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CHAPTER 5
- Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 29.
- Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 29.
- Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Jason Miller, (Feb. 3, 2022), p. 157.
- Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Jason Miller, (Feb. 3, 2022), pp. 142, 152.
- Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 079P-R0000731. Neither this memo, nor a December 8, 2020, memo that followed, reflects the full advice that Greg Jacob ultimately gave to the Vice President regarding the joint session. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), pp. 10–11, 32. The OVP Legal Staff memo, dated October 26, 2020, is titled “The Unconstitutionality of the Electoral Count Act.” This memo adopts certain legal academics’ criticism of the Electoral Count Act and introduces several concepts that would later be cited by proponents of the theory of an expansive view of the Vice President’s power. Greg Jacob’s legal memo to the Vice President, dated December 8, 2020, notes that the Electoral Count Act prescribes the process for counting electoral votes “to the extent it is constitutional” and seems to allow for the possibility of the Vice President “assert[ing] a constitutional privilege.” Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 079PR0000785. Through his extensive research and analysis, Greg Jacob’s understanding developed both as to the legal and historical precedent for the joint session and ultimately led him to the unavoidable conclusions that, one, the Electoral Count Act governed the joint session and, two, its procedures had never been deviated from since it was passed.
- Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob Deposition, (Feb. 1, 2022), pp. 11–13, 25–26 (noting that Marc Short didn’t “name names” of the people he was concerned would encourage the President to prematurely declare victory).
- Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 079VP-R000011579_0001, 079VPR000011579_0002 (November 3, 2020, Greg Jacob memo to Marc Short, titled “Electoral Vote Count”). The Election Day memo identifies the 12th Amendment and the Electoral Count Act as the relevant legal framework, but leaves open “whether it is the Vice President, or Congress, that has ultimate constitutional authority to decide electoral vote disputes.” It also represents an incomplete understanding of the factual precedents, describing thenVice President Nixon’s conduct in January 1961 as “single-handedly resolv[ing] a dispute over competing slates of electors that were submitted by the State of Hawaii.” (In fact, after additional research Jacob concluded the opposite was true.) As addressed elsewhere in this chapter, this memo does not reflect Greg Jacob’s full legal analysis or ultimate advice, nor the Vice President’s conclusion, about the authority of the Vice President at the joint session.
- Daniel Villarreal, “Lincoln Project Ad Tells Trump That Pence ‘Will Put the Nail in Your Political Coffin’,” Newsweek, (Dec. 8, 2020), available at https://www.newsweek.com/lincoln—project-ad-tells-trump-that-pence-will-put-nail-your-political-coffin-1553331.
- Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Greg Jacob, (Feb. 1, 2022), p. 13; Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (Jun. 16, 2022), available at https://www.govinfo.gov/committee/housejanuary6th; Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Marc Short, (Jan. 26, 2022), pp. 135–36 (noting the ad buy was limited to “D.C. and Palm Beach”).
