Former Vice President Mike Pence’s attorney advised him on Jan. 5, 2021, that if he blocked the certification of electoral votes the following day as then-President Trump was urging him to do, he would likely face a loss in court or a “standoff” with Congress, according to a memo released for the first time on Saturday.
In the memo, which was obtained by Politico, Pence lawyer Greg Jacob evaluated a proposal from Trump legal adviser John Eastman on how Pence could refuse to count electoral votes from “any state for which an alternate but uncertified slate of electors has been submitted.”
“If the Vice President implemented Professor Eastman’s proposal, he would likely lose in court,” Jacob concluded. “In a best-case scenario in which the courts refused to get involved, the Vice President would likely find himself in an isolated standoff against both houses of Congress, as well as most or all of the applicable State legislatures, with no neutral arbiter available to break the impasse.”
Pence’s ultimate decision to go against Trump and continue as normal with the certification of votes led to tension between the two and made the then-vice president a target amid the violent insurrection on Jan. 6, where many Trump supporters expressed anger toward Pence over his refusal to overturn the election results.
Pence has since reiterated that he did not have the authority to do so. “President Trump is wrong. I had no right to overturn the election,” the former vice president said earlier this year. “The presidency belongs to the American people, and the American people alone. Frankly, there is almost no idea more un-American than the notion that any one person could choose the American president.”
The release of Jacob’s memo to Pence comes days after the first of a series of public hearings held by the House select committee investigating the Jan. 6 attack on the Capitol.
In Thursday’s prime-time hearing, the committee laid out the framework of its case asserting that Trump was at the center of an effort to remain in power that directly led to the Jan. 6 insurrection.
Jacob, who met with the House panel in February, is expected to testify in an upcoming hearing.
In the memo to Pence, Jacob noted that Eastman himself acknowledged his proposal would violate the 1887 Electoral Count Act and laid out multiple provisions of that law Pence would be breaking if he held up the certification as Eastman urged.
Jacob also said that Eastman’s advice was contradicted by the Electoral Commission of 1877 decision authored by a Supreme Court justice.
In that decision, Republican Supreme Court Justice Joseph Bradley wrote of the vice president: “He is not invested with any authority for making any investigation outside of the joint meeting of the two Houses.”
Jacob further noted that the proposal was “strongly in tension” with a federal district court ruling issued the previous day.
During the Capitol attack, Jacob emailed Eastman.
“And thanks to your bullshit, we are under siege,” he wrote.