JANUARY 20, 2022
To get a sense for what the Jan. 6 committee is looking into, you have to look pretty closely.
It has revealed some evidence, but generally piecemeal, and generally in the course of public letters requesting interviews on specific topics. Last week, the committee signaled it might be looking into whether Donald Trump tampered with House Minority Leader Kevin McCarthy’s (R-Calif.) potential testimony. Likewise, committee member Rep. Liz Cheney (R-Wyo.) about a month ago began obliquely but suggestively citing a specific crime Trump might have committed that day.
On Thursday came another nugget that’s worth highlighting, from the committee’s letter requesting an interview with Ivanka Trump.
On the second page, the committee states that it “has information suggesting that President Trump’s White House Counsel may have concluded that the actions President Trump directed Vice President Pence to take would violate the Constitution or would otherwise be illegal.”
As with any of these nuggets, the lack of evidence presented renders it extremely difficult to evaluate just what this is based upon. The above section does carry a footnote, but the footnote merely cites “Documents on file with the Select Committee.”
But the committee has broached this topic before. In a letter earlier this month requesting an interview with Fox News host Sean Hannity, it cited Hannity’s texts to Chief of Staff Mark Meadows warning of departures from the White House Counsel’s Office if Trump followed through.
“We can’t lose the entire WH counsels office,” Hannity said Dec. 31. He added on Jan. 5: “WH counsel will leave.”
The committee wrote to Hannity: “Among many other things, this text suggests that you had knowledge of concerns by President Trump’s White House Counsel’s Office regarding the legality of the former President’s plans for January 6th.”
It seems possible that the committee is basing what it says in the Ivanka Trump letter on those Hannity texts — that Hannity’s warnings of departures from the White House Counsel’s Office meant the lawyers there might have concluded that Trump’s actions would be illegal. But it’s also possible to threaten to resign for conduct that comes up far short of being illegal (such as if you think a proposed course of action would undermine democracy).
The committee’s interest in this area is particularly notable given the specific crime Cheney alluded to: “corruptly” obstructing or trying to obstruct an “official proceeding.” Proving corrupt intent is obviously a big part of that. And at least one Justice Department lawyer has suggested pushing Pence to do something one has been informed is unconstitutional might clear that bar.
As Politico’s Josh Gerstein reported back in November, a DOJ lawyer handling a key Jan. 6 case was asked to address just such a scenario — albeit without Trump having been mentioned:
An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.
“I don’t see how that gets you that,” Pearce told the judge.
However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.
“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.
Gerstein flagged this at the time as bearing on any potential for criminal charges Trump might one day face. Within a couple weeks, Cheney began citing the specific crime involved. Now the committee has said twice this month that it’s interested in whether Trump was indeed informed that what he was asking Pence to do was illegal — even as the Supreme Court on Wednesday cleared the way for Trump White House documents to be shared to the Jan. 6 committee.
It could be entirely speculative based upon only Hannity’s texts, and perhaps the threatened resignations didn’t result from determining the plan was illegal. It would also be relevant whether Trump was informed of what White House counsel had determined. But it at least suggests this is a key part of what the committee is pursuing, and it’s certainly worth watching.
Courtesy/Source: Washington Post
