Page:Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol.pdf/473

 ing electors was not supported by precedent and that the Supreme Court would never endorse it.

Jacob recorded his reflections on the January 4th meeting in a contemporaneous memo to the Vice President. Jacob's memo confirms that Eastman admitted that his proposal violated the law in the presence of President Trump.

First, Jacob wrote, Eastman acknowledged that "his proposal violates several provisions of statutory law"—namely, the Electoral Count Act of 1887. Jacob's memo explains that the Electoral Count Act calls for all vote certificates to be "acted upon," and any objections to a State's certificates be "finally disposed of." However, as Jacob wrote, Eastman was proposing instead that "no action be taken" on the certificates from the States Eastman asserted were "contested." And, according to the Electoral Count Act, the Vice President (as President of the Senate) is to "call for objections." But Eastman did not want the Vice President to "call for objections" for these States. As Jacob noted, this would have deprived Congress of the ability under the Act to make, debate, and vote on objections.

Additionally, the Electoral Count Act contains a provision that requires any "competing slates of electors" to be "submitted to the Senate and House for debate and disposition." As Jacob noted, Eastman conceded that the "alternate" (fake) electors' votes were not proper. But Eastman's proposal still would have refused to count the real electors' votes from those States and instead referred both the real and fake electors' votes to State legislatures "for disposition." Finally, in order for State legislatures to take action to determine which of the slates should be counted, Eastman's proposal called for "an extended recess of the joint session." But this too would have violated the Electoral Count Act, which provides only for very short delays.

There was another foundational problem with Eastman's plan. There were no legitimate "competing" or "alternate" slates of electors. President Trump, Eastman and others had manufactured the conditions they needed in order to claim that the election result was "disputed" by convening fake electors who sent fake documents to Washington before January 6th. And their efforts to convince State legislatures to certify Trump electors had already failed.

Jacob noted in his memo that in the Oval Office meeting, Eastman conceded "no legislature has appointed or certified any alternate slate of electors" and that the purported "alternate slates" (fake electors) were illegitimate without what Jacob described as "the imprimatur of approval by a State legislature." Moreover, Eastman acknowledged that "no Republican-controlled legislative majority in any disputed States has