Jan. 6 hearing piles on evidence: Pence didn’t have power to change 2020 election

For a month before the attack on the Capitol, former President Donald Trump and Vice President Mike Pence were locked in a running battle. Trump was adamant that Pence had the power to stop the certification of the Electoral College votes on Jan. 6. Pence was just as adamant that he did not.

In the third hearing laying out the findings of the House select committee investigating the chaos on Jan. 6, former vice presidential counsel Greg Jacob described in detail many meetings where he and Pence pushed back against Trump’s plan.

At times, Pence talked directly with Trump. More often, Jacob met with the architect of the plan, law professor John Eastman.

Jacob said he contradicted Eastman directly on the idea that the vice president wielded extraordinary powers during the joint session of Congress where the presidential vote became fully official. There was no support for that interpretation in the Constitution, law or history, Jacob said he told Eastman. But the strongest argument, Jacob said, was that the idea flew in the face of common sense.

"There’s just no way that the framers of the Constitution, who divided power and authority, who (had) broken away from George the Third, and declared him to be a tyrant, would have put in the hands of one person the authority to determine who was going to be President of the United States," Jacob said.

In broad strokes, the June 16 hearing affirmed and reaffirmed the essential facts that had long been established. Trump and Eastman wanted Pence to set aside the electoral college votes from states such as Arizona, Pennsylvania and Wisconsin, and deny Joe Biden an outright victory. To do so, Trump had to reject the laws and principles that are the cornerstone of the orderly handoff from one president to the next.

Trump’s plan, said former federal appellate judge J. Michael Luttig — a Republican appointee — was not supported by any existing law.

"There was no basis in the Constitution or laws of the United States at all," Luttig told the committee.

The day before the assault on the Capitol, Trump tweeted, "The Vice President has the power to reject fraudulently chosen electors." PolitiFact rated that False.

The 12th Amendment to the Constitution lays out the vice president’s role. It says "the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted." 

Experts say that means the vice president’s duty is to open the envelopes, not decide the outcome. 

The other guiding law is the 1887 Electoral Count Act. It provides more procedural details, but gives the vice president no power to reject votes. As recently as January 2022, Trump argued the opposite, saying that Pence "could have overturned the election."

That was also False.

Legal scholars have said the law would not have placed the vice president in a role to decide an election where he himself would be a candidate. 

Jacob, as Pence’s legal adviser, said he raised the same point with Eastman, and asked Eastman if he would have given Vice President Al Gore that kind of authority in 2000, when the election was decided by a single state, Florida.

"He said he would not," Jacob said.

If evidence of fraud on a scale big enough to flip the results had emerged — as Trump alleged — then there might have been legal grounds for Congress to reject electoral slates. But every state certified their election results, meaning that officials — a mix of Republicans and Democrats — were confident that there was no fraud or errors to come close to reversing the results. And in dozens of lawsuits after the election, judge after judge consistently rejected such allegations.

Eastman’s scheme hinged on Congress being faced with the dilemma of resolving dual, or competing, slates of electors from Arizona, Georgia, Michigan, Pennsylvania, Wisconsin, Nevada and New Mexico on Jan. 6. But Eastman himself said that if state legislatures hadn’t certified the alternative slates, "they will be dead on arrival."

No state sent two slates of electors to Congress.

The clearest evidence of Trump’s potential legal peril was cited numerous times during the Jan. 6 committee hearing: A late May ruling by U.S. District Court Judge David Carter in a case brought by the Jan. 6 committee in order to obtain emails from Eastman.

Carter ruled that there is sufficient evidence to support the notion that Trump and Eastman may have broken criminal laws.

Carter’s ruling will not inevitably lead to a prosecution of Trump. The Justice Department would be the entity to initiate such a criminal prosecution, and that decision has not been announced. 

Notably, to charge a crime, the Justice Department would have to meet a higher threshold — that it’s probable a conviction can be obtained and sustained — than the one Carter used, which was "more likely than not" that Trump broke the law. 

One of the themes repeated in the Jan. 6 committee hearings has been witness after witness testifying that aides and advisers told Trump that Pence couldn’t reject or block approval of electoral vote slates. This testimony could prove important if a criminal case is ultimately brought, legal experts said.

If Trump is prosecuted, he won’t be without defenses. For instance, Trump might argue that he trusted Eastman was giving him sound legal advice. 

But Eastman himself seems to have worried that the scheme to reverse the election might pose some legal risks.

Near the end of the hearing, the committee showed a portion of an email Eastman sent to Trump adviser Rudy Giuliani, a few days after Jan. 6, 2021.

Eastman’s email said:"‘I’ve decided that I should be on the pardon list, if that is still in the works."