In the weeks after the 2020 election, then President Donald Trump waged an intense pressure campaign to get his vice president, Mike Pence, to overturn Joe Biden’s clear win.
Trump – and his sycophantic legal advisor, John Eastman – argued that Pence had the authority to reject Electoral College votes and withhold Congress’ seal of approval from Biden’s victory.
So Pence had a series of questions for his staff: what is Trump talking about and is it legal?
On Thursday, POLITICO published a memo from December 2020 prepared by Pence’s top lawyer, Greg Jacob, that served as a “crash course” on the vice president’s role in mitigating disputes about the Electoral College.
The outlet reports:
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.
“There is some historical evidence that Adams and Jefferson both resolved issues over the validity of electoral votes in their own favor,” Jacob wrote, referring to the nation’s first two vice presidents, before noting “Because there are only a few instances of historical practice under the Electoral Count Act..the question of its constitutionality remains muddy and scholars continue to this day to debate the constitutionally appropriate role of the Vice President in resolving objections to electoral votes.”
POLITICO adds:
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.”
While Jacob’s December memo was ambiguous, Pence’s office would soon realize that Trump was proposing an unconstitutional scheme.
In a second memo written by Jacobs, prepared the day before the presidential election was to be certified on January 6th, the lawyer argues that the plot cooked up by Trump and Eastman would likely lose in court if challenged.
Pence also solicited a legal brief from a conservative stalwart, Judge J. Michael Luttig, about the Trump and Eastman plan.
Luttig, a veteran of multiple GOP presidential administrations, argued that the plan was plainly illegal.
Pence would ultimate preside over the certification of the election just hours after a pro-Trump mob breached the Capitol and sought to execute him.
