Transcripts For FOXNEWSW The January 6th Hearing 20240707

york, a live look of the hearing room, the vice chair of the committee, liz cheney giving a preview yesterday. she says the panel will examine a plot by former president trump and attorney john eastman to prevent former vice president mike pence from counting lawful electoral votes. >> john: the hearing is expected to feature two witnesses, greg jacobs. served as special counsel, chief counsel, rather, to vice president pence and former federal judge who also advised mr. pence. ludig is called the last ditch effort to keep trump in power incorrect at every turn. we are going to pause for one moment to let our fox stations join us now. and this is fox special coverage of the third public hearing in the house select committee investigation of the january 6th insurrection. we are going to pause right now. >> all right, this is fox news special coverage of the third public hearing in the house select committee investigation of the january 6th capitol riot. i'm john roberts in washington, good afternoon. >> sandra: and welcome to our affiliates and the country. multiple public hearings will take place over the next few weeks. focus on claims that former president trump tried to pressure former vice president mike pence against counting the lawful electoral votes. it appears that we are going to hear from two witnesses this afternoon, and the committee says it will show previously unseen documents, video and audio. the hearing is underway now, let's go to washington. >> during today's hearing. good afternoon. this is almost no idea more un-american than the notion that any one person could choose the american president. no idea more un-american. i agree with that. which is unusual because former vice president mike pence and i don't agree on much. these are his words spoken a few months ago about donald trump's attempt to pressure the former vice president, pressure him into going along with an unlawful and unconstitutional scheme to overturn the 2020 election and give donald trump a second term in office that he did not win. today the select committee is going to reveal the details of that pressure campaign. what does the vice president of the united states even have to do with a presidential election? the constitution says that the vice president of the united states oversees the process of counting the electoral college votes. the process that took place on january 6, 2021. donald trump wanted mike pence to do something no other vice president has ever done. 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. he resisted the pressure. he knew it was illegal, he knew it was wrong. we are 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, donald trump turned the mob on him. a mob that was chanting "hang mike pence." a mob that had built a hang man's gallows outside the capitol. thanks in part to mike pence, our democracy withstood donald trump's scheme and the violence of january 6th. but the danger has not receded. thereby my colleague, will lay out the facts for the american people. but first, i recognize my colleague from wyoming, ms. cheney, for any opening statements she would care to offer. >> thank you very much, mr. chairman. let me take just a few minutes today to put the topic of our hearing in broader context. in our last hearing we heard unequivocal testimony president trump was told his election fraud allegations were complete nonsense. we heard this from members of the trump campaign, we heard this from president trump's campaign lawyers, we heard this from president trump's former attorney general, bill barr, we heard this from president trump's former acting attorney general, jeff rosen. and we heard this from president trump's former acting deputy attorney general, richard donahue. and heard from his staff as well. today we are focusing on president trump's relentless effort to pressure mike pence to refuse to count electoral votes on january 6th. here again is how the former vice president phrased it in a speech before the federalist society, a group of conservative lawyers. >> for this week president trump said i had the right to overturn the election. president trump is wrong. i had no right to overturn the election. presidency belongs to the american people and the american people alone. and frankly, there is no idea more un-american than the notion that any one person could choose the american president. >> what the president wanted the vice president to do was not just wrong, it was illegal and unconstitutional. we will hear many details in today's hearing but please consider these two points. first, president trump was told repeatedly that mike pence lacked the constitutional and legal authority to do what president trump was demanding he do. the this is testimony from mark short, the vice president's chief of staff, who served in the trump administration multiple positions over are four years. >> just to pick up on that, mr. short, was it your impression 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. >> many times. >> and he had been consistent in conveying his position to the president. >> very consistent. >> ok. >> president trump plotted with a lawyer named john eastman to pressure pence to do so anyway. fed court has explained "based on the evidence, the court finds that it is more likely than not that president trump and dr. eastman dishonestly conspired to obstruct the joint session of congress on january 6, 2021." what exactly did president trump know, when exactly did president trump know that it would be illegal for mike pence to refuse to count electoral votes? here is one sample of testimony given which one of the witnesses before us today, the vice president's general counsel. >> did john eastman ever admit as far as you know in front of the president that his proposal would violate the electoral college? >> i believe he did on the 4th. >> january 4th, two days before the attack on congress. the second point, please listen to testimony today about all of the ways that president trump attempted to pressure vice president pence, including donald trump's tweet at 2:24 p.m. condemning vice president mike pence when president trump already knew a violent riot was underway at the capitol. in future hearings you will hear from witnesses who were present inside the white house, who were present inside the west wing on that day. but today we focus on the earnest efforts of mike pence who was determined to abide by his oath of office. as vice president pence prepared a statement on january 5th and 6th, explaining that he could not illegally refuse to count electoral votes, said this to his staff. >> the vice president said this may be the most important thing i ever say. >> the statement. >> the statement. he really wanted to make sure that it was just said. >> you will hear today that president trump's white house counsel believed that the vice president did exactly the right thing on january 6th, as did others in the white house, as did fox news host sean hannity. vice president pence understood that his oath of office was more important than his loyalty to donald trump. he did his duty. president trump unequivocally did not. thank you, mr. chairman, i yield back. >> without objection, i recognize the gentleman from california, mr. aguilar for opening statement. >> thank you, we intend to show the american people that january 6th was not an isolated incident. in the weeks culminating before it was a legal scheme and deception. we have already learned that president trump knew he lost the 2020 election. shortly after he began to look for a way to circumvent the country's most fundamental civic tradition, a peaceful transfer of power. the president latched on to a dangerous theory and would not let go because he was convinced it would keep him in office. we witnessed firsthand what happened when the president of the united states weaponized this theory. the capitol was overrun, police officers lost their lives. and the vice president was taken to a secure location because his safety was in jeopardy. let's take a look at the effect of donald trump's words and actions. i want to warn our audience the video contains explicit content. >> mike pence is going to have to come through for us and if he doesn't, that will be a sad day for our country. and mike pence, i hope you are going to stand up for the good of our constitution and for the good of our country and if you're not, i'm going to be very disappointed in you, i will tell you right now. >> i'm telling you, hearing pence just caved. >> no. is that true? >> i'm hearing reports that pence caved. i'm telling you, if pence caved, we are gonna drag mother [bleep] through the streets. you [bleep] politicians are going to get [bleep] drug through the streets. >> the hope is there is such a show of force that pence will decide to do the right thing, according to trump. >> hang him up. run him out. bring him out. >> bring out pence. >> bring him out. >> bring out pence. >> how did we get to this point? how did we get to the point where president trump's most radical supporters led a violent attack on the capitol and threatened to hang president trump's own vice president? you'll hear from witnesses that donald trump pressured mike pence to adopt illegally and morally bankrupt idea the vice president can choose who the next president will be. hear how the vice president, white house counsel and others told donald trump that the vice president had no such authority. president trump would not listen. you'll hear how vice president pence withstood an onslaught of pressure from president trump, both publicly and privately. a pressure campaign that built to a fever pitch with a heated phone call on january 6th. you'll also hear that the president knew there was a violent mob at the capitol when he treated at 2:24 p.m. that the vice president did not have the "courage" to do what needed to be done. let me be clear. vice president pence did the right thing that day. he stayed true to his oath to protect and defend the constitution. i look forward to hearing from our witnesses this afternoon. mr. chairman, i yield back. >> thank you, mr. aguilar. honored to have two distinguished witnesses who advised the president regarding his role on january 6th. michael ludig is one of the leading conservative thinkers in the country. served in administration's of president ronald reagan, and george h. w. bush. he was appointed by the latter to serve on the u.s. court of appeals for the fourth circuit where he served from 1991 to 2006. he provided critical advice for vice president pence regarding the role of the vice president in the joint session of congress shortly before that fateful moment. he's written that the vice president does not have the power to select the next president of the united states. he's also written that contrary theory ex poused by one of his former law clerks was "incorrect at every turn." we are also joined by one of the people who was with vice president pence on january 6th, greg jacob was counsel to vice president pence. he conducted a thorough analysis of the role of the vice president in the joint session of congress under the constitution. electoral count and 230 years of historical practice. but he also has firsthand information about the attack on the capitol because he lived through it. he was with the vice president and his own life was in danger. i will now swear in our witnesses. the witnesses will please stand and raise their right hand. do you swear or affirm under penalty of perjury the testimony you are about to give is the truth, the whole truth and nothing but the truth so help you god. thank you, you may be seated. let the record reflect the witnesses answered in the affirmative. i now recognize myself for questions. in the united states, the people choose our representatives, including the highest official in the land, the president of the united states. the american people did this on november 3, 2020. president trump did not like the outcome. he did everything he could to change the result of the election. he tried litigation, 62 cases, in fact, and that failed. he tried to pressure state legislatures to reverse the results of the election in their states, but they refused. he tried to enlist the department of justice to overturn results but officials refused to comply. eventually he latched on to a nonsensical and undemocratic theory one man, his own vice president, could determine the outcome of the election. he wanted the vice president to unilaterally select the president. this theory that the vice president could unilaterally select the president runs completely contrary to our constitution, our laws and the entirety of our american experience, but that didn't stop, didn't matter to president trump. i would now like to explore how president trump came to latch on to this ridiculous legal theory that the vice president can select the president of the united states. mr. jacob, how did this theory first come to your attention? >> the first time that i had a conversation with the vice president, early december, called me over to his west wing office and told me that he had been seeing and reading things that suggested that he had significant role to play on january 6th in announcing the outcome of the election. he told me that he had been first elected to congress in 2000 and that one of his earliest memories as a congressman was sitting in on the 2001 certification and he recalled that al gore had gavelled down a number of objections that had been raised to florida. and he asked me mechanically what are the rules. i told the vice president i had a fairly good idea how things worked but actually there are not rules that govern the joint session but what there is is a provision of the constitution, just one sentence long, and then an electoral count act that had been passed in 1887 and i told the vice president that i could put a memo together for him overnight that would explain the applicable rules. >> so mr. jacob when you looked at this theory, what did you conclude? >> so we concluded that what you have is a sentence in the constitution that is inartfully drafted, but the vice president's first instinct when he heard this theory was that there was no way that our framers, abhorred concentrated power, broken away from the tyranny of george iii, would ever have put one person, particularly not a person who had a direct interest in the outcome because they were on the ticket for the election, in a role to have decisive impact on the outcome of the election. and a review of texts, history and frankly just common sense all confirmed the vice president's first instinct on that point. there is no justifiable basis to conclude that the vice president has that kind of authority. >> thank you, mr. jacob. we will hear more today about how despite this conclusion by you and other top legal advisers, the former president used this discredited theory in his campaign to pressure the vice president to decide the outcome of the presidential election. i now recognize ms. cheney for questions. >> thank you very much. judge ludig, thank you as well for being with us today. you issued a very important statement earlier today which i urge all americans to read, and i would like to ask you, judge, about one of the sentences in your statement and ask if you could explain to us the significance of it. you say, had the vice president of the united states obeyed the president of the united states, america would immediately have been plunged into what would have been tantamount to a revolution to a paralyzing constitutional crisis. could you elaborate on that for us, judge? >> thank you, madam vice chair. that passage in my statement this morning referenced the most foundational concept in america which is the rule of law. thus as i interpret your question you were asking about that foundational truth of these united states which we call america. the foundational truth is the rule of law. that foundational truth is for the united states of america the profound truth. but it's not merely the profound truth for the united states. it's also the simple truth, the simple foundational truth of the american republic, thus in my view the hearing is being conducted by this select committee are examining that profound truth, namely the rule of law in the united states of america. the specific question, of course, before you and before the nation, not before me, is whether that foundational rule of law was supremely violated on january 6, 2021. now, to the question specifically that you asked, madam vice chair. i believe that had vice president pence obeyed the orders from his president and the president of the united states of america during the joint session of the congress of the united states on january 6, 2021, and declared donald 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 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 which in my view, and i'm only one man, would have been the first constitutional crisis since the founding of the republic. >> thank you very much, judge, for your solemn attention to these issues and for your appearance here today. we are going to describe and discuss in detail what happened and as we do i'm going to describe a few of the details now of some of the actions taken by a gentleman named kenneth cheeseboro, after the electoral college met and cast their votes on december 14th, actually the day before they met, kenneth cheeseboro sent a memo to rudy giuliani, the president's lead outside counsel, mr. cheeseboro wrote to mayor guliani that the vice president is charged with "making judgments about what to do if there are conflicting votes." mr. cheeseboro wrote when the joint session of congress got to arizona and the alphabetical list of states the vice president should not count the biden votes "because there are two slates of votes." his justification which we will learn more about in our next hearing was that a group of trump supporters in arizona and other swing states decided to proclaim themselves the true electors for the state, creating two sets of electors. the official electors selected by the state and a group of fake electors. this document was ordered to be produced to the select committee by a federal district court judge. as you will see on this screen shortly, judge david carter wrote "the draft memo pushed a strategy that knowingly violated the electoral count act". the judge concluded" clearly advance the plan to obstruct the joint session of congress on january 6, 2021." a few days later professor john eastman took up this 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 "seven states have transmitted dual slates of 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. from jacob, were there, in fact, dual slates of electors from seven states? >> no, there were not. >> and just a few days after that, dr. eastman wrote another memo, this one "war gaming 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 he calls "disputed". under several 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 19, 2020, just four days before dr. eastman sent this memo, dr. eastman himself admitted in an email that the fake electors had no legal weight, referring to the fake electors as "dead on arrival in congress." because they did not have a certification from their states. judge luttig, did the trump electors in those seven states not selected by any state authority have any legal significance? >> 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 has mere historical precedent as distinguished from legal precedent. would support a possibility of the vice president of the united states "counting" alternative electoral states that had not officially been certified to the congress pursuant to the electoral count act of 1887. i would be glad to explain that historical precedent if the committee wanted, but it would be a digression. >> thank you very much, judge. i know my colleagues will be pursuing that issue in more depth and now i would like to yield back, mr. chairman. >> thank you. pure opportunity to section 5c8 of 503, the chair recognizes gentleman from california, mr. aguilar, and staff counsel, mr. john wood, for questioning. >> thank you, mr. chairman. we are 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. >> i had the incredible honor serving as one of your law clerks, another one john eastman. you have written mr. eastman's theory the vice president could determine what the president of the united states is in your words incorrect at every turn. could you please explain briefly your analysis? >> it was my honor, mr. wood, to have you serve 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. >> and judge, i can read to you and the audience a key passage, i believe professor eastman was incorrect in every turn of the analysis in the january 2nd memory, that there were legitimate competing slates of electors from seven states and you have addressed that issue. the 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? >> i understand. as i previously responded in response to congresswoman cheney, there was no basis in the constitution or laws of the united states at all where the theory espoused by mr. eastman at all, none. with respect to my co-panelist, he said, i believe in partial response to one of the select committee's questions, the single sentence in the 12th amendment was he thought inartfully written. that single sentence is not inartfully written. it was pristine clear that the president of the senate on january 6th, the incumbent vice president of the united states, had little substantive constitutional authority, if any at all. the 12th amendment, the single sentence that mr. jacob refers to 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 unmistakebly, 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 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 of 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 and 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 count act was passed. so that's why in my view that piece of legislation is not only work in progress for the country, but at this moment in history an important work in progress that needs to take place. that was long-winded, i understand. >> judge luttig, at the risk of oversimplifying for the nonlawyers watching, fair to say the 12th amendment basically says two things happen, the vice president opens the certificates and the electoral votes of counted. is it that straightforward? >> 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. >> 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 you read every word written about the 12th amendment, electoral count act and historical practice. i know in response to the chairman's earlier question you gave your bottom line conclusion. can you tell us a little bit about the process you and your colleagues went through of researching this issue and what conclusion you came to after your thorough research? >> so, you -- a lawyer 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 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. i'm incomplete agreement with judge luttig. it's unambiguous the vice president does not have the authority to reject electors. 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 conduct. 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 is just no way that the framers of the constitution, who divided power and authority, 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 examined the electoral count act, examined practice under the electoral count act and no vice president in 235 years of history had ever claimed to have that kind of authority, had not claimed authority to reject electoral votes, had 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 2000 that he had authority to just declare himself president of the united states? did you think that the democrat lawyers just did not 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 that the vice president has that authority, as the committee already paid the vice president's remarks, nothing more un-american than the notion that any one person would choose the president and unbroken historical practice 230 years that the vice president did not have that authority. >> thank you, reserve the remainder of my time. >> you are not the only one who knew the legal theory was wrong, various advisers to the president thought about that theory. >> clear repeatedly with mr. meadows about you and the vice president having different view about thinks authority on january 6th. >> i believe i had. >> did mr. meadows agree with you or say that makes sense or ok? >> i believe that mark did agree. >> what makes you say that? >> i believe it's what he told me, but as i mentioned, i think mark had told so many people so many different things that it was not something that i would necessarily ok, that means that's resolved. >> tell me more what i told you on this topic. >> i think it was that you know the vice president does not have any buttered role and i think he was understanding that. >> and despite the fact he said other things to you or others, he said vice president has been wrong. >> ok. say that to you. >> a couple times. >> before january 6th. >> yes. >> communicated to me was that thought the idea was nutty and at what point confronted eastman basically with the same sentiment. >> pat expressed his admiration for vice president's actions on the 6th and said he concurred with the legal analysis our team had put together to reach that point. >> it made no sense to me that in all the protections built into the constitution for the president to get elected or to choose the next president would be sitting with the vice president. >> do you know if mr. clark or mr. morgan new that, or thought about mr. eastman's advice. >> they thought he was crazy. >> do you know if they expressed opinion on whether they thought the vice president had the power that john eastman said he did? >> i know for a fact i heard both say his theory was crazy, that there was no validity in any way, shape or form. >> did they express that before january 6th? >> yes. >> to whom? >> anyone who would listen. >> ok. what were your prior interactions with eastman? >> he described for me what he thought the ambiguity was in the statute and was walking through it at that time and i said hold on a second, i want to understand what you are saying. you are saying that you believe the vice president acting as president of the senate can be the sole decision maker under your theory who becomes the next president of the united states? and he said yes. and i said are you out of your f-ing mind? and well, that was pretty blunt. i said you are completely crazy. you are going to turn around and tell 78 plus million people in this country that your theory is this is how you are going to invalidate your votes because you think the election was stolen? and i said they are not going to tolerate that. you are going to cause riots in the streets. and he said words to the effect of there's been violence in the history of our country to protect democracy or protect the republic. >> 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 the entire white house counsel office could quit. as you can see from these texts. mr. hannity wrote to white house chief of staff mark meadows "we can't lose the entire white house counsel's office. i do not see january 6th happening the way he is being told." a few days later, on january 5th, mr. hannity wrote to mr. meadows, "i'm very worried the next 48 hours." pence pressure, white house counsel will leave. while sean hannity was concerned the possibility the white house counsel with 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. what trump's son-in-law and senior advisor jared kushner said during his deposition during another's threats to resign. >> are you aware of instances where pat threatened to resign? >> my interest at that time was get as many pardons done and him and the team were saying we are going to resign if this happens, that happens, so i kind of took it up to be kind of whining, to be honest with you. >> president's own lead outside counsel, rudy giuliani, also seemed to concede the vice president did not have the authority to decide the outcome of the election or send it back to the states. here is what white house attorney eric herschmann said about his call to rudy giuliani on the morning of the 6th. >> the morning of january 6th he called me out of the blue, and i was like getting dressed, and we had an intellectual discussion about eastman -- i don't know if it's eastman's theory, per se, but the v.p.'s role and he was asking me my view and analysis and practical implications of it. and when we finished he said i have to believe that you are probably right. i think he thought that it would be something he would have to consider if he were sitting on the bench but probably come down that you could not interpret it or sustain the argument long-term. >> of course the fact that giuliani seemed to admit it was wrong did not stop him from going before the crowd a few hours later january 6th and saying the exact opposite. here is mayor guiliani's speech on january 6th. >> we are 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. pt -- he can decide on the validity of these crooked ballots. or he can send it back to the legislatures, give them 5 to 10 days to finally finish the work. >> and here is what dr. eastman said in his speech january 6th. >> all we are demanding of vice president pence is this afternoon at 1:00 he let the legislators of the state look into this so we get into the bottom of it and the american people know whether we have control of the direction of our government or not. >> even dr. eastman knew his theory did not 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? >> 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 9-0 in the supreme court, wouldn't we, and he initially started well, i think maybe you would lose only 7-2, and after some further discussion acknowledged well, yeah, you are right, we would lose 9-0. >> appreciate that. in our investigation, the select committee has obtained evidence suggesting that dr. eastman never really believed his own theory. let me explain. on the screen you can see a draft letter to the president from october 2020. in this letter an idea was proposed that the vice president could determine which electors to count at the joint session of congress. but the person writing in blue eviserates that argument. only opens the ballots in the joint session and then passive voice, the votes shall then be counted. in blue further state. nowhere does it suggest the president of the senate gets to make the determination on his own. judge luttig, does it surprise you the author of those comments in blue was in fact john eastman? >> yes, it does, congressman. but let me, watching this unfold, let me try to unpack what was at the root of what i have called the blueprint to overturn the 2020 mention. and it is this. and i had foreshadowed this answer in my earlier testimony to congresswoman cheney. mr. eastman, from the beginning, said to the president that there was both legal as well as historical precedent for the vice president to overturn the election. and what we have heard today, i believe, is what happened within the white house and elsewhere as all of the players led by mr. eastman got wrapped around the axle by the historical evidence claim by mr. eastman. let me explain very simply. this is what i said would require a digression, that i would be glad to undertake if you wished. in short, if i had been advising the vice president of the united states on january 6th and even if then vice president jefferson and even then vice president john adams and even then vice president richard nixon had done exactly what the president of the united states wanted his vice president to do, i would have laid my body across the road before i would have let the vice president overturn the 2020 election on the basis of that historical precedent. but what this body needs to know and now america needs to know is that that was the centerpiece of the plan to overturn the 2020 election. it was the historical precedent in the years, and with the vice presidents that i named, as congressman raskin understands well, and the effort by mr. eastman and others was to drive that historical precedent up to and under that single sentence, single pristine sentence in the 12th amendment of the united states constitution. taking advantage of, if you will, what many have said is the inartful wording of that sentence in the 12th amendment. scholars before 2020 would have used that historical precedent to argue not that vice president pence could overturn the 2020 election by accepting noncertified state electoral votes, but they would have made arguments as to some substantive, not merely procedural authority possessed by the vice president of the united states on the statue -- constitutional mischief. >> good point, and begs the question if the vice president had the power to overturn a presidential election, why has not that done before, declared someone else the winner and instead as the chairman mentioned in his opening for over two centuries, vice presidents have presided over the joint sessions of congress in a purely ceremonial role. this even includes as mr. jacob mentioned, vice president al gore. for those of us who are old enough to remember, the 2000 election came down to one state. florida. there were weeks of recounts and litigation after the election and al gore conceded. of course, al gore was vice president at the time. but he never suggested that he could simply declare himself the winner of the 2000 election when he presided over the counting of the electoral votes. hear what vice president gore said when he described the situation he faced in 2000. >> importance of the united states of america in all of human history, in lincoln's phrase "we still are the last best hope of humankind," and the choice between one's own disappointment in your personal career and upholding the noble traditions of america's democracy is a pretty easy choice when it comes down to it. >> mr. jacob, did dr. eastman say whether he would want other vice presidents such as al gore after the 2000 election or kamala harris after the 2024 election to have the power to decide the outcome of the election? >> so this was one of the many points that we discussed on january 5th. he had come into that meeting trying to persuade us that there was some validity to his theory, i viewed it as my objective to persuade him he was wrong, and one of the most powerful arguments. john, back in 2000, you were not jumping up and saying al gore had this authority to do that. you would not want kamala harris to be able to exercise that kind of authority in 2024 when i hope republicans will win the election and i know you hope that, too, john. and he said absolutely. al gore did not have a basis to do it in 2000, kamala harris shouldn't be able to do it in 2024, but i think you should do it today. >> mark short told the select committee that vice president pence consulted with one of his predecessors, vice president dan quayle. he shared the view that the role was ceremonial, and mr. short received a call from former house speaker paul ryan. >> speaker ryan wanted to call and say you know you don't have any greater authority and i said to him mr. speaker, you know mike, you know he doesn't -- you know he recognizes that, and we sort of laughed about it and he said i get it. and he later spoke to the vice president, too, to i think there the same conversation. >> fortunately for the sake of the republic, vice president refused doing along with the demands that he determine the out come of the election. what was the reaction the theory the vice president could decide the outcome of the reaction? >> as i testified, the vice president's first instinct was that there was no way, one person, and the vice president on the ticket, and a vested outcome of the election, could possibly have the authority to decide it by rejecting electors or to alter the outcome by suspending the joint session for the first time in history in order to try to get a different outcome for the state legislatures. >> despite the fact that he had the view he could not decide the outcome of the election, president trump launched a multi-week campaign, public and private pressure to get the vice president mike pence to violate the constitution. here are some examples of the intense pressure the vice president faced from all sides and what his chief of staff thought of it. >> i hope mike pence comes through for us, i have to tell you. i hope that our great vice president, our great vice president comes through for us. he's a great guy. plus, if he doesn't come through, i won't like him quite as much. >> was it your impression, if the vice president had directly conveyed his position on these issues to the president, not just to the world through a dear colleague world but directly to president trump? >> many times. >> and he had been consistent in conveying his position to the president. >> very consistent. >> i'm aware of the fact the president was upset with the way pence acted. are we to assume this is going to be a battle? >> i think a lot of that depends on the courage and the spine of the individuals involved. >> nice way to say a guy named mike, vice president mike pence? >> yes. >> i think we have been clear is what the vice president's call was. i think i've been clear with mark meadows. >> i think the vice president will throw down and do the right thing like i said before, this is a time for choosing. people are going to look back at this moment tomorrow and remember where every single one of their elected officials were, did they vote for the rule of law in getting the elections right or give it away to the democrats and the people who cheated and stole their way through this election. >> definitely, you know, i got back into town probably the 5th and the 6th, the president was, you know, all the attention was on what mike would do or wouldn't do. >> the vice president really was not waivering in his commitment to weigh what his responsibility was. was it painful, sure. >> the president's pressure campaign started in december. for example, although the vice president made his views clearly and unmistakebly known, on december 23rd. president trump retweeted a memo from an individual named ivan rightwin, entitled operation pence card. that called on the vice president to refuse the electoral college votes from certain states that had certified joe biden as the winner. president trump started his pressure campaign in december but he dialed up the pressure as january 6th approached. >> the testimony we have received in our investigation indicates that by the time january 4th arrived, president trump had already engaged in a "multi-week campaign" to pressure the vice president to decide the outcome of the election. included private conversations between the two leaders, trump's tweets and at least one meeting with members of congress. we understand that the vice president started his day on january 4th with a rally in georgia for the republican candidates in the u.s. senate runoff. when the vice president returned to washington he was summoned to meet with the president regarding the upcoming joint session of congress. mr. jacob, who attended that meeting? >> attendees were the vice president, the president, mark short, the chief of staff to the vice president, myself, and john eastman. there was about a five-minute period where mark meadows came in on a different issue. >> let's show a photo of that meeting. mr. jacob, during that meeting between the president and the vice president, what theories did dr. eastman present regarding the role of the vice president in counting the electoral votes? >> during the meeting on january 4th mr. eastman was opining that there were two legally viable arguments as to authorities that the vice president could exercise two days later on january 6th. one of them was that he could reject electoral votes outright. the other was that he could use his capacity as presiding officer to suspend the proceedings and declare essentially a ten-day recess during which states that he deemed to be disputed, there was a list of 5 to 7 states that exact number changed from conversation to conversation, but that the vice president could sort of issue a demand to the state legislatures in those states to reexamine the election, and declare who had won each of those states. so he said both of those were legally viable options. he said that he did not recommend upon questioning, he did not recommend what he called the more aggressive option which was reject outright because he thought that that would be less politically palatable, the perimeter of state legislature authority would be necessary to ultimately have public acceptance of an outcome in favor of president trump and so he advocated the preferred course of action would be the procedural route of suspending the joint session and sending the election back to the states. >> mr. jacob. i know you won't discuss the direct conversations between the president and the vice president, so rather than asking you what the vice president said in that meeting, i'll ask you more general question. did the vice president ever waiver in his position that he could not unilaterally decide which electors to accept? >> the vice president never budged from the position that i have described as his first instinct, which was that it just made no sense from everything he knew and studied with the constitution one person would have that. >> and did he ever waiver about the certification and send it back to the states? >> no, he did not. >> did he admit in front of the president it would violate the electoral count act? >> during that meeting on the 4th i think i raised the problem that both of mr. eastman's proposals would violate several provisions of the electoral count act. mr. eastman acknowledged that was the case, that even what he vieweds a the more politically palatable option would violate several provisions but he thought we could do so because in his view the electoral count act was unconstitutional and i raised concerns that position would likely lose in court his view was that the court simply would not get involved, they would invoke the political question doctrine and we could have comfort with that path. >> he told you, maybe in a later conversation, told you at some point if in fact the issue ever got to the supreme court his theory would lose 9-0, correct? >> the next morning starting around 11 or 11:30 we met for an hour and a half to two hours and in that meeting i've already described the text structure history conversation but we started walking through that and said john, basically what you have is some texts that may be a little ambiguous but then nothing else that would support it, including the fact that nobody would ever want that to be the rule. wouldn't we lose 9-0 in the supreme court and initially started well, maybe only lose 7-2, but ultimately acknowledged no, 9-0, no judge would support his argument. >> after his meeting with the vice president donald trump flew to georgia for a rally in support of the republican candidates in the united states senate runoff. even though the vice president had been steadfast in resisting the president's pressure, president trump continued to publicly pressure vice president pence in his georgia speech. rather than focusing exclusively on the georgia senate runoff, trump turned his attention to mike pence. what the president said during that rally in georgia. >> pence comes through for us, i have to tell you. i hope that our great vice president, our great vice president comes through for us. he's a great guy. plus, if he doesn't come through, i won't like him quite as much. >> so the president had been told multiple times that the vice president could not affect the outcome of the election but he nonetheless publicly pressured mike pence to do exactly that, by saying "if he doesn't come through i won't like him as much." let's turn now to january 5th. mr. wood. >> thank you. that morning being january 5th, the president issued a tweet expressly stating that the vice president had the power to reject electors. let's look at what the president wrote. "the vice president has the power to reject fraudulently chosen electors." mr. jacob, you have told us about your meeting with the president and mr. eastman on january 4th, and a little more on january 5th, can you tell us more about the meeting with dr. eastman on january 5th. for example, where was the meeting, who was there. >> at the conclusion of the meeting on the 4th the president had asked that our office meet with mr. eastman the next day to hear more about the positions he had expressed at that meeting and the vice president indicated that, offered me up as his counsel to fulfill that duty. so we met in mark short's office in the executive office building across the way from the white house and dr. eastman had a court hearing by zoom that morning so it did not start first thing but rather started around 11:00 and that meeting went for about an hour and a half, two hours. chief of staff mark short was at that meeting most of the time. there were a few times that he left. and essentially it was an extended discussion. what most surprised me about that meeting was that when mr. eastman came in he said i'm here to request that you reject the electors. so on the 4th that had been the path that he had said i'm not recommending that you do that, but on the 5th he came in and expressly requested that. and i grabbed a notebook because i was heading into the meeting, i didn't hear much new from him to record, but that was the first thing i recorded in my notes was request that the v.p. reject. >> just to be clear, you are saying that dr. eastman urged the vice president to adopt the very same approach that dr. eastman appeared to have abandoned in the oval office meeting with the president the day before, is that correct? >> he had recommended against it the evening before and then on the 5th came in and i think it was probably his first words after introductions and as we sat down were i'm here to ask that you reject the electors in the disputed states. >> and you referenced some handwritten notes, i would like to show you those notes. as you can see, you wrote there at the top, the writing is a little faint in the copy, but you wrote requesting v.p. reject. is that accurately reflect what dr. eastman asked of you in your meeting on january 5th? >> yes. >> and what was your reaction when dr. eastman said on january 5th that he was there to ask the vice president of the united states to reject electors at the joint session of congress? >> i was surprised because i had viewed it as sort of one of the key concessions that we had secured the night before from mr. eastman that he was not recommending that we do that. >> so what did you say to him? >> well, as i indicated to some extent, it simplified my task, because there are more procedural complexities to the send it back to the states point of view and i had spent most of my evening the night before writing a memorandum to the vice president explaining all of the specific provisions of the electoral count act that plan would violate. so instead, since he was pushing sort of robust unilateral power theory, i've already walked the committee through the discussions that we had. again, we -- i started out with our points of commonality or what i thought were our points of commonality, conservatives, small government people, believe in originalism to interpret this, so we walked through the text, walked through the history and the committee has shown footage of mr. eastman on the 6th claiming that jefferson supported his position and historical example of jefferson, he concede in the meeting jefferson did not at all support his positions that in the election of 1800 there had been some small technical defect in georgia, he did not assert that he had the authority to resolve any issue during the course of that, and so he acknowledged by the end that there was no historical practice whatsoever that supported his position. he had initially tried to push examples of jefferson and adams, he ultimately acknowledged they did not work as we have covered, he acknowledged it would lose and i know in the supreme court, he again tried to say but i don't think the courts will get involved in this. they'll invoke the political question doctrine and so if the courts stay out of it, that will mean that we'll have the ten days for the states to weigh in and resolve it and then they'll send back the trump slates of electors and the people will be able to accept that. and i expressed my disagreement with that point. i did not think that this was a political question. among other things, if the courts did not step in to resolve this there was nobody else to resolve it. you would be in a situation where you have a stand-off between the president of the united states and counterfactually the vice president of the united states saying we exercised authority that constitutionally we think we have by which we have deemed ourselves the winners of the election. you would have an opposed house and senate disagreeing with that. you would have state legislatures that to that point -- republican leaders across those legislatures had put together, put out statements and we collected these for the vice president as well, that the people had spoken in their states and they had no intention of reversing the outcome of the election. we did receive some signed letters that mr. eastman forwarded us by minorities of leaders in those states but no state had any legislative house that indicated it had any interest in it. so you would have had just an unprecedented constitutional jump ball situation with that stand-off and as i expressed to him, that issue might well then have to be decided in the streets because if we can't work it out politically, we've already seen how charged up people are about this election, and so it would be a disaster situation to be in. so i said i think the courts will intervene. i do not see a commitment in the constitution of the question whether the vice president has that authority to some other actor to resolve. there's arguments about whether congress and the vice president jointly have a constitutional commitment to generally decide the vote issue, i don't think they have any authority to object or reject them. i don't see it in the 12th amendment. nonetheless, and i concluded by saying john, in light of everything that we have discussed, can't we just both agree that this is a terrible idea? and he could not quite bring himself to say yes to that but he very clearly said well, yeah, i see we are not going to be able to persuade you to do this, and that's how the meeting concluded. >> you described a terrifying scenario, sounds like could have been chaos under the eastman approach. and potentially decided in the streets and described several concessions that dr. eastman made throughout that discussion or even debate that you had with him. at some point during that meeting on january 5th did dr. eastman seem to admit that both of the theories he had presented to the you state the day before, so theory that the vice president could reject electors outright and declare donald trump the winner and less aggressive theory that the vice president could simply send it back to the states. did dr. eastman seem to admit both of these theories suffered from similar legal flaws? >> so, i had at least one, possibly two other conversations with dr. eastman later that day. in the earlier meeting we really were focused because his request that he made had been object to the electors outright and why that theory was wrong and we would not be doing that. later that day he pivoted back to well, we hear you loud and clear, you are not going to reject, but remember last night i said that there was this more prudent course where you could just send it back to the states. would you be willing to do that? and during the course of our discussion about his renewed request that we consider that option, he acknowledged to me that, he put it both mr. eastman and myself are graduates of the university of chicago law school and he said look, as graduates of that institution you and i will mutually understanding the underlying legal theory of plenary vice presidential theory is what you have to get there. because the new theory or the procedural theory still violates several provisions of the electoral count act as he acknowledged. and the only way that you could ever be able to ignore several provisions of statutory law is if it was pretty clear that they were unconstitutional. and the only way they could be unconstitutional is if the vice president had the authorities to reject the votes as well. so he acknowledged in those conversations the underlying legal theory was the same, he just thought that the send it back to the states option would be more politically palatable and to the vice president for that reason. >> when dr. eastman made the concession during the meeting, according to your earlier deposition. dr. eastman said between us, the university of chicago chickens, right? >> i don't think the university of chicago will start a chickens fundraiser, but yes, the terminology, he said between us chicago chickens, we will understand as lawyers who have studied the constitution the underlying basis really is the same. >> i reserve the remainder of my time. >> thank you, mr. wood. >> mr. jacob, the president and the vice president meet again on the same topic the next day, january 5th, correct? >> so after my extended meeting with mr. eastman that morning, during that time the vice president had been back at his residence working on his statement to the nation that we release the next day, he got down to the white house some point between 1:00 and 2:00 as my meeting with mr. eastman was wrapping up. and when we, mark short and i went over to meet with the vice president and actually we thought maybe we had good news. we felt we had sort of defeated mr. eastman, he sort of acknowledging there was no there there, but the vice president was then asked down to the oval office and he went down to the oval office while mark and i stayed back in the vice president's office. >> you were not in that meeting. >> i was not. >> in the book bob woodward and bob costa write the president said "if these people say you have the power, wouldn't you want to?" the vice president says "i wouldn't want any one person to have that authority". the president responds "but wouldn't it almost be cool to have that power?" vice president is reported to have said "no, look, i've read this and i don't see a way to do it. we have exhausted every option. i've done everything i could and then some to find a way around this. it's simply not possible. my interpretation is no." to which the president says no, no, no, you don't understand mike, you can do this. i don't want to be your friend anymore if you don't do this. we asked mark short about this during his deposition. >> understanding that i would have in other conversations with the vice president, he articulated to me that no, he wouldn't want that power be stowed upon any one person. >> mr. jacob, did you, mr. short and the vice president have a call later that day again with the president and dr. eastman? >> so, yes, we did. >> and what did dr. eastman request on that call? >> on that phone call, which i believe was around 5:00 that afternoon, mr. eastman stated that he had heard us loud and clear that morning, we were not going to be rejecting electors, but would we be open to considering the other course that we had discussed on the 4th which would be to suspend the joint session and request state legislatures reexamine certification of the electoral votes. >> that same day, january 5th, the "new york times" ran a story about the disagreement between the president and the vice president, whether the vice president could determine the outcome of the election. even though the "new york times" story was correct, donald trump denied it. trump issued a statement claiming the vice president had agreed that he could determine the outcome of the election, despite the fact the vice president had consistently rejected that position. let's look at what the president said in his statement. "new york times" report is fake news. he never said that. vice president and i are in total agreement that the vice president has the power to act. mr. jacob, how did the vice president's team react to the statement that the vice president could take an active role in determining the winner of the presidential election? >> so we were shocked and disappointed because whoever had written and put that statement out, it was categorically untrue. >> vice president's chief of staff mark short had an angry phone call with jason miller about the statement. here is what mr. short and mr. miller told the committee about that call. >> tell me about the conversation you had with jason. >> it was brief. i was irritated and expressed displeasure that the statement could have gone out that misrepresented the vice president's viewpoint without consultation. >> the statement says the vice president and i are in total agreement and the vice president has the power. is that incorrect? >> i think the record shows that's incorrect. i mean, we have been through many documents that clarify that this is not where this is where it was. >> essentially the president is sending out a baldly false statement being in purported alignment with the vice president despite all the predicate you indicated had gone before about their respective positions. is that effectively what happened? >> i interpret the statement as false. i'll let you figure out who send sent it out. >> when mark short contacted you, was it clear he was upset? >> he was not pleased. >> what's the process for putting out a statement for a meeting only two people were in the room. >> did he ask you to retract the statement? >> no, just went right to what's the process for putting out a statement for a meeting when only two people are in the room. >> and he clearly disagreed with the substance, though, right, he said the vice president doesn't agree with that. >> try to think what he said. the tone was very clearly that -- some language to struggling for the vice president disagreed with, i don't remember what that was. >> did he dictate this statement? >> we -- he dictated -- dictated most of it. i mean, typically on these i might have a couple of wording suggestions or maybe, you know, have a sentence or a rough framework or something of that, but i know with specificity on this one, it was me and him on the phone talking through it, and ultimately the way this came out was the way that he wanted to. >> the dispute between the president and the vice president had grown to the point mark short, chief of staff, was concerned the president could, in mr. short's words, "lash out" at the vice president on january 6th. in fact, mr. short was so concerned about it that he talked with the head of the vice president's secret service detail on january 5th. here is mr. short. >> concern was for the vice president's security and so i wanted to make sure the head of the vice president's secret service was aware that likely as these disagreements became more public that the president would lash out in some way. >> after the recess, we will hear that mark short's concerns were justified. the vice president was in danger. mr. chairman, i reserve. >> pursuant to the order of the committee of today, the chair declares the committee in recess for a period of approximately ten minutes. >> sandra: all right, you have been listening into the investigation on january 6th, the hearing is now taking a ten-minute break. this is the third public hearing into that day in which the committee said it planned to review new materials that documented the day. two of former v.p. mike pence's advisers have been appearing as witnesses, focus on what pressure was put on pence to stand in the way of certifying the 2020 election. that hearing will resume in a few moments and john, it has been ongoing for about an hour and 42 minutes now, by the way, i'm sandra smith along with my colleague in washington. >> john roberts. and a tease there, sandra, as we went into the break with mark short saying he was concerned the president, donald trump might try to lash out at mike pence, so he alerted the secret service there might be a potential security threat against the vice president. that will be coming up after the break. martha is here, the executive editor and anchor of "the story," and we'll get into the potential threat in a moment. martha, start us off here. looks like two people only believed in the idea that mike pence had the power under the constitution and the electoral count act to reject the state of electors, and that was donald trump and eastman, and eastman did not believe it a whole lot. >> martha: that's right, and we saw the chair woman, liz cheney say she was going to lay out that the president's actions were illegal and unconstitutional, which really would be where the meat of this whole hearing process would lie. a lot of people watch this and say we are not a lot of new ground is tread here, but she is efforting today with these two guests, witnesses, excuse me, testifying today who lay out from the pence team perspective the attorney and the former judge michael luttig, why they feel they were from the mind of the very beginning the vice president did not have the authority to stop the count of the electoral votes on january 6th and that they went back and for the again and again and again and it seems as though what we have seen in the course of the hearings is ever-shrinking circle of people who supported president trump's wishes to do whatever it would take to halt this process, send it back to the states in order to get this thing drawn out in hopes that they could, you know, find the votes, as he said on the phone call in georgia, to turn this thing around and john eastman, a circle of two, essentially, he went to the university of chicago with the lawyer just speaking, a close associate of vice president pence, and really at many turns, john eastman basically says you know, i get it. i know the supreme court would not stand up for this, i know that it wouldn't really hold water but we are going to pursue it anyway, john, and that's the course they have laid out. >> sandra: jonathan turley, what have you heard or what struck you? >> it is astonishing to see what was going on behind the scenes. we knew about the objections made by white house lawyers and quite frankly, they performed ethically and above the call of duty in holding the ground on this. i thought that the most powerful moment for mr. jacob and the most relevant question is when he turned to eastman and said putting aside these theories, isn't this a really bad idea, and you know, it's funny but it's not, right. i mean he's saying look, we can debate this until the cows come home. at the end of the day this would be a really destructive thing for the country, and the 12th amendment is very short, just talks about the vice president opening up these votes. what eastman was suggesting is not his theory, other people had put forward the theory, including some liberal academics, but jacob's question was the right one. i was doing another coverage and said i disagreed with the president, and disagreed the vice president had the authority and thought vice president pence was doing the right thing. the question is going to be how the committee ties that dispute to an actual criminal conspiracy, which is what they said they are building towards. >> john: you know, andy, when we take a look at this, we obviously knew from the day of the election president trump did not accept the results of the election and was going to do whatever he could to overturn the results of the election, but a tremendous amount of granularity here, and what meetings were held, and fascinating on january 4th, the oval office meeting in which john eastman said look, two potential courses of action here, the vice president we believe has got the constitutional authority to reject slates of electors that we believe were fraudulently chosen, the easier case may be the idea of a ten-day delay. and the next day says no, forget the ten-day delay, we want him to reject the electors, well, no, if you are not going to reject the electors, go with the ten-day delay and greg jacob added on top of that, eastman thought the courts would not take this up, and said if the courts don't take it up, and maybe it would be decided in the streets. we kind of saw that on january 6th. >> i think there's a step missing there, and i don't mean to diminish what they said, but not only a question if the courts would not take it up, they were talking about sending it back to the states. if everybody thinks the democrats would allow it to happen, the republican in the states would countermand the popular vote and change it so trump won, i would be stunned if people really thought that would happen. so i think this was very serious, obviously. likelihood of it happening even with the somber tone we are looking at it in to me is very, very remote, and i'm not saying that the concerns raised were frivolous. i think we need to be more realistic what would have happened here. and i think, john, yes, we are getting more granularity. i don't think the basic story ha changed and to pick up on the point that i think john was just leading to, that jonathan was, this idea of how do you make this into a criminal case. i think, you know, if you think about legislative purposes for hearings, if you were sitting here and thinking that what the idea they were trying to accomplish here was how do we fix things so this never happens again, and the objective here was to amend the electoral count act to make it crystal clear that the vice president didn't have the authority that eastman and trump claimed he had, i think what we would have seen is a very, very compelling hearing. but i think where they are really going is this very gray area between when does a frivolous legal theory become so frivolous that you impute to the people positing the theory criminal intent. in other words, they were not believing a frivolous legal theory in good faith, they had actually crossed the line into fraud because they knew that what they were positing was total nonsense. and i think that's a very tough case to make. you know, we are hearing very compelling testimony about it today but what we have not heard is, for example, john eastman's written, i think about you know, 4 or 5,000 word defense, chock a block, and the constitutional account act and times it has not been complied with, etc., i think it would be very tough to make a criminal case on him. we are not getting that side of it and i don't want to be misunderstood. i think his theory was frivolous but i think trying to make him a criminal as opposed to somebody who just had a bad legal theory would be very tough for a prosecutor. >> sandra: we are inside of the two-minute warning now, martha, your final thoughts before we head back. >> i think this is also the story of the political destruction of what was a good friendship and pretty good partnership between president trump and mike pence. they were sort of ying and yang, and it fell apart during the course of the pressure put on mike pence in this moment. you hear the in the commentary discussed there as well. now mike pence has some aspirations, it would appear, as the desire of most vice presidents to try to run for the top job himself. he has not declared but will see if he does. it's a fine line and many ways laying out what he did then, why he made those decisions for the american people. so from a political perspective, value in this from mike pence and for the potential for his political future. >> john: jonathan, quickly to lead us into where we are going to start as they make their way back into the hearing room, president trump has denied it about you people suggested when supporters were saying hang pence, trump said allegedly maybe our supporters have the right idea, adding mr. pence might deserve it. again, former president trump has denied that, but clearly mark short, who is the chief of staff, the vice president's office thought there could be a threat, jonathan. >> i have a lot of respect for mark short and we were all horrified when we heard about the threats and the alleged response by president trump. some of his people have said that was not a literal statement on his part. but it's clearly as reckless a statement as the earlier statements on the rally. pence was a profile of courage, he was the redeeming moment. and many of these lawyers can take credit for holding the line on the rule of law. >> john: just to what you said there, look at michael luttig's written statement, he said there were many cowards on the battle field january 6th, the vice president, sandra, was not among them. >> sandra: andy mccarthy, a final thought from you. >> i think, you know, can they make a criminal case. i think that is continuing. >> john: we still have a little bit of time. martha, you still with us here? >> martha: sure am, john. looks like the ten minutes is extended into 11, maybe 12, and even longer. let's look at your thoughts about this threat against the vice president. because some of the protestors who were there on january 6th erected a gallows outside, and not to say the vice president would have gotten near the gallows unless the mob was successful in finding him in the bowels of the capitol building, but there were concerns about him on that day. >> martha: there sure were, and we will see images of the video of the vice president being ushered down the stairs there, mark short was with him, greg jacob was with him as well, very, very unnerving moments and the protestor video and what they are saying on it "if pence caves we will drag him through the streets" is very, very unnerving, very unsettling stuff for any american. >> john: yeah, there's no question the protestors were riled up and at least articulating their desire to do violence if a certain outcome did not come to pass. let's go back, and here is the chairman, >> committee will be in order. gentleman from california, mr. aguillar is recognized. >> i'd now like to turn to the events of january 6, 2021, which turned out to be a fateful day in our nation's history. despite the fact that the vice president told the president that he didn't not have and wouldn't want the power to decide the presidential election, donald trump continues to pressure the vice president publicly and privately. as you'll here things reached a boiling point on january 6. the consequences were disastrous. in the middle of the night, on january 5, in to the morning of the 6th around 1:00 a.m., president trump tweeted at the vice president. mean, that the comments and response to the president's tweet would also show up on the vice president's twitter feed. the tweet stated that the vice president could come through for us and send it back to the states. then around 8:00 a.m. on january 6th, president trump again tweeted, this time to say that the vice president could send it back to the states and "we win." this is the time for extreme courage. mr. short told us during his deposition that the vice president started a meeting on january 6 in prayer. here's what mr. short said. >> you've arrived at the vice president's residence. >> as would often be the case, i recall that it would be an important day. we doubted in prayer. often a staff member would lead. so it would have been at that time, i believe. the vice president and myself and greg and chris and we would have just asked for guidance and wisdom knowing the day would be a challenging one. >> did you go to the vice president's residences on the morning of january 6? >> yes. >> who else was with you? >> marc short, devin o'malley, our communications director and crist hodgson, our legislative affairs director. >> did the vice president have a call with the president that morning? >> he did. >> were you with the vice president during the call? >> so we had been putting -- the vice president had finalized his statement overnight. we were in the process of proofing it so we could get it out. we were told that a call had come in from the president. the vice president stepped out of the room to take that call and no staff went with him. >> the president had several family members with him in the oval that morning for that call. i'd like to show you what they and others told the select committee about that call along with never before seen photographs of the president on that call from the national archives. >> when i got in, somebody called me and said that the family and others were in the oval. do i want to come up. so i went upstairs. >> who do you recall being in the oval office? >> don jr., eric, kimberly, meadows was there. at some point ivanka came in. >> it wasn't a specific conversation. it was casual. >> when i entered the office the second time, he was on the telephone with who i later found out to be the vice president. >> could you hear the vice president or on the president? >> only the president's end. at some point it started off, a calmer tone. and then it became heated. >> the conversation was pretty heated. >> till it became somewhat in a latter tone, i don't think anybody was paying attention to it. >> did you hear any part of the phone call, even the president that the president was speaking from? >> i did, yes. >> what did you hear? >> i thought i was dropping off the note. i remember hearing the word "wimp." he called him a wimp. i don't remember if you said you'll be a wimp. wimp is the word i remember. >> it's reported that the president said to the vice president that something to the effect of you don't have the courage to make a hard decision. >> i don't remember either but something like that. like you're not tough enough to make the call. >> it was a different tone that i heard him take with the vice president before. >> did mrs. trump with you any more details about what had happened or any more details about what had happened in the oval office that morning? >> that her dad had just had an upsetting conversation with the vice president. >> do you recall anything about her demeanor, either during the meeting or when you encountered her? >> i don't remember specifically. i mean, i think she was uncomfortable over the fact that there was obviously that type of interaction between the two of them. >> something to the effect that this is the wording is wrong. i made the wrong decision four

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