An attorney working with Donald Trump’s former lawyer Rudolph Giuliani drafted a plan for Vice President Mike Pence to step aside from presiding over the counting of electoral votes on 6 January 2021 so the Senate’s most senior Republican could refuse to count votes from swing states won by Joe Biden.
The plan, laid out in an email to Mr Giuliani which was forwarded to ex-law professor John Eastman, was drafted by attorney John Cheseboro and made public by the House January 6 select committee in a court filing last week.
It called for Mr Pence to ignore procedures laid out in the 1878 electoral count act and instead force the joint session to allow the “president of the Senate” sole authority to open and count electoral votes submitted by each state.
Until the 1878 law was enacted, only the vice president was responsible for opening and counting the votes during the joint session. But under the ECA, the vice president opens the electoral vote envelopes and hands them to four members of Congress — two from the House, two from the Senate — who then count the electoral votes and report the result.
Mr Chesebro’s “President of the Senate” strategy also called for Mr Pence to recuse himself so Senator Chuck Grassley — the upper chamber’s president pro tempore — could step in and refuse to count electoral votes from states won by Mr Biden, citing the fraudulent electoral certificates sent to the National Archives by pro-Trump activists.
The forwarded email is one of the documents US District Judge David Carter ordered Mr Eastman to provide to the House select committee under the crime-fraud exception to attorney-client privilege earlier this year.
At the time, Judge Carter called the memo evidence that Mr Eastman and former president Donald Trump had “more likely than not” committed several federal felonies.
In his ruling, he described the document as “the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act” into a plan to overturn the results of the 2020 election.
