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Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol · 2022

5.2 President Trump and his Allies Exert Intense Public and Private Pressure on the Vice President in Advance of the Joint Session of Congress on January 6th

Section 50 of 104

5.2 President Trump and his Allies Exert Intense Public and Private Pressure on the Vice President in Advance of the Joint Session of Congress on January 6th

January 2, 2021: The Vice President Meets with His Advisors, Cementing His Intended Path for the Joint Session.

On January 2, 2021, Vice President Pence met with his counsel Greg Jacob, Chief of Staff Marc Short, and Matt Morgan to discuss the joint session.96 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 68; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed of Matt Morgan, (Apr. 25, 2022), pp. 19, 113. Matt Morgan was at the time a lawyer with Elections, LLC serving as General Counsel of the Trump Campaign and also acting as counsel to Vice President Pence’s leadership PAC. Morgan was the Trump Campaign’s General Counsel and had previously served as counsel to Vice President Pence. At this point, the Vice President already had a clear understanding of what his role would be in the electoral count.97 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Matthew Morgan, (Apr. 25, 2022), pp. 117, 125 (“I had no question about what he was going to do on January 6th.”). Vice President Pence was concerned that most people did not understand how the certification of the electoral votes worked. So Jacob began drafting a statement for the Vice President to issue on January 6th. The statement was intended to provide a “civic education” on the joint session, explaining to the American people his actions, including why the Vice President “didn’t have the authorities that others had suggested that he might.”98 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 68. See also Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Chris Hodgson, (Mar. 30, 2022), p. 179 (stating that the reasons why Vice President Pence wanted to issue a public statement included the public discourse, letters from State legislators, and reporting about communications between the President and Vice President).

The men discussed the various points of pressure being applied to the Vice President, including Eastman’s theories, the Gohmert suit, Ellis’s arguments, as well as how the electoral count process should work. They also discussed allegations of irregularities and maladministration of the election, concluding that none of the allegations raised was sufficient to reverse President Trump’s defeat.99 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Matthew Morgan, (Apr. 25, 2022), pp. 114, 116.

While Vice President Pence recognized Congress’s authority under the Electoral Count Act to raise objections to the certification, neither he nor his staff were aware of any evidence of fraud that would have had a material effect on the outcome of the election in any State.100 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 166-68 (“I’m not aware of any evidence that the campaign had, and I’m not aware of any evidence the campaign shared with our office that would have again provided specific evidence of theft or fraud that would have had a material change in any of the States.”). Because of President Trump’s repetition of election fraud allegations, Jacob and the Vice President’s staff conducted their own evaluation of these claims. Jacob asked Morgan to send the campaign’s best evidence of election “fraud, maladministration, irregularities, [and] abuses in the system.”101 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Matt Morgan, (Apr. 25, 2022), pp. 99–00; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 36-37. The Vice President’s legal staff memorialized the review they conducted of these materials in a memo to Vice President Pence, which concluded: “most allegations of substantive voter fraud—defined to mean the casting of illegal ballots in violation of prevailing election laws—are either relatively small in number, or cannot be verified.”102 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 079P-R0000745; see also Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 38. Following the meeting on January 2, 2021, Greg Jacob shared the following memo with Matt Morgan. See Documents on file with the Select Committee to Investigate the January 6th Attack, (Matt Morgan Production), AGSC16-000103.

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Vice President Pence also discussed the Trump Campaign’s fake electors with his advisors. Both Jacob and Morgan assured Vice President Pence that there were not dual slates of electors. The electors organized by the Trump Campaign were not valid.103 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 61-62. Morgan had already written a memo on the topic in December, concluding that the “alternate” electors—that is, fake—lacked a certificate of ascertainment issued by the State.104 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Matt Morgan Production), AGSC16-000066; Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Matt Morgan, (Apr. 25, 2022), p. 74 (“My view, for an electoral count vote to count, you need a certificate of ascertainment and then the vote of the elector itself, that the vote of an elector without a certificate of ascertainment would not be validly submitted.”). Without such an ascertainment, the Trump Campaign’s fake electors had no standing during the joint session. Jacob had also prepared a “flow chart” memo outlining each of the legal provisions implicated in the joint session on January 6th.105 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 079P-R0000698; see also Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production),00131; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Chris Hodgson, (Mar. 30, 2022), p. 128 (stating that as of the date of this memo, January 2, 2021, “there were no open questions at that point that I’m aware of.”). Jacob advised Vice President Pence that “none of the slates that had been sent in would qualify as an alternate slate within the meaning of the Electoral Count Act.”106 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 52. Vice President Pence was still worried that the fake elector issue was sowing confusion, so he wanted his statement on January 6th to be as transparent as possible.107 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 68-69. Jacob shared a draft version of the statement with Matt Morgan. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Matt Morgan, (Apr. 25, 2022), pp. 119-120. This draft version clearly set forth Vice President Pence’s position, “I Preside, Congress Decides.” The draft statement read: I cannot believe that the Framers, who above all else feared the concentrated power of a Caesar, intended to appoint a single individual, often directly interested in the outcome, to unilaterally determine the validity of electoral votes. In the wrong hands, such a power would be the undoing of the Republic.” Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Matt Morgan Production), AGSC16-000149.

That same day, January 2nd, Marc Short released a brief statement on behalf of the Vice President. “Vice President Pence shares the concerns of millions of Americans about voter fraud and irregularities in the last election,” the statement read. “The vice president welcomes the efforts of members of the House and Senate to use the authority they have under the law to raise objections and bring forward evidence before the Congress and the American people on January 6th.”108 Philip Rucker, Josh Dawsey, ‘‘Growing Number of Trump Loyalists in the Senate Vow to Challenge Biden’s Victory,” Washington Post, (Jan. 2, 2021), available at https://www.washingtonpost.com/politics/senators-challenge-election/2021/01/02/81a4e5c4-4c7d-11eb-a9d9-1e3ec4a928b9_story.html. Short testified that the statement was consistent with the Vice President’s view that he did not have the power to reject electors.109 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 166–68. Short issued this statement because of the “swirl” regarding the question of “where [Vice President Pence] stood.”110 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 165-66.

Steve Bannon’s podcast, War Room: Pandemic, was one of the primary sources of this swirl.

January 2, 2021: Eastman and Bannon Question the “Courage and Spine” of Vice President Pence.

Steve Bannon’s podcast, War Room: Pandemic, was one of the primary sources of this swirl. Eastman was a guest on a January 2nd episode of Bannon’s show. Much of their conversation focused on Vice President Pence, and the belief that he had the power to overturn the election.

“[W]e are entering into one of the most, um, important constitutional crisis [sic] the country’s ever had,” Bannon said.111 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Select Committee Transcription), CTRL0000082311, p. 7 (January 2, 2021, Steve Bannon War Room Transcript). Bannon complained that Vice President Pence had “spit the bit,” meaning he had given up on efforts to keep President Trump in power.112 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Select Committee Transcription), CTRL0000082311, p. 3 (January 2, 2021, Steve Bannon War Room Transcript). Eastman claimed that the election had been “illegally conducted,” and so the certified votes now “devolved back to the [S]tate legislature[s], and the only other place where it devolved back to is to Congress and particularly the Vice President, who will sit in presiding over a Joint Session of Congress beginning on January 6 to count the ballots.”113 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Select Committee Transcription), CTRL0000082311, p. 6 (January 2, 2021, Steve Bannon War Room Transcript). Eastman claimed that the Vice President (and Congress) had the power to reject the certified electors from several States out-of-hand. “[T]hey’ve got multiple slates of ballots from seven states,” Eastman said. “And they’ve gotta decide [] which is the valid slate to count . . . I think they have that authority to make that determination on their own.”114 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Select Committee Transcription), CTRL0000082311, p. 7 (January 2, 2021, Steve Bannon War Room Transcript).

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Bannon claimed the Vice President of the United States is “hardwired in,” and an “actual decisionmaker.”115 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Select Committee Transcription), CTRL0000082311, p. 7 (January 2, 2021, Steve Bannon War Room Transcript). The Vice President’s role is not “ministerial,” Bannon declared.116 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Select Committee Transcription), CTRL0000082311, p. 7 (January 2, 2021, Steve Bannon War Room Transcript). Eastman agreed.117 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Select Committee Transcription), CTRL0000082311, p. 8 (January 2, 2021, Steve Bannon War Room Transcript). “Are we to assume that this is going to be a climactic battle that’s going to take place this week about the very question of the constitutionality of the Electoral Count Act of 1887?” Bannon asked.118 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Select Committee Transcription), CTRL0000082311, p. 7 (January 2, 2021, Steve Bannon War Room Transcript).

Eastman replied, “I think a lot of that depends on the courage and the spine of the individuals involved.” Bannon asked Eastman if he meant Vice President Mike Pence. “Yes,” Eastman answered.119 Andrew Kaczynski, Em Steck, “Trump Lawyer John Eastman Said ‘Courage and the Spine’ Would Help Pence Send Election to the House in Comments before January 6,” CNN, (Oct. 30, 2021), available at https://www.cnn.com/2021/10/30/politics/kfile-john-eastman-said-pence-could-throw-election-to-house/index.html.

January 3, 2021: Eastman Drafts Another “January 6 Scenario” Memo “War Gaming” the Ways that Vice President Pence Could Change the Outcome of the Election.

The next day, January 3, 2021, Eastman drafted a six-page memo that imagined several scenarios for January 6th, only some of which led to President Trump’s victory.120 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Public Source), CTRL0000923171 (January 3, 2021, 6-page Eastman memo). Note that Eastman publicly disclosed this document, describing it as “the final version of [his] memo” and embedding it with a filename “Jan 3 Memo on Jan 6 Scenario.” 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/. Eastman has also tried to rewrite history with regard to this memo, arguing that it noted that Congress has the power to make the final determination regarding electoral votes, even though the memo concludes, “[t]he 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.” See John McCormack, “John Eastman vs. the Eastman Memo,” National Review, (Oct. 22, 2021), available at https://www.nationalreview.com/2021/10/john-eastman-vs-the-eastman-memo (emphasis added). In a section titled, “War Gaming the Alternatives,” Eastman set forth the ways he thought President Trump could remain in power.121 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Public Source) CTRL0000923171, pp. 4-5 (January 3, 2021, 6-page Eastman memo) . Importantly, Eastman concluded that President Trump could remain president if—and only if—Vice President Pence followed Eastman’s illegal advice and determined which electoral college ballots were “valid.”122 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Public Source) CTRL0000923171, (January 3, 2021, 6-page Eastman memo) (describing the majority of the “TRUMP WINS” scenarios as resulting from the Vice President unilaterally determining “which” electoral slate from a State is valid, after “asserting that the authority to make that determination under the 12th Amendment . . . is his alone (and anything in the Electoral Count Act to the contrary is therefore unconstitutional).”). In another scenario, Eastman imagined that President Trump may somehow win re-election in January 2021 if Vice President Pence remanded the electoral votes to State legislatures, such that they could have ten days to investigate President Trump’s baseless claims of fraud. In that case, Eastman allowed that former Vice President Biden may still win, should the State legislatures determine that the evidence was “insufficient to alter the results of the election.”123 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Public Source) CTRL0000923171, (January 3, 2021, 6-page Eastman memo) p. 5.

Eastman Knew that there Were No Valid “Alternate” Slates, But He Nonetheless Predicated His Advice to the Vice President and President on this Claim.

In his six-page memo, consistent with the earlier two-page memo, Eastman states that “the Trump electors” met and transmitted votes, finding that “[t]here are thus dual slates of electors from 7 [S]tates.”124 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Public Source) CTRL0000923171, (January 3, 2021, 6-page Eastman memo) p. 2; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman052976 (December 23, 2020, 2-page Eastman memo). Even since January 6th, Eastman has continued to affirm and defend his assertion that there were dual slates of electors, writing: “Trump electors from seven [S]tates in which election challenges were still pending met (albeit of their own accord) on the date designated by Congress, cast their votes, and transmitted those votes to Congress.”125 John C. Eastman, “Constitutional Statesmanship,” Claremont Review of Books, (Fall 2021) available at https://claremontreviewofbooks.com/constitutional-statesmanship/.

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Eastman used these slates as a premise for his argument that the result of the election was disputed. However, Eastman acknowledged on multiple occasions—both before and after January 6th—that these “dual slates” had no legal significance. In an email sent on December 19, 2020, Eastman wrote that the seven Trump/Pence slates of electors “will be dead on arrival in Congress” “unless those electors get a certification from their State Legislators.”126 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman043035 (December 19, 2020, email from John Eastman to Bruce Colbert, re: Latest draft). It is not clear what relationship or connection existed between John Eastman and Bruce Colbert before the election; documents produced to the Select Committee demonstrate that Eastman and Mr. Colbert exchanged dozens of emails during the time period covered by the Select Committee’s subpoena to Chapman University (November 3, 2020, to January 20, 2021). Of course, this certification never came and there was no basis for any action on the “dual slates.”127 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.] (Judge Luttig testifying, “[T]here was no support whatsoever in either the Constitution of the United States nor the laws of the United States for the Vice President, frankly, ever to count alternative electoral slates from the States that had not been officially certified by the designated State official in the Electoral Count Act of 1887.”).

Nevertheless, on December 23, 2020, Eastman used the existence of these slates as a justification for the Vice President to act, in an email to Boris Epshteyn, a Trump Campaign lawyer. “The fact that we have multiple slates of electors demonstrates the uncertainty of either. That should be enough.”128 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman053475, (December 23, 2020, email from John Eastman to Boris Epshteyn and Kenneth Chesebro, “FW: Draft 2, with edits”); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman053476 (December 23, 2020, 2-page Eastman memo).

Again after January 6th, Eastman acknowledged in an email that the fake electors’ documents were invalid and irrelevant.129 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman063984 (January 10, 2021, email from John Eastman to Valerie Moon, re: Tell us in layman’s language, what the heck happened with the dual electors? Please?). This email appears to be a response by Eastman to an unsolicited email from a member of the public. “Alas,” he said, “[T]hey had no authority” because “[n]o legislature certified them.”130 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman063984 (January 10, 2021, email from John Eastman to Valerie Moon, re: Tell us in layman’s language, what the heck happened with the dual electors? Please?).

Eastman concluded his memo by asserting that his plan was “BOLD, Certainly,” but he attempted to justify it, arguing that “this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules, therefore.”131 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Public Source) CTRL0000923171, p. 5 (January 3, 2021, 6-page Eastman memo).

Eastman repeated what he wrote in his earlier, shorter memo, claiming that Vice President Pence should act “without asking for permission—either from a vote of the joint session or from the Court.”132 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Public Source), CTRL0000923171, p. 5 (January 3, 2021, 6-page Eastman memo). Eastman claimed “that the Constitution assigns this power to the Vice President as the ultimate arbiter.”133 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Public Source), CTRL0000923171, p. 5 (January 3, 2021, 6-page Eastman memo). Eastman ended on an especially hyperbolic note. If the election’s results were not upended, “then the sovereign people no longer control the direction of their government, and we will have ceased to be a self-governing people. The stakes could not be higher.”134 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Public Source), CTRL0000923171, p. 5 (January 3, 2021, 6-page Eastman memo).

January 4, 2021: President Trump and Eastman Meet with Pence and His Staff in the Oval Office.

Eastman Argues in an Oval Office Meeting that the Vice President can Reject Electoral Votes or that He Can Delay the Certification, Sending the Electoral Votes Back to the States.

Late in the afternoon of January 4, 2021, President Trump summoned Vice President Pence to the Oval Office for a showdown.135 The pressure placed on the Vice President by the President was a “multiweek campaign” that reached a crescendo in the days before January 6th. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 33. The Vice President’s Chief of Staff, Marc Short, saw the separation between the President and the Vice President building for weeks. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 34–35, 216-17. President Trump and Eastman sought to convince the Vice President that he had the power to refuse to count the certified electors from several States won by former Vice President Biden.

Short and Jacob attended with the Vice President.136 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 191, 204-05; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 82; 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. Trump’s chief of staff, Mark Meadows, was only briefly present, leaving as the meeting started.137 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 191, 204-05.

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The White House Counsel is Excluded from the Meeting.

One key lawyer was conspicuously absent: Pat Cipollone, the White House Counsel. Cipollone and his deputy, Pat Philbin, were shooting down a series of “terrible” proposals at the time.138 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Pasquale Antony “Pat” Cipollone, (July 8, 2022), pp. 49 (regarding the declaration of martial law), 56 (regarding the appointment of Sidney Powell as special counsel), 58–59, 66 (regarding the seizure of voting machines), 110 (regarding the elevation of Jeff Clark to Acting Attorney General). Philbin told the Select Committee that he considered resigning every day from approximately November 15 until the end of the administration.139 Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Interview of Patrick Philbin, (Apr. 13, 2022), p. 5. Philbin told the Select Committee that in the end he decided not to resign out of a sense of obligation: “All of the pilots can’t jump off the plane because there’s still a lot of passengers in the back and we need to land the plane.” Philbin had researched the Vice President’s role in the January 6th joint session and concluded that Vice President Pence had no power to affect the outcome.140 Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Interview of Patrick Philbin, (Apr. 13, 2022). Cipollone agreed and informed Short and Jacob that this was the opinion of White House Counsel’s Office.141 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Pasquale Antony “Pat” Cipollone, (July 8, 2022), pp. 79 (“My view was that the Vice President didn’t have the legal authority to do anything except what he did.”), 81 (testifying that his views on the role of the Vice President were “extremely aligned” with the Vice President’s staff), 88 (“I thought that the Vice President did not have the authority to do what was being suggested under a proper reading of the law.”); See also Select Committee to Investigate the January 6th Attack on the United States Capitol, Informal Interview of Patrick Philbin, (Apr. 13, 2022).

Mark Meadows invited Cipollone to speak with Eastman prior to the Oval Office meeting.142 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Pasquale Antony “Pat” Cipollone, (July 8, 2022), pp. 85–86. Cipollone told Eastman that his scheme was “not something that is consistent with the appropriate reading of the law.”143 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Pasquale Antony “Pat” Cipollone, (July 8, 2022), p. 85. After delivering this assessment directly to Eastman in Meadows’ office, Cipollone walked to the Oval Office with the intent to attend the meeting. However, by the time the Vice President and his staff arrived, Cipollone was gone.144 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Pasquale Antony “Pat” Cipollone, (July 8, 2022), p. 94 (testifying that the privileged interaction that resulted in his exclusion from the meeting took place in the presence of Meadows and Eastman, but before the Vice President, Short, and Jacob arrived).

Pat Cipollone is seen on a screen during a Select Committee hearing on July 12, 2022. (Photo by Sarah Silbiger-Pool/Getty Images)

Cipollone declined to testify as to what he told President Trump or why he did not attend the Oval Office meeting, but he was clear that he didn’t end up attending the meeting because of something that happened after he walked into the Oval Office.145 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Pasquale Antony “Pat” Cipollone, (July 8, 2022), pp. 85–86 (“I did walk to that meeting and I did go into the Oval Office with the idea of attending that meeting, and then I ultimately did not attend the meeting.”). Whatever happened, Cipollone maintained, was protected by executive privilege, suggesting that he was asked to leave by the President.146 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Pasquale Antony “Pat” Cipollone, (July 8, 2022), pp. 86, 94. Cipollone refused to describe further why he didn’t attend the meeting—“[t]he reasons for that are privileged”—and would not tell the Select Committee whether he voluntarily decided not to attend or was told not to. What is clear, however, is that Cipollone had already shared his view directly with Meadows and Eastman, i.e., that the proposal President Trump and Eastman were about to advocate to the Vice President was illegal.147 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Pasquale Antony “Pat” Cipollone, (July 8, 2022), pp. 85, 88.

During this Oval Office Meeting, Eastman Admits that Both Paths are Based on the Same Legal Theory and Concedes His Plan Violates the Electoral Count Act.

During the Oval Office meeting, Eastman claimed that there were two legally viable options.148 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 88–89 (“[A]t the meeting on the 4th, Eastman expressed the view that both paths were legally viable.”). First, Vice President Pence could reject outright the certified electors submitted by several States, and second, he could suspend the joint session and send the “disputed” electoral votes back to the States.149 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. Eastman advised that the Vice President had the “raw authority to determine objections himself,” according to Jacob.150 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 89. See also Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 90 (“I think that was threaded throughout, that, again, both were legally viable but that the preferred course would be to send it back to the States.”), 91 (“. . . he [Eastman] thought that the more prudent course was a procedural send it back to the States, rather than reject electors.”), 93 (“On the 4th, I think that he said that both were legally viable options. But I do think that he said that he was not saying that that was the one that the Vice President should do.”). However, by the end of the meeting Eastman was emphasizing the second option that he argued would be “more politically palatable” than the “more aggressive” option of the Vice President rejecting electoral votes outright.151 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 89, 91 (“[H]e thought that the more prudent course was a procedural send it back to the states, rather than reject electors”), 96 (“[M]y impression was he was thinking more acceptance [by] the country of the action taken”). See also Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearings on the January 6th Investigation, 117th Cong., 2d sess., (June 16, 2022), available at https://www.govinfo.gov/committee/house-january6th. If Vice President Pence did not want to reject the electors, Eastman claimed, then the Vice President could send the certified electoral votes back to the States for further deliberation.

Eastman later conceded that both actions were based on the same underlying legal theory of the Vice President’s power.152 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 96; 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. Eastman also admitted—during this meeting with the President and Vice President—that his proposal violated the Electoral Count Act.153 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 95, 130 (Q: “Did John Eastman ever admit, as far as you know, in front of the President that his proposal would violate the Electoral Count Act?” A: “I believe he did on the 4th.” Q: “Okay. And can you tell us what the President’s reaction was?” A: “A I can’t.”); Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000107 (Greg Jacob writing after the Oval Office meeting on January 4th, “Professor Eastman acknowledges that his proposal violates several provisions of statutory law.”). Moreover, Eastman eventually acknowledged that the concept of the Vice President unilaterally rejecting electors was not supported by precedent and that the Supreme Court would never endorse it.154 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 202–03.

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Jacob recorded his reflections on the January 4th meeting in a contemporaneous memo to the Vice President.155 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000107. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 127. Jacob’s memo confirms that Eastman admitted that his proposal violated the law in the presence of President Trump.

First, Jacob wrote, Eastman acknowledged that “his proposal violates several provisions of statutory law”—namely, the Electoral Count Act of 1887.156 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000107 (“Professor Eastman acknowledges that his proposal violates several provisions of statutory law”); Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 127–28. Jacob’s memo explains that the Electoral Count Act calls for all vote certificates to be “acted upon,” and any objections to a State’s certificates be “finally disposed of.” However, as Jacob wrote, Eastman was proposing instead that “no action be taken” on the certificates from the States Eastman asserted were “contested.” And, according to the Electoral Count Act, the Vice President (as President of the Senate) is to “call for objections.” But Eastman did not want the Vice President to “call for objections” for these States. As Jacob noted, this would have deprived Congress of the ability under the Act to make, debate, and vote on objections.157 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000107.

Additionally, the Electoral Count Act contains a provision that requires any “competing slates of electors” to be “submitted to the Senate and House for debate and disposition.” As Jacob noted, Eastman conceded that the “alternate” (fake) electors’ votes were not proper. But Eastman’s proposal still would have refused to count the real electors’ votes from those States and instead referred both the real and fake electors’ votes to State legislatures “for disposition.” Finally, in order for State legislatures to take action to determine which of the slates should be counted, Eastman’s proposal called for “an extended recess of the joint session.” But this too would have violated the Electoral Count Act, which provides only for very short delays.158 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol, (National Archives Production), VP-R0000107. Jacob notes in his memo that Eastman’s proposal also “contradicted the opinion authored by Republican Supreme Court Justice Joseph Bradley as the decided vote on the Electoral Commission of 1877.” Whereas Eastman wanted the Vice President to refer the manufactured dispute over slates of electors back to the State legislatures, Justice Bradley wrote that the President of the Senate (the Vice President) “is not invested with any authority for making any investigation outside of the joint meeting of the two Houses.”

There was another foundational problem with Eastman’s plan. There were no legitimate “competing” or “alternate” slates of electors. President Trump, Eastman and others had manufactured the conditions they needed in order to claim that the election result was “disputed” by convening fake electors who sent fake documents to Washington before January 6th. And their efforts to convince State legislatures to certify Trump electors had already failed.

Jacob noted in his memo that in the Oval Office meeting, Eastman conceded “no legislature has appointed or certified any alternate slate of electors” and that the purported “alternate slates” (fake electors) were illegitimate without what Jacob described as “the imprimatur of approval by a State legislature.”159 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000107 (“[Professor Eastman] stated that in his view, the imprimatur of approval by a State legislature is important to the legitimacy of counting any slate of electors other than the one initially certified by the State’s executive.”). Moreover, Eastman acknowledged that “no Republican-controlled legislative majority in any disputed States has expressed an intention to designate an alternate slate of electors.”160 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000107. In other words, Eastman acknowledged that the fake votes were invalid, that no State legislature had approved them, and no State legislature would approve them.161 When pressed by Eric Herschmann on whether states really wanted to certify an alternate slate, and why they hadn’t taken steps to do so on their own, Eastman had no explanation or response. Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), pp. 28–29. But President Trump and Eastman still pressed this unlawful scheme on the Vice President. Although Eastman started the January 4th Oval Office meeting maintaining that Vice President Pence had unilateral authority to reject electors, by the end of the meeting he conceded that he would “not recommend that the Vice President assert that he has the authority unilaterally to decide which of the competing slates of electors should be counted.”162 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000107 (“Professor Eastman does not recommend that the Vice President assert that he has the authority unilaterally to decide which of the competing slates of electors should be counted”); Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 127.

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Jacob ended his memo with a scathing summary. “If the Vice President implemented Professor Eastman’s proposal, he would likely lose in court,” Jacob wrote. “In a best-case scenario in which the courts refused to get involved, the Vice President would likely find himself in an isolated standoff against both houses of Congress, as well as most or all of the applicable State legislatures, with no neutral arbiter to break the impasse.”163 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000107.

Following the Oval Office meeting, during the evening of January 4, 2021, Jacob invited Eastman to send along “any written materials on electoral vote counting issues,” including a law review article by Laurence Tribe that Eastman had cited in the Oval Office meeting that day, for Jacob to review on the Vice President’s behalf.164 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000085. Jacob reviewed everything that Eastman submitted; nothing changed the analysis he had already done for the Vice President, indeed much of it did not even support Eastman’s own arguments.165 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000182, VP-R0000183, VP-R0000180, VP-R0000181; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 102–03 (“[I]n fact, there were no materials, new materials that were actually presented to me by Mr. Eastman . . . I was open to receiving anything that anybody wanted to give me that might bear on that question . . . But I also correctly was of the view that I had already looked at everything and that we knew [] where we stood.”).

The Vice President was Not Persuaded by Eastman’s Theory and Remained Convinced That His Role at the Joint Session would be Merely Ceremonial.

Pence did not relent on January 4th, or at any point during the harrowing two days that followed. “[F]rom my very first conversation with the Vice President on the subject, his immediate instinct was that there is no way that one person could be entrusted by the Framers to exercise that authority,” Jacob testified. “And never once did I see him budge from that view, and the legal advice that I provided him merely reinforced it. So, everything that he said or did during [the January 4th meeting in the Oval Office] was consistent with his first instincts on this question.”166 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 95.

January 4, 2021: President Trump Publicly Pressures the Vice President During a Rally Speech in Georgia.

President Trump did not relent either. His instinct was to increase public pressure on Vice President Pence, despite the Vice President’s consistent message to President Trump about the limits of his authority. That evening, during a Senate campaign rally in Dalton, Georgia, President Trump made it seem as if the Presidential election hadn’t already been decided and projected his unhinged ambitions onto his opponents.167 “Donald Trump Rally Speech Transcript Dalton, Georgia: Senate Runoff Election,” Rev, (Jan. 4, 2021), available at https://perma.cc/VAD2-TWVQ (“Hello, Georgia, by the way. There’s no way we lost Georgia. There’s no way. That was a rigged election, but we’re still fighting it and you’ll see what’s going to happen. We’ll talk about it.”). President Trump claimed that “there’s nothing the radical Democrats will not do to get power that they so desperately crave,” including “the outright stealing of elections, like they’re trying to do with us.”168 “Donald Trump Rally Speech Transcript Dalton, Georgia: Senate Runoff Election,” Rev, (Jan. 4, 2021), available at https://perma.cc/VAD2-TWVQ.

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“We’re not going to let it happen,” President Trump said, adding, “I hope Mike Pence comes through for us, I have to tell you.” President Trump called Vice President Pence a “great vice president,” a “great guy,” as well as a “wonderful” and “smart man.” But he alluded to the Vice President’s role, “he’s going to have a lot to say about it,” and added an ominous note. “Of course, if he doesn’t come through, I won’t like him quite as much,” President Trump said.169 “Donald Trump Rally Speech Transcript Dalton, Georgia: Senate Runoff Election,” Rev, (Jan. 4, 2021), available at https://perma.cc/VAD2-TWVQ.

January 5, 2021: Eastman Pressures Pence’s Staff in a Private Meeting While President Trump Tweets.

In a Reversal of Where the Oval Office Meeting Ended the Day Before, Eastman Argues that Pence Should Reject Electors Outright.

Eastman met with Jacob and Short again the following day.170 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 96, 105; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), p. 201; Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), VP-R0000182. During the Oval Office meeting the Vice President had made clear that he would not unilaterally reject electors, and, by pivoting to recommend the Vice President send the electors back to the States, Eastman seemed to recognize this. But the following morning, Eastman returned to pressing for the more “aggressive” path.171 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short Deposition (Jan. 26, 2022) p. 201; see also, Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob (Feb. 1, 2022) pp. 92, 94, 106; 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.

Jacob recorded Eastman’s request on January 5, 2021, in a handwritten note: “Requesting VP reject.”172 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Greg Jacobs Production), CTRL0000070421, p. 1 (Jan. 5, 2021, Greg Jacob handwritten notes). Jacob later summarized Eastman’s remarks as follows: “I’m here asking you to reject the electors.”173 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; See also Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 92 (“He, again, came into the meeting saying, ‘What I’m here to ask you to do is to reject the electors.’”). This overnight reversal surprised Jacob because Eastman was returning to the more aggressive position he had seemed to abandon in the Oval Office meeting the day before.174 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 93–95. Eastman acknowledged to Jacob that the previous day’s discussions had included the “send it back to the states” path, but he reaffirmed that the ask on the morning of January 5th was to reject electors outright. Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 105; 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 (“So on the 4th, that had been the path that he had said, ‘I am not recommending that you do that,’ but on the 5th, he came in and expressly requested that.”). President Trump’s tweets that morning may explain Eastman’s reversal. While Eastman was meeting with the Vice President’s staff, his client, President Trump, was pressing the argument publicly.

At 11:06 a.m. on the morning of January 5th, President Trump tweeted: “The Vice President has the power to reject fraudulently chosen electors.” As his tweet made clear, President Trump would not be persuaded by reason—or the law. The President made this public statement despite the Vice President’s clear and consistent rejection of this theory including during an in-person meeting the day before. During that same meeting, Eastman conceded that this “aggressive” path of rejecting electors was not advisable.

Herschmann briefly participated in the January 5th meeting, seeing it as “an opportunity . . . to just chew [Eastman] out.”175 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), pp. 24-25. Herschmann had already pushed back “brutal[ly]” on Eastman’s theory regarding the Vice President. In this conversation, he emphasized the need to fact check dubious claims of election fraud.176 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), pp. 26-27. Herschmann told Eastman that “someone better make sure” that the allegations Eastman provided to members of Congress were accurate before they objected to the certification of the vote the next day.177 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 24. “[N]othing should come out of someone’s mouth that [isn’t] independently verified and [] reliable.”178 Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 24.

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At the End of the Morning Meeting, Eastman Concedes to Pence’s Counsel That His Theory Has No Historical Support.

Jacob then had his own “Socratic” debate with Eastman over the legal merits of his position. According to Jacob, Eastman conceded much ground by the end of the session. Eastman “all but admitted that it [his plan] didn’t work.”179 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 107, 117.

For example, Eastman had previously claimed to have found historical support in the actions of John Adams and Thomas Jefferson, who both presided over the counting of electoral votes when they were Vice President. Not so. Jacob told the Select Committee that Eastman conceded in private that the cases of Jefferson and Adams did not serve “as examples for the proposition that he was trying to support of a Vice Presidential assertion of authority to decide disputes[,] because no dispute was raised in either case during the joint session.” Jacob added: “And, moreover, there was no [question] as to the outcomes in those States.”180 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 107–08. Jacob debated with Eastman all of the historical examples, concluding that in “the 130 years of practice” the Electoral Count Act had been followed “every single time”; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 109-10.

Eastman conceded that there was no historical support for the role that he and President Trump were pushing Vice President Pence to play. No Vice President—before or after the adoption of the Electoral Count Act—had ever exercised such authority. This included then-Vice President Richard Nixon’s handling of the electoral votes of Hawaii following the 1960 election. Though Eastman and other Trump lawyers used this Hawaii example to justify the theory that the Vice President could unilaterally choose which electors to count, Eastman admitted to Jacob that Vice President Nixon had not in fact done what Eastman was recommending Vice President Pence do.181 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 108. What Jacob found when he looked into the Nixon example is that first, there were no competing slates of electors from Hawaii. In fact, a Republican slate was originally certified by the outgoing Governor, but after a judicially ordered recount, it was clear that the Democratic candidate had won, and the incoming Governor certified a new slate consistent with the outcome of the election after the recount. Then-Vice President Nixon, when he arrived at Hawaii in the joint session, “magnanimously” acknowledged that it was clear that Hawaii’s votes for Kennedy were the correct votes and called for objections (of which there were none). This precedent was therefore an example of the Vice President complying with the Electoral Count Act’s procedures regarding objections to electors. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 15-16.

Eastman also admitted that he would not grant the expansive powers he advocated for Vice President Pence to any other Vice President. Eastman did not think that Vice President Kamala Harris should have such power in 2025, nor did he think that Vice President Al Gore should have had such authority in 2001.182 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 110. He also acknowledged that his theory would lose 9-0 at the Supreme Court.183 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 110 (“[H]e ultimately acknowledged that none of [the Justices] would actually back this position when you took into account the fact that what you have is a mildly ambiguous [constitutional provision], a nonsensical result that has all kinds of terrible policy implications, and uniform historical practice against it”).

According to Jacob, Eastman “acknowledged by the end that, first of all, no reasonable person would actually want that clause [of the 12th Amendment] read that way because if indeed it did mean that the Vice President had such authority, you could never have a party switch thereafter.” If politicians followed Eastman’s advice, “[y]ou would just have the same party win continuously if indeed a Vice President had the authority to just declare the winner of every State.”184 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 110.

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The Vice President’s office was unmoved by Eastman’s specious reasoning. As he left Marc Short’s office, Eastman was thinking of his client’s reaction. “They’re going to be really disappointed that I wasn’t able to persuade you,” Eastman said.185 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 111. Jacob told the Select Committee he did not know to whom Eastman was referring when he indicated “they” would be disappointed that Vice President Pence had not been convinced it was appropriate to reject electors.

Former Republican Officials with Executive, Legislative, and Judicial Experience All Agreed with Vice President Pence’s Conclusion about His Limited Role at the Joint Session.

John Michael Luttig testifies before the Select Committee on June 16, 2022. Photo by House Creative Services

As President Trump’s pressure campaign intensified, the Vice President’s outside counsel, Richard Cullen, turned for support to John Michael Luttig, a conservative former judge of the U.S. Court of Appeals for the Fourth Circuit.186 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 95–96, 210–11. Eastman had clerked for Luttig—a man with impeccable legal and conservative credentials—more than two decades prior. Luttig rejected Eastman’s so-called legal analysis of the Vice President’s role in no uncertain terms. In a series of tweets, posted at 9:53 a.m. on January 5th, Luttig set forth his legal conclusions.

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“The only responsibility and power of the Vice President under the Constitution is to faithfully count the electoral college votes as they have been cast,” Judge Luttig wrote. “The Constitution does not empower the Vice President to alter in any way the votes that have been cast, either by rejecting certain of them or otherwise.”187 J. Michael Luttig (@judgeluttig), Twitter, Jan. 5, 2021 9:53 a.m. ET, et seq., available at https://twitter.com/judgeluttig/status/1346469787329646592 (“The only responsibility and power of the Vice President under the Constitution is to faithfully count the electoral college votes as they have been cast,”).

Confusion in the media about where the Vice President stood on this issue prompted former Speaker of the House Paul Ryan to reach out to the Vice President to share his belief that the Vice President had no unilateral authority.188 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 151-52. Short also spoke with former Speaker Ryan and as he testified to the Select Committee, “I said to him, Mr. Speaker, you know Mike . . . you know he recognizes that. And we sort of laughed about it, and he said, I get it.”189 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 151-52.

The Vice President also consulted with former Vice President Dan Quayle, who reinforced and affirmed Vice President Pence’s consistent understanding of his role.190 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 152, 209; see also Tom Hamburger, Josh Dawsey, and Jacqueline Alemany, “Jan. 6 Panel Grapples with How to Secure Testimony from Lawmakers, Pence,” Washington Post, (Jan. 15, 2022), available at https://www.washingtonpost.com/politics/2022/01/15/jan-6-subpoenas-committee (“‘I did not notice any hesitation on his part,’ Quayle said of his conversation with Pence. ‘I interpreted his questions as looking for confirmation that what he was going to do was right and that he had no flexibility. That’s the way I read it. Given the pressure he was under, I thought it was perfectly normal, very smart on his part to call me.’”).

January 5, 2021: President Trump Again Pressures Vice President Pence in a One-on-One Meeting at the White House and Another Phone Call with Eastman.

President Trump demanded to see Vice President Pence again that same day. Vice President Pence had canceled a planned lunch with President Trump, intending to work on the statement he planned to issue on January 6th to explain publicly why he wouldn’t bow to the President’s pressure.191 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 157. But Pence couldn’t avoid Trump. Vice President Pence had to delay a Coronavirus Task Force meeting later that same day when he was called to the Oval Office to meet with the President.192 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 158; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 215-17.

The two men met alone, without staff present. While we have not developed direct evidence of what was discussed during this one-on-one meeting between the President and Vice President, it did not change the fundamental disagreement between them about the limits of the Vice President’s authority during the joint session. Jacob said the Vice President left the meeting “determined.”193 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 157-58. Vice President Pence did tell Marc Short what transpired during the meeting, but Short refused to tell the Select Committee what was said.194 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), p. 215. Short described Vice President Pence’s demeanor as “steady.”195 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), p. 216. Short testified that the below excerpt from the book Peril may have been sensationalized but was generally consistent with Short’s understanding of the discussion:

“If these people say you have the power, wouldn’t you want to?” Trump asked.

“I wouldn’t want any one person to have that authority,” Pence said.

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“But wouldn’t it almost be cool to have that power?” Trump asked.

“No,” Pence said. “Look, I’ve read this, and I don’t see a way to do it. We’ve exhausted every option. I’ve done everything I could and then some to find a way around this. It’s simply not possible. My interpretation is: No. . . .

“No, no, no!” Trump shouted. “You don’t understand, Mike. You can do this. I don’t want to be your friend anymore if you don’t do this.”196 Bob Woodward and Robert Costa, Peril, (New York: Simon & Schuster, 2021), p. 229; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 215-16.

Later that day, Jacob and Short were both present for a call between President Trump and Vice President Pence.197 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 160. Eastman and at least one other lawyer were with President Trump on the call as well.198 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 220-22; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 116, 120. Note that Marc Short recalled that it was this afternoon phone call that led to the in-person meeting between Eastman and Jacob, however, documents received by the Select Committee and Jacob’s more detailed recollection of his interactions with Eastman establishes that the in-person meeting occurred in the morning of January 5, 2021.

Eastman recognized that Vice President Pence was not going to change his mind on rejecting electors outright, but he still asked if the Vice President would consider sending the electors back to the States.199 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. (describing the message on this phone call between the Vice President and President Trump with Eastman’s participation as, “Well, we hear you loud and clear, you are not going to reject. But remember last night, I said that there was this more prudent course where you could just send it back to the States? Would you be willing to do that[?]”); see also Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 96-97, 120. “I don’t see it,” Vice President Pence responded, “but my counsel will hear out whatever Mr. Eastman has to say.”200 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 121.

Jacob received other calls from Eastman on January 5th.201 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 121-22 (describing calls from Eastman and at least one other lawyer (likely either Kurt Olsen or Bill Olson)). Jacob told the Select Committee that he had a detailed discussion with Eastman concerning the ways his proposal would violate the Electoral Count Act.202 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 122-23. Eastman resorted to a ridiculous argument—comparing their current situation to the crisis that faced President Abraham Lincoln during the Civil War. Eastman invoked President Lincoln’s suspension of the writ of habeas corpus.203 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 123 (recounting Eastman’s argument that election fraud was resulting in the Constitution being “shredded across all these different states” and comparing it to the Civil War). He also told Jacob to “stay tuned” because “we” were trying to get some letters from State legislators indicating that they were interested in the Vice President sending the electors back to the States.204 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 122-24.

January 5, 2021: An Accurate New York Times Article about the Vice President Prompts a False Statement in Response by President Trump.

On the evening of January 5th, The New York Times published an article titled, “Pence Said to Have Told Trump He Lacks Power to Change Election Result.”205 Maggie Haberman and Annie Karni, “Pence Said to Have Told Trump He Lacks Power to Change Election Result,” New York Times, (Jan. 5, 2021), available at https://web.archive.org/web/20210106003845/https://www.nytimes.com/2021/01/05/us/politics/pence-trump-election-results.html. The same Times reporters had also published on January 4th an article again accurately reporting that President Trump “had directly pressed Mr. Pence to find an alternative to certifying Mr. Biden’s win.” Annie Karni and Maggie Haberman, “Pence’s Choice: Side with the Constitution or His Boss,” New York Times, (Jan. 4, 2021), available at https://www.nytimes.com/2021/01/04/us/politics/pence-trump.html. The Times reported on the tension brewing within the White House, citing “people briefed on the conversation” between President Trump and Vice President Pence that had taken place in the Oval Office the previous day. “Vice President Mike Pence told President Trump on Tuesday [January 4th] that he did not believe he had the power to block congressional certification of Joseph R. Biden, Jr.’s victory in the presidential election despite Mr. Trump’s baseless insistence that he did,” the Times reported.206 Maggie Haberman and Annie Karni, “Pence Said to Have Told Trump He Lacks Power to Change Election Result,” New York Times, (Jan. 5, 2021), available at https://www.nytimes.com/2021/01/05/us/politics/pence-trump-election-results.html.

The Times’ report was published at approximately 7:36 that evening.207 Maggie Haberman and Anne Karni, “Pence Said to Have Told Trump He Lacks Power to Change Election Result,” New York Times, (Jan. 5, 2021), available at https://web.archive.org/web/20210106003845/https://www.nytimes.com/2021/01/05/us/politics/pence-trump-election-results.html (archived version showing original publication date of Jan. 5, 2021, at 7:36 p.m. ET). Jason Miller called President Trump to make sure he had seen it.208 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Jason Miller, (Feb. 3, 2022), pp. 169-70. President Trump spoke to Miller at least twice, once at 8:18 p.m. and a second time at 9:22 p.m.209 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000007439, (CTRL0000082597) (January 5, 2021, White House Presidential call log). Immediately after concluding his second call with Jason Miller, President Trump asked to speak to the Vice President; President Trump and Vice President Pence spoke from 9:33 to 9:41 p.m.210 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000007439, (CTRL0000082597) (January 5, 2021, White House Presidential call log). President Trump also spoke with Steve Bannon and Eastman, among others.211 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000007439, (CTRL0000082597) (January 5, 2021, White House Presidential call log).

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At 9:58 p.m. on January 5th, President Trump issued a statement that he had dictated to Jason Miller disputing the Times’ account.212 Meredith Lee (@meredithllee), Twitter, Jan. 5, 2021, 9:58 p.m. ET, available at https://twitter.com/meredithllee/status/1346652403605647367?lang=en (emphasis added); Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Jason Miller, (Feb. 3, 2022), p. 175 (“[T]ypically on these, I might have a couple of wording suggestions . . . ultimately the way this came out was the way he wanted [it] to.”); see id at 174-76. President Trump lied—repeatedly—in his short statement.213 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; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), p. 224; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Chris Hodgson, (Mar. 30, 2022), pp. 184-85. The President claimed the article was “fake news.” It wasn’t. President Trump claimed he and Vice President Pence were “in total agreement that the Vice President has the power to act.” They weren’t. President Trump claimed the election “was illegal.” It wasn’t. President Trump then laid out Vice President Pence’s options for the next day, summarizing Eastman’s theory:

Our Vice President has several options under the U.S. Constitution. He can decertify the results or send them back to the [S]tates for change and certification. He can also decertify the illegal and corrupt results and send them to the House of Representatives for the one vote for one [S]tate tabulation.214 Meredith Lee (@meredithllee), Twitter, Jan. 5, 2021, 9:58 p.m. ET, available at https://twitter.com/meredithllee/status/1346652403605647367?lang=en.

This was also a blatant attempt to mischaracterize the Vice President’s position in the hope that public opinion would somehow sway the resolute Vice President. President Trump knew full well at the time that he and Vice President Pence were not “in total agreement.” The Vice President’s counsel, Greg Jacob, was shocked by the statement.215 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 161 (“[W]hoever drafted the statement it was not accurate.”). “[T]he Vice President was not in agreement that the Vice President had the power to take the actions that were being asked of him that day,” Jacob later told the Select Committee.216 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 161. Marc Short was furious as well and called Jason Miller to forcefully “express [his] displeasure that a statement could have gone out that misrepresented the Vice President’s viewpoint without consultation.”217 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), p. 224; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 163.

The Vice President was “obviously irritated that a statement putting words in his mouth” was issued by the President and considered issuing his own statement contradicting President Trump’s.218 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), p. 223. Ultimately, Pence and Short concluded that it was not worthwhile since it was already late in the evening and they expected the question to be resolved by Vice President Pence’s “Dear Colleague” letter the next day.219 Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), p. 223.

January 5, 2021: Bannon Publicly Amplifies the Pressure on Vice President Pence.

While President Trump misrepresented the Vice President’s agreement with Eastman’s theory, his on-again, off-again political advisor, Steve Bannon, pressed President Trump’s campaign against Vice President Pence in public. Bannon echoed the public pressure on Pence that the President continued to propagate by talking about his purported authority. The Select Committee learned from phone records that Bannon spoke to President Trump at least twice on January 5th.220 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), CTRL0000082597, (reflecting calls with Mr. Stephen Bannon on Jan. 5, 2021, from 8:57 a.m. to 9:08 a.m. and from 9:46 p.m. to 9:52 p.m.).

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During a January 5, 2021, episode of War Room: Pandemic, Bannon and his guests openly berated Vice President Pence. Bannon cited an erroneous news report claiming that Senator Grassley would preside over the certification of the electoral college vote—instead of Vice President Pence.221 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Select Committee Transcription), CTRL0000082317 (Jan. 5, 2021, Steve Bannon War Room Transcript) (Bannon: “All hell is going to break loose tomorrow. Just understand this: All hell is going to break loose tomorrow. It’s going to be quick . . . It’s the fog of war.” Bannon discussed putting Sen. Grassley’s number on the screen, and suggested they encourage users at TheDonald.win to contact the Senator. (At the time, users at TheDonald.win were openly planning for violence and to surround the U.S. Capitol on January 6. See Chapter 6.) Bannon told his audience. “I’ll tell you this, it’s not going to happen like you think it’s going to happen, Ok? It’s going to be quite extraordinarily different. And all I can say is strap in.”). Bannon’s cohost, Raheem Kassam, took credit for the public pressure placed on Vice President Pence. “I want to remind people who has been sitting here, saying ‘Light Pence Up’ for the last couple of weeks. Right? That would be Raheem Kassam.” They then discussed President Trump’s speech in Georgia the previous evening. “I think the President of the United States took your advice last night, wrote a line in there,” Bannon said. To which Kasseem responded: “. . . and yours . . . hold the line.”

Jack Posobiec, an alt-right personality with a large Twitter following, chimed in quoting a member of their audience as saying that “Pence will betray Donald Trump.”222 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Select Committee Transcription) CTRL0000082317, (Jan. 5, 2021) (Steve Bannon War Room Transcript). In response, Bannon stated: “Call the play. Run the play.”223 Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Select Committee Transcription) CTRL0000082317, (Jan. 5, 2021) (Steve Bannon War Room Transcript).

The “play” was Bannon’s version of the “Green Bay Sweep”—a plan to subvert the transfer of power on January 6th named for a brutally effective power running play developed in the National Football League (NFL) in the 1960’s. Steve Bannon’s political version of the sweep was intended to undermine the legitimate results of the 2020 presidential election.

One account of Bannon’s “Green Bay Sweep” comes from Peter Navarro, Director of the White House Office of Trade and Manufacturing Policy. Navarro refused to cooperate with the Select Committee and was subsequently indicted for contempt of Congress. Although he doesn’t fully explain in his book, In Trump Time: A Journal of America’s Plague Year, how Bannon’s sweep was intended to work, Navarro writes that Vice President Pence was envisioned as the “quarterback” who would “assert his constitutional power” to delay certification.224 Peter Navarro, In Trump Time: A Journal of America’s Plague Year (St. Petersburg, FL: All Seasons Press, 2021), p. 252. Navarro writes that his own role was to “carefully document the fraud and myriad election irregularities,” while Bannon’s “role was to figure out how to use this information—what he called the ‘receipts.’”225 Peter Navarro, In Trump Time: A Journal of America’s Plague Year (St. Petersburg, FL: All Seasons Press, 2021), p. 263.

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On this cold, momentous day, I shiver as I think to myself, “January 6 will be either Mike Pence’s finest hour or the traitorous ‘Et tu, Brute?’ end of both his and Donald Trump’s political careers.”227 Peter Navarro, In Trump Time: A Journal of America’s Plague Year (St. Petersburg, FL: All Seasons Press, 2021), p. 252.

The goal of these Trump allies was clear: to overturn the election result.228 Peter Navarro, In Trump Time: A Journal of America’s Plague Year (St. Petersburg, FL: All Seasons Press, 2021), p. 263. Statements by participants in this effort indicate there were several different endgame strategies in mind. One was to get the Vice President to unilaterally reject the Electoral College votes of Arizona, Georgia, Pennsylvania, and other States, then simply declare that Trump had won a majority of the electors actually submitted. The other major possibility was to reject or “return” the Electoral College votes of these States and then declare there was no majority in the Electoral College process, thereby triggering a so-called contingent election under the 12th Amendment.229 See e.g., Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chapman University Production), Chapman052976. This would have meant that the House of Representatives had chosen the president not on the basis of one-member-one-vote, but on the basis of one-State-one-vote, pursuant to the 12th Amendment. Donald Trump’s strategists emphasized repeatedly that the GOP had a 27-to-22 margin in control of the States’ Congressional delegations, with Pennsylvania being tied at 9-to-9, therefore presumably a non-factor.