there is no idea more un-American than the notion that any one person could choose the American President. Under the Constitution, I had no right to change the outcome of our election.[156]
But as January 6th approached, President Trump nevertheless embraced the new Eastman theories, and attempted to implement them. In a series of meetings and calls, President Trump attempted to pressure Pence to intervene on January 6th to prevent Congress from counting multiple States' electoral votes for Joe Biden. At several points in the days before January 6th, President Trump was told directly that Vice President Pence could not legally do what Trump was asking. For example, at a January 4th meeting in the Oval Office, Eastman acknowledged that any variation of his proposal—whether rejecting electoral votes outright or delaying certification to send them back to the States—would violate several provisions of the Electoral Count Act. According to Greg Jacob:
In the conversation in the Oval Office on the 4th, I had raised the fact that … [Eastman's] preferred course had issues with the Electoral Count Act, which he had acknowledged was the case, that there would be an inconsistency with the Electoral Count Act[ ][157]
Jacob recorded Eastman's admission in an internal memo he drafted for Vice President Pence on the evening of January 4th: "Professor Eastman acknowledges that his proposal violates several provisions of statutory law."[158] And, during a phone call with President Trump and Eastman on the evening of January 5, 2021, Eastman again acknowledged that his proposal also would violate several provisions of the Electoral Count Act.
[W]e did have an in-depth discussion about [the Electoral Count Act] in the subsequent phone calls as I walked him through provision after provision on the recess and on the fact that … Congressmen and Senators are supposed to get to object and debate. And he acknowledged, one after another, that those provisions would—in order for us to send it back to the States, we couldn't do those things as well. We can't do a 10-day, send it back to the States, and honor an Electoral Count Act provision that says you can't recess for more than one day and, once you get to the 5th, you have to stay continuously in session.[159]
As Pence's Chief of Staff, Marc Short, testified that the Vice President also repeatedly informed President Trump that the Vice President's role on January 6th was only ministerial.
