At this point, the Jan. 6 committee’s hearings might as well be one big criminal referral to the Justice Department. And to make the case that Donald Trump and his allies broke the law, the committee has had to establish that they were acting corruptly — i.e., that they were likely to have known that their scheme was wrong and pursued it anyway.
To do that, the committee in its last two hearings has focused on two matters: that those involved in the push to overturn the election (a) knew that their efforts probably were illegal and (b) were told repeatedly that their claims of voter fraud were bogus.
Here’s what we’ve learned on both fronts thus far.
Evidence Trump’s team knew their plot was illegal
In Trump lawyer John Eastman’s own words:
- In his memos outlining the plot to overturn the election on Jan. 6, Eastman said Vice President Mike Pence should simply disregard the Electoral Count Act because Eastman viewed it as unconstitutional.
- In a Dec. 19, 2020, email, he conceded that alternative electors who weren’t certified by state legislatures would be “dead on arrival in Congress.” He wrote: “The textual claim that the ‘executive’ certification would prevail in such an instance over the legislature-certified slate is contrary to Article II” of the Constitution. He nonetheless pressed forward.
- After the riot at the U.S. Capitol, he again pressed Pence’s general counsel, Greg Jacob, to have Pence violate the Electoral Count Act. In an email on the evening of Jan. 6, he argued that it had already been violated by how Congress handled the aftermath of the riot and asked Pence and Jacob “to consider one more relatively minor violation and adjourn for 10 days to allow the legislatures to finish their investigations.”
- He asked to be put on a “pardon list” in the days after the insurrection, saying in an email: “I’ve decided that I should be on the pardon list, if that is still in the works.” This doesn’t necessarily show he knew the plan was illegal in advance — and a federal appeals court has ruled that accepting a pardon isn’t an admission of guilt. He also argued in the email that he was merely insulating himself from “the outright lies and false witness being spewed.” But his request reinforces the idea that he viewed himself as having legal liability.
From the testimony of Greg Jacob, then chief counsel to the vice president, on June 16:
- Eastman admitted the plan would violate the Electoral Count Act: “Mr. Eastman acknowledged that that was the case.”
- Eastman admitted to Jacob that the plot would lose on the merits in the Supreme Court: “When I pressed him on the point, I said ‘John, if the vice president did what you were asking him to do, we would lose 9-0 in the Supreme Court, wouldn’t we?’ And he initially started at, ‘Well, I think maybe you would lose only 7-2,' and after some further discussion, acknowledged, ‘Well, yeah, you’re right, we would lose 9-0.’ … [He] ultimately acknowledged that, no, we would lose 9-0 — no judge would support his argument.”
- Testified that Eastman thought that while his plan would fail on the merits, the Supreme Court might decline to interfere in a political dispute: “When I raised concerns that 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.”
From the testimony of White House lawyer Eric Herschmann:
- Giuliani conceded the plan was unlikely to pass legal muster over the “long term”: “We had an intellectual discussion about … the VP’s role. And he was asking me my view and analysis about the practical implications of it. And when we finished, he said, ‘Look, I believe that you’re probably right.’
Evidence they were told their election claims were bogus
Below we’ll highlight both instances in which Trump was told that his voter-fraud theories were wrong more broadly, and also specific claims (in bold).
From testimony by former attorney general William P. Barr:
- “I made it clear I did not agree with the idea of saying the election was stolen and putting out this stuff, which I told the president was bullshit.”
- On Nov. 23, 2020, he said he told Trump of his voter-fraud claims: “They’re not meritorious, they’re not panning out.”
- “I reiterated that they’ve wasted a whole month on these claims on the Dominion voting machines, and they were idiotic claims. … I told them that it was crazy stuff, and they were wasting their time on that. And it was doing a great, grave disservice for the country.”
- On Trump’s allegation of “vote dumps” in Detroit: “I said, ‘Mr. President, there are 630 precincts in Detroit. And unlike elsewhere in the state, they centralize the counting process. … So, there’s nothing. … Did all the people complaining about it point out to you, you actually did better in Detroit than you did last time? I mean, there’s no indication of fraud in Detroit.’ And I told him that the stuff that his people were shoveling out to the public were bull — it was bullshit, I mean, that the claims of fraud were bullshit.”
- On allegations of “vote dumps” in Philadelphia: “But once you actually go and look and compare apples to apples, there’s no discrepancy at all. And, you know, that’s one of the — I think at some point, I covered that with the President.”
From testimony from former deputy attorney general Richard Donoghue:
- “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 and Nevada. We’re doing our job. Much of the info you’re getting is false.’ ”
- “And then I went into, for instance, this thing from Michigan — this report about 68 percent error rate. The reality is it was only 0.0063 percent error rate, less than one in 15,000.”
- “So, then I talked about a little bit about the Pennsylvania truck driver. … This claim was by a truck driver who believed, perhaps honestly, that he had transported an entire tractor-trailer truck full of ballots from New York to Pennsylvania. … And I essentially said, 'Look, we looked at that allegation. We looked at both ends, both the people who loaded the truck and the people that unloaded the truck. And that allegation was not supported by the evidence.”
- “I said, 'Okay, well, with regard to Georgia, we looked at the tape, we interviewed the witnesses. There is no suitcase; the president kept fixating on the suitcase that supposedly had fraudulent ballots and that the suitcase was rolled out from under the table. And I said, no, sir, there is no suitcase, you can watch that video over and over, there is no suitcase, there was a wheeled bin where they carry the ballots. And that’s just how they move ballots around that facility. There’s nothing suspicious about that at all.”
- “I told him that there was no multiple scanning of the ballots. One part of the allegations that they were taking one ballot and scanning it through three or four or five times to rack up votes, presumably for Vice President Biden. I told him that the video did not support that. ”
- “Then he went off on double-voting. … He said dead people are voting. Indians are getting paid to vote. He met people on Native American reservations. He said there’s lots of fraud going on here. I told him flat-out that much of the information he’s getting is false and/or just not supported by the evidence. We look at the allegations, but they don’t pan out.”
- On Trump’s allegations about Antrim County, Mich., and Fulton County, Ga.: “I do know that they came up in subsequent conversations with the president … and I essentially told them we looked into that, and it’s just not true. … I told the president myself that several times in several conversations that these allegations about ballots being smuggled in, in a suitcase and run through the machines several times it was not true — that we looked at, we looked at the video; we interviewed the witnesses, it was not true.”