By Indicted former Trump attorney John Eastman raised a few eyebrows Wednesday for the answer — or rather non-answer — he gave during his testimony in legal proceedings in California, where he is fighting potential disbarment.
Asked whether former president Donald Trump’s legal team had any discussions about Sen. Charles E. Grassley (R-Iowa) presiding over the certification of the 2020 election on Jan. 6, 2021, rather than Vice President Mike Pence, Eastman declined to answer, citing attorney-client privilege with Trump.
The moment drew renewed attention to one of the bigger unanswered questions about Jan. 6: How extensive was the effort to get Pence to step aside?
It’s a question that has often led to conspiratorial accusations from Trump’s critics. They have focused on wayward comments Grassley made on Jan. 5, 2021 — and an incorrect initial media report on those comments — to suggest that Grassley was in on a plot to sideline Pence, who had been resisting Trump’s entreaties to help overturn the election the following day.
There’s no real evidence of Grassley’s involvement. But that doesn’t preclude the possibility that some people in Trump’s orbit were angling for that outcome, as evidence suggests they did.
Here’s what we know.
Grassley set off a momentary controversy on Jan. 5 by saying: “If the vice president isn’t there — and we don’t expect him to be there — I will be presiding over the Senate.” Roll Call initially cast this as Grassley saying he personally expected to preside over the certification of electoral votes. (In the absence of the vice president, that duty falls to the Senate president pro tempore, which was Grassley.)
But Grassley’s actual comments appeared to refer to a separate session of the Senate rather than the crucial joint session of Congress, something his office clarified then and Grassley himself reiterated Thursday. His office said he would fill in for Pence in the Senate only if Pence stepped out for a period of time.
(Grassley on Jan. 6 would indeed wind up briefly presiding over the Senate, after Pence was evacuated amid the growing unrest at the Capitol. But Grassley, too, was soon removed from the chamber.)
Grassley and his office have repeatedly denied that anybody approached him about presiding over the joint session so he could decline to certify the results on Jan. 6.
But other evidence makes clear that some Trump allies entertained the idea of Pence stepping aside — and that even Pence at one point at least discussed the possibility.
In a memo of Dec. 13, 2020, Trump lawyer Kenneth Chesebro — who has been indicted alongside Eastman and 17 others, including Trump, in Georgia — floated a detailed scenario in which Pence would recuse himself and Grassley or someone else would take over.
Eastman, in an email of Dec. 23, 2020, to Chesebro and others, referred to not wanting to “constrain Pence (or Grassley) in the exercise of power they have under the 12th Amendment.”
Eastman was asked about this email Wednesday before he invoked attorney-client privilege.
Other details regarding Grassley that emerged in the House Jan. 6 committee’s investigation into the Jan. 6 attack on the Capitol are less well publicized.
While Grassley has denied any outreach about whether he would preside on Jan. 6, an email obtained by the committee shows that one of his staff members asked Pence’s office on Dec. 23, 2020, about such a scenario.
“ … Is there any reason to believe that your boss will not preside over the electoral college vote count,” Grassley aide James Rice wrote, as recounted in Jan. 6 committee transcripts, “leaving my boss in the spot as [president pro tem]?”
Pence aide Paul Teller responded that “it’s not a zero percent chance of that happening.”
A pair of Pence aides, Marc Short and Chris Hodgson, both testified to the committee that they couldn’t recall any discussion of such a scenario within Pence’s office. Short testified that Grassley’s Jan. 5 comments “shocked us” and that they “didn’t know where that came from.”
“Is there something that we need to know?” he recalled asking a colleague.
But Pence’s legal counsel, Greg Jacob, said Pence had spoken to him about the possibility of recusal. He recalled conversations with Pence from early December 2020 in which Pence talked about whether Pence would have a conflict of interest.
“I recall him telling me that he had sat in as, like, a per diem judge in a few things [earlier in his career], and that there was no way that you would ever allow a judge, who had an interest in the outcome of the election, as he obviously did as vice president, to sit in the chair there,” Jacob testified. “And so he asked: Has any vice president ever recused from the role of doing this on the grounds that they are interested in the outcome of the election?”
Jacob said Pence’s staff reported back that Vice President Hubert Humphrey had sat out such proceedings in 1969, leaving the job to the president pro tem. But Jacob said Pence didn’t want to follow Humphrey’s example — that “the vice president determined that this is his responsibility, to fulfill this task.”
By the time Grassley made his comments Jan. 5, Jacob said there was no doubt as to Pence’s plans to preside.
Jacob also downplayed Teller’s having said Dec. 23 that there was “not a zero percent chance” that Pence would decline to preside. Jacob said it didn’t “reflect a conversation … that Paul had with the vice president or with me.”
It’s a limited paper trail, and the Jan. 6 committee didn’t dwell on it in its final report last year. The report mentioned Grassley only four times, including referring to Eastman’s email.
But it’s clear that, at the very least, someone on Trump’s team saw the substitution of Grassley for Pence as a possibility to be planned for — and even desired. The real question regarding Trump’s alleged criminal conspiracies to overturn the election would seem to be what steps his team might have taken to turn it into reality, particularly to the extent it viewed Grassley as being potentially more amenable.
Grassley, it bears emphasizing, was not a leading election-denier and had labeled Joe Biden the president-elect after the electoral college voted Dec. 14. After the Jan. 6 insurrection, he praised Pence for refusing to “kowtow” to Trump’s demands.
Trump’s social-media attack on Pence during the riot could certainly have had the effect of helping remove him from the equation. Pence refused to get into a Secret Service vehicle during the riot, fearing he would be whisked away from the Capitol and not allowed to resume his duties.
“He knew exactly what this inside coup they had planned for was going to do,” Jan. 6 committee member Jamie Raskin (D-Md.) alleged last year, adding: “It was a coup directed by the president against the vice president and against the Congress.”
But the suggestion that this was a concerted effort to get rid of Pence remains unsubstantiated. And Eastman isn’t the only one not talking about the matter; neither has Chesebro.
Asked by the Jan. 6 committee last year whether he had discussed with others on Trump’s legal team the possibility of Pence’s recusing himself, Chesebro demurred by invoking not only attorney-client privilege, but also his Fifth Amendment right not to incriminate himself.