THE VICE PRESIDENT’S CONCLUSION THAT HE DID NOT HAVE THE ABILITY TO AFFECT THE OUTCOME OF THE ELECTION
Vice President Pence's counsel, Greg Jacob, was simultaneously researching the role of the Vice President during the joint session. The Office of the Vice President produced a preliminary staff memo on the subject on October 26, 2020.[53] Jacob then discussed the matter with Marc Short on election day or the day before.
This wasn't the first time Jacob would be required to write a memo about the Vice President's role in the electoral process. Before the election, Short explained to him that some in the White House were encouraging President Trump to prematurely declare victory on election night.[54] Of course, that is exactly what President Trump did. Jacob and Short wanted to avoid the Vice President getting drawn in to any such declarations, and Jacob pointed to his role in presiding over the counting of the electoral votes on January 6th as a reason not to. Jacob sent a memo to Short on election day reflecting this advice.[55]
Then, on December 7, 2020, the Lincoln Project aired a provocative ad taunting President Trump, saying that Vice President Pence "Will Put the Nail in Your Political Coffin" during the joint session on January 6th.[56] This prompted a discussion between Jacob and Vice President Pence.[57] Jacob authored another memo, dated December 8, 2020.[58] Jacob continued researching the Vice President's role during the joint session into early January. Jacob told the Select Committee that his view of the matter was not fully formed until then.[59]
Jacob did extensive research on and historical analysis of both the Electoral Count Act of 1887 and the 12th Amendment to the U.S. Constitution.[60] The 12th Amendment contains a single relevant line: "The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted."[61] Though Jacob concluded that this line was "inartfully drafted," it said nothing about resolving disputes over electoral votes.[62]
Jacob concluded that the Vice President must adhere to the Electoral Count Act.[63] The ECA has been followed for 130 years and "every single time that there has been any objection to electors, it has been resolved in accordance with the Electoral Count Act procedures," Jacob testified.[64] After reviewing the history and relevant cases, Jacob found that "[t]here is no justifiable basis to conclude that the Vice President has that kind of authority" to affect the outcome of the presidential election.[65] Jacob stated that his "review of text, history, and, frankly, just common sense" all confirmed that the Vice President had no such power.[66]
