Thread by @hifilofipod

Since you absolute savages seem to like my uhhhhh...
court reporting? free form legal street synopsis?

whatever it is.
I'll be doing it again today.
Follow along.

If you'd like to watch as I translate:
calbar.zoom.us/j/97985435232

https://twitter.com/hifilofipod/status/1671210389822898186

Since time is relative in the legal universe, folks, remember to hydrate before the shenanigans begin.

and for those asking, today it's a combination of Monkey Thunder, a Sativa heavy hybrid, and Platinum Valley, an incredibly cerebral strain.

However, it may have been that "what the hell are you smoking?" was rhetorical.

If so, I apologize.

aaaaaaaaaand we are live. Court is now in session, Judge Don't Play Me presiding.

Judge: what up y'all
All: sup yer honor
Judge: don't f*ck around in zoom y'all.

Judge: housekeeping- 2 orders, Judicial Notice, you get a yes and a no on that, Ruling yesterday on observation of Eastman testimony by the Seligman and Yoo. That's cool. to observe exhibits, we're gonna change procedures. SHOUT OUT TO OUR IT NERDS WHO WE LOVE UwU

EA: Item left over from yesterday atty client privs
Judge: anything in addition?
EA: suggestion for witness order, but we can chill on that. OCTC is playing ball, but we may have changes.
Judge: cool cool. BA?
BA: Request for Judicial Notice, we wanna add in some articles n stuf

Judge: what categories of stuff?
BA: video, audio, blog posts, some other stuff
Judge: did you just give me homework, yo? (laughs)
BA: uhhhhh in a nice way?
Judge: kk
BA2: we had these things not addressed
Judge: my bad, i'll holler on that later

EA: hey, we haven't had a chance to even roll through that order, so if we're gonna argue on it, can i have some time?
Judge: we'll argue later. you cool.
EA: cool cool
Judge: Now let's talk this atty privs issue
BA: are we doing atty privs caselaw or just the testimony?

Judge: there was a brief filed around atty client privs, and there were question for Eastman, and I wanna address that. The question(s) asked Eastman, he asserted atty client privs against FOUR different ways the questions were asked. That seems shady.
EA: Is BA or you asking?

BA: We got some tapes where Trump waived atty client privs, let's talk about that, what?
Judge: yeah, let's do that, but we'll hold on the arguments for a hot minute

#Eastman taking the stand

#Eastman sworn in
EM: yeah that's cool
BA: sup kid. you do a podcast with @lessig in 2021?
EM: yeah, I did that
BA: roll tape
Tape (we have visual but no sound. tech problems)
WE STILL LOVE OUR IT NERDS THO DAMMIT

Title of file reads @lessig, Seligman, Eastman podcast
Hendrix like echoes ring through the zoom as someone's unmuted mics loop

BA: we're gonna have to go in a different direction until this works
Judge: ya change up

BA: in exhibits you dropped, we saw more yada yada from Geels, let's put that up. it's about underage registrations. EM, this is your doc, dig?
EM: dig
BA: what is it
EM: new data was released and there was questions about Geels updating, so this is what Geels gave me back

BA: when?
EM: don't recall
BA: on page 4 it talks about underage restrictions, that there were 778, not 2160, when run against more data.
here's the more data. see that
EM: yup
BA: so he changed his number a third time
EM: no, this is for folks who registered underage

BA: so you know this stuff, which field is more accurate to choose?
EM: I never looked at the data, I'm going w/ Geels
BA: which is the correct number 700 something or 2k something
EM: I dunno
BA: ok, so when Geels went from 66k to 2k, that was a "transposition error"

EM: that was a "category transposition error" not a "number transposition error"
BA: did Geels ever acknowledge that error
EM: nope

*crickets*

BA: 1/6 Raffensberger letter- page 9 from yesterday, "president's allies allege 60k underage teenagers voted. that's incorrect" you say that's incorrect
EM: he said it wrong
BA: but the number is from Geels report, and it's "president's allies" that quoted that number correct?

EM: yep
BA: here's your exhibit 1178, dig?
EM: dig, but I submitted if this is the corrected version or original
BA: dude, it's your exhibit
EM: i forget which this is
BA: ok, page 5. did you submit this to GA subcommittee? in advance of testimony?
EM: yup

BA: first bullet point: Yo, this are violations of state election law, and there's a list. in this doc you allege that 66k underage voters illegally voted correct?
EM: I uhhhhh....incorrectly described Geels report. I mean the "registrations" were illegal
BA: did you say that?

EM: i might have not in the corrected
BA: but press said president' allies said that
EM: I don't remember I don't recall is this the corrected version
BA: but the Raffensberger made his statement on what he thought was a true statement. YOU said 66k underage voted
EM: maybe i did

EM: i don't know if this is corrected version or not
BA: we got a thing at 11am
Judge: hol up a sec, I wanna clarify something. the language EM testified about, did you consider that statement you made to be IMPORTANT re: violations of voting?

EM: I figure if they registered illegally or if they voted illegally it's the same thing
Judge: wut?
EM: I don't know if I corrected this. I don't recall what the exact statement was when I said it, either.
Judge: riiiiiiiiight. BA?
BA: k back to Raffensberger

BA: isn't the important part here that the votes were illegal
EM: no, if registrations are illegal, then the votes will be illegal
BA: you have any evidence of that being the case? that illegally registered voters actually voted?
EM: nope

BA: we're gonna try that podcast again
EA: hol up. this was originally rejected because it lacks authenticity
BA: let me play a clip, see if it's EM, which he already said it was. we'll play open and end, or we can play the whole shebang. we just wanna know about sections

Judge: roll it, let's see if it's legit

Lessig, Seligman, Eastman podcast:

Lessig: Talk about this memo, about what was supposed to happen on J6. Tell us about the context since you wrote it. what can you tell us about this
EM: the former pres authorized me to talk about this

BA: dat u?
EM: yeah, that's me
BA: cool cool.
EA: I can't see shit yo
Judge: me neither, but i heard audio
BA: EM you recognize that clip?
EM: yep
BA: you listen to it?
EM: dude I was in it

BA: how long was it
EM: 1.5-2 hrs
BA: here's a few secs from opening

Lessig podcast opener plays
pizzicato strings, lessig voiceover.
nicely produced.
@lessig is kinda dramatic tho

BA: you recall that?
EM: I don't recall the music, so that may have been edited after

Lessig continues, intros EM about the memo to get VP to mess w/ certification, aka "scenarios" that would lead to different outcomes. Mentions Seligman, we're gonna walk through this.

Lessig continues, you can hear the podcast here:
equalcitizens.us/anotherway/

I'm not transcribing alla that

BA: so EM comes in about 90 seconds later
BA: ffwds to when Seligman and Eastman come back in

Lessig: what was supposed to happen w/ this memo on J6?

BA: did you say anything prior to that
EM: don't think so
BA: so that's where it starts, now I'm looking for part from Eastman

EM (on podcast): Read my article on American Mind
Lessig: we'll link to that
EM: it wasn't my advice, but it was a full memo laying out all the scenarios, and our best choice was to send it back to the states

EA: interjection ,we're still foundational
Judge: it was if he did it

EA: but he didn't listen to it after, he didn't product it, we can't admit entirety
Judge: no one said they wanted the whole thing
EA: so the recording stays?
Judge: the lack of foundation argument is out, but there's no ask to submit it. where's the exhibit info?

BA: we are gonna ask it to be evidence
Judge: kk
BA: EM, is this where you ended?
EM: yes
BA: did you read the transcript produced from this?
EM: no, haven't had a chance
BA: since June 5th?
EM: I'm busy yo. You crank out a buncha stuff

BA: but is that you engaging
EM: i did but i don't know what the edits are
BA: do you have reason to doubt it's complete?
EM: I dunno
BA: we're gonna put this into evidence, i mean we could play it
Judge: nah, we'll give EM time to listen. *reads off some of the transcript*

Judge: i don't know if EM wants to check that or not, but the other clip is from here *reads transcript again*

Basically Judge is pointing out EMs statements, probably to ask if those were or were not his statements.

Judge: EM, you best check that sh*t out, yo

BA: we gotta shoehorn Greg Jacobs in so gotta interrupt EM's testimony
Judge: cool, break until 11:15
BA: do we have a link for him? or does he join the zoom and we find him?
Judge: yep. good luck.

aaaaaaaand we are on a 20-30 min 15 min break

A brief note from my one and only sponsor: Marijuana

420

And of course, don’t forget to hydrate.

aaaaaaaand we are back.

Judge: so we still doing this. Is Mr. Jacob in the hizzie?
BA: bro showed
Judge: Bring homie in
EA: Judge, Seligman can watch this
Judge: Seligman and Yoo can't watch this
Everybody: we cool
Judge: Mr. Jacob you cool?
MrJ: cool cool

MrJ is sworn in.

Judge: crank homie up a bit
TECH NERDS DO YER THING
Judge; cool. BA?
BA: sup yo
MrJ: sup
BA: what's yer gig?
MrJ: I'm an atty
BA: were you VP's atty
MrJ: I was Counsel to the VP
BA: in that role, did you look into Pence's role during electoral count
MrJ: yep

BA: how'd you research it
MrJ: we started in the Constitution, 12th Amendment, checked Senate Rules, there aren't any, but there's this Electoral Count Act thing. We read that and all the articles about it. We read the Congressional Records of all Electoral Counts goin way back

BA: so that includes records from Library of Congress back to Country's founding
MrJ: yep, all the way back to the Electoral Count Act proceedings, and every proceeding thereafter. Most were normie, but things get hinky in 60s, 70s, 2ks.
BA: did you think Pence could reject

MrJ: hellz no he couldn't
BA: did he have any right to delay?
MrJ: possible, I heard it round 12/30-31. Eastman later gave us a more refined request for a 10 day delay. we reviewed that
BA: prior to that, did ANYTHING you read say that it was cool for VP to delay
MrJ: not exactly

MrJ: but nothing specific
BA: so first time you considered that was cuz EM?
MrJ: Well there was a variant in a thing from Jenna Ellis, but the real ask was from EM on 1/4.
BA: how did VP feel bout that
MrJ: from the jump VP was like "that's a no from me on rejection, dawg"

MrJ: VP remembers Gore gaveling down the bs from 2000, even though it wasn't in Gore's favor. He can't believe judges w/ vested interest could call it. I walked him through everything, and he was like yeah, we're not gonna do that at all.

MrJ almost make me like Pence.
but no.

BA: by 1/4 had any state submitted competing slates of electors?
MrJ: there were not STATES that submitted, but a buncha loonies, I mean Republican candidates, and maybe some substitutes had made some "vote certificates" for Trump and those were submitted. but there was no auth

MrJ: i mean, there were alternate slates, but none of them have an imprimatur of state authority

that means the state is the only one allowed to say what electors are, nobody else

BA: any reason for multiple slates?
MrJ: well there's a process to discern when competing slates

MrJ: in the Electoral Count Act, but only the one w/ state imprimatur (signed by the Governor) really has weight. There's case law on what to do that goes back 130 years, but there was no reason to deal with it.
BA: on 1/4 you had an Oval Office meeting w/ Eastman
MrJ: yes

BA: who else
MrJ: Eastman, Trump, Mark Short, VP and me
BA: was Eastman there for Trump?
MrJ: no one stated what status EM had, I believe. in an email later he indicated Trump was his client, but I had no direct confirmation
BA: after 1/4, what did Eastman propose?

MrJ: during 1/4 he put forth two ideas: 1)VP had unilateral authority to chose vote certs, 2)as presiding officer he could suspend proceeding and send vote certs back to state legs to let THEM determine who won. It was EM's view was that 2 was the better path.

MrJ: he said that would give the entire process an imprimatur (Seal of Approval) to the state authority process
BA: in your deposition did you state EM found it more "palatable" was that your word or his word?
MrJ: I don't remember if he said palatable or prudent. I talked w EM

MrJ: later and I believe during those phone calls he used the word palatable, but I can't remember btwn in person on 1/4 or on phone on 1/5
BA: by the time of that meeting, had you researched his two courses of action?
MrJ: prior to 1/4 we went over VP auth in general

MrJ: there was an OPERATION PENCE CARD floating around (that was @IvanRaiklin's joint), and we were looking at point 1, and there was a memorandum from Short and Ellis, but that was bullsh*t. She said don't even open the certs. The constitution straight says you must.
so by 1/4

MrJ: the ones I'd heard (theories of VP power) were all bs. in the election of 1876 there were delays, but there were provisions in Electoral Count Act to extend clock in case crazy happened. but I never saw a proposal about delay. Not until Eastman.

On 1/4 I wrote a memorandum for VP that there were provisions in Electoral Count Act that would have been in conflict w/ Eastman's proposal. I sent that to VP on 1/5 that EMs procedural theory was unworkable.

BA: did Eastman say any legal points on 1/4 you hadn't considered?
MrJ: no
BA: what did you consider?
MrJ: there was an article from @tribelaw we discussed where Tribe addresses questions under 12th amend. i think EM invoked a Law Review article by Kessavahn (sp) that had qs

BA: had you already read those articles?
MrJ: yes
BA: when did you see Eastman again?
MrJ: 1/5 around 11, 11:30 am. Trump asked to me n VP to meet again. so Mark Short and I met w/ him again. timing was predicated by an argument EM had.
BA: what did EM say at beginning?

MrJ: he expressed frustrations w/ GA. he said he was there to ask VP to REJECT electors.
BA: were you surprised?
MrJ: I was, because before he said SEND EM BACK, and the VP had kind of nailed him down on that yesterday, so it was a surprise
BA: what states specifically?

MrJ: initial set wasn't clear, 5-7 states, GA, AZ, WI, MI others
BA: did EM explain why he changed course on REJECt?
MrJ: no
BA: did he explain how that REJECT would work
MrJ: we discussed the unilateral authority theory, 12th amendment, historical incidents, and the fact NOBODY

MrJ: had the authority that EM was asserting he had, nor had NEVER had anyone even tried that shit. we talked about it, we abstracted, guessed how courts would rule given history of Electoral Count Act, maybe 90-120 minutes. very...robust...discussion
BA: did you include history?

MrJ: yes
BA: in your view did any of those historical events make you think VP could reject?
MrJ: nah man
BA: did you discuss how Nixon violated electoral count act?
MrJ: we did. it was in articles. on its face, it looked counter. what happened in Hawaii though, outgoing gov cert

MrJ: incoming gov (D) sent a different slate because there were court proceedings. after time, turned out Kennedy won, so there was a THIRD slate submitted. VP Proceeding: Nixon reads out the certs, then Nixon stated Kennedy won. Nixon said, w/ no objection, let's not debate.

MrJ: three points: he asked for objections, got none, moved fwd unanimously. EM and I discussed that, and it represented no exercise of power on VPs part. So we agreed (EM & MrJ) that there were no departures from Electoral Count Act
BA: so after discussion EM said Nixon was cool

BA: that he did what was right
MrJ: correct
BA: you said you read law cases, records, history, yes? why?
MrJ: because you need information but you can't use an article as basis of an action, so review sources and make sure articles accurately translate sources

Ba: did you and EM discuss articles 1/5?
MrJ: yes, Tribe again, and one from Ackerman "jefferson counts himself in" or something. very well researched on 1796 and 1800 elections. Adams and Jefferson were VPs and candidates, and what they did. Ackerman states some out there shit.

MrJ: Jefferson "exercised" his power. nah man, Jefferson in 1800 won GA, it was undisputed, there's nothing in Congressional Record stating exercise of any power. Some article claimed a page was missing, "technical defect", he expected Jefferson to raise problems, no reject tho

MrJ: so Jefferson didn't "exercise" any authority, and that is LIGHT YEARS AWAY from a VP being able to reject electors. EM agreed w/ me on that. The Adams incident of 1796 is even more niche. Adams didn't do anything and Ackerman made some shit up. whatevs bro.

MrJ: basically, none of this meant VP could REJECT anything. Jefferson even wrote Madison about "yo homie, even if minor errors, Adam won" so there was straight, nah, we not fuckin around vibes. So NEITHER of these could upend a vote. EM agreed w/ me that there was no base for VP

MrJ: to do a damn thing
BA: during your discussion w/ EM, you discussed your Congressional Records research
MrJ: yes
BA: and after that he conceded that there was no support for his theory?
MrJ: he conceded those EXAMPLES didn't provide any support. in my view that didn't support

MrJ: but he didn't concede that there was no support, just that these didn't apply
BA: did you discuss overall legal possibility of his theory to REJECT
MrJ: three ways- we have an ambiguous sentence in the constitution "shall be opened, shall be counted" no rejection discussion

MrJ: that doesn't support any authority. i think there's no authority there to reject at anything at all. but if one said there WAS an authority, that is embodied in Electoral Count Act, if CONGRESS debated and rejected. second way- history. there's NO HISTORICAL PRECEDENT.

MrJ: this country NEVER deviated from Electoral Count Act. if anyone could reject- CONGRESS COULD, not VP. finally, would this make sense in theory and practice- that any one person could jack up the process?
does that make sense?
EM and I agreed that it wouldn't be sensible

MrJ: so I asked EM- we'd lose if we went to SCOTUS 9-0. He said maybe 7-2. I said who would rule for you? he said MAYBE CLARENCE THOMAS, and threw some legal mumbo jumbo out. I said NFW, GTFOH. EM finally conceded he'd lose 9-0. He thought he might even slide outta court

MrJ: I just ran it down for him man, he's whack, and he thought he might get around court because they'd deny taking the case.
BA: eventually he agreed he'd lose 9-0?
MrJ: he did. but he sure did argue about it a lot. he did acknowledge VP unilateral REJECTION would lose SCOTUS

BA: did EM eventually ask you to just delay?
MrJ: yes
BA: were any state legislatures requesting delay?
MrJ; there were individual legislatORS who were asking, and it was on my radar, but I saw no action at state level to change result. i had my staff write that shit up in case

MrJ: anyone came at the VP sideways about sending it back to states. this was practical. we already had legal justification. I had two phone calls, one w/ Trump, one lawyer to lawyer later, and we discussed that there were NUMEROUS leaders who were cool and no group args

BA: did you have further comms
MrJ: he did send me an email that PA WILL REVIEW ELECTORS, and there was a pdf, but it wasn't a sufficient majority of PA gov to do anything.
BA: so that changed nothing?
MrJ: it didn't change my LEGAL view, and in my PRACTICAL view it changed nada

BA: you heard about Eastman's memos about these issues, yes?
MrJ: I did, didn't get them
BA: in your opinion were there alternate slates of electors from states?
MrJ: only individuals sending in alt slates, none had imprimatur, they meant nothing
BA: lemme show you some docs

BA: exhibit 65, what is this
MrJ: this is a page from a notebook where i made some notes about my meeting w/ EM on 1/5.
BA: you wrote this on 1/5?
MrJ: yes
BA: what's it say
MrJ: reads note

BA: what process were you referring to?
MrJ: Second note refs state law election procedures. EM stated the elections weren't valid due to violations of state law. the third point is about the 12th amendment, and if VP has power to examine or reject state certs

MrJ: EM was saying why even have the process for 12th if you CAN'T REJECT.
BA: and w/ respect to third point, who was making the request
MrJ: EM
BA: what was the purpose of these notes
MrJ: they're notes in case of new stuff. he asked for rejections, which we already said nah

MrJ: the second point is that VP could reject because states certs were illegal. there was nothing actionable there though. these were basic points to summarize EM position.
BA: and Mark Short was present when EM said REJECT?
MrJ: yes, he was in and out, but he was there for it

BA: another exhibit, memo from MrJ to VP what is it
MrJ: this is my memo from 1/4 meeting and that what EM had put out was bs. but I hadn't discussed the specific procedural theory was bs, so i wanted to inform VP of the bs

BA: page 3 second para: "nobody's saying the sh*t EM's tryna say" that right?
MrJ: correct. we discussed it on 1/4 and 1/5 and EM agreed no state was saying his bs. he tried to pull PA out evening of 1/5, but I shot that down.
BA: last sentence 4th para: "EM admits no alt slates"

BA: when is that reference to on 1/5
MrJ: this is AFTER 1/4, but BEFORE 1/5 meeting, so "as of today" indicates as of 1/4, even though they were still tryna make some sh*t up. EM said "stay tuned"
BA: Judge, adding some exhibits
Judge: any objections?
All: we cool

BA: MrJ, do you recognize this letter dated 1/6, exhibit 64, what is this
MrJ: this is the Dear Colleague letter where VP said "yeah, we're not doing that"
BA: did you help w/ this?
MrJ: I did.
BA: letter includes reference to "voting irregularities" and allegations.

BA: does any of that give VP right to REJECT?
MrJ: nope
BA: any accusations of fraud that might give VP that power?
MrJ: no
BA: MrJ, here's some emails

BA: did you and EM email back and forth?
MrJ: yes
BA: during J6 Insurrection?
MrJ: yes, the very bottom email is the PA email from J5. the top email is 2:14 eastern on 1/6, when i was being ushered onto floor of senate after initial breakin

BA: do you remember when the first attack happened?
MrJ: lays out seriously detailed recollection. BOOM BOOM BOOM while getting coffee, glass just shattered. I now know that was rioter w/ shield (this was probably Pezzola). I rolled out.

damn. dude's smart.

MrJ: this email came 4 or 5 minutes after the first break in. I was working on a response, but we got ushered out, because we could not be kept safe and secure.

and I very quickly finished that last line and sent it.
BA: you sent that 2:14 est as you moved to senate floor

MrJ: yes
BA: and how long on senate floor?
MrJ: not long, describes moving through Capitol, VP being pulled off floor, Capitol Police was trying to get us through, Secret Service was trying to block everyone. With me was the aide w/ VP's nuke football. I stuck with her.

MrJ: we quickly went and found VP, where VP said I'm not leaving office (me listening from outside) and SSvc agents getting him to agree they needed to move him. so just a few minutes from floor to there.
BA: ok, exhibit 68, email from EM to MrJ. is this a further exchange?

BA: that was 4:45 pm
MrJ: yes, this was after worst of violence, and we were figuring out how to put things back together. VP worked w/ leadership and LEOs to reconvene asap. by time of that email we knew we'd be back in 2-3 hours
BA: when did the proceeding restart?
MrJ: 8:30pm?

BA: second para says that EMs theory was rejected, why did Trump n them say he would reject? DId you do that EM?
MrJ: go to his earlier email please, his earlier statement said we're not gonna reject, but we can adjourn. c'mon man, use the "fallback position" and send it to state

BA: regarding those two courses of actions, did EM say they had different or same basis in law
MrJ: he said they had the SAME basis, it'll be more palatable to have states do it, as opposed to VP asserting unilaterally, but it's the same theory, based on violations of ECA

MrJ: we can't override the Senate and House for statehouses. that's bullsh*t. there was a historical precedent for f*cking around, but that violated it based on timing by suspending proceeding for 10 days. There's NO WAY the Constitution would put THAT MUCH POWER in VP to reject

BA: exhibit 69 (nice), page 2, Eastman v Thompson, MrJ you recognize this email EM sent you?
MrJ: I do

BA, Judge, EA: exhibit housekeeping

thanks for playing along folks, this is fun.

BA: MrJ, in your view, was march on capitol to f*ck w/ election
EA: Objection
Judge overrules
MrJ: it is apparent to me that people marched to Capitol, the reason that they were there, the reason they were angry, because they thought there was a decision to be made
BA: why?

MrJ: there were various reasons. mentions @IvanRaiklin's #PenceCard again, there were tweets, statements, referring to a "Momentous Decision" to be made
Judge: what was this Momentous Decision you refer to?
MrJ: that the people marching thought the VP had the power to decide Pres

MrJ: but original framers KNEW that no ONE BODY or SINGLE PERSON should have that power, because of exactly a scenario like j6.
EA: move to strike, "the participants believed" that's hearsay, he don't know that, anything starting w/ "the framers were smart"
Judge: BA, reason no?

BA: I wanted him to explain from his POV
Judge: motion to strike denied

Big oof for EA

BA: let's move on, drop deets on 1/6
MrJ: there was a rally, Rudy, Eastman, surrogates, rehashes J6 speeches, both Rudy and Eastman talked about VP, THEN those folks marched.

MrJ: every 15 mins we got summaries of sigint of on stage, tweets, etc from our staff. Rudy called for trial by combat, Eastman said "if VP doesn't do what we want he shouldn't be in office" that added to the crowd's view that VP COULD make a decision
EA: objection, speculation

EA: also hearsay
Judge: yeah, go f*ck yourself. hearsay is allowed in state bar court
BA: when you say surrogate, you mean surrogate for Trump campaign?
MrJ: some for Trump. some for Campaign. I don't know who authored #PenceCard thing (hint, it was @IvanRaiklin), but lots there

BA: new exhibit: draft article from MrJ
EA: objection we don't like this
Judge: it's in exhibits yeah
BA: yea
Judge: look the exhibits relate to witness, it wasn't clarified, but it's not new, it's identified, i'm gonna allow this shit.

BA: did you write this sh*t but didn't publish?
MrJ: yes
BA: when?
MrJ: when i was in a secure location i wrote 1st paragraph, then later I had staff help me flesh it out w/ some details, then I wrote more later. this was approx 1/8-1/9.

BA: MrJ, as we go through this, does it look like the op-ed you describe writing? *scrolls thru*
MrJ: it does
BA: why didn't you publish?
MrJ: 1. certain aspects were discussions maybe covered by exec privs, that might be bad unless i put it through exec privs review

MrJ: the other reason, in last paragraph, "there should be no rush to judgement" I've seen too much rush to judgement, so I held off. based on what I saw, just instances of advice i saw on 1/4 and 1/5, were deficient. but i wasn't around for all discussions. no gas for the fire

BA: ok, that's why you didn't publish, why write it?
MrJ: I was offended for my profession
BA: how so
MrJ: it's one thing to talk some smack about law, but taking action? fuck mannnnnn

MrJ: I thought this whole thing brought my profession into disripute. ultimately i used it as a cathartic exercise, but there were reasons not to throw gas on the fire.
BA: submitting for exhibit
EA: objection
Judge: bro. overruled.

BA: one last document and a couple questions. MrJ, you testified before @January6thCmte and submitted written doc yeah? this it?
MrJ: yeah
BA: what was the purpose?
MrJ: create a historical record, make sure VP was not marked down as some hoser who rolled with the coup bullsh*t

MrJ: I also wanted Congress to eat some crow for pushing the bullsh*t that the VP had ANY power to REJECT. there was no voter fraud in OH in 2004. (are you sure bud - me). I wanted Congress to realize we've been getting it wrong, let's try to fix it.

Clouds open, angels sing.

BA: this is three pages. is this your statement?
MrJ: it is
BA: moved to evidence

BA: no more questions
Judge: EA, how much time you need MrJ for?
EA: hour to hour and a half
Judge: JUICE BOXES SNACKS AND NAPS

*some scheduling goes on*

aaaaaaaand we're on lunch

While on break, like to remind everyone that I’m but 1/3 of the awesome @radicalizedpod along w @Heidi_Cuda and @jimstewartson who is currently BEING SUED BY @KashsCorner and @GenFlynn

If you’d like to help Jim dust up with the baddies, every dime helps

gofundme.com/f/stop-mike-fl…

aaaaaaaaaaand

MrJ is still on the zoom, and Judge Don't Play Me is having some pc issues.

SHOUT OUT TO THE IT LADY KILLIN IT TODAY

Judge: let's do this
All: yo judge, we down
Judge: we're gonna keep going w MrJ.
EA: sup MrJ.
MrJ: sup
EA: be loud bro
MrJ: kk
EA: so, from your testimony, the VP issues weren't "on your radar" until Oct/Nov 2020, fair?
MrJ: first time I looked was in Oct

EA: and did you do any research into the VP's role concerning all the issues?
MrJ: yes, VP had finished debate, I had downtime until J6, and I knew I had to prep for how J6 cert would work. Asked my staff to get me Senate rules n stuff. Found out there weren't, that made me look

EA: was there anything in November that added to your research?
MrJ: Nope, it was all procedural how to stuff. we went down some Electoral Count Act stuff, we learned some debated and disputed points, but there was nothing specific. however, as I went through ECA, there are regs

EA: so you DID find out there were some disputed points concerning VP role, true?
MrJ: there were some disputed points in the scholarship
EA: and that was in constitutional law?
MrJ: not really, there was some recent articles, and a bunch of ooooooold ones.

MrJ: mainly discussion how ECA was a bit off from the 12th Amendment.
EA: so these are lawyers on your staff doing the research?
MrJ: yes
EA: so that work was captured in a memorandum, yes?
MrJ: yes
EA: did you or your staff keep those articles they researched?

MrJ: Yes
EA: what articles
MrJ: i don't remember all, but I'll try: Ackerman, @tribelaw article about Bush v Gore and mirrors, one by...Kesebaughn? One by two dudes, Ticking Time Bomb of the 12th, one by Stephen Steagal, and a couple others that I recall.
EA: How about one by Yoo

MrJ: that wasn't a law review, it was on website, maybe American Mind? written by Yoo and Delahunte i worked with
EA: did you think that was legitimate scholarship?
MrJ: it had no footnotes, sources, it wasn't a review. it was a thought piece, discussing alternate electors

MrJ: I don't consider it as scholarship, it was a thought piece EA: you say scholarship, did you consider Prof Yoo to be a constitutional law scholar
MrJ: yes he's a scholar, but not everything he writes is scholarship

EA: but what about this article, is it a reliable source?
MrJ: again, it's a thought piece. there's not enough sources to call it a "reliable source" to decide a point of law
EA: b4 the 8 articles you identified to me, had you had any other education in ECA?
MrJ: not prior

EA: so not something you had handled firsthand before?
MrJ: correct
EA: and nothing in your history?
MrJ: nothing until 12/20, just did prelim research
EA: how many people assisted you?
MrJ: I have staff of 4, so at least 3. *names staff*

EA: and they were all lawyers?
MrJ: 2 accredited lawyers, 2 law students
EA: did they id any issues as part of their research?
MrJ: uhhhh, i think what yer asking is if we learned of issues. we did, but they're covered in Electoral Count Act, not the most clearly written

MrJ: so we went to scholarship, and there were scholarly articles, some even saying the ECA was unconstitutional.
EA: is that a well informed opinion?
MrJ: the articles summarized their points well in their article
EA: did you feel that there were issues w/ respect to ECA being

EA: constitutional?
MrJ: we found small bits, here and there, some scholars argued some or all of ECA was constitutional. but I put those issues in my memorandum i sent to VP on 12/8
EA: and you id'd that to VP
MrJ: I included the issues
EA: did you come to a conclusion about ECA

MrJ: there's questions about pieces, but in no way could I supply a definite conclusion about that. not one I could advise VP on
EA: by 1/6 did you have any opinion about constitutionality of ECA
MrJ: I did, most of it IS constitutional. Some argue it was uncon based on future

MrJ: control of congressional procedure, but I don't think there's a question of the whole being unconstitutional. I don't think it's obvious under 12th that it says ANYONE has ability to reject, but the way it governs VP as President of Senate, that's appropriate and constitutnl

EA: ECA was amended yes?
MrJ: yes, in the last year
EA: did you participate?
MrJ: I had discussion w/ folks in that process but not personally
EA: when were you appointed to VP
MrJ: Feb 2020ish
EA: so by Oct about 7-8 months?
MrJ: yes
EA: you met w/ Eastman during that time?

MrJ: yes
EA: you understood Eastman had role w Trump?
MrJ: I assumed he was, EM said it in the 1/6 email
EA: what other possible relationships could EM have had w Trump
MrJ: he could have been there as an outside advisor
EA: but you understood he had a role w/ Trump
Judge: when?

EA: late 12/20, early 1/21
MrJ: we went over this yo, here's the breakdown (repeats earlier story)
I had no reason to believe otherwise
EA: you understood he was NOT a gov employee
MrJ: yes
EA: you were
MrJ: yes
EA: you knew about Trump campaign?
MRJ: yes

EA: as a campaign they have legal counsel, right?
MrJ: yes
EA: Trump can also have legal advisor, yes?
MrJ: It was my assumption that Trump as candidate was the relationship Eastman had, not Trump the president

EA: so on 1/4 and 1/5 you were a gov employee contacting a private atty, correct?
MrJ: I can only tell you my assumption
EA: we can agree that EM was repping Trump as candidate
BA: objection
Judge: sustained, let's move on
EA: you're familiar w/ 1st amendment right of redress?

BA: objection relevance
Judge: sustained
EA: issues of capacity, your honor. we're tryna say Eastman repped Trump 1st amendment redress of grievances, not trump as president
Judge: then frame it that way
EA: did you understand comms w EM were him advancing his client's 1A rights

MrJ: I never understood that. I understood there were executive privs issues, so it wasn't clear how EM was operating, in what capacity. He certainly urged us to take actions in our pro capacity, so that could be 1A redress.
EA: so you assigned that to your comms w/ EM

MrJ: it was clear to me that Trump was, in some way, asking for a redress of grievances
EA: so we agree. you said before you and your staff captured research in a memo on 12/20
MrJ: i sent a memo about research from October after VP asked for it, after he indicated he heard

MrJ: he had power to reject. I sent a followup 1/5 memo to clarify and finish up all research
EA: So VP asked you for those memos
MrJ: in my capacity, yes
EA: exhibit 1091- copy of MrJ 12/8 memo. dis u?
MrJ: yes
EA: you approved the language in this exhibit? these yer words?

MrJ: yes
EA: did you submit any research personally?
MrJ: yes, there's numerous places i point out questions raised, issues pointed out, cuz my research wasn't done
VP wanted to know why folks said he had power, so I gave oral answer, but wanted written answer

EA: did he tell you what kind of things did VP say he was hearing?
MrJ: Lincoln Project had an ad that said VP was putting final nail in Trump's coffin, there were blogs and posts, nothing specific, just he was aware he MAY have had an affirmative role.

EA: so on 12/8/20 that line - to the extent is consitutional, that raises questions?
MrJ: yes, that raised questions for me
EA: was there a question as to role VP would play on J6 in your mind?
MrJ: on 12/8, when i wrote this, his job was to preside. the ECA would rule.

MrJ: and nothing we would be doing would be unconstitutional. the only question i had was what to do w/ alternate slates w/ proper imprimatur as to governor certified vs state legislature certified, but the question was moot, as there were no slates like that. so there's no issue

EA: what's the 12th Amendment say about dual slates of electors
MrJ: nada.
EA: second para of your memo- there is disagreement. what disagreement?
MrJ: Harris, 2000, made an argument VP had a role. I don't consider that scholarship. Yoo and his coauthor also wrote their thoughts

MrJ: and others had raised questions, but gave no answers. that's what i was aware of, and there are certainly disagreements. Congress benefitted itself with the ECA, rendered VP administerial (do the paperwork VP)

EA: first sentence second paragraph, your words?
MrJ: correct
EA: it also states theres a role in resolving objections, correct?
MrJ: correct. Gore gaveled down all objections in 2000. In 2016, Biden gaveled them all down. SO yes, VP has a prominent role in those obejctions

EA: you also say "scholars disagree" what scholars?
MrJ: this isn't about resolution of objections, this is about counting, and counting is in the 12th. there have been issues where 12th moves to passive voice: and then they shall be counted. their are arguments what that means

MrJ: gives some serious constitutional history and I am not high enough for this much rabbit holing

Framers did the thing, there was no VP for the first count, but then there were tellers, and VPs and damn MrJ knows his shit.

MrJ: but this line is JUST about counting certs
EA: you do address VP's role about disputes in here?
MrJ: elsewhere, yes
EA: 2nd paragraph- VP role to resolve disputes yeah?

MrJ: does another mad breakdown, includes disputes prior to 1887, so this says prior to ECA, when objections were raised, they had to do a one off each time. so history was muddy on this whole thing.
EA: you say it is VPs sole role to count disputed votes, that Harris Ackerman?

MrJ: runs down more lists of legal scholars, lists one article in 2000 that argues it was VP solely to do so, and only Yoo made that argument
EA: did you credit that argument those two sources made?
BA: objection vague
Judge sustained
EA: is there any more atty client priv u n VP

MrJ: kinda sorta, but where J6 committee published my stuff, there's no privs there
EA: cool. you testified you had discussing w VP his personal view of the authority he would have
MrJ: yes
EA: and you said he was consistent about his pov
MrJ: yes
EA: and he was NEVER to REJECT

MrJ: correct
EA: and that was after you started discussing
MrJ: in our intial conversation, before my research, he was of that mindset: No Can Do w/ re: rejecting electors. No way founders would put that power in one person's hands
EA: you ever see memos from Eastman?

MrJ: aside from pdf attached to PA, maybe an article, the only things i got from Eastman are the emails and attachments
EA: you understand Trump had other advisors, including gov advisors, yes
MrJ: yes
EA: do you know what other advisors were advising Trump at this time

MrJ: a lil. Cippolone told me he advised Pres VP didn't have the rejection power. Philbin didn't tell me at that time, but later told me he agreed w/ Cippolone
EA: were you aware of any advice given to Trump to make him take actions?
MrJ: I am aware of a tweet 1/5 saying VP has

MrJ: power to reject. Then Pres made similar claims: reject, send to states. Then those were said onstage at Ellipse by Trump and Eastman.
EA: you testified about what motivated rioters on J6. did you investigate that at all?
MrJ: won't call it investigation, but look around

MrJ: I heard "HANG MIKE PENCE" dude was my boss. there were tweets. there were numerous statements, numerous vids of chants. they were operating under the heartfelt belief that VP could take action. he couldn't.
EA: you publicized your comms w/ Eastman correct?
MrJ: are you nuts

EA: and EM didn't publicize your comms, correct?
MrJ: well i heard EM on recordings, podcasts, whatevs, i got a call from Wapo reporter asking about our interactions. Is that publicization? but I was surprised. he did.

EA: you any hear from any of the rioters in any way shape or form they were responding to Dr EM statements?
MrJ: i never talked to any of them personally
EA: and you don't have personal knowledge of their reasons
MrJ: i have the press, i have court docs, i have video. what, bro?

MrJ: I don't have DIRECT evidence as to their state of mind, but c'mon man
EA: in all those statements, did you ever hear EM called out by name?
MrJ: nope
EA: you approved the Dear Colleague letter?
MrJ: it was VP letter, I helped. I do approve of it, but I didn't "approve" it

EA: but you had significant input?
MrJ: I had significant input into parts, but that is very much the VPs letter, primarily his work product.
EA: you discussed w VP the words "voting irregs" yea
MrJ: yeah
EA: and you agree there were voting irregs" during 2020 election?

MrJ: well PA for instance- even ballots arriving post date allowed by PA Supreme Court- that's irregular. PA changed sig check rules to be less rigorous. In WI- unsupervised absentee ballot boxes, later ruled illegal. There were things changed due to Covid. Some objectionable,

MrJ: some illegal. we knew of multiple irregularities. so that language from the letter was used in earlier speeches. that's what we spoke of.
EA: so there were voter irregularities
MrJ: nah bro, there's a difference between ILLEGAL and IRREGULARITIES. we were talking irregs.

MrJ: we went through Voter Fraud and we concluded there were very very few instances, and so few it wouldn't change election.
EA: and VP shared that view with you?
MrJ: wut? as you can see from 1/6 he was troubled, he wanted action to keep it from happening again.

EA: you have another exhibit here- your testimony, you prepared this on 1/4 and it was finalized 1/5?
MrJ: yes
EA: and this followed the 1/5 meeting w/ Eastman and others?
MrJ; yes
EA: and you were capturing assessments from 1/4 true? VP asked for this?
MrJ: didn't ask, i offered

MrJ: I'd heard all the arguments. I thought they were bs. so i wrote some stuff up so he can smack the procedural options down. I offered. he didn't ask.
EA: when did VP make final decision about his 1/6 actions?
MrJ: prior to 1/2. he was on holiday from xmas to nye

MrJ: we convened at his residence. he never waivered on I can't reject electors. he knew he was ministerial. the one other thing he did was the Dear Colleague letter. he thought that was important given the hate campaign and bs theories floating around. both for Congress and USA

EA: so that decision was made by VP no later than 1/2
MrJ: correct
EA: any risk that Eastman's ideas would sway VP
BA: objection, speculation
Judge: sustained
EA: did you discuss w/ VP the issues you discussed w EM on 1/5?
MrJ: after 1/5 meeting, Mark Short and I saw VP

MrJ: we told him about the meeting and the whack sh*t EM was spewing, and we hoped at that time the whole thing was defused- no SCOTUS possible win, nobody ever did this, but as we briefed VP, he got called to Oval Office, and then there was a phone call w Trump EM, and another

MrJ: attorney asked us to do the procedural option: send it back to states
EA: procedural being a delay?
MrJ: yes
EA: and you discussed that w/ EM on 1/5
MrJ: it was raised in Oval Office on 1/4, we didn't talk it over on 1/5 because that was rejection talk, but then phone call

MrJ: and another later cell call w/ EM, the delay was discussed
EA: and that means send it back to state legis yeah
MrJ: what meeting are you talking about? morning 1/5?
EA: yes
MrJ; EM morning was rejection discussion
EA: but then later discussion were on procedural
MrJ: yes

EA: and after that late 1/5 call, did that sway the VP?
MrJ: no
EA: did the Dear Colleague change substantially between 1/2 and 1/5?
MrJ: no. Judge Ludig tweeted, we included a sentence or two from that into the letter. because EM clerked for Ludig we though it might help

EA: your irl meetings w/ EM, would you discuss that was cordial, respectful?
MrJ: yes
EA: and you considered EM to be consulting on behalf of Trump
MrJ: goes back through his assumptions, Trump as candidate, exec privs in an article 2 capacity, so there's inconsistency, i dunno

EA: let's talk about testimony w/ Hawaii 1960. you indicated Nixon had three options, correct?
MrJ: there were three certificates, two were effectively the same
EA: did VP Nixon under your view, have the authority to choose the original slate?
MrJ: no
EA: that was not an option?

MrJ: as President of Senate Nixon had a responsibility to have them opened and have them read. he could have ignored the one w/out imprimatur, but he had no options w/ accepting or rejecting. what he did do is say he looked into it, and he was satisfied as a candidate it was cool

MrJ: He then proposed, as long as no objection, move forward. He called for objections, there were none. everyone agreed unanimously and that's what was done. He proposed a procedural means to move fwd.
EA: were those "competing" slates?
MrJ: they were competing because 1st certd

MrJ: and the third was certd. you couldn't count both. everyone in the room agreed which should be counted
EA: Did VP have option of offering Republican slate?
MrJ: wut? i mean he "could" have but he had no authority to choose between them.
EA: if there ARE competing slates,

EA: what is remedy for that under 12th Amendment
MrJ: there is none
EA: what if there are objections? what procedure?
MrJ: there is none
EA: were you aware state legislators wanted to delay
MrJ: i do remember being contacted. some were about delay, some were about dismay

MrJ: some I got from EM did ask for delay, but in no way did that consitute a majority of any state legislature
EA: did you discuss w VP how to react to comms from state legislators?
MrJ: there was no specific discussion, we knew we got letters, but that was in correspondence dpt

EA: you spoke earlier about the #PenceCard. was the premise of that memo that VP DID have power to reject?
MrJ: it was a FAKE memo, so I didn't spend much time on it, but it did say that. Trump rt'd it 12/23/20, that's when it came to my attention.

EA: do you know if this #PenceCard riled up the rioters?
MrJ: I don't remember, I know it was out there.

Dear @IvanRaiklin I do believe the @TheJusticeDept should ask you about yer muhfukn Pence Card, bro

Judge: let's take a break.

aaaaaaand NOW WE HYDRATE

aaaaaand we're back.
EA: you testified to BA that there was no evidence of fraud that affected outcome of 2020 election, correct?
MrJ: yes
EA: do you feel that there are any irregularities that affected the outcome
MrJ: there was some in NC, some overruled, some not. Trump won NC

MrJ: in PA, there were ballots that arrived AFTER election day, but those ballots weren't more than vote, so not in PA. Maybe in WI, there were absentee ballot boxes that were ruled illegal, the spread was 20k votes, there were also some county level irregularities.

MrJ: because of Covid, some counties put out that you could vote absentee, but that was pulled down as unlawful guidance. it MIGHT have effected outcome in WI, but that wasn't gonna change national, so ultimately NO, THERE WAS NOT SUFFICIENT IRREGULARITY TO ALTER OUTCOME

EA: you say there were actions that were NOT filed by state actors that challenged election results, what were you were referring to?
MrJ: you're misconstruing me I think. Those weren't filed by gov actors, those were Trump campaign suits. Those 64 or 65 lawsuits dont' count.

MrJ: there were other lawsuits that don't count, because they were filed by STATE level actors, but not federal actors, but those aren't included because Trump campaign didn't participate
EA: and those other suits, did they have bearing to you about irregularities?

MrJ: I read the complaints, but it was the rulings I needed, and those came later. it was too late to put the toothpaste back in the tube. the SCOTUS never ruled on PA, the cert was dismissed prbly cuz moot. the judicial actions were persuasive

EA: the legal issue in PA was the loosening of sig verify
MrJ: yes and no, the one that caught the eye of SCOTUS was the PA SC ruling about ballots arriving AFTER election day. The PA SC said due to pandemic those should be counted. That's when those absentee were separated

MrJ: There was also another way they altered rules to decline to do signature verification, and the PA SC said that was permissible, that was another issue, but the main issue was the absentee ballots
EA: thank you, no more question
BA: I have very few questions I can do in 5 min

BA: buuuutttt, here's an exhibit. is this a series of tweets from Judge Ludig? are these the ones you refer to on 1/5?
MrJ: yes, on 1/5 this came to our attention so we decided to include them in Dear Colleague letter

BA: do you choose @judgeluttig because EM clerked for him? do you consider him an expert?
MrJ: we did choose him because Eastman knew him, and we decided to include the tweets in the statement as a well known conservative scholar/judge to counteract the blogs, the #PenceCard

MrJ: so when these tweets came it, it was kind of what we were looking for, as it's a renowned legal personality backing up VP ministerial role only.
BA: do you see this tweet from Trump? was it one you refrred to?
MrJ: no, not this one, the one I ref'd was more of a press rls