Commentary about special counsel Jack Smith’s Jan. 6 investigation has largely — and understandably — focused on former President Donald Trump’s efforts to overturn the 2020 election and his role in the Capitol riot. But if we zero in on Trump’s conduct toward Mike Pence, based on what is known so far, it looks a lot like Trump solicited a crime of violence against his own vice president.
The U.S. Code makes it a crime to solicit any other person to engage in conduct that is a felony under federal law involving the use, attempted use or threatened use of physical force against a person (in other words, a federal felony that is a crime of violence). Under this statute, the government must prove the defendant intended the person to commit a crime of violence and that the defendant “under circumstances strongly corroborative of that intent, solicit[ed], command[ed], induce[ed], or otherwise endeavor[ed] to persuade” the other person to engage in such conduct.
Let’s look at just some of the evidence that is publicly known.
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On Jan. 4, 2021, at an Oval Office meeting that included Trump, Pence and lawyer John Eastman, among others, Eastman allegedly admitted that the fraudulent elector plan he proposed was unlawful. According to Pence’s 2022 autobiography, “So Help Me God,” Pence then said to Trump, “Even your lawyer doesn’t think I have the authority to return electoral votes.” Nevertheless, that night at a rally in Georgia, the president amped up his pressure on Pence, telling the crowd they weren’t going to let the “radical Democrats” steal the election: “I hope Mike Pence comes through for us.” He then praised Pence as a “great vice president,” but added, “Of course, if he doesn’t come through, I won’t like him quite as much.”
The next morning, Trump tweeted: “The Vice President has the power to reject fraudulently chosen electors.” Later that day, according to Pence’s book, Trump called the vice president to his office, where they met alone. Pence recounted in his book that he told Trump he did not believe that the Constitution or law gave him the authority to interfere in the counting of the Electoral College ballots. According to Pence, Trump responded: “These people cheated, and you want to play by Marquess of Queensberry rules,” which the then-president said was “bad for the country” and “bad for you.” Pence wrote that Trump told him “hundreds of thousands are gonna hate your guts.”
That evening, contrary to what Pence allegedly told him, Trump issued a statement that he and Pence were “in total agreement that the Vice President has the power to act.”
In the early morning of Jan. 6, Trump tweeted that he “will win the Presidency” if Pence “comes through for us,” adding later: “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!”
Later that morning, Trump and Pence had what House Jan. 6 committee witnesses described as a “heated” phone call, during which observers of Trump’s end of the call heard him refer to Pence as a “wimp” and a “pussy.”
As Trump had urged in December, thousands of his supporters came to Washington, D.C., on Jan. 6. While addressing rallygoers at the Ellipse, some of whom he had been told were armed, Trump continued to turn up the heat on his vice president: “I hope Mike is going to do the right thing. … Because if Mike Pence does the right thing, we win the election. … He has the absolute right to do it.”
After promising he would “walk down to the Capitol” with the crowd, Trump proclaimed, “You’ll never take back our country with weakness. You have to show strength, and you have to be strong. … We fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.”
By 1:21 p.m., Trump was informed that the Capitol was under attack. Trump watched the insurrection on television from the White House dining room. Pence was evacuated from the Senate floor at 2:12 p.m., and less than 15 minutes later, he was rushed down a flight of stairs with his family and through a series of hallways to a secure location. The mob had come within 40 feet of him as he was evacuated. As all of this was happening, and while he was watching live coverage of the attack, Trump tweeted that Pence “didn’t have the courage to do what should have been done to protect our country and our Constitution.” Attackers had erected a gallows near the Capitol and were shouting “Hang Mike Pence!” According to testimony before the Jan. 6 committee, when White House counsel Pat Cipollone expressed alarm to White House chief of staff Mark Meadows that Trump needed to take action to stop the attack, Meadows said something to the effect of “You heard him, Pat. He thinks Mike deserves it. He doesn’t think they’re doing anything wrong.” Imagine what could have happened — and what Trump had to know could have happened — if the attackers had reached Pence. Advisers and family urged Trump to call off the mob, but it wasn’t until 4:17 p.m. that he recorded a video telling the insurrectionists to “go home now,” while also telling them he loved them and that they were “very special.” At 6 p.m., Trump posted his last tweet of the day, saying that this is what happens “when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long.” Now imagine what could have happened — and what Trump had to know could have happened — if the attackers had reached Pence. First, it is likely that the Secret Service would have fired on anyone who sought to lay hands on the vice president, almost certainly resulting in multiple deaths. Second, had the attackers been successful in capturing Pence notwithstanding the Secret Service’s efforts, there’s a strong possibility he would have been seriously injured or even killed. More than 140 law enforcement officers were injured in the deadly riot. The physical assaults on law enforcement were crimes of violence, in violation of federal law, for which many attackers have been found guilty. Assaulting Pence (or worse) would have been a federal crime of violence. It’s no defense that the Secret Service was successful in whisking Pence away before the mob could catch him. The law does not require that the crime of violence be completed. That leaves just two questions: Did Trump intend for the attackers to commit a crime of violence against his vice president, and “under circumstances strongly corroborative of that intent,” did Trump solicit, command, induce or otherwise endeavor to persuade them to do so? Whether these questions will ever be put before a jury is up to Jack Smith. He and the Department of Justice will make charging decisions based on the law and their own prosecutorial discretion, as is appropriate. But regardless of whether Trump is held to account for what could have happened to the vice president were it not for the swift action of his security detail and other law enforcement, the circumstances recounted above appear to provide strong evidence of his culpability.
Mary McCord
Mary B. McCord is an MS Now legal and national security contributor, and co-host of the MS Now podcast "Main Justice." She is executive director of Georgetown Law's Institute for Constitutional Advocacy and Protection. She previously served as the acting assistant attorney general for national security at the Department of Justice and was an assistant U.S. attorney in the District of Columbia for nearly 20 years.
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