What to watch for at Thursday’s January 6 hearing focused on Mike Pence
By Jeremy Herb, Zachary Cohen, Annie Grayer and Ryan Nobles, CNN
Thursday's hearing from the House select committee investigating the Capitol insurrection will be all about former Vice President Mike Pence, who was at the center of former President Donald Trump's last-ditch effort to overturn the 2020 presidential election on January 6, 2021.
Committee aides said the hearing would make the case that Trump's pressure campaign against Pence had "directly contributed" to the violence on January 6, which placed Pence's life in danger as rioters chanted, "Hang Mike Pence."
Aides said the hearing would include new materials and documents about Pence's movements on January 6 and what he was doing when the Senate chamber was forced to evacuate after rioters breached the US Capitol.
The hearing will focus on Trump attorney John Eastman's theory that Pence had the authority to overturn the election results when Congress certified Joe Biden's victory on January 6, 2021. It was a theory that was rejected by Trump's own White House attorneys, but Trump and his allies embraced it, pressuring Pence to help him subvert the election in the weeks leading up to January 6.
The committee teased testimony on Tuesday, with a clip showing Trump White House attorney Eric Herschmann's angry reaction to Eastman continuing to push the case the day after January 6.
The January 6 committee has obtained a trove of emails Eastman sent related to his efforts to overturn the election that could shed new light on the Trump attorney's thinking in the days leading up to January 6. Eastman had tried to block the House from accessing many of his emails, claiming they're protected as confidential attorney-client communications, but a judge has disagreed with him repeatedly and ordered them turned over.
Two witnesses will testify at Thursday's hearing who advised Pence that he did not have the authority to subvert the election, former Pence attorney Greg Jacob and retired Republican judge J. Michael Luttig.
The focus on both Eastman and Trump's effort to overturn the election and the ensuing violence on January 6 reiterates a theme the committee has emphasized in its first two June hearings: that Trump's scheme to stop his election loss led to the attack on the Capitol.
Pence will be the focus, but not there
One person who will be noticeably absent Thursday is the former vice president himself.
Earlier this year, the committee's chairman, Democratic Rep. Bennie Thompson of Mississippi, had suggested the committee would seek testimony from Pence. Still, the prospect of Pence appearing before the committee, particularly in public, has always been viewed as a long shot -- to say the least.
But as the committee makes its case that Trump was pushing his vice president to unilaterally overturn the election on January 6, Pence's absence will undoubtedly be felt.
Asked Wednesday if the committee is still interested in hearing from Pence himself, committee aides demurred, telling reporters the investigation is ongoing and therefore they cannot provide details about any engagement with a particular witness.
"Nothing new to share on that, other than we continue to search for facts and if there is more to share, we'll share it in the future," one of the aides said.
The fact that two of Pence's former advisers are scheduled to appear Thursday, and his former chief of staff Marc Short testified on camera behind closed doors, indicates that Pence was not actively seeking to block those around him from sharing information with the committee in his stead.
Pence is expected to travel to Ohio on Thursday for a roundtable discussion about energy.
A judge and a lawyer
The two witnesses appearing Thursday, Jacob and Luttig, each played a key role in helping Pence stand up to Trump's pressure campaign. And both can speak to how Trump and his allies were warned that his plan for Pence to throw out electoral votes on January 6 was illegal.
Jacob was a lawyer for Pence and helped the vice president's team articulate that the Constitution did not give Pence more than ceremonial authority when Congress certified Biden's victory. Luttig helped provide public cover for Pence, tweeting out a thread at the urging of Pence's team to explain why Pence could not do as Trump wished. Interestingly, Eastman is a former clerk for Luttig.
Pence cited Luttig's statement in the letter released January 6 explaining why he would not stop the certification of the election.
Jacob also played a role behind the scenes on January 6 while he was being evacuated from the Senate with Pence, exchanging heated emails over what was transpiring, which were revealed in court filings.
"Thanks to your bullshit, we are now under siege," Jacob wrote.
Eastman responded: "The 'siege' is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so that the American people can see for themselves what happened."
Short, Pence's former top aide, spoke to the committee via deposition, and committee aides said they expect to use portions of his interview during Thursday's hearing. But there's no indication the committee will call him to testify during the public hearings.
It's not unlike how the committee featured former Attorney General William Barr's deposition during Monday's hearing but did not have him appear for public testimony.
'A great effing criminal defense lawyer'
The committee previewed its Thursday hearing by releasing a video clip from its deposition of Herschmann.
In the clip, Herschmann outlines how he warned Eastman to back off plans to file appeals in Georgia based on the election results after the events of January 6, 2021.
"He started to ask me about something dealing with Georgia and preserving something, potentially, for appeal," Herschmann says in the video. "And I said to him, 'Are you out of your effing mind? Because I only want to hear two words coming out of your mouth from now on: orderly transition.' I said, 'I don't want to hear any other effing words coming out of your mouth no matter what, other than 'orderly transition.' Repeat those words to me."
He then goes on to warn Eastman that his actions could potentially be against the law.
"Eventually he said, 'Orderly transition.' I said, 'Good, John. Now I'm gonna give you the best free legal advice you're ever getting in your life: Get a great effing criminal defense lawyer. You're gonna need it.' And I hung up on him."
The video likely foreshadows what will be an underlying theme of Thursday's hearing as the committee plans to highlight how Trump continued to embrace Eastman's plan for overturning the election despite the insistence from his top lawyers that it was not sound legal advice.
And by attempting to carry out that plan, it is more likely than not that Trump and Eastman committed a crime, according to Herschmann and a federal judge in California who issued an opinion on the topic in a related case earlier this year.
Staff attorney will ask questions Thursday
The format of Thursday's hearing will have a new wrinkle, according to committee aides: Committee counsel John Wood will do some of the questioning of witnesses.
The inclusion of a staff attorney harkens back to House Democrats' impeachment hearings in 2019, when staff attorneys conducted lengthy questioning of witnesses before the more traditional five-minute rounds were used for House lawmakers.
The select committee has limited who has spoken at the hearings so far, with one member focused on leading each session. On Thursday, Democratic Rep. Pete Aguilar in California will have that task.
The committee postponed its planned hearing on Wednesday, which was to have focused on the Justice Department. Now it will hold two hearings next week, and more are likely to come the following week, though the committee has yet to announce specific times or topics for those.
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