Chapter 5. “A COUP IN SEARCH OF A LEGAL THEORY”

¶On the morning of January 6, 2021, Vice President Michael R. Pence gathered his staff to pray. Vice President Pence and his closest advisors knew the day ahead “would be a challenging one.”¹¹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 10–11. They asked God for “guidance and wisdom” in the hours to come.²² Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 10–11. No Republican had been more loyal to President Donald J. Trump throughout his turbulent presidency than Vice President Pence. The Vice President rarely, if ever, criticized his boss. But as January 6th approached, President Trump turned on his own Vice President.

¶President Trump was desperate. As described in the previous chapters, the President was searching for a way to stay in power. He had lost the election to former Vice President Biden. He had run out of legal options to overturn the election weeks earlier, when his lawyers lost nearly every court challenge they filed.

¶The President pursued other means as well. President Trump and his lawyers tried to convince State and local officials to overturn the election, but they met resistance. Those same officials would not break the law or violate their oath to the Constitution. President Trump and his associates tried to convince State legislatures to replace the legitimate electors won by former Vice President Biden with Trump electors. The Trump Campaign even convened their own fake electors who submitted false electoral votes to Washington. But those efforts failed, too.

¶President Trump also attempted to use the Department of Justice (DOJ) for his own corrupt political purposes. President Trump offered the job of Acting Attorney General to a loyalist. He wanted this same DOJ official, Jeffrey Clark, to send a letter to several States suggesting that they should certify the fake electors convened by the Trump Campaign. President Trump’s effort to subvert the DOJ came to a head on January 3rd, when the Department’s senior personnel and lawyers in the White House Counsel’s Office threatened mass resignations if Clark was installed.

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¶At that point, theories about a role the Vice President could play at the joint session had been circulating in certain corners of the internet and among Trump-supporting attorneys.³³ See, e.g., Ivan E. Raiklin (Former Green Beret Commander) (@Raiklin), Twitter, Dec. 22, 2020, available at https://web.archive.org/web/20201222232155/https://twitter.com/Raiklin/status/1341520753984942081 (archived) (“America, @VP @Mike_Pence MUST do this, tomorrow!”); Donald J. Trump (@realDonaldTrump), Twitter, Dec. 23, 2020 7:40:30 p.m. ET, available at https://web.archive.org/web/20201224033528/http://twitter.com/realDonaldTrump (archived).Show full note President Trump focused his attention on the man who had loyally served by his side for four years.

¶On January 4, 2021, President Trump summoned Vice President Pence to a meeting in the Oval Office with John Eastman, a law professor representing President Trump in litigation challenging the election result. Eastman argued, on President Trump’s behalf, that the Vice President could take matters into his own hands during the joint session on January 6th. Eastman offered Vice President Pence two options. First, the Vice President could unilaterally reject the certified electors from several States won by former Vice President Biden, thereby handing the presidency to President Trump. Or, according to Eastman, Vice President Pence could delay the joint session to give State legislatures the opportunity to certify new electors loyal to the President. Eastman admitted, in front of the president, that both options violated the Electoral Count Act of 1887, the statute that sets forth the process for counting and disputing electoral votes during the joint session.⁴⁴ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 95, (“[T]he Vice President mostly asked a series of questions in that meeting of Mr. Eastman”), 130 (Q: “Did John Eastman ever admit, as far as you know, in front of the President that his proposal would violate the Electoral Count Act?” A: “I believe he did on the 4th.” Q: “Okay. And can you tell us what the President’s reaction was?” A: “A I can’t.”); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000107 (Greg Jacob memo to Vice President Pence, titled “Analysis of Professor Eastman’s Proposals”).Show full note Eastman admitted as much in a subsequent conversation with the Vice President’s staff as well.⁵⁵ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 96 (Eastman acknowledging that the legal basis for his proposed paths was the same and, as recounted by Greg Jacob, “[y]ou couldn’t get there either way unless you . . . set aside a number of the positions of the Electoral Count Act”).

¶Therefore, President Trump knew, or should have known, that this scheme was illegal—in fact, it violated the Electoral Count Act and the U.S. Constitution. President Trump repeatedly demanded that Vice President Pence go through with it anyway.

¶Vice President Pence rejected President Trump’s demands “many times” on January 4th and in the days that followed.⁶⁶ 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.”).Show full note Vice President Pence correctly pointed out that he had no power to take any action other than counting the certified electoral votes. America’s founders could not possibly have contemplated a scenario in which the Vice President could unilaterally reject electoral votes and decide the outcome of a Presidential election. However, instead of backing down, President Trump ratcheted up the pressure even further, relentlessly harassing Vice President Pence both in public and in private.

¶President Trump used his bully pulpit, at rallies and on Twitter, to lie to his supporters. President Trump told them that Vice President Pence had the power to deliver another 4 years in the White House. It was not true. President Trump’s campaign of coercion became so intense that Marc Short, Vice President Pence’s Chief of Staff, alerted the head of the Vice President’s Secret Service detail to the impending danger. On January 5th, Short warned that as the “disagreements” between President Trump and Vice President Pence “became more public, that the president would lash out in some way.”⁷⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 18–20.

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¶Indeed, President Trump did. And those around him recognized that his lashing out at the Vice President could have disastrous consequences. On the morning of January 6th, an agent in the Secret Service’s intelligence division was alerted to online chatter “regarding the VP being a dead man walking if he doesn’t do the right thing.”⁸⁸ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (U.S. Secret Service Production), CTRL0000092958 (January 6, 2021, message at 10:39 a.m. ET). A few minutes later, another agent made a comment that turned out to be an ominous prediction: “I saw several other alerts saying they will storm the [C]apitol if he [the Vice President] doesn’t do the right thing etc.”⁹⁹ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (US Secret Service Production), CTRL0000092978 (January 6, 2021, message at 10:43 a.m. ET).

¶During his speech at the Ellipse on January 6th, President Trump repeatedly pointed his finger at Vice President Pence. President Trump insisted that “if Mike Pence does the right thing, we win the election.”¹⁰¹⁰ “Transcript of Trump’s Speech at Rally Before US Capitol Riot,” Associated Press, (Jan. 13, 2021), available at https://apnews.com/article/election-2020-joe-biden-donald-trump-capitol-siege-media-e79eb5164613d6718e9f4502eb471f27. President Trump added: “And Mike Pence is going to have to come through for us, and if he doesn’t, that will be a, a sad day for our country because you’re sworn to uphold our Constitution.”¹¹¹¹ “Transcript of Trump’s Speech at Rally Before US Capitol Riot,” Associated Press, (Jan. 13, 2021), available at https://apnews.com/article/election-2020-joe-biden-donald-trump-capitol-siege-media-e79eb5164613d6718e9f4502eb471f27.

¶President Trump’s scheme required Vice President Pence to break his oath to the Constitution, not uphold it. By the time President Trump spoke at the Ellipse, he also knew that Vice President Pence had no intention of overturning the election.

¶President Trump then sent a mob to the U.S. Capitol. He did so even after being informed by the Secret Service that people in the crowd possessed weapons. He wanted his supporters to intimidate Vice President Pence and any other Republican who refused his demands. The President told the crowd assembled before him to march down Pennsylvania Avenue, to “our Republicans, the weak ones” at the U.S. Capitol, “to try and give them the kind of pride and boldness that they need to take back our country.”¹²¹² “Transcript of Trump’s Speech at Rally Before US Capitol Riot,” Associated Press, (Jan. 13, 2021), available at https://apnews.com/article/election-2020-joe-biden-donald-trump-capitol-siege-media-e79eb5164613d6718e9f4502eb471f27.

¶The mob overran the U.S. Capitol in short order. At 2:24 p.m., while the attack was well underway, President Trump tweeted:

Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!¹³¹³ Donald J. Trump (@realDonaldTrump), Twitter, Jan. 6, 2021 2:24 p.m. ET, available at https://web.archive.org/web/20210106192450/https://twitter.com/realdonaldtrump/status/1346900434540240897 (archived).

¶Again, the opposite was true. Vice President Pence showed courage on January 6th. The Vice President refused to be intimidated by President Trump’s mob, even as chants of “Hang Mike Pence!” echoed throughout the halls of the U.S. Capitol and a makeshift gallows was constructed on the Capitol grounds.¹⁴¹⁴ 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; Rebecca Shabad, “Noose Appears Near Capitol; Protesters Seen Carrying Confederate Flags,” NBC News, (Jan. 6, 2021), available at https://www.nbcnews.com/politics/congress/live-blog/electoral-college-certification-updates-n1252864/ncrd1253129#blogHeader.Show full note

¶It is no mystery why the mob turned on Vice President Pence. President Trump told his supporters that the election was stolen, and that Vice President Pence had the power, but lacked the courage, to fix it. None of this was true.

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¶President Trump and Vice President Pence have both reflected on the events of January 6th in the months since then. Vice President Pence has described President Trump’s demands as “un-American.”¹⁵¹⁵ See Quint Forgey, “‘Almost No Idea More Un-American’: Pence Breaks with Trump on Jan. 6,” Politico, (June 25, 2021), available at https://www.politico.com/news/2021/06/25/pence-trump-jan-6-496237. President Trump has since insisted that Vice President Pence “could have overturned the Election!”¹⁶¹⁶ Statement by Donald J. Trump, 45th President of the United States of America, Jan. 30, 2022, available at https://web.archive.org/web/20220131171840/https://www.donaldjtrump.com/news/news-8nkdvatd7g1481 (archived) (“If the Vice President (Mike Pence) had ‘absolutely no right’ to change the Presidential Election results in the Senate, despite fraud and many other irregularities, how come the Democrats and RINO Republicans, like Wacky Susan Collins, are desperately trying to pass legislation that will not allow the Vice President to change the results of the election? Actually, what they are saying, is that Mike Pence did have the right to change the outcome, and they now want to take that right away. Unfortunately, he didn’t exercise that power, he could have overturned the Election!”) (emphasis added).Show full note Asked about the calls to hang the Vice President, President Trump said it was “common sense.”¹⁷¹⁷ Mike Allen, “Exclusive Audio: Trump Defends Threats to ‘Hang’ Pence,” Axios, (Nov. 12, 2021), available at available at https://www.axios.com/2021/11/12/trump-hang-mike-pence-january-6-audio (“Jonathan Karl: ‘Were you worried about him during that siege? Were you worried about his safety?’ Trump: ‘No, I thought he was well-rotected, and I had heard that he was in good shape. No. Because I had heard he was in very good shape. But, but, no, I think—’ Karl: ‘Because you heard those chants—that was terrible. I mean—’ Trump: ‘He could have—well, the people were very angry.’ Karl: ‘They were saying ‘hang Mike Pence.’’ Trump: ‘Because it’s common sense, Jon. It’s common sense that you’re supposed to protect. How can you—if you know a vote is fraudulent, right?—how can you pass on a fraudulent vote to Congress? How can you do that?’) (emphasis added).Show full note

¶In early 2022, U.S. District Judge David Carter evaluated the Trump-Eastman scheme to pressure the Vice President. Judge Carter described it as “a campaign to overturn a democratic election, an action unprecedented in American history.”¹⁸¹⁸ Order Re Privilege of Documents Dated January 4-7, 2021 at 44, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM). It was “a coup in search of a legal theory,” Judge Carter found, that likely violated at least two Federal laws.¹⁹¹⁹ Order Re Privilege of Documents Dated January 4-7, 2021 at 36, 40, 44, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM) (“Based on the evidence, the Court finds that it is more likely than not that President Trump and Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.”). The Trump-Eastman scheme was not a feature of the U.S. Constitution, as President Trump told his supporters. Instead, it “would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution.”²⁰²⁰ Order Re Privilege of Documents Dated January 4-7, 2021 at 44, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM).

¶And it all began because President Trump refused to accept the result of the election, expressed through the votes of 81 million Americans.