Below is the text of a draft op-ed Greg Jacob wrote in January 2021, when he was chief counsel to Vice President Mike Pence, but ultimately decided not to publish. The Washington Post obtained a copy of the draft for this story examining Trump attorney John Eastman’s actions around the events of Jan. 6.


In the days and hours leading up to the counting of the electoral votes in Congress, a cadre of outside lawyers to the President spun a web of lies and disinformation, to him and to the public, for the purpose of pressuring the Vice President to betray his oath to uphold our laws and the Constitution of the United States. That was a fool’s errand. The Vice President never wavered under the barrage of bankrupt legal theories, just as he never left the Capitol building when the assault began. Now that the moment of immediate crisis has passed, the legal profession should dispassionately examine whether the attorneys involved should be disciplined for using their credentials to sell a stream of snake oil to the most powerful office in the world, wrapped in the guise of a lawyer’s advice.

To practice law, lawyers must attain the endorsement of their profession that they possess the requisite skills, knowledge, and qualifications. Law practice is thereafter governed by requirements of candor, competence, and professional responsibility that are enforced by the bar and the courts. Clients rely on this professional credentialing to ensure they are receiving credible, reliable advice. And the integrity and soundness of legal advice is never more important than when it is rendered to the President of the United States, who wields vast executive power to impact the lives of hundreds of millions, and who possesses the biggest bully pulpit in the world.

One of a lawyer’s highest callings is as advisor and counselor, helping a client determine a future course of action not yet taken, and to understand its consequences. The American Bar Association’s Model Rules of Professional Conduct state “[a]s advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.” They require that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions.”

When lawyers disregard these ethical obligations, they disserve their clients and discredit their profession. There is no room in the legal profession for Grima Wormtongues who counsel their clients with half-truths and deceptive presentations made in pursuit of a personal agenda. There certainly is no room in the Oval Office.

Speaking before a crowd of thousands an hour before the electoral count began, the President invoked his outside lawyers and their credentials. Rudy Giuliani, a former United States Attorney, declared it would be “perfectly legal” for the Vice President to “cast [] aside” the laws governing the counting of electoral votes, and to “decide on the validity of these crooked ballots.” Professor John Eastman, who the President described as “one of the most brilliant lawyers in the country,” explained that “all we are demanding of Vice President Pence” is that he suspend the electoral vote count so that state legislatures can conduct further fraud inquiries. “[A]nybody that is not willing to stand up to do it, does not deserve to be in the office. It is that simple.”

What the lawyers did not tell the crowd—and to the best of my knowledge, never told the President—is that they were pushing an abstract legal theory that had overwhelming drawbacks and limitations. The Twelfth Amendment’s provision on counting electoral votes is admittedly not well-drafted, and scholars have debated its meaning. But one of the President’s key outside lawyers agreed with me the day before the events at the Capitol that not a single member of the Supreme Court would support his position. He acknowledged that 230 years of historical practice were firmly against it, and that no reasonable person would create a rule that invested a single individual with unilateral authority to determine the validity of disputed electoral votes for President of the United States.

The outside lawyers pushed a fallback plan positing that the Vice President could instead stop the electoral vote count Congress and refer it out to the states. That suggestion violated several provisions of the Electoral Count Act, had no historical analog, and would deprive Congress of its historical and statutory role in vote counting decisions. Neither the House nor the Senate would agree, and a lawsuit would be filed within the hour. The lawyers hypothesized the courts might invoke the “political question” doctrine and refuse to intervene. But if the courts stayed out of a standoff between the Vice President and Congress over the fate of the Presidency, then where would the issue be decided? In the streets? The Vice President notably did not invoke the political question doctrine when a Congressman sued him on December 28 seeking a declaration that the Vice President has unilateral authority to set electoral votes aside.

Counselors are responsible for their advice, not for outcomes. But any lawyer advising the President that the statutes governing the counting of electoral votes could be unilaterally overridden by the Vice President had an ethical obligation to ensure the President understood all of the legal and practical implications. This they failed to do.

An hour after the assault at the Capitol began, one of the President’s lawyers displayed a shocking lack of awareness of how those practical implications were playing out in real time, declaring to me that “The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so that the American people can see for themselves what happened.” In fact, an open debate had been taking place on the Senate floor, identical to the one Democrats triggered over Ohio’s electoral votes in 2005, when it was disrupted by a band of thugs who had been sold the lie that the Vice President had the power to reverse the outcome of the election.

Vice President Pence rejected the spurious legal theories that were pitched to him, and he did his duty. An inquiry should be made into whether the President’s outside lawyers did theirs.

There should be no rush to judgment, the hallmark of a hideous cancel culture that destroys lives and livelihoods without due process and based solely on the impulse of the moment. Moreover, the lawyers involved are entitled to their reasoned views, however wrong. Every Supreme Court observer knows that on matters of constitutional law, the most accomplished lawyers in the land sometimes arrive at diametrically opposite conclusions. But whatever an attorney’s personal conclusions may be, lawyers have a professional obligation to empower their clients with competent advice sufficient to make informed decisions. And it is right to now inquire whether the outside attorneys who advised the highest office in the land on a matter of the gravest national importance grossly abused their credentials.