The White House Counsel is Excluded from the Meeting. One key lawyer was conspicuously absent: Pat Cipollone, the White House Counsel. Cipollone and his deputy, Pat Philbin, were shooting down a series of "terrible" proposals at the time.[138] Philbin told the Select Committee that he considered resigning every day from approximately November 15 until the end of the administration.[139] Philbin had researched the Vice President's role in the January 6th joint session and concluded that Vice President Pence had no power to affect the outcome.[140] Cipollone agreed and informed Short and Jacob that this was the opinion of White House Counsel's Office.[141]
Mark Meadows invited Cipollone to speak with Eastman prior to the Oval Office meeting.142 Cipollone told Eastman that his scheme was "not something that is consistent with the appropriate reading of the law."[143] After delivering this assessment directly to Eastman in Meadows' office, Cipollone walked to the Oval Office with the intent to attend the meeting. However, by the time the Vice President and his staff arrived, Cipollone was gone.[144]
Cipollone declined to testify as to what he told President Trump or why he did not attend the Oval Office meeting, but he was clear that he didn't end up attending the meeting because of something that happened after he walked into the Oval Office.[145] Whatever happened, Cipollone maintained, was protected by executive privilege, suggesting that he was asked to leave by the President.[146] What is clear, however, is that Cipollone had already shared his view directly with Meadows and Eastman, i.e., that the proposal President Trump and Eastman were about to advocate to the Vice President was illegal.[147]
During this Oval Office Meeting, Eastman Admits that Both Paths are Based on the Same Legal Theory and Concedes His Plan Violates the Electoral Count Act. During the Oval Office meeting, Eastman claimed that there were two legally viable options.[148] First, Vice President Pence could reject outright the certified electors submitted by several States, and second, he could suspend the joint session and send the "disputed" electoral votes back to the States.[149] Eastman advised that the Vice President had the "raw authority to determine objections himself," according to Jacob.[150] However, by the end of the meeting Eastman was emphasizing the second option that he argued would be "more politically palatable" than the "more aggressive" option of the Vice President rejecting electoral votes outright.[151] If Vice President Pence did not want to reject the electors, Eastman claimed, then the Vice President could send the certified electoral votes back to the States for further deliberation.
Eastman later conceded that both actions were based on the same underlying legal theory of the Vice President's power.[152] Eastman also
