hearing was that a group of trump, supporters in arizona and other swing states, decided to proclaim themselves the true electors for the state. creating 2 sets of electors. the official electors selected by the state and a group of fake electors. this document was ordered to be produced to the select committee by a federal district court judge. as you will see on the screen shortly, judge david carter wrote, quote, the draft memo pushed to strategy that knowingly violated the electoral count act. the judge concluded that quote, the memo is both intimately related to and clearly advanced the plan to obstruct the joint session of congress on january 6th, 2021. a few days later, professor john eastman took up. this cause eastman was at the time a law professor at chapman university law school. he prepared

a memo outlining the nonsensical theory that the vice president could decide the outcome of the election at the joint session of congress on january 6th. you will see portions of this memo on the screen. in the 1st line, he wrote, quote, 7 states and transmitted dual slaves of electors to the president of the senate. but doctor eastman goes on to rely on those so called dual slates of electors to say that vice president pence could simply declare president from the winner of the 2020 election. mister jacob were there in fact dual slates of electors from 7 states. no, there were none. and just a few days after that, dr. eastman wrote another memo, this one quote war gaming out several scenarios. he knew the outcome he wanted and he saw a way to go forward. if he simply pretended that fe, collectors were real,

you will see that memo up on the screen now. hear, dr. eastman says the vice president can reject the biden. the electors from the states that he calls quote disputed. under several of the scenarios, the vice president could ultimately just declare donald trump, the winner, regardless of the vote, totals that had already been certified by the states. however, this was false and dr. eastman knew it was false. in other words, it was a lie. in fact, on december 19th, 2020, just 4 days before doctor eastman sent this memo, dr. eastman himself admitted in an email that the fake electors had no legal weight . referring to the fact electors as quote dead on arrival in congress. and quote, because they did not have a certification from their states. judge alluding,

did the trump electors in those 7 states who were not certified by any state authority of any legal significance. congresswoman there was whom no support whatsoever. and either the constitution of the united states nor the laws of the united states . oh, for the vice president frankly, ever to counter alternative electoral slaves from the states that had not been officially. ready certified by the designated state official in the electoral count

act of 18. 87. i did notice in the passage from mister eastman's memorandum, and i took a note on it and correct me if i'm wrong. but he said in that it, as says that there was both legal authority as well as historical precedent. i do know what mr. eastman was referring to when he said that there was historical precedent for doing so. he was incorrect. there was no historical precedent

from the beginning of the founding in 1789 that even as mere. ready historical precedent as distinguished from legal precedent would support the possibility of the vice president of the united states quote, counting alternative electoral slaves that had not been officially certified to the congress were suing to the electoral count act of 18. 87. i would be glad to explain that historical precedent if the committee you

wanted, but it would be a digression. thank you very much judge. i know my colleagues will be pursuing that issue in more depth and now i'd like to yield back, mr. chairman. thank you very much for someone to section 5. see a of house resolution 503. the chair recognizes gentleman from california mustang, our law and staff council. mr. john would question me. thank you, mister chairman. we're fortunate to have a bipartisan staff senior investigative council john would previously served as united states attorney in missouri under president george w bush. he and i will share today's lines of questioning. mr. wood. thank you, mr. hagar. judge lou, the guy had the incredible honor of serving as one of your law clerks. another person who did was john eastman. and you've written that dr. eastman's

theory that the vice president can determined who the next president united states is, is in your words incorrect at every turn. could you please explain briefly your analysis? it was my honor. mister would have you, sir, as long locklear? i couldn't answer that question perfectly. if i had at my disposal either mister

eastman's tweet or my own analytical tweet of september 21st. but i don't. but i'm that said, let me try to. i remember the analysis of, of the strangeness analysis and judge i can read to you and to the audience. i think why was a really key passage from your very insightful analysis when you wrote, i believe the professor eastman was incorrect at every turn of the analysis in his january 2nd memorandum. beginning with his claim that there were legitimate competing slates of electors presented from 7 states. you've already addressed that issue. but your next sentence said, continuing to his conclusion, that the vice president could unilaterally decide not to count the votes from the 7

states, from which competing slaves were allegedly presented. so what was your basis for concluding that dr. eastman was incorrect. in his conclusion that the vice president could unilaterally decide not to count the boats from these disputed states. i'm sam o. as i previously stated in response to congresswoman chaining the, there was no basis in the constitution or laws of the united states at all. for the theory espoused by mister eastman at all, none with all respect to my co panel. as he said, i believe in partial response to one of the select committees. questions

that the single sentence in the 12th amendment was he thought an artfully written that single sentence is not an artfully written. it was pristine. clear that the president of the senate on january 6th, the incumbent, vice president of the united states, had little substantive constitutional authority. it any at all

the 12th amendment, a single sentence. and mister jacob refers to says, in substance that following the transmission of the certificates to the congress of the united states and under the electoral count, act of 1887 ah, the archivist of the united states, that the presiding officer shall open the certificates in the presence of the congress of the united states in joint session,

it then says unmistakably, not even that the vice president himself shall count the electoral vote. it clearly says, merely that the electoral count vote shall then be counted. it will as the electoral count act of 87 that i that filled an if you will was the simple words of, of the 12th amendment in order to construct for the

country. ah, a process for the counting of the sacred process for the counting of the electoral vote from the states that neither our original constitution nor even the 12th amendment had done. the irony, if you will, is that from its founding until 1887. and when in congress passed the electoral count ag, ah, the nation had been in considerable turmoil

during at least 5 of its presidential elections. beginning as soon thereafter from the founding as 1800. so it wasn't for almost a 100 years later until the electoral count act was passed. so that's why in my view, that piece of legislation ah, is not only a work in progress for the country, but at this moment in history, ah, an important work in progress that needs to take place. that was long when did i understand what judge looted at the risk of oversimplifying for the

non lawyers who are watching? is it fair to say that the 12th amendment basically says 2 things happen? the vice president opens the certificates and the electoral votes are counted. is it that straightforward? i would not want that to be my testimony before the congress of the united states. the language of the 12th amendment is that symbol. thank you touch up mr. jacob. i have a question for you. ah, i believe during your deposition before this committee you said something to the effect of, you'd read at every word written about the 12th amendment, the electoral count, act in historical practice. i know in response to the chairman's earlier question, you gave your bottom line conclusion. but can you tell us a little bit about the process that you and your colleagues went through of

researching this issue and what conclusion you came to after you're thorough research? so mean you the, as a lawyer who's analyzing a constitutional provision, you start with the constitutional text. you go to structure, you go to history. so we started with the text and we did not think that the text was quite as unambiguous as judge dudek indicated. in part, we had a constitutional crisis in 1876 because in that year multiple slates of electors were certified by multiple slates. and when it came time to count those votes, the antecedent question of which ones had to be answered. that required the appointment of an independent commission that commissioner had had to resolve that question.

and the purpose of the electoral count act of 1887 had been to resolve those latent ambiguities. now i am in complete agreement with judge lou dig. it is unambiguous that the vice president does not have the authority to reject electors. there is no suggestion of any kind that it does. there is no mention of rejecting or objecting to electors anywhere in the 12th and then. and so the notion of the vice president could do that certainly is not in the text. but the problem that we had and that john eastman raised in our discussions was we had all seen that in congress in 2000 in 2004 in 2016. there had been objections raised to various states. and those had even been debated in 2004. and so here you have an amendment that says nothing about objecting or rejecting. and yet we did have some recent

practice of that happening within the terms of the electoral county. so we started with that text and i recalled in my discussion with the vice president, he said, i can't wait to go to heaven and meet the framers and tell them the work that you did and putting together our constitution is a work of genius. thank you. it was divinely inspired. there is one sentence that i would like to talk to you a little bit about. so then we went to the structure and again, the vice president's 1st instinct here is so decisive on this question. there's just no way that the framers of the constitution who divided power and authority, who separated out who had broken away from george the 3rd and declared him to be a tyrant. there was no way that they would have put in the hands of one person. the

authority to determine who was going to be president of the united states. and then we went to history. we examined every single electoral vote count that had happened in congress since the beginning of the country. we examined the electoral count act, we examined practice under the electoral count and critically no vice president in 230 years of history had ever claimed to have that kind of authority. hadn't claimed authority to reject electoral votes had not claimed authority to return electoral votes back to the states in the entire history of the united states. not once had a joint session ever returned electoral votes back to the states to be counted. and in the crisis of 1876 justice bradley of the united states supreme court, who supplied the decisive final vote on that commission,

had specifically looked at that question and said, 1st, the vice president clearly doesn't have authority to decide anything. and by the way, also does not have authority to conduct an investigation by sending things back out for a public look at things. so the history was absolutely decisive. and again, part of my discussion with mister eastman was if you were right, don't you think al gore might have liked to have known in 2000 that he had authority to just declare himself president of the united states. did you think that the democrat lawyers just didn't think of this very obvious quirk that he could use to do that? and of course, he acknowledged our gord did not and should not have had that authority at that point in time. but so text structure, history, i think what we had was some ambiguous text that common sense and structure would tell you the answer cannot possibly be that the vice president has that authority.

as the committee already played the vice president's remarks, there is almost no idea more on american. and the notion that any one person would choose the american president and then unbroken historical practice for 230 years at the vice president did not have such an authority. thank you. i reserve the remainder of my time mr. jacob, you weren't the only one who knew that the legal theory was wrong, though. here is what various advisors to the president thought about that theory. and you've been clear repeatedly with mister madams about you and the vice president having a different view about his authority at january. i believe i had did instrumentals ever explicitly or tacitly agree with you or say yeah, that makes sense. okay. i believe that mark did agree, what makes you say that?

i believe that's what he told me, but so i mentioned, i think markie told so many people so many different things. said it is not something that i would necessarily itself is okay. well that means that's was all i see coming more when would he told you on this topic? i think it was that, you know, the vice president doesn't have any butter role. and i think he was understanding that despite the fact that he may have said other things to the president in brothers to you, he said he understands that vice president has no room. yes. did he say that to you several times? a couple times before junior says yes, what it was communicated to me was that passable only got the idea was was not he and had one point confronted. eastman, basically with the same sentiment, pat expressed his admiration for the vice. ready president's actions on the day of

the 6th and said that he concur with the legal analysis that our team had put together to reach that point. it made no sense to me that in all the protections that were built into the constitution for president to get elected steps that had to be taken that the, our, to choose, the next president would be sitting it with the vice president. do you know, mr. clark or mr. morgan will viewed about that. i thought about that mr. easton device that they thought it was crazy. do you know if they ever expressed an opinion on whether they thought the vice president had the power that john eastman said he did? i know for a fact that heard both say that his theory was crazy, that there was no validity in any way, shape or form. and today expressed that for january 6th to whom

i think that anyone who would listen what were your prior interactions with easement? he described for me what he thought the ambiguity was in the statute, and he was walking through it at that time. and i said, to me, hold on a 2nd. i want to see what you're saying. you're saying that you believe the vice president acting as president of the senate can be the sole decision maker as to or your theory becomes the next president i'd state and you said yes. i said are you out of your f in mind? that was pretty blunt, i said completely crazy. so you're going to turn around and tell $78.00 plus 1000000 people in this country that your theory is. this is how you're going to invalidate their vote because you think election was stolen as a door not going to tolerate that said you're going to cause riots in the streets.

and he said words to the effect of there's been violence in the history of our country or to protect the democracy or protect the republic. in fact, there was a risk that the lawyers in the white house counsel's office would resign. for example, fox news host, sean hannity, expressed concern that the entire white house counsel's office could quit. as you can see from these tex, mr. handy wrote to white house, chief of staff, mark meadows that quote, we can't lose the entire white house counsel's office. i do not see jane where he's 6 happening the way he is being told a few days later on january 5th. mister handy wrote to mister meadows that quote, i'm very worried the next 48 hours. hence, pressure white house council will leave while sean hannity was apparently very

concerned about the possibility that the white house council would resign in protest. the president's effort to force the vice president to violate the constitution. some others close to the president or more dismissive of the white house counsel's position. here's what from stud a law and senior advisor, jared kushner said during his deposition regarding the white house counsel at sip alone, he's threats to resign. erin, are you aware? an instances where at past the bologna threatened to resign, i kind of like i said, my interest at that time was on trying to get as many parton's done. and i know that, you know, he was always to him and the team are always saying, oh, we're going to reside, we're not going to be here. this happens if that happens. so i kinda took it up. so just be whining, to be honest with you, the president's own lead, outside counsel, rudy giuliani also seemed to concede that the vice president did not have the

authority to decide the outcome of the election or send it back to the states. here's what white house attorney eric hirschman said about his call with mayor giuliani on the morning of the 6th the morning of january 6th and he called me out of the blue and i was like getting dressed and we had an intellectual discussion about easement. i dont know if its easement 3 per se, but the b p as role and it was asking me my view and now is this another practical implications of it? and when we finished, he said like i believe that you know, you're probably right. i think you thought were done that it would be something you'd have to consider if you're sitting on the bench. but he probably come down in that. you know, you could an interpreted or sustain the oral human long term. of

course, the fact that mayor giuliani seemed to admit that the theory was wrong did not stop him from going before the crowd just a few hours later on january 6 and sang the exact opposite. here is mayor giuliani speech at the ellipse rally on january 6th. we're here just very briefly to make a very important to point number one. every single thing that has been outlined as the plan for day is perfectly legal. i have professor eastman here with me to say a few words about that is one of the pre eminent constitutional scholars of the united states. it is perfectly appropriate given the questionable constitutionality of the election, counting act of 1887 that the vice president can cast aside. and he can do

what a president call jefferson did. when he was vice for he can decide he can decide on the validity of these crooked ballot, or he can send it back to the legislatures, give them 5 to 10 days to finally finish the work. and here's what dr. eastman said in his speech at the ellipse on january 6th and all we are demanding a vice president pants. is this the afternoon at 1 o'clock? he let the legislatures of the state look in it. so we get to the bottom of it and the american people know whether we have control of the direction of our government

or not. even dr. eastman knew his theory didn't hold water. mister jacob, your disgust, and even debated this theory at length with doctor eastman to doctor eastman. ever tell you what he thought the u. s. supreme court would do if it had to decide this issue? yes, i am. we are an extended discussion, an hour and a half to 2 hours on january 5th. and when i pressed him on the point, i said, john, if the vice president did what you're asking him to do, we would lose 9. the nothing in the supreme court wouldn't and he initially started it. well, i think maybe you would lose only 7 to 2 and after some further discussion acknowledged, well, yeah, you're right, we would lose 9 appreciate that. in our investigation, the select committee is obtained evidence suggesting that dr. eastman never really believed his on.