Earlier this week, CNN received a copy of a legal memorandum prepared for then-President Donald Trump that looked at the “January scenario” under which Trump may seek to overturn the results of the 2020 presidential election, which he lost to Joe Biden.
The author of John Eastman, a professor of conservative law, the “Eastman Memo”, dubbed the press, argued that when Vice President Mike Pence, presiding over a joint session of Congress on January 6, 2021, the only counting power was the electoral vote and Pence should use this power. Rejecting the pro-biden vote and thus handing over the White House to Trump. “The House, of course, is from the Democrats,” Eastman wrote. “The main thing here is that it should be done without Pence’s permission – either from a joint session vote or from the court.” According to Eastman, “The Constitution gives the Vice President this power as the final arbiter. We must keep all actions in mind.”
In reality, the constitution does not give the vice president any such power. Eastman’s scheme is fake in his face. In fact, imagine if Vice President Al Gore tried to seize power by winning unilaterally instead of George W. Bush in the 2001 presidential election. As Jonathan Alder, a law professor at Case Western Reserve University, observes, Eastman Memoti is “a poor lawyer for a dissenting reason.”
Sadly, those negatives did not deter Trump, who embraced Eastman’s poor law and order and publicly lobbied his vice president to overturn the election by rejecting the pro-Biden vote. Trump said if Mike Pence does the right thing. “We won the election.”
In the end, Pence Did Do the right thing. “This is my judgment,” the vice president said. “My oath to support and defend the constitution prevents me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”
Trump adopted a number of ridiculous legal theories in his bid to stay in power after losing the election to Biden. Add the Eastman memo to that sorry list.