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Brian Lehrer: Brian Lehrer on WNYC. If you didn't listen to the January 6th committee hearing yesterday, we've got a few choice clips from it and we'll try to add yesterday's pieces to the larger storyline that the evidence is creating. I'll start here to frame how that big picture looks to me and that is the January 6th was even worse than you probably thought. Why? Well, almost everyone close to then-President Trump told him his stolen election claims and plan to block certification on January 6 were whack.

Bill Barr, Jared, and Ivanka, his White House Counsel Pat Cipollone, his campaign manager Bill Stepien, his Vice President Mike Pence, as we heard a lot about yesterday, and on and on. Trump's side also lost 60 cases in court, 60, between Election Day and January 6th, cases that were designed to stop various states from submitting their electors. Trump went lawyer shopping until he could find a couple who would push this crazy stuff on his behalf. Anyway, he found Rudy Giuliani and he found John Eastman, whose actions were a main focus yesterday.

How does this relate to the violent break in at the Capitol? The fact that Mike Pence and members of Congress were in physical jeopardy as the rioters tried to obstruct the peaceful transfer of power for the first time in our nation's history, while Trump of course summoned his supporters to protest in Washington on January 6th tweeting, "It Will Be Wild. We knew that." What we learned yesterday, included at least two references to Attorney John Eastman on behalf of Trump, suggesting that violence was an acceptable tool in this quest.

Eastman also acknowledged at one point in writing to Mike Pence as Chief Counsel, that overturning the election would be illegal, would violate The Electoral Count Act, but Eastman was urging that Pence do it anyway. Here's a clip from yesterday of White House Counsel Eric Herschmann, one of the many Trump advisors not to back the scheme, testifying about an exchange with lawyer John Eastman.

Eric Herschmann: I said, "You're going to cause riots in the streets." He said words to the effect of, "There's been violence in the history of our country to protect the democracy or protect the Republic."

Brian Lehrer: There's been violence from time to time, so what? That was one time when we heard about Eastman as he represented Trump being okay with violence. Here's another. This is Pence's Chief Counsel Greg Jacob in his live testimony, describing an exchange with Eastman about respecting the decisions of the courts in these cases. You'll hear him talk about how it might be solved in the streets, if not. This is about a minute and a half.

Greg Jacob: He would have had just an unprecedented constitutional jump ball situation with that standoff. As I expressed to him, that issue might well then have to be decided in the streets. Because if we can't work it out politically, we've already seen how charged up people are about this election. It would be a disastrous situation to be in. I said, "I think the courts will intervene. I do not see a commitment in the constitution of the question whether the Vice President has that authority to some other actor to resolve."

There's arguments about whether Congress and the Vice President jointly have a constitutional commitment to generally decide electoral vote issues. I don't think that they have any authority to object or reject them. I don't see it in the 12th Amendment, but nonetheless. I concluded by saying, "John, in light of everything that we've discussed, can't we just both agree that this is a terrible idea?" He couldn't quite bring himself to say yes to that, but he very clearly said, "Well, yes, I see we're not going to be able to persuade you to do this."

Brian Lehrer: "We're not going to be able to persuade you," meeting Vice President Pence to do this and shrugged off the idea that this would be resolved in the street. I come back to my premise. We're learning from these hearings that January 6th was even worse than you probably thought. We'll play more excerpts as we go. I'm delighted to have back with us, Ilya Marritz, co-host of the podcasts, Trump, Inc. and Will Be Wild. He also reports on Trump Legal Affairs for NPR. For the record, he also started life after college as a Brian Lehrer Show producer way back when before he became a rock star. Hi, Ilya. Welcome back to the show.

Ilya Marritz: Brian, it's great to be with you.

Brian Lehrer: Before the break when I was teasing this segment, I said there were blockbuster moments. I got that from reading a tweet that you put out just a little while ago in advance of your appearance. There really were blockbuster moments, weren't there?

Ilya Marritz: Yes. It's funny, we knew a little bit of the outlines of this story from press accounts and also from matters that have come up in the court for the past few years. This is the first time that we had somebody very close to Vice President Pence, his counsel Greg Jacob, narrating just what exactly it was like to work in the Office of the Vice President in the months of December 2020 and January 2021. Let me tell you, Vice President Pence was on the receiving end of just a very intense pressure campaign to get him to override his own better judgment about the law and about his powers as Vice President and intervene to swing the election to Donald Trump.

By extension to himself, he'd be giving himself a second term as Vice President but losing his self-respect and losing his moral compass along the way. There was so much detail added to this. I'm glad, Brian, that you played some of those clips at the top to do with violence. It was the first time that we heard a view, that we got gained an understanding of how people in Trump world saw the potential for civil disorder and what it might do if added to this extremely combustible mix.

Brian Lehrer: There's a lot of speculation now about whether Eastman and Trump himself could be criminally charged in connection with the riot, not just intend to violate The Electoral Count Act, but because of their knowledge at very least of the possibility of violence from what they were encouraging. I saw the NBC legal commentator, Chuck Rosenberg, no friend of Donald Trump, saying they haven't quite made a case yet at the level of proof for a criminal trial, that Trump had the intent to incite the violence rather than just draw a rowdy crowd. His "Will Be Wild" tweet doesn't say break in, doesn't say hurt anybody while there's a more general word, but while he pressured Pence and Congress politically not to certify the election. Do you see anything more than that or think the committee will show us even more dots to connect in that respect?

Ilya Marritz: Well, it's interesting. There are three principal characters in yesterday's hearing, two of whom are very familiar: Mike Pence and Donald Trump, and one who was not so familiar, and that's John Eastman, this lawyer who was a late appearance in Trump world. One of the consistent things that we saw while we were making Trump, Inc. during the Trump administration was that people could just waltz into Trump Tower and become a fixture of his world. It seems to have happened when Trump was in the White House as well. This lawyer, John Eastman-- [crosstalk]

Brian Lehrer: They said things that he wanted to hear, right?

Ilya Marritz: That was the ticket. That's right, Brian. The way to get into his world is to say things that he wanted to hear, and that's what John Eastman was ready to do. On the point that Chuck Rosenberg was making, Chuck Rosenberg is a well-qualified lawyer, I am not. I do think that at this hearing, Donald Trump was not the principal character. The principal character really was John Eastman and the extraordinary pressure campaign that he waged on behalf of Donald Trump.

One of the things that I think that they raised that was harmful to Trump or that would really cause you to question his motives that I didn't know before this hearing is that President Trump's prepared remarks for when he was going to appear at the "Stop the Steal" rally at the Ellipse made no mention of Mike Pence. When he talked at that rally about Mike Pence as he did repeatedly saying, "I hope Mike Pence is going to have courage. We hope he's going to do the right thing," that was ad-libbed. I do think that that is significant, that whoever vetted his speech probably did not want a mention of Mike Pence in there, but Donald Trump did want the crowd to be thinking about Mike Pence, a very amped-up crowd.

Brian Lehrer: I'm glad you brought that up, because to my eye, maybe the most damning bit of evidence yesterday regarding Trump himself along those lines, was one of Trump's tweets on January 6th, which, of course, was public at the time posted on Twitter after 2:00 PM. The breaking is happening, the crowd feels the way they do about Mike Pence, thanks to Trump, and Trump tweets this, I'm reading the tweet, "Mike Pence didn't have the courage to do what should have been done to protect our country and our Constitution, giving states a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth." That's the tweet. One witness described that as pouring gasoline on the fire because the crowd was already intense. They were hooked into Trump's Twitter feed, many of them, and an even fiercer surge began just after that. Now, as you say, you're not a lawyer but I wonder if that's criminal knowing the context of it.

Ilya Marritz: It's certainly very interesting. I mean, we also heard witness testimony that people had been getting urgent messages to Mark Meadows, the president's chief of staff, before the tweet, letting Meadows know that the violence was getting out of hand, on the idea that Meadows is with the president or near the President at all time, and therefore should be informing him that the Capitol is being overrun. I do think it says something that a president who-- let us posit that the President knew at the time that the Capitol was being overrun by a violent mob and he still went ahead and sent that tweet. That's really saying something.

The committee also surfaced a photo that made such an interesting contrast of Mike Pence in his secure location reading that tweet on what looked like a Blackberry. The Vice President just looks very still, very calm, it's hard to read his expression, he's in profile. When you think about the fact that the Vice President was inside the Capitol that whole time for hours and hours, just 40 feet away from the rioters at the closest point, basically locked away, digesting all of the incoming, including this hostile tweet from his own president, his own running mate.

Brian Lehrer: Ilya Marritz with us from the podcasts Trump, Inc. and Will Be Wild, Will Be Wild, specifically about January 6th, and following Trump legal issues for NPR. Here's another moment from yesterday that demonstrates just how unconcerned about the law or about democracy Trump was. In this clip, it's a member of the committee, congressman Pete Aguilar, describing an exchange between the President, I think, on the morning of January 6th itself, and the Vice President, in which the President kept trying to convince Pence to reject the electoral vote. This was originally reported as the congressman said in the book by Robert Costa and Bob Woodward.

Pete Aguilar: In the book Peril, journalist Bob Woodward and Robert Costa write that the President says, "If these people say you have the power, wouldn't you want to?" The vice president says, "I wouldn't want any one person to have that authority." The President responds, "But wouldn't it almost be cool to have that power?"

Brian Lehrer: Wouldn't it almost be cool, Ilya, to do this illegal undemocratic thing so we can stay in power? I mean, I'm just going to say it, that's how much of an autocratic sociopath Trump reveals himself to be in that reporting. Pence says, "No one person should have the power to reject the certified votes of the 50 states," and Trump says, "Yes, but wouldn't it be cool? Let's do it." Did that make even your eyes pop out a little bit like it did mind even with everything we know about Trump's disregard for anything that's not in his interest?

Ilya Marritz: It's so interesting. We spent many, many months putting together this podcast, Will Be Wild. We tried to get a view of January 6th from all angles. I think we largely succeeded but the one place that was mostly closed to us was the White House itself. We are starting to get a spectacularly detailed view of what was going on in and around the President. Yes, so my eyes did bug out when I heard that and what I thought is, this is classic bullying.

I mean, all you have to do is have attended school as a child and you'll know that behavior pattern. There was some kid in your class who maybe said something like that to you at some point. I don't know whether it was the same day or the same hour, but there was another video montage that the committee put together of a call between Pence and Trump on the morning of the 6ht and it's so interesting. Pence is in a meeting with his advisers, he steps out of the meeting, and takes the call in private so there was nobody privy to it on Pence's end.

On Trump's end, he has his three eldest children, spouses, and girlfriends, a variety of White House advisors, I don't know if he's doing this on speakerphone, but there seem to be about a dozen witnesses. According to those witnesses, Trump calls him a wimp and he calls him what they describe as the P-word. Again, just classic bullying. Bullying isn't a crime but it's not very dignified conduct.

I think it eliminates the mindset. At the beginning, after Trump lost the election, there were many, many potential paths, I think, in the mind of Trump and his advisers to get there. By the time we get to January 6th, really all their hopes were riding on changing the mind of the Vice President about his own power to overturn the election. The attempts got more and more brazen and high pressure to convince him to do that.

Brian Lehrer: Listeners, were mostly going through these excerpts from yesterday and getting Ilya Marritz take. We may have time for some phone calls, questions, or brief comments at 212-433-WNYC. I see some of you are calling in. We'll try to get to a few of you, [unintelligible 00:16:29] not a lot of time. 212-433-9692, or tweet, which might give you a better chance, @BrianLehrer and I'll read some if they are salient. To another clip, Greg Jacob, the lawyer for Mike Pence describing a moment really for the history books, or maybe for the movie version of January 6th, when somebody makes that, when the Secret Service gathers Pence and his entourage to evacuate them to safety from the Capitol, but Pence refuses to go.

Greg Jacob: When we got down to the secure location, Secret Service directed us to get into the cars, which I did. Then I noticed that the Vice President had not, so I got out of the car that I had gotten into and I understood that the Vice President had refused to get into the car, that the head of his Secret Service detail, Tim had said, "I assure you we're not going to drive out of the building without your permission." The Vice President had said something to the effect of, "Tim, I know you, I trust you, but you're not the one behind the wheel."

Brian Lehrer: "Tim, I trust you but you're not the one behind the wheel." Ilya, did that mean Pence thought the Secret Service might kidnap him on behalf of Trump to prevent him from being on the Senate floor to certify the election once the riot was quelled?

Ilya Marritz: This is one area where I wish the questioners Congressman Aguilar and others had done a few more follow-ups because it's a little bit ambiguous.

Brian Lehrer: Did we just lose Ilya's line? [beep] All right. Did we lose Ilya's line? Yes, okay. We'll get Ilya back. I'll play another clip in the meantime, because there was one more attempt by Trump Attorney John Eastman and a note to Pence's lawyer, Greg Jacob, trying to get Pence to overturn the election even as the riot was going on. Here is Pence's Attorney Greg Jacob from yesterday's testimony again.

Greg Jacob: Later that evening, Mr. Eastman emailed me to point out that in his view, the Vice President's speech to the nation violated The Electoral Count Act, that The Electoral Count Act had been violated because the debate on Arizona had not been completed in two hours. Of course, it couldn't be since there was an intervening riot of several hours.

The speeches that the majority and minority leaders had been allowed to make also violated The Electoral Count Act because they hadn't been counted against the debate time. Then he implored me, "Now that we have established that The Electoral Count Act isn't so sacrosanct as you have made it out to be, I implore you one last time, can the Vice President, please do what we've been asking him to do these last two days: suspend the joint session, send it back to the States?"

Brian Lehrer: Wow. I slightly misspoke before the clip. I said that was even as the riot was going on, Eastman was trying to convince Pence's lawyer to get Pence to do that. It was really when the riot was over and Pence was back on the Senate floor, getting ready to certify the election. Even the fact that the riot had happened and everything connected with the riot had happened and Pence was in danger and members of Congress were in danger, even after that, they were still trying to convince Pence not to certify the election. It's also a bombshell that one because it's Eastman stating in writing, in writing, that blocking the transfer of power, would've violated The Electoral Count Act, "but let's do it anyway."

Boom. Then we learned after that, that Eastman asked Rudy Giuliani to put Eastman on the pardons list for pardons that Trump might hand out just before he left office. There was speculation yesterday that maybe that's why. A few minutes left with Ilya Marritz from NPR and the Trump, Inc. and Will Be Wild podcasts as we play some bomb shell blockbuster, use any adjective you want there, all of those things. Excerpts from yesterday's January 6th, committee hearing. Ilya, let's take a phone call. Here's Luke in Brooklyn. Luke, you're on WNYC. Hello.

Luke: Hi. Thanks, first of all, for your recording. I guess I don't understand exactly what Mike Pence's role was supposed to be in this scenario. I don't understand rational or not, what the request was that the former president wanted him to do.

Ilya Marritz: Yes. That's a really good question. Per the constitution, the vice president presides over the counting of the electoral vote as reported and certified by the states. Weeks earlier, the states certify their vote. Then early in the new year, there's a joint session of Congress with the vice president presiding over the counting of the vote. I think that's really the moment when it becomes official who the next president and vice president will be.

If your memory goes back long enough to the year 2000 or 2001 I should say, this got cited a few times in the hearing Al Gore presided over a joint session where he very crushingly for himself had to say that George W. Bush had won the presidency. That's the way that it's always been done. The difference here is the Eastman interpretation or one of the interpretations that he was offering was of the vice president, not so much as a symbolic presiding officer, but as an executive with the authority to either throw out state votes that he considered to be fraudulent or not trustworthy or the authority to send the whole matter back to the states.

Option one is say some of these votes aren't legit, I'm just declaring Donald Trump the winner of the presidency. That's one thing that John Eastman, the lawyer, thought that Pence perhaps could do. Option two, which I guess is a little bit of the more go-slow approach is send it back to the states. As many of the Le legal scholars pointed out, one, this is just a totally novel interpretation. The law has never been interpreted this way.

No vice president has ever asserted the authorities that they were asking Mike Pence to assert here. Also, were Mike Pence to send this back to the states in the febrile chaotic state that our country was in, can you even imagine what that might have looked like? Really, what they were asking him to do was to knock the credibility of an election that by all accounts was very well run and decisively won by Joe Biden.

Brian Lehrer: That's why Pence attorney Greg Jacobs said in that other clip that it would wind up getting decided in the streets. There would just be so much ferment may be on all sides that violence would break out. To the caller's question, from what we know, I don't even think there was a scenario if they did send it back to the states for Trump to win the election. This may turn out differently if it were to happen like this, God forbid, in 2024 with some of the new state election officials who have been put in place in Republican states, but there in 2020, the legislature of Pennsylvania was not going to do this.

The legislature of Georgia or the governor, or the secretary of state was not going to do this. They needed to flip at least three states. They were focusing on Michigan for a while. The Michigan Republican legislature made it clear they were not going to do this. Why did they even think that Trump was pushing it so hard right up through the riot to get this thing to happen that probably wouldn't have even mattered?

Ilya Marritz: That's my understanding as well, Brian. We also know from reporting that's out there that John Eastman had been pushing a plan earlier for alternate slates of electors, but again, those were in states that were not going to change their mind about-- They were unlikely to change their mind about who the electors were or to swap the legit electors for some alternative just waiting in the wings. I think that's why you heard Greg Jacob and others worried about violence in the streets because, in fact, this remedy, which was legally completely dubious, was itself probably a dead end. If you were going to get anywhere, it would have to be some kind of civil unrest.

Brian Lehrer: Listener asks on Twitter, "If you haven't covered this already, why isn't Pence testifying?"

Ilya Marritz: It's so interesting. Andrea Bernstein, my co-reporter, co-host, on Will Be Wild, and I were debating this yesterday. I was saying Mike Pence showed an incredible physical courage staying in the building in that scene that you described earlier, Brian. She was a little more skeptical. I think she had reason to be skeptical because Mike Pence has said so little publicly about all of this. He has given a couple of speeches and he did say in one speech that Donald Trump's interpretation of the law and of the vice president's role here is wrong.

He has spoken clearly about this, but the fact that he didn't feel an obligation to speak clearly sooner, publicly in a way that all Americans could see, so that people could understand the gravity of the crisis, I think that is really, really interesting. It's actually a question that hangs over many of the witnesses live and videotaped that we have seen in the hearing so far. These are people who believed that the effort to overturn the election was wrong. They saw this as pretty clear-cut. They saw it as pretty clear cut that Donald Trump lost the election, and yet they didn't make any noise about that at the time. Many of them even in the months after, didn't say anything until they were under oath before the committee.

Brian Lehrer: Why do you think that is? We could say that about Bill Barr, too. He's so direct in calling Trump's claims of the stolen election BS using the whole word that's been played many times. He did that multiple times and now all this Pence stuff. Why didn't Pence say anything publicly until January 6th about there being no basis for what Trump wanted him to do? Maybe he could have helped prevent January 6th, rather than have to resist it in progress if he hadn't kept silent for two months while Trump whipped up his crowds.

Ilya Marritz: You'd have to ask Mike Pence and he's not going to testify. It's really striking though the description that we got from Greg Jacob, and also his chief of staff Marc Short, and some others yesterday of this month-long campaign to get Pence to change his mind. Again and again, Pence and his advisors say that they've made up their mind, but they don't hang up the phone. When the phone rings, they answer the phone and they stay on the phone for an hour, two hours, three hours, and hear out Eastman's side or hear out the president's side again and again and again, and maybe it's some kind of sense of decorum, but if that is a sense of decorum and propriety, it's one that President Trump himself didn't seem to see.

Brian Lehrer: Even beyond just propriety and decorum, being polite, William Barr wrote his resignation letter to Trump while he's making this judgment, that Trump is going off into an area that Barr described in his testimony as detached from reality and with a theory that's BS, but he thanked Trump in his resignation letter for all the wonderful things that he did as president and said the justice department would continue to investigate election claims. Really, really held his fire and made the public even thinks that, "Well, maybe there's a there there according to William Barr."

Ilya Marritz: Bill Barr brought out a book a couple of months ago. I haven't read it yet, but I didn't see it in any of the interview clips or headlines that I saw rebuke anything as strong as what he delivered before the committee. What it tells me is that [chuckles] taking an oath and speaking before a congressional committee can be a very powerful truth serum.

Brian Lehrer: Constitutional truth serum. Let's end today like this. We know Pence is a very religious person. His political identity before this has been essential as an evangelical conservative. His lawyer, Greg Jacob, who was really the star witness yesterday, Greg Jacob was the star of the show, we learned yesterday that he was religious too. Jacob testified to thumbing through his Bible on January 6th and keying on this particular verse.

Greg Jacob: My faith really sustained me through it. I down in the secure location pulled out my Bible, read through it, and I just took great comfort. Daniel 6 was where I went. In Daniel 6, Daniel has become the second in command of Babylon, a pagan nation, but he completely faithfully serves. He refuses an order from the king that he cannot follow, and he does his duty inconsistent with his oath to God. I felt that that's what had played out that day.

Brian Lehrer: We will let that be the last word. Ilya Maritz, co-host of the podcast, Trump, Inc and Will Be Wild. He also reports on Trump's legal affairs for NPR. Thanks, Ilya.

Ilya Marritz: Great to talk to you, Brian. Thank you.

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