Donald Trump is the first president in the modern era who has not conceded after his electoral defeat. The impending January insurrection postpones the peaceful transfer of power, which is a feature of democratic government. Recent weeks have provided new insights into the events leading up to that day, particularly around Trump’s claim that Mike Pence could “do the right thing” when the vice president served in a joint session of Congress to certify the 2020 Electoral College vote.
Earlier in January, Trump held a rally in which he campaigned for Rudy Giuliani to be brave before highlighting John Eastman’s legal skills (unlike many in the Republican Party). Trump says:
John is one of the most talented lawyers in the country, and he looked at this and said, “How insulting it can be for our Constitution.” And he looked at Mike Pence, and I hope Mike is going to do the right thing. … Because if Mike Pence does the right thing, we will win the election. All he has to do is do this, it’s number one in our country, or of course one of the top constitutional lawyers. He has every right to do so. Those states want to withdraw. States have been deceived. They were given false information. They voted for it. Now they want to re-verify. They want it back. All Vice President Pence has to do is send him back to the state and we become president and you are the happiest man.
This paragraph now has a lot more context for Bob Woodward and Robert Coster’s new book “Peril”. In it, the authors claim that Eastman Pence planned to unilaterally reject the controversial state vote so that Trump would gain a majority in the Electoral College vote that would be counted. The details of the plan seem to have been confirmed by the former Federal Justice J. Michael Lutig, who tweeted That he was “honored to advise Vice-President Pence that, as of January 6, 2021, he had no choice but to take and count the votes of the Electoral College as they were properly certified by the States,” and he believes[d] That Professor Eastman was wrong at every turn of the analysis in his January 2 memorandum. In his memoirs, Eastman admitted that his plan was “of course,” but that they were “no longer playing according to the Queensbury rules.”
“Bold” is a way to keep it. In the end, Eastman’s plan rests solely with Mike Pence to determine whether a state’s electoral vote should be counted. Eastman claimed that “a very difficult legal authority, and a historical precedent” was that Congress was powerless to count the Vice President’s electoral votes.
There is much to oppose this reading of history and law. Primarily, Eastman disliked the established method of conducting controversial votes – the Electoral Counts Act of 1887. He argues that it is unconstitutional and instead refers to the actions of John Adams and Thomas Jefferson in the elections of 1796 and 1800 to show that past vice presidents have used their authority to settle disputed votes. Derek Mueller, a law professor at the University of Iowa, has shown, among others, that reading Eastman’s history is incomplete. Notably, both Adams and Jefferson were working before the Twelfth Amendment was passed, which Muller suggested gave the Electoral College a passive role to the vice president in the vote count.
Close inspections also reveal that neither Adams nor Jefferson acted in accordance with Eastman’s advice. In 2004, Bruce Ackerman and David Fontana proposed a deeply educated test of Jefferson’s activity in the 1800s, which now provides insight into how dangerous Eastman’s prescriptions are. Ackerman and Fontana argue that both Adams in 1796 and Jefferson in 1800 could count electoral votes in their roles as vice presidents, but they both acted in a way where “matter should take precedence over form.”
Similarly, in the 1 election election, Democrats and Republicans from Hawaii each submitted a slate of voters for counting at a joint session of Congress. With just 105 votes to go, John F. Kennedy was declared the winner a week before the joint session. In his role as current vice president, Richard Nixon sought unanimous consent that the body accept the slate for John F. Kennedy, not for himself, which it did.
Electoral officials, courts and security experts had the irresistible view that the “object” of the 2020 election revealed that Joe Biden had won the Electoral College vote, 606-232. Each state certifies the results of its election, with courts dismissing more than 50 cases of irregularities, and multiple federal officials finding no evidence of fraud, concluding that 2020 is “the safest election in American history.”
Eastman argued that the vice president had the sole power to determine whether electoral votes should be counted. This is an incredible amount of power vested in a person – especially one who can win the presidency at his own discretion.
Imagine, in 2000, Al Gore adopted Eastman’s theory. This meant that in his role as vice president, Gore had the sole power to accept or reject the electoral votes of all states, including Florida, where he lost by only 537 votes. If he had done so, he would have won the presidency with a majority of the votes counted. According to Eastman’s argument, Gore had no choice but to sit down with Congress and do it.
The Eastman memo has caused serious criticism among some observers, but as Margaret Sullivan notes it has caught the eye of many by most Americans. And some have even dismissed Eastman’s “Brave” play as unreasonable and thought-provoking.
Ramesh Pannuru, for example, recently argued that concerns about Trump’s post-election efforts to stay in power have been allayed, indicating that no state has changed their election results and that Pence has not finally intervened in favor of his ticket. Still, we know that Jan January, and before that, Trump campaigned publicly for both results. A vice president should be concerned about all Americans by ignoring the election vote alone by trying to get his vice president to ignore federal law, state election officials, and the courts. That it didn’t happen doesn’t blow away the possibility that it could happen.
Instead of dismissing Trump’s original effort as a janni scheme, we should approach it because we will launch another attack on the United States. If another country tries to attack us and fails, we will not ignore its efforts. Instead, we will do everything in our power to prevent a sequel. We should take the same approach to the efforts encouraged by the Eastman Memo.