Page:Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol.pdf/465

 Other individuals inside and outside the White House also advanced versions of the theory that the Vice President had agency in the joint session. The issue of Vice President Pence's role came up during a December meeting in the Oval Office. Either President Trump or his chief of staff, Mark Meadows, tasked John McEntee, the director of the Presidential Personnel Office, with researching the matter further. Though McEntee was one of President Trump's close advisors, he was not a lawyer and had no relevant experience. Yet, he wrote a one-page memo claiming that "the VP has substantial discretion to address issues with the electoral process."

This wasn't the only one-page analysis drafted by McEntee before January 6th. He later proposed a "middle path" in which he envisioned the Vice President accepting only half the electoral votes from six disputed States (specifically, Wisconsin, Michigan, Pennsylvania, Georgia, Arizona and Nevada). McEntee portrayed this as a way to avoid "disenfranchis[ing]" States while still achieving the desired result: delivering a second term to President Trump. McEntee conveyed this memo to the President with a cover note reading, "This is probably our only realistic option because it would give Pence an out." McEntee told the Select Committee that this judgment was based on his assessment that "it was, like, pretty obvious [the Vice President] wasn't going to just reject . . . the electors or whatever was being asked of him at that time."

Another advocate of a plan for the Vice President to play a role in the joint session was Jenna Ellis, a lawyer working for the Trump Campaign. She argued in two memos that Vice President Pence had the power to delay the counting of certified electoral votes. In the first memo, addressed to President Trump and dated December 31, 2020, Ellis advised that Vice President Pence should "not open any of the votes" from six States that "currently have electoral delegates in dispute." Ellis asserted that this "dispute" provided "sufficient rational and legal basis to question whether the [S]tate law and Constitution was followed." Ellis proposed a delay of ten days, as the Vice President and Congress awaited a "response from the [S]tate legislatures, which would then need to meet in an emergency electoral session." If any of the State legislatures "fails to provide a timely response, no electoral votes can be opened and counted from that [S]tate." Ellis claimed that Vice President Pence would not be "exercising discretion nor establishing new precedent," but instead "simply asking for clarification from the constitutionally appointed authority."

Ellis sent the substance of this memorandum in an email to Fox News host Jeanine Pirro on January 1, 2021, under the subject line "Constitutional