In a pair of memos issued by Jenna Ellis the week before the January 6 attack on the U.S. Capitol, we learn that then-Senior Legal Advisor to the Trump 2020 campaign and attorney to Donald Trump himself was working on a strategy to have then-Vice President Mike Pence help her client steal the election.
The memos, which contain widely disputed and constitutionally questionable legal theories about Pence’s ability to prevent the certification of Biden’s victory over Trump, underscore Jenna Ellis’ promotion of the extreme arguments she and Rudy Giuliani were spreading after the election as they tried to reverse the election results (excerpts via Politico):
A Dec. 31 Ellis memo delivered to Trump’s office suggested that Pence — who was constitutionally responsible for presiding over Congress’ counting of electoral votes on Jan. 6 — should simply refuse to open envelopes from states whose election results Trump considered to be fraudulent. That memo was described by ABC reporter Jonathan Karl in his recent book “Betrayal.” POLITICO is publishing it in full for the first time.
In a second, previously unreported memo dated Jan. 5, Ellis made a more technical legal argument that she delivered to Jay Sekulow, one of Trump’s outside lawyers. Sekulow represented Trump during his first impeachment and in a series of legal battles during his administration, but he had minimal involvement in Trump’s election litigation. The exception was an early November Supreme Court case regarding Pennsylvania’s mail-in ballots.
In the Jan. 5 memo, Ellis argued that key provisions of the Electoral Count Act — limiting Pence’s authority to affirm or reject certain electors — were likely unconstitutional. She concluded that Pence, while presiding over lawmakers’ counting of electors, should simply halt the process when their alphabetical proceeding reached Arizona.
Sekulow said at the time that he didn’t believe Pence had any authority to reject Biden’s electors.
“Some have speculated that the vice president could simply say, ‘I’m not going to accept these electors,’ that he has the authority to do that under the Constitution,” Sekulow said on his radio show. “I actually don’t think that’s what the Constitution has in mind.” He described Pence’s role as a “ministerial, procedural function.”
Ellis’ memo to Sekulow may have been part of a bid to persuade him to reverse his position. She writes that Pence’s role was not a “ministerial function” — the same phrase Sekulow had used that day. (emphasis mine)
However, due to the personal connection I have with Jenna Ellis — she’s a former contributor to The Strident Conservative — I feel this latest revelation of her sellout to Trumpism and her attempt to get Mike Pence to help Donald Trump steal the 2020 election provides an opportunity to remind my readers and listeners of the damage Trump has done to conservatism.
I used to work with Jenna Ellis at the radio station where I was employed before launching out on my own, and I invited her to become a contributor during the 2016 presidential campaign season after reviewing her book, The Legal Basis for a Moral Constitution, a particularly poignant topic at the time after eight years of Obama and the impending succession by either Trump or Hillary.
From her very first contribution about how constitutional ignorance has created a moral crisis in America, Ellis provided solid moral and constitutional arguments on a variety of topics, such as transgenderism and gender identity, LGBT “rights,” racial discrimination, and abortion throughout the 2016 campaign season.
Shortly after leaving the radio station in January 2016 to strike out on my own, Ellis initially continued to carry the banner of Christian constitutional conservatism as she pointed out the inherent danger of a Donald Trump presidency.
For example, in a February 2016 appearance on Rush to Reason — one of the radio shows I used to produce and occasionally co-host — Ellis proclaimed that Donald Trump wasn’t a genuine Christian because he was incapable of seeking forgiveness or repentance.
In a since-deleted Facebook post from February 2016, Jenna Ellis criticized Trump’s attacks on the media and his desire to change libel laws.
“Trump cannot handle criticism,” she wrote at the time. “This is insanely dangerous to the fundamental American value and inalienable right to freedom of speech.” She reiterated this belief on the radio show appearance mentioned above when she said Trump posed “one of the greatest threats to our liberty” by seeking stricter libel laws.
One more thing Ellis mentioned in that radio appearance was her belief that the Republican National Convention should become a brokered affair — later known as the Free the Delegates movement — and, ironically, compared it to the Electoral College. She also said that “Trump absolutely should not be the GOP nominee.”
Once Trump was made the nominee, Jenna Ellis stopped contributing to The Strident Conservative. And after later being “discovered” by Trump in 2019 following several pro-Trump cheerleading appearances on FOX News, she was hired as one of his attorneys to defend his indefensible presidency.
Ellis went right to work defending Trump’s assault on the First Amendment — she called never-Trump conservatives constitutionally ignorant for disagreeing with her — and she was a rabid supporter of the obstruction tactics used by Trump and the GOP during the sham Senate impeachment hearings.
In exchange for a cushy seat at Trump’s table, Ellis abandoned the Constitution and her so-called conservative values — replacing them with the kind of moral and ethical relativism we see every day ending in “y” from evangelicals, faux conservatives, and the Fellowship of the Pharisees in the Age of Trump.
Jenna Ellis is no longer a Strident Conservative contributor — you can still find her early work on this website — but I continue to make it available to my readers for two reasons: To show what it looks like when someone abandons constitutional conservatism and Christian values and replaces them with political power … and to show how everything Trump touches dies (#ETTD).
David Leach is the owner of the Strident Conservative. He holds people of every political stripe accountable for their failure to uphold conservative values, and he promotes those values instead of political parties.