Pence ‘Never Wavered’ in Run-Up to January 6, VP’s Former Counsel Will Testify

G reg Jacob, the former counsel to Vice President Pence, will testify to the January 6 Committee later today that Pence “never wavered” from his view that what President Trump and some of Trump’s legal advisers asked him to do on January 6 was flatly unconstitutional.

“I first spoke to Vice President Pence about the Twelfth Amendment and the Electoral Count Act in early December 2020. 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 says in an opening statement obtained by National Review. “The vice president never wavered from that view.”

Jacob, who was with Pence every step of the way in the run-up to January 6, will testify that Pence “studied the law and history, he read law-review articles, [and] he ably rebutted John Eastman’s arguments” about the counting of the electoral votes during a private Oval Office meeting also attended by Jacob, Pence chief of staff Marc Short, President Trump, and Eastman, on January 4, 2021.

In the weeks before January 6, Eastman wrote two memos asserting that the Constitution made Pence the “ultimate arbiter” of the election, giving him the sole power to decide whether to reject or delay the counting of the electoral votes. Trump initially pressured Pence to reject outright the counting of enough electoral votes to potentially send the election to the House of Representatives, where he believed he could prevail over Biden. But Trump, like Eastman, ultimately said at the January 6 rally outside the White House that Pence should delay the counting of electoral votes so that state legislatures could investigate (baseless) claims of widespread voter fraud. While hunkered down with Pence in the Capitol on January 6, Jacob wrote in an email to Eastman: “Thanks to your bullsh**, we are now under siege.”

Pence “concluded that although the relevant text of the Twelfth Amendment is inartfully drafted, the Framers could not possibly have intended to empower the vice president to reject duly ascertained electoral votes, or to unilaterally suspend the constitutionally mandated vote-counting proceedings,” according to Jacob’s opening statement. “When asked last year by a student at an event at the University of Iowa to name the person who told him that he was required to certify the 2020 election, the vice president accurately answered: James Madison.”

Jacob’s statement also weighs in on calls to reform the Electoral Count Act, a law that has been widely criticized by members of both major parties as confusing. Having studied the act closely, Jacob agrees that it should be revised, but he also makes a key point that “our enacted laws were already clear that the vice president did not possess the extraordinary powers others urged upon him.”

“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,” Jacob adds. “That means you always follow them, even when it hurts. You stand up for them, even where there is a cost.”

Jacob goes on to offer a withering indictment of elected officials who are “breaking America” by violating or failing to enforce our laws:

We are losing — I pray we have not lost — a common devotion to the first principles that have bound our people together for more than two centuries, and have made America a beacon of hope and freedom in the world. Our Declaration of Independence recognizes as a self-evident truth that our God-given and unalienable rights to life and liberty depend for their security on the just administration of the laws in accordance with the consent of the governed.

The law is not a plaything for presidents or judges to use to remake the world in their preferred image. Our Constitution and our laws form the strong edifice within which our heartfelt policy disagreements are to be debated and decided. When our elected and appointed leaders break, twist, and fail to enforce our laws in order to achieve their partisan ends, or to accomplish frustrated policy objectives they consider existentially important, they are breaking America. We should not feign surprise when our citizens treat the law and the Constitution with the same level of respect that our leaders do.

Jacob goes on to quote Pence’s public statement on the matter: “Frankly, there is almost no idea more un-American than the notion that any one person could choose the American President.”

That’s a scathing if implicit indictment of former president Trump, but Jacob’s statement notes that Democrats helped pave the way for January 6, 2021, by objecting to the counting of electoral votes following Republican victories in 2000, 2004, and 2016. Jacob will say that “objectors to the elections of 2000, 2004, and 2016 likely did not believe their efforts to reverse state outcomes would succeed. They were simply using the Joint Session and the Electoral Count Act for purposes of political theater, without giving much thought to their constitutionally appropriate role. But by the time January 2021 arrived, John Eastman was able to point to a well-worn road suggesting that momentous decisions about the outcome of presidential elections can legitimately be made in the United States Capitol on January 6.”

In drawing to a close, Jacob’s statement quotes from Alexander Hamilton in The Federalist Papers. “There Alexander Hamilton wrote that the Constitution does ‘not ma[ke] the appointment of President to depend on any preexisting bodies of men,’ which he warned might be subject ‘to cabal, intrigue, and corruption.’ For precisely this reason, the Constitution prohibits senators and representatives from serving as electors,” Jacob says. “Hamilton also warned that any body meeting in one location to choose the president would be exposed to ‘heats and ferments’ that could ‘convulse the community with extraordinary or violent movements.’”