The attempted handoff shows just how much former President Donald Trump and his allies tried to lean on Pence to introduce false slates of electors that could have thrown the 2020 election from Biden to Donald Trump. The committee laid out an intense pressure campaign, led primarily by Trump and his attorney Rudy Giuliani, to push state legislatures to appoint pro-Trump electors and override the will of voters in their states.
In video and live testimony, state legislative leaders in Pennsylvania, Arizona and Michigan — all Republicans — described repeated, sometimes daily pressure from Trump and his allies in the aftermath of the 2020 election. Michigan State Senate leader Mike Shirkey recalled in video testimony how, after Trump tweeted out his phone number, he received thousands of messages from Trump supporters asking him to appoint Michigan’s electors through the legislature.
Arizona State House speaker Rusty Bowers rejected similar pressure from Trump.
“You are asking me to do something that is counter to my oath,” he recalled saying.
The panel drew a direct connection between the events of Jan. 6 and the months-long effort by Trump and Giuliani to browbeat state legislative leaders. Even without the compliance of those lawmakers, Trump pushed the Republican National Committee to help identify and coordinate false slates of electors in the states.
In fact, Trump had called RNC Chair Ronna McDaniel and handed the phone to attorney John Eastman, an architect of Trump’s plan to remain in power, according to newly revealed video of her testimony to the committee. Eastman urged her to help identify false electors to meet and cast votes for Trump on Dec. 14, 2020, when the legitimate members of the Electoral College were required to meet and vote.
“He turned the call over to Mr. Eastman, who then proceeded to talk about the importance of the RNC helping the campaign gather contingent electors in case legal challenges that were ongoing change the result,” McDaniel said in video testimony.
Under Trump’s plan, Pence would be presented with competing slates of electors — the official results certified by the governors and those certified by state legislators — and he would assert the extraordinary power to choose which slates to count. But no state legislature responded to Trump’s demand, and Pence, without any genuine controversy, rejected the scheme as illegal.
The legality of the plan was at the heart of Tuesday afternoon’s hearing, led in part by panel member Rep. Adam Schiff (D-Calif.).
“The system held, but barely,” Schiff said in his opening remarks.
During the hearing, another theme emerged: State legislative leaders pleaded with Trump and Giuliani for any evidence to support their sweeping claims of fraud and irregularities. But Giuliani, while insisting the evidence existed, never provided it. Trump attorneys Cleta Mitchell and Eastman discussed the absence of such evidence in emails on Jan. 2 and Jan. 3.
Notably, Johnson held his own hearing on purported election fraud in mid-December 2020 and was accused by Democrats of spreading misinformation.
Trump-aligned lawyers concocted the effort, leaning on fringe constitutional theory and the guidance of Eastman. He acknowledged in emails obtained by the select committee that the Pence plan would be “dead on arrival” without the backing of state legislatures — yet he pushed ahead anyway, suggesting that the confusion around alternate electors would give Pence enough cover to act.
Trump’s own White House counsel’s office also raised doubts about the plan, according to testimony released by the select panel in court filings. And in the days before Jan. 6, Pence’s chief counsel Greg Jacob engaged in an intense debate with Eastman, contending that not a single justice of the Supreme Court would back his plan — a point he said Eastman reluctantly conceded.
Other witnesses testified about Trump’s pressure on Tuesday, including Georgia Secretary of State Brad Raffensperger, whom Trump famously told on Jan. 2, 2021, to help him “find” the 11,000 votes he needed to win the state. Neither Raffensperger nor GOP legislators in Georgia complied with Trump’s push, and his effort in Georgia triggered an ongoing investigation by the Fulton County district attorney.
Members of Trump’s inner circle began contemplating the notion of turning to state legislatures even before the election was called for Biden. On Nov. 5, 2020, Mitchell — who had been leading preelection preparations for Trump’s legal team — reached out to Eastman with a request.
“John — what would you think of producing a legal memo outlining the constitutional role of state legislators in designating electors?” Mitchell wondered. “Rather than governors, the US Constitution vests that responsibility with state legislators. … why couldn’t legislatures reclaim that constitutional duty, and designate the electors — rather than delegating to governors.”
Eastman wrote a memo later that month, which was then forwarded to the Oval Office by Trump campaign attorney Jenna Ellis, according to documents obtained by the Jan. 6 select committee. As Trump’s legal challenges to the election began to fail and states began certifying Biden’s victory, Eastman began consulting directly with state legislators, encouraging some to simply retabulate their popular votes in order to show Trump in the lead.
The goal was ultimately to present Pence with an apparent controversy: competing slates of electors certified by different government bodies — governors and legislators. Jacob, Pence’s chief counsel, told the vice president at the time that had any state legislatures certified an alternative slate the outcome might’ve been different.
“A reasonable argument might further be made that when resolving a dispute between competing electoral slates, Article II, Section 1 of the Constitution places a firm thumb on the scale on the side of the State legislature,” he wrote in a memo obtained by POLITICO.
Even as rioters swarmed the Capitol on Jan. 6 and sent Pence, Jacob and lawmakers into hiding, Eastman leaned on Pence to single-handedly delay the count of electoral votes, citing the possibility that the Pennsylvania legislature would reconvene and adopt an alternative slate. But Pence and his team came to view the delay as a violation of the Electoral Count Act, the law that governs the transfer of power and the counting of electoral votes.
Eastman’s correspondence throughout the post-election period, including with another pro-Trump lawyer Kenneth Chesebro, shows the two grappling with the challenge of convincing state legislatures to adopt Trump slates of electors and building it into their plans. The two men helped contemplate the Trump campaign’s effort to assemble pro-Trump electors to meet on Dec. 14, 2020, and cast ballots as though they were the true electors from their states. Those false certificates have drawn scrutiny from federal prosecutors. Eastman and other Republicans have contended that those meetings were necessary in case any courts sided with Trump and tipped the outcome in his favor.
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