Day 3 of the January 6 hearings recap: ‘A clear and present danger’

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‘A clear and present danger’: What happened on day 3 of the January 6 hearings

Former president Donald Trump and his lawyer pressured Vice President Mike Pence to overturn the results of the 2020 election even after the president and his lawyer were advised it would be illegal, the congressional panel probing in the Jan. 6, 2021, attack on the Capitol said Thursday.


Hear more from the conversation between Anne Tindall, Justin Rood, Kaila Philo and Steve Reilly:




In its third public hearing, the House’s Select Committee to Investigate the January 6 Attack on the U.S. Capitol unveiled evidence and testimony from a series of witnesses showing Trump’s persistent, repeated efforts to pressure his vice president to violate the law — and the Constitution — to keep him in power.

“President Trump was told repeatedly that Mike Pence lacked the constitutional and legal authority to do what President Trump was demanding he do,” committee member Rep. Pete Aguilar, D-Calif., said. “But President Trump plotted with a lawyer named John Eastman to pressure Pence to do so anyway.”

The hearing was the longest and most legally complex so far, featuring videotaped testimony from a coterie of lawyers for Trump and Pence, as well as live testimony from former Pence lawyer Greg Jacob and former federal judge J. Michael Luttig.

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Among the new evidence presented by the committee was an email to Rudy Giuliani from Eastman — who had spoken at the Jan. 6 “Stop the Steal” rally and had been Trump’s point person on the effort to pressure Pence — sent several days after the Jan. 6 attack, stating: “I’ve decided that I should be on the pardon list, if that is still in the works.”

Luttig, considered a conservative legal icon, closed the hearing by remarking that Trump and his allies are “still … a clear and present danger to American democracy.”

Thursday’s hearing followed an opening hearing on June 9 in which committee members said they planned to lay out Trump’s central role in “a sophisticated seven-part plan to overturn the presidential election and prevent the transfer of presidential power,” and a second hearing on Monday in which the committee provided evidence that Trump was repeatedly informed he lost the 2020 election. The next public hearing is scheduled for Tuesday.

Former congressional investigators Anne Tindall, who is now counsel at the nonprofit group Protect Democracy, and Justin Rood, investigations editor at Grid, joined Grid’s Government and Political Institutions Reporter Kaila Philo to discuss the hearing in a Twitter Spaces conversation on Thursday. The conversation, moderated by Grid Investigative Reporter Steve Reilly, has been edited for length and clarity.

Grid: What moments and what themes stood out to you as you watched today?

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Anne Tindall: Two things stood out to me most significantly. One was — I think we talked after the first hearing about how clearly the committee came out swinging for Trump and accountability for the former president. Today, it was obvious that the committee also has John Eastman on its mind as someone primarily responsible for what happened on Jan. 6 and in need of accountability for those actions. The evidence presented quite methodically today really showed how he didn’t even believe his own theory and understood that what he was pushing was not a constitutional or legal way to overturn an election, but instead a way to steal one.

And then I also thought that the testimony and evidence presented about former vice president Pence and his staff offered a real contrast: The almost buffoonery of Trump and his inner circle in sharp relief against Mike Pence and his close advisers and the solemnity with which they took the duty that was placed upon them that day. And Pence clearly understood what he had to do in service of his oath of office. But that didn’t make it easy. He faced mortal threat, and he and his staff were really movingly brave on that day. And that sticks with me.

Justin Rood: I was really impressed by how thoroughly they showed that Eastman appeared to be aware that the scheme was illegal. And also that clearly, we’d already established that Trump had heard this. We heard more about Rudy [Giuliani] getting this message. Also, combine that with the willingness to accept violence. The idea of violence as a political act in service of democracy and our Constitution is a very, very sacred notion. That they were willing to do this while also being aware that nobody in their orbit and beyond thinks this is legal was just really striking to me.

After seeing a number of politicians and outlets downplaying the hearings, it was really powerful to have a figure like Judge Luttig really bring the gravity of the issues that were at play. And having somebody like Jacob and the other members of Pence’s staff really make clear in their narrative around those days of Jan. 4, 5 and 6 how serious the situation was — what pressure they were under and the very real threats of personal danger, as well as kind of collective danger to our democracy that they were in a better position to perceive than almost anyone else — I found that really striking.

Kaila Philo: I reported on the Electoral Count Act back in January and examined Eastman’s plan pretty closely and found why exactly lawyers and pundits were adamant that this plan would not work and was not legal or constitutional. So it was really interesting to see both Luttig and Pence’s counsel Greg Jacob get up and say resolutely and without any doubt that the plan was unlawful, unconstitutional and just boneheaded.

I also thought it was interesting to see how much premeditation had gone into creating the memo and the plan. He had been working on this memo since at least October 2020. So I’m wondering, why did he choose the ECA in the first place? And is it just because it’s the most vulnerable part of the Constitution in terms of the election process?

G: A lot of what we saw today, for people who work in the news business or have been following it closely, has kind of come out piecemeal over the past few months in reporting. But it’s never really been strung together in a narrative quite like it was today. Could you comment on your impressions on how the committee told this story, including the two live witnesses, Judge Luttig and Greg Jacob? How effective were they in telling viewers what happened?

JR: I’ll speak to one particular moment that I was really impressed by. Introducing a set of facts — especially a complicated set of facts — is very hard to do in a congressional hearing in a way that’s compelling and clear, especially when you have to reconstruct an incident from multiple perspectives. And that phone call on the morning of Jan. 6 between then-President Trump and then-Vice President Pence, the way that they built that video — constructing it using clips from folks who had overheard or had described to them different sides of that conversation — I thought was very impressive. I’m assuming that they will be more thorough in the way they construct that in the report and cite those various interviews. But simply to give viewers an understanding of how they saw that phone call going, I thought that was a remarkably good job they did.

AT: I agree, I thought that was particularly skillful.

By marching through the storyline — which could have gotten a bit dull, I suppose, if you just recited the collection of facts that they had amassed — they provided some really good visual imagery for us to contemplate. We saw the progression from when this idea of pressuring the vice president to refuse to certify the election was first hatched, until Pence actually was able to certify the election in the wee hours of Jan. 7. They went back a couple times to Mr. Jacob and his testimony about Pence’s instinct, that certainly the Constitution could not have been written in a way that the power to overturn an election would be vested in a single person — let alone a single person with a stake in the outcome. Throughout the storyline, people push back against that, and the arguments go back and forth about whether this can or cannot be done. And then, again, in closing, that was a point that was made really clearly by both Jacob and Luttig and then several of the members who spoke. That our constitutional design is simply inconsistent with what the schemers were trying to pull off.


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G: As the committee’s work goes forward, we seem to be learning more about the corps of individuals that they seem to be focusing on. Could you talk a little bit about what you noticed about who, in particular, the committee is seeming to home in on at this point?

JR: Today, for sure they were spending most of their time on John Eastman. And clearly the whole thing overall is really pointed pretty squarely at Trump and Trump’s culpability.

One of the things we’re seeing is fallout as we see these new witnesses come forward and testify both live as well as in the recorded hearings. I think we can only expect to see some fallout in Trump world. And especially as we’re starting to see the potential legal jeopardy becoming much more clear and the stakes going up for some of these folks who may have thought they were safely on the sidelines by now, it’s very clear that there is not necessarily a safe place to be as some of these revelations come out.

It’s also not clear what DOJ is going to start charging, if anything, which may temper some of those concerns. But at the same time, the evidence that they were putting up on the screen around Eastman’s apparent foreknowledge of the legality of the scheme, and the lack of any support in the broader legal world for the claims that they were making, just really spoke volumes. I would not want to be anybody in that situation, for sure.

AT: To jump in a bit on that last point — no one is above the law, that includes the president. And that said, there are obviously different considerations to take into account at the Department of Justice as they think about whether or not the evidence that has been amassed here and that the Department of Justice has would allow them to go forward in bringing charges against Donald Trump.

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There are no special circumstances to consider in thinking about whether or not to charge a law professor gadfly. Which is what Eastman comes out to be. And I think the more compelling the case the committee makes against Eastman and Giuliani and others who may have gone along with this scheme, the more uncomfortable these folks must be getting about what may be coming from the Department of Justice.

JR: Can I make one other completely unrelated point, just because it’s been eating at me since the hearing? We heard for the second time now, in three hearings, this mention of pardons and pardon requests. In the beginning, there was an offhand but deeply memorable reference to numerous Republican members of Congress who apparently had requested pardons at one point at the end of the Trump administration. And now we see this email from Eastman to Rudy saying something along the lines of, “Hey, I don’t know if you’ve still got that pardon list handy, but I’ve decided I should be on it,” which is just such a remarkable statement.

I can’t imagine they would include so many references to pardon requests without a plan to come back and give more details both on who has asked for these pardons, as well as what this pardon process list he refers to “if it’s still in the works” — implying that there had been something in the works he had heard about or been approached about previously. At least, that was my reading of the email. And I really can’t imagine a more consequential revelation to come out here. This is something that we really hadn’t heard a lot about up until the hearings. But I think that I would love to know when they’re going to start talking more about who, what, where, when and why on the pardons list.

AT: I totally agree. I think it’s probably worth asking of a former federal prosecutor, which I am not, what significance a request for a pardon has in knowledge of guilt. Because it certainly, in the public from a layperson’s perspective, makes Eastman look pretty guilty.

G: We spoke in an earlier conversation about whether the committee’s public hearings are making a case to the American public, or are they making a legal case — or perhaps both. Which of those cases did it do a better job of making today? Where was the most effective?

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AT: The hearing was quite long. And there were points at which — as Jacob and Luttig walked through the legal analysis of the 12th Amendment and the Electoral Count Act — I can imagine we lost some viewers. And as I said when we talked about this before, I think there are ways in which a public audience and a legal Department of Justice audience sort of reinforce each other. The Department of Justice will need to feel like it has the public’s permission to move forward on some of these more significant charges. But I do think that it was more of a lawyer’s hearing than a prime-time TV event.

JR: Yeah, this was 100 percent a lawyer’s hearing. Not only because it was lengthy and there were lots of documents and legal arguments and things. But Judge Luttig is not going to go from this to hosting the Oscars. All of the deliberation that you would expect from a retired federal appellate judge, I think, was there.

And then you had the sort of details that only lawyers would get into about how one of his clerks was asking questions and soliciting testimony regarding the actions of another former clerk. It’s a lot of inside baseball, legal stuff at the same time they were laying out, I think, a broader — and very strong — evidentiary case around the actions of Eastman, Trump and Giuliani.

G: Luttig was very slow and deliberate and careful in his choice of words. But there was a dramatic moment at the end of this, where he talked about how Donald Trump and his allies are still “a clear and present danger to American democracy.” And that kind of forward-looking statement was about fears about 2024. I wanted to bring in Kaila again. Could you talk about kind of where the politics of the Electoral Count Act [reform] are and what we might see going forward?

KP: Earlier this year, senators from both Republican and Democratic parties expressed interest in reforming the ECA. It just kind of happens to be one of those safely bipartisan rules that can be reformed. We’re probably going to see the new framework for the ECA come out in August. That’s the timeline that lawmakers proposed earlier this week. But we won’t see a vote in the Congress until after the election, most likely, because the Democrats might try to slip in some voting rights legislation since their big landmark voting rights bill didn’t end up passing this year.

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G: Maybe we could go around one more time and just kind of get the moment that stood out to each of you the most in the course of today’s hearing.

JR: It really shouldn’t be me because I’m going to say, just off the top of my head, I still can’t get over that Jared Kushner “whining” comment. If they played that at every hearing, I would still find it alarming. I’ve already talked about it so I don’t want to get too much into it. But I just can’t — I’m still stunned by it every time I hear it.

AT: I think in a similar vein, I would contrast two moments. One, the president threatening Mike Pence that if he didn’t do as he was being asked to do and overturn the election that he wouldn’t be friends with him anymore. The sort of lack of seriousness there. And then contrast that with the Pence staff gathering together in prayer the morning of Jan. 6, seeking strength and guidance for what they knew was such a monumental — and, in fact, turned out to be quite terrifying — day.

KP: Earlier I spoke a little bit about how they resolutely said that Eastman’s [theory] was unconstitutional. But I also found it kind of fascinating and troubling just how much Ginni Thomas involved herself in this entire plot. And that just kind of brings into question Clarence Thomas’ fitness to be on the Supreme Court bench. Because that is an expressly partisan behavior that she exhibited. That kind of behavior was, at the very least, not stopped by Thomas himself. So I think that in the future, Congress should turn its eye on the Supreme Court and see how much partisan ideology is infecting their decision-making.

G: Does anyone have thoughts on unanswered questions that have been raised today that we’ll get to in our next hearing on Tuesday? What are you hoping the committee might address or answer in the coming hearings?

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JR: Steve, I’ll be honest, I’m a little bit curious as to what you’re expecting and what you’re looking forward to. I’m doing the best I can keeping up with the stuff they’ve got on TV now.

G: I think there are a lot of questions. There seems to be kind of a Trump-sized hole in the picture they’re building. In particular, Mike Pence and his aides keep taking these meetings with this lawyer, John Eastman. Why are they doing that? What role did Trump play in continuing to push this legal theory personally? What did he say, and when did he say it? I think we have a lot to learn about the words and actions of the former president as we go along.

JR: I would also note that we found out today — I think it was during the hearing or just before it started — that the Department of Justice has asked the committee to share the transcripts of their interviews with them, because they have realized that the committee’s work is not just tangentially relevant to their prosecutions. But it may, in fact, cover a lot of the same ground. They didn’t tell a whole lot more, and it’s tough to know for sure how to interpret that. But I take it as a good sign that they’re still concerned around criminality — and particularly, not just among the folks who broke into the Capitol that day, the rioters, but some of the folks that the committee has been looking at. The suits and ties, the white collars in the White House involved in making the calls of the day.

AT: One piece of news that came out from the committee but I didn’t see today was the photographs and video of Rep. [Barry] Loudermilk [R-Ga.] taking would-be siege members on a tour of the Capitol before on Jan. 5. And we’ve talked about Trump and about Eastman. I have to wonder whether their fellow members are due for a hearing as well.

KP: I’m personally looking forward to seeing just how closely the panel is going to push criminal charges against Trump and his coterie. The Justice Department will be handling the actual charges, should they decide to do that themselves. But I’ve seen that lawmakers have accused Eastman of criminal conspiracy to defraud the election. And I’m wondering how much farther they’re going to push that claim and whether the Justice Department will pick it up.

Thanks to Lillian Barkley for copy editing this article.

  • Steve Reilly
    Steve Reilly

    Investigative Reporter

    Steve Reilly is an investigative reporter for Grid focusing on threats to democracy.