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January 6 Committee Hearings Continue. Aired 1:30-2p ET

Aired June 16, 2022 - 13:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[13:30:00]

REP. LIZ CHENEY (R-WY): A few days later, Professor John Eastman took up his cause. Eastman was, at the time, a law professor at Chapman University Law School. He prepared a memo outlining the nonsensical theory that the vice president could decide the outcome of the election at the joint session of Congress on January 6th. You will see portions of this memo on the screen.

In the first line he wrote, quote, "Seven states have transmitted dual slates electors to the president of the Senate." But Dr. Eastman goes on to rely on those so-called dual slates of electors to say that Vice President Pence could simply declare President Trump the winner of the 2020 election.

Mr. Jacob, were there, in fact, dual slates of electors from seven states?

GREGORY F. JACOB, FORMER COUNSEL TO VICE PRESIDENT MICHAEL PENCE: No, there were not.

CHENEY: And just a few days after that, Dr. Eastman wrote another memo, this one, quote, "wargaming out several scenarios". He knew the outcome he wanted, and he saw a way to go forward if he simply pretended that fake electors were real. You will see that memo up on the screen now. Here, Dr. Eastman says the vice president can reject the Biden electors from the states that he calls, quote, "disputed". Under several of the scenarios, the vice president could ultimately just declare Donald Trump the winner, regardless of the vote totals that had already been certified by the states. However, this was false, and Dr. Eastman knew it was false. In other words, it was a lie.

In fact, on December 19th, 2020, just four days before Dr. Eastman sent this memo, Dr. Eastman himself admitted in an e-mail that the fake electors had no legal weight, referring to the fake electors as, quote, "dead on arrival in Congress," end quote, because they did not have a certification from their states.

Judge Luttig, did the Trump electors in those seven states who are not certified by any state authority have any legal significance?

J. MICHAEL LUTTIG, RETIRED JUDGE FOR THE U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT: Congresswoman, there was no support whatsoever in either the Constitution of the United States, nor the laws of the United States for the Vice President, frankly, ever to count alternative electoral slates from the states that had not been officially certified by the designated state official in the Electoral Count Act of 1887. I did notice in the passage from Mr. Eastman's memorandum, and I took a note on it. And correct me if I'm wrong. But he said in that passage, that there was both legal authority as well as historical precedent.

I do know what Mr. Eastman was referring to when he said that there was historical precedent for doing so. He was incorrect. There was no historical precedent from the beginning of the founding, in 1789, that, even as mere historical precedent, as distinguished from legal precedent, would support the possibility of the Vice President of the United States quote, "counting alternative electoral slates" that had not been officially certified to the Congress, pursuing to the Electoral Count Act of 1887.

[13:35:00]

I would be glad to explain that historical precedent, if the Committee wanted but it would be a digression.

CHENEY: Thank you very much, Judge. I know my colleagues will be pursuing that issue in more depth.

And now I'd like to yield back. Mr. Chairman.

REP. BENNIE THOMPSON (D-MS): Thank you very much. Pursuant to Section 5(c)(8) of House resolution 503, the Chair recognizes the gentleman from California, Mr. Aguilar and Staff Counsel, Mr. John Wood, for questioning.

REP. PETE AGUILAR (D-CA): Thank you, Mr. Chairman. We're fortunate to have a bipartisan staff. Senior investigative counsel, John Wood previously served as United States Attorney in Missouri, under President George W. Bush. He and I will share today's lines of questioning.

Mr. Wood.

JOHN WOOD, COMMITTEE INVESTIGATIVE COUNSEL: Thank you, Mr. Aguilar.

Judge Luttig, I had the incredible honor of serving as one of your law clerks. Another person who did was John Eastman. And you've written that Dr. Eastman's theory that the Vice President could determine who the next president United States is, is, in your words, incorrect at every turn. Could you please explain briefly your analysis?

LUTTIG: It was my honor Mr. Wood to have you served as my law clerk. I could answer that question perfectly if I had at my disposal, either Mr. Eastman's tweet, or my own analytical tweet of September 21st. But I don't. But that said, let me try to remember the analysis of Mr. Eastman's analysis.

WOOD: And Judge I can read to you and to the audience, I think why was a really key passage from your very insightful analysis. What you wrote, I believe that Professor Eastman was incorrect at every turn of the analysis in his January 2nd memorandum, beginning with his claim that there were legitimate competing slates of electors presented from seven states. You've already addressed that issue. But your next sentence said, continuing to his conclusion that the Vice President could unilaterally decide not to count the votes from the seven states from which competing slates were allegedly presented.

So what was your basis for concluding that Dr. Eastman was incorrect in his conclusion that the Vice President could unilaterally decide not to count the votes from these disputed states?

LUTTIG: I understand. As I previously stated in response to Congresswoman Cheney, there was no basis in the Constitution or laws of the United States at all, for the theory espoused by Mr. Eastman at all, none. With all respect to my co-panelists, he said, I believe in partial response to one of the Select Committee's questions that the single sentence in the 12th Amendment was he thought in artfully written that single sentence is not in artfully written. It was pristine clear that the President of the Senate on January 6, the incumbent Vice President of the United States had little substantive constitutional authority, if any, at all.

[13:40:11]

The 12th Amendment, the single sentence, and Mr. Jacob, first two says, in substance, that following the transmission of the certificates to the Congress of the United States, and under the Electoral Count Act of 1887, the Archivist of the United States, that the presiding officer shall open the certificates in the presence of the Congress of the United States in joint session. It then says unmistakably not even that the Vice President himself shall count the electoral votes. It clearly says merely that the electoral count votes shall then be counted.

It was the Electoral Count Act of 1887 that, that filled in, if you will, the simple words of the 12th Amendment in order to construct for the country a process for the counting of the sacred process for the counting of the electoral votes from the states that neither our original Constitution nor even the 12th Amendment had done.

The irony, if you will, is that from its founding until 1887, when Congress passed the Electoral Count Act, the nation had been in considerable turmoil during at least five of its presidential elections, beginning as soon thereafter, from the founding as 1800. So, it wasn't for almost 100 years later, until the Electoral College Act was passed. So, that's why in my view, that piece of legislation is not only a work in progress for the country, but at this moment in history an important work in progress that needs to take place. That was a long winded, I understand.

WOOD: But Judge Luttig, at the risk of oversimplifying for the non- lawyers who are watching, is it fair to say that the 12th Amendment basically says two things happen, the Vice President opens certificates and the electoral votes are counted? Is it that straightforward?

LUTTIG: I would not want that to be my testimony before the Congress of the United States. The language of the 12th Amendment is that simple.

WOOD: Thank you, Judge.

Mr. Jacob, I have a question for you. I believe during your deposition before this Committee, you said something to the effect of you'd read every word written about the 12th Amendment, the Electoral Account Act and historical practice.

[13:45:02]

I know in response to the Chairman's earlier question, you gave your bottom line conclusion, but can you tell us a little bit about the process that you and your colleagues went through of researching this issue and what conclusion you came to after your thorough research?

JACOB: So, you as a lawyer who's analyzing a constitutional provision, you start with the constitutional text, you go to structure, you go to history, so we started with the text. We did not think that the text was quite as unambiguous as Judge Luttig indicated. In part, we had a constitutional crisis in 1876, because in that year, multiple slates of electors were certified by multiple slates. And when it came time to count those votes, the antecedent question of which ones had to be answered. That required the appointment of an independent commission. That commission had had to resolve that question and the purpose of the Electoral Count Act of 1887 had been to resolve those latent ambiguities.

Now I'm in complete agreement with Judge Luttig. It is unambiguous that the Vice President does not have the authority to reject electors. There is no suggestion of any kind that it does. There is no mention of rejecting or objecting to electors anywhere in the 12th Amendment. And so, the notion that the Vice President could do that certainly is not in the text. But the problem that we had and that John Eastman raised in our discussions was, we had all seen that in Congress in 2000, in 2004, in 2016, there had been objections raised to various states. And those had even been debated in 2004.

And so, here you have an amendment that says nothing about objecting, or rejecting. And yet we did have some recent practice of that happening within the terms of the electoral counter. So we started with that text. And I recall in my discussion with the Vice President, he said, I can't wait to go to heaven and meet the framers and tell them the work that you did in putting together our Constitution is a work of genius. Thank you. It was divinely inspired.

There is one sentence that I would like to talk to you a little bit about. So then we went to structure. And again, the Vice President's first instinct here is so decisive on this question. There's just no way that the framers of the Constitution who divided power and authority, who separated it out, who had broken away from George III, and declared him to be a tyrant, there was no way that they would have put in the hands of one person, the authority to determine who was going to be President of the United States. And then we went to history, we examined every single electoral vote count that had happened in Congress since the beginning of the country. We examine the Electoral Count Act, we examine practice under the electoral counter. And critically, no vice president in 230 years of history had ever claimed to have that kind of authority, hadn't claimed authority to reject electoral votes have not claimed authority to return electoral votes back to the States. In the entire history of the United States, not once had a joint session, ever returned electoral votes back to the States to be counted.

And in the crisis of 1876, Justice Bradley of the United States Supreme Court, who supplied the decisive final vote on that commission had specifically looked at that question and said, first, the Vice President clearly doesn't have authority to decide anything. And by the way, also does not have authority to conduct an investigation by sending things back out for a public look at things.

So, the history was absolutely decisive. And again, part of my discussion with Mr. Eastman was, if you were right, don't you think Al Gore might have liked to have known in 2002, that he had authority to just declare himself President of the United States? Did you think that the Democrat lawyers just didn't think of this very obvious quirk that he could use to do that? And of course, he acknowledged Al Gore, did not and should not have had that authority at that point in time. But so text structure history, I think what we had was some ambiguous text, that common sense and structure would tell you the answer cannot possibly be the Vice President has that authority.

[13:50:09]

As the Committee already played the Vice President's remarks, there is almost no idea more un-American than the notion that any one person would choose the American President, and then unbroken historical practice for 230 years, that the Vice President did not have such an authority.

WOOD: Thank you. I'll reserve the remainder of my time.

AGUILAR: Mr. Jacob, you weren't the only one who knew that the legal theory was wrong, though. Here's what various advisors to the President thought about that theory.

(BEGIN VIDEOTAPE)

UNKNOWN: To be clear, repeatedly with Mr. Meadows, about you and the Vice President having a different view about his authority on January 6.

MARC SHORT, FORMER CHIEF OF STAFF TO V.P. MIKE PENCE: I believe I had.

UNKNOWN: Did Mr. Meadows ever, explicitly or tacitly agree with you or say, yeah, that makes sense. OK.

SHORT: I believe that, that Mark did agree.

UNKNOWN: What makes you say that?

SHORT: I believe that's what he told me. But as I mentioned, I think Mark, he told so many people so many different things, that it was not something that that I would necessarily accept, is OK, well, that means that's resolved.

UNKNOWN: I see. Tell me more what he told you about on this topic?

SHORT: Well, I think it was that, you know, the Vice President doesn't have any broader role. And I think he was understanding that.

UNKNOWN: So despite the fact that he may have said other things to the President or others to you, he said he understands that Vice President has no role.

SHORT: Yes.

UNKNOWN: OK. Did he say that to you several times?

SHORT: A couple of times.

UNKNOWN: Before January 6?

SHORT: Yes.

JASON MILLER, FORMER TRUMP CAMPAIGN SENIOR ADVISOR: The way was communicated to me it was that Pat Cipollone thought the idea was, was nutty and had at one point confronted Eastman, basically with the same sentiment.

SHORT: Pat, express that is admiration for the Vice President's actions on the day of the sixth, and said that he concurred with the legal analysis that that our team had put together to reach that point.

ERIC HERSCHMANN, FORMER WHITE HOUSE LAWYER: It made no sense to me that in all the protections that were built into the Constitution, for a president to get elected and steps that had to be taken, that -- our to choose the next president would be sitting with the Vice President.

UNKNOWN: Do you know if Mr. Clark, or Mr. Morgan, (inaudible) viewed about that, thought about that Mr. Eastman's advice?

MILLER: Yeah, they thought he was crazy.

UNKNOWN: Do you know if they ever expressed an opinion on whether they thought the Vice President had the power that John Eastman said he did?

MILLER: I know for a fact that we're both say that his theory was crazy, that there was no validity to it in any way, shape, or form.

UNKNOWN: And did they express that before January 6?

MILLER: Yes.

UNKNOWN: To whom?

MILLER: I think anyone who had listened.

UNKNOWN: OK. What were your prior interactions with Eastman? HERSCHMANN: He described for me what he thought the ambiguity was in the statute. And he was walking through it at that time. And I said, hold on a second, I want understand what you're saying. You're saying that you believe the Vice President, acting as President of the Senate can be the sole decision maker as to under your theory, who becomes the next president United States? And he said, yes. I said, are you out of your f-ing mind? Right. And that was pretty blunt. It's completely crazy.

So you're going to turn around and tell 78 plus million people in this country that your theory is this is how you're going to invalidate their votes, because you think election was stolen? As they're not going to tolerate that said, you're going to cause riots in the streets. And he said, worse to the effect of there's been violence in the history of our country, (inaudible) to protect the democracy or protect the republic.

(END VIDEOTAPE)

AGUILAR: In fact, there was a risk that the lawyers in the White House Counsel's Office would resign. For example, Fox News host Sean Hannity expressed concern that the entire White House Counsel's Office could quit. As you can see from these texts, Mr. Hannity wrote to White House Chief of Staff Mark Meadows that quote, we can't lose the entire White House Counsel's Office. I do not see January 6, happening the way he is being told. A few days later, on January 5th, Mr. Hannity wrote to Mr. Meadows that quote, "I'm very worried the next 48 hours. Pence pressure, White House counsel will leave."

[13:55:07]

While Sean Hannity was apparently very concerned about the possibility that the White House counsel would resign in protest, the President's effort to force the Vice President to violate the constitution. Some others close to the President, were more dismissive of the White House Counsel's position. Here's what Trump's son-in-law and senior adviser Jared Kushner said during his deposition regarding the White House Counsel, Pat Cipollone, threats to resign.

(BEGIN VIDEO CLIP)

UNKNOWN: Jared, are you aware of instances where Pat Cipollone threatened to resign?

JARED KUSHNER, FORMER W.H. TRUMP SENIOR ADVISOR: I kind of like I said my interest at that time was on trying to get as many pardons done. And I know that, you know, he was always to -- him and the team were always saying "oh, we're going to resign, we're not going to be here if this happens, if that happens." So I kind of took it up to just be whining, to be honest with you.

(END VIDEO CLIP)

AGUILAR: The President's own lead outside counsel, Rudy Giuliani, also seemed to concede that the Vice President did not have the authority to decide the outcome of the election or send it back to the states. Here's what White House Attorney Eric Herschmann said about his call with Mayor Giuliani on the morning of the 6th.

(BEGIN VIDEO CLIP)

HERSCHMANN: On the morning of January 6th, I think he called me out of the blue, right, and I was, like, getting dressed. And we had an intellectual discussion, the -- about Eastman's -- I don't know if it's Eastman's theory, per se, but the VP's role. And, you know, we -- he was asking me my view and analysis and then the practical implications of it.

And when we finished, he said "Eric, I believe that, you know, you're probably right." I -- I think he thought when we were done that, it would be something he'd have to consider if he was sitting on the bench, but he'd probably come down in that, you know, you couldn't interpret it or sustain the argument long term.

(END VIDEO CLIP)

AGUILAR: Of course, the fact that Mayor Giuliani seemed to admit that the theory was wrong did not stop him from going before the crowd just a few hours later on January 6th and saying the exact opposite. Here is Mayor Giuliani's speech at The Ellipse rally on January 6th.

(BEGIN VIDEO CLIP)

RUDY GIULIANI, FORMER MAYOR OF NEW YORK: We're here just very briefly to make a very important two points. Number one, every single thing that has been outlined as the plan for today is perfectly legal. I have Professor Eastman here with me to say a few words about that. He's one of the preeminent constitutional scholars in the United States.

It is perfectly appropriate, given the questionable constitutionality of the Election Counting Act of 1887, that the Vice President can cast it aside and he can do what a president called Jefferson did when he was Vice President.

(APPLAUSE)

He can decide -- he can decide on the validity of these crooked ballots or he can send it back to the legislatures, give them five to 10 days to finally finish the work...

(END VIDEO CLIP)

AGUILAR: And here's what Dr. Eastman said in his speech at The Ellipse on January 6th.

(BEGIN VIDEO CLIP)

EASTMAN: And all we are demanding of Vice President Pence is this afternoon, at 1:00, he let the legislatures of the state look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not.

(APPLAUSE) (END VIDEO CLIP)

AGUILAR: Even Dr. Eastman knew his theory didn't hold water. Mr. Jacob, you discussed and even debated this theory at length with Dr. Eastman. Did Dr. Eastman ever tell you what he thought the U.S. Supreme Court would do if it had to decide this issue?

JACOB: Yes. We had an extended discussion, an hour and a half to two hours, on January 5th. And when I pressed him on the point, I said "John, if the Vice President did what you were asking him to do, we would lose nine to nothing in the Supreme Court, wouldn't we?" And he initially started at "well, I think maybe you would lose only seven to two," and after some further discussion, acknowledged "well, yeah, you're right, we would lose nine-nothing."

AGUILAR: I appreciate that. In our investigation, the Select Committee has obtained evidence suggesting that Dr. Eastman never really believed his own theory. Let me explain.