Email to Giuliani reveals plan to keep Trump in office on Jan. 6, court records show

Washington — In the weeks leading up to the Jan. 6 assault on the Capitol, an attorney with ties to the Trump campaign was circulating a memo with plans to block the certification of the Electoral College votes during the joint session of Congress, court records reveal.

Attorney Kenneth Chesebro sent an email to former New York Mayor and Trump lawyer Rudy Giuliani on Dec. 13, 2020, with detailed plans that would put then-Vice President Mike Pence and Senate president pro tempore Chuck Grassley, Republican of Iowa,  in central roles in the Congress' joint session. The email's subject line read, "Brief notes on 'President of the Senate' strategy." 

According to the email — revealed via a recent court filing by the House Jan. 6 Committee in its legal fight against Trump attorney John Eastman — Chesebro wanted Pence to recuse himself from his constitutional position as president of the Senate and the presiding officer over the joint session and claim a "conflict of interest" by way of being a candidate on the ballots in question. 

Pence ultimately did preside over the final certification of the Electoral College votes and resisted pressure from Trump and his allies to block Joe Biden's victory.  

Once recused, the email continued, Grassley or another senior Republican majority member would become the presiding officer of the joint session and begin the election certification. 

Citing the possibility of a set of alternate electors, the memo continues that the new presiding officer of the Senate, "then opens the two envelopes from Arizona, and announces that he cannot and will not, at least as of that date, count any electoral college votes from Arizona because there are two slates of votes." 

Joe Biden won the state of Arizona by just over 10,000 votes, and a report on Maricopa County's 2020 election ordered by Arizona state Senate Republicans affirmed the results last year. 

Following the hypothetical dispute in the joint session of Congress, the presiding officer would then offer Arizona three options: redo the election, ask for a federal judicial review, or have the Republican state legislature appoint its own electors, according to the memo. 

Cheseboro wrote that his interpretation of the Constitution's 12th Amendment gave the presiding officer of the joint session "enormous leverage" to enact whatever remedies deemed fit. 

Grassley's office said in a statement that neither the senator nor his staff "were aware of the memo or it's arguments before it was publicly reported well after President Biden took office. Nobody approached the senator or his office about such a plan."

The memo then lays out various scenarios based on possible rulings from the Supreme Court on Arizona's electors. Should Mr. Biden prevail in court, Chesebro wrote, Trump's activists and lawyers would have still built public momentum "to prevent similar abuses in the future."

If the high court were to decide not to take up the issue at all, according to the email, scenarios could play out in which Pelosi or Pence were elected acting president by Congress. 

"It doesn't seem fanciful to think that Trump and Pence would end up winning the vote after some legislatures appoint electors," Chesebro concluded.

Notably, the attorney told Guiliani that he thought any of these unprecedented and relatively unstable outcomes seemed "preferable" to allowing the normal vote certification process to proceed and having Pence preside over what Chesebro called the "charade" of a Biden victory.

The memo also advised members of the Senate Judiciary Committee to lay the groundwork for this president-of-the-Senate strategy in advance of Jan. 6 by conducting hearings during which certain scholars could promote the power of the presiding officer. 

Chesebro, who was subpoenaed by the House Committee investigating the Jan. 6 attack, did not respond to CBS News' attempts for comment. 

According to the March 1 subpoena, House investigators believe he "participated in attempts to disrupt or delay the certification of the results of the 2020 presidential election," later accusing Chesebro of actively promoting "theories within the Trump campaign supporting the use of alternate slates of electors in states that former President Trump had lost." 

The court filing reveals Chesebro later sent his president-of-the-Senate memo to Eastman in the days leading up to the assault on the Capitol. 

Eastman, for his part, responded in a recent court filing of his own that neither he nor Trump were involved in the Chesebro memo and that "the explicit purpose for that recommendation was not to overturn the election, as the Select Committee repeatedly claims," but to bring more scrutiny to allegations of election irregularities.