United States? And he said, yes. And I said, are you out of your F'ing mind, right. And that was pretty blunt. I said, you're completely crazy.[171]
Deputy White House Counsel Pat Philbin also had the same understanding.[172] Indeed, as Herschmann testified, even Rudolph Giuliani doubted that Vice President Mike Pence had any legal ability to do what Eastman had proposed.[173]
Despite all this opposition from all White House lawyers, Trump nevertheless continued to exert immense pressure on Pence to refuse to count electoral votes.
The pressure began before the January 4th Oval Office meeting with Pence, Eastman, Jacob, Short and Trump, but became even more intense thereafter. On the evening of January 5, 2021, the New York Times published an article reporting that "Vice President Mike Pence told President Trump on Tuesday that he did not believe he had the power to block congressional certification of Joseph R. Biden, Jr.'s victory in the Presidential election despite President Trump's baseless insistence that he did.” [174] This reporting was correct—both as to the Vice President's power and as to Vice President Pence having informed President Trump that he did not have the authority to change the outcome of the election. But in response to that story, late in the evening before the January 6th joint session, President Trump dictated to Jason Miller a statement falsely asserting, "The Vice President and I are in total agreement that the Vice President has the power to act."[175] This statement was released at President Trump’s direction and was false.[176]
Thereafter, Trump continued to apply public pressure in a series of tweets. At 1:00 a.m. on January 6th, "[i]f Vice President @Mike_Pence comes through for us, we will win the Presidency. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be). Mike can send it back!"[177] At 8:17 a.m. on January 6th, he tweeted again: "States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!"[178]
President Trump tried to reach the Vice President early in the morning of January 6th, but the Vice President did not take the call. The President finally reached the Vice President later that morning, shouting from the Oval Office to his assistants to "get the Vice President on the phone.[179] After again telling the Vice President that he had "the legal authority to send [electoral votes] back to the respective states," President Trump grew very heated.[180] Witnesses in the Oval Office during this call told the Select
