Pat” Cipollone, (July 8, 2022), p. 195. Two more refused to answer questions, claiming attorney-client privilege.³¹³³¹³ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Cleta Mitchell, (May 18, 2022), p. 131; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Rudolph Giuliani, (May 20, 2022), p. 211.

¶Mike Pence reopens the joint session of Congress and resumes counting electoral votes. (Photo by Will McNamee/Getty Images)

¶Of the 13, five were President Trump’s attorneys or lawyers who worked with him on efforts to reverse the outcome of the election. With one exception, each of these calls took place before 8:06 p.m., when Vice President Pence reopened the joint session of Congress and resumed counting the electoral votes.³¹⁴³¹⁴ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000255 (Jan. 6, 2021, Daily Diary of President Donald J. Trump); “WATCH: ‘Let’s Get Back to Work,’ Pence Urges Senate,” PBS, (Jan. 6, 2021), available at https://www.pbs.org/newshour/politics/watch-lets-get-back-to-work-pence-urges-senate. The President spoke with White House Counsel Pat Cipollone for 7 minutes at 7:01 p.m.³¹⁵³¹⁵ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000255 (Jan. 6, 2021, Daily Diary of President Donald J. Trump). He spoke with Kurt Olsen and Mark Martin, lawyers who both advised him on the Vice President’s role in the joint session:³¹⁶³¹⁶ Olsen authored a memo urging Vice President Pence to adjourn the joint session of Congress without counting electoral votes. See Documents on file with the Select Committee on the January 6th Attack on the United States Capitol (Chapman University Production) Chapman004979 (Jan. 2, 2021, Kurt Olsen Draft Memorandum Entitled, “The Role of the Vice President in Receiving Votes from the Electoral College.”) Martin advised President Trump that Vice President Pence possessed the constitutional authority to impede the electoral count. See Nicholas Fandos, Peter Baker, and Maggie Haberman, “House Moves to Force Trump Out, Vowing Impeachment if Pence Won’t Act,” New York Times, (Jan. 10, 2021), available at https://www.nytimes.com/2021/01/10/us/politics/trump-impeachment.html. Both corresponded with John Eastman and others regarding plans to convene alternate electors in states won by Joe Biden. See Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman023998 (Dec. 6, 2020, Michael Farris email forwarding an email concerning the “Importance of Republican Electors in AZ, GA, MI, NV, PA and WI Voting on Dec 14” at 1:54 p.m. ET). President Trump asked to speak with Mr. Olsen and Mr. Martin before he left the dining room. See Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000007401_00001 (Jan. 6, 2021, Molly Michael email to MBX WHO MA Joint White House Switchboard at 11:28 p.m. ET).Show full note He spoke with Martin for 9 minutes at 7:30 p.m., and Olsen twice, for 11 minutes at 7:17 p.m. and for another 10 minutes at 7:40 p.m.³¹⁷³¹⁷ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000255 (Jan. 6, 2021, Daily Diary of President Donald J. Trump). He spoke with Cleta Mitchell, the lawyer leading his election challenges in Georgia, for 2 minutes at 7:53 p.m.³¹⁸³¹⁸ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000255 (Jan. 6, 2021, Daily Diary of President Donald J. Trump). Mitchell declined to discuss her conversations with President Trump on attorney-client privilege grounds. She did, however, acknowledge that following the phone call, she took steps to dismiss the President’s pending election suit in Georgia. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Cleta Mitchell, (May 18, 2022), p. 131.Show full note The President spoke with Herschmann for 5 minutes at 10:50 p.m.³¹⁹³¹⁹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000259 (Jan. 6, 2021, Daily Diary of the President Donald J. Trump); Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 118 (Herschmann refused to answer questions about the phone call, citing executive privilege).Show full note

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¶Another five of the people who spoke with President Trump that night were employees or outside advisors who counseled him on communications issues. These calls, by contrast, predominantly took place after the joint session resumed.³²⁰³²⁰ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000255–P-R000259 (Jan. 6, 2021, Daily Diary of President Donald J. Trump). He spoke with his communications director, Scavino, twice: for 7 minutes at 7:08 p.m. and for 15 minutes at 9:55 p.m.³²¹³²¹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000255–P-R000259 (Jan. 6, 2021, Daily Diary of President Donald J. Trump). He spoke with McEnany for 11 minutes at 9:42 p.m.³²²³²² Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000255–P-R000259 (Jan. 6, 2021, Daily Diary of President Donald J. Trump). He took calls from Steve Bannon, for 7 minutes at 10:19 p.m., and Sean Hannity, for 8 minutes at 11:08 p.m.³²³³²³ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000255–P-R000259 (Jan. 6, 2021, Daily Diary of President Donald J. Trump).

¶At 9:23 p.m., President Trump spoke with Jason Miller, his Campaign Communications Director, for 18 minutes.³²⁴³²⁴ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000255–P-R000259 (Jan. 6, 2021, Daily Diary of President Donald J. Trump).

¶Of his own initiative, Miller had drafted a statement for the President assuring the nation that the transfer of power—despite the day’s events—would, indeed, take place.³²⁵³²⁵ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Jason Miller, (Feb. 3, 2022), pp. 258–59. On their call, the President pushed back on the phrasing.

¶The President wanted the statement to promise a “peaceful transition” of power, rather than just an “orderly” one.³²⁶³²⁶ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Jason Miller, (Feb. 3, 2022), p. 258.

¶Miller rejected the change and told him why rather bluntly.

¶“[T]hat ship’s kind of already sailed,” he said, “so we’re going to say ‘orderly transition.’”³²⁷³²⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Jason Miller, (Feb. 3, 2022), p. 258.