Mike Pence Day at the January 6 Committee

T he House Select January 6 Committee wrapped up another hearing Thursday afternoon. The focus was former vice president Mike Pence’s defense of the Constitution in facing down President Trump’s attempted coup. The proceedings illustrated Pence’s heroism as the president willfully provoked anger at the vice president among Trump supporters who had been deluded by “stop the steal” — including violent mobs who stormed the Capitol as Pence convened with Congress, some baying for Pence’s blood even as the mob forcibly besieged security forces.

The hearing featured two witnesses: J. Michael Luttig, the distinguished former federal appellate judge, and Greg Jacob, an impressive lawyer who served as Vice President Pence’s chief counsel. Guided by committee questioning, they took aim at John Eastman, the former Chapman Law School dean who was Trump’s private counsel and constitutional law guru in the aftermath of the election. It was Eastman who developed the far-fetched theory that Pence could control the outcome of the election — or at least give Trump a chance to swipe an election he had lost.

As our Zachary Evans details, in the days leading up to January 6, 2021, Jacob extensively challenged Eastman, his fellow University of Chicago Law School alum, on the details of his theory. Jacob recounted Eastman’s admission that, if it ever ended up in front of the Supreme Court (which by then had three Trump appointees), the former president would lose 9–0.

Judge Luttig, for whom Eastman served as a law clerk, analyzed Eastman’s theory in a now-famous Twitter thread the day before the January 6 joint session of Congress, concluding that it was wrong at every turn. “The only responsibility and power of the Vice President under the Constitution,” he wrote, “is to faithfully count the electoral votes that have been cast.” Luttig’s decision to go public with his well-founded views surely stiffened Pence’s resolve to resist Trump’s pressure.

The laboring oar in Thursday’s hearing was pulled by California Democrat Pete Aguilar. In the opening session, committee vice-chairwoman Liz Cheney outlined what she framed as a multipart scheme by which Trump sought to remain in power. It appears that the plan for the half-dozen or so hearings the committee contemplates holding this month is to have Cheney and committee chairman Bennie Thompson jointly anchor the proceedings while one (or more) of the other seven members takes the lead presenting that session’s topic, which will focus on one these scheme components. For what it’s worth, I doubt that the Trump enterprise, which seemed as impulsive as it was incompetent, was so methodically planned out.

Republicans, of course, have refused to participate in the investigation because Speaker Nancy Pelosi refused to seat Jim Jordan and Jim Banks, two pro-Trump Republicans whom minority leader Kevin McCarthy tried to name. The nine-member committee’s lone Republicans, Cheney and Adam Kinzinger, are staunchly anti-Trump and were appointed by Pelosi over the objection of Republican leadership.

In these nationally televised hearings, the committee is anxious to project this GOP bunting as true bipartisanship. So it was that Representative Aguilar delegated much of Thursday’s questioning to John Wood, a prominent and extraordinarily able Republican lawyer on the committee’s staff. Wood is a rock-ribbed conservative who served in various important capacities during the Bush-43 administration and is an ally of Representative Cheney (whose father, of course, was vice president in the Bush-43 administration). His role at the hearing was fitting: Before clerking on the Supreme Court for Justice Clarence Thomas, he clerked for Judge Luttig on the Fourth Circuit federal appeals court. He was a natural to conduct the questioning of his former boss, Judge Luttig, regarding the fanciful theories of Eastman, his fellow former Luttig clerk.

I’ll have more to say about this in a separate post, but I believe what is unfolding in the committee’s hearings is a plausibility gap.

In sum, the committee’s presentation of evidence and witnesses is very effectively demonstrating that President Trump’s actions were indefensible, that he is unfit for the presidency, and that he should not only have been impeached but removed and disqualified from future office. And perhaps he would have been if the House, instead of politicizing Trump’s impeachment in an effort to tar all Trump supporters as white supremacists, had done back in early 2021 the investigation that the committee is doing now. Still, the fact that Trump and his circle had monstrous ambitions does not prove that they had realistic prospects of actuating those ambitions.

The dichotomy between Trump’s extravagant aims and his farcical reach is discernible on review of this dramatic testimony by Luttig, who stated (and please forgive me if I get a word wrong here or there; the judge is deliberate, and I type pretty fast, but this may not be a perfect quote):

Had Pence declared Trump the next president of the United States notwithstanding that then-president Trump had lost the Electoral College vote as well as the popular vote in the 2020 presidential election, that declaration would have plunged America into what I believe would have been tantamount to a revolution within a constitutional crisis, which in my view, and I am only one man, would have been the first constitutional crisis since the founding of the Republic.

I have mountainous respect for Judge Luttig, and I have no doubt that he would not say this if he didn’t believe it. And I, too, am only one man. But I believe he is wrong — not about the heinousness of what Trump was trying to do but about the dimension of the threat that he could do it.

Respectfully, the Civil War was a constitutional crisis. The Capitol riot and the events leading up to it do not hold a candle to the crisis of the house divided in terms of severity.

Furthermore, as even the testimony at the hearing demonstrated, Pence was not asked to declare Trump to be the victorious president. He was asked to discount the electoral votes of a handful of states, which at most would have thrown the election to the House, where it is highly unlikely that Trump would have prevailed. Though Republicans nominally had a 26-23-1 advantage in congressional delegations, he would almost surely have lacked the votes. Cheney, for example, would surely have cast Wyoming’s vote for Biden. (That’s not a knock on Cheney; I would have done the same thing since, you know, Biden won.) The Republican edge in some states was thin, and many Republicans would have voted against Trump because there was no evidence of widespread fraud. (This, I must point out, is a wrongheaded theme of the committee’s: the notion that, just because Republicans had majority control of congressional delegations or state legislatures, they would perforce have voted in lockstep unanimity for Trump. They’d never have countermanded the vote of the people who elected them, even if Trump’s popularity nationwide hadn’t sunk like a stone when, in contempt for patriotic American tradition, he refused to accept defeat with grace.)

When Pence declined to discount electoral votes, the Trump fallback position was to ask him to delay the count for ten days, to give Trump a chance to pressure Republican-majority legislatures in states Biden won to invalidate the popular election and award the state’s electoral votes to Trump. That wouldn’t have worked either — and on what planet do you suppose Democrats were going to sit back and let it happen?

As Jonathan Adler has pointed out (citing Ned Foley at the Election Law Blog), Pelosi could have suspended the joint session of Congress and stalled until Pence’s term ended on January 20, positioning her to ensure Biden’s taking office. But it wouldn’t have come to that because the Republican-controlled legislatures would not have dared to try invalidating the popular vote in their states — they would not have been inclined, they would not have had the votes of all (or probably most) Republicans, and if they were daft enough to forge ahead, they would have been blocked by Democrats and state law.

As I say, I’ll get deeper into the implausibility of Trump’s scheme over the weekend. For now, suffice it to say I believe Chairman Thompson was profoundly wrong in concluding today’s session with a suggestion that the Constitution might not have been strong enough to hold off Trump’s delusions.

The Constitution crushed the former president. And while such people as Pence and Jacob showed great fortitude, their determination was undoubtedly annealed by the fact that there was no chance they could have pulled off what Trump tried to bully them into doing. The Framers ingeniously divided authority. It is so diffuse that no one actor can steal the presidency. To repeat one of my favorite observations about our system: We hope and expect to get honorable people in positions of power, but we don’t rely on it — we rely on the Constitution’s separation of powers, its checks and balances.

To repeat what I’ve said before, that is not a defense of Trump, or of anyone who would corruptly endeavor to usurp power. It is just a plea that we have more confidence in the Constitution and more appreciation of the way it held strong when tested.

It was also a bad mistake for Thompson to invoke the specter of the 2024 elections and the danger said to be posed by Trump and his supporters. As previously noted here, the New York Times was weirdly unabashed in previewing this month’s committee hearings as a gambit to reverse or at least mitigate the shellacking that Democrats seem headed for in the midterm elections. Thompson was foolish at the end of Thursday’s hearing, after what was otherwise an effective presentation, to remind people that this exercise is driven by partisan politics.

Vice-chairwoman Cheney indicated that the next hearing will direct our attention to the “fake electors” scheme, by which Trump supporters in Arizona and elsewhere undertook to portray themselves as alternative slates of Trump electors, for the purpose of casting for Trump the electoral votes of states won by Biden. This was another cockamamie contrivance. That it merits our attention, and that it was condemnable, does not mean that it was plausible.