MARY LOUISE KELLY, HOST:
The third hearing for the House select committee investigating the insurrection at the U.S. Capitol came to a close this afternoon, spending nearly 3 hours focused on former Vice President Mike Pence. Now, Pence was not there. It's not yet clear if he will appear before this panel. But today's hearing introduced the public to witnesses who established what Pence was doing on January 6, 2020, and the days leading up to the attack. They were Greg Jacob, Pence's chief counsel at the time, and J. Michael Luttig, a retired conservative federal judge who had advised the former vice president on his role in certifying the presidential election.
Then-President Donald Trump pressured Pence to block the certification. Today's witnesses disputed the idea that Pence could have done that even if he'd wanted to. Here's Luttig.
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J MICHAEL LUTTIG: There was no basis in the Constitution or laws of the United States at all for the theory espoused by Mr. Eastman - at all. None.
KELLY: Mr. Eastman is John Eastman, a legal scholar who was also pressuring Pence to overturn the election according to the panel. And another witness we heard from today - lawyer Eric Herschmann.
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ERIC HERSCHMANN: I said, they're not going to tolerate that - said, you're going to cause riots in the streets. And he said words to the effect of, there has been violence in the history of our country in order to protect the democracy or protect the republic.
KELLY: Of course, Herschmann's prediction, despite that denial from Eastman, came true. January 6 panel member Pete Aguilar said rioters even got within 40 feet of the vice president.
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PETE AGUILAR: Members of the Proud Boys said that they would have killed Mike Pence if given a chance.
KELLY: Another revelation today is about a new witness the panel wants to hear from - Ginni Thomas, wife of Supreme Court Justice Clarence Thomas. She was reportedly in touch with John Eastman ahead of the insurrection, and her role in pushing to overturn the election has also come under scrutiny.
Well, earlier today, before the hearing got underway, I had made my way to Capitol Hill to catch up with one of the members of the committee investigating January 6, Congressman Adam Schiff, Democrat of California.
Congressman, good to see you.
ADAM SCHIFF: Good to see you.
KELLY: So we're sitting here. This is the third hearing of...
We met him in his office, where he was preparing for today's hearing - a hearing that will likely attract a smaller audience than the first, which aired in primetime and which 20 million people watched. The congressman told me the plan is still to hold a total of seven, and he has a particular target audience in mind.
SCHIFF: I think there are still many tens of millions of Americans with an open mind about the events of January 6, and even people who think they know what happened are open to learning more. And that's who we hope to reach.
KELLY: Adam Schiff will be front and center at the next hearing. Here's what he told me about that and the committee's endgame.
The hearing that you are leading is Tuesday - next Tuesday?
KELLY: And this is, I understand, focused on what Trump may have done to pressure state officials to change the election results, which has been really well-documented and reported on far and wide. What are you hoping Americans will learn from that that they don't already know?
SCHIFF: Well, as with all of the hearings, there will be a mix of information the public is aware of and a mix of information that the public has never seen. But what is really most important is how the information is put together because what America learned about the plot to overturn the election, it learned a piece here and a piece there. So we want to tell the whole story. And...
KELLY: In your hearing, are you focusing on a particular state or states?
SCHIFF: We will be - in the hearing on state pressure, we'll be focusing on the battleground states - everywhere the president and his enablers sought to coerce and corral individuals to do his will and overturn the election.
KELLY: Yeah. There has been back and forth as to whether this panel will make a formal criminal referral to the Justice Department. Will you?
SCHIFF: We have not discussed that as a committee. There's certainly been individual discussions, but I think we've decided to wait until we get through the hearings. We didn't, frankly, want to try to reach a conclusion on this before we were really far along in the investigation. But if the appropriate...
KELLY: Which makes sense, but I guess the question would be why not, since the premise of this is that former President Trump incited the riot and violated criminal codes?
SCHIFF: Well, in certain things, we have a statutory role in making a criminal referral. When someone is in criminal contempt of Congress, they're subpoenaed. They don't show up, we have a statute that allows us to make referral, and it says that the Justice Department shall bring that before the grand jury. Other matters, it's purely a discretionary matter for the Congress, and the way that it is attributed by the Justice Department is very unclear.
And so we'll decide the appropriate time. Does it help, the public understanding what's going on, for the Congress to make a referral? What impact does that referral have on the Justice Department? Does it encourage them to pursue charges? Does it somehow discourage them? And so we'll be weighing those factors and reaching a conclusion.
KELLY: Discourage them because of the danger of things being - I mean, I would say danger of them being politicized. I think we're there. Things are politicized. But is that where you're talking about?
SCHIFF: Yes - the risk that a referral would be perceived by the Justice Department as politicizing the process somehow.
KELLY: Based on the evidence you have seen, whatever your committee decides to do or not do in terms of referrals, do you think the evidence is there, that the Justice Department should open a criminal investigation?
SCHIFF: Absolutely. And it's not just my opinion, but you've seen Federal District Judge David Carter in California, just on the basis of the limited information that he has, concluded that there were multiple federal laws that were broken by President Trump and by others around him. Now, that doesn't mean that, ultimately, the department concludes there is proof beyond a reasonable doubt. But I think it does mean that you begin the work, and you can't ignore the evidence simply because it pertains to a former president or that it would be perceived as political. Because the decision not to pursue evidence where there is a credible fact pattern indicating crime, that's a political decision, too.
KELLY: Yeah. You lived through both impeachment proceedings. You led the first one. They did not result in Trump being convicted in the Senate. And I wonder what lessons you have learned that you're applying now.
SCHIFF: Well, it's a very different situation now in the sense that we're not trying this case to a group of senators heavily predisposed to either support or oppose the president. There, I thought there were two juries - the jury of the senators and the jury of the American people. Here, we're dealing predominantly with a jury of the American people. We want the public to understand all the different ways that Donald Trump tried to interfere with the peaceful transfer of power for the first time in our history - the first president who could not accept losing such that he riled up enough of his supporters to attack the Capitol. And that's a danger that sadly didn't end on January 6 because the big lie that led to that violence, he continues to push.
KELLY: I'm thinking of the primaries that have been unfolding as you have been gearing up for these hearings and in which we've seen dozens of candidates who support the big lie that Trump won the election. They're going to be on the ballot in November. What does that say to you about the state of American democracy?
SCHIFF: It tells me it's more vulnerable today than it was on January 6. The big lie lives on.
KELLY: More vulnerable?
SCHIFF: Yes, more vulnerable. We are more at risk of losing our democracy today than we were a year and a half ago when violent insurrectionists were attacking the building outside because that big lie has proliferated. They seem to be trying to prepare to succeed where they failed before, which is if they couldn't get someone to find 11,780 votes that didn't exist, they seem determined to have people in those positions next time who will.
KELLY: It's chilling.
SCHIFF: It is. I think that we will succeed with these hearings if people understand just how fragile our democracy is. Like every other generation before, we're going to have to really defend our democracy and cherish our legacy, or we will lose it.
KELLY: California Democrat Adam Schiff - he will be leading Tuesday's hearing for the House select committee investigating what happened on January 6. Congressman, thank you.
SCHIFF: Thank you.
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