Jan. 6 hearing: How Eastman tried to get Pence to reject electoral votes

WASHINGTON — At the core of Thursday’s hearing by the Jan. 6 Select Committee stood the role of the vice president in the final certification of each state’s electoral votes — a role thrown into contention by a little-known lawyer named John Eastman.

The role of the vice president appears to be straightforward: Acting as president of the Senate, the 12th Amendment says, the vice president “shall in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”

But Eastman, then a law professor at Chapman University in Orange, California, devised a legal justification for Vice President Mike Pence to either throw out “disputed” electoral votes for seven states or at least to send those votes back to the state legislatures to reconsider.

Eastman interpreted the Electoral Count Act passed in 1887 — after a deadlocked presidential vote eventually resolved in a political deal — to mean that Pence could challenge the 2020 electoral counts through disputed slates of electors from states.

“Seven states have transmitted dual slates of electors to the President of the Senate,” Eastman wrote in a memo — even though state legislatures had not approved any of the alternate slates of electors.

“War gaming out several scenarios,” Eastman wrote in another memo, saying the vice president could reject “disputed” electors for Joe Biden. Eastman also wrote that under various scenarios Pence could simply declare Trump the winner.

Greg Jacob, the vice president’s counsel, told the panel that he read everything he could find on the 12th Amendment and the Electoral Count Act and determined through their text, structure and history that the vice president does not have the authority to overturn an election.

Pence adopted that view in December 2020 and “never budged,” Jacob said.

“There is no mention of rejecting or objecting to electors anywhere in the 12th Amendment. And so, the notion that the vice president could do that certainly is not in the text,” Jacob said.

On structure, Jacob cited the framers of the Constitution who divided powers of government and broke from a tyrant, King George III. “There was no way that they would have put in the hands of one person the authority to determine who was going to be president,” he said.

“And critically, no vice president in 230 years of history had ever claimed to have that kind of authority,” Jacob added.

In the days leading up to Jan. 6, 2021, Jacob told the committee he and Eastman debated Eastman’s theory. And Eastman repeatedly pressed for Pence to pause the election certification and send the seven sets of electoral votes back to the state legislatures for investigation.

Pence stood firm, and officers had to rush him to safety as Trump’s loyalists chanted “Hang Mike Pence.” In a secure Capitol location with Pence, Jacob sent an email to Eastman explaining why his legal theory was wrong. Jacob closed it with: “Thanks to your bullshit, we are now under siege.”

After law enforcement quelled the attack and Congress resumed the electoral count, Eastman sent an email to Jacob accusing Pence of violating the Electoral Count Act and urging him to tell Pence to pause the count to allow the seven states to reconsider their votes.

Jacob said he did not show Pence that email until a few days later. How did Pence react, the panel asked. “He said that's rubber room stuff,” Jacob said, meaning “certifiably crazy.”

Shortly after the riot, Eastman sent an email to Trump attorney Rudy Giuliani: “I’ve decided that I should be on the pardon list, if that is still in the works.”

He did not get a presidential pardon.