A Third Impeachment or Prelude to a Criminal Trial?
By Jessie Seigel / Washington, D.C.
If there’s any truth to the old saw, “When it rains, it pours,” last week was the start of a tsunami for Donald Trump. It may prove so for some of his cohorts as well.
In Monday’s hearing (June 13) of the United States House Select Committee on the January 6th Attack, the testimony of witness after witness from the former president’s inner circle—Republicans all—revealed their boss’ criminal intent to overthrow the 2020 election through broad dissemination of election fraud claims that he knew were lies.
On Tuesday, the committee released video testimony of former White House attorney Eric Herschmann’s explosive reaction to a proposal floated by Trump-allied lawyer John Eastman. The latter, a central Trump-affiliated lawyer, allegedly wanted to continue challenging the election results even after the failure of the Trump-incited violent January 6 coup effort.
On Wednesday, the committee released videos of Georgia Republican Rep. Barry Loudermilk conducting a several hours- long tour on January 5 for people who are suspected of using the tour to case the Capitol complex for the attack the next day.
Wednesday also brought news that Supreme Court Justice Thomas’s influence-peddling wife, Virginia “Ginni” Thomas, pressured 29 Arizona lawmakers to choose electors who would override the state’s popular vote for Joe Biden. In addition, the committee had obtained newly discovered emails between Ginni Thomas and Trump ally John Eastman, who had also clerked for her husband at the Supreme Court. Eastman had a major role in pressuring Vice President Mike Pence to reject certified electors and replace them with so-called alternates whose votes would be counted for Trump.
And for the finale, the Thursday hearing addressed the dramatic pressure on Pence to stop the electoral vote count, and the violence which was brought to bear when he did not ultimately succumb.
Committee Chairman Bennie Thompson set the stage for Monday’s deliberations, stating that the hearing would tell how Donald Trump lost an election, knew he lost, and “decided to wage an attack on our democracy, an attack on the American people by trying to rob you of your voice in our democracy, and in doing so, lit the fuse that led to the horrific violence of January 6th, when a mob of his supporters stormed the Capitol, sent by Donald Trump to stop the transfer of power.”
Among the most prominent witnesses were former Fox News Politics Editor Chris Stirewalt, who testified in person, and Trump’s former campaign manager Bill Stepien. Stepien had been expected to testify in person, but—plot twist—his wife went into labor that morning and he had to travel to be with her. So, the committee presented video from their interview with Stepien in February.
Stirewalt, beaming with pride over having “beat” the competition, proudly emphasized that Fox News was the first to accurately call Arizona for Biden. And when Chairman Thompson asked him who had won the 2020 presidential election, Stirewalt trumpeted, as if at a convention: “Joseph Robinette Biden, Jr., of the great state of Delaware.”
Stirewalt also explained to Zoe Lofgren, the committee member manager of the day, that it is quite routine to have a “red mirage” on Election Day. That is because early in-person votes often give the impression that Republicans are winning. But to declare a winner, one must wait for the mail-in/absentee ballots because those votes—which are equally legitimate—come in later, and counting them takes longer.
In her opening statement, Vice Chair Liz Cheney stated that Donald Trump knew before the election that the counting of mail-in ballots in several states would not begin until late in the day and would not be completed for several days. She said definitively: “This was expected, reported, and widely known.”
On election night, in-person votes were still being counted and mail-in ballots had not yet been counted, so Trump’s advisors agreed that Trump did not have a basis for declaring victory that night. According to former campaign manager Stepien, the only one who maintained that they should declare victory was an inebriated Rudy Giuliani.
Stepien said he specifically expressed the view that it was “too early to call the race.”
When asked whether anyone who was part of that conversation disagreed with his message, Stepien responded: “Yes. The President.”
Thus, Trump rejected the advice of his campaign experts. Instead, he claimed he won, and insisted that the vote counting stop: “We want all voting to stop. We don't want them to find any ballots at 4:00 in the morning and add them to the list.”
But given that Trump was well-informed by his advisers that only a small part of the vote was in, that they needed to wait for the rest to be counted, and that it might take days, Trump cannot argue in good faith that mail-in ballots coming in late were any indication of fraud.
In fact, Trump had been speaking against the legitimacy of mail-in voting long before the election. Stepien stated that he and House Minority Leader Kevin McCarthy met with Trump in the summer of 2020 because they were concerned that Republicans, who often vote absentee by mail, would be dissuaded from voting: “But the President's mind was made up and you understand, you know, how many times to, you know, go to the well on a particular topic.”
Why was Trump’s mind so stubbornly made up long before the actual election? Could it have been a calculation that he could demand that voting stop while only a small number of votes were in and he was ahead?
As for the other various tales of fraud that Trump or his minions concocted and brayed against, testimony showed that not one of them was supported by any evidence.
Richard Donoghue, Trump’s Acting Deputy Attorney General from December 2020 to January 2021, testified in a video interview: “I said something to the effect of, sir, we've done dozens of investigations, hundreds of interviews. The major allegations are not supported by the evidence developed. We've looked at Georgia, Pennsylvania, Michigan, Nevada.”
B.J. Pak, former U.S. Attorney for the Northern District of Georgia, told Trump that the allegation of a suitcase of votes being brought in was not true.
Al Schmidt, former city commissioner of Philadelphia for more than 10 years, testified that when he continued counting votes after Trump preemptively declared victory and insisted that the canvassing of mail-in ballots stop, he was attacked. Trump tweeted that Schmidt was a “so-called Republican” who was “being used big time by the Fake News Media,” and that Schmidt “refuses to look at a mountain of corruption & dishonesty. We win!” This resulted in death threats against Schmidt and his family.
Ben Ginsberg, one of the leading election law attorneys in the country, is famous for representing Republican presidential candidates in election cases dating back to the 2000 Bush v. Gore litigation. Ginsberg testified that in none of the 60 court challenges brought by the Trump campaign did the campaign make its case.
Rep. Lofgren noted that despite those universal losses, the Trump campaign said that the courts did not hear them out, and she asked for Ginsberg’s opinion. He responded: “They did have their day in court.” Ginsberg added that in the post-election reviews in the six battleground states, “there was no credible evidence of fraud produced by the Trump campaign or his supporters.”
As Lofgren then noted, more than 60 judges in nine states dismissed Trump’s election fraud claims. This included 24 elected or appointed Republican state judges and 22 Republican-appointed federal judges—10 of those by Trump himself.
But the icing on the cake was former Attorney General Bill Barr’s blunt video testimony. Barr said, with a snigger, that on Trump’s part, “There was never an indication of interest in what the actual facts were.” Barr added that he told Trump straight out: “that the stuff that his people were shoveling out to the public were bull—was bullshit. I mean that the claims of fraud were bullshit. And you know, he was indignant about that.”
The final important point made on Monday was that Trump continued to push the fraud lie after all his campaign’s litigation had failed in order to con supporters out of their money. Amanda Wick, Senior Investigative Counsel of the committee, testified on video that between Election Day and January 6, 2021, the Trump campaign sent millions of fundraising emails to Trump supporters claiming: “Leftwing mob was undermining the election," and urging supporters to "Step up to protect the integrity of the election," and, "Fight back."
Small dollar donors were urged to donate to the “Official Election Defense Fund.” This effort raised $250 million, nearly $100 million in the first week after the election.
But the committee discovered that no such fund existed.
On November 9, 2020, about a week after the election, Trump created the Save America Pac, and most of the money raised for the alleged election defense fund was moved to that PAC—not used for election-related litigation.
The Save America PAC gave $1 million to Trump Chief of Staff, Mark Meadows' charitable foundation; $1 million to the America First Policy Institute; a conservative organization which employs several former Trump administration officials; $204,857 to the Trump Hotel Collection, and over $5 million to Event Strategies Inc, the company that ran President Trump's January 6th rally on the Ellipse. Donald Trump, Jr.’s girlfriend, Kimberly Guilfoyle, reportedly received $60,000 for a two-minute speech at Trump’s rally on the Ellipse on January 6. And to whom did the rest of that $250 million go?
As Rep. Lofgren put it, “Not only was there the big lie, there was the big rip-off.”
On Tuesday, the committee released a striking video of former White House attorney Eric Herschmann as a preview of explosive testimony to come. Herschmann testified that, after the savage January 6 attack on the Capitol, Trump attorney John Eastman called him, apparently trying to propose continuing to challenge the election in Georgia. Eastman was the originator and promoter of the lie that Pence had the authority to reject electoral votes and hand the election to Trump.
Herschmann said: "I don't remember why he called me. He started asking me something about dealing with Georgia and preserving something potentially for appeal.” Vehemently, Herschmann narrated, “I said to him, 'are you out of your efffing mind?' Right.” I said, "I only want to hear two words coming out of your mouth from now on—'orderly transition.' 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.”
Asked how Eastman replied, Herschmann said, "eventually," he repeated the words.
Herschmann continued describing the conversation, telling the committee he advised Eastman, “‘Now, I’m going to 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.’ Then I hung up on him.”
Apparently, Eastman took Herschmann’s advice seriously because he later asked the Trump Administration to add him to the list of people considered for pardons. They did not do so. And when Eastman met with the committee, he took the Fifth Amendment against self-incrimination 100 times.
It was reported on June 15 both that Ginni Thomas, Justice Clarence Thomas’ wife, had pressured 29 Arizona lawmakers to choose alternate electors, and that the House committee had obtained email correspondence between Thomas and John Eastman. As noted, Eastman played a key role in efforts to pressure Pence to replace legally certified electors with so-called alternates whose votes would be counted for Trump. The sameness of their goals, taken with their newly discovered email correspondence, has led the committee to invite Thomas to meet with them for an interview. Thomas has announced that she looks forward to doing so to clarify her allegedly innocent activities. We’ll see whether she follows through.
In addition, the committee released video of Georgia Republican Rep. Barry Loudermilk conducting a tour on January 5 for people who may have been using the tour to survey the Capitol complex for the January 6 attack. They were ushered around the complex for several hours, even though it was closed to the public on that day.
At first, Loudermilk had claimed that there were no tours. Later, when faced with video evidence of him conducting a tour, he admitted there was a tour, but claimed it was just a constituent family with young children. But it was then pointed out that there were about 15 people, and that the so-called tour took place in the Rayburn, Longworth, and Cannon Office Buildings, as well as entrances to tunnels leading to the U.S. Capitol—not the usual locations to which tourists are taken. In addition, at least one of those constituents took photos of stairwells, offices, tunnels, and security checkpoints.
Furthermore, it appears that the individual whom video showed taking such photographs was also caught on video the next day, heading to the Capitol, threatening: “We’re coming in like white on rice for Pelosi, Nadler, Schumer, even you, AOC. We’re coming to take you out and pull you out by your hairs…. When I get done with you, you’re going to need a shine on top of that bald head.”
Loudermilk has denied that the photos were reconnaissance and claimed not to know the individual who went to the Capitol the next day. But like Ginni Thomas, Loudermilk has been invited to meet with the committee about evidence of that tour.
Thursday: Pence Stood Up to Trump’s Pressure—Eventually
The 12th Amendment to the U. S. Constitution provides for Electoral College electors to meet and vote by ballot in their respective states for the president and vice president. They then sign, certify, and transmit those ballots to the President of the Senate (that is, the Vice President of the nation) in Washington, D.C.
The 12th Amendment then states that the vice president “shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”
This sentence does not give the Vice President any authority to choose what votes he will accept or reject, or the power to replace certified votes with others.
But in an effort seemingly coordinated by high-ranking members of Trump’s campaign team, Republicans in Arizona, Nevada, Georgia, Pennsylvania, Wisconsin, Michigan, and New Mexico had sent in counterfeit Electoral College results to compete with the legitimately certified results.
And Trump’s legal henchman, John Eastman, advanced a scheme in which Vice President Pence would reject the certified ballots, perhaps accepting the alternates or, based on the confusion, send the ballots back to the states to reexamine which should be accepted in order to keep Trump in office despite his loss of the election.
Thursday’s hearing presented two in-person witnesses to address the illegality of Eastman’s scheme, his understanding that it was illegal, and the extreme pressure brought to bear against Pence to force him to go along with the plot.
Eastman Knew His Scheme Was Illegal
The committee’s first witness, well-respected and extremely conservative former Judge Michael Luttig, had once been on the short list to join the Supreme Court. And, as coincidence would have it, John Eastman—against whose so-called theory Luttig was testifying—had once been Luttig’s law clerk.
Judge Luttig, speaking slowly and deliberately, declared that neither the Constitution nor U.S. laws would support the vice president counting “alternative electoral slates from the states that had not been officially certified.”
The committee’s second in-person witness, Greg Jacob, former counsel to Pence, agreed with Luttig, stating that there was no way that the framers of the Constitution, who had declared George III to be a tyrant, “would have put in the hands of one person the authority to determine who was going to be president of the United States.” Jacob maintained that Vice President Pence’s “first instinct” was decisively the same.
Jacob and Eastman spoke on this matter at a number of different meetings. In trying to persuade Eastman his so-called theory was wrong, Jacob testified he had, on one occasion, said: “I mean, John, back in 2000, you weren’t 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.’”
Clearly, Eastman knew that his proposal was not legal. But, according to Jacob, during a meeting on January 4, at which the president was present, “when I raised concerns that position would likely lose in court, his view was that the court simply wouldn’t get involved. They would invoke the political question doctrine, and therefore we could have some comfort proceeding with that path.” In other words—don’t worry. If Pence goes along, they could get away with installing Trump.
Jacob added that in a January 5 meeting, he said to Eastman, “John, if the Vice President did what you’re asking him to do, we would lose 9 to nothing in the Supreme Court, wouldn’t we?” He initially started, ‘Well, I think maybe you would lose only seven to two.’ After some further discussion acknowledged, ‘Well, yeah, you’re right. We would lose 9 to nothing.’”
But still, Eastman, on behalf of Trump, persisted. Eric Herschmann told him that telling 78 plus million people that you’re going to invalidate their votes, “They’re not going to tolerate that…You’re going to cause riots in the streets.” According to Herschmann, Eastman’s response was “words to the effect of, there’s been violence in the history of our country to protect the democracy or protect the republic.” Perhaps Eastman was so callous about such violence because equivalent violence was already planned to thwart the democratic choice of the people.
The Pressure Campaign
The pressure on Pence in private was intense, culminating with Trump’s call from the Oval Office on the morning of January 6 in front of the President’s family and others. They testified that Trump began calmly, but became “heated,” calling Pence a “wimp,” and “the P word” (presumably, “pussy”), and saying “I made the wrong decision four or five years ago.” Trump, before multiple witnesses, was berating Pence to break the law.
The pressure Trump applied publicly was positively dangerous to Pence. His tweets insisted that Pence had the power to hand him the election. And despite Pence’s clear statement to Trump that he could not unilaterally determine the election’s outcome, Trump then issued a statement that he and Pence were in total agreement that Pence could. This set up Trump’s mob to feel that Pence had betrayed them when he did not follow through. And of course, it led them into trying to hunt Pence down and hang him. Trump continued to stoke this violence even after the Capitol was breached.
After Pence and his family and staff were moved to a secure location, the Secret Service wanted them all to get into cars. Pence refused. The head of his detail said that the cars would not leave without Pence’s permission. To which Pence responded “Tim, I know you, I trust you, but you’re not the one behind the wheel.” Pence apparently was concerned that he could be driven away from the Capitol, preventing completion of the count, such action also serving the Trump-Eastman plot.
The Ongoing Danger
As Judge Luttig testified, if Pence had caved in and done Trump and Eastman’s bidding, it would have plunged America into what Luttig said “would have been tantamount to a revolution within a constitutional crisis.”
But the fact that Vice President Pence did the right thing has not eliminated the danger. As Judge Luttig also testified: “Trump, his allies and supporters are a clear and present danger to democracy… because to this very day, they pledge that in the presidential election of 2024, if the former president or his anointed successor as the presidential candidate were to lose… they would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election—but succeed in 2024 where they failed in 2020.”
Judge Luttig warned: “I don’t speak those words lightly…the former president and his allies are executing that blueprint for 2024 in open and plain view of the American public… I would have never uttered one single one of those words unless the former president and his allies were candidly and proudly speaking those exact words to America.”
I agree with Judge Luttig.
One last word, however. Judge Luttig aside, although it is a good thing that all of these Trump inner-circle Republicans are testifying to what occurred and to their own opposition to the plot, they are, nevertheless, proverbial rats jumping off of a sinking ship. If any one of them had true integrity, or cared about democracy more than their own careers, he would have publicly denounced the plot while it was happening—not over a year later, when “invited” or subpoenaed by the committee.
Even Mike Pence, whom his staff attempted to present as staunch and true and steely in his resolve—was not. He did not publicly state that he had no authority to toss electoral votes. And based on his consultation with Dan Quayle and others, he tried to find some way that he could legally do it. As reported in the Bob Woodward-Robert Costa book, Peril, Pence told Trump, “We’ve exhausted every option. I’ve done everything I could and then some to find a way around this. It’s simply not possible.” And, notably, Pence himself has not agreed to testify before the committee. He’s too busy trying to weasel his way into a possible presidential run.
So, while we should be thankful that Pence ultimately stood firm and did the right thing, neither he nor those testifying last week should be held up as paragons of virtue. They are latecomers to their so-called profiles in courage.
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.