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The Failed Game Plan for Overthrowing the 2020 Vote

The basis of John Eastman’s memo: Get Pence to lie, then count on the GOP to be Trump trucklers.
September 21, 2021
The Failed Game Plan for Overthrowing the 2020 Vote
WASHINGTON, DC - JANUARY 06: U.S. Vice President Mike Pence presides over a joint session of Congress on January 06, 2021 in Washington, DC. Congress held a joint session today to ratify President-elect Joe Biden's 306-232 Electoral College win over President Donald Trump. A group of Republican senators said they would reject the Electoral College votes of several states unless Congress appointed a commission to audit the election results. (Photo by Jim Lo Scalzo - Pool/Getty Images)

John C. Eastman, one of the lawyers who advised President Donald Trump in his attempt to overturn the 2020 election, reportedly presented Trump with an exquisitely Trumpian plan to have Vice President Mike Pence do his dirty work: Pence should lie.

Then he should leverage his lie in order to take the election out of the hands of American voters through the exercise of an authority he doesn’t have under the Constitution.

Eastman’s alleged plan is laid out in a two-page memo marked “PRIVILEGED AND CONFIDENTIAL.” According to CNN and the Washington Post, which published it on Monday, the memo was sent on January 2 to Republican Sen. Mike Lee of Utah, who was “shocked” by what he saw.

In the memo, Eastman set out a “January 6 scenario” in six steps. He barely managed to make it through the first one without embarrassing himself. In Step 1, according to Eastman, Pence would begin “to open and count the ballots, starting with Alabama.”

So far so good. The Twelfth Amendment to the Constitution does, after all, authorize the vice president to “open” the sealed electoral votes signed and certified by the states, which votes “shall then be counted.” Forget, for the sake of sanity, Eastman’s bizarre admonition that Pence should begin his roll call of the states with Alabama “without conceding” that he is required to go through the states alphabetically. God forbid.

By Step 2, however, Eastman went wildly off the rails. When Pence gets to Arizona in the roll call (presumably only after going through Alabama and Alaska by dint of the dreaded tyranny of alphabetization), Eastman said, Pence should announce that “he has multiple slates of electors, and so is going to defer decision on that until finishing the other States.”

The problem with this is that it wasn’t true: Pence didn’t have multiple slates of electors from Arizona, unless Eastman is referring to something Pence might have received over the transom or stumbled upon on Twitter. But random flotsam doesn’t count. The Twelfth Amendment is quite clear on this: The Vice President shall open “the certificates” signed and certified by the states, not just anything he might chance to pick up off the street. Arizona, like every other state, had “signed” and “certified” a single slate of electors, reflecting the results of the state’s election.

By the time he got to Step 3, Eastman dove into territory that Harvard Law Professor Laurence Tribe has described as “jaw-droppingly stupid.” Eastman wanted Pence, after going through the states, to simply announce that because of the nonexistent “disputes” in Arizona and six other states, “there are no electors that can be deemed validly appointed in those States”—despite the fact that every state in the Union had signed and certified a single slate of electors pursuant to the results of their elections. Once the inconvenient votes of the seven states had been flushed, Eastman posited, Trump would have a majority of the electors in the non-flushed states. Case closed: “Pence then gavels President Trump as re-elected.”

Eastman was now piling bogus, anti-constitutional analysis on top of his original lie. Even if there were multiple slates of electors signed and certified by seven states—and there weren’t—Pence still wouldn’t have had the constitutional authority to unilaterally “gavel” in a president by fiat. Professor Tribe put it this way:

“The vice president has no power whatsoever in deciding which votes count,” Tribe said. “From the beginning of the republic, the Constitution’s history has made clear that the vice president’s role in this special quadrennial joint session is purely ceremonial. He doesn’t have to even truly count the votes. He simply announces the vote count and in announcing it, he has no discretion whatsoever.”

The Twelfth Amendment simply doesn’t permit a vice president to gavel in a president if no candidate wins a majority of the electoral votes. Instead, it sets out a somewhat convoluted process in which the decision is thrown to the House of Representatives, not to the vice president.

Eastman clearly recognized the preposterousness of his “legal” analysis and signaled what is clearly his driving obsession, to elicit “howls” from the Democrats. In step 4 of his January 6 scenario, he acknowledges that in the event of a genuine constitutional dispute, the decision goes to the House, with each state having a single vote. No problem there for Eastman, of course, since the Republicans then controlled 26 of the state delegations, a majority. The unstated assumption behind this calculation—perhaps the most accurate, albeit unspoken, piece of Eastman’s analysis—is that none of the Republican state delegations would have the integrity or character to insist that the states’ election results, not party loyalty, should control the selection of an American president.

Eastman didn’t limit himself to written advice; on January 5, he reportedly also made his anti-constitutional case to Pence directly in the Oval Office. In an email quoted by the Washington Post yesterday, Eastman said that his final advice to Pence was not to act as though there with states with multiple slates of electors, as outlined in the memo, but rather to insist on delaying the certification process, to buy more time.

Then, on January 6, Eastman delivered a fiery speech at Trump’s “Save America” rally, just two and a half hours before the insurrectionist mob overtook the Capitol. As a result, faculty at Chapman University, where Eastman held an endowed faculty position, called for his removal for acts “in direct opposition to the values and beliefs of our institution.” Eastman was ultimately pressured into resigning his position there. He was also stripped of his public duties at the University of Colorado Boulder.

Eastman will now be remembered not for whatever academic standing he once may have enjoyed, but for his clownish role as a Trump apologist. He has made himself yet another member of the not-so-exclusive club of public figures who at one point were mostly taken seriously, but after being run through the Trump defilement machine emerged transformed into something ridiculous.

Rudy Giuliani and Michael Flynn would be proud.

Philip Rotner

Philip Rotner is a columnist whose articles appear in national publications and on his website, Philip is an attorney who has practiced for over 40 years, both in private practice and as the general counsel of a global professional services firm.  Philip’s views are his own, and do not reflect the views of any organization with which he has been associated.