exactly that on January 6th—refuse to count certified electoral votes from Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin.[150]
Eastman's theory was related to other efforts overseen by President Trump (described in detail below, see infra) to create and transmit fake electoral slates to Congress and the National Archives, and to pressure States to change the election outcome and issue new electoral slates. Eastman supported these ideas despite writing two months earlier that:
Article II [of the Constitution] says the electors are appointed "in such manner as the Legislature thereof may direct," but I don't think that entitles the Legislature to change the rules after the election and appoint a different slate of electors in a manner different than what was in place on election day. And 3 U.S.C. §15 [of the Electoral Count Act] gives dispositive weight to the slate of electors that was certified by the Governor in accord with 3 U.S.C. §5.[151]
Even after Eastman proposed the theories in his December and January memoranda, he acknowledged in conversations with Vice President Pence's counsel Greg Jacob that Pence could not lawfully do what his own memoranda proposed.[152] Eastman admitted that the U.S. Supreme Court would unanimously reject his legal theory. "He [Eastman] had acknowledged that he would lose 9-0 at the Supreme Court."[153] Moreover, Eastman acknowledged to Jacob that he didn't think Vice President Al Gore had that power in 2001, nor did he think Vice President Kamala Harris should have that power in 2025.[154]
In testimony before the Select Committee, Jacob described in detail why the Trump plan for Pence was illegal:
[T]he Vice President's first instinct, when he heard this theory, was that there was no way that our Framers, who abhorred concentrated power, who had broken away from the tyranny of George III, would ever have put one person—particularly not a person who had a direct interest in the outcome because they were on the ticket for the election—in a role to have decisive impact on the outcome of the election. 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.[155]
This is how the Vice President later described his views in a public speech:
I had no right to overturn the election. The Presidency belongs to the American people, and the American people alone. And frankly,
