• Sat. Oct 29th, 2022

It was a simple test of loyalty: Trump or the U.S. Constitution.

Jan 20, 2021

Beginning on election night 2020 and continuing through his final days in office, Donald Trump unraveled and dragged America with him, to the point that his followers sacked the U.S. Capitol with two weeks left in his term. Axios takes you inside the collapse of a president with a special series.
Episode 7: Trump turns on Pence. Trump believes the vice president can solve all his problems by simply refusing to certify the Electoral College results. It’s a simple test of loyalty: Trump or the U.S. Constitution.
“The end is coming, Donald.”
The male voice in the TV ad boomed through the White House residence during “Fox & Friends” commercial breaks. Over and over and over. “The end is coming, Donald. … On Jan. 6, Mike Pence will put the nail in your political coffin.”
The Lincoln Project, the anti-Trump PAC dedicated to pissing off the president with viral commercials, was back in his head with their voodoo.
President Trump, furious, told his vice president to send the Lincoln Project gang a cease-and-desist letter. In reality, this would only have further delighted Trump’s tormentors and provided ammo for another ad. Marc Short, chief of staff to Mike Pence, consulted officials on the Trump campaign. Their advice: Just ignore it.
The idea for the ad had popped into Steve Schmidt’s head when he woke onthe morning of Dec. 2. Schmidt was a former Republican strategist who had renounced the party and dedicated himself to its destruction after Trump’s ascent.
Schmidt was also a co-founder of the Lincoln Project, which counted amongst its activists lawyer George Conway, a prolific troller of Trump on Twitter and the husband of former White House counselor Kellyanne Conway.
“There’s zero fucking chance Trump knows what happens on Jan. 6,” Schmidt told ex-GOP strategist Rick Wilson and other Lincoln Project members on a team conference call at 11 a.m. later that morning. “Oh my God,” Wilson responded, bursting into laughter. “There’s no way he does.”
By law, on Jan. 6, the House and Senate would meet in a joint session of Congress to formally count the results of the Electoral College, and it would be the vice president’s job, in his role as president of the Senate, to declare Joe Biden the winner.
By that afternoon, the Lincoln Project had finalized a 70-word script and shipped it to their lawyers. A cut of the commercial was ready early the next day, and by Dec. 10 the 38-second spot would hit the air. They made a cheap booking for Fox News shows running in the D.C. market.
Their target audience of one lived at 1600 Pennsylvania Avenue.
After the Electoral College met on Dec. 14 to affirm Biden’s victory, some West Wing officials hoped the president would finally acknowledge reality. Short knew that if he didn’t, it was only a matter of time before Trump set his sights on Pence.
Trump had been fed more and more disinformation that the vice president had the power to reengineer the Electoral College vote. With a last gasp, he seized this confected idea and blew life into it.
Pence, who had dutifully defended Trump during the countless scandals of the past four years, had done his part to support Trump’s election fraud challenges while keeping a distance from the more outlandish conspiracies pushed by the likes of Rudy Giuliani, Sidney Powell and crackpots who had the president’s ear.
But it was increasingly clear that Trump was going to test the most loyal foot soldier in his inner circle on Jan. 6, when the Constitution required the vice president to preside over a joint session of Congress to certify the Electoral College results.
By Christmas, Trump had made it clear to Pence that he wanted him to object. Pence demurred, explaining that the vice president’s role in the process was largely ceremonial but saying his general counsel Greg Jacob would look into it.
Trump’s outside lawyers were filling his mind with junk legal theories about Pence’s constitutional authorities. One of those lawyers was Mark Martin, a former chief justice of the North Carolina Supreme Court who’d become dean of the law school at Regent University in Virginia Beach. Trump urged Pence to listen to Martin during a three-way conference call.
Also involved was White House trade adviser Peter Navarro, who was publicly claiming Pence could stand in the way of Biden taking office. This was what Trump wanted to hear, and it turned him ever harder against the vice president and the legal sticklers on his staff.
Short responded dryly to Navarro’s claims, telling the Wall Street Journal: “Peter Navarro is many things. He is not a constitutional scholar.”
The battle for control of the president’s mind and a parallel struggle over the Constitution brought out warriors on both sides of this unprecedented theater of war inside the White House.
It brought out, too, a healthy dose of prayer for celestial counsel and wisdom from the deeply religious vice president and his senior team as they struggled through the mess. Some of them would soon find themselves in the crosshairs of Trump’s disciples.
After Navarro convinced Trump that Short had turned Pence against him, Trump told aides Short was no longer welcome in the West Wing. Pence’s team, meanwhile, was aggravated that White House chief of staff Mark Meadows appeared to do little to stop the flow of bad information to the president. Rather than act as gatekeeper, Meadows seemed to find ever more crazies to stick in front of the president.
Then, on Dec. 28, Trump ally Congressman Louie Gohmert sued Pence in federal court as part of a bizarre and futile bid to force him to discard Biden’s electors.
Pence’s office suspected that Trump himself had encouraged Gohmert. Days later, Trump called Pence to express surprise after learning that his own Justice Department had intervened in the vice president’s defense.
On a couple of occasions, Short approached Meadows to ask for his advice. Trump’s pressure campaign was growing more desperate, spilling into public view, and the vice-president’s office wanted Meadows’ help in heading off a foreseeable but mounting disaster. Meadows sheepishly responded that expectations for Pence had grown high. He said they needed to “figure that out.” He seemed reluctant to rein things in.
Trump’s floundering campaign to overturn the results of Nov. 3had reached its most obsessive stage. The president’s viewfinder was the same one that had served him well in his days as a combative and flamboyant New York property developer: The deal is the steal and the steal is the deal. If you’re not with me, you’re against me.
In his final weeks, the president had increasingly come to view his inner circle of loyalists as a bunch of weaklings and quitters.
The mild-mannered White House counsel Pat Cipollone, a voice of restraint in the Oval Office and the architect of Trump’s impeachment defense last year, was routinely finding himself in animated debates with the president.
Attorney General Bill Barr, long regarded as the most loyal member of the Cabinet, had left after refusing to endorse Trump’s claims of widespread voter fraud.
On the evening of Jan. 4, with only two days until the votes for Biden were certified, Trump had another stab at changing the vice president’s mind, wheeling in yet another of his outside experts.
“You know Mike, he’s a really respected constitutional lawyer,” the president insisted from behind the Resolute Desk. “You should really hear him out.”
Trump was referring to John Eastman, a conservative attorney and one of several fringe voices claiming that the vice president had the power to derail the Electoral College certification process.
Outside on the South Lawn, Marine One hummed, waiting to take the president to Joint Base Andrews. From there, Air Force One would whisk him to Georgia to rally for the following day’s Senate runoff elections.
Earlier, Short had told Meadows that Pence would agree to meet with Eastman before the Jan. 6 joint session, but that he didn’t want a “cast of characters” like Giuliani to attend. Meadows agreed and Giuliani was proscribed, for that meeting at least.
Now Eastman was seated in front of Trump along with Pence and several other senior officials. Pence patiently and deliberately cross-examined Eastman about his legal theory, which effectively argued the vice president had unilateral authority to send electors back to state legislatures if they believed there was unconstitutional fraud.
One example cited was from 1801, when Thomas Jefferson counted electors from Georgia in his favor after the certificate he was presented with was defective.
But the theory was bunk, in Team Pence’s firm view. Nobody had disputed that Jefferson had won Georgia, and the 12th Amendment passed three years later made the entire precedent moot. Moreover, in 1887, the Electoral Count Act was passed to clarify this even further.
If Thomas Jefferson could do it, then Mike Pence could do it, the fringe advisers were telling the president. But Pence’s own legal advisers were telling him those ideas were rubbish, and that there were 150 years of legal precedent to say so.
Eastman cited another example from 1961, when Hawaii sent multiple slates of electors to Congress due to a late recount that flipped the state’s narrow margin from red to blue. In this instance, unlike in 2020, both slates were certified, and no one objected to Nixon magnanimously counting the Democratic electors for John F. Kennedy, who was the clear winner.
In essence, Pence’s staff believed Eastman was advocating for a maximalist position that no serious conservative could support the monarchical idea that one man could overturn a U.S. election. Eastman disputed this characterization, telling Axios that he was simply advocating for Pence to delay the certification for a few days so that state legislatures could review the election.
Trump would not give up. Later that night in a rally in Dalton, Georgia,ahead of the Senate runoffs, he told a crowd of rowdy supporters: “I hope Mike Pence comes through for us, I have to tell you … He’s a great guy. Of course, if he doesn’t come through, I won’t like him quite as much.”
Across the state in the small town of Milner, Pence told his own crowd gathered in a church: “I promise you, come this Wednesday, we’ll have our day in Congress, we’ll hear the objections, we’ll hear the evidence.”
Trump called Pence late morning on Jan. 6 to take one last shot at bullying the vice president into objecting to the certification of Biden’s victory.
As Pence rode to the U.S. Capitol to preside over the joint session of Congress, Trump addressed his fateful rally at the Ellipse. “If Mike Pence does the right thing, we win the election. … He has the absolute right to do it,” Trump said.
“All Vice President Pence has to do is send it back to the states to recertify, and we become president, and you are the happiest people,” Trump declared as he whipped up the crowd. “After this, we’re going to walk down and I’ll be there with you,” Trump shouted falsely as it turned out, as he had no intention of marching with the mob.
He amped things up a bit more in what many now point to as evidence of incitement: “You have to show strength, and you have to be strong.”
While Trump was speaking, Pence released a long statement acknowledging the inevitable: He did not have the constitutional authority to carry out Trump’s wishes. And he would uphold his oath.
Then the pro-Trump mob took off to breach the Capitol, hell-bent on blocking the vote. As they ransacked the building, some rioters were heard chanting: “Hang Mike Pence!”
Pence and his family were evacuated from the Senate chamber and taken to a secure site, where the vice president remained for hours. Trump, sequestered in his private dining room to watch the TV coverage, placed no calls to check on Pence’s safety.
As late as 2:42 p.m., the president was still tweeting abuse against the man who had pledged his loyalty more strenuously than any other politician over the past four years. “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” Trump announced on Twitter, shortly before Twitter threw him off.
Some Republican allies, including Senate Majority Leader Mitch McConnell, would not speak to Trump again after what unfolded at the Capitol. McConnell would point the finger at Trump.
But not Pence. After all the bullying, the abuse, the Twitter tirades, the calls to violence, Pence assessed his options. He’d stood with Trump not complaining, not explaining through the four years. He was a vehement conservative, more ideologue than transactional. He’d broken with Trump on this one matter the sanctity of democratically held elections and he still had other fish to fry.
Five days later, Pence broke the silence, meeting again with Trump on Jan. 11 in the Oval Office. They’d visit again in person on Jan. 14 and on a call on Jan. 15. But on the eve of the transfer of power, Pence’s team made clear he’d not be able to attend Trump’s final sendoff at Joint Base Andrews, choosing instead to attend Biden’s swearing in.
Many believe Pence intends to run for president in 2024. He is likely to preserve his bridge to Trump beyond Jan. 20, at least long enough to understand whether it’s needed or not.
Listen to Jonathan Swan on Axios’ new investigative podcast series, called “How it happened: Trump’s last stand.”
Read the rest of the “Off the Rails” episodeshere.
About this series:Our reporting is based on interviews with current and former White House, campaign, government and congressional officials as well as eyewitnesses and people close to the president. Sources have been granted anonymity to share sensitive observations or details they would not be authorized to disclose. President Trump and other officials to whom quotes and actions have been attributed by others were provided the opportunity to confirm, deny or respond to reporting elements prior to publication.
“Off the rails” is reported by White House reporter Jonathan Swan, with reporting and research assistance by Zach Basu. It was edited by Margaret Talev and Mike Allen. Illustrations by Sarah Grillo, Aïda Amer and Eniola Odetunde.