Law

Trump's 'Eastman Memo' Proposed an Unconstitutional Power Grab by the Vice President

A conservative law professor advised Donald Trump that Mike Pence could unilaterally overturn the 2020 election.

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Earlier this week, CNN obtained a copy of a legal memorandum prepared for then-President Donald Trump that envisioned a "January 6 scenario" under which Trump could seek to overturn the results of the 2020 presidential election, which he lost to Joe Biden.

Authored by conservative law professor John Eastman, the "Eastman Memo," as it has been dubbed in the press, argued that Vice President Mike Pence, while presiding over the joint session of Congress on January 6, 2021, possessed the sole power to count electoral votes and that Pence should use this power to reject pro-Biden votes and thus deliver the White House to Trump. "Howls, of course, from the Democrats," Eastman wrote. "The main thing here is that Pence should do this without asking for permission—either from a vote of the joint session or from the Court." According to Eastman, "the Constitution assigns this power to the Vice President as the final arbiter. We should take all of our actions with that in mind."

In reality, the Constitution assigns no such power to the vice president. Eastman's scheme is bogus on its face. Indeed, just imagine if Vice President Al Gore had attempted a similar power grab in January 2001 by unilaterally gaveling himself in as the winner of the 2000 presidential election instead of his opponent, George W. Bush. As Case Western Reserve University law professor Jonathan Alder has observed, the Eastman memo is "poor lawyering for a disreputable cause."

Alas, those negatives did not deter Trump, who embraced Eastman's poor lawyering and publicly lobbied his vice president to overturn the election by rejecting pro-Biden electoral votes. "If Mike Pence does the right thing," Trump said. "We win the election."

In the end, Pence did do the right thing. "It is my considered judgment," the vice president said, "that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not."

Trump embraced a number of ludicrous legal theories in his attempt to remain in power after losing the election to Biden. Add the Eastman Memo to that sorry list.