Trump campaign lawyer authored two memos claiming Pence could halt Biden’s victory
In one previously unreported memo, Jenna Ellis delivered a technical — and far-fetched — legal argument to another of the former president’s outside lawyers.
A Donald Trump campaign lawyer wrote two legal memos in the week before the Jan. 6 Capitol attack that claimed then-Vice President Mike Pence had the authority to refuse to count presidential electors from states that delivered Joe Biden the White House.
The memos from then-Trump lawyer Jenna Ellis, which contain widely disputed legal theories about Pence’s ability to stop a Biden presidency, underscore Ellis’ promotion of extreme arguments that she promulgated amid Trump’s effort to reverse the election results. Her actions have remained largely below the radar as House investigators probe Trump’s inner circle.
A Dec. 31 Ellis memo delivered to Trump’s office suggested that Pence — who was constitutionally responsible for presiding over Congress’ counting of electoral votes on Jan. 6 — should simply refuse to open envelopes from states whose election results Trump considered to be fraudulent. That memo was described by ABC reporter Jonathan Karl in his recent book “Betrayal.” POLITICO is publishing it in full for the first time.
In a second, previously unreported memo dated Jan. 5, Ellis made a more technical legal argument that she delivered to Jay Sekulow, one of Trump’s outside lawyers. Sekulow represented Trump during his first impeachment and in a series of legal battles during his administration, but he had minimal involvement in Trump’s election litigation. The exception was an early November Supreme Court case regarding Pennsylvania’s mail-in ballots.
In the Jan. 5 memo, Ellis argued that key provisions of the Electoral Count Act — limiting Pence’s authority to affirm or reject certain electors — were likely unconstitutional. She concluded that Pence, while presiding over lawmakers’ counting of electors, should simply halt the process when their alphabetical proceeding reached Arizona.
Then, she said, he should declare that the state failed to meet the legal standard for certifying its own electors and “require the final ascertainment of electors to be completed before continuing.”
“The states would therefore have to act,” she wrote.
Ellis said in a statement that her memos “were exploring legal theories” rather than wholesale endorsements of the legal strategies she was outlining.
“At no time did I advocate for overturning the election or that Mike Pence had the authority to do so,” Ellis told POLITICO. “As part of my role as a campaign lawyer and counsel for President Trump, I explored legal options that might be available within the context of the U.S. Constitution and statutory law.”
She discussed her theories about Pence’s authority before Jan. 6, including in a television interview on Just The News’ “The Water Cooler with David Brody.”
“What Mike Pence could do, and what he should do, in fact, is to direct a question back to the state legislatures,” she said at the time.
Sekulow said at the time that he didn’t believe Pence had any authority to reject Biden’s electors.
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In one previously unreported memo, Jenna Ellis delivered a technical — and far-fetched — legal argument to another of the former president's outside lawyers https://t.co/JTG25uB55b
— POLITICO (@politico) December 10, 2021
This is how close we came to a coup, and Eastman and Rudy and the other GOP seditionists can spare us their bullshit. This was a direct attack on the Constitution hatched in the White House. Yes, Pence gets credit for not doing it, but none for refusing to go public even now. https://t.co/a6WWtNFngy
— Tom Nichols (@RadioFreeTom) December 12, 2021
As Eastman and Trump pressure Pence and Pence's aides/lawyers, the rest of the Trump WH is in full-steam ahead mode that same day. See "Peril" chapter 41. "Graham was at the WH on January 4, where he received some memos supporting Trump's claims." We put those memos in the book.
— Robert Costa (@costareports) December 11, 2021
Now, months after "Peril" was published, we are learning more about both Meadows and that key day, January *4th.*
Think of it as the set-up day for the eve of the insurrection, Jan. 5, when Bannon and Giuliani work from the Willard and Trump pressures Pence, 1 on 1, in Oval.
— Robert Costa (@costareports) December 11, 2021
We now know that in the critical Jan. 4-5 period, where the pressure on Pence is Level 10/10, you have not only the principals leaning on the VP, but numerous docs circulating to make the case.
-Eastman memos
-PowerPoints
-And Jenna Ellis memos (see below)https://t.co/3sqREsCIWi— Robert Costa (@costareports) December 11, 2021
"If these people say you had the power, wouldn't you want to?" Trump asked.
"I wouldn't want any one person to have that authority," Pence said.
"But wouldn't it almost be cool to have that power?" Trump asked.
"No," Pence said.
/end
— Robert Costa (@costareports) December 11, 2021
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