In an unpublished second memo dated Jan.5, Ellis made a more technical legal argument that she made to Jay Sekulow, one of Trump’s outside lawyers. Sekulow represented Trump in his first impeachment and in a series of legal battles during his administration, but he had minimal involvement in Trump’s election dispute. The exception was a Supreme Court case in early November regarding Pennsylvania mail-in ballots.
In the Jan. 5 memo, Ellis argued that the main provisions of the Voter Tally Act – limiting Pence’s power to affirm or reject certain voters – were likely unconstitutional. She concluded that Pence, while presiding over the counting of voters by lawmakers, should simply stop the process when their alphabetical procedure reaches Arizona.
Then, she said, he would have to declare that the state has failed to meet the legal standard to certify its own voters and “demand that the final voter verification be completed before proceeding.”
“States should therefore act,” she wrote.
Ellis said in a statement that her memos “explored legal theories” rather than wholesale approvals of the legal strategies she described.
“At no time did I advocate for the election to be canceled or for Mike Pence to have the power to do so,” Ellis told POLITICO. “As part of my role as a campaign lawyer and counsel to President Trump, I have explored the legal options that might be available in the context of the US Constitution and statutory law.”
She discussed her theories on Pence’s authority before Jan. 6, including in a TV interview on Just The News’ “The Water Cooler with David Brody”.
“What Mike Pence could do, and what he should do, in fact, is send a question to the state legislatures,” she said at the time.
Sekulow said at the time he didn’t believe Pence had the power to reject Biden voters.
“Some have speculated that the vice president might just say, ‘I will not accept these voters’, that he has the power to do so under the Constitution,” Sekulow said on his talk show. radio. “In fact, I don’t think that’s what the Constitution has in mind.”
He described Pence’s role as a “ministerial and procedural function”.
In an interview on Friday, Sekulow said he continued to believe Pence had no legal authority to block any of Biden’s voters, but he suggested Ellis was entitled to his point.
“Jenna had the right to articulate a legal theory on behalf of the campaign,” Sekulow said.
Ellis’ note to Sekulow may have been part of an attempt to persuade him to reconsider his position. She writes that Pence’s role was not a “ministerial function” – the same expression Sekulow had used that day.
The Jan.6 House select committee, which is investigating Trump’s efforts to overturn election results, declined to comment.
Ellis, also a close ally of former lawyer and Trump adviser Rudy Giuliani, appears to have so far attracted limited attention from the selected panel that polled on Jan.6. She was recently sued, along with Trump and Giuliani, by a lawyer from Pennsylvania. election official who says he faced threats to his security and suffered a heart attack following their allegations of electoral fraud in the state.
Ellis worked closely with Giuliani in the aftermath of the 2020 election, traveling to several states to push Republican lawmakers in those places to attempt to intervene before their presidential polls can be certified. She then sought to convince state lawmakers to hold emergency sessions and attempt to submit additional Trump voters lists to Congress by January 6.
Ellis’ memos were written as other Trump advisers made equally extreme legal arguments for Pence to overturn Biden’s victory.
Notably, Ellis’ memos did not go as far as those drafted by attorney John Eastman, another Trump adviser. Eastman claimed that Pence had the power to declare Trump the absolute winner in the election by simply excluding dozens of Biden voters from the Congressional tally.
In some versions of the strategy, legislatures in states whose results Trump hoped to reverse would have 10 days to review their election results and determine whether they should reverse them.
Pence ultimately rejected these arguments and counted the certified electoral votes from all 50 states, officially offering Biden the victory. But investigators on Jan.6 looked at efforts by Trump’s inner circle to rationalize his attempt to subvert the election as they sought to understand his months-long campaign to stay in power.
In “Betrayal,” Karl reported that Ellis’ December 31 memo was delivered to Trump’s office by Mark Meadows, then White House chief of staff. Meadows is suing the Jan.6 committee as it prepares to find it in contempt of Congress for refusing to sit for a deposition. But he also handed over a subset of recordings kept on his home phone and email accounts that lawmakers on the panel say they revealed.