Committee Staff: But just to pick up on that, Mr. Short, was it your impression that the Vice President had directly conveyed his position on these issues to the President, not just to the world through a Dear Colleague Letter, but directly to President Trump?
Marc Short: Many times.
Committee Staff: And had been consistent in conveying his position to the President?
Short: Very consistent.[160]
As the situation grew increasingly acrimonious, Vice President Pence's private counsel Richard Cullen contacted former Fourth Circuit Judge Michael Luttig, a renowned conservative judge for whom Eastman had previously clerked, and asked Luttig to make a public statement. On January 5th, Luttig wrote the following on Twitter: "The only responsibility and power of the Vice President under the Constitution is to faithfully count the electoral college votes as they have been cast.[161] As Judge Luttig testified in the Committee's hearings, "there was no basis in the Constitution or laws of the United States at all for the theory espoused by Eastman—at all. None." [162] Judge Luttig completely rejected Eastman's "blueprint to overturn the 2020 election" as "constitutional mischief" and 'the most reckless, insidious, and calamitous failure[ ] in both legal and political judgment in American history."[163]
Contemporaneous written correspondence also confirms both that: (1) Eastman himself recognized Pence could not lawfully refuse to count electoral votes, and (2) President Trump also knew this. While sheltering in a loading dock with the Vice President during the violent January 6th attack, Greg Jacob asked Eastman in an email, "Did you advise the President that in your professional judgment the Vice President DOES NOT have the power to decide things unilaterally?" Eastman's response stated that the President had "been so advised," but then indicated that President Trump continued to pressure the Vice President to act illegally: "But you know him—once he gets something in his head, it is hard to get him to change course."[164]
To be absolutely clear, no White House lawyer believed Pence could lawfully refuse to count electoral votes. White House Counsel Pat Cipollone told the Select Committee this:
I thought that the Vice President did not have the authority to do what was being suggested under a proper reading of the law. I conveyed that, ok? I think I actually told somebody, you know, in the Vice President's—"Just blame me." You know this is—I'm not a politician, you know … but, you know, I just said, "I'm a lawyer. This is my legal opinion."[165]
