Legal advisers told Trump that pressuring Pence to overthrow election was illegal

Washington: Donald Trump put his own vice-president’s life at risk for refusing to embrace an elaborate plot to overturn the 2020 election, despite knowing the plan was unlawful, a Congressional hearing on the US Capitol attack has been told.

On the third public hearing into last year’s riots, the January 6 committee focused on the pressure put on then vice-president Mike Pence to stop Joe Biden’s election victory from being certified. It zeroed in on just how close Pence came to being attacked by angry Trump supporters.

Donald Trump and rioters on January 6.Credit:AP

Chilling video played during the hearing showed the rioters – some of whom had erected makeshift gallows – chanting “Hang Mike Pence” as they stormed the Capitol.

At 2.24pm on the day of the attack, about 10 minutes after protesters breached the first window, Trump tweeted: “Mike Pence didn’t have the courage to do what should have been done to protect our country and our constitution… USA demands the truth!”

This incited the crowd even further, the committee found, with one rioter telling protesters: “If he’s caved, we’re gonna drag m—–f—–s through the streets! You f—— politicians are gonna get f—— dragged through the streets!”

Former US vice-president Mike Pence.Credit:AP

It was Pence’s role, as vice-president, to oversee the certification of the electoral college votes.

He has not appeared before the committee personally, but several of his top advisers testified either in person or via video during the hearing, including senior aide Greg Jacob, chief of staff Marc Short and former judge Michael Luttig.

Each testified about how Trump embraced a plan, developed by conservative lawyer John Eastman, to pressure Pence to reject Biden’s victory by delaying the certification and sending the votes back to the states for recount.

The committee heard that while Eastman had insisted publicly that there was historical precedent to overthrow the result, he had told Trump privately, according to Jacob, that doing so could, in fact, violate the law.

‘I’m going to give you the best free legal advice you’re ever getting in your life: Get a great f—— criminal defence lawyer.’

Trump and Eastman nonetheless hoped their plan would buy some time for Republican-controlled legislatures to install new pro-Trump electors who could then reverse Biden’s electoral college victory in key battleground states.

However, Luttig, a highly respected conservative jurist who served in the White House Counsel’s Office under Ronald Reagan, told the committee that Eastman’s theory was unlawful and that if Pence had accepted Trump’s demands, it “would have plunged America into what I believe would have been tantamount to a revolution within a constitutional crisis”.

The pressure campaign on Pence was the last roll of the dice for Trump, whose attempts to prove electoral fraud in key battleground states had already been rejected by multiple courts. It also took many forms, witnesses said, from public speeches at rallies, angry private meetings and phone calls, and Trump’s own tweets.

In one tweet, posted on January 5 – the day before the attack – Trump told his millions of followers that “the Vice President has the power to reject fraudulently chosen electors”.

Jacob, however, rejected this, and had advised Pence the US Electoral Count Act — which governs every transition of power after elections — prohibited him from taking unilateral action and could have required him to break four different provisions of the law.

Trump supporters erected a noose prop near the US Capitol on January 06, 2021, and chanted threats about Mike Pence.Credit:Getty Images

“There is no justifiable basis to conclude that the vice president has that kind of authority,” he said.

A video of former Trump White House lawyer Eric Herschmann was also played, in which he told committee investigators that he viewed Eastman’s efforts as potentially criminal.

“I’m going to give you the best free legal advice you’re ever getting in your life: Get a great f—— criminal defence lawyer,” Herschmann said he told Eastman. “You’re going to need it.”

Notably, the committee heard, Eastman asked to be included on a presidential pardon list after the Capitol attack, but this was not granted.

This was the third of at least seven public hearings by the January 6 select committee, which has spent 11 months investigating the Capitol attack and Trump’s role in it.

It is particularly significant because it threads together the committee’s main contention: that Trump both incited the Capitol attack and was central to a sweeping and methodical conspiracy to overthrow a duly elected government, despite knowing that conspiracy was unlawful.

Trump, however, has repeatedly rejected the committee’s assertions. In a statement earlier this week, he described the inquiry as “a smoke and mirrors show for the American people”.

“The truth is that Americans showed up in Washington, DC in massive numbers (but seldom revealed by the press), on January 6th, 2021, to hold their elected officials accountable for the obvious signs of criminal activity throughout the election,” he said.

Eastman refused to comply with the committee’s request to provide evidence, pleading the Fifth Amendment more than 100 times.

The next hearings will take place next week.

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