Mr. Wood: Thank you, judge.
Mr. Jacob, I believe during your
deposition you said something to
the effect of you read every
word written about the 12th
amendment, the electoral count
act and historical practice.
I know it is in response to the
chairman's question you gave
your bottom line conclusion but
can you tell about the process
you are and your colleagues went
through researching this issue
and what conclusion you came to
after your thorough research?
Mr. Jacob: So as a lawyer who is
analyzing a constitutional
provision, you start with the
constitutional text, you go to
structure, you go to history.
We started with the text.
We did not think that the text
was quite as unambiguous as
judge luttig indicated.
We had a constitutional crisis
in 1886 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 to resolve
that question and the purpose of
the electoral count act of 1887
had been to resolve those latent
ambiguities.
I am incomplete and agreement --
complete agreement with judge
luttig.
It is unambiguous the vice
president does not have the
authority to select electors.
There is no mention of objecting
or rejecting electors anywhere
in the 12th amendment so the
notion that the price -- vice
president could do that is not
in the text.
The problem that we had and that
John Eastman raised was we had
all seen that in congress Ian
2000, 2004, 2016, there had been
objections raised and those had
been debated in 2004.
So here you have an amendment
that says nothing about
objecting, rejecting, and yet we
did have some recent practice of
that happening within the terms
of the electoral candidate.
We started with that text.
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 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 is so decisive on
this question.
There is just no way that the
framers of the constitution who
divided power and authority,
separated it down, had broken
away from George III and
declared him a tyrant, there is
no way they would 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 examine every single
electoral vote count that had
happened in congress since the
beginning of the country.
We examined the electoral count
act.
We examined practiced under the
-- practice.
In 230 years of history no one
had ever claimed to have that
kind of authority, hadn't
claimed authority to reject
electoral votes and not claim
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, specifically
looked at that question and
said, the vice president clearly
doesn't have authority to decide
anything and by the way, doesn't
have authority to conduct an
investigation by sending things
back out for a public look.
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 he could have
authority to declare himself
president?
Do you think the Democrat Wyers didn'think about this ry obvious quirky he could E? Acknowledged Al gore did not
and should not have had that
authority at that point in time.
Text, structure, history, we had
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 a most no idea more
un-american that one person
could choose the American