be whining, to be honest with
you.
Rep. Aguilar: The president's
own lead outside counsel 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 Giuliani on the sixth.
>> He called me out of the blue
and I was getting dressed.
And we had an intellectual
discussion about I don't know if
it is Eastman's theory per se
but the vps role.
He was asking me my view and
analysis and practical
implications of it, and when we
finished, he said, I believe
that you are probably right.
I think he thought it would be
something he would have to
consider if he were on the bench
but he would probably come down
that you couldn't interpret it
or sustain the argument
long-term.
Rep. Aguilar: 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
saying the exact opposite.
Here's mayor Giuliani's speech
at the ellipse rally on January
>> We are here on very briefly
to make a very important two
points.
Number one, every single thing
that has been outlined as the
plan for today is perfectly
legal.
I have professor Eastman here
with me to say a few words about
that.
He's one of the preeminent
constitutional scholars in the
United States.
It is perfectly appropriate
given the questionable
constitutionality of the
election counting act of 1887,
that the vice president can cast
it aside and he can do what the
president called "Jefferson did
come on he was vice president --
"Jefferson did," when he was
vice president.
He can decide the validity of
these crooked ballots.
Or he can send it back to the
legislatures, give them five to
10 days to finally finish the
work, -- the work.
Rep. Aguilar: Here's what Dr.
Eastman said in his speech at
the ellipse on January 6.
>> And all we are demanding a
vice president pence is this
afternoon at 1:00, he let the
legislatures of the state look
into this 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.
Rep. Aguilar: Even Dr. Eastman
knew his theory didn't hold
water.
Mr. Jacob, you discussed and
debated this theory at length
with Dr. Eastman.
Did he ever tell you what he
thought the U.S. Supreme court
would do if it had to decide
this issue?
Mr. Jacob: Yes.
We had an extended discussion,
an hour and a half to two hours
on January 5 and when I pressed
him on the point I said, John,
if the vice president did what
you were asking him to do we
would lose 9-0 in the supreme
court.
He initially started, I think
you would only lose 7-2 but
after some further discussion
acknowledged, we would lose 9-0.
Rep. Aguilar: The select
committee obtained evidence Dr.
Eastman never believed his own
theory.
On the screen, you can see a
draft letter to the president
from October 2020.
In this letter, an idea was
proposed that the vice president
could determine which electors
to count at the joint session of
congress but the person writing
in blue eviscerates that
argument.
The person who wrote the
comments in blue wrote "The 12th
amendment only says that the
president of the senate opens
the ballots in the joint session
and in the passive voice, that
the votes shall be counted." "
nowhere does it suggest the
president of the senate gets to
make the determination on his
own."
Judge luttig, does it surprise
you that the author of those
comments was John Eastman?
Hon. Luttig: Yes, it does,
congressman.
But let me watching this unfold,
let me try to unpack what was at
the root of what I have called
the blueprint to overturn the
2020 election.
And it is this -- and I
foreshadowed this answer in my
earlier testimony to
congresswoman Cheney -- Mr.
Eastman, from the beginning,
said to the president that there
was both legal as well as
historical precedent for the
vice president to overturn the
election.
And what we've heard today I
believe is what happened within
the white house and elsewhere as
all the players, led by Mr.
Eastman, got wrapped around the
axle by the historical evidence
claim by Mr. Eastman.
Let me explain very simply.
This is what I said would
require a digression that I
would be glad to undertake if
you wished.
In short, if I had been advising
the vice president of the united
States on January 6, and even if
then vice president Jefferson
and even then vice president
John Adams and even then vice
president Richard Nixon had done
exactly what the president of
the United States wanted his
vice president to do, I would
have laid my body across the rug
before I would have let the vice
president overturn the 2020
election on the basis of that
historical precedent.
But what this body needs to know
and now America needs to know,
is that that was the centerpiece
of the plan to overturn the 2020
election.
It was the historical precedent
in the years and with the vice
president that I named, as
congressman Raskin understands
well, and the effort by Mr.
Eastman and others was to drive
that historical precedent up to
and under that single sentence,
single pristine sentence in the
12th amendment to the united
States constitution.
Taking advantage of if you will
what many have said is the
inartful wording of that
sentence in the 12th amendment,
scholars before 2020 would have
used that historical precedent
to argue not that vice president
pence could overturn the 2020
election by accepting
noncertified state electoral
votes but they would have made
arguments as to some substantive
not nearly -- merely procedural
authority possessed by the vice
president of the United States
on the statutorily prescribed
day for counting the electoral