Mike Pence's chief of staff trashed a memo calling for him to overturn the election as 'boneheaded analysis'

·4 min read
Vice President Mike Pence, joined at left by chief of staff Marc Short, finishes a swearing-in ceremony for senators in the Old Senate Chamber at the Capitol in Washington, Sunday, Jan. 3, 2021.
Vice President Mike Pence, joined at left by chief of staff Marc Short, finishes a swearing-in ceremony for senators in the Old Senate Chamber at the Capitol in Washington, Sunday, Jan. 3, 2021. AP Photo/J. Scott Applewhite, Pool
  • VP Pence's chief of staff dismissed Eastman memo as "boneheaded analysis."

  • The memo from a legal scholar dubiously argued Pence could overturn the 2020 election.

  • Pence told journalist David Drucker that Trump was getting "really, really bad advice."

Former Vice President Mike Pence's chief of staff Marc Short denounced a memo from a legal scholar arguing Pence could unilaterally overturn President Joe Biden's Electoral College win as "boneheaded analysis" in an interview for a new book.

Short spoke to Washington Examiner journalist and author David Drucker for his forthcoming book "In Trump's Shadow: The Battle for 2024 and the Future of the GOP," a copy of which Insider obtained ahead of its October 19 publication from Twelve Books.

In his interview with Drucker, Short blamed a power vacuum in the White House that created an opening for conspiracy theory-wielding lawyers Rudy Giuliani and Sidney Powell, in addition to figures like MyPillow CEO Mike Lindell, to fill Trump's head with the false belief that the 2020 election was stolen and the incorrect notion that his vice president could unilaterally reverse his election loss.

"Unfortunately, I think the president had some really, really bad advice," Short told Drucker. "The way the White House was structured at that point was that those people giving that really, really bad advice were given carte blanche access to the president, and I think there were no safeguards in the way the White House was being run at that point."

The pressure campaign targeting Pence kicked up a notch with a six-page memo on January 3 from conservative legal scholar John Eastman, a fellow at the Claremont Institute, who advanced a legally dubious argument that Pence could reverse the presidential election at the January 6 joint session of Congress.

Eastman conjured a scenario where seven states that voted for Biden sent "alternate" slates of electors for Trump based on non-existent widespread fraud, Pence would discard the Electoral Count Act of 1887 as unconstitutional, and appoint himself the ultimate arbiter of which electoral votes to count to induce the overturning of Biden's Electoral College victory.

"We researched all of those, and I think very fastidiously wanted to be respectful of new perspectives that we were brought, but always felt strongly that no limited-government conservative would ever advocate that one person could unilaterally choose what electors to accept or reject and would ever be given that sort of power by our Founders," Short told Drucker. "Nor would we ever want anyone to have that power."

The memo accompanied a "heated" January 4 Oval Office meeting where Trump told Pence of Eastman: "he's a respected constitutional attorney, you should hear him out."

Drucker wrote that given his indeed solid reputation in the conservative legal world, Eastman taking a prominent role in the pressure campaign left Pence and his crew "flabbergasted."

"In that January 4 meeting, the vice president listened courteously, as was his habit. But he held firm, as was also his habit, reiterated his position on the matter that he had relayed to the president, unwavering, so many times before," Drucker wrote.

Pence's team had Gregory Jacob, who served as Pence's general counsel from March 2020 through January 2021 and is now a partner at O'Melveny & Myers in Washington DC, to research the matter and write up a countervailing memo of their own that Pence would issue as a statement just before the joint session on January 6.

"It was such boneheaded analysis, and so we intended to have our record make that clear, too," Short said of the Eastman memo.

In the more than two-page letter to his colleagues, Pence said he wouldn't stand in the way of lawmakers who wanted to raise objections to the counting of electoral votes but it was his "considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not."

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