The suggestion, of course, is that Eastman’s activities were criminal. And the release of that video, which largely featured Rep. Liz Cheney (R-Wyo.) previewing Thursday’s hearing as committee vice chair, had its desired effect: It built media anticipation for a new set of revelations.
But to really grasp the importance of this, focus on a different quote — one from Cheney. In the video, Cheney reminded us the committee has convincingly demonstrated that Trump was extensively informed he’d lost. Cheney then said Thursday’s hearing will focus on Trump’s relentless pressure on Pence to subvert the electoral count in Congress.
“President Trump had no factual basis for what he was doing, and he had been told it was illegal,” Cheney continued. Despite this, she added, Trump “plotted” with Eastman and others to overturn the election on Jan. 6, 2021.
A crucial hint there is that Trump had been told this was illegal. This suggests the committee might furnish new evidence that Trump had been warned that such pressure — which constituted an effort to push Pence into violating his official duty — could violate the law.
A source close to Cheney tells me the committee is very likely to present such evidence. When Cheney says such things, the source says, it’s “based on information the committee knows.”
Trump’s pressure on Pence to abuse his role as president of the Senate by delaying the election’s conclusion is the key that unlocks this whole scandal. Eastman concocted a bogus legal justification for Pence to secure this delay, which would allow states to revisit the voting, find it fraudulent and certify sham electors for Trump, overturning his loss.
But also critical is that Trump was told this would be illegal on Pence’s part. What’s more, Trump appears to have been told his pressure on Pence to do that might also be illegal.
What do we know about this part of the story? We know Pence’s counsel drafted a memo forcefully informing Trump that if Pence carried out his scheme, he’d be in violation of the Electoral Count Act of 1887, which governs how Congress counts presidential electors.
Which means Trump was told he was pressing Pence to violate his official duty and to break the law. Yet Trump kept doing so, including on Jan. 6, when he hammered Pence again in a phone call and then whipped up the mob to put still more pressure on Pence to carry out the dirty deed.
On whether Trump was told his act of bringing that pressure might also be illegal, recalling that the select committee has obtained relevant texts between Fox News’s Sean Hannity and Trump’s chief of staff Mark Meadows. In them, Hannity suggests he had inside knowledge of White House conversations about whether Trump’s pressure on Pence was legal.
Hannity even seemed to suggest the whole White House counsel’s office might quit over this. So does the committee have more evidence that Trump or his top advisers were informed pressing Pence violated the law?
Cheney sure seemed to hint as much. So what laws might be involved here?
A federal judge recently declared that Trump’s pressure on Pence might have violated two laws. One prohibits obstruction of an official proceeding (the count of electors). The other bars conspiracy to defraud the United States (Trump and Eastman may have conspired to disrupt that count).
If Trump had been told pressing Pence was illegal, it could buttress the case that Trump violated either of these statutes. It could constitute more evidence that Trump did one or both those things corruptly, says Randall Eliason, a white collar crime specialist.
“Conspiracy to defraud the US and conspiracy to obstruct a congressional proceeding require the government to prove corrupt or wrongful intent,” Eliason told me. “This is one more piece.”
In other words, if Trump were informed pressing Pence had put him on shaky legal ground, yet he continued doing so anyway, he could disarm the argument that Trump simply believed he’d won the election and that he was merely exercising his legal options in response.
Eliason cautioned that this would represent one piece of a broader effort to prove Trump’s corrupt intent throughout. Other pieces include strong evidence that Trump knew he’d lost yet tried to overturn the results anyway, and that Trump pressured the Justice Department to manufacture fake evidence of widespread voter fraud, to create a pretext for the whole scheme.
In this narrative, Eliason said, Trump pressing Pence would constitute “one of a number of incidents that tends to show his state of mind.”
We still don’t know if Trump or his co-conspirators will ever face a criminal investigation relating to Jan. 6. But Cheney just dropped a big hint about the case the committee will make against both Eastman and Trump. “Get a great effective criminal defense lawyer,” indeed.