Kenneth Chesebro Proffer in Fulton County Election Case — Video Part 2

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[00:00:01]Good.

[00:00:02]>> Back on the record with Mr. Chzbro's profer on October 20th, 2023. It's 10:07 a.m. Um, when we left off, we had begun talking about the December 23rd uh conversation with Mr. Eastman. Um, can you just start back there? He calls you on the 23rd. Um, how does that conversation develop? Uh he um asked me whether I agreed with him that someone who had urged Pence to reach out to electors for not having filed some form by some date. There was a complete misreading of the stash of obligations and that made no sense for for Pence to do anything. And then um he started I I don't know who raised it. He or I uh talked about the the 12th amendment issue and and the role of the vice president and uh we had back discussion.

[00:01:03]He was discussing what he was I guess writing up and what he then shortly thereafter sent me uh because I offered to help edit whatever he was putting together and u so we just had a back and forth very nerdy legal discussion about uh 12th amendment basically.

[00:01:20]>> So uh my understanding and I know there are a lot of memos going around um both by you and Mr. Eastman but up until this point um I think his first memo had focused on what he would call the independent state legislature theory. Is that correct?

[00:01:38]>> I had no knowledge of that memo until maybe a few months ago. I didn't know what he was doing on the campaign.

[00:01:44]>> Okay.

[00:01:44]>> Other than the Pennsylvania.

[00:01:46]>> Okay. Um, so when you spoke to him on the 23rd, you weren't aware of his role in the campaign at that point.

[00:01:53]>> I knew that he'd done at least one ser petition. I didn't know that he had apparently talked to state legislators.

[00:01:59]I just didn't know any of that at the time.

[00:02:01]>> Okay.

[00:02:02]>> Also, he didn't have my he didn't have my December 13th email nor my December 6th email. So, he had no background on what my view was of the 12th amendment.

[00:02:12]And they told >> Okay. You mentioned two specific um memos. So you said the he didn't have which memos?

[00:02:22]>> He didn't. He only got my December 13th memo when on January 2nd. He asked me if I'd ever written anything on 12th amendment and that's when I forwarded it. So when we talked on December 23rd, he had no knowledge of my December 6th or my December 13th uh uh my December 6th memo, December 13th email following up with that. He didn't know of my idea of setting up a test case to the Supreme Court. Uh, and I don't know that I discussed it with him. So, so it was more I was >> How about your December 9th minimum?

[00:02:49]>> Oh, I don't uh that that's on logistics.

[00:02:51]I I don't no knowledge of whether you had that.

[00:02:54]>> So, let me let me jump in. Phone call.

[00:02:57]Um, how many phone calls on December 23rd or did you have with Mr. Eastman?

[00:03:02]>> Uh, I believe just just one and then some follow-up emails.

[00:03:06]>> Okay. Did was anyone else on those phone calls? No.

[00:03:09]>> Are you sure about that?

[00:03:11]>> Unless he had someone on speaker phone.

[00:03:14]Oh, I'm sorry. There could have been a phone call with Boris Epstein because we're It was like I think Epstein had was asking simultaneously uh and again I haven't reviewed I I've not I I haven't reviewed a lot of these emails. I just before I testified at trial. So I believe around this period Epstein is asking both me and Eastman for our views on the 12th amendment and sometimes we're on the same emails. So, it's possible that Epstein that I spoke with him the 23rd or that he was on the call, but I just don't remember. I just literally don't remember talking with him other than mid December on the alternate ledger stuff.

[00:03:54]>> So, understand why you're pretty confident that Mr. Eastman had not reviewed the December 13th uh email or memo because you subsequently forward it along to him I think on January second, right?

[00:04:06]>> Why are you so confident that he hadn't reviewed any of your other memos? I know he reviewed the November 18th memo. Uh that and that's obvious. Uh I don't have personal knowledge that he didn't the December 6th memo, but it was very tightly was sent to Tupis and I don't know that Troopus sent it uh to I don't have any reason.

[00:04:28]>> Okay. The reason is he testified under oath in California >> a couple weeks ago that he had never seen the December 6th memo until they showed it to him. And I I and >> so you're basing your knowledge on that testimony by Mr. >> East.

[00:04:40]>> Yes. But also he he never raised with me my idea of a test case in Supreme Court which it makes sense because he didn't know that that was my approach.

[00:04:49]>> Okay. So um to your knowledge he was unaware of these memos and uh more generally your position on the vice president's role on January 6th at the time that he contacted you.

[00:05:04]>> Right. Right. before he >> So, and he told you, "Hey, I'm already working on this memo. Will you help me out with it?"

[00:05:14]>> I think I volunteered. I I would help I would edit it if you wanted to send me a copy of >> Did he ask you for help? Yes or no?

[00:05:22]>> Um, no. I I think I I said I would take a look at it and edit it. I just volunteered to edit if you needed some editing help.

[00:05:29]>> You volunteered to edit it and he took you up on it?

[00:05:32]>> Yes.

[00:05:32]>> Okay. What uh what sorts of edits did you make to the document >> uh to to make it uh read better uh uh clearer add add some reference to scholarly report? I mean there must be a red line of it someplace. So I don't recall the details.

[00:05:50]>> All right. And I'll just note you know please get us that red line if you have it. Um, >> you make it sound like your edits were, you know, somewhat minimal. Is that to say that the general substance of the email or of the memo existed before you got involved?

[00:06:11]>> Yes, I was helping him express his ideas more clearly.

[00:06:15]>> Okay. Um, so there's an email uh from Mr. Eastman to uh Mr. Epstein on that day cecing you um with what I get is uh the version of the memo after you've contributed your edits.

[00:06:35]>> Yes.

[00:06:36]>> It says in part, you know, here's Ken's edits. They're good. Um then there's uh a line by Mr. Eastman. The fact that we have multiple slates of electors demonstrates the uncertainty of either.

[00:06:48]That should be enough. Better for them just to act boldly and be challenged since the challenge would likely lead to the court denying review on non-juditiable political question grounds. So when you got this email kind of how did you take that statement? Like what what do you believe the goal of this memo was from Eastman's point?

[00:07:11]I don't recall my impressions at the time, but it was a brainstorming document about all sorts of scenarios that he was throwing out for consideration.

[00:07:23]>> All sorts of scenarios for how January 6 could play out.

[00:07:28]>> Yeah, he I guess it was like six or seven different chain of events that that could occur. I I don't have a recollection of my I mean you can ask me what do I think now but I don't recall exactly what I thought then after editing it I I don't think I dwelled on it.

[00:07:44]>> There's also a part of the email that says um agree with Ken that judiciary committee hearings on the constitutionality of the electoral count act could invite counter views that we do not believe should constrain Pence or Grassly in the exercise of power they have under the 12th amendment. Better for them to just act boldly and be challenged. um can you give us some context about the discussion on um you know whether to have this debate before January 6 in front of the judiciary committee?

[00:08:11]>> Yes. Well, again I guess it's he didn't have it at the time. My my December 13th email suggested that to prepare members of Congress and the public for a scenario on January 6 where uh where the president of the Senate would uh raise concern about some of the slates and and and and try to set up a test against the Supreme Court that there should be hearings in the judiciary committee with at least a couple of of reputable scholars. who've written some of the articles that I was relying on saying that there's ambiguity about the 12th amendment and uh to support the idea that there should be a test case for the Supreme Court to resolve it and also that there be hearings somewhere in Congress to explore alleged election irregularities in various states so that that it would be clear that there was a legal issue about who exactly resolves these disputes in January 6 that may require a Supreme Court resolution and there were there were arguments about irregularities that were worth examining so that it wouldn't just be a matter of January 6 all of a sudden this was coming into play now. So that I had laid it out uh but I I think the more I reflected on it uh that it was u better better if the president said it were to assert the power of the office to have some some control over uh the proceedings that it just be done and that there would be litigation. So I I must have >> Why why was that the stance? Why why were y'all concerned about um the judiciary committee discussing it? Were you >> I I I wasn't opposed to that, but u I think I must it must be that Eastman persuaded me that in a sense to then have the hearings. It it it does in a sense suggest that there there's a um a lack of confidence about the president of the Senate taking that position. So I think he must have persuaded me that uh it better not to have hearings.

[00:10:11]>> Okay. And and to drill down a little bit, so would you say the reason that that he persuaded you was better not to have hearings was the fear that you know the outcome of the hearings may not be the result that you're looking for?

[00:10:24]>> Oh, no. I I think my idea would be you'd have a couple scholars who'd written some of the articles saying the 12th amendment is ambiguous testify. Um the point of the hearings would not be to have a decision by the committee on the issue but simply to heir both sides there would be scholars >> understood. Okay. So >> I wasn't worried there be a result but it's just a matter of saying that this is something that needs to be debated.

[00:10:47]>> Let me redefine the term result.

[00:10:48]>> Absolutely.

[00:10:49]>> Um the quote from Eastman is could invite counter views. So result doesn't have to be some sort of official decision. By result, I just mean the judiciary meeting, right?

[00:11:02]>> Talking about this theory and basically saying we don't agree with this and and putting out counter views that could be damaging to y'all's, you know, scenarios for January 6th. Is was that your understanding of of why he's been >> I I I have no recollection, but uh you know, beyond speculating the email now and based on you know, combining that uh phrase with the context of your discussions with him on this day. Do you believe that that was his his sentiment?

[00:11:36]>> I I I think he he thought it would it would undermine the argument as to the power of the president's senate to raise it and invite people to be arguing back and forth >> before January 6.

[00:11:48]>> Okay. And then um the last line from the quote that I read you is better for them to just act boldly and be challenged.

[00:11:56]Um, the word boldly is something that comes up in a number of Mr. Eastman's memos, and I believe it comes up in at least one or two of yours. Why was it that there was kind of this mutual idea that best act boldly, best, you know, let's not have judiciary hearings, you know, let's not wait for for um uh approval. Um, let's just do it and kind of see what happens. What was the thinking behind that?

[00:12:22]>> I don't I don't know about the word bully. That's not a Um I think um I think decisively is the word that is the the pro the reason why ultimately a judiciary committee hearing couldn't be decisive and the reason why debating it in advance of >> general you say in your um December 6th memo uh you describe your theory as bold and controversial. Oh yeah, bold is also a word that Mr. Eastman used a number of times including uh in the quote that I just read you. So my question is why this emphasis on like hey let's just be bold and see what happens. Why not kind of conform to the norms of of the process? So the I so the idea the bold decisive the idea is there's no way that you could get the Supreme Court to rule on this issue and to rule that the president of the Senate has the authority not the assembled congress unless the president of the Senate actually did it because that's the only way to create standing that is to to then um give a party the Biden campaign a stake in the issue to allow them to file litigation. So there's no amount of talking about it would resolve the issue. Only a bold decisive action to actually have the president of the Senate assert the power over determining legal issues involving the votes could could lead to to the test case. And that's just and that and of course it's quite controversial. This has never happened in American history. So I was recognizing that this would be a very you know a very controversial bold thing to do. But it was the only way to create the test case that I could see.

[00:13:59]What did Eastman say to you on the 23rd when y'all were discussing this theory as to why he was of the frame of mind that something like this would be valid or work or be legal? Um and specifically uh a number of days prior uh he had made a comment in a document that the electoral slates would be dead on arrival. Um but then by the 23rd uh in the quote that I just read to you, he says just the presence of both of them is enough to accomplish what we want to do. What discussions did you all >> Yeah, I I pushed back on that because um >> you push back on what >> on on the presence of the certificates that is um and and um basically if you have um let's take Arizona I I'm not sure I discussed this just for simplicity. Um, if you have on January 6, the envelopes are open and there's Arizona which is backed by the governor of Arizona sealed and then you have papers from the Trump electors who were validly nominated by the party and they assembled and they sent them in. But, uh, the governor hasn't certified that they're the valid votes. There's no court decision certified them as valid votes. The legislature hasn't um said that they're the valid votes. They're they're just pieces of paper. They're not a re you might have an argument that the Biden votes if the president senate has the authority could disallow them on some basis that there is regularities or not count them. So, but the fact that the Trump elector votes are there too is irrelevant. That is that is the first question the president said if he has the power is am I going to count the Biden votes? And if there's a reason not to count them, he might have a reason.

[00:15:40]There could be court review if he doesn't count them.

[00:15:43]But all the Trump votes uh being there means is that there is a potential that down the line if things change, if Trump wins litigation in Arizona, they could then become relevant. They they provide the Trump campaign with the opportunity to flip the state because they're potentially countable. But the fact that they're there, the piece of paper there, uh, along with the Biden votes that are certified by the governor doesn't mean that there's two slates where somehow there's it's not additional reason not to count the Biden votes. So, so I had this discussion about that that the vice president can't just say Trump wins because the votes are there because there's there's nothing from the state of Arizona that backs those votes. And and I was so um >> And so you made that clear to Mr. Eastman on December 23rd.

[00:16:35]>> Yeah. Yeah. And and and you know, we talked a little bit about state legislatores and I had a different view than him, although I'm I'm not you know, he's entitled to his view and he might have a point and some other people have argued that. But so so I just I I just said I that there's no way that Pence could announce Trump wins just because the pieces of paper there. That just didn't make any sense to So in his email when he says that it's enough that they're both there um that was not your opinion at the time and not only that but you would express the opposite to him.

[00:17:04]>> Well well I I I think it's it's complicated that is the fact that they're there.

[00:17:10]>> Well sorry so we don't get all you know okay I'm just trying to um to get a a concise point from what you just told me which is >> you know he says this in the email the presence of both is enough. You just gave an explanation of why you think that's not true and you said you communicated that to >> Right. Right. That that is um if there's no if there's no backing of the Trump slate on that date from any part of the Arizona government, then those votes are irrelevant to what the president's senate should do if he's the one with power. That is he either has authority not counting votes or delay or whatever or he doesn't. But the the Trump votes are relevant. The only relevance is eventually that he that that they could be.

[00:17:58]>> Got it. And so you did not agree that they are relevant in this uh broader way of just well they exist. They're there.

[00:18:07]This means that Pence can do whatever he wants. Like you had told him that that wasn't your understanding.

[00:18:13]>> Yeah. Yeah. I I couldn't see how that could be possible.

[00:18:15]>> You you never endorsed the view that he put in this email that the slates themselves are enough. And I guess we'll see if we get the red line, but what I want to know is were your edits um did they suggest anything either uh in furtherance of his theory or countering it?

[00:18:34]>> I so it was like a style edit and it added some scholarly reference. I never I never said in the edits um I didn't never deleted anything. These were like his brainstorming ideas.

[00:18:46]>> Okay. So in your view, you edited on style and maybe some small stuff, but the fact that you edit it, you did not view that as being an endorsement full cloth of the memo.

[00:18:57]>> Uh, correct.

[00:18:58]>> Okay, thank you. Um, and did you participate in uh the editing of any subsequent memos of his?

[00:19:08]>> No, there was a six-page memo, but I never knew about it until last year.

[00:19:12]>> And so I you never discussed that memo with him at all. There might have been some discussion when he was writing that, but it was not about the memo.

[00:19:21]>> Okay.

[00:19:25]>> And at some point you were going to ask about state legislatores.

[00:19:30]>> Yes, we we might we might get into that.

[00:19:33]Um >> do you have uh further questions about the December 23rd plan?

[00:19:39]>> I do. Um can you hear me? Okay.

[00:19:42]>> Yes, I can. Well, you want to move here just for the camera?

[00:19:45]>> Yeah, I'll move down.

[00:19:46]>> Can you can you uh just state state yourself for the record?

[00:19:50]>> Absolutely.

[00:19:52]>> I don't think we got you when you walked in.

[00:19:55]>> Yes. Uh my name is Donald Wakeford, >> assistant district attorney. Um, you were we were talking a little bit about the December 23rd memo and so so you say you edited for style and um did you say also for scholarly contributions or was it just for style or did you make any other >> I remember some at at the beginning referring to the the the fact that there was scholarly uh work that strongly supported the idea that the 12th amendment was fundamentally ambiguous and there was an open question there.

[00:20:33]>> Okay. Um and just to reiterate sort of the point that you've made over the last several minutes, at no point did you agree with the assertion that the presence of dueling slates of electors demonstrates the uncertainty of both.

[00:20:49]>> Correct.

[00:20:50]>> Okay. Um you did characterize the December 23rd memo. Um well, the December 23rd memo proposes rejection by Pence of Biden electors.

[00:21:05]Correct.

[00:21:06]>> I I don't recall, you know, I don't recall the specifics.

[00:21:09]>> Okay. Am I Am I right on that, guys?

[00:21:13]>> The December 23rd memo proposes the rejection of electors by by Pence.

[00:21:19]>> Um I believe so. I know the um January 3rd memo does. Um but yes, I believe so.

[00:21:27]Let me just check on this real quick.

[00:21:28]And uh yeah, that's right.

[00:21:38]>> Yeah. You get to Arizona, you just deem that uh no electors can be deemed valid.

[00:21:47]>> Okay.

[00:21:50]Um Okay. So he proposes rejecting electors in that in that memo. Uh you responded to that. I understand you did not edit for substance.

[00:22:05]You respond by saying that's really awesome. That was your response to that.

[00:22:09]So can you square this like you you didn't endorse it. You didn't agree with the analysis that uncertainty was created by the mere presence of Trump uh electoral slates. Uh but you called the the memo really awesome. So, can you just expand on what really awesome meant? I >> I mean, it was a really creative brainstorming doc document, and I'm I didn't mean it as saying I agreed with the things I obviously disagreed with based on my earlier memos, but uh I mean I you know, it was a kind of awesome document for the reasons I we all appreciate that that it was Yeah. So, it was it was not endorsement. It was just a positive comment about the nature of the document.

[00:22:55]>> Okay. Um and the creativity it displayed.

[00:23:00]>> Yeah, it was certainly interesting.

[00:23:02]>> Okay.

[00:23:04]>> Sorry. I'm sorry. Just before you go on, so just to clarify because I'm a little bit confused. So the really awesome comment, would you describe that as being less directed towards kind of the substance of the plan and more towards like the legal gymnastics as a fellow legal scholar? I'm just I'm trying to reconcile >> just my subjective reaction. I I use the word uh like awesome as like a positive kind of showing enthusiasm towards someone I'm working with. I mean >> Got Got it. But once again, so you you stated very clearly that you did not agree uh with the substance of his interpretation of the slates of electors and what what you could do with them.

[00:23:44]>> Um so when you say really awesome, I'm assuming you're not referring to that.

[00:23:49]Is that correct?

[00:23:49]>> Right. Right.

[00:23:50]>> So are you are you just saying like, hey, as a fellow, you know, you would describe yourself as having a nerdy conversation. You were just appreciative of kind of the legal gymnastics and the creativity >> and not so much as like what the effect would be. I'm trying to >> Yeah. Yeah. It was like I I I've never written a memo where I'm giving multiple scenarios for some event. So, it was interesting and imaginative and I was just trying to be positive and supportive of, you know, helping him edit, helping him discuss the issues.

[00:24:19]So, Mr. Chro, to boil it down, John Floyd, special assistant district attorney.

[00:24:25]>> Did you just think it was awesome that he took the time to put it together?

[00:24:29]>> Is that what you're expressing?

[00:24:31]>> Yeah. Yeah. I mean just that that it was a creative brainstorming document that I you know I thought it was positive that he shared it with me.

[00:24:41]>> Um and so Dr. Eastman that you had not communicated or coordinated with Dr. Eastman before December 23rd.

[00:24:54]>> There was a few years before there's a case I I had us up on.

[00:24:57]>> Okay. But nothing in the in November or December of 2020?

[00:25:02]>> Not since 2016.

[00:25:04]>> Okay. Until the 23rd. Um, did you become aware after you began to coordinate with Dr. Griezmann an evolution in his thinking where uh it went essentially from your position which you've articulated which there had to be a legisl a state legislature backing a slate of electors to really make it effective or some other authority from the state to make them effective to the presence of both demonstrates the uncertainty of either.

[00:25:38]Did did you ever come to understand how that evolution in his thinking occurred?

[00:25:42]Well, to be clear, I never thought a state legislature acting could matter unless we won court. So, I just want to make that clear that apparently he thought it would matter. Um I um I had no knowledge of his six page memo.

[00:25:57]I he never shared with me before I guess the last day when was relevant, January 5th. He never shared with me what he was proposing.

[00:26:08]And um he simply asked me around the fourth and or fifth for well I'm sorry the second he asked me for my anything on 12th amendment. I sent him my December 13th amendment. He asked me again or sent it again on January 4th fourth and possibly the fifth. He asked me for do I lower view articles and this or that. He asked me for details about the 12th amendment. Um, and it was all one way and and what I was struck by was obviously subsequently we've learned that on the fourth and fifth apparently he met with Vice President Pence. And what I find odd is that he never at the time he didn't mention that he was meeting that he he made I mean he I thought he was just analyzing it and providing input. So, not only did he not explain how his thinking was transformed, but he didn't tell me something that I kind of wish, you know, I'd known that he was actually meeting with the vice president. So, um I don't Yeah, I didn't know I didn't know what his thought was after the 23rd except there were some emails with Epstein and where there was discussion and I was sending information uh and we were kind of debating it in a nerdy way. Uh and to the degree that those emails reflect his whatever transformation thinking, you'll you'll have those or you do have those.

[00:27:26]>> Okay. Um and I'm sorry if this was covered earlier and I just missed it, but but did you have an awareness of why on December 23rd Dr. Eastman wanted your input? if he didn't have your December 6 memo or your prior, how did how did he come to you?

[00:27:43]>> We we he called because there was an odd question about somebody who thought Pence had to do something that day, some deadline, which is ridiculous. And I had >> What day?

[00:27:54]>> On December 23rd. That is Yeah. So, so someone thought Pence had a duty to notify the Trump electors of something, his duty as the president of the Senate.

[00:28:04]and he wanted me he wanted to make sure that he was correct that that was a ridiculous concern and so he happened to call me for that reason that is the only reason that I ended up discussing it with him um you know that apart from the joint emails with Epstein where we were discussing various you know legal details >> and he called you just because he had known you from 2016 or before >> no I think he called me because two days earlier we started being on emails regarding finally Wisconsin serition. So I was on his mind he knew I was working on the campaign. I don't know that he well. So that's yeah that that's why I believe he called me because we' recently been on emails together.

[00:28:44]>> That phone call on the 23rd began with this question of some arcane duty the vice president may have. Um what else was discussed once you said I don't agree with that? What what else did you talk about? Um uh so we talked about the 12th amendment and and the president Senate and what is because I because the whole point of his initial call was what the presence was supposed to do. It had then evolved one of us raised probably me because I like to talk a lot. Um, Gray's, you know, that I I guess I shared with him my theories about the 12th amendment because, you know, I I I know he's an expert in the field and I wanted to see if he agreed with my approach and then he discussed his approach and then I offered to edit what he was working on.

[00:29:32]>> Okay. your theory of the 12th Amendment um specifically being that the way it was written you thought did you say arguably could or definitely did vest the vice president with the power to control the count and adjudicate disputes?

[00:29:50]>> Yeah, my my personal opinion always was that as odd as it seems it it's the interpretation of the Constitution that raises the least constitutional problems regarding Congress selecting the president. And so and it makes sense the framers would have trusted the second most trusted man in America uh to to to play a role and would not have trusted Congress collectively. So So my personal view is it's the the least odd way to view the constitution u and and from at least from an originalist perspective.

[00:30:22]>> And when you said that to to Dr. Eastman, did he say, "I agree. I've been thinking about that." Or did he say, "I had thought about that before." Or what was his reaction to that?

[00:30:32]>> I I I I never thought that he had dug into the scholarly sources on the 12th amendment the way I had. For example, at one point in late December, he said he had never read Lawrence Trib's u Harvard Law Review article from 2001, which I shocked by because it's I mean, it was a lot of points that I used in my memos.

[00:30:51]So um and that's why he was asking in January 4th for lar articles of the 12th amendment. So I I um I think he he was more concerned with the state legislators and with the facts on the ground than the 12th amendment.

[00:31:04]>> So he didn't come to that conversation on the 23rd with this preformed idea about the vice president um that you know he could exchange with you as you begin to discuss your own theory. It was sort of a oh like he was he was sort of hearing these ideas for the first time.

[00:31:23]>> Well no clearly he had done he had background and knowledge. He obviously done some work and so he realized there was a plausible argument that there's ambiguity and the vice president may have this power. I don't think it was I I had no sense it was deeply developed.

[00:31:36]>> He he realized it because you proposed it to him. Well, no. I it was obvious that he had always assumed that there was some potential role for the vice president and that was part of what he was laying out, but um so I don't So I I think he was interested in my my my views on the 12th amendment and he later followed up.

[00:31:56]>> When did he follow up?

[00:31:57]>> Well, he he followed up on January 2nd.

[00:31:59]if you asked me did I ever get around to writing something and I said on the 12th amendment I said that I I covered it in a December 13th memo which I said I said most of it's irrelevant given you know what's happened but near the end I discussed some lowview articles okay uh Mr. I I don't know that at this point I have any other questions about the 23rd.

[00:32:26]>> Yeah, I'll I'll keep moving on the timeline, but please just jump in.

[00:32:30]>> Okay.

[00:32:30]>> Um, so after the 23rd, um, can you tell us about your next communication with Mr. >> Um, I mean I I I would have to review the emails. I I don't have a recollection.

[00:32:46]It was by very late December or January 1st that there were emails between him, me, and Boris Epstein.

[00:32:53]>> Okay. So, is it fair to say that once y'all began discussing these issues and you started the relationship on the 23rd, you continued to be in communication with Mr. Eastman?

[00:33:03]>> There was nothing between December 23rd and December 29th. Uh because that's when I was drafting and we were filing the surfetition of the Supreme Court. He may have been on copied on drafts but um we made a decision that he wouldn't be co-consul on the surf and we would just do it ourselves in stunt.

[00:33:25]>> I'm sorry Mr. um the New York Times reported two days ago that there is a December 24th email um where you discuss various January 6th scenarios with Dr. Eastman and others >> were you say that the relevant analysis is political and so so I don't know are you aware of >> right so that that was a discussion about whether to file a petition from Wisconsin >> okay >> um and yeah so I understand I recall that but that that was a joint discussion about the Wisconsin not individual discussion with me or even with with me and and uh and Eastman or uh or Epstein about January 6 that occurred you know That is the focus discussion was in early January. This was a discussion. The subject was Wisconsin petition and whether to file it.

[00:34:20]>> I understand. Uh but just to be clear, it happened on the 24th. So your statement that there was no communication between the 23rd and the 29th is >> well was meaning individual communication with Eastman to follow up the 23rd. Not that wasn't that didn't happen until late December, early January with Epstein.

[00:34:37]>> Okay. That's an important clarification.

[00:34:39]So I just want to make sure of that.

[00:34:40]>> And thank you. And with that clarification, when when I ask about communications with Mr. Eastman, I mean any communications, not just individuals. So >> once again, um starting on December 23rd, um what were your next communications with Mr. Eastman? Any form of communication?

[00:34:58]>> It would be when he was copied on the whole discussions about whether to file the Wisconsin Superition.

[00:35:04]>> Okay. And that's December 24.

[00:35:06]>> Yes.

[00:35:06]>> Okay. And then um are you saying that after that the next communication was December 29th?

[00:35:15]>> It it was all in writing and and we you know >> to your best recollection it was around December >> because because I was Yeah. Just answers.

[00:35:23]>> Yes.

[00:35:23]>> Okay.

[00:35:24]>> And once again Yeah. Not trying to trick you on dates. We'll get the emails and stuff. Just trying to put a a timeline together.

[00:35:30]>> So when the communication started back up, just tell us how that happened and and why.

[00:35:37]Uh Boris Epstein was asking our our our input on the 12th amendment in January 6 and I believe he was copying both him.

[00:35:48]We were both on the same emails I believe.

[00:35:52]>> Okay. Was asking both you and Eastman for input on it.

[00:35:55]>> Yes. For details about scenarios for January 6.

[00:35:59]>> Okay. And did all those communications take place in emails that you're going to provide or were some of them phone calls or texts? I I don't recall a single phone call uh until around January 4th when I was called by Eastman to he asked me for laundry articles.

[00:36:16]>> We'll provide the emails. We'll find them. Some of that stuff might have been turned over. I'll get you.

[00:36:21]>> Yeah, absolutely. Thanks.

[00:36:22]>> Um and once we're able to look at the whole paper trail, that's what we may hold up with.

[00:36:26]>> Sure.

[00:36:27]>> Um >> were there discussions around this time?

[00:36:35]um about the quote unquote filibuster talking point uh memo or email that you sent on January 1st.

[00:36:44]>> I mean it's all in writing. There was never any phone discussion about that.

[00:36:48]>> Okay. But you were discussing that memo specifically with these same parties.

[00:36:53]>> Yeah. I I I was I was I was proposing that as um a a a strategy that might make more sense than um the president of the Senate uh imposing any sort of trying to set up test case. It seemed like a a more practical way of trying to give more scrutiny of the situation.

[00:37:14]>> Okay. So the Eastman theory, which you have kind of said you disagree with, you know, Pence can dismiss certain slates or he can um you know, declare Trump uh slates if he wants. Your idea was it's it's more palatable to just let's have a filibuster. Let's delay and then let things play out in a different way.

[00:37:37]Well, it was more that that I had realized that rather than my approach of December 6th and 13 of um the president of the Senate saying that there was a violation of article two by the courts that that had refused to review the merits. Uh that would involve a test case that would involve major controversy. If the goal was to get scrutiny of what happened in these states and more time to win litigation, individual senators could just filibuster the debate, which is, you know, allowed apparently under Senate procedures. And that would that would accomplish the effort to get more scrutiny and more time to win litigation.

[00:38:15]>> And that just that seemed, you know, why why should Vice President Pence be asked to do something that would strike everybody's, you know, really question?

[00:38:23]So your memo and your theory was still much more focused on let's buy time for litigation, not like here's all these scenarios that >> rightction. Yeah. Yeah. The what was evident by January 1st that in Wisconsin, Georgia and Arizona, >> all the Supreme Court, all the courts of those states had failed to review on the merits. They had failed to to adjudicate the the claims on the merits to finality. And that was in my view a violation of article two of the constitution. But but yeah, notwithstanding that but your focus was still on litigation at that point.

[00:38:56]>> Did anyone ask you to write that memo or did you just write it because you wanted to offer a counter view?

[00:39:02]>> Boris Epstein kept asking for our thoughts about 12th amendment and the electoral account act and January 6 and I just kept you know adding my views.

[00:39:12]>> Okay. But he didn't say hey Ken will you write me a memo on, you know, some way that we can filibuster the joint session. No, it was all I just came up with the idea that might make sense.

[00:39:23]>> Who did you send that memo to?

[00:39:25]>> Um, my recollection is just Epstein and Eastman. Um, and I had earlier I was encouraged sometime in late December by a communication with Troopus about about he encouraged me to I forget the exact date. We'll find it.

[00:39:41]He encouraged me to put together a blow-by-blow uh summary of of you know what could happen in terms of January 6 and and some of the legal parameters and so that was so trouis and epste were asking me to provide input which I was doing.

[00:39:57]>> Okay.

[00:40:00]>> I have a quick question >> just to drill down on one specific point.

[00:40:04]>> Um it was your understanding that Dr. Eastman had believed that the vice president as president of the Senate had the authority to reject electors.

[00:40:22]>> Yeah. Yeah. His reading of the 12th amendment was that Yeah. Yes. Exactly.

[00:40:25]>> Okay. And that I just want making it explicit. We've sort of talked around it, but I wanted to ask you that pointedly. Yeah. Um he had that view when you first discussed with him on December 23rd these issues. Yes.

[00:40:38]>> Okay. And um to your understanding did he ever abandon that view?

[00:40:44]>> Did he ever say I I've changed my mind about that?

[00:40:47]>> No. No.

[00:40:48]>> Okay. Mr. Knight.

[00:40:50]>> Yeah. Um, so, uh, once you write that memo, um, January 1st, uh, what communications did you have then between, uh, January 1st and January 4th when you end up forwarding the December 13th, uh, memo to Mr. Eastman?

[00:41:08]Um, on on January 2nd, he asks me in an email, did you ever write anything the 12th amendment? And I send back the December 13th email. And then um there were some other emails and I just don't recall the details with him and uh and Pepsi.

[00:41:27]>> Okay. Um were you aware that around this time I think maybe beginning of January 3rd or 4th Professor Eastman began to meet with people at the White House including the vice president and his staff about his theories.

[00:41:46]>> Yeah. Okay. You never discussed these meetings with anybody?

[00:41:50]>> No, I had no idea.

[00:41:51]>> Okay. Um, did he call or email you around this time period to ask follow-up questions about any of your theories or his theories?

[00:42:00]>> I just think remember him calling, I think it was January 4th and possibly or January 5th or maybe calling each day asking me for lawy articles on specific points and then I I emailed I emailed them. be a record of what I >> around this time. Did you have any conversations with any members of Congress about the joint session?

[00:42:30]>> No.

[00:42:31]>> Were you aware of any of those conversations uh between Rudy Giuliani and members of Congress or Mr. Estee or Eastman?

[00:42:39]>> No.

[00:42:44]Uh where were you on January 6th?

[00:42:46]>> I was in Washington.

[00:42:48]>> Why were you there?

[00:42:49]>> Um I uh I had um foolishly planned to be there for a few days thinking that I might get asked to meet to talk about strategies since I've been involved in emails with Epstein and uh Eastman. Uh, and so I thought it'd be good to be there to be available for meetings, which I was never asked to to go to anything.

[00:43:15]>> When did you come into DC?

[00:43:17]>> I believe uh January second.

[00:43:20]>> And where did you stay while you were there?

[00:43:22]>> At the Trump Trump International.

[00:43:23]>> Did you ever visit the Willard Hotel?

[00:43:25]>> Yeah.

[00:43:27]>> And so while you were there, uh, you were there what? January 2nd, you said?

[00:43:31]>> Yeah. Till the 7th.

[00:43:32]>> Till the 7th. Uh, who did you meet with from the campaign? Um there's a his name Mike Mike Mike Brown.

[00:43:44]>> And why did you meet with Mike Brown?

[00:43:46]>> He was um a crier delivering um I think uh duplicate original uh electoral certificates from Michigan which apparently had not arrived in mail.

[00:44:00]>> How do you know that?

[00:44:02]>> How do you know that he was a c courier delivering this? the uh um uh the campaign people uh asked if I could help with with the logistics of him getting the stuff to Capitol Hill.

[00:44:15]>> What what campaign people >> um uh originally Jim Troop has asked me to help if I was because he knew I was there and um I think uh sorry it was Mike Mike Roman.

[00:44:29]>> Why did they ask you for help with the logistics of getting stuff to Capitol Hill? troop knew that I was in DC and basically um he called me and said the Wisconsin certificates uh had not arrived for some reason and would I be willing to help make sure that they you got duplicate originals there which of course I agreed because Wisconsin was our project.

[00:44:55]>> So did you in fact help Mr. Roman I mean uh well yeah Mr. Roman and Mr. around deliver those certificates to anybody?

[00:45:04]>> Uh, yes. Um, actually then there were certificates from a woman I think named Alicia. She brought the Wisconsin certificates.

[00:45:10]>> Okay. Um, did Mr. Roman have physical certificates that he was trying to deliver at that time?

[00:45:17]>> I mean, I I don't know his exact role.

[00:45:19]Apparently, these certificates were in those states.

[00:45:22]>> Okay. So, what part did you play in delivering them? Um uh the uh I think uh the first certificates came from Wisconsin. Woman uh gave them to me and I think I held them overnight. Maybe this >> gave them to you where?

[00:45:40]>> Just on the curb just in front of the Trump International.

[00:45:42]>> Okay. She came and met you.

[00:45:43]>> Yeah. And then later Mike Brown came and then he and I went to Capitol Hill and passed it off to a staffer, some staffer for a house and he was going to get it over. Who who is staffer?

[00:45:55]>> I I I don't recall the details.

[00:45:56]>> Do you remember the state?

[00:46:00]>> I just don't recall.

[00:46:01]>> Do you have any documentation that would refresh your recollection?

[00:46:05]>> Um I think there are.

[00:46:06]>> Yeah. Yeah. Yeah.

[00:46:07]>> We can look at those. I just don't recall.

[00:46:10]>> Well, no. No. So, so the um Ron So Ron Johnson So the thing Tupus reached out to me because I he knew that I was in DC. Ron Johnson, of course, senator of Wisconsin. So Trupus thought, well, if Ken can meet the courier from Wisconsin, then he can since he's there, he he can be the one to get it to run Johnson's staffer. And um it was actually more complicated because once Mike Brown came, he had arranged to have a staffer for a House member then take it over to a staffer for the Senate and and get it there. So I just I walked with Mike Brown with the certificates and we handed off some staffer at the house.

[00:46:50]This was uh I forget the det I guess it would be January 5th probably.

[00:46:54]>> Okay. Any other uh campaign staff that you met with in person during that sixth or so day time period?

[00:47:01]>> Um and during this time period other than the communications you've already discussed with Mr. Eastman, were you talking to anybody on the campaign or White House? Uh, no. The it would just be Eastman and maybe Epstein on these emails, but >> Okay.

[00:47:17]>> And and during this time period, >> I'm sorry. I should add that I mean anyone the campaign the the idea of helping with the couriers after troopers realized I was there and could get it to Johnson. Um Matt Morgan was was one who was also coordinating. So it was Matt Morgan and um Mike Roman.

[00:47:37]Matt Morgan said this is something to have done. Mike Roman handled logistics, reached out to me and got and just uh made sure that I could meet both couriers and then I could make sure it got done.

[00:47:48]>> Okay, hold on one second. So, just for clarification, you so you just said that >> uh Mr. Troopers, they they knew that you were there, right? And Mr. Ron Brown, he knew that you were there prior to your arrival on January the second. Who did you notify or did you notify someone or several people that, hey, I'm going to be in DC on standby?

[00:48:06]>> Yeah. So, um the um right after it was announced there'd be some sort of rally, I realized since I wanted to be in DC to be available for any meetings, I immediately got and since I thought maybe Eastman would want to be there, troopers, I immediately reserved three rooms of Trump International realizing it turned out correctly that the the rates would go up, you know, that they would be like a crazy cost.

[00:48:30]And so I got those two reservations. I offered one to Trupis, one to Eastman, like if you want to pick up a reservation and save a huge amount of money, uh, and you're not going to be there. And they, Trupus said he wasn't going to go at all. Eastman wasn't sure and I held it until the last possible moment. And then I got rid of the one that I reserved for Eastman in case he wanted to get, you know, I thought, you know, it's a good place to be. And, uh, not knowing if he was even going at all.

[00:48:54]Uh, and so, um, I'm sorry, lost my train of thought. So, um, so those are the only two that I I told I told and I just wanted to offer them, you know, accommodations if they wanted to be there. Uh, and so Troopus, I told Troopus that if someone wants to have me meet, I'm happy to meet to discuss some of this stuff. And so I passed along to him. I don't know if he ever told anyone.

[00:49:18]>> Yeah. So on the same point, um, I want to refer you to an email that you sent on December 30th of 2020 to Bruce Marks.

[00:49:26]Um John Eastman and others were CCD and this is the one that uh says um I'm staying at Trump International in DC from January 3rd uh to at least the 8th doing my part to curry favor with the president by lining his empty pockets.

[00:49:42]Um what did you mean by you know curring favor with the president? Why was that important?

[00:49:47]>> Yeah. So, I was I was mocking people that um criticize the president for uh for using his position to fuel his business, you know, profits. I was making fun of the idea that >> the emuments clause.

[00:50:05]>> Yeah. Yeah. I was just m making a little little fun of that. I was, you know, um that's all I was joking about. One of the grounds he was criticized for.

[00:50:14]Eastman was CC. I don't know this other than this email, did you discuss logistics of being in DC with Eastman any further? Uh in uh some sort of communication uh around December 31st or January 1st when I was in Aspen, I you know told him you I can hold the room until substantive day and let let me know. And so we we discussed um we discussed uh that logistical point and also this this must be when I was sending various emails to him and Epstein. So we were in communication about u the 12th amendment and January 6, but also do do you want me to hold room for you? So >> okay. Um after you and Mike Brown handd delivered the electoral slates, did you have further communication with them? Um I believe after the after the riot or whatever you call it um at the cap I probably sent a text about uh my dismay at what had happened. So there was probably some brief communication. I I have to look back. We can provide that.

[00:51:17]>> Okay. Um when and why did you decide to attend the uh the capital riot as you described it? Well, no, I mean, uh, I didn't Well, so uh, on January 6, since I wasn't invited to any meetings, I went, uh, went down to the Ellipse and caught the last half of the president's speech. And then >> You weren't invited to the Ellipse. You just kind of wanted to watch.

[00:51:48]>> Yeah. I I wasn't invited to, you know, to anything related to the campaign.

[00:51:52]>> And you went to the Ellipse by yourself?

[00:51:54]>> Yes.

[00:51:55]>> Had you communicated with Mr. serious about the fact that he was going to speak there.

[00:51:59]>> I no I hadn't communicated with him and I to best my knowledge I didn't know I just thought Trump was going to speak.

[00:52:06]>> Okay.

[00:52:07]>> Did you watch all the speeches?

[00:52:09]>> I mean I was you know quarter mile away.

[00:52:12]I can't I mean it was hard to really make much you know I didn't I can't say I would watch. I just hung out with the crowd there.

[00:52:19]>> Okay. Um how did you come to be in communication with uh Alex Jones? Uh, I walked down to the Capitol and uh, as I was reaching the the grounds of the Capitol, I noticed a bunch of people with cameras and whole crowd. It turned out to be Alex Jones and uh, and group of people that he was with. I just happened to randomly arrive at the same time that he did.

[00:52:49]>> So, you didn't know him before this day?

[00:52:51]>> No.

[00:52:53]>> Did you communicate with him at all? Did you just kind of tag along with him >> at some point in the very end? Uh I believe I spoke with him for about a minute. Uh and then I followed up by speaking with one of his assistants. Um and I suggested that he um have Jim Trippus be on the show to discuss what happened in Wisconsin. That was something I thought would be worth considering.

[00:53:17]>> Okay. And how long were you at this rally riot?

[00:53:25]I I just I just went down to the Capitol. Um I I I don't know how to characterize it. Um I was probably walking around for hour, hour and a half. Uh I met a guy from Ohio and we just sort of hung out together. He was a fan of Alex Jones and so I just stayed along with him.

[00:53:42]>> Can I suggest something, Ken?

[00:53:43]>> Yeah.

[00:53:43]>> If you don't agree with the characterization, just be honest about and say it.

[00:53:48]>> Yeah. Yeah. I don't I I uh I just went down with the rest of the crowd um to the capital. Um I I didn't I just thought it was a Yeah, I whatever you call it. I Yeah, >> but you were by yourself. Didn't arrange being there with anyone else. And then when you left uh that day?

[00:54:06]>> Well, I was with this guy um I forget his name. I uh um uh I uh I was with the guy from Ohio that I hung out with afterwards. went back to Trump National, but so I was with him, but I didn't know him before. I just happened to encounter him.

[00:54:20]>> And then between the riot and when you left, you see no other conversations with members of the White House or the Trump campaign.

[00:54:26]>> Correct.

[00:54:27]>> Um >> well, when Wait a second. So when I was walking around the Capitol, I I I did text Jim Tripppus. There was during the count was going on and we had some some strategy discussion about, you know, could the count go past January 20th. Uh and uh so I mean there could be a text or two with other people, you know, certainly right after the the um the invasion of the capital. I I I text a couple people including troops about how you know how this is we'll never get a debate and this is the worst thing could happen, but I just don't recall the exact details.

[00:55:03]>> Did you witness the invasion of the capital person?

[00:55:06]>> No. No.

[00:55:07]>> Okay. Did you you witness any violence that day?

[00:55:10]>> I I didn't. It wasn't apparent to me. I guess for after an hour or two after the uh invasion that anyone had gone to the capital. It just it seemed like a lot of people milling about. Um it didn't it wasn't apparent at the time unless you were near near the entrance of which >> when did you first become aware of the extent of the violence?

[00:55:31]>> I would say a couple hours after it started.

[00:55:33]>> How did you find out about it?

[00:55:35]>> Um I think uh TV and the Trump International.

[00:55:40]What what were your kind of thoughts at the time when you saw that you know people had gone into the capital and there was violence ensuing?

[00:55:47]>> Just no just well I mean um I mean I guess I was viewed as a lawyer and we tried to set up this debate and it was just the worst possible thing could happen because we wouldn't get the debate that we had tried to set up. I mean obviously I didn't know that someone had been killed. I I didn't know people were injured. Uh but just the idea that that you would invade that that the capital would be physically invaded and and the procedure shut down was just uh was ridiculous. I mean I just uh and completely counterproductive.

[00:56:19]>> You said you were in the hotel at the time.

[00:56:22]>> Well, I mean I just the only time I could have like fully understood it would be once I actually saw the the TV.

[00:56:30]Um I mean >> so where was the TV located in the hotel? Was it in your room?

[00:56:34]>> No. A huge lobby. a huge lobby where you know there's like a bar or something like that.

[00:56:38]>> Were you there with anybody else at that time? Were you talking to anybody else about what was happening?

[00:56:43]>> Well, the only uh the only person I recall was this guy named uh last name Young from from Ohio, but I didn't that I mean that was it. There was I was otherwise alone and there was a crowd but I didn't know anyone.

[00:56:55]>> Did you have a conversation with Mr. Young about what was happening? Yeah, it was uh just about you know the shock of it and just >> what's your best recollection of that conversation?

[00:57:07]>> You you've given us a general idea of the subject matter.

[00:57:10]>> I just don't I don't recall the in a granular detail anything I said in particular. I do know I sent texts to one or two people about how you know this it's the worst like the worst thing that can happen for what we were trying to do.

[00:57:24]Uh were you aware that around or have you become aware uh since then that at the same time professor Eastman was emailing with Greg Jacob about the disruption to the joint session and I'm paraphrasing but essentially said like all right now that there's been this delay and you know the uh you know the ECA is not as sacrainct as we thought you know it would be a relatively minor violation to go through with my plan.

[00:57:53]Did were you aware that >> I I didn't I knew no communications about anyone campaign about what was happening?

[00:57:59]>> But have you learned about those communications?

[00:58:00]>> Yes, I've read about it.

[00:58:02]>> And so what were your thoughts on on that legal argument from Mr. Eastman?

[00:58:07]>> Um I mean I I I didn't understand why he would refer to violations of the Electoral Con legitimating further violations. My my whole view was there was a good argument the electoral account act was was unconstitutional for various technical reasons related to the power of Congress versus the states. So I I didn't understand why why he would write something why he would say there was a vi violation. Uh I I I just didn't understand the logic of what he was saying.

[00:58:40]>> Okay.

[00:58:43]>> Mr. wrote, "You just said that what happened at the capital was a worst case scenario for you and your colleagues and your arguments. Is that a fair summary of what you just said?"

[00:58:58]>> Yes, because the idea was to have an organized debate on each of the states um with people objecting.

[00:59:05]>> But the possibility of chaos was something that you had previously considered, right? I mean like you you and Dr. Eastman had discussed that the possibility of wild chaos or whatever on the 6th was was something that you weren't considering could happen ahead of time.

[00:59:27]Well, I never discussed anything with him, but I did note when we were trying to decide whether to file the Wisconsin sur petition that filing it, as long as it was legal meritorious, could help the critical mass of cases before the court to get the court more interested in hearing the cases. And I also noted um that obviously the justice would be reluctant to intervene because they would be criticized like they were for Bushy Gore. But if there was wild chaos that is a day or two before um the president had tweeted out uh something about there'd be a rally and it would be wild. Uh what I projected is part of the um calculation of whether there's any possibility the Supreme Court would review on the merits is that there was wild chaos. it would increase pressure on the justice to hear the cases. But that that would probably hurt us on the merits because if the court had to hear the case on the merits, the easiest way out of the situation would be to rule against Trump because since it's a it's a conservative court, the the Trump fans would not they would they would accept that. They would say, "Okay, conservatives went against Trump, you know, that's it." So, so on the one hand any prospect of chaos would increase the odds the Supreme Court hearing the case, but on the other hand it would reduce the chance of land. So I was just trying to assess that as a factor.

[01:00:50]>> All of this your approach um you've used the term test case quite a lot. Um I suppose test case testing what what exactly if you're going to give a a one-s sentence summary of what is being tested.

[01:01:09]>> Right. So, no, a test case is a term, for example, in in housing discrimination uh where uh the the Federal Housing Authority will send around people uh uh people, you know, one minority couple, one white couple and go to 10 apartments and see whether the apartment owners refuse to rent to the minority couple. And so, like you're uh so it's in that sense or u you have a lawsuit uh by ACLU where they want to challenge the law. So they will find somebody to go violate the law and then argue it's unconstitutional. Rosa Parks is going to stand up the back of the bus. The idea is to create a situation where you have um someone you have someone pushing against a a a statute in a way that violates the statute on the basis that you believe the statute is unconstitutional.

[01:01:59]So that basically the person will will have legal action taken against them.

[01:02:04]And so they'll be standing the court will will be able to hear it and arguably be forced to hear it. So the idea was was that we couldn't have there's no way that the Trump campaign could file before January 60 lawsuit saying please declare that Vice President Pence is one of votes. Louis Gomer tried that and in court because you can't have such a hypothetical lawsuit heard by the federal courts. But if the president of the Senate were to say, "Look, I don't necessarily agree that I have this power, but I'm in this role and I have to assert the prerogative of the office and there's amb ambiguity in the 12th amendment and it may well be that I am the one who has this authority. So, I'm going to hold up and not resolve the state where there are in my view uh constitutional issues and I don't want to not count the state. I don't want to assert the power if I don't have it, but I want to hold it up so that anyone who says I don't have the power will file a lawsuit and get the Supreme Court to decide one way or the other. And if the Supreme Court decides that I am the power, then then I'm going to make my decision. If the Supreme Court decides I don't have the power, I'm happy. So that was my idea behind a test case.

[01:03:12]>> So then that that activity would be the violation of the Electoral Count Act that would enable the test case. Yeah, that's the the problem is you have to violate if you believe an a statute is unconstitutional. You often will have to violate it in order to get the situation where someone has standing to resolve whether or not it is constitutional.

[01:03:31]>> Okay. So that was the plan and that it sounds like your plan or your suggestion or how we >> depends on the matter actually being justable as in can be resolved by the court.

[01:03:45]>> Yes.

[01:03:46]>> Okay. So, um, there's a lot of attorneys in the room. Uh, you're familiar with something called the political question doctrine.

[01:03:55]>> Yes.

[01:03:55]>> And is it fair to say the political question doctrine, while very complex, basically says that courts will not wait into certain kind of questions, will just not resolve certain kind of issues if they are a fundamentally political question better resolved by the legislature or the executive. Is that right?

[01:04:12]>> Yes.

[01:04:13]>> Okay. And so it sounds like order for your plan or your theory of this test case to work, it could not be a non-juditable political question, >> right? To resolve whether or not the Electoral Compact is constitutional, uh, the Supreme Court would have to say this is justiceable and we're willing to resolve the meaning of the 12th Amendment >> one way or the other.

[01:04:35]>> Yes.

[01:04:36]>> Okay.

[01:04:38]When you edited Dr. Eastman's two-page memo on, I believe the 23rd.

[01:04:45]>> Yes. Um he said that this all he said that Lawrence Tribe and others had written that this was a non-justitiable political question and that the Supremes would not hear it. Um did you have discussions with him about that?

[01:05:01]>> No. I I I gave him some follow-up citations, but no discussions.

[01:05:06]>> Okay. If you needed a test case and Dr. Eastman was saying this can't be tested, the court won't hear it. That there was no follow-up discussion about that.

[01:05:17]>> Um he he was uh trying to use uh Professor Trib's discussion to put uh the Biden campaign in no a no win situation. Uh I always believe that the Supreme Court would in this situation rule on the merits because it would be it's a it's a very straightforward legal issue what the 12th amendment means.

[01:05:38]It's not a political question in the sense that we that the doctrine sort of articulates.

[01:05:42]>> Okay. So do but Dr. Eastman was trying to put the Biden campaign in a no in a no-win situation, >> but sort of by using liberal scholars against against them.

[01:05:50]>> I see. So then if you're proposing a violation of the ECA in order to achieve this test case, but Dr. Eastman is saying, "Let's do that, but let's let's have it not be resolved. Let's let's argue that it can't be resolved by the Supreme Court."

[01:06:09]He's he's engineering a scenario that, as you put it, is a no-win scenario for the Biden campaign and a must-win scenario for the Trump campaign.

[01:06:16]Correct.

[01:06:16]>> Well, he's ruminating on a delicious irony that he hoped would occur, but um I I think it was incorrect to to to be thinking that way.

[01:06:26]>> Oh, but he was clear that that's what he wanted to occur.

[01:06:29]>> Well, he would love in the uh Yeah.

[01:06:31]Yeah. I mean, yeah, he thought that would be great because then then u the idea would be Vice President Pence would be free to do whatever he wanted, I guess.

[01:06:39]>> Mr. J, if if it went to the vice president and the vice president said Trump wins and the Supreme Court doesn't hear it, what's the result?

[01:06:56]>> When you should clarify, >> who's the president? So when you're saying Trump wins, >> vice president, the vice president says, "I declare Trump the winner." The Supreme Court doesn't hear it. Who's the president of the United States?

[01:07:18]>> H Well, that's why I think the speaker would hear. I mean, because It would be impossible. It would be an impossible situation. I think that's why the Supreme Court would have to hear it either way. I I don't I hadn't thought about that because it's a good question.

[01:07:39]I mean, I think there would be political opposition. It would be uh difficult.

[01:07:44]>> One question for you, Mr. Chzboro. For the record, Will Wooten, you stated a few minutes ago that the Gomer, you're talking about the go lawsuit. Are you talking about Texas versus Pennsylvania?

[01:07:55]>> Uh, no. I maybe I misstated it. Um, it's whoever filed a lawsuit against Vice President Pence.

[01:08:02]>> Okay. Okay.

[01:08:03]>> Yeah. Okay.

[01:08:04]>> Saying that he's the one with power, >> which was thrown out of court.

[01:08:10]>> Um, I want to step back uh in time for one second and address somebody that you mentioned earlier today. Who is a Jack Willanche? Who is that? Uh he's a lawyer in Arizona that u that worked on the Trump campaigns challenge Arizona.

[01:08:28]>> Okay. So he was on the Trump campaign attorney team just in Arizona.

[01:08:33]>> Yes.

[01:08:34]>> Okay. And did you have a relationship with him before this?

[01:08:37]>> No.

[01:08:38]>> Okay. There was um an email that was reported on December 8th um from Jack Willeneek to a number of folks including uh Mr. Ebstein in the email he says in part I just talked to the gentleman who did that memo Ken Chzbro his idea is basically that all of us parenthetical Georgia Pennsylvania etc have our electors send their votes parenthetical even though the votes aren't legal under federal law because they're not signed by the governor so that members of Congress can fight about whether they should be counted on January 6th. Do you recall a conversation with Mr. will check um where those ideas were imparted to him.

[01:09:24]>> Um yes, we we discussed u that day um both his efforts in Arizona and the electors and then the the logic of the alternate electors voting.

[01:09:35]>> Okay. So his the quote that I just read accurately reflects y'all's communications.

[01:09:41]>> Can can you read it back again? I'm sorry.

[01:09:43]>> I just talked to the gentleman who did that memo, Kim Chzbro. His idea is basically that all of us, Georgia, Wisconsin, Arizona, Pennsylvania, etc., have our electors send in their votes even though the votes aren't legal under federal law because they're not signed by the governor so that members of Congress can fight about whether they should be counted on January 6th.

[01:10:03]>> Right. So, so I obviously I didn't in any way suggest that the votes weren't legal under federal law. I explained and I sent the memos uh showing that this is a precaution that needed to be taken if the campaign was serious about litigating past December 14th till January 6. Um and the key was to win more time for litigation. Uh we had a discussion he he didn't he didn't really think it was necessary. He thought, well, if we can beat Biden, then he loses the votes and we can push him below 270 votes and and then Trump wins in the House. And I explained why there was a theory, legitimate theory pushed by Lawrence Tribe that as long as Biden has majority of the votes actually cast, he doesn't need 270. So, uh, and also there's a chance that that Trump could lose in the House. So, I impressed on him that that this was a precaution that could be necessary. And, uh, these phone conversations.

[01:11:03]>> Yeah, phone conversations. I tried to explain why he didn't think it was necessary at all and he think was he was saying look I'm willing to do it but I don't think it's needed. And so I was trying to explain the advantages of this and one of them uh would be that um that that it would help help focus on the election irregularities and help in the debate. So, uh, but I never suggested that it was they weren't legal under federal law or that the point of it was to let people argue about stuff. I explained in detail why this was important to be able to flip the state in the event that litigation was won.

[01:11:38]>> Okay. So, this email was on December 8th. Um, and kind of putting aside the conversation that you had with Mr. Wek, his email, um, which is sent to Mr. Epstein says in part that the votes aren't legal under federal law. Did Mr. Epstein at any point after this email reach out to you um or anyone else to your knowledge asking about that? Like, you know, hold on a second. This this says that these aren't legal. This says that Ken says they aren't legal. Did Mr. Estee then reach out to you and say like, hey, no, is that >> I didn't know about this email until until it came out in the last year.

[01:12:14]>> Okay. There was a subsequent email where Mr. check um uses the term fake electors a number of times and then suggests perhaps you know you should use another term. Um was that a term that was used by you or anybody else in the campaign?

[01:12:30]>> Not by me. I don't know of anyone for the campaign.

[01:12:33]>> So you don't know how he started hearing that term?

[01:12:36]>> No idea.

[01:12:36]>> Okay.

[01:12:39]Um my last question then I'll I'll open it to my colleagues is just kind of a catchall. Um firstly, other than the communications we've already discussed, did you have any other direct communications with former President Trump?

[01:12:53]>> No.

[01:12:54]>> Um so just all by conduit through Ebstein or Giuliani or Trupus?

[01:12:59]>> I mean I when you say conduit I >> or that that was your communication with the campaign was through them.

[01:13:05]>> Yeah. Was was Yeah. Giuliani Epstein Clark >> except for the Inerson meeting on the 14th.

[01:13:12]>> On the 16th.

[01:13:12]>> On the 16th. Um, and did you have any other communications that would not be part of the documents that we're going to get with members of the campaign or the White House that would be relevant to anything we've discussed today?

[01:13:26]>> No, just the two or three phone conversations with Giuliani. Oh, there was a phone conversation with Bernie Carrick.

[01:13:34]>> Okay. Can you please tell us about that?

[01:13:36]>> Um, uh, he he was dispatched. Uh I was told by Epstein that Giuliani wanted me to talk to Carrick and it was about logistics in Michigan. Uh uh he was assigned to help process in Michigan and so there's some brief discussion with him on that and there is an email or two I'm sure provide >> and we say logistics in Michigan around December 14th.

[01:14:01]>> Yeah. about about and and he was in contact with someone in the Senate, maybe the head of the Senate to help the electors get access to the capital. So that would be so uh Giuliani the three conversations um and uh and I'm glad I remember Carrick and then um yeah I can't I can't recall any other conversation um that so Josh Finley and then the you know Eastman the December 23rd and then on January 4th. Yeah. So, very limited phone conversations everything in writing.

[01:14:36]>> That's all I have for today. Obviously, I'm going to give my colleagues one more chance.

[01:14:40]>> Oh, I should I should also say I mean like Thomas King there, you know, some some brief conversations about some states. I can't remember everyone.

[01:14:48]>> And um yeah, I'm going to turn it over to my colleagues, but we with the understanding we mentioned before that once we receive these documents and review them, we will certainly want to set up a follow-up conversation Okay.

[01:15:02]>> Uh, Mr. Chair, I have just a couple pointed questions. Um, do you agree that on um November 20th, 2020 that the governor of Georgia issued a certificate of ascertainment that stated that the Biden Harris electors um were the presidential electors from the state of Georgia?

[01:15:21]>> I don't know the details, but I but I agree that um the governor certified Biden as a winner. Yes.

[01:15:26]>> Okay. And do you um agree and if you don't know the particular details feel free to say so but that the governor in Georgia certified um that the Biden Harris electors were the electors from the state of Georgia not once but twice actually.

[01:15:41]>> Yes.

[01:15:42]>> Okay. And do you agree that neither the governor nor any other um government official in the state of Georgia ever certified or in any other way um indicated that the Trump Pence elector nominees were the electors from the from the state of Georgia.

[01:16:03]Setting aside whether individual state legislators made statements, I I agree there's certainly no official statement from any body of the Georgia government or or official with authority over it that certified anyone but Biden.

[01:16:18]>> Okay. Um did you ever do any um research or are you familiar with the remedies for election contest lawsuits in the state of Georgia?

[01:16:30]I looked at one point I looked at the obligation to um assign a judge and whether that had been complied with and the legal concern that the courts had not engaged in the review that they were required to uh engage in. But that that's the only aspect that I looked at.

[01:16:51]>> Okay. Um, would it surprise you to know that the only possible remedy in an election contest in the state of Georgia is a new election? That's the remedy.

[01:17:05]>> Um, I'm sure it surprised me. I I I wasn't aware of that.

[01:17:12]>> Okay. Um, and assuming that that's the case, does that change anything about the idea that pending litigation in the state of Georgia might somehow um authorize, you know, alternate electors or whatever you want to call it to to meet and essentially do what they did. Uh well actually it strengthens my view that had the um had the courts reviewed the challenges and decided um that the Georgia election violated uh I'm sorry.

[01:17:48]So let me back up because because the the Georgia courts failed to engage in judicial review. They just didn't even assign a judge apparently. uh my view is that quite possibly violated article two of the federal constitution which requires that presidential elections be carried out in the manner uh set forth in state statutes. So if that's true, the US Supreme Court could have ruled that Georgia had failed to validly appoint electors. Now, if the only remedy is another election, that means obviously it can't occur in time. And that creates a vacuum, a legal vacuum that we don't have a validly appointed slate of electors uh for either Biden or Trump. And so according to a a memo I I authored uh on November 23rd in the Wisconsin litigation um where I said the state legislators have absolutely no power unless and until we win in court in a situation where the US court were to rule that the Georgia courts failed to give review and therefore there's a violation of article two of the constitution then the Georgia legislature could step in and appoint electors. Okay, >> that's the only so so so the thing is the fact that Georgia says the only remedy is not to give the win to Trump but to have new election means the only way a slate could be valid pointed would be if the legislature stepped in.

[01:19:06]>> Okay. And so if the legislature stepped in under your theory um essentially the meetings of either slate of electors on December 14th is really of no consequence, right? because then the legislature could step in if that were the case and appoint whoever they want.

[01:19:25]>> Uh no, the the the electors on both sides must meet on December 14th. Uh, for example, um, as long as both slates are are cast in December 14th, let's say, uh, the US Supreme Court invalidates the the win for Biden, the legislature could decide to, uh, to back Biden that, you know, could set aside partnership or it could decide to um to back Trump. But unless unless each of them cast the votes in September 14th, the legislature can't there's nothing to for the legislature to back. That is under the US Constitution and the federal statutes. The only slate that can be backed later by the legislature is a slate that was timely uh sent in on December 14th. there's a case from 1857 where Wisconsin will send in their slate a day late and that probably violated the constitution and and uh so so this is a technicality has to be met. So the whole point of the alternate elector plan is to have both sides senator slates so that if something happens later to change a result um it can be legally valid on January 6.

[01:20:30]>> Okay. And so is that kind of where your theory and at least part of Mr. Eastman's theories kind of diverge. His idea that the legislature has plenary power to appoint whoever they want. You do not agree with that. Your position is that if the legislature were to step in, state legislature were to step in, they're bound to pick between one of the slates that was made or one of the uh sets of votes that was made on December 14th, 2020. Is that fair to say? But so so the thing is um the legislature in my view uh I understand Eastman had this expansive view that was based on the the uh primacy of the federal legislatores of the state legislatores but my view is there were two provisions of federal law under which it was clear to me that unless until a state court threw out the resolve for for Biden and created a vacuum and the prospect the state would not be represented unless the legislature acted unless uh there was first win in court the legisure had absolutely no power. There there are technical reasons under federal law where it's just not it's not permitted.

[01:21:32]And so um so yeah, so that was always my view.

[01:21:35]>> Okay. And do you agree that um you know, I know this certainly wasn't always the case, but in 2020, all US citizens, unless they're, you know, convicted felons or you know, one of the exceptions, have a constitutional right to cast a vote?

[01:21:50]>> Yes. Um, and are you aware that Georgia's constitution also confers a constitutional right to cast a vote?

[01:21:58]>> Yes.

[01:21:58]>> Um, and you do you agree that those constitutional rights, whether it's federal constitution or state constitution, would supersede any any state legislation that's in contradiction with this? Essentially what I'm saying is do you agree that a state legislature can't take action that violates state constitution or federal constitution?

[01:22:23]>> Uh uh yes but the the problem is the state legislature the state only has the power to appoint electors >> and I'm not talking about details just as a general principle that a legislature cannot do anything that violates the state constitution or the United States constitution. Is that fair to say?

[01:22:41]>> Yeah. Thank you.

[01:22:43]Um, Mr. Chesbro, taking a step back when you began to engage with Dr. Eastman on the on December 23rd and you were speaking with I think before that uh Epstein, I can never remember whether it's Epste or Epstein. Um, I believe you also had communications with Bud Giuliani.

[01:23:07]Um, as you as the end of December came and your communications were increasing with this sort of legal codory around the campaign, um, what was your understanding of who was quarterbacking things? Was Dr. Eastman um, in charge of the of the late stages of the legal strategy? Or was was it Mayor Giuliani? Was it Mr. Epste? Was it somebody else? Do you have idea? My my >> if you >> Epstein was the guy collecting information and I don't know what he did with it but I thought Epstein was the central figure because he was treating me and Eastman as resources. I didn't have any sense that Eastman had more of a role than I did.

[01:23:57]>> I see. Um, and then your your sense was Epste was taking if you're a resource, Dr. Eastman's a resource, Epstein is taking what you're giving him and providing it to whom?

[01:24:12]>> I I I don't know. I don't know.

[01:24:15]>> Well, based on your experience, you've mentioned communications about Giuliani.

[01:24:21]Um, you may not know as to every piece of information, but did you form an understanding as to what was happening to some of that information? So, the thing is I I now know Epste has connections both Trump and Giuliani uh and and still does, but at the time, you know, I just thought he was a guy working with Giuliani.

[01:24:43]Uh, and I didn't know, obviously, he's on the Trump campaign, but I I didn't know I didn't know I just didn't know what he was doing with the information.

[01:24:50]So, you knew he was working with Giuliani. What specifically he did with the information you were not aware of?

[01:24:55]>> Right.

[01:25:00]>> I think for now that's it.

[01:25:02]>> I have one question or a few questions.

[01:25:05]Oh. Um, >> you're referring to Georgia, the Georgia lawsuit and how a judge wasn't appointed.

[01:25:11]>> Did you review the Georgia filings yourself and all the litigation involved yourself?

[01:25:17]>> No, I was relying on summaries from other attorneys. Okay. Um, who are those other attorneys that were providing those summaries to you?

[01:25:25]>> Um, I believe it was Bruce Marx, the lawyer in Pennsylvania who was somehow involved. Clea Mitchell, I guess, Georgia attorney and and then um, you know, I think Eastman was probably on his emails as well. There was just discussion about what was happening in Georgia and there was an effort to to work push it forward.

[01:25:45]>> Okay. And so none of those attorneys were any of those attorneys to your knowledge involved as attorneys of record on the Georgia case?

[01:25:54]>> Uh I I I don't know.

[01:25:56]>> Do you remember having any conversations with Ray Smith?

[01:26:00]>> Uh no. I I never heard his name before these indictments.

[01:26:04]>> Any conversations with Kurt Hilbert?

[01:26:08]>> I don't know who that is.

[01:26:09]>> Okay. Just wondering kind of, you know, where the information how it makes its way to you. Okay.

[01:26:17]All right. Um, it's 11:33 a.m. Mike, I think we can stop the recording. Go off the record.

[01:26:23]>> All right. Give me one moment.

[01:26:24]>> Let us know when we're on.

[01:26:28]>> Yeah.