Such a move, Jacob concludes, would surely fail in court. Or worse, he said, the courts would refuse to get involved and leave America in an unprecedented political crisis.
If so, he said in the memo obtained by POLITICO and first published, “the vice president would likely find himself in an isolated stalemate against both houses of Congress…with no neutral arbiter available to come out.” dead end”.
Jacob is due to testify publicly Thursday before 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 final decision to fend off Trump’s push to reverse the election result. Pence announced his decision the following 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 followed Jacob’s memo, inflamed a crowd of thousands of Trump supporters the president had called to Washington to protest his defeat.
Within an hour of Pence’s announcement, hundreds of members of that mob were forcing their way past police lines and into the Capitol itself, sending the vice president and members of Congress fleeing for their safety. Some members of that crowd chanted “Hang Mike Pence.”
The Jan. 6 select committee had Jacob’s note for months. It is an important part of the panel’s opinion that Trump criminally conspired to void the election, when his legal challenges had all failed. Pence’s team strongly believed that embracing Trump’s push to block Joe Biden’s presidency would necessitate numerous voter count law violations, a position they conveyed to both Trump and the attorney. John Eastman, the conservative lawyer who developed Trump’s fringe legal strategy to stay in power.
Jacob’s memo, titled “Analysis of Professor Eastman’s Proposals,” is dated January 5. But Jacob told the select committee in February that he had drafted most of it a day earlier in response to an intense first meeting with Eastman.
A federal judge agreed that Eastman’s strategy likely veered into criminal territory. US District Court Judge David Carter ruled in March that Eastman’s legal theories were results-oriented and unsubstantiated – he dubbed it ‘a coup in search of a legal theory” – and that the effort to obstruct the electoral vote count likely amounted to a criminal conspiracy. with Trump.
In his memo, Jacob said Eastman acknowledged his proposal would force Pence to violate the Voter Count Act in four ways. They notably rejected the law’s requirements that 1) Pence count all state electoral votes in alphabetical order, resolving any disputes before moving on to the next state; 2) Pence calls for any objections from lawmakers after presenting each state’s voters list; 3) legislators be allowed to consider competing voter lists; and 4) the session of Congress cannot be adjourned once it has begun and must end within five days.
“Eastman’s proposal, on the other hand, contemplates[s] an extended suspension of the joint session to allow state legislatures to investigate the election and vote on the list of voters to be certified,” Jacob noted.
Eastman has spent the final weeks leading up to Jan. 6 campaigning for Republican-controlled legislatures in a handful of Biden-winning states to name their own slates of competing voters. In this scenario, Eastman posited, Pence would be bound to consider these “duel” slates. But no state legislature agreed to take Eastman’s advice. Instead, pro-Trump activists got together and sent their own lists of uncertified voters to Congress, but without the blessing or support 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 suspend the joint session of Congress until those legislatures can resolve the controversy.
Jacob’s Jan. 5 memo could be seen as the end of his month-long legal learning session on the voter count law. Jacob wrote an opening memo for Pence on Dec. 8, previously obtained and published by POLITICO, which informed Pence’s initial thinking on the matter but drew no definitive conclusions. By January 5, Pence’s team had clearly decided that there was no viable path to pursue Trump and Eastman’s strategy.
Notably, Jacob indicated that if state legislatures had, in fact, certified a pro-Trump slate, the vice president might have taken a different route.
“A reasonable argument might further be made that in resolving a dispute between competing electoral rolls, Article II, Section 1 of the Constitution places a firm thumb on the scale on the side of the Legislature of the State,” Jacob wrote.
“Here, however, no state legislature has named or certified an alternative list of voters,” Jacob noted, “and Professor Eastman acknowledges that most Republican legislative majorities in the United States have signaled that they had no intention of doing so.”
To justify his conclusions, Jacob cited former Supreme Court Justice Joseph Bradley, who helped resolve the disputed election of 1876. By breaking a political deadlock – the very dispute that led to the passage of the Electoral Count Act – Bradley determined that the vice president had no role in determining the validity of electoral votes. Federal courts in Washington DC, Jacob added, were very likely to agree with that.
Instead, Eastman had bet on something that could create even more chaos: the courts refusing to intervene. Under the so-called “political question doctrine,” courts often avoid adjudicating on arcane disputes between the legislative and executive branches of government. But Jacob said even that scenario wouldn’t work in favor of Trump and Eastman.
“[I]It is not clear that a favorable political solution can 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 presenting presidential voters who had been certified by a state government — and refusing to present uncertified lists sent in by pro-Trump activists. In the other, he explicitly asked if there were any objections from House and Senate lawmakers after each state’s voters were introduced.
On January 6, as rioters descended on the Capitol, Eastman made a final appeal to Jacob to convince Pence to reconsider. In an email, he showed Pence a letter suggesting Republican lawmakers in Pennsylvania seemed likely to meet again and nominate pro-Trump voters if they had more time. When Jacob said any effort to refer the case to the states would still violate the law, Eastman called his response “small-minded.”
“You stick to minor procedural laws while the Constitution is being shredded,” Eastman wrote.
“I respect your heart here,” Jacob replied. “I share your concerns about what the Democrats will do once in power. I want the integrity of the elections repaired. But I have gone through all the legal avenues placed before me to their conclusion, and I respectfully conclude that as a legal framework, this is a results-oriented position that you would never support if it were tempted by the opposition, and essentially entirely made up.
“And thanks to your bullshit,” he continued, “we are now under siege.”