As forces loyal to Donald Trump began calling on Mike Pence to single-handedly stop Joe Biden from becoming president, the then-vice president dashed off a request in late 2020 to his top lawyer: Just how much power did he actually have over certifying electoral votes?
His counsel, Greg Jacob, replied the next day with a four-page legal memo that marked Pence’s first crash course in an arcane legal issue with historic consequences.
The memo launched Pence into a month-long sprint toward Jan. 6, 2021, as he and his team immersed themselves in the contradictory and complicated history of counting electoral votes.
Jacob’s analysis laid out the centuries-old debate about the vice president’s role in counting electoral votes. And while it doesn’t take a side on whether Pence had the power to reject votes or not, the Dec. 8 brief reveals how quickly after the election Pence and his team began to contemplate the limits of his role presiding over the Jan. 6 session of Congress — which was required by the Constitution.
The memo anticipated and addressed some of the legal arguments that Trump and his supporters would soon use to pressure Pence to overturn the results when he led Congress in counting Electoral College votes.
The memo was a hurried effort to get Pence familiarized with the contours of the issue. A person familiar with its drafting described it as written “overnight” in response to Pence’s request, which came just as Trump allies began pushing the notion that Pence could unilaterally keep the GOP president in power.
“This legal analysis … was presented to Vice President Pence amidst disinformation about his roles and responsibilities and based on his first request for information about the mechanics of the electoral vote count on January 6,” said the person, granted anonymity to speak candidly about the situation. The person said that it “provides facts rather than firm conclusions, because research was not yet complete.”
The Jan. 6 select committee has a copy of the memo, giving investigators a view into Pence’s thinking at the time.
Just two days before Jacob wrote his analysis, Trump’s campaign drafted a formal legal agreement with John Eastman, an attorney who would become the architect of Trump’s fringe effort to convince Pence to overturn the results. And just six days after the memo, the Electoral College would meet across the country and cast the votes finalizing Joe Biden’s victory.
The memo appears to be an initial bid to discuss Pence’s role in counting those votes. Jacob notably doesn’t take a position about whether Pence has the power to reject or refuse to count certain electoral votes — a position Pence would later forcefully reject amid pressure from Trump and Eastman.
Jacob’s memo also cites a debate among constitutional scholars about whether the Electoral Count Act, the law that has governed the counting of electoral votes since 1887, is itself unconstitutional. Eastman himself would embrace that argument later.
“Because there are only a few instances of historical practice under the Electoral Count Act, however, the question of its constitutionality remains muddy,” Jacob wrote, “and scholars continue to this day to debate the constitutionally appropriate role of the Vice President in resolving objections to electoral votes.”
Jacob cites historical examples of vice presidents using their power to resolve disputes during the counting of electoral votes that might have become a basis for Pence doing the same. He noted that John Adams and Thomas Jefferson resolved elector disputes in the early days of the republic.
And he noted that then-Vice President Richard Nixon appeared to violate the Electoral Count Act in 1961, when Nixon resolved a dispute over Hawaii’s electors without following the strict procedures.
The source familiar with the drafting of the memo, however, said Pence’s office later came to believe that Nixon’s actions were consistent with the Electoral Count Act, rather than in conflict with it.
Jacob’s memo also predated efforts by Trump supporters to send dueling slates of electors to Washington, part of an effort to create a controversy that Pence would be forced to resolve on Jan. 6.
“As of the date of this memorandum, it does not appear that any State will have submitted a competing slate of electors,” Jacob noted, reflecting the expectation at the time.
Jacob also underscored that the Electoral Count Act’s long-used process for resolving disagreements — with the vice president serving a “purely ministerial” role — had successfully resolved disputes the last three times a GOP president was elected: 2000, 2004 and 2016.
In all three, he wrote, Democrats “raised objections to the counting of electoral votes, and in each instance the process that the Electoral Count Act prescribes for resolving electoral vote disputes was followed.”
At the time Jacob wrote the memo, Pence had been largely silent in public about what he would do when the Jan. 6 session convened. That was in part because Trump was still pushing a legal effort to overturn the results in some states, before he turned his attention to his vice president.
In fact, Pence’s request for Jacob’s memo came the same day Texas filed a Supreme Court lawsuit — backed by Trump — to throw out electors from four states Biden won. Eastman would submit a Supreme Court brief two days later.
Pence remained publicly silent about his intentions until the morning of Jan. 6, 2021, but he began privately signaling weeks earlier that he would resist the extreme proposals pushed by Trump and Eastman.
Over time, Jacob would conclude that the law and the Constitution failed to support any of Eastman’s ideas.
His opposition was captured most comprehensively in a memo from Jan. 5, 2021, that is also in the select committee’s possession. That memo from Jacob to Pence describes the former’s fierce disagreements with Eastman, who he came to believe was urging Pence to violate the Electoral Count Act in multiple ways.
That memo, which has not been made public, represented a final rejection of Trump’s pressure campaign, which Pence voiced on Jan. 6. It came after a fierce Jan. 4 debate between Eastman and Pence’s team.
Jacob’s Jan. 5 memo, portions of which were read aloud during his deposition before the committee earlier this year, described four ways he believed Eastman was asking Pence to break the law.
“Professor Eastman acknowledges that his proposal violates several provisions of statutory law,” Jacob wrote in that memo. And it concludes: “If the Vice President implemented Professor Eastman’s proposal, he would likely lose in court.”
Among the violations of law that Jacob said Eastman asked for were a proposal for Pence to recess the electoral vote count for 10 days and a proposal to permit state legislatures to resolve elector disputes rather than Congress.
But according to Jacob, Eastman had considered a “best case scenario” in which no judge would ever rule on Pence’s violations of the law. Jacob indicated in his memo that judges might refuse to consider the dispute, deeming it a “political” question that needed to be resolved by Congress and the executive branch, rather than by the courts. Pence’s refusal negated those arguments.
On Jan. 6, as he presided over the session, Pence made two changes to the historical vice presidential script, explicitly rebuffing Eastman’s proposals. First, he emphasized that only electors certified by a state government would be considered — countering the notion that the alternate slates submitted by Trump supporters could be counted.
Then he explicitly offered lawmakers a chance to object to each state’s electors. That was a veiled rejection of Eastman’s plan to allow state legislatures to resolve the disputes instead.
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