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Trump ally Jim Jordan forwarded Mark Meadows argument for Mike Pence to reject Biden electoral votes

Representative Jim Jordan, Republican of Ohio on Capitol Hill in Washington, DC.

Saul Loeb | Pool via Reuters

Republican Rep. Jim Jordan forwarded then-White House chief of staff Mark Meadows a message arguing that Vice President Mike Pence should reject certain Electoral College votes on Jan. 6 during the confirmation of Joe Biden’s presidential victory over Donald Trump.

The text, which NBC News on Wednesday confirmed was sent by Jordan, was one of numerous messages to Meadows that a House select committee shared publicly this week as it pursued a criminal contempt referral against Trump’s former chief of staff.

The text had been written by Joseph Schmitz, a former Pentagon inspector general and former Trump campaign aide, and was passed on to Meadows by Jordan, a source told NBC News. Schmitz could not immediately be reached for comment.

The message said Pence on Jan. 6 “should call out all electoral votes that he believes are unconstitutional as no electoral votes at all,” claiming such an act would be in accordance with “judicial precedence” and “guidance from founding father Alexander Hamilton.”

The legally dubious argument that Pence could unilaterally invalidate or refuse to count any state’s electoral votes was rejected by Pence himself, despite Trump pressuring him to do so.

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Schmitz’s argument, which was forwarded to the president’s top aide by a sitting member of Congress, gives insight into the ways Trump’s allies at all levels were sharing ideas about how to change the outcome of the democratic election.

Jordan is a staunch Trump ally who had worked alongside Meadows on the conservative House Freedom Caucus. The Ohio lawmaker was one of dozens of House Republicans who voted to challenge election results that favored Biden after the rioters had been cleared out of the Capitol.

Spokesmen for Jordan did not immediately respond to CNBC’s requests for comment on the text sent to Meadows.

The select committee is tasked with investigating the facts and causes of the deadly Jan. 6 invasion, when hundreds of Trump’s supporters violently stormed the Capitol and forced Congress to flee their chambers. Many of the rioters were spurred by Trump’s false claims that the 2020 election had been “rigged” against him through widespread voter fraud.

The House on Tuesday night voted to hold Meadows in contempt of Congress for defying the select panel’s subpoena to sit for a deposition. The committee says Meadows had produced thousands of pages of records, and had agreed to answer questions before abruptly backing out. Meadows has sued the select panel to invalidate two of its subpoenas, arguing in part that Trump has asserted executive privilege over his testimony.

The committee this week revealed some of Meadows’ records, including texts he received from Jordan and other lawmakers. They also shared messages sent to Meadows by Donald Trump Jr. and multiple pro-Trump Fox News hosts who were panicking about the Capitol riot as it unfolded.

“He’s got to condemn this s— ASAP. The Capitol Police tweet is not enough,” Trump Jr. texted Meadows on Jan. 6, said select committee Vice Chair Liz Cheney, R-Wyo., during a meeting Monday night.

Rep. Adam Schiff, D-Calif., in that meeting read aloud a portion of Jordan’s message to Meadows, without naming Jordan as the sender.

“On January 6, 2021, Vice President Mike Pence, as President of the Senate, should call out all electoral votes that he believes are unconstitutional as no electoral votes at all,” read the text sent to Meadows by a person whom Schiff described only as a “lawmaker.”

An accompanying graphic displayed that quote as a complete sentence. Jordan’s office argued to NBC that Schiff misrepresented the message, because it omitted some of the language that Jordan sent to Meadows.

A spokesperson for the select committee told CNBC that the graphic “inadvertently” added a period at the end of the quote read by Schiff during the meeting. “The Select Committee is responsible for and regrets the error,” the spokesperson said.

The spokesperson sent CNBC the full text message record “in the interests of transparency.”

It reads: “On January 6, 2021, Vice President Mike Pence, as President of the Senate, should call out all electoral votes that he believes are unconstitutional as no electoral votes at all — in accordance with guidance from founding father Alexander Hamilton and judicial precedence. ‘No legislative act,’  wrote Alexander Hamilton in Federalist No. 78, ‘contrary to the Constitution, can be valid.’ The court in Hubbard v. Lowe reinforced this truth: ‘That an unconstitutional statute is not a law at all is a proposition no longer open to discussion.’ 226 F. 135, 137 (SDNY 1915), appeal dismissed, 242 U.S. 654 (1916).  Following this rationale, an unconstitutionally appointed elector, like an unconstitutionally enacted statute, is no elector at all.”

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