Page:Introductory Material to the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol.pdf/24

 In testimony before the Select Committee, Jacob described in detail why the Trump plan for Pence was illegal: "[T]he Vice President’s first instinct, when he heard this theory, was that there was no way that our Framers, who abhorred concentrated power, who had broken away from the tyranny of George III, would ever have put one person – particularly not a person who had a direct interest in the outcome because they were on the ticket for the election –in a role to have decisive impact on the outcome of the election. And our review of text, history, and, frankly, just common sense, all confirmed the Vice President’s first instinct on that point. There is no justifiable basis to conclude that the Vice President has that kind of authority."

This is how the Vice President later described his views in a public speech: "I had no right to overturn the election. The Presidency belongs to the American people, and the American people alone. And frankly, there is no idea more un-American than the notion that any one person could choose the American President. Under the Constitution, I had no right to change the outcome of our election."

But as January 6th approached, President Trump nevertheless embraced the new Eastman theories, and attempted to implement them. In a series of meetings and calls, President Trump attempted to pressure Pence to intervene on January 6th to prevent Congress from counting multiple States’ electoral votes for Joe Biden. At several points in the days before January 6th, President Trump was told directly that Vice President Pence could not legally do what Trump was asking. For example, at a January 4th meeting in the Oval Office, Dr. Eastman acknowledged that any variation of his proposal – whether rejecting electoral votes outright or delaying certification to send them back to the States – would violate several provisions of the Electoral Count Act. According to Greg Jacob: "In the conversation in the Oval Office on the 4th, I had raised the fact that . . . [Dr. Eastman’s] preferred course had issues with the Electoral Count Act, which he had acknowledged was the case, that there would be an inconsistency with the Electoral Count Act[.]"

Jacob recorded Eastman’s admission in an internal memo he drafted for Vice President Pence on the evening of January 4th: “Professor Eastman acknowledges that his proposal violates several provisions of statutory law.” And, during a phone call with President Trump and Dr. Eastman on the evening of January 5, 2021, Dr. Eastman again acknowledged that his proposal also would violate several provisions of the Electoral Count Act. "[W]e did have an in-depth discussion about [the Electoral Count Act] in the subsequent phone calls as I walked him through provision after provision on the recess and on the fact that . . . Congressmen and Senators are supposed to get to object and debate. And he acknowledged, one after another, that those provisions would -- in order for us to send it back to the States, we couldn’t do those things as well. We can’t do a 10-day, send it back to the States, and honor an Electoral Count Act provision that says you can’t recess for more than one day and, once you get to the 5th, you have to stay continuously in session."