Former Vice President Mike Pence’s attorney testified Wednesday in the disbarment hearing for former Chapman University Law School Dean John Eastman, who also represented ex-President Donald Trump, that his email to Eastman blaming him and Trump for the Jan. 6 “siege” on the Capitol was written moments after he was rushed to safety from the mob.
The email exchange between Eastman and Pence attorney Greg Jacob on Jan. 6, 2021, as Congress was certifying the election of President Joe Biden also came into play in the federal court battle featuring Eastman, who had sued the congressional committee investigating the Jan. 6 insurrection to stop it from getting his emails from Chapman University.
“I respect your heart here,” Jacob wrote to Eastman. “I share your concerns about what Democrats will do once in power. I want election integrity fixed. But I have run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a results oriented position that you would never support if attempted by the opposition, and essentially entirely made up. And thanks to your bullshit, we are now under siege.”
Jacob said he had been working a “long few nights and needed a cup of coffee,” on the day Congress was meeting to certify Biden’s election.
“We went down to the bottom floor on the Senate side to the self-service coffee kiosk and while in there there was a loud boom, boom, boom that started,” Jacob said. “We walked out of the self-serve coffee kiosk and suddenly the glass shattered.”
He was about 40 feet away from the break-in, and he said he later learned “that one of the rioters outside had stolen a police riot shield and used that to break through the window.”
Jacob said he “hot-footed it upstairs to our staff office.”
He had started the email before going to get coffee so while hunkered down he aimed to finish it and it “doesn’t reflect the usual due consideration” he ends correspondence with, he said.
Jacob described how Capitol police “ushered” him and others into the Senate chambers, but in the chaos there was a conflict with Secret Service agents who were trying to also get Pence out of the Senate chambers to safety. Jacob said he followed the military aide with the “nuclear football” and rejoined the vice president, who did not want to leave his office, but was taken to a secure location.
In Jacob’s opinion, the push to delay or stop the certification of Biden’s election drew the crowd of protesters that Eastman and Trump addressed before they broke into the Capitol.
“So it was apparent to me that the people who marched on the Capitol did so because they believed there was a momentous decision” about who was going to be the next president, Jacob said. “The reason they were angry and demanding action be taken was because they believed there was a decision to be made in the building that day.”
The truth was, according to Jacob, who said he did extensive legal and historic research on the issue, all Pence was tasked with doing was opening the envelopes and recording the results. He lacked any authority to delay the proceedings or reject any of the electors who sided with Biden, Jacob said.
In the days leading up to Jan. 6, Jacob, Pence and others met with Trump and Eastman, who was arguing that the more “prudent” or “palatable” choice was to delay the certification of Biden’s election so state legislators could continue investigating election fraud claims, Jacob testified.
But in a subsequent meeting the day before the riots, Eastman “surprised” Jacob when the law professor was back to pushing for a rejection of the slate of electors.
Jacob said there is nothing in the U.S. Constitution that spells out anything about the role of the vice president — as president of the U.S. Senate — in certifying the electoral college results other than opening them. It is a “ministerial” role, he said.
After the hotly disputed election of 1876 in which Rutherford B. Hayes defeated Samuel J. Tilden, provisions were put in place to stymie any delaying of certifying electoral college votes, Jacob explained. The Electoral Count Act was adopted in 1887 to put in place more rules on tallying electoral votes.
Jacob said it was never entirely clear what states Trump and Eastman wanted to challenge, but there were discussions about Arizona, Georgia, Wisconsin, Michigan, Pennsylvania, Nevada and New Mexico.
Jacob emphasized to them that in the entire country’s history no vice president had ever asserted himself into the electoral vote certification. In fact, Jacob said, that when a dispute arose in Hawaii in the 1960 election that then-Vice President Richard Nixon, who lost to President John Kennedy, opened three envelopes of slates of electors and to save time said he believed the one favoring Kennedy was the correct one and Congress did not oppose it.
Jacob also researched the election of 1800, which prompted another constitutional crisis. He said he found it more helpful to check the congressional record than to review law journal articles because the authors of those often come up with “sexy” angles that at times aren’t correct.
Jacob said they also discussed what the “framers” of the constitution would want.
“Would the framers want a rule that the vice president unilaterally has a chance to decide this issue,” Jacob said. “Did we actually think any of the framers would say yes?.. No one would want that to be the rule.”
They also discussed what the U.S. Supreme Court do. Initially, Eastman argued that Justice Clarence Thomas might side with him, but Jacob reminded him of opinions Thomas issued on the Commerce Clause that would conflict with Eastman’s position and the law professor agreed they would lose unanimously, Jacob said.
There were some electors in states sending in letters alleging vote fraud, but no governor had signed off on any competing slate of electors, Jacob said.
When asked about the “voting irregularities” that Pence often referred to in comments about the pandemic-affected election, Jacob pointed to several examples in which conservative activists actually succeeded in challenging some votes that were accepted illegally, but he said they did not amount to enough to change the outcome of Biden’s election.
Jacob said he wrote an op-ed about Jan. 6 but decided to shelve it because he was concerned about attorney-client privilege concerns and because he worried about “cancel culture” and how it had the potential to ruin lives.
“I’d seen far too many instances where there is a rush to judgment — whether somebody had committed a violation of law before they’re able to put together a defense and then they’re tried in the media and their lives are destroyed as a result,” Jacob said. “I was leery of publishing something at that time when the temperatures were so hot.”
Jacob said he was moved to write it, however, because, “I was offended for my profession.”
He said he didn’t have any problem with attorneys arguing “interesting academic theories” in law journals or at conferences, but what had happened in the days leading up to Jan. 6 with social media was entirely different.
“I thought it brought our profession into disrepute,” Jacob said, adding it ultimately ended up being a “cathartic exercise.”
Jacob also wanted to “call upon Congress in having some humility,” because since the hotly disputed 2000 presidential election objections had been raised by Democrats at every Jan. 6 certification.
“There was no vote fraud in Ohio in 2004” either, Jacob said. “The chairman of the Jan. 6 committee had voted to reject electors in Ohio in 2004. We’ve been getting this wrong in certain respects for awhile.”
Eastman’s attorney said in the opening statement of the hearing on Tuesday that the case was about whether his client’s legal theories were “tenable,” and whether he was protected by free speech rights federally and in California and whether he had the right to petition for redress of grievances.