Eastman Admitted Bid to Reject Electors Would Lose 9-0 in Supreme Court, Pence Counsel Testifies

One day before the January 6 riot, lawyer John Eastman privately admitted that his proposal for then-vice president Mike Pence to reject electoral votes that were unfavorable to President Trump would not have survived a challenge in the Supreme Court, former Pence counsel Greg Jacob testified on Thursday.

Jacob revealed the admission during testimony to the House Committee on the January 6 Capitol riot on Thursday.

Jacob said that in a meeting with Trump and Pence on January 4, Eastman said that Pence could either reject the Electoral College results outright, or that he could suspend the certification of results and demand that certain states reexamine their election results on the grounds that they were tainted by fraud. During a subsequent meeting on January 5, Eastman requested that Pence reject the Electoral College results, according to Jacob.

However, Jacob said Eastman also admitted on January 5 that his proposals to nullify the results would be rejected by the Supreme Court, although Eastman also contended that courts would not hear the issue in the first place.

“When I pressed him on the point, I said, ‘John, if the vice president did what you are asking him to do, we would lose 9-to-nothing in the Supreme Court, wouldn’t we?'” Jacob testified.

“And he initially started it, ‘Well, I think maybe you would lose only 7-2,'” Jacob said, “and after some further discussion acknowledged, ‘Well, yeah, you’re right, we would lose 9-nothing.'”

Jacob also said he brought up the case of Democratic vice presidents.

“‘John, back in 2000, you weren’t jumping up and saying Al Gore had this authority,'” Jacob said he told Eastman. “‘You would not want Kamala Harris to be able to exercise that kind of authority in 2024.'”

Jacob then testified that Eastman replied, “‘Absolutely. Al Gore did not have a basis to do that in 2000. Kamala Harris shouldn’t be able to do that in 2024. But I think you should do it today.'”

Prior to the January 6 certification of the Electoral College results, Eastman, then a Constitutional law professor at Chapman University, authored a memo proposing that Pence reject votes from certain states that were allegedly tainted by fraud.

Pence could then either declare Trump the winner of the election by choosing to validate alternate pro-Trump electors, or reject enough electors to send the contest to the House of Representatives, which was controlled by Republicans at the time. The memo was first reported by Robert Costa and Bob Woodward in their book Peril.

Eastman subsequently told National Review in an October 2021 interview that rejecting Electoral College results outright would have been “crazy,” and that the memo was a preliminary version of a final six-page memo “for the legal team.”

In an email from Eastman to former Trump lawyer Rudy Giuliani revealed by the committee on Wednesday, Eastman asked to be “on the pardon list, if that is still in the works.”

Correction: a previous version of this article stated that Eastman argued at the January 6 rally that “historical precedent supported the notion that Pence had the authority to reject slates of electors, citing the example of Thomas Jefferson, who in 1800 rejected Georgia’s electors due to a technical issue with the ballots.” In fact it was Rudy Giuliani who cited Jefferson at the rally, while Jacob testified that Eastman cited Jefferson’s example in a meeting on January 5. Jefferson accepted Georgia’s electors in the 1800 election despite a technical issue with Georgia’s ballot.