John Eastman Told Trump That Pence Jan. 6 Plan Was Illegal

The House committee investigating the Jan. 6, 2021, attack on the US Capitol dedicated a crucial portion of its third hearing Thursday to demonstrating that former President Donald Trump’s plan to overturn the 2020 election was not only legally unsound, but that even the lawyer pushing it the hardest knew it.

In one of the most explosive findings of the hearings thus far, the committee heard testimony that law professor John Eastman told Trump two days before the insurrection that his scheme to keep the president in power was illegal.

Greg Jacob, Vice President Mike Pence’s counsel, recounted a White House meeting on Jan. 4, 2020, in which Eastman said in front of the president that his plan to thwart the counting of the Electoral College violated the law.

“I believe he did on the 4th,” Jacob said in response to a question from the panel.

Such an admission was consistent with the testimony of other witnesses present at Thursday’s hearing, the committee’s third this month. Multiple former White House aides testified, either in person or in taped deposition, that the plan proposed by Eastman, the chief architect of the effort to block Biden’s election victory, was either illicit or certain to be struck down in the courts.

In another bombshell from the hearing, the committee showed an email from Eastman requesting a pardon from Trump for his role in the attempts to stop the transfer of power to Biden.

“I’ve decided that I should be on the pardon list, if that is still in the works,” Eastman wrote to Trump’s personal attorney and confidant Rudy Guiliani, according to an email obtained by the Jan. 6 committee. Rep. Pete Aguilar, a Democrat of California who led questioning Thursday, said Eastman did not get one. Trump publicly announced 143 pardons on the last night of his presidency. Eastman was not among them.

In the opening hearing last week, the committee teased out that it would unveil Republican members of Congress who sought pardons for their roles on Jan. 6—a request that they believe reveals a consciousness of guilt. “It tells us that they fear they’re going to be charged, or more generally, that they’ve engaged in conduct that’s a federal crime,” Harry Litman, a former US attorney, tells TIME.

Much of the Thursday hearing was focused on White House aides who pushed back on Eastman’s universally debunked theory that the vice president had the constitutional power to reject slates of electors during the counting of the Electoral College.

Several Pence aides said they never found the persuasive argument. “There is no justifiable basis to conclude that the vice president has that kind of authority,” Jacob told the panel.

In fact, according to testimony and evidence presented to the committee, even Eastman did not buy into such a theory. Rep. Liz Cheney, Republican of Wyoming and vice chair of the panel, said that Eastman admitted in a Dec. 19, 2020, email that “the fake electors had no legal weight—referring to them as dead on arrival in Congress.”

In other meetings, Eastman, the founding director of a California-based conservative think tank, also conceded that such an argument would hold no legal muster, according to Jacob.

One Pence aid recalled a conversation with Eastman in which he acknowledged that the move wouldn’t be upheld in the courts, including the Supreme Court.

During Thursday’s hearing, the committee aired clips from a taped deposition of Eastman repeatedly responding to a committee lawyer’s questions by pleading his Fifth Amendment right against not incriminating himself. Overall, Aguilar said, Eastman pleaded the fifth 100 times.

At another point, Jacob shared an email correspondence he had with Eastman in the days after the Jan. 6 violence. The former Pence lawyer said he asked Eastman whether he advised Trump that the vice president had no authority to reject the Electoral College vote.

“He’s been so advised,” Eastman wrote back. “But you know him. Once he gets something in his head, it’s hard to get him to change course.”

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