5.1 President Trump and His Allies Embark on a Desperate Gambit to Block Certification of the 2020 Presidential Election.
5.1 President Trump and His Allies Embark on a Desperate Gambit to Block Certification of the 2020 Presidential Election.
The Intellectual Framework for the Theory that the Vice President Could Change the Outcome of the Election at the Joint Session Emerged from Discussions Among the Lawyers Working with the Trump Campaign After the 2020 Election.
¶When the electoral college met to cast votes for the certified winner in each State on December 14, 2020, any possibility of President Trump reversing his defeat came to an end. The contest was decided well before then, but December 14th marked what should have been the formal end of the Trump campaign. Former Vice President Biden had won the election and his victory was cemented by the States’ electoral votes. Instead of bowing to this reality, some pro-Trump lawyers had already begun scheming ways to deny the inevitable. Over the course of the post-election period, as their other plans each failed, the importance of January 6th and the need to pressure Vice President Pence increased. These same lawyers concluded that the Vice President could help President Trump subvert the election on January 6th, but they would need Vice President Pence to set aside history and the law to do so. They’d need him to violate the Electoral Count Act of 1887 (“the ECA”). The ECA had governed the joint session for 130 years, but it was an inconvenient barrier for President Trump’s plan to stay in office.
431Kenneth Chesebro Articulated a “President of the Senate” Strategy in Early December, When the Trump Campaign was Convening “Alternate” Electors in Key States President Trump Lost.
¶On December 13, 2020, Kenneth Chesebro, a pro-Trump lawyer, sent a memo to Rudolph Giuliani, the President’s lead outside counsel, upon request from Trump Campaign official Boris Epshteyn.21 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman004708. This document was ordered to be produced to the Select Committee by Judge Carter over Eastman’s assertion of attorney-client privilege and upon a finding that the crime-fraud exception to the attorney-client privilege applied. Order Re Privilege of Documents Dated January 4-7, 2021 at 41-42, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM). Chesebro laid out a “‘President of the Senate’ strategy,” arguing that the “President of the Senate” (“he, and he alone”) is charged with “making judgments about what to do if there are conflicting votes.”22 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman004708. Chesebro argued that when the joint session met on January 6th, the President of the Senate should not count Arizona’s electoral college votes for former Vice President Biden, “[b]ecause there are two slates of votes.”23 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman004708. Of course, there were not two legitimate “slates of votes” from Arizona. There were the official electors, certified by the State, and a group of fake electors convened by the Trump campaign.
¶Chesebro’s memo set President Trump’s pressure campaign on a course to target the Vice President on January 6.24 Neither Eastman nor Chesebro provided substantive answers in response to the Select Committee’s questions about the development of this strategy. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of John Eastman, (Dec. 9, 2021); Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Kenneth Chesebro, (Oct. 25, 2022). It is thus difficult to determine who first suggested this concept. Evidence obtained by the Select Committee suggests that key players like Eastman, Giuliani, and Epshteyn were starting to discuss the Vice President’s role at the joint session in late November or early December. See, e.g., Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), pp. 71–73 (discussing conversations involving Mark Meadows, Rudolph Giuliani’s legal team, and Members of Congress in late November or early December); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman023534 (December 5, 2020 email from John Eastman remarking that “folks at the top of the chain of command on this . . . are now aware of the issues”). See also Michael Wolff, Landslide: The Final Days of the Trump Presidency (New York: Henry Holt and Company, 2021), p. 135 (describing post-Thanksgiving outreach from Boris Epshteyn to the White House regarding the Vice President theory). Judge Carter found that the “draft memo pushed a strategy that knowingly violated the Electoral Count Act” and “is both intimately related to and clearly advanced the plan to obstruct the Joint Session of Congress on January 6, 2021.”25 Order Re Privilege of Documents Dated January 4-7, 2021 at 41-42, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM) (“Because the memo likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States, it is subject to the crime-fraud exception and the Court ORDERS it to be disclosed.”). That plan was also advanced by John Eastman.26 The Select Committee’s investigation found that Eastman was communicating about the joint session with Kenneth Chesebro in December 2020. See e.g., Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman053460, Chapman053475 (December 23, 2020, emails between John Eastman, Kenneth Chesebro, and Boris Epshteyn regarding procedural proposals for joint session).
On December 23, John Eastman Drafted the First of His Two “January 6th Scenario” Memos, Articulating the Argument that Under the Constitution the Vice President is the “Ultimate Arbiter.”
¶On December 23, 2020, Eastman wrote a two-page memo summarizing ways to ensure that “President Trump is re-elected.”27 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman052976. This memo was originally obtained by the Washington Post’s Bob Woodward and Robert Costa and subsequently published by CNN. “READ: Trump Lawyer’s Memo on Six-Step Plan for Pence to Overturn the Election,” CNN, (Sept. 21, 2021), available at https://www.cnn.com/2021/09/21/politics/read-eastman-memo/index.html. Eastman suggested that Vice President Pence could refuse to count the electoral college votes from seven States: Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin. According to Eastman, Vice President Pence could simply reject these States’ electoral college votes. At that point, President Trump would have 232 electoral college votes compared to former Vice President Biden’s 222. This was sufficient, in Eastman’s view, to guarantee President Trump’s victory, because he would have a majority of the electoral college votes. “Pence then gavels President Trump as re-elected,” Eastman wrote.
¶Eastman considered the possibility that Democrats in Congress would object, stating the plain truth that 270 electoral college votes are necessary to win. In that event, according to Eastman, the election could be sent to the House of Representatives.28 Under the Constitution, if no candidate receives a majority of electoral college votes, this triggers a process where the House of Representatives decides the president. When that happens, each State gets one vote for President, chosen by the Representatives from that state. The candidate who receives a majority of the 50 State votes becomes the president. At the time, there were more Republicans than Democrats in 26 of the 50 State House delegations, leading Eastman to predict that “President Trump [would be] re-elected” under that scenario. See Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman052976. The Republican-majority of delegations in the House would then re-elect Trump as president. Eastman concluded: “The main thing here is that Pence should do this without asking for permission—either from a vote of the joint session or from the Court. . . . The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.”29 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman052976. Note that Eastman has acknowledged the authenticity of a publicly disclosed version of this document, describing it as “a preliminary, incomplete draft” of “the legal memo [he] wrote in January.” John C. Eastman, “Trying to Prevent Illegal Conduct from Deciding an Election Is Not Endorsing a ‘Coup’,” American Greatness, (Sept. 30, 2021), available at https://amgreatness.com/2021/09/30/trying-to-prevent-illegal-conduct-from-deciding-an-election-is-not-endorsing-a-coup/ (linking to two-page document titled “PRIVILEGED AND CONFIDENTIAL, January 6 scenario, available at http://cdn.cnn.com/cnn/2021/images/09/20/eastman.memo.pdf).
432¶From the start, President Trump was looped in on Eastman’s proposal. The same day Eastman started preparing the memo, he sent an email to President Trump’s assistant Molly Michael, at 1:32 p.m.: “Is the President available for a very quick call today at some point? Just want to update him on our overall strategic thinking.”30 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman053561 (December 23, 2020 email from John Eastman to Molly Michael). Only five minutes later, Eastman received a call from the White House switchboard; according to his phone records, the conversation lasted for almost 23 minutes.31 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol, (Verizon Production, July 11, 2022) (Dec. 23, 2020 cellular data records from John Eastman). The morning that Eastman began preparing the memo, he received a call from Boris Epshteyn at 8:58 am. Eleven minutes later, Eastman called Chesebro, and the two spoke for over 41 minutes. Eastman continued to trade calls with Epshteyn and Chesebro throughout the day. See Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol, (Verizon Production, July 11, 2022) (December 23, 2020, phone records for John Eastman).
Eastman Changed His Evaluation of the 12th Amendment, and the Role of the Vice President, After President Trump Lost the Election.
¶In Eastman’s theory, which was the foundation of President Trump’s January 6th plot, the Vice President of the United States is the “ultimate arbiter” and could unilaterally decide the victor of the 2020 Presidential election.32 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman052976, p. 2 (Memo regarding January 6 scenario). However, just before the 2020 presidential election, Eastman had acknowledged in writing that the Vice President had no such expansive power.
¶In the course of a lengthy exchange of ideas and emails throughout the pre- and post-election period with an individual named Bruce Colbert, Eastman provided comments on a letter Colbert was drafting to President Trump.33 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman003226. The draft letter purported to provide recommendations of “crucial legal actions” for the Trump Campaign to take “to help secure your election victory as President of the United States.”34 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman003228. Note that this letter refers to, and purports to supplement, the recommendations of what Eastman described in his correspondence with Mr. Colbert as “a major war game simulation” that he claimed—on October 24, 2020—was “already before the President and his team.” Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman031983. The war game exercise in which Eastman participated is reflected in a report issued by the Claremont Institute and the Texas Public Policy Foundation. “79 Days Report”, (Oct. 20, 2020), available at https://www.texaspolicy.com/79-days-to-inauguration-taskforce-report/. One of the draft letter’s recommendations was that “the President of the Senate decides authoritatively what ‘certificates’ from the states to ‘open.’” In response, Eastman wrote on October 17, 2020, “I don’t agree with this” and continued, “[t]he 12th Amendment only says that the President of the Senate opens the ballots in the joint session and then, in the passive voice, that the votes shall then be counted. 3 USC § 12 says merely that he is the presiding officer, and then it spells out specific procedures, presumptions, and default rules for which slates will be counted. Nowhere does it suggest that the President of the Senate gets to make the determination on his own. § 15 doesn’t, either.”35 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman003228 (emphasis added).
¶By the first week of December, Eastman’s correspondence with this same individual illustrates that he was open to advocating for the very point he had rejected before the election—that is, that “the 12th Amendment confers dispositive authority on the President of the Senate to decide which slate to count.”36 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman031983. And on December 5, 2020, Eastman wrote to Colbert, “I have spoken directly with folks at the top of the chain of command on this. They are now aware of the issues.”37 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman023534.
433¶The emails also signaled another idea that Eastman would continue to repeat in the coming weeks: that the Vice President could act without getting permission from a court. Specifically, he argued that they could take the position that the Vice President’s authority was a “non-justiciable political question”—in other words, that Vice President Pence could just act, and no court would have jurisdiction to rule on the issue.38 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman031983. As Eastman’s emails later in the month make clear, he thought there was an important reason to keep this issue out of the courts—they would rule that the theory was unlawful.
Eastman’s “January 6 Scenario” Clearly Required the Vice President to Violate the Electoral Count Act, the Federal Law Governing the Certification of Presidential Elections.
¶There are other parts of Eastman’s two-page December 23rd memo worthy of attention. Eastman wrote that Vice President Pence could recuse himself from presiding over the joint session of Congress on January 6th. In that event, the session would be overseen by the Senate President Pro Tempore, Senator Charles Grassley. Eastman was clearly arguing that Vice President Pence (or Senator Grassley) should violate the Electoral Count Act. “When he gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States,” Eastman wrote.39 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman052976 (memo regarding January 6 scenarios). “This would be the first break with the procedure set out in the Act.”40 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman052976 (memo regarding January 6 scenarios). This “break” with “procedure” that Eastman’s memo was openly advocating for was in other words the Vice President breaking the law. When Chesebro read Eastman’s memo, he commented favorably, declaring it “[r]eally awesome.”41 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman052966 (December 23, 2020, email from Kenneth Chesebro).
¶At this point, Eastman continued, Congress would likely follow the “process” set forth in the Electoral Count Act, and “the two houses [would] break into their separate chambers” for debate.42 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman052976 (memo regarding January 6 scenarios). But Eastman advised “we should not allow the Electoral Count Act constraint on debate to control” and the Trump team “should demand normal rules (which includes the filibuster).”43 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman052976 (memo regarding January 6 scenarios). Eastman thought this would create a “stalemate,” giving “the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.”44 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman052976 (memo regarding January 6). As discussed previously in this report, at the time he drafted this memo—and throughout the post-election period—Eastman, Giuliani, President Trump and others were simultaneously working to replace certified electors for former Vice President Biden in certain States. Eastman, Giuliani, and President Trump all pressured State legislators to name their own separate electors or to certify the campaign’s fake electors.
434Eastman’s Theory was—in the Words of President Trump’s Senior White House and Campaign Officials—“Insane,” “Crazy,” “Nutty” and it Would Never Practically Work.
¶Eric Herschmann, an attorney working for President Trump in the White House, met with Eastman to discuss his memo. Herschmann thought Eastman’s plan was “crazy.” Herschmann summarized the conversation to the Select Committee:
And I said to him, hold on a second, I want to understand what you’re saying. You’re saying you believe the Vice President, acting as President of the Senate, can be the sole decisionmaker as to, under your theory, who becomes the next President of the 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. You’re going to turn around and tell 78 plus million people in this country that your theory is, this is how you’re going to invalidate their votes because you think the election was stolen? I said, they’re not going to tolerate that. I said, you’re going to cause riots in the streets. And he said 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.45 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 26; see also id., at 36-377 (stating that he did not understand Eastman’s statement to be suggesting that violence would be justified to keep President Trump in office).
¶As recounted by Herschmann, Eastman was shockingly unconcerned with the prospect of violence should Vice President Pence follow his and President Trump’s recommended course.
¶Herschmann asked a straightforward question—if the States wanted to recertify their electors, then why weren’t they doing it themselves? “Why aren’t they already coming into session and saying, we want to change the [S]tates, and why do you need the VP to go down this path[?]”46 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 28. Eastman had no response. In addition to being “crazy,” Herschmann “didn’t think there was any chance in the world” that Eastman’s plan “could work.”47 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), pp. 26, 28-29.
¶Herschmann pressed Eastman further, asking if he had “any precedent at all for the VP or anyone acting in the capacity as the President of the Senate declaring some statute invalid.”48 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 29. Eastman replied “no,” but argued that “these are unprecedented times.”49 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 29. Herschmann was unimpressed, calling this a “ridiculous” answer.50 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 29.
¶White House Counsel Pasquale Anthony “Pat” Cipollone thought the Eastman plan was “nutty.”51 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Jason Miller, (Feb. 3, 2022), p. 157. Trump Campaign official Jason Miller testified that the Campaign’s General Counsel, Matt Morgan, and Deputy Campaign Manager, Justin Clark, thought Eastman was “crazy,” understood that there was “no validity to [his theory] in any way, shape, or form,” and shared their views with “anyone who would listen.”52 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Jason Miller, (Feb. 3, 2022), pp. 142, 152.
435The Vice President’s Conclusion that He Did Not Have the Ability to Affect the Outcome of the Election
¶Vice President Pence’s counsel, Greg Jacob, was simultaneously researching the role of the Vice President during the joint session. The Office of the Vice President produced a preliminary staff memo on the subject on October 26, 2020.53 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 079P-R0000731. Neither this memo, nor a December 8, 2020, memo that followed, reflects the full advice that Greg Jacob ultimately gave to the Vice President regarding the joint session. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 10–11, 32. The OVP Legal Staff memo, dated October 26, 2020, is titled “The Unconstitutionality of the Electoral Count Act.” This memo adopts certain legal academics’ criticism of the Electoral Count Act and introduces several concepts that would later be cited by proponents of the theory of an expansive view of the Vice President’s power. Greg Jacob’s legal memo to the Vice President, dated December 8, 2020, notes that the Electoral Count Act prescribes the process for counting electoral votes “to the extent it is constitutional” and seems to allow for the possibility of the Vice President “assert[ing] a constitutional privilege.” Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 079P-R0000785. Through his extensive research and analysis, Greg Jacob’s understanding developed both as to the legal and historical precedent for the joint session and ultimately led him to the unavoidable conclusions that, one, the Electoral Count Act governed the joint session and, two, its procedures had never been deviated from since it was passed. Jacob then discussed the matter with Marc Short on election day or the day before.
¶This wasn’t the first time Jacob would be required to write a memo about the Vice President’s role in the electoral process. Before the election, Short explained to him that some in the White House were encouraging President Trump to prematurely declare victory on election night.54 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob Deposition, (Feb. 1, 2022), pp. 11–13, 25–26 (noting that Marc Short didn’t “name names” of the people he was concerned would encourage the President to prematurely declare victory). Of course, that is exactly what President Trump did. Jacob and Short wanted to avoid the Vice President getting drawn in to any such declarations, and Jacob pointed to his role in presiding over the counting of the electoral votes on January 6th as a reason not to. Jacob sent a memo to Short on election day reflecting this advice.55 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 079VP-R000011579_0001, 079VP-R000011579_0002 (November 3, 2020, Greg Jacob memo to Marc Short, titled “Electoral Vote Count”). The Election Day memo identifies the 12th Amendment and the Electoral Count Act as the relevant legal framework, but leaves open “whether it is the Vice President, or Congress, that has ultimate constitutional authority to decide electoral vote disputes.” It also represents an incomplete understanding of the factual precedents, describing then-Vice President Nixon’s conduct in January 1961 as “single-handedly resolv[ing] a dispute over competing slates of electors that were submitted by the State of Hawaii.” (In fact, after additional research Jacob concluded the opposite was true.) As addressed elsewhere in this chapter, this memo does not reflect Greg Jacob’s full legal analysis or ultimate advice, nor the Vice President’s conclusion, about the authority of the Vice President at the joint session.
¶Then, on December 7, 2020, the Lincoln Project aired a provocative ad taunting President Trump, saying that Vice President Pence “Will Put the Nail in Your Political Coffin” during the joint session on January 6th.56 Daniel Villarreal, “Lincoln Project Ad Tells Trump That Pence ‘Will Put the Nail in Your Political Coffin’,” Newsweek, (Dec. 8, 2020), available at https://www.newsweek.com/lincoln—project-ad-tells-trump-that-pence-will-put-nail-your-political-coffin-1553331. This prompted a discussion between Jacob and Vice President Pence.57 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 13; Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (Jun. 16, 2022), available at https://www.govinfo.gov/committee/house-january6th; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 135–36 (noting the ad buy was limited to “D.C. and Palm Beach”). Jacob authored another memo, dated December 8, 2020.58 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 079P-R0000785_0001, 079P-R0000785_0002, 079P-R0000785_0003, 079P-R0000785_0004 (December 8, 2020, Greg Jacob memo to Vice President Pence, titled “January 6 Process for Electoral Vote Count”); see also, Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 32. This December 8, 2020, memo reflects Jacob’s more detailed understanding of the mechanics of “modern practice” under the Electoral Count Act, including the process by which the House and Senate separate to debate a member of the House’s objection if it is signed by a Senator, but not the full analysis of the precedent that Jacob would ultimately do before January 6, 2021. Jacob continued researching the Vice President’s role during the joint session into early January. Jacob told the Select Committee that his view of the matter was not fully formed until then.59 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 102.
¶Jacob did extensive research on and historical analysis of both the Electoral Count Act of 1887 and the 12th Amendment to the U.S. Constitution.60 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 33, 102. The 12th Amendment contains a single relevant line: “The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.”61 U.S. Const. art. II, § 1, cl 3; U.S. Const., Amend. XII. Though Jacob concluded that this line was “inartfully drafted,” it said nothing about resolving disputes over electoral votes.62 Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 16, 2022), available at https://www.govinfo.gov/committee/house-january6th.
¶Greg Jacob testifies before the Select Committee on June 16, 2022. Photo by House Creative Services
¶Jacob concluded that the Vice President must adhere to the Electoral Count Act.63 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 14–16. The ECA has been followed for 130 years and “every single time that there has been any objection to electors, it has been resolved in accordance with the Electoral Count Act procedures,” Jacob testified.64 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 14–16. After reviewing the history and relevant cases, Jacob found that “[t]here is no justifiable basis to conclude that the Vice President has that kind of authority” to affect the outcome of the presidential election.65 Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 16, 2022), available at https://www.govinfo.gov/committee/house-january6th. In testimony given at a Select Committee hearing, Judge Luttig disagreed with Jacob’s characterization of the sentence carried through from the Constitution to the 12th Amendment, describing it instead as “pristine[ly] clear,” but the witnesses were in agreement that there was “no basis in the Constitution or laws of the United States at all for the theory espoused by Mr. Eastman.” Id.; see Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 16, 2022), available at https://www.govinfo.gov/committee/house-january6th. (“I am in complete agreement with Judge Luttig; it is unambiguous that the Vice President does not have the authority to reject electors.”). Note that Vice President Pence apparently agreed with Jacob regarding the clarity of the Constitutional language, as Jacob testified that he joked, “I can’t wait to go to heaven and meet the Framers and tell them, ‘The work that you did in putting together our Constitution is a work of genius. Thank you. It was divinely inspired. There is one sentence that I would like to talk to you a little bit about.’” Id. Jacob stated that his “review of text, history, and, frankly, just common sense” all confirmed that the Vice President had no such power.66 Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 16, 2022), available at https://www.govinfo.gov/committee/house-january6th.
436President Trump’s Allies Filed Lawsuits Seeking a Court Order Directing Vice President Pence Not to Count Certain Electoral Votes.
¶Representative Louie Gohmert outside the Capitol on March 17, 2021. (Photo by Chip Somodevilla/Getty Images)
¶One of President Trump’s congressional allies, Representative Louie Gohmert (R–TX), pushed a version of Eastman’s theory in the courts. On December 27, 2020, Representative Gohmert and several of the Trump Campaign’s fake electors for the State of Arizona (including Republican Party Chair Kelli Ward) filed suit against Vice President Pence in the U.S. District Court for the Eastern District of Texas.67 Complaint, Gohmert et al. v. Pence, 510 F. Supp. 3d 435, (No. 6:20-cv-0660), (E.D. Tex. Dec. 27, 2020), ECF No. 1. As Ward explained to Marc Short in a phone call the day the suit was filed, President Trump was aware of the lawsuit and had signed off on it: “We wouldn’t have done that without the president telling us it was okay,” she told him.68 Mike Pence, So Help Me God (New York: Simon & Schuster, 2022), p. 443.
¶In the suit, the Plaintiffs alleged that there were “competing slates” of electors from five States.69 Complaint, Gohmert et al. v. Pence, 510 F. Supp. 3d 435, (No. 6:20-cv-0660), (E.D. Tex. Dec. 27, 2020), ECF No. 1. They asked the court to rule that portions of the Electoral Count Act of 1887 were unconstitutional and that “the Twelfth Amendment contains the exclusive dispute resolution mechanisms” for determining an objection raised by a Member of Congress to the electors submitted by any State.70 Complaint, Gohmert et al. v. Pence, 510 F. Supp. 3d 435, (No. 6:20-cv-0660), (E.D. Tex. Dec. 27, 2020), ECF No. 1. Essentially, Representative Gohmert was asking the court to tell Vice President Pence that he was prohibited from following the procedures set forth in the Electoral Count Act. Much like Eastman’s theory, the Gohmert plaintiffs asserted that the Vice President has the “exclusive authority and sole discretion” to determine which electoral votes to count.71 Complaint, Gohmert et al. v. Pence, 510 F. Supp. 3d 435, (No. 6:20-cv-0660), (E.D. Tex. Dec. 27, 2020), ECF No. 1.
437¶Although the Gohmert suit was premised on the same theory Eastman advocated, Eastman did not agree with the decision to file suit. Eastman argued that filing a suit against the Vice President had “close[] to zero” chance of succeeding, and there was a “very high” risk that the court would issue an opinion stating that “Pence has no authority to reject the Biden-certified ballots.”72 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman055337 (December 22, 2020, John Eastman email to William Olson, Larry Joseph, Mark Martin, Kurt Olson, Kris Kobach, Phillip Jauregui, Pat McSweeney, and Don Brown, titled “Re: Draft Complaint”). As highlighted by Judge Carter, Eastman’s theory was that Vice President Pence should take this action “without asking for permission” from Congress or the courts.73 Order Re Privilege of Documents Dated January 4-7, 2021 at 6, Eastman v. Thompson et al., 594 F. Supp. 3d 1156 (C.D. Cal. 2022) (No. 8:22-cv-99-DOC-DFM). Another attorney, Bill Olson, stated that getting a judicial determination “that Pence is constrained by [the Electoral Count Act]” could “completely tank the January 6 strategy.”74 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman055337 (December 22, 2020, William Olson email to Larry Joseph, Mark Martin, Kurt Olson, Kris Kobach, John Eastman, Phillip Jauregui, Pat McSweeney, and Don Brown, titled “Re: Draft Complaint”). Those who were advocating to press on with the Eastman scheme did not want to bring it before a Federal judge because of the high risk that a court’s determination that the scheme was illegal would stop the plan to overturn the election dead in its tracks.
¶Eastman himself pushed this cavalier attitude towards the courts and compliance with the law during a call with Arizona House Speaker Rusty Bowers on January 4th. During this call, just two days before the joint session, Eastman pressed Speaker Bowers to bring the Arizona House into session to certify Trump electors or decertify the Biden electors.75 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Russell “Rusty” Bowers, (June 19, 2022), pp. 42–45; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman003584, (January 4, 2021, emails between John Eastman and Andrew Pappas, coordinating the call between Eastman and Speaker Bowers). Eastman also asked Speaker Bowers to sign a letter drafted by Arizona Rep. Mark Finchem directed to Vice President Pence asking him not to certify the election on January 6th; Bowers refused. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Russell “Rusty” Bowers, (June 19, 2022), at p. 45–46. Speaker Bowers responded as he had previously responded to similar entreaties by Giuliani and President Trump: by explaining that doing so would require him to violate his oaths to the U.S. and Arizona Constitutions and that he “wasn’t going to take such an action.”76 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Russell “Rusty” Bowers, (June 19, 2022), at p. 46. Speaker Bowers had already addressed publicly both the pressure he was receiving to overturn the result of the election as well as his firm belief that doing so would violate his oath of office. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Rusty Bowers Production), CTRL0000062389 (Nov. 18, 2020, Dear Colleague letter with attached “Post-Election Frequently Asked Questions”), Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Rusty Bowers Production), CTRL0000071098_00069 (December 4, 2020, Press Release titled “Speaker Bowers Addresses Calls for the Legislature to Overturn 2020 Certified Election Results). Undeterred, Eastman still pushed Speaker Bowers to “just do it and let the courts sort it through.”77 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Russell “Rusty” Bowers, (June 19, 2022), at p. 46. Speaker Bowers also received a call on the morning of January 6th from Representative Andy Biggs in which Rep. Biggs asked Speaker Bowers to sign a letter being sent by other Arizona legislators and/or to support decertification of Arizona’s electors; Speaker Bowers again refused. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 21, 2022), available at https://www.govinfo.gov/committee/house-january6th.
438¶Ultimately, Representative Gohmert’s legal gambit failed; a U.S. district judge dismissed the case quickly.78 Gohmert et al. v. Pence, 510 F. Supp. 3d 435, 443 (E.D. Tx. 2021). The judge’s ruling was upheld by the Supreme Court, which rejected Gohmert’s appeal without further consideration.79 Gohmert et al. v. Pence, 141 S. Ct. 972 (2021).
439Other Individuals Advising President Trump and His Campaign Also Advocated for a Role for the Vice President at the Joint Session.
¶John McEntee, February 28, 2020. (Photo by Alex Wong/Getty Images)
¶Other individuals inside and outside the White House also advanced versions of the theory that the Vice President had agency in the joint session. The issue of Vice President Pence’s role came up during a December meeting in the Oval Office. Either President Trump or his chief of staff, Mark Meadows, tasked John McEntee, the director of the Presidential Personnel Office, with researching the matter further.80 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of John McEntee, (Mar. 28, 2022), pp. 132–34. Though McEntee was one of President Trump’s close advisors, he was not a lawyer and had no relevant experience. Yet, he wrote a one-page memo claiming that “the VP has substantial discretion to address issues with the electoral process.”81 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (John McEntee Production), McEntee0001 (document titled “JEFFERSON USED HIS POSITION AS VP TO WIN”).
¶This wasn’t the only one-page analysis drafted by McEntee before January 6th.82 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000236-000238 (John McEntee note and drafted analysis, titled “PENCE CAN LET THE STATES DECIDE”). Note that the Select Committee received both documents from the National Archives in a format consistent with the documents having been torn apart and taped back together. He later proposed a “middle path” in which he envisioned the Vice President accepting only half the electoral votes from six disputed States (specifically, Wisconsin, Michigan, Pennsylvania, Georgia, Arizona and Nevada).83 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000236-237 (John McEntee note and drafted analysis, titled “PENCE CAN LET THE STATES DECIDE”). McEntee portrayed this as a way to avoid “disenfranchis[ing]” States while still achieving the desired result: delivering a second term to President Trump. McEntee conveyed this memo to the President with a cover note reading, “This is probably our only realistic option because it would give Pence an out.”84 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000237; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of John McEntee, (Mar. 28, 2022), p. 147. McEntee told the Select Committee that this judgment was based on his assessment that “it was, like, pretty obvious [the Vice President] wasn’t going to just reject . . . the electors or whatever was being asked of him at that time.”85 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of John McEntee, (Mar. 28, 2022), pp. 147-48. Another advocate of a plan for the Vice President to play a role in the joint session was Jenna Ellis, a lawyer working for the Trump Campaign. She argued in two memos that Vice President Pence had the power to delay the counting of certified electoral votes. In the first memo, addressed to President Trump and dated December 31, 2020, Ellis advised that Vice President Pence should “not open any of the votes” from six States that “currently have electoral delegates in dispute.”86 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Short production), J6C-TSM-0001, J6C-TSM-0002. Note that the file name of the document (“MEMO_POTUS_January6VPAction.pdf”) is visible in an email in which Marc Short forwards to Greg Jacob the memo received from Mark Meadows. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000033, VP-R0000034. Ellis asserted that this “dispute” provided “sufficient rational and legal basis to question whether the [S]tate law and Constitution was followed.” Ellis proposed a delay of ten days, as the Vice President and Congress awaited a “response from the [S]tate legislatures, which would then need to meet in an emergency electoral session.” If any of the State legislatures “fails to provide a timely response, no electoral votes can be opened and counted from that [S]tate.” Ellis claimed that Vice President Pence would not be “exercising discretion nor establishing new precedent,” but instead “simply asking for clarification from the constitutionally appointed authority.”87 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000034.
¶Jenna Ellis on December 2, 2020 in Lansing, Michigan. (Photo by Rey Del Rio/Getty Images)
¶Ellis sent the substance of this memorandum in an email to Fox News host Jeanine Pirro on January 1, 2021, under the subject line “Constitutional option.”88 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Jenna Ellis Production), J.007206Ellis. And, on January 4, 2021, she sent the same substance to Fox News contributor John Solomon under the subject line “Pence option.”89 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Jenna Ellis Production), J.007472Ellis.
440¶Ellis addressed a second memo, dated January 5, 2021, to Jay Sekulow, an outside attorney who represented President Trump during his first impeachment proceedings and in other litigation.90 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Jenna Ellis Production), CTRL0000916457_00002, (January 5, 2021, memo from Jenna Ellis to Jay Sekulow). This document was published by Politico on December 10, 2021. Betsy Woodruff Swan and Kyle Cheney, “Trump Campaign Lawyer Authored 2 Memos Claiming Pence Could Halt Biden’s Victory,” Politico, (Dec. 10, 2021), available at https://www.politico.com/news/2021/12/10/trump-lawyer-pence-biden-524088. In response to a Select Committee subpoena, Ellis produced a privilege log reflecting several communications from Ellis to Sekulow on January 5 and 6, 2021, each of which was described as “[e]mail discussion of internal legal strategy for possible pending litigation.” Ellis again claimed that Vice President Pence had the power to delay the certification of the vote. Ellis recommended that the Vice President should, when he arrived at the first contested State (Arizona), “simply stop the count” on the basis that the States had not made a “final determination of ascertainment of electors.” “The [S]tates would therefore have to act.”91 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Jenna Ellis Production), CTRL0000916457_00002 (January 5, 2021, memo from Ellis to Jay Sekulow).
¶Sekulow clearly disagreed. “Some have speculated that the Vice President could simply say, ‘I’m not going to accept these electors,’ that he has the authority to do that under the Constitution,” Sekulow said during an episode of his radio show.92 Politico (@politico), Twitter, Jan. 5, 2021 2:31 p.m. ET, available at https://twitter.com/politico/status/1346539955724681221 (“‘I actually don’t think that’s what the Constitution has in mind,’ Jay Sekulow, the chief counsel of the American Center for Law & Justice, says about the possibility of Pence rejecting the Electoral College results”). “I actually don’t think that’s what the Constitution has in mind.” Sekulow added that the Vice President serves a merely “ministerial, procedural function.”93 Politico (@politico), Twitter, Jan. 5, 2021 2:31 p.m. ET, available at https://twitter.com/politico/status/1346539955724681221.
¶In addition, Herschmann discussed this memo with Sekulow. They agreed that Ellis did not have the “qualifications or the experience to be giving advice on this” or to be “litigating the challenges” that President Trump’s team was filing in court.94 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 208. Herschmann did not think that Sekulow shared the memo with the President.95 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 208.
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