In an interview hours after former President Donald Trump was indicted for an alleged conspiracy to overturn the 2020 presidential election, one of his attorneys said that all Trump had ultimately asked his vice president to do was “simply pause” the Electoral College count at the U.S. Capitol on Jan. 6, 2021.
On Fox News the following night, Aug. 2, former Vice President Mike Pence called that claim “completely false.” Pence said Trump and his “gaggle of crackpot lawyers” asked him “to literally reject votes.”
“I think it’s important that the American people know what happened in the days before January 6,” Pence said. “President Trump demanded that I use my authority as vice president presiding over the count of the Electoral College to essentially overturn the election by returning or literally rejecting votes. I had no authority to do that.”
For those who might doubt him, Pence urged them to “read the indictment.”
Pence is featured prominently throughout the 45-page indictment, but there are seven and a half pages that specifically deal with “The Defendant’s [Trump’s] Attempts to Enlist the Vice President to Fraudulently Alter the Election Results at the January 6 Certification Proceeding.” That section relies heavily on interviews Pence provided to federal prosecutors, and the indictment references “contemporaneous notes” Pence kept to memorialize some events and conversations.
According to the indictment, “As the January 6 congressional certification proceeding approached and other efforts to impair, obstruct, and defeat the federal government function failed, the Defendant [Trump] sought to enlist the Vice President to use his ceremonial role at the certification to fraudulently alter the election results. The Defendant did this first by using knowingly false claims of election fraud to convince the Vice President to accept the Defendant’s fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state legislatures for review rather than count them. When that failed, the Defendant attempted to use a crowd of supporters that he had gathered in Washington, D.C., to pressure the Vice President to fraudulently alter the election results.”
Here are some of the related events described in the indictment leading up to Jan. 6:
Dec. 23, 2020: Trump retweeted (and later deleted) a memo titled “Operation ‘PENCE’ CARD,” which, the indictment states, “falsely asserted that the Vice President could, among other things, unilaterally disqualify legitimate electors from six targeted states.”
The same day, the indictment says, co-conspirator 2 (whom we have identified as John Eastman, a Trump attorney) “circulated a two-page memorandum outlining a plan for the Vice President to unlawfully declare the Defendant the certified winner of the presidential election.” In the memo, Eastman “transmitted two slates of electors and proposed that the Vice President announce that ‘because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States.'” The indictment says the Eastman memo then “proposed steps that he acknowledged violated the ECA [Electoral Count Act]” and ended with, “Pence then gavels President Trump as re-elected.” It was a position, the indictment says, that contradicted a position Eastman himself had staked out just two months prior.
Dec. 25, 2020: When Pence called Trump to wish him a Merry Christmas, Trump requested that Pence reject electoral votes on Jan. 6. Pence responded, as he had in previous conversations, “You know I don’t think I have the authority to change the outcome.”
Dec. 29, 2020: Citing Pence’s “contemporaneous notes,” the indictment says Trump “falsely told the Vice President that the ‘Justice Dept [was] finding major infractions.'”
Jan. 1, 2021: Trump called Pence and “berated him because he had learned that the Vice President had opposed a lawsuit seeking a judicial decision that, at the certification, the Vice President had the authority to reject or return votes to the states under the Constitution.” Pence told Trump he didn’t think there was any constitutional authority for that. In response, Trump reportedly told Pence, “You’re too honest.”
Jan. 3, 2021: Trump again told Pence “that at the certification proceeding, the Vice President had the absolute right to reject electoral votes and the ability to overturn the election.” Pence said he disagreed and noted that “a federal appeals court had rejected the lawsuit making that claim the previous day.”
That same day, the indictment states, Eastman “circulated a second memorandum that included a new plan under which, contrary to the ECA, the Vice President would send the elector slates to the state legislatures to determine which slate to count.”
Jan. 4, 2021: Trump held a meeting with Eastman and Pence, along with Marc Short, who was Pence’s chief of staff, and Greg Jacob, who was Pence’s counsel. The purpose of the meeting, the indictment states, was to convince Pence “based on the Defendant’s knowingly false claims of election fraud, that the Vice President should reject or send to the states Biden’s legitimate electoral votes, rather than count them.”
Based on Pence’s contemporaneous notes from the meeting, the indictment says, Trump “made knowingly false claims of election fraud, including, ‘Bottom line — won every state by 100,000s of votes'” and asking, “What about 205,000 votes more in PA than voters?” (The indictment says Trump was parroting a claim that senior Justice Department officials had told him the night before was false. We debunked this claim when Trump repeated it two days later in his Jan. 6, 2021, speech.)
Trump and Eastman then asked Pence “to either unilaterally reject the legitimate electors from the seven targeted states, or send the question of which slate was legitimate to the targeted states’ legislatures.” When Pence told Trump even Eastman said he wasn’t sure if Pence had that authority, Trump responded, “That’s okay, I prefer the other suggestion,” meaning the one in which Pence simply rejected the electors unilaterally.
(That allegation contradicts any claims that Trump only asked Pence to pause the voting. A pause to return the issue to the states was only one of the options put to Pence, according to Pence and the indictment. We should note that Trump attorney John Lauro qualified his claim on CNN on Aug. 1, saying that a pause was Trump’s “ultimate request” or “final ask” of Pence, not that it was the only request ever put to Pence.)
The indictment also includes a conversation from that day that was highlighted in the final report issued by the House Select Committee to Investigate the January 6th Attack on the United States Capitol. Eric Herschmann, an attorney working for Trump in the White House, told the committee he had told Eastman he thought Eastman’s plan was “crazy” and that if implemented, “you’re going to cause riots in the streets.” Herschmann said Eastman responded with “words to the effect of there’s been violence in this history of our country to protect the democracy or to protect the [R]epublic.”
Jan. 5, 2021: At Trump’s direction, Short and Jacob again met with Eastman, who advocated that Pence “unilaterally reject electors from the targeted states,” as Trump the previous day had said he preferred. According to the indictment, Jacob told Eastman that “following through with the proposal would result in a ‘disastrous situation’ where the election might ‘have to be decided in the streets.'”
That same day, Trump posted to social media, “The Vice President has the power to reject fraudulently chosen electors.” Trump met alone that day with Pence. According to the indictment, “When the Vice President refused to agree to the Defendant’s request that he obstruct the certification, the Defendant grew frustrated and told the Vice President that the Defendant would have to publicly criticize him.”
Despite Pence’s stance, hours later Trump had his campaign issue a false public statement saying, “The Vice President and I are in total agreement that the Vice President has the power to act.”
Jan. 6, 2021: In the early morning on the day that Congress met to officially count the electoral votes, the indictment states, Trump “raised publicly the false expectation” that Pence might “fraudulently alter the election outcome.” Trump posted on social media, “States want to correct their votes, which they now know were based on irregularities and fraud … 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!”
At 11:15 a.m., the indictment says, Trump called Pence “and again pressured him to fraudulently reject or return Biden’s legitimate electoral votes. The Vice President again refused. Immediately after the call, the Defendant decided to single out the Vice President in public remarks he would make within the hour, reinserting language that he had personally drafted earlier that morning — falsely claiming that the Vice President had authority to send electoral votes to the states — but that advisors had previously successfully advocated be removed.”
“I hope Mike is going to do the right thing,” Trump told the crowd at the “Save America” rally that day. “I hope so. I hope so because if Mike Pence does the right thing, we win the election. All he has to do. This is from the number one or certainly one of the top constitutional lawyers in our country. He has the absolute right to do it. We’re supposed to protect our country, support our country, support our constitution, and protect our constitution. States want to revote. The States got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. 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.”
Just before 1 p.m., the indictment notes, Pence released a statement “explaining that his role as President of the Senate at the certification proceeding that was about to begin did not include ‘unilateral authority to determine which electoral votes should be counted and which should not.'”
When Trump supporters soon after violently attacked the Capitol and temporarily halted Congress’ election proceedings, the indictment notes that some in the crowd chanted, “Hang Mike Pence!” and “Bring him out!” and “Traitor Pence!”
That night, the indictment says, just after the House and Senate reconvened in a joint session, Eastman made one last appeal to Pence’s counsel, writing, “I implore you to consider one more relatively minor violation [of the ECA] and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here.”
At 3:41 a.m. on Jan. 7, Pence announced the certified results and declared Biden the victor.
The day after the indictment was handed down, Trump posted a message on social media, saying Pence did not “fight against Election Fraud.” And, Trump insisted, “The V.P. had power that Mike didn’t understand, but after the Election, the RINOS & Dems changed the law, taking that power away!”
That’s not accurate. As we wrote when Trump made a similar claim in a CNN town hall in May, Pence didn’t have the legal right to send electoral votes back to the states. Also, although Congress revised the Electoral Count Act in December 2022, the revision merely “reaffirmed” that a vice president’s role in the electoral vote counting process is “ministerial.” It was not an admission that the law previously allowed a vice president to take the steps Trump sought.
Editor’s note: FactCheck.org does not accept advertising. We rely on grants and individual donations from people like you. Please consider a donation. Credit card donations may be made through our “Donate” page. If you prefer to give by check, send to: FactCheck.org, Annenberg Public Policy Center, 202 S. 36th St., Philadelphia, PA 19104.