January 6 Public Hearings

“I think we’re just firming up, there is no big deal,” she said. “But I’ll tell you that the putting together the video and exhibits is an exhausting exercise for our very small video staff. We were going to have one, two, three [hearings] in one week, and it is just too much to put it altogether. So we’re trying to give them a little room to do their technical work.”

Well that explains the massive gun battle that broke out

special ed boomers on a day trip

BENNIE THOMPSON:

Thank you. You may be seated. Let the record reflect the witnesses answered in the affirmative. I now recognize myself for questions. In the United States, the people choose our Representatives, including the highest official in the land, the President of the United States. The American people did this on November 3rd, 2020, but President Trump did not like the outcome.

He did everything he could to change the result of the election. He tried litigation, 62 cases in fact, and that failed. He tried to pressure state legislatures to reverse the results of the election in their states, but they refused. He tried to enlist the Department of Justice in his efforts to overturn election results, but officials leading the department refused to comply.

So eventually, he latched on to a completely nonsensical and anti-democratic theory that one man, his own Vice President, could determine the outcome of the election. He wanted the Vice President to unilaterally select the President. This theory that the Vice President could unilaterally select the President runs completely contrary to our Constitution, our laws, and the entirety of our American experience.

But that didn't stop — didn't matter to President Trump. I would now like to explore how President Trump came to latch on to this ridiculous legal theory that the Vice President can select the President of the United States. Mr. Jacob, how did this theory first come to your attention?

GREG JACOB:

The first time that I had a conversation with the Vice President about the 12th Amendment and the Electoral Count Act was in early December, around December 7th. The Vice President called me over to his West Wing office and told me that he had been seeing and reading things that suggested that he had a significant role to play on January 6th in announcing the outcome of the election.

He told me that he had been first elected to Congress in 2000 and that one of his earliest memories as a Congressman was sitting in on the 2001 certification and he recalled that Al Gore had gaveled down a number of objections that had been raised to Florida. And he asked me, mechanically how does this work at the joint session?

What are the rules? And I told the Vice President that in fact I had a fairly good idea of how things work that actually there aren't rules that govern the joint session. But what there is, is a provision in the Constitution that's just one sentence long and then an electoral count act that had been passed in 1887. And I told the Vice President that I could put a memo together for him overnight that would explain the applicable rules.

BENNIE THOMPSON:

So Mr. Jacob, when you looked at this theory, what did you conclude?

GREG JACOB:

So we concluded that what you have is a sentence in the Constitution that is inartfully [ph] drafted. But the Vice President's — first instinct when he heard this theory was that there was no way that our framers, who [abhorred] concentrated power, who had broken away from the tyranny of George III, would ever have put one person, particularly not a person who had a direct interest in the outcome because they were on the ticket for the election, in a role to have decisive impact on the outcome of the election.

And our review of text, history, and frankly just common sense all confirmed the Vice President's first instinct on that point. There is no justifiable basis to conclude that the Vice President has that kind of authority.

BENNIE THOMPSON:

Thank you, Mr. Jacobs. 

GREG JACOB:

So, you — you — 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. We do not think that the text was quite as unambiguous as Judge Luttig 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 commission 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 Luttig. 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 Amendment. And so, the notion that 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 Count Act. So, we started with that text.

And I recall, 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 in 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 structure. And again, the vice president's first instinct here is so decisive on this question. There is just no way that the framers of the Constitution, who divided power and authority, who separated it out, who had broken away from George III 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 Act. 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, first, 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 Mr. 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 Al Gore 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 un-American than the notion that any one person would choose the American president.

And then, unbroken historical practice for 230 years that the vice president did not have such an authority.