POLITICO obtained the memo, dated December 8, 2020, and is posting its text here for the first time.
The memo launched Pence on a month-long sprint to Jan. 6, 2021, as he and his team delved into the contradictory and complicated history of the electoral vote count.
Jacob’s analysis exposed the age-old debate over the role of the vice president in counting electoral votes. And while he doesn’t take sides on whether or not Pence had the power to reject votes, the Dec. 8 memoir reveals how quickly after the election Pence and his team began to consider the limits of his role as January 6 president. session of Congress – which was required by the Constitution.
The memo anticipated and addressed some of the legal arguments Trump and his supporters would soon use to pressure Pence to nullify the results when he was leading Congress to count Electoral College votes.
The memo was a hasty effort to familiarize Pence with the contours of the issue. A person familiar with its writing described it as written “overnight” in response to Pence’s request, which came just as Trump allies began pushing the idea that Pence could unilaterally maintain the ruling GOP chairman.
“This legal analysis … was presented to Vice President Pence amid misinformation about his roles and responsibilities and based on his first request for information about the mechanics of the voter count on January 6,” the statement said. person, who granted anonymity to speak candidly about the situation. The person said it “provides facts rather than firm conclusions, as the research has not yet been completed.”
The Jan. 6 select committee has a copy of the memo, giving investigators some insight into Pence’s thinking at the time.
Just two days before Jacob wrote his analysis, the Trump campaign drafted a formal legal agreement with John Eastman, a lawyer 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 vote to finalize Joe Biden’s victory.
The memo appears to be an early attempt to discuss Pence’s role in tallying those votes. Jacob notably takes no position on whether Pence has the authority to reject or refuse to count certain electoral votes — a position that Pence would later forcefully reject under pressure from Trump and Eastman.
Jacob’s memo also cites a debate among constitutional scholars over whether the Electoral Count Act, the law that has governed the counting of electoral votes since 1887, is itself unconstitutional. Eastman himself would later adopt this argument.
“Because there are only a few examples of historical practice under the Vote Count Act, however, the question of its constitutionality remains unclear,” wrote Jacob, “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 could have become a basis for Pence to do the same. He noted that John Adams and Thomas Jefferson resolved electoral disputes in the early days of the republic.
And he noted that then-Vice President Richard Nixon appeared to have violated the Voter Count Act in 1961, when Nixon resolved a dispute over Hawaii voters without following strict procedures.
The source familiar with writing the memo, however, said Pence’s office later came to believe that Nixon’s actions were in accordance with the voter count law, rather than in conflict with that. -this.
Jacob’s memo also preceded efforts by Trump supporters to send dueling voter lists 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 has submitted a list of competing voters,” Jacob noted, reflecting expectations at the time.
Jacob also pointed out that the Voter Count Act’s longstanding process for resolving disagreements — with the vice president playing a “purely departmental” role — had successfully resolved disputes the last three times a GOP chair had been elected: 2000, 2004 and 2016.
In all three cases, he wrote, Democrats “raised objections to the vote count, and in each case the process prescribed by the Vote Count Act for resolving election disputes was followed.”
At the time Jacob wrote the memo, Pence had been largely silent in public about what he would do during the Jan. 6 session. That was partly because Trump was still pushing a legal effort to overturn the results in some states, before turning his attention to his vice president.
In fact, Pence’s request for Jacob’s memo came the same day Texas filed a Supreme Court suit — backed by Trump — to kick voters out of four states Biden won. Eastman will submit a brief to the Supreme Court two days later.
Pence remained publicly silent about his intentions until the morning of Jan. 6, 2021, but he began signaling privately 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 did not support any of Eastman’s ideas.
His opposition was captured more fully in a January 5, 2021 memo, which is also in the possession of the select committee. This memo from Jacob to Pence describes the former’s fierce disagreements with Eastman, who he said urged Pence to violate the Voter Count Act in several ways.
The memo, which has not been made public, represented a definitive rejection of Trump’s lobbying campaign, which Pence voiced on Jan. 6. It came after a fierce debate on Jan. 4 between Eastman’s team and Pence.
Jacob’s Jan. 5 memo, portions of which were read aloud during his testimony to the committee earlier this year, outlined four ways he said Eastman was asking Pence to break the law.
“Professor Eastman acknowledges that his proposal violates several provisions of statutory law,” Jacob wrote in this note. And he concludes: “If the Vice President implemented Professor Eastman’s proposal, he would probably lose in court.”
Among the legal violations Jacob said Eastman requested were a proposal for Pence to suspend voter counting for 10 days and a proposal to allow state legislatures to resolve disputes between voters instead. than Congress.
But according to Jacob, Eastman had envisioned a “best case scenario” in which no judge would ever rule on Pence’s violations of the law. Jacob said in his memo that the justices may decline to consider the dispute, viewing it as a “political” matter that should be resolved by Congress and the executive branch, rather than the courts. Pence’s denial denied those arguments.
On Jan. 6, while presiding over the session, Pence made two changes to the historic vice-presidency script, explicitly rejecting Eastman’s proposals. First, he stressed that only voters certified by a state government would be counted — countering the idea that alternative lists submitted by Trump supporters could be counted.
Then, he explicitly offered lawmakers the ability to oppose voters in every state. It was a veiled rejection of Eastman’s plan to allow state legislatures to resolve disputes instead.