The Jan. 6 puzzle piece that's going largely ignored

As Donald Trump and his allies squeezed then-Vice President Mike Pence to single-handedly stop Joe Biden’s presidency in the weeks ahead of Jan. 6, they used one particular tool that’s been largely ignored ever since.

Rep. Louie Gohmert (R-Texas) sued Pence on Dec. 27 , just as Trump was ratcheting up his pressure campaign against his vice president. Backed by a squad of lawyers associated with Trump ally and conspiracy theorist Sidney Powell, Gohmert argued Pence should assert unilateral control over certification, governed only by the vague wording of the Twelfth Amendment.

Gohmert’s move forced Pence to publicly resist Trump’s subversion of the election, only a week before the fateful Jan. 6 joint session of Congress. When the Justice Department stepped in to defend Pence from the lawsuit on Dec. 29, it marked the first time Pence signaled he wouldn’t fold to Trump’s demands.

Pence allies have long believed that Trump played a role in Gohmert’s legal strategy, and they've indicated that Trump was frustrated that the Justice Department intervened to defend his vice president against Gohmert’s suit. But what remains unknown is just how involved Trump was in Gohmert’s legal strategy. A spokesperson for the former president did not respond to a request for comment.

And while it’s unclear whether the Jan. 6 select panel is probing the genesis of Gohmert’s suit — which was quickly rejected by federal district and appellate courts in Texas — one committee member described it as an important episode in the runup to the violence at the Capitol.

“It’s a significant detail in that it was part of a plan to isolate and coerce Pence,” said Rep. Jamie Raskin (D-Md.).

A litany of new details about Trump’s pressure campaign against Pence have emerged in recent weeks. Those include memos from Trump attorneys John Eastman and Jenna Ellis that lay out fringe legal rationales for halting certification, as well as proof of further public and private force exerted by Trump himself. Gohmert’s suit is rarely mentioned in the publicly available pre-Jan. 6 timetable.

Gohmert’s goal, outlined in the suit, was to force Pence to ignore the 130-year-old law that governs the final certification of presidential elections and instead wield total authority over the proceedings. Pence ultimately decided that he lacked this power and his role was almost entirely ceremonial. He revealed his final decision on Jan. 6, shortly before a pro-Trump mob ransacked the Capitol amid chants that he was a "traitor" and should be hanged.

As for why Gohmert led the suit, Powell has publicly indicated that one reason was because Supreme Court Justice Samuel Alito has jurisdiction over his home state of Texas. Alito, Powell argued, might have bought more time for pro-Trump forces to reverse the results by blocking Pence from certifying Biden’s victory. (There’s no evidence Alito was considering this).

The Capitol riot worked in Powell's favor but also against it, in her stated view: It delayed a last-ditch Jan. 6 attempt to seek Supreme Court consideration of Gohmert's suit but also provided more time for Alito to weigh the suit that afternoon. The decision by Pence and congressional leaders to keep certifying votes after the riot dealt a mortal blow to Gohmert’s legal fight, Powell said.

“Had [Speaker Nancy] Pelosi not rushed, the outcome of the case could have been different, and the President as well," Powell wrote on her website in September.

Powell did not respond to requests for comment for this story but told POLITICO in September that she “was not speaking with the President in that time frame” around Gohmert's suit. She did, however, famously meet with Trump in the Oval Office on Dec. 18 along with Lt. Gen. Mike Flynn and other advisers working to help Trump stay in power.

Gohmert, who is now running for Texas attorney general, has said little about his lawsuit. His office declined multiple requests for comment.

The Texan made headlines at the time, though, after the district court rejected his court challenge. He said the effect of the court decision would leave street violence as the only option to contest the election.

"In effect, the ruling would be that you’ve got to go to the streets and be as violent as antifa and BLM,“ Gohmert said on Newsmax on Jan. 1.

One aspect of Gohmert’s legal fight that went unnoticed at the time but is relevant in hindsight: One of Pence’s Justice Department defenders was Jeffrey Clark, then acting assistant attorney general.

In recent months, House and Senate investigators have revealed that Clark was marshaling allies inside DOJ who might help him deploy the department in support of Trump’s bogus claims of voter fraud. He pressured department leaders to issue a letter calling into question the results in multiple states, a push that then-Acting Attorney General Jeffrey Rosen resisted. Trump came within inches of removing Rosen and installing Clark as acting attorney general, but relented amid a promise of mass resignations.

Rosen told congressional investigators that he viewed Clark’s role in the Gohmert suit as a sign that Clark had begun to come back into the fold, only to realize later that his colleague was still in contact with Trump about taking over the department.

A source familiar with Rosen’s thinking said that even in hindsight, it’s not clear Clark’s involvement with the Pence suit was improper.

“The outcome in that case was correct, and there’s no evidence even in hindsight so far that Clark tried to do anything sketchy on that front,” the source said.

But it’s unclear whether Pence ever realized that Clark — while simultaneously fending off Gohmert’s case — was in talks with Trump about effectively commandeering the DOJ on the president's behalf. The Senate investigation of Clark’s actions showed that one day after his name first appeared in the Pence case, he told Rosen that Trump would be making him acting attorney general within hours.

An attorney for Clark declined to answer questions about Clark’s involvement in the Gohmert lawsuit.

“Mr Clark has taken a strong stance to protect President Trump’s Executive Privilege,” attorney Harold MacDougald said. "He will continue to do so.”

The Jan. 6 committee has already voted to hold Clark in contempt of Congress for refusing to testify but has deferred asking the House to send the matter to the Justice Department while it awaits Clark’s return for a deposition as soon as this week. Clark’s attorney has indicated that his client intends to plead the Fifth, and the panel has indicated that it expects Clark to do so on a question-by-question basis.

On Wednesday, Clark’s former deputy Ken Klukowski was seen heading into an interview with Jan. 6 committee investigators.

In revisiting the Gohmert case, POLITICO reached out to each of the lawyers involved, including Powell associates Howard Kleinhendler, Julia Haller and Lawrence Joseph. Joseph was one of the attorneys who crafted Texas’ failed legal effort — later joined by Trump with a brief signed by Eastman — to get the Supreme Court to invalidate election results in four key states Biden won.

“I do not talk about litigation with the media unless a client directs me to do so, which has not happened,” Joseph said in an email.

A fourth attorney, Texas-based William Lewis Sessions, also declined to comment and copied Gohmert’s House email address on the reply.

“The areas of interest you have indicated are ones for which I either have no knowledge or which I believe are protected by a privilege,” he said. “The person who would have the best knowledge is Representative Gohmert, who was one of my clients.”

Gohmert did not respond to this email or a subsequent one.