A top adviser to Mike Pence — who helped the former vice president fend off Donald Trump’s last-ditch pressure campaign to subvert the 2020 election — is delivering a public warning Thursday: “The law is not a plaything for presidents or judges.”
In a three-page statement he intends to deliver at a public hearing of the Jan. 6 select committee, Jacob details what he says are the underlying principles that led Pence to reject Trump’s pressure to declare that President Joe Biden’s win was illegitimate.
“The Vice President’s first instinct was that the Framers of our Constitution, who abhorred concentrated power, would never have entrusted any one person with the unilateral authority to alter the outcome of a presidential election — particularly not a person who is on the ticket,” Jacob wrote. Pence, he added, “never wavered from that view.”
Jacob’s testimony tees up another chapter of Trump’s crusade to remain in office, one that a federal judge has already ruled may have amounted to a criminal conspiracy among Trump, attorney John Eastman — who helped develop the fringe legal strategy centered on Pence — and perhaps others. Eastman continued to lean on Jacob to persuade Pence to reject state electors and help deliver Trump the presidency, even while a violent mob forced Pence, Jacob and and lawmakers to flee the Capitol for safety.
Trump embraced Eastman’s theory that Pence — without any input from Congress or the courts — could use his role presiding over the counting of electoral votes to reject Biden’s electors or delay the count entirely on Jan. 6, 2021. That, Trump and Eastman hoped, would buy time for Republican-controlled state legislatures to adopt new, pro-Trump electors to reverse Biden’s win.
That strategy will be the focus Thursday as Jacob describes Penceworld’s pushback to the effort from Dec. 7, 2020 through Jan. 6 202. The select committee has long asserted that Trump’s pressure campaign against Pence morphed into a criminal conspiracy to obstruct Congress, a key point of the panel’s investigation that investigators on Thursday will fight to prove to the public — and the Department of Justice.
Committee aides said Wednesday the campaign directly contributed to the attack on the Capitol and put Pence’s life in danger.
Jacob notes in his statement that the Justice Department helped Pence fend off two lawsuits seeking to vindicate Eastman’s strategy, including one filed by Rep. Louie Gohmert (R-Texas) in the final days before Jan. 6. Eastman, he says, didn’t enter the picture until Jan. 4, just two days before he tried to put his plan into action.
Jacob’s efforts also included working with House and Senate parliamentarians to insert new language into the script the former vice president read from during the Jan. 6 session, adding and tweaking language to reflect his pushback to Trump and Eastman’s plan. The select committee also indicated it intends to play video excerpts from Pence’s then-chief of staff Marc Short, who testified to the panel at length earlier this year.
Rep. Pete Aguilar (D-Calif.) is expected to lead the hearing, which will also feature questioning from former U.S. Attorney John Wood, who has been one of the senior investigative attorneys on the committee. Rep. Liz Cheney (R-Wyo.), the vice chair of the select committee, teased her plans to introduce Eastman to America on Tuesday, releasing a video clip of former Trump White House attorney Eric Herschmann testifying that he came to view Eastman’s efforts as potentially criminal.
“I’m going to give you the best free legal advice you’re ever getting in your life: Get a great f’ing criminal defense lawyer,” Herschmann said he told Eastman. “You’re going to need it.”
When a pro-Trump mob battered its way into the Capitol, many were furious and bewildered that Pence had not agreed to Eastman’s plan. And Trump’s angry tweet at Pence amid the riot appeared to further inflame the mob, with rioters reading the tweet out to the crowd as violence escalated. Some chanted “Hang Mike Pence,” as they stormed the building.
Jacob was the intellectual force behind Pence’s refusal to bow to Trump’s pressure campaign. After a month of intensive research, he concluded that the Constitution and the Electoral Count Act — the law that has governed every transition of power since 1887 — prohibited Pence from taking unilateral action. In fact, he said, Eastman’s proposal would have required him to break four different provisions of the Electoral Count Act.
Notably, Jacob — who has advised lawmakers considering reforms to the ECA — suggested that the laws on the books were already sufficient to bar the strategy Eastman had proposed.
“[O]ur enacted laws were already clear that the Vice President did not possess the extraordinary powers others urged upon him,” Jacob writes. “New statutes will make little difference if we do not first inculcate in our citizens and demand in our leaders unfailing fidelity to our Constitution and the rule of law.”
For the select committee, Eastman has emerged as a sort of man-behind-the-curtain for Trump, the lawyer who justified his most extreme efforts and attempted to legitimize what a federal judge described as “a coup in search of a legal theory.”
U.S. District Court Judge David Carter coined that phrase as part of a ruling forcing Eastman to provide thousands of sensitive emails to the Jan. 6 select committee. Those emails have become among the most valuable troves of evidence the committee obtained in the course of its investigations. And the panel was due to receive a final batch on Monday, another indication of the panel’s seemingly never-ending work to obtain new information.
Eastman continued to push his efforts even as the mob ransacked the Capitol, sending Pence and lawmakers fleeing for safety. In court filings, the select committee disclosed emails between Jacob and Eastman amid the violence, with Eastman continuing to urge him to disregard the Electoral Count Act’s limitations and postpone the session. Jacob repeatedly rebuffed him, adding, “Thanks to your bullshit, we are now under siege.”
Alongside Jacob will be former appeals court Judge Michael Luttig, a conservative for whom Eastman once clerked. Jacob deputized Luttig to help Pence craft his final pushback to Trump’s pressure campaign, and Pence quoted his argument in a Jan. 6 statement announcing his decision to refuse to go along with Trump. Luttig has since vocally warned that the forces behind Trump’s effort to subvert the 2020 election are still a threat to future elections.