Over the many months of revelations about Donald Trump's attempted coup, one lingering question has rarely been asked: What would have come next if Vice President Mike Pence had done what they asked?
A collective "Oh well, I guess Trump is president for another four years after all" from the country sounds unlikely, to say the least. And if the courts had become involved, it's hard to imagine that Trump's followers would have been any less angry than they already were. So, what was the plan?
Thursday's January 6th Committee hearing finally addressed that question, at least obliquely, through testimony by Donald Trump's staff and Mike Pence's inner circle. The answer was not comforting.
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This third hearing discussed the campaign to pressure Pence, then the vice president, into overturning the election — and what a campaign it was. The main player in this scheme was Republican lawyer John Eastman, who appears to have been a Trump true believer (as well as a highly credentialed, conservative, constitutional scholar) who offered his services to serve Trump's pre-fabricated conspiracy theory that the election had been stolen. Trump was apparently pleased with his devotion to the Big Lie and Eastman quickly became the primary January 6th coup plotter.
It is pretty clear that Eastman knew there was a good chance for serious bloodshed if Pence overturned the election.
The hearings showed that Eastman was relentless, throwing out one argument after another to get Pence to go along with the program. His and Trump's entreaties were met with furious pushback from the White House counsel's office and Pence's own lawyers who argued that it was illegal, unconstitutional and wrong over and over again. Eastman was so obsessive about his crusade to overturn the election, however, that even after the insurrection on Jan. 6th he came back to one of the White House lawyers who said what is no doubt going to be one of the most famous quotes of this scandal: "I'm going to give you the best free legal advice you're ever getting in your life. Get a great f-ing criminal defense lawyer. You're going to need it." A few days later Eastman emailed Trump's other attorney Rudy Giuliani asking to be on the "pardon list."
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The pressure on Pence was immense. But on Jan. 6th, Pence refused to do his boss's bidding even after Trump insulted him on the phone by calling him a "pussy." Pence refused to leave the Capitol complex that day despite the danger presented by the mob Trump had incited. The hearing showed that at one point rioters were only 40 feet away and there is evidence some of the Proud Boys intended to kill Pence.
Stipulating that Pence did the right thing and showed courage on that day, the narrative set forth in the witness testimony that Pence was "steely and determined" from the beginning, telling Trump he didn't have the authority to do what they were asking, is belied by the fact that Pence never said a word in public to that effect and sought the guidance of both legal and political advisers about what he should do. The New York Times reported on January 5th that he was still trying to find some middle ground, even suggesting that while he couldn't overturn the election, he could make a statement supporting Trump's contention that the election was fraudulent. Like so many others in Trump's orbit, Pence could have taken action much earlier.
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The second hearing earlier this week made the case that Trump knew the election was legitimate and lied about it anyway. The upshot of the third hearing was that Trump and his lawyers knew their plot to overturn the election was illegal and unconstitutional and pushed it anyway. It was an act of sheer partisan power, perfectly illustrated by this comment:
Eastman and Trump thought they could bully their way through and get their way. And the testimony strongly suggests that they were well prepared for, perhaps even anticipating, violence as a result of their actions. But it's not clear at all that they anticipated their own supporters would storm the Capitol before the vote was even taken. They assumed there would be violence in the streets after Pence did their bidding.
Like so many others in Trump's orbit, Pence could have taken action much earlier.
Greg Jacob, a former advisor to Pence, relayed a conversation with Eastman in which the two discussed the possible reaction. Jacob said the whole gambit would be kicked out of court and Eastman claimed that the Supreme Court would invoke the "political question doctrine" and refuse to take the case. Jacob pointed out that that would lead to "an unprecedented constitutional jump ball situation with that stand off and as I expressed to him, that issue might well have to be decided in the streets."
Eric Hershmann, from the White House counsels office had a similar conversation with Eastman:
I said you're going to turn around and tell 78-plus million people in this country that your theory is --- this is how you're going to invalidate their votes, because you think the election was stolen? And I said they're not going to tolerate that. I said you're going to cause riots in the streets. And he said words to the effect of there has been violence in the history of our country, Eric, to protect the democracy or protect the republic.
It is pretty clear that Eastman knew there was a good chance for serious bloodshed if Pence overturned the election. And I think it's fair to say that Trump knew that too. In fact, he was probably welcoming it. It would give him the chance to do what he'd been wanting to do for ages: invoke the Insurrection Act.
Former acting Defense Secretary Chris Miller told Congress over a year ago that Trump had ordered him to have the National Guard ready to protect his supporters on January 6th. Chairman of the Joint Chiefs of Staff General Mark Milley and Defense Secretary Mark Esper both said Trump had to be talked out of using the Insurrection Act to put down the George Floyd protests and former Homeland Security official Miles Taylor tweeted that Trump "mused about invoking the Insurrection Act YEARS before Jan 6 — calling it a 'magic power' — in convos I witnessed & was briefed on."
Taylor thinks Trump purposefully incited the mob of January 6th for that purpose but Thursday's testimony is far more suggestive of a plan to invoke the act after Pence overturned the election, inciting expected street protests from the people whose votes had just been discarded and whose democracy had just been incinerated. This would have given Trump the excuse he needed to solidify his coup with a classic military intervention.
Trump and his henchmen may very well have known their actions would incite an insurrection. They just planned for a different one than they got. When the mob stormed the Capitol, Trump was left with the choice to call out the National Guard on his own supporters or let them try to overturn the election by force. We all know which path he chose to take.