Over four pages, as Jacob waded through the 1887 Electoral Count Act and other historical instances where objections were lodged, he was careful not to reach any definitive conclusions about the power Pence might possess to resolve objections.
Jacob Memo to Pence by Daily Kos on Scribd
Jacob instead communicated how scholars and lawyers have collectively debated the legislation and often found it to be constitutionally “muddy.” The hotly contested election of 1876 led to the act’s creation after Thomas Jefferson and John Adams used their respective powers to sort out earlier election disputes.
When the law was eventually put to the test under Richard Nixon in 1961, Jacob said Nixon essentially fudged the rules when resolving a conflict over three competing elector slates from Hawaii.
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Interestingly, according to Politico, though Jacob painted Nixon in violation of the Electoral Count Act at the time of the memo, “Pence’s office later came to believe that Nixon’s actions were consistent with [the legislation] rather than in conflict with it.”
A representative for Pence did not return a request for comment to Daily Kos on Thursday.
Jacob pointed to objections resolved in U.S. elections from 2000, 2004, and 2016, too. In each election, the vice president’s position was kept to a strictly ministerial role during the certification process.
Pence’s request for legal help came at a time when Trump, his reelection campaign, and a coterie of the president’s attorneys were pushing the line in public and private that widespread election fraud prompted Trump’s defeat.
No such fraud was found, including by then-Attorney General William Barr, a Trump appointee. Week after week, court after court rejected the thin premise Trump’s legal team put forward as the Dec. 14 safe harbor date to certify the election results fast approached.
The memo to Pence from Jacob arrived with just a week to spare until that deadline.
It is unclear exactly what prompted Jacob to write the memo for Pence, but it is notable that the vice president’s counsel produced the guidance just three days after a retainer agreement was drawn up between Trump and conservative attorney John Eastman.
Eastman would eventually author a six-point plan strategizing how to pressure Pence to overturn the election. The attorney would also take the stage on Jan. 6 alongside Rudy Giuliani to promote the long-debunked conspiracy theory that the election was “stolen.”
The Eastman memos are undated but court records indicate they were prepared sometime between Christmas Eve 2020 and Jan. 5, 2021.
Jacob would eventually find himself at a tense crossroads with Eastman. Court filings this month showed a heated exchange that played out over email on Jan. 6.
At 12:14 PM, as Trump was already giving his speech at the Ellipse, throngs of his supporters had just started to form near the Capitol. Pence was on his way to certify the results.
Jacob wrote to Eastman:
“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."
The first breach of the building would be identified by law enforcement officers 20 minutes later.
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Eastman wrote to Jacob: “The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.”
Jacob told Eastman his actions were “gravely irresponsible” and slammed the attorney:
“The advice provided has, whether intended or not, functioned as a serpent in the ear of the President of the United States, the most powerful office in the entire world. And here we are.”
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