Page:Introductory Material to the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol.pdf/23

 shall be the President…” The Vice President has only a ministerial role, opening the envelopes and ensuring that the votes are counted. Likewise, the Electoral Count Act of 1887 provides no substantive role for the Vice President in counting votes, reinforcing that he or she can only act in a ministerial fashion—the Vice President may not choose, for example, to decline to count particular votes. In most cases (e.g., when one candidate has a majority of votes submitted by the States) Congress has only a ministerial role, as well. It simply counts electoral college votes provided by each State’s governor. Congress is not a court and cannot overrule State and Federal court rulings in election challenges.

As January 6th approached, John Eastman and others devised a plan whereby Vice President Pence would, as the presiding officer, declare that certain electoral votes from certain States could not be counted at the joint session. John Eastman knew before proposing this plan that it was not legal. Indeed, in a pre-election document discussing Congress’s counting of electoral votes, Dr. Eastman specifically disagreed with a colleague’s proposed argument that the Vice President had the power to choose which envelopes to “open” and which votes to “count.” Dr. Eastman wrote: "I don’t agree with this. The 12th Amendment only says that the President of the Senate opens the ballots in the joint session then, in the passive voice, that the votes shall then be counted. 3 USC § 12 [of the Electoral Count Act] says merely that he is the presiding officer, and then it spells out specific procedures, presumptions, and default rules for which slates will be counted. Nowhere does it suggest that the president of the Senate gets to make the determination on his own. § 15 [of the Electoral Count Act] doesn’t either."

Despite recognizing prior to the 2020 election that the Vice President had no power to refuse to count certain electoral votes, Eastman nevertheless drafted memoranda 2 months later proposing that Pence could do exactly that on January 6th—refuse to count certified electoral votes from Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin.Eastman v. Thompson et al.

Eastman’s theory was related to other efforts overseen by President Trump (described in detail below, see infra [])to create and transmit fake electoral slates to Congress and the National Archives, and to pressure States to change the election outcome and issue new electoral slates. Eastman supported these ideas despite writing two months earlier that: "Article II [of the Constitution] says the electors are appointed “in such manner as the Legislature thereof may direct,” but I don’t think that entitles the Legislature to change the rules after the election and appoint a different slate of electors in a manner different than what was in place on election day. And 3 U.S.C. §15 [of the Electoral Count Act] gives dispositive weight to the slate of electors that was certified by the Governor in accord with 3 U.S.C. §5."

Even after Eastman proposed the theories in his December and January memoranda, he acknowledged in conversations with Vice President Pence’s counsel Greg Jacob that Pence could not lawfully do what his own memoranda proposed. Eastman admitted that the U.S. Supreme Court would unanimously reject his legal theory. “He [Eastman] had acknowledged that he would lose 9-0 at the Supreme Court.” Moreover, Dr. Eastman acknowledged to Jacob that he didn’t think Vice President Al Gore had that power in 2001, nor did he think Vice President Kamala Harris should have that power in 2025.