Pence recalled a tense exchange with aide John Eastman as the Capitol was breached

“There was a big, loud ‘boom boom boom,'” Jacob recalled. “Suddenly the glass broke. The window was probably about 35 or 40 feet from where we were.

For Jacobs, who appeared Wednesday via Zoom, it was the first time he had met Eastman face-to-face since the Jan. 6 email exchange. And it came under very strange circumstances.

Today, Jacobs is seen as one of the main checks on Trump’s bid to cling to power despite losing the election. Eastman, on the other hand, is fighting to keep his bar license even as potential criminal charges loom as part of slow-moving accountability efforts by bar officials for lawyers who helped engineer and facilitate Trump’s scheme.

Jacobs previously described the coffee run — but revealed on Wednesday that he arrived in the middle of composing an email that arrived in Eastman’s inbox on Jan. 6, 2021, at 2:14 p.m. building. He had finished most of it when he heard of the accident — accompanied by Pence’s military aide, carrying his nuclear football — back to the Senate chamber. As they held their breath and awaited direction from the police, Jacob typed an impassioned final line: “Thanks to your stupidity we are now under siege.”

Jacobs was the first witness called by California bar attorneys to testify about Eastman’s conduct in the weeks leading up to January 6 — besides Eastman — and it was Eastman who most clearly made the point that Pence could have been alone in those weeks. Trump is in power by asserting the unprecedented power to reject (or simply refuse to count) Joe Biden’s presidential nominees. He urged Republican state legislators to raise local challenges to the election results and appoint “alternative” slates of pro-Trump voters. When none of the legislatures agreed, Eastman turned his theory toward Pence, claiming he had full authority to decide the outcome of the election, something Pence vehemently rejected.

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In fact, Jacobs testified Wednesday, Jan. 2, 2021, after returning from a family vacation and meeting with staff, Pence made a firm decision that he would not take any action to interfere with presidential voter turnout. He was already leaning strongly in that direction and had been expressing his position inside the White House for weeks. But that Jan. 2 meeting cemented his position, Jacob said. He and his staff decided that day that Pence would issue a letter explaining his decision to the American people on the morning of January 6.

Jan. Pence’s decision came two days before anyone in his orbit actually met Eastman, who first spoke with Jacobs on 4, 2021, and pushed Pence to delay the election vote counting session to give states time to reconsider the decision. of election. Eastman would make several attempts to convince Jacobs, but Jacobs and Pence continued to reject the idea that Pence could legitimately assert any authority over election results.

On Wednesday, Eastman’s attorney, Randall Miller, offered clear support for his client’s conduct, repeatedly pressing Jacobs about the intellectual controversies about counting Electoral College votes that have lingered for years. Miller pressed Jacobs on law review articles arguing that aspects of Congress’ procedures for counting electoral votes were unconstitutional, and he understood the process and its 240-year history in Jacobs’s own dysfunctional course. In a December 8, 2020, memo to Pence at the start of the process, Jacobs noted some ambiguities in the law and constitution regarding the electoral count, and disagreements among scholars about its features.

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But Jacobs certainly has reason to doubt that some of the nuances of the Election Counting Act of 1887 and the 12th Amendment — two pillars of the U.S. government that set up the January 6 election vote counting process — simply exist. On no basis in history or law would Pence have had the authority to decide the outcome of the election — or even initiate a statewide process that would have the same effect.

Jacobs also said he agreed with some of Eastman’s concerns about electoral “irregularities,” adding that he and Pence sympathized with concerns that Covid-era changes to election procedures in a few states had unfairly tilted the playing field toward Democrats. But none of those irregularities would have changed the final outcome of the presidential election, even if a couple more states had gone Trump’s way.

Jacob testified that many of the members of the violent gangs that overtook the Capitol were fueled by the mistrust Trump and Eastman had created among the former president’s supporters. He rejected the advice of Eastman’s attorney, who had no direct knowledge of the mob’s intentions.

Extraordinary evidence emerged in the tests showing gang members had a laser focus on Pence, he noted. The videos showed them talking and exploding in anger about what Pence might do after learning he wasn’t going to comply with Trump’s demands. Of course, some in the gang famously “hang Mike Pence,” Jacob noted.

“I’m simply reviewing what they wrote and said that day,” Jacob said.

Jacobs recounted how he began drafting an op-ed — which he never published — ripping apart Eastman’s January 6 theories while hiding from the mob with Pence and his crew in an underground Capitol loading dock. He said he worked on the piece for a few days as a “cathartic” exercise. But he said he chose not to run it in part because it might involve administrative privilege and other protections.

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However, the core of the unpublished piece — his view of Eastman’s efforts to advise Trump — precisely matches the cases bar counsel presents.

“It brought our profession into disrepute,” recalls Jacob.

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