Trump campaign lawyer Jenna Ellis wrote a memo dated the day before the Jan. 6 attack on the Capitol arguing that then-Vice President Mike Pence should refuse to count presidential electors from states won by Joe Biden.
In the Jan. 5 memo, obtained by Politico, Ellis went so far as to claim Pence had the authority to prevent a Biden presidency because certain parts of the Electoral Count Act were likely unconstitutional. Accordingly, Ellis wrote that the vice president “should … simply stop the count” when the time came for Arizona’s electors to be accepted. He should then, Ellis wrote, declare that Arizona and several other states Biden did not uphold their end of the requirement for certifying their own electors. She concludes that “the states would therefore have to act.”
Ellis downplayed the brazenness of the memo, which was delivered to Jay Sekulow, one of Trump’s outside attorneys.
“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.”
In an earlier memo dated Dec. 31, 2020, Ellis made a similar argument, as first described by ABC’s Jonathan Karl in his book Betrayal. Pence, she wrote, “should … not open any of the votes” from six key states won by Biden. This would leave the election up to the House of Representatives, with each state delegation receiving one vote. At the time, the GOP controlled 26 delegations.
This new memo from Ellis, when considered alongside the the memo from John Eastman, is yet another stunning example of how desperate Trump and his circle were to prevent Biden from taking office