Five Points On What We Want To Know About Two Pence Aides’ Grand Jury Testimony

UNITED STATES - January 6: Vice President Mike Pence makes his way to the House floor for a joint session of Congress to tally the electoral college votes for the president and vice president in the Capitol in Washin... UNITED STATES - January 6: Vice President Mike Pence makes his way to the House floor for a joint session of Congress to tally the electoral college votes for the president and vice president in the Capitol in Washington on Wednesday, Jan. 6, 2021. (Photo by Caroline Brehman/CQ-Roll Call, Inc via Getty Images) MORE LESS
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The subpoenas to aides of Vice President Mike Pence raise as many questions as they answer.

Former Pence chief of staff Marc Short and his counsel, Greg Jacob, appeared before a D.C. federal grand jury under subpoena recently. News of those appearances surfaced yesterday, prompting speculation about what they might have said, and where the grand jury is headed.

The appearances raise as many questions as they answer.

Below are five points on what we know — and want to know — about what this means for the investigation.

The two men were a key pressure point in the fake elector scheme.

The DOJ has taken overt steps in recent weeks to investigate the fake elector scheme — a plan organized by the Trump campaign to enlist an alternate slate of pro-Trump “electors” in states that Biden won.

The idea, drafted by John Eastman and attorney Kenneth Chesebro, held that the states had the power to recertify which electors could be sent to Washington on Jan. 6. In the Trump campaign’s imagination, a state like Georgia might somehow rescind its certification of Biden, and then designate the fake, pro-Trump electors as the “real” ones, thereby assuring Trump a second term.

Given that not one of the swing states that went to Biden buckled under pressure from Trump, and as Jan. 6 approached, Trump and attorneys around him turned their attention to Pence: could he, on Jan. 6, refuse to count the Biden votes from certain swing states as valid, allowing the alternate electors an opening?

Such a move by Pence, in the fantasies of Trumpworld, would have kicked the election to Congress, or could have given state legislatures more time to claim that the election was invalid.

None of that happened, in part because Marc Short and Greg Jacob pushed back against the idea.

Both have testified to the J6 Committee.

Both Short and Jacob have testified to the Jan. 6 Committee.

Jacob testified publicly, describing his interactions with Trump attorney John Eastman, who was pushing for Vice President Pence to unilaterally declare that Biden electoral votes were invalid.

The pressure on Pence boiled down to a meeting on Jan. 4, which, the Wall Street Journal reported, was a focus of questioning from prosecutors.

Jacob testified about some of this to the Committee.

“During that meeting on the Fourth, I think I raised the problem that both of Mr. Eastman’s proposals would violate several provisions of the Electoral Count Act,” Short testified. “Mr. Eastman acknowledged that that was the case, that even what he viewed as the more politically palatable option would violate several provisions.”

Jacob and Short pushed back against Eastman in the run-up to Jan. 6. Jacob also recalled at the hearing telling Eastman that if Pence were to throw out valid electoral votes, they would lose in a full sweep at the Supreme Court.

“Well, I think maybe he would lose only 7 to 2,” Eastman replied, per Jacob. Eastman purportedly later recognized that they would lose “9-nothing.”

…but we don’t know how far the DOJ is going.

The past several weeks have seen a debate over whether the DOJ has been sufficiently aggressive in its pursuit of the Jan. 6 investigation, with some former prosecutors — including Mueller prosecutor Andrew Weissmann — suggesting that the DOJ has taken a narrow focus on crimes which occurred on Jan. 6 itself to the exclusion of the broader conspiracy to subvert the election.

The grand jury subpoenas to Jacob and Short — which reportedly were issued in recent weeks — suggest that the investigation has broadened beyond what Weissmann feared. But it’s far from clear by how much.

Jacob and Short can speak directly to the pressure campaign on Pence — in part a result of the fake elector scheme, which, grand jury subpoenas show, federal prosecutors are investigating.

But it’s not clear from reports about prosecutors’ questioning whether this goes to other, broader subversion efforts around the election, including discussions of having the military seize ballots and voting machines, into Pence’s physical safety on Jan. 6, or into other activities at the White House that Jacobs and Short may have witnessed.

Were their subpoenas prompted by Committee testimony?

Much of the debate around the DOJ’s approach comes with the Jan. 6 Committee hearings in the background.

Two reports in the New York Times suggested that the hearings’ findings caught federal prosecutors investigating January 6 by surprise, with Cassidy Hutchinson’s testimony in particular reportedly shocking some members of the group.

Hutchinson’s testimony and the aggregate information released in the hearings also changed the minds of some legal scholars and former DOJ officials who had believed that Trump had not crossed the line into illegality on Jan. 6 itself. That testimony persuaded some that Trump now met the standard for incitement or, potentially, obstruction of Congress.

But it’s not clear that the Jan. 6 Committee hearings are what prompted the subpoenas.

There are some indications which suggest that the DOJ’s investigation into the broader conspiracy has been ongoing for months — recent subpoenas to the false electors, for example, came months after Deputy Attorney General Lisa Monaco said in January that the DOJ was investigating the scheme.

It’s all about the timing.

The exact dates of when the subpoenas were issued remain unclear.

That itself could answer a lot of the above questions. The first Jan. 6 hearing took place on June 9.

By nature, these DOJ investigations take place outside of public view. So it would not be unusual for there to be far more going on than leaks and public statements would clue us into.

But that one point — when these were issued — could clear up at least part of the above debate.

It could also shed light on the more substantial question: Is the DOJ examining any elements of the election subversion scheme beyond the false electors and the actions of Jeffrey Clark at DOJ? It’s critical to know.

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