There was a “large, loud ‘boom boom boom,’” Jacob recalled. “Suddenly the glass just shattered. The window was probably about 35 or 40 feet from where we were.”
For Jacob, who appeared Wednesday via Zoom, it was the first time he had been face to face with Eastman since that fateful Jan. 6 email exchange. And it came under extraordinarily different circumstances.
Today, Jacob is regarded as one of the key checks on an effort by Trump to cling to power despite losing the election. Eastman, on the other hand, is fighting to keep his bar license even as potential criminal charges loom, part of a wave of slow-moving accountability efforts by bar authorities for the lawyers who helped engineer and facilitate Trump’s plan.
Jacob has described the coffee run before — but on Wednesday he revealed that it came in the midst of drafting an email that would arrive in Eastman’s inbox at 2:14 pm on Jan. 6, 2021, one minute after Proud Boys member Dominic Pezzola breached the building. He had completed most of it when he heard the crash and sprinted — along with Pence’s military aide who carries his nuclear football — back to the Senate chamber. As they caught their breath and awaited direction from police, Jacob typed out one furious final line: “Thanks to your bullshit we are now under siege.”
Jacob was the first witness called by California bar attorneys — aside from Eastman himself — to testify about Eastman’s conduct in the weeks leading up to Jan. 6. It was Eastman who most pointedly pushed the notion in those weeks that Pence could single-handedly keep Trump in power by asserting unprecedented power to reject (or simply refuse to count) Joe Biden’s presidential electors. He lobbied Republican state legislators to mount local challenges to election results and appoint “alternate” slates of pro-Trump electors, which would give Pence the pretense of a “dispute” to resolve. And when no legislatures agreed, Eastman shifted his theory toward Pence, claiming he had complete power to determine the outcome of the election — a prospect Pence sharply rejected.
In fact, Jacob testified Wednesday, Pence had firmly decided he would take no action to interrupt the counting of presidential electors by Jan. 2, 2021, after returning from a family vacation and meeting with staff. He had already strongly leaned in that direction and had made his position known inside the White House for weeks. But that Jan. 2 meeting confirmed his position, Jacob said. He and his staff decided that day that Pence would issue a letter explaining his decision to the American people on the morning of Jan. 6.
Pence’s decision came two days before anyone in his orbit actually met Eastman, who first spoke with Jacob on Jan. 4, 2021, and pushed Pence to seek a delay in the electoral vote-counting session in order to give states time to reconsider the outcome of the election. Eastman would make multiple attempts to convince Jacob to persuade Pence to reverse course, but Jacob and Pence continued to reject the notion that Pence could legally assert any authority over the election results.
On Wednesday, Eastman’s attorney Randall Miller offered the clearest defense of his client’s conduct, pressing Jacob repeatedly on the scholarly disputes about the counting of Electoral College votes that have lingered for many years. Miller pressed Jacob on law review articles that contended aspects of Congress’ procedures for counting electoral votes were unconstitutional, and he homed in on Jacob’s own crash course to understand the process and its 240-year history. In a Dec. 8, 2020, memo to Pence at the outset of this process, Jacob noted some of the ambiguities in the law and Constitution about the electoral count, and he noted the disagreement among scholars about aspects of it.
But Jacob made clear that while there are certainly reasons to quibble over some of the fine points of the Electoral Count Act of 1887 and the 12th Amendment — the two pillars of American government that lay out the Jan. 6 electoral vote counting process — there’s simply no basis in history or law that Pence would have had authority to determine the outcome of the election himself — or even to jumpstart a state-level process that would have the same effect.
Jacob also said he agreed with some of Eastman’s concerns about election “irregularities,” suggesting he and Pence were both sympathetic to concerns that Covid-era changes to election procedures in a handful of states had improperly tilted the playing field toward Democrats. But he said none of those irregularities would have altered the ultimate outcome of the presidential election, even if one or two more states had ended up in Trump’s column.
Jacob also testified he believed many of the members of the violent mob that overtook the Capitol were motivated by the false hope Trump and Eastman had created among the former president’s base of supporters that Pence could determine the outcome of the election. And he batted away a suggestion by Eastman’s attorney that he might lack firsthand knowledge of the mob’s intent.
Extraordinary evidence that has emerged in trials showing members of the mob were laser-focused on Pence, he noted. Videos showed them talking about what Pence might do and erupting in anger after they learned he wasn’t going to abide by Trump’s demands. And of course, some in the mob famously chanted “Hang Mike Pence,” Jacob noted.
“I’m simply reviewing the things that they wrote and said on that day,” Jacob said.
Jacob also recounted how he began to craft an op-ed — one he never published — tearing apart Eastman’s Jan. 6 theories, while hiding from the mob in an underground Capitol loading dock with Pence and his team. He said he worked on the piece for a few days, partly as a “cathartic” exercise. But he said he chose not to run it in part because it might implicate executive privilege and other protections.
Still, the core of the unpublished piece — his view of Eastman’s efforts to advise Trump — fit precisely with the case bar counsel have been presenting.
“I thought,” Jacob recalled, “that it brought our profession into disrepute.”
