On Thursday, the House special committee again met. An hour earlier, Representative Bennie Thompson announced that the committee would invite Ginni Thomas, wife of US supreme court justice Clarence Thomas, to testify. A day before, a federal court rejected Steve Bannon’s attempt to dismiss contempt of Congress charges.
“The court cannot conclude that the committee was invalidly constituted such that the indictment should be dismissed,” Judge Carl Nichols, a Trump appointee, announced. If convicted at an upcoming trial, Bannon, a former Trump senior adviser, faces up to two years in prison.
The third committee session offered no fireworks. Rather, over the course of nearly three hours, the public repeatedly heard in the driest terms that Mike Pence lacked the authority to overturn the outcome of the 2020 election.
J Michael Luttig, a retired appellate judge appointed to the federal bench by George HW Bush, Greg Jacob, the vice president’s counsel, and Eric Herschmann, a Trump White House lawyer, all made that reality abundantly clear.
The theory advanced by Donald Trump and concocted by John Eastman – a former clerk to Justice Thomas and Judge Luttig and a pen pal of Ginni Thomas – was a lie. It was stitched from whole cloth to sate the ambitions of the Oval Office’s desperate occupant and his minions.
To quote Pence’s counsel, “there was no way” that a sitting vice-president could unilaterally decide or alter the election’s outcome at a joint session of Congress. The witnesses stressed that to say otherwise would license Kamala Harris to do just that in early 2025 or have conferred upon Al Gore the power to commit constitutional “mischief” back in January 2001.
Eastman’s name and theories received repeated mention throughout the hearing. In August 2020, Eastman wrote an op-ed challenging Kamala Harris’s US citizenship and her eligibility to run for vice-president. For the record, Harris was born in Oakland, California, which is very much part of the United States.
The Eastman-Ginni Thomas alliance hovered over the hearing but received no mention before the cameras. Starting Monday night, a stream of stories emerged of communications between Ms Thomas and Eastman. Further, the New York Times reported that Eastman conveyed to Kenneth Chesebro, a pro-Trump lawyer, the state of play within the high court.
“So the odds are not based on the legal merits but an assessment of the justices’ spines, and I understand that there is a heated fight underway,” Eastman wrote.
From the sound of things, Eastman became privy to pillow-talk between the justice and his wife.
It was only a few short weeks ago that the right exploded over the leak of a draft of a supreme court decision that stands to overturn Roe v Wade and undo constitutional protections for reproductive freedom. Now, only crickets.
“We think it’s time that we, at some point, invite [Ginni Thomas] to come talk to the committee,” Bennie Thompson, the committee chair, told Axios on Thursday. “It’s time for us to invite her to come talk,” he relayed to CNN.
Like Bannon, Eastman failed in his efforts to undercut the committee. In March, a federal court ruled that Eastman could not block the production of certain documents despite their possibly constituting “attorney-work product”. Instead, the crime-fraud exception attached, and the privilege did not apply.
“Based on the evidence, the court finds that it is more likely than not that President Trump and Dr Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6 2021,” the court opined.
During the Trump administration’s waning days, Eastman sought but failed to obtain a presidential pardon. Herschmann told Eastman to lawyer up. Fittingly, Eastman has invoked his right against self-incrimination before the committee 100 times.
Despite all this, the hearings have not swayed broad swaths of the public. In Nevada, election-deniers ran the table in Tuesday’s Republican primaries. Further east, in Michigan, indicted Ryan Kelley is in the hunt for the party’s gubernatorial nomination.
Instead, a recent poll shows half the country predicting that someday the US will “cease” to be a democracy. And 49% of respondents answered that they were not following the hearings.
Judge Luttig repeated that the 45th president and some of his followers were a “threat” to democracy – not simply for what happened on 6 January 2021, but on account of the 2024 presidential race and what may follow.
At the moment, Trump is considering whether to announce his candidacy before November’s midterms. Beyond that, plans for a Trump-driven steal reportedly appear to be in the works. If Mike Pence prayed the morning of 6 January, he was right to.
An attorney in New York, Lloyd Green is a regular contributor and served in the Department of Justice from 1990 to 1992
