A day before a mob of Donald Trump supporters smashed their way into the Capitol to disrupt the transfer of presidential power, then-Vice President Mike Pence’s top lawyer dashed off a fateful memo.
In the three-page document, attorney Greg Jacob concluded that if Pence were to embrace Trump’s demand that he single-handedly block or delay the counting of electoral votes on Jan. 6, he would be breaking multiple provisions of the Electoral Count Act, the law that has governed the transfer of power since 1887.
Such a move, Jacob concluded, would assuredly fail in court. Or worse, he said, the courts would refuse to get involved and leave America in an unprecedented political crisis.
In that case, he said in a memo obtained by POLITICO and published for the first time, “the Vice President would likely find himself in an isolated standoff against both houses of Congress… with no neutral arbiter available to break the impasse.”
Jacob is scheduled to testify publicly Thursday to the Jan. 6 select committee about Pence’s decision to resist Trump’s pressure campaign. The panel declined to comment on Jacob’s memo.
The memo informed Pence’s ultimate decision to rebuff pressure from Trump to reverse the outcome of the election. Pence announced his decision the next day, when he traveled to the Capitol to preside over the Jan. 6 meeting of the House and Senate. His decision, in a letter that closely tracked Jacob’s memo, inflamed a crowd of thousands of Trump supporters that the president had called on Washington to protest his defeat.
Within an hour of Pence’s announcement, hundreds of members of that mob would bludgeon their way past police lines and into the Capitol itself, sending the vice president and members of Congress fleeing for safety. Some members of that mob chanted, “Hang Mike Pence.”
The Jan. 6 select committee has had Jacob’s memo for months. It’s an important element of the panel’s view that Trump criminally conspired to overturn the election, when his legal challenges had all failed. Pence’s team firmly believed that embracing Trump’s push to block Joe Biden’s presidency would require numerous violations of the Electoral Count Act, a position they had relayed to both Trump and attorney John Eastman, the conservative lawyer who developed Trump’s fringe legal strategy to remain in power.
Jacob’s memo, titled “Analysis of Professor Eastman’s Proposals,” is dated Jan. 5. But Jacob told the select committee in February he drafted most of it a day earlier in response to an intense first-time meeting with Eastman.
A federal judge has agreed that Eastman’s strategy is likely to be entered into criminal territory. U.S. District Court Judge David Carter ruled in March that Eastman’s legal theories were outcome-driven and unsupported – he dubbed it “a coup in search of a legal theory” – and that effort to obstruct the counting of electoral votes likely likely to a criminal conspiracy with Trump.
In his memo, Jacob said Eastman acknowledged his proposal would require Pence to violate the Electoral Count Act in four ways. They included rejecting the law’s requirements that 1) Pence count all electoral votes from states in alphabetical order, resolving any disputes before moving on to the next state; 2) Pence call for any objects from lawmakers after introducing each state’s slate of electors; 3) lawmakers be permitted to consider competing slates of electors; and 4) the session of Congress cannot be adjourned once it starts and must conclude within five days.
“Eastman’s proposal, by contrast, contemplate[s] an extended recess of the joint session to allow State legislatures to investigate the election and to vote on which slate of electors to certify, ”Jacob noted.
Eastman spent the final weeks before Jan. 6 agitating for Republican-controlled legislatures in a handful of states won by Biden to appoint their own competing slate of electors. In that scenario, Eastman posited, Pence would be required to consider these “dueling” slates. But no state legislature agreed to follow Eastman’s advice. Instead, pro-Trump officials met and sent their own uncertified slates of electors to Congress, but without the blessing or backing of any legislature or governor.
Without that certification, Eastman began pushing Pence to adopt a different tactic: delay. He urged Pence to declare the results in a handful of states to be in dispute and to recess the joint session of Congress until those legislatures could resolve the controversy.
Jacob’s Jan. 5 memo could be seen as the bookend of his month-long legal cramming session on the Electoral Count Act. Jacob drafted an opening memo for Pence on Dec. 8, previously obtained and published by POLITICO, that informed Pence’s initial thinking on the question but drew no firm conclusions. By Jan. 5, Pence’s team had clearly decided there was no viable path to pursue Trump and Eastman’s strategy.
Notably, Jacob indicated that if any state legislatures had, in fact, certified a pro-Trump slate, the vice president might have taken a different path.
“A reasonable argument might be further made that when resolving a dispute between competing electoral slates, Article II, Section 1 of the Constitution places a firm thumb on the scale on the side of the State legislature,” Jacob wrote.
“Here, however, no State legislature has appointed or certified any alternate slate of electors,” Jacob noted, “and Professor Eastman acknowledges that most Republican legislative majorities in the States have signaled they have no intention of doing so.”
In justifying his conclusions, Jacob cited former Supreme Court Justice Joseph Bradley, who helped resolve the disputed election of 1876. In breaking a political logjam – the very dispute that led to the passage of the Electoral Count Act – Bradley determined that the vice president had no role deciding the validity of electoral votes. Federal courts in Washington DC, Jacob added, were very likely to agree with that.
Instead, Eastman had been banking on something that could create even more chaos: the courts refusing to step in. Under the so-called “political question doctrine,” courts often avoid weighing in on murky disputes between the legislative and executive branches of government. But Jacob even said that the scenario would not work out in Trump and Eastman’s favorite.
“[I]t is unclear that any favorable political solution could follow, ”he wrote.
Jacob’s judgment also influenced two changes Pence made to the vice presidential script when he presided over the Jan. 6 session – before and after the mob ransacked the Capitol. In one, Pence made it clear that he was only introducing presidential electors that had been certified by a state government – and refusing to introduce uncertified slates sent by pro-Trump activists. In the other, he explicitly asked whether there were objections by House and Senate lawmakers after each state’s electors were introduced.
On Jan. 6, just as rioters were bearing down on the Capitol, Eastman made a last-ditch plea with Jacob to convince Pence to reconsider. In an email, he showed Pence a letter suggesting that Republican legislators in Pennsylvania appeared likely to reconvene and appoint pro-Trump electors if they had more time. When Jacob said any effort to send the matter back to the states would still violate the law, Eastman called his response “small minded.”
“You’re sticking with minor procedural statutes while the Constitution is being shredded,” Eastman wrote.
“I respect your heart here,” Jacob replied. “I share your concerns about what Democrats will do once in power. I want election integrity fixed. But I have run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a results oriented position that you would never support if attempted by the opposition, and essentially entirely made up. ”
“And thanks to your bullshit,” he continued, “we are now under siege.”