Eastman ‘eviscerates’ his own legal argument in October 2020 document, committee says

Even John Eastman, the conservative lawyer who helped craft the scheme to overturn the election results on Jan. 6, 2021, knew his legal theory was bogus, the House select committee argued Thursday. 

In a document revealed in the committee’s third public hearing, Eastman picks apart a proposal that former Vice President Mike Pence could determine which electors to count in the Jan. 6 congressional session.

Writing comments in a blue font into an October 2020 draft letter to then-President Donald Trump, Eastman pointed out that “the 12th Amendment only says that the President of the Senate opens the ballots in the joint session and then, in the passive voice, that the votes shall then be counted.”

“Nowhere does it suggest that the President of the Senate gets to make the determination on his own,” he continued, referring to Pence in his role as the head of the Senate.

“The person writing in blue eviscerates that argument,” committee member Rep. Pete Aguilar said.

J. Michael Luttig, an adviser to vice president Mike Pence and a former judge, testified that Trump attorney John Eastman’s claims that the vice president could decide the outcome of the election at the joint session of Congress on Jan. 6, 2021, is not supported by the Constitution and does not follow any historical president.

Committee vice chair Liz Cheney explained a memo written by Eastman outlined his theory. In it, Cheney said Eastman falsely claimed seven states “transmitted dual slates of electors to the President of the Senate,” which former Pence attorney Greg Jacob said they did not exist.

“He knew the outcome he wanted and he saw a way to go forward if he simply pretended the fake electors were real,” Cheney said, explaining that Eastman continued to spread the false theory. Cheney said Eastman argued that Pence could reject the Biden electors and declare Trump the winner in the states he said were “disputed.”

“There is a very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes,” the memo written by Eastman showed by the committee said.

“There was no support whatsoever in either the Constitution of the United States, nor the laws of the United States for the vice president, frankly, ever to count alternative electoral slates from the states that had not been officially certified,” Luttig said, testifying at the hearing.

Luttig said he read Eastman’s memo and knows what he was referring to when he argued there is a historical precedent, but said, “he was incorrect.”

In today’s hearing, two former advisers for former Vice President Mike Pence are testifying on how former President Trump attempted to pressure Pence into overturning the 2020 electoral college results.

Witnesses and lawmakers are citing the 12th Amendment frequently during today’s hearing and here’s why: The 12th Amendment outlines the electoral vote counting process and how a president and vice president of the United States will be certified into office.

Trump and his attorney John Eastman perpetuated a false theory that the vice president could overturn the electoral college results, undermining the process stated in the 12th Amendment.

Read the full text of the 12th Amendment of the US Constitution here.

J. Michael Luttig, a former federal judge who advised former Vice President Mike Pence, said that if Pence followed former President Donald Trump’s orders to reject the 2020 election result, it “would have been tantamount to a revolution within a constitutional crisis.”

Luttig added that he believes the Jan. 6 select committee investigating the Jan. 6 insurrection is examining the “profound truth” of the US.

Former Vice President Mike Pence’s former counsel Greg Jacob explained how he learned of former President Donald Trump’s theory that a vice president can select the President of United States.

“The first time that I had a conversation with the vice president about the 12th amendment and the Electoral Count Act was in early December, around December 7. The vice president called me over to his West Wing office, and told me that he had been seeing and reading things that suggested that he had significant role to play on Jan. 6 in announcing the outcome of the election,” he said during the Jan. 6 committee hearing.

Pence “asked me, ‘mechanically, how does this work at the joint session? What are the rules,'” Jacob told the committee.

Jacob continued, saying he told Pence that he “had a fairly good idea” that “there aren’t rules that govern the joint session, but what there is, is a provision of the Constitution that’s just one sentence long, and then an Electoral Count Act that was passed in 1887.”

After a review of the applicable rules, Jacob said he concluded that the “sentence in the Constitution that is inartfully drafted.”

“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,” Jacob said.

Rep. Liz Cheney, vice chair of the Jan. 6 committee, is discussing a memo from Trump attorney John Eastman, who perpetuated the theory that former Vice President Mike Pence had the authority to overturn the election results when Congress certified Joe Biden’s victory.

Earlier this month, a federal judge decided the House select committee investigating the Jan. 6 insurrection should get access this month to 159 emails of the right-wing attorney that largely relate to his efforts on behalf of Donald Trump to try to block the 2020 election result.

The judge — as he did previously related to another set of Eastman emails — decided one of the emails could be evidence of the planning of a crime, specifically Eastman and Trump’s efforts to thwart Congress certifying the election result on Jan. 6, 2021.

Judge David O. Carter allowed Eastman’s team until June 13 to turn over the 159 emails.

Eastman, as an attorney for Trump working to overturn the election result, will likely be a crucial figure in the House’s retelling. His emails, described now in court but not yet released publicly, may shed significant light on actions and thoughts of the closest ring of advisers around then-President Trump, and even Trump himself.

Read more about Eastman here.

J. Michael Luttig, a retired Republican judge and informal Mike Pence adviser, is testifying now in the Jan. 6 committee hearing.

He will provide a sharp condemnation of former President Donald Trump’s attempts to overturn the 2020 election, saying Trump and his allies “instigated” a war on democracy “so that he could cling to power,” according to a written statement he intends to submit for the committee’s record obtained exclusively by CNN.

Luttig outlined in his statement how close he believed democracy came to the brink.

Luttig will testify at Thursday’s House select committee hearing on the US Capitol attack, which is focused on Trump’s pressure campaign against then-Vice President Mike Pence to try to overturn the 2020 election on January 6, 2021.

Luttig was involved in advising the Pence team against claims from Trump allies like attorney John Eastman, who wrote a memo saying Pence had the power to single-handedly block the certification of the election for Joe Biden.

Luttig concluded that January 6 “was the final fateful day for the execution of a well-developed plan by the former president to overturn the 2020 presidential election at any cost.”

The retired judge praised Pence for his actions on January 6 and his willingness to stand up to Trump and his allies. “There were many cowards on the battlefield on January 6,” Luttig wrote. “The Vice President was not among them.”

Read more about Luttig and his testimony here.

GOP Rep. Liz Cheney, vice chair of the House committee investigating the Jan. 6 attack, opened today’s hearing by taking direct aim at former President Donald Trump.

“Today we’re focusing on President Trump’s relentless effort to pressure Mike Pence to refuse to count electoral votes on January 6,” Cheney said.

She played a clip of Pence describing what happened in a speech. “President Trump said I had the right to overturn the election. President Trump is wrong. I had no right to overturn the election,” Pence said.

Cheney went on to say:

“President Trump was told repeatedly that Mike Pence lacked the constitutional authority and legal authority to do what President Trump was demanding he do.”

Greg Jacob, who served as counsel to Mike Pence when he was vice president, is testifying now before the committee.

Thursday’s hearing from the House select committee investigating the Capitol insurrection will be all about Pence, who was at the center of former President Donald Trump’s last-ditch effort to overturn the 2020 presidential election on Jan. 6, 2021.

As Pence’s general counsel, Jacob played a critical role in countering efforts to persuade the former vice president not to certify the electoral results.

He was part of the vice president’s team that pushed back against John Eastman, the conservative lawyer who embraced fringe legal theories about the vice president’s ability to overturn the election.