On the day before rioters stormed the US Capitol in 2021, Orange County law professor John Eastman tried to convince Mike Pence’s lawyer that the vice president possessed power that none of his predecessors had ever exercised in American history.

Eastman was in Washington, DC, in his capacity as legal adviser to then-President Trump. He argued that as President of the Senate, Pence could unilaterally reject electoral votes from seven contested states in which fraud was alleged, according to Gregory Jacob, who was Pence’s chief counsel at the time.

Jacob said the vice president flatly rejected the idea as unconstitutional. From our very first conversation, he indicated that it didn’t make sense for him to have that authority, Jacob said testingly from a distance

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before the California Bar Court in Los Angeles during a trial to determine whether Eastman should keep his license.

Even Eastman admitted that the Supreme Court would likely unanimously reject the theory, Jacob said. However, Eastman continued to argue that Pence had the power to delay voting certification, which Jacob said fueled the January 6 violence. He said rioters were being driven

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the false idea that a momentous decision to determine the presidency was in pennies hands that day.

“I’ve seen the video footage of them calling Hang Mike Pence,” Jacob said. The vice president was my boss. He said the rioters believed the vice president had the authority to decide the election in President Trump’s favor, or at least steer things in that direction.

It was one thing, Jacob suggested, to allow widespread academic theory to float in the safety of a law review article. It was another thing to invoke the theory while advising the president at a fraught national moment.

I was insulted for my profession, Jacob said. I thought it discredited our profession.

Jacob was one of several witnesses called by the California Bar as it made its case against Eastman. They included election officials from Arizona, Pennsylvania and Nevada. The officials conducted detailed audits, tabulation machine testing and other steps to ensure the integrity of vote counting in their states, which Eastman had derided as tainted.

Eastman, a former dean and professor in the law school of Chapman University, has witnessed himself, his performance unashamed and defiant under keen questioning by Bar Attorney Duncan Carling.

In the aftermath of the election, Eastman argued that contested states, where Biden had been declared the winner, had the power to decertify voters and elect pro-Trump deputies.

When Carling asked what effect such a plan would have had had it been passed, Eastman replied, “It’s uncharted territory.”

The State Bar accuses Eastman of ethical violations for obstructing the January 6 electoral count by pressuring Pence to turn away voters, promoting false claims that electoral cheating cost Trump the election, leading false voters to drumming and stirring up the crowd with untruths .

Eastman’s defense is that he exercised his 1st amendment rights and acted as a strong advocate for his client, Trump. He argues that he should not be penalized for putting forward a legal theory that a reasonable lawyer might consider viable.

In any case, the bar trial is expected to continue

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. Eastman faces problems beyond the prospect of losing his license to practice law.

When Eastman appeared before the House committee on January 6, he repeatedly invoked his Fifth Amendment right against self-incrimination. The FBI seized his phone and the committee has recommended that the Justice Department consider prosecuting him for obstruction of official proceedings and conspiracy to defraud the United States.

U.S. District Judge David O. Carter has ruled that Eastman likely committed crimes related to the 2020 election. In addition, Eastman is a possible target of a criminal investigation related to Georgia’s alternate voter plan.

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Jacob, the vice president’s former attorney, said Pence had no doubt in his view that Eastman’s proposal to reject — the voters — was unfounded. Jacob said no vice president in American history had ever exercised such authority, or expressed the belief that he possessed it.

Jacob said Pence never believed that the constitutional drafters, with their zeal for checks and balances and their aversion to King George III’s one-man rule, would want such power in the hands of one person. Instead, Jacob said, Pence saw his role as minister to count votes.

Jacob said there were voter irregularities in several states, but there was no evidence they were large enough to affect the election.

Leading up to the Jan. 6 vote count, Trump repeatedly suggested that Pence had the power to keep him in office by sending the votes back to the states. If Vice President Mike Pence comes through for us, we will win the presidency, Trump tweeted on the night of Jan. 5. Mike can send it back!

Violence broke out in Washington on January 6, shortly after Eastman spoke at a “Stop the Steal” rally there, and as part of their case, California Bar attorneys point to emails exchanged between Eastman and Jacob that day .

I share your concerns about what the Democrats will do once in power, Jacob wrote. I want election integrity restored. But I have run through every legal trail before me to the end, and I respectfully conclude that as a legal framework it is a result-oriented position that you would never support if tried by the opposition, and is essentially completely fabricated. to your nonsense, we are now under siege.

Eastman responded that there was compelling evidence that the election had been stolen, and blamed the siege for Pence not doing what was necessary.

Jacob apologized for his inappropriate language, but added that Eastman’s advice had been like a snake in the ear of the President of the United States. He said it was very irresponsible of you

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the president with an academic theory that had no legal viability.

Jacob asked Eastman if he had informed Trump that Pence did not have the power to decide the election unilaterally, a claim Trump and his deputies had made publicly.

Eastman replied that yes, he had informed Trump that way, but added, you know him once he gets something on his mind, it’s hard to get him to change course. Eastman added: When this is over, we should have a good bottle of wine over a nice dinner somewhere.