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option."[88] And, on January 4, 2021, she sent the same substance to Fox News contributor John Solomon under the subject line "Pence option."[89]
Ellis addressed a second memo, dated January 5, 2021, to Jay Sekulow, an outside attorney who represented President Trump during his first impeachment proceedings and in other litigation.[90] Ellis again claimed that Vice President Pence had the power to delay the certification of the vote. Ellis recommended that the Vice President should, when he arrived at the first contested State (Arizona), "simply stop the count" on the basis that the States had not made a "final determination of ascertainment of electors." "The [S]tates would therefore have to act."[91]
Sekulow clearly disagreed. "Some have speculated that the Vice President could simply say, 'I'm not going to accept these electors,' that he has the authority to do that under the Constitution," Sekulow said during an episode of his radio show.[92] "I actually don't think that's what the Constitution has in mind." Sekulow added that the Vice President serves a merely "ministerial, procedural function."[93]
In addition, Herschmann discussed this memo with Sekulow. They agreed that Ellis did not have the "qualifications or the experience to be giving advice on this" or to be "litigating the challenges" that President
