WASHINGTON—In gritty detail, witnesses, including the former chief lawyer for Donald Trump’s vice president, Mike Pence, and evidence told lawmakers and the public how Trump and his team schemed to have Pence steal the 2020 election for him on Jan. 6, 2021.
The plan involved Pence returning contested electoral votes to key swing states which Democratic nominee Joe Biden won, with the states substituting Republican electors for Democratic ones—or variations on that idea, by throwing the election into the U.S. House, where Trump would have won.
It failed, because Pence, standing on the U.S. Constitution, which gives the VP only the role of opening ballots and reading the results, refused to knuckle under, loudly and publicly. The stance contrasted with Pence’s longstanding loyalty to Trump in every other far-right scheme.
“That declaration of Donald Trump as the next president would have plunged America into what I believe would have been tantamount to a revolution within a constitutional crisis in America,” retired federal appellate judge J. Michael Luttig told the House Select Committee investigating the Jan. 6, 2021, U.S. Capitol insurrection and invasion and the planning that preceded Trump’s coup attempt.
“In my view—and I’m only one man—(it) would have been the first constitutional crisis since the founding of the republic,” added Luttig. His voice is important because not only is he a traditional conservative Republican, but he’s also been an informal adviser to both Pence and a leading pro-Trump denier of Biden’s victory, Sen. Ted Cruz, R-Texas.
“The former president wanted Pence to reject the votes and either declare Trump the winner or send the votes back to the states to be counted again. Mike Pence said no,” Committee Chairman Rep. Bennie Thompson, D-Miss., said in opening the June 16 hearing. “He resisted the pressure. He knew it was illegal. He knew it was wrong.
“We’re fortunate for Mr. Pence’s courage on January 6th. Our democracy came dangerously close to catastrophe. That courage put him in tremendous danger when Mike Pence made it clear that he wouldn’t give in to Donald Trump’s scheme.”
Once the invaders learned of Pence’s stand for the Constitution, and against Trump, they responded with angry chants of “Hang Mike Pence!” and erected a gallows on the Capitol lawn. Back in the White House, Trump agreed with the chants. One video showed Pence and his family in hiding.
And Pence, a former Indiana governor, knew the gravity of his decision. He told aides his statement standing up to Trump would be the most important he ever uttered.
The electoral vote steal Trump sought from Pence was the sixth step in the Oval Office Republican’s conspiracy to hold the White House even though he lost the 2020 balloting. The seventh step, of course, was the Trumpite invasion of and insurrection in the U.S. Capitol, designed to completely disrupt the vote count and thus confirm Trump in office anew via an unconstitutional coup d’etat.
Luttig bluntly said so. In short, he said, Trump tried to steal the election. He might succeed next time.
Luttig put Trump’s coup attempt in a constitutional, historical, and political context. He went farther, lambasting the Republican Party—his party—as a whole for slavishly kowtowing to Trump, even now.
“A stake was driven through the heart of American democracy on January 6, 2021, and our democracy today is on a knife’s edge,” Luttig warned. “America was at war on that fateful day, but not against a foreign power…We Americans were at war with each other, over our democracy.
“January 6 was but the next, foreseeable battle in a war that had been raging in America for years, though that day was the most consequential battle to date. In fact, January 6 was a separate war unto itself, a war for America’s democracy, a war irresponsibly instigated and prosecuted by the former president, his political party allies, and his supporters.
“Both wars are raging to this day.”
Luttig warned there “is little chance for a peaceful end to that war” over democracy as a whole. “Though disinclined for the moment, as a political matter of fact only the party that instigated this war over our democracy”—the Republicans—“can bring an end to that war.”
But “over a year and a half later, in continued defiance of our democracy, both the former president and his political party allies still maintain the 2020 presidential election was ‘stolen’ from him, despite all evidence, all evidence now, that that is simply false.
“This false and reckless insistence the former president won the 2020 election has laid waste to Americans’ confidence in their national elections. More alarming still is the former president pledges that his reelection will not be ‘stolen’ from him next time around, and his Republican Party allies and supporters obeisantly pledge the same.” (His emphasis.)
The committee reiterated and produced testimony and evidence that even the drafter of the electoral vote plan, California attorney and law professor John Eastman, previously admitted it was bogus—including in Trump’s presence, robbing the former president of any chance of plausible deniability. And then, more or less admitting he knew the coup attempt was wrong, Eastman sought a Trump presidential pardon.
But a month before the election, Eastman wrote: “The 12th Amendment only says that the President of the Senate”—the incumbent VP, in this case, Pence—“open the ballots in the joint session and then, in the passive voice, that the votes shall be counted.”
“Nowhere does it suggest that the President of the Senate gets to make the determination on his own,” Eastman wrote in October 2020. Pence himself has made that point, to the right-wing Federalist Society. He was booed.
And Trump’s top lawyer, now-disgraced former New York City Republican Mayor Rudy Giuliani executed a similar flip-flop, the committee revealed. Just days before January 6, he was saying the reject-the-ballots scheme was unconstitutional. Then he got up on the stage before the invaders—and before Trump spoke—and reversed.
“Those who think that because America is a republic, theft and corruption of our national elections and electoral process are not theft and corruption of our democracy are sorely mistaken. America is both a republic and a representative democracy, and therefore a sustained attack on our national elections is…an attack on our democracy, any political theory otherwise notwithstanding,” added Luttig.
Pence’s former chief counsel, Greg Jacobs, tracked the nuts and bolts of making the legal case that as vice president, Pence couldn’t overturn the election. Jacobs said Pence agreed even before his staff presented him with their research on cases and precedents, which he read thoroughly. He then used the material to craft his memo refusing Trump’s demands.
“By the time the first lawsuit was filed against the vice president on December 23, and well before John Eastman appeared…my legal team had pulled together and analyzed the records for every electoral vote count in our nation’s history,” including the chaotic 1876 Hayes-Tilden election and its aftermath, along with all law review articles on the Electoral Count Act, which set the procedures for counting, and challenging, electoral votes.
“Our office was determined no one would ever be able to say the vice president’s conclusion about the limits of his constitutional authority was the result of a failure to examine relevant law, history, or practice.”
The hearing wasn’t the only development on June 16 in the story of Trump’s coup attempts. The same day, OpenSecrets.org, a non-profit group tracking campaign, lobbying, dark money, and other political spending, reported results of its first digging into one area the House committee hasn’t discussed yet: Who paid for the insurrectionists.
The answer, at least what Anna Massoglia of OpenSecrets found so far, is Trump’s political operation and Republican political party committees. The amount: At least $12.6 million. It may be a lot more.
“The full extent of the payments from the Trump campaign political operations to rally organizers during the 2020 election and around the rally in early 2021 remains a mystery because the campaign’s top vendor was American Made Media Consultants LLC, a firm created by Trump campaign aides to act as a clearinghouse for its spending,” she explained.
“Trump’s campaign and joint fundraising committee routed more than $771 million through the firm, hiding details of those payments—including information about the identities of some people paid by the campaign and how much money changed hands.”
And the hearing followed by a day U.S. District Judge Trevor McFadden’s decision against one of the most prominent invaders. After a bench trial that insurrectionist Kevin Seefried sought, the judge found him guilty on felony obstruction charges, plus some misdemeanors. Seefried flew the large Confederate flag through the Capitol while leading some of the invaders on their rampage. He faces up to 20 years in jail. The judge found McFadden’s son, Hunter, guilty on fewer counts. He too faces up to 20 years.
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