Wednesday, Sept 27th, continued with Prof John Yoo’s witness testimony for John Eastman, which focused first on an article he co-authored that was published in the Case Western Law Review: Who Counts: The 12th Amendment, the Vice President and the Electoral Count. Yoo explained the look at historical records based on the 1876 election was chosen for the report because that was when Congress tried to exercise power over an electoral dispute.
Playing a role in this was US House Rep James Garfield, who at the time has been a representative for 18 years, and was to be elected in 1880 as the 20th president. OT for just a sec to add that Garfield was assassinated 200 days, about 6 months into the term of his presidency. Anyway, Yoo states, Garfield’s view was that within the VP role, lay the power to count the electoral votes in a dispute and declare the result.
Judge Roland asked for clarification on Yoo’s mention of ad hoc measures used in his report’s footnotes. He shared there was no system set up, so anything they did at that time was ad hoc. Yoo then went on to testify about the 1787 Grand Committee. Not processing to understand fully his muddling words, wondering brought me some clarity in reading that it was an 11 member committee which presented plans related to political representation in the House and Senate. Opposition argument was the view that the Founders didn’t want Congress to act as power mongers. The result was a compromise in a state vs federal power set up in which representation in the House of Representatives would be allocated according to population and in the Senate by equal numbers for each state. May have been applicable in 1787, but in 2023, it seems sincerely in need of an update more reflective of the 21st century, imv. Go figure. Full disclosure is that this has annoyed me for decades. One person, one vote, please.
Testifying to his research on the 12th Amendment, Yoo again, as in previous testimony, went into scholarly opinions that consider the 1887 Electoral Count Act (ECA) unconstitutional, naming a few players from back in the day records. I checked out for a while on this dry line of questioning, already with somewhat of an understanding of Yoo’s position on the subject. Snapping back I came, when Judge Roland popped in to note that extensive arguments had already happened and added her perfunctory, “Let’s move on.” My thoughts, exactly.
Damn if Miller doesn’t keep trying, though… LOL, really damn. I imagine he’s not gonna come out on this a winner. We move on, per Judge Roland’s insistance, validating my thought.
Much back and forth for a bit, all together now confusion with judge, State Bar and Miller, related to an exhibit Miller had put on the screen. Made apparent was an incorrect page not matching Judge Roland’s copy or the State Bar’s, ascertained is its need to align in this courtroom’s record. Kudos and Yay!
Yoo’s testimony ended with an explanation to Judge Roland on his view in the Case Western report is that, in 2020, there were not two slates of electors from the 7 disputed states, therefore no dispute. This notion offers a twist… with no dispute on the elector votes, Pence had to count the votes. Yoo disclosed that despite evidence to the contrary in the courts, he still believes his view of there being only one slate of electors in 2020 to be true.
After a quick break, Yoo returned for cross examination. The State Bar cleverly dove in and asked Yoo about a hypothetical dispute in 3 states, AZ, GA and PA. What would Vice President Harris do? Funny that, Yoo didn’t have a lot to share on this, dodging opinion, saying that scenario is an unsettled political question.
Miller had an attorney/client privilege objection to Yoo’s testimony that he had advised Pence regarding the counting of electors. Made clear was that Yoo was referring to public information from the New York Times in his testimony with quotes from Greg Jacob, VP Pence Chief of Staff, so privilege would be waived in that instance. To no one’s surprise, Miller continued to argue his same point of privilege to which Judge Roland took care of business clarifying circumstance with Yoo and then closed out the discussion overruling Miller’s objection.
The State Bar next had Yoo testify that, in his view, the Trump campaign had made up the dispute of dual electors. Yoo said further that a trigger was needed for a VP role in resolving a dispute and he saw none. Referring to state legislatures and courts, Yoo confirmed his opinion that there was no fraud found in the investigations into choosing the electors. He cited Bill Barr’s statements when he called the election fraud allegations bullshit, not factual. In his testimony, Yoo suggested that Barr did a service to the country when he relayed to the public this fraud facade of the Trump Campaign and many others, a decisive move against his party and the president who appointed him. Shame, shame that RWNJ members of the House and Senate, and so many other nefarious traitors, blew Barr’s opinion off as bullshit in itself, in a bullshitters bullshitting bullshitters kinda way. Foolish and dangerous games they play.
The State Bar questioned Yoo about two elections he featured in the Case Western article. Yoo testified that the dispute of Vermont electors in 1796 is not a precedent for Pence to reject votes and in 1800 same, same, but in constitution speak. Judge Roland at that point, called for a late lunch break.
Resuming the session, State Bar opened cross exam in a continued dissecting of Yoo’s testimony on historical documents with detailed precision. Yoo agreed that the 1800 election of Jefferson was partisan, with no one contesting the outcome. There are no memoirs or much other information on the incident, to my understanding of Yoo’s testimony.
Other presidential election whaddabouts in the early 19th century were discussed as to why or why not each was to be included in Yoo’s report. Expanded on were examples of Yoo’s historical research showing varying views on electoral vote scenarios with disputes and resolutions. Yoo testified to varying views about the Electoral Count Act (ECA) found in a number of reports.
Of interest was that the State Bar established the historical records of elections presented don’t convey a connection to 2020 presidential election fiasco. More evidence to connect a precedent may be revealed another time as the trial continues. Eastman can only hope.
The State Bar wound down cross examining Yoo with a sweet moment of friendship and family. That is, Yoo and Eastman have been personal friends since 1996, and have collaborated on articles over that time. Yoo testified their families remain friendly to date, having watched each other’s children grow up. Perhaps they’ll visit him when he’s doing a sedition sentence in a Georgia prison.
The State Bar asked about the connection made in Dec 2020, when Eastman reached out to Yoo via email. It was a short email, he recalled, about an American Mind article to which he sent Eastman a one line response. Yoo testified it seemed weird to give just a one line response, seeing as they were friends, but he had heard about Eastman’s involvement with recount and fraud issues. Yoo put on the record that he didn’t want anything to do with it. His words. He said he didn’t want to help people who thought the election was stolen. Yoo shared that he had been approached by the Trump campaign, also, but to summarize, he didn’t believe the fraud being alleged occurred and told them so. He ended his cross exam testimony stating it pained him that friends of his were working on it. Nix that lock-up visit idea, oh well.
Miller came to redirect inquiring about Yoo’s sensibilities, as to why he was designated as giving expert testimony and had Yoo recount his scope of the material reviewed for the Case Western article. Miller asked if he was satisfied the material he had reviewed could be presented in a fair way in the article. Yoo ended re-direct saying they tried, but could have missed something.