Election 2020

The Eastman Memo: Poor Lawyering for a Disreputable Cause (Updated)

An audacious last-minute attempt to undo the results of the 2020 election.

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CNN has obtained a copy of a memo authored by former law professor John Eastman outlining a strategy to have Donald Trump declared the victor of the 2020 election. The Washington Post had previously reported on the memo's existence and circulation to Republican Senators by the White House.

The memo, reportedly authored and distributed in advance of the January 6 electoral vote count, suggests a scenario under which Vice President Pence excludes the electoral votes of seven states—on the false pretense that competing slates of electors had been submitted by those states—so as to give Trump a majority of the electoral votes cast. This false claim is apparently one reason why GOP Senators did not endorse the strategy.

From the Post account (which draws from the new book, Peril by Robert Costa and Bob Woodward):

[Utah Republican Senator Mike] Lee knew dueling electors were merely Trump loyalists putting themselves forward in certain states, in a move the authors describe as "a social media campaign — an amateur push with no legal standing." Electors are generally bound by the popular vote in each state; because they sum to 538, an absolute majority of 270 is needed to clinch the presidency.The authors suggest the senator, a former law clerk for Supreme Court Justice Samuel A. Alito Jr., was surprised this theory had been circulated by Eastman, a professor at the Chapman University School of Law and former law clerk to Justice Clarence Thomas. Document in hand, and bewildered that theories about dueling electors were still coming from Trump's legal team, Lee made "phone call after phone call" to officials in some of the relevant states, such as Georgia, Pennsylvania and Arizona, he told constituents in a Jan. 27 online town hall, appearing to refer to the Eastman memo without naming its author. A spokesman for Lee did not respond to a request for comment.

No one seemed poised to certify a new slate of electors. "At that point, I believed that we had reached the end of the process, as indeed we had," Lee said during the town hall.

The senator also explained his interpretation of the limited role the Constitution gave to Congress and the vice president in counting electoral votes — an interpretation in conflict with the one outlined by Eastman, who argued Pence could be the "ultimate arbiter" and either name Trump the president-elect or send the matter to the House.

Eastman even anticipated what "Peril" describes as "certain outrage and worry of a coup." In the memo, however, he dismissed these concerns as, "Howls, of course, from the Democrats."

Fortunately, Senator Lee and Vice President Pence rejected this cynical and mendacious strategy.

On the Election Law Blog, Derek Muller dissects the memo and, among other things, notes how the 2021 Eastman memo contradicts the arguments Eastman made during the 2000 Election controversy (when the Vice President's alleged power to control the counting of Electoral Votes would have been in the hands of Al Gore). As Muller notes, the 2021 memo makes some controversial assumptions (such as that the Electoral Count Act is unconstitutional) and overlooks important facts, such as that the 117th Congress independently adopted the ECA's rules for the counting of electoral votes on January 3, which would have constrained the Vice President's ability to unilaterally control the vote count.

Also on the Election Law Blog, Ned Foley points out some other important legal and practical points the Eastman memo missed that would have doomed the strategy to failure. Among other things, Foley notes, House Speaker Nancy Pelosi could have halted the joint session of Congress and, if necessary, could have stalled proceedings until January 20, when Pence would no longer be Vice President and could no longer seek to manipulate the proceedings as President of the Senate.

Readers may recall Eastman also filed a Supreme Court brief on behalf of Trump's failed effort to overturn the 2020 election results. I discussed that brief here.

UPDATE: John Eastman has told CNN that the above-cited memo was merely a preliminary outline, and has provided CNN's Jeremy Herb with a longer, six-page memo, dated January 3, which outlines several potential electoral count scenarios. I am not sure this longer memo makes Eastman look any better.

Like the shorter memo, the longer memo relies on the false claim that there were "dual slates of electors" transmitted to the Senate, adopts an expansive (and unjustified) interpretation of the Vice President's authority under the Twelfth Amendment, and urged Vice President Pence to unilaterally disregard the Electoral Count Act and reject slates of electors certified and transmitted by seven states on the grounds that such a move would avert a "constitutional crisis."

NEXT: The Exploitation of Young Minds

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  1. Hey, wow, the press has sharpened what remains of their investigative journalism pencils and cobbled together something resembling a story about something some rando wrote last year that had something to do with Trump.

    Which specific aspect of the incomprehensible train wreck that is the Biden presidency needs to be driven out of the news cycle this week?

    1. It really doesn’t concern you at all that attorneys working closely with the former President were trying to convince the Vice President that he could just completely on his own toss out people’s votes to install someone who clearly lost an election?

      1. Did it happen? No. Then no, it doesn’t concern me. It’s old news, and has nothing to do with what’s happening in the world now.

        1. Attempted Murder? What even is that? Do they give a Nobel Prize for Attempted Chemistry?

          1. Clingers do not respect the credentialism, achievement, or elitism of Nobel Prizes. They prefer Noble Prizes.

            1. Especially Nobel peace prizes given to newly elected presidents who go on to drone civilians, attack sovereign nations, start new wars, and help precipitate race riots. Obama was Artie’s favorite bigot.

          2. Well, Biden DID murder 7 children in Afghanistan, so there’s that.

            1. Wait til I tell you about the people Trump got killed.

                1. https://www.newsweek.com/trump-slams-biden-over-afghan-civilian-deaths-airstrikewhich-jumped-330-under-his-watch-1630476

                  Not to mention the botched raid in Yemen that lead to death of a nine year old girl who was actually a US citizen:

                  https://en.wikipedia.org/wiki/Raid_on_Yakla

                  Oh and the botched Nigerian raid, where Trump was rude to a soldier’s widow.

                  Oh and lest we forget the time he pardoned Eddie Gallagher who admitted after the fact that killed a 14 year old while “practicing” medical procedures on them.

                  And while this ultimately did not happen, reports suggested that Trump was considering pardoning Robert Bales.

                  1. Not paying to go behind Newsfarts’ paywall to read some anti-Trump propaganda, but Wikishit is free, so….

                    “Between 10[8] and 30 civilians[9] (including Nawar al-Awlaki, the eight-year-old American daughter of the deceased alleged al-Qaeda preacher Anwar al-Awlaki) were killed in the raid along with up to 14 al-Qaeda fighters, as well as American Navy SEAL William Owens.[14]” So, Trump hit an actual al-Qaeda infestation vs Biden hit the house of some rando aid worker to distract from the ongoing Afghan disaster. You were saying?

              1. The point is that Trump didn’t get a Nobel for it. You knew that but went for the “your side bad” attack.

                I detest Trump but the Nobel for Obama was the end of credibility for the Nobel folks. Sure wish you were objective enough to admit that.

                1. WTF are you even taking about? I made a Simpsons joke.

                  1. “wait til I tell you about the people Trump got killed”

                    1. Right. But what’s that have to do with Obama? Or the objectivity of the Nobel Peace Prize committee. Just ponying out the hypocrisy of Trump people suddenly caring about civilian deaths in a war zone once it happened under Biden’s watch.

                    2. I don’t know. I thought you brought it up in the context of Obama. The Nobel Committee should have steered as far from both of those guys as possible.

                    3. LawTalkingGuy isn’t just PLAYING stupid.

                      His ~”what about Trump?” post was in response to ~”Biden murdered 7 children” which was a response to ~”Obama got the Nobel Peace Prize for nothing, then went on to launch a barrage of drone strikes”. So, when he asks “But what’s that have to do with Obama? Or the objectivity of the Nobel Peace Prize committee.(sic)” it’s because his brain long since dropped its nuts and bolts and oil pan on the road and ground to a halt.

        2. It did happen. They did sit down and look for ways to overthrow the election. That is a thing that they did.

          1. Although, they believed there was fraud and that they were acting to preserve democracy and election integrity.

            1. That isn’t a defense when the belief of fraud is based entirely on narcissism, and not at all on facts or evidence.

              1. I’m doubtful they believed it. Instead, their motivation was that their lips were hopelessly stuck to Trump’s ass.

                1. It is severely wrong to claim their lips were stuck to Trump’s ass.

                  Their tongues were affixed to Trump’s scrotum. Still are, mostly.

                2. A lot of people just toe a line or push an agenda without interest in the truth, like most of mainstream media, so it’s quite possible. Perhaps some may have been convinced of plausibility by affidavits and testimony like this one:

                  “14. Most of the ballots had already been handled; they had been written on by people, and the edges were worn. They showed obvious use. However, one batch stood out. It was pristine. There was a difference in the texture of the paper – it was if they were intended for absentee use but had not been used for that purposes. There was a difference in the feel.
                  15. These different ballots included a slight depressed pre-fold so they could be easily folded and unfolded for use in the scanning machines. There were no markings on the ballots to show where they had come from, or where they had been processed. These stood out.
                  16. In my 20 years’ of experience of handling ballots, I observed that the markings for the candidates on these ballots were unusually uniform, perhaps even with a ballot-marking device. By my estimate in observing these ballots, approximately 98% constituted votes for Joseph Biden. I only observed two of these ballots as votes for President Donald J. Trump.”

                  To be clear, I haven’t seen any compelling evidence of widespread fraud, and I don’t anticipate that I will, notwithstanding that there are maybe dozens or hundreds of affidavits like that. Though I liken it to the fact that I don’t have compelling evidence of widespread cheating on taxes or breaking of traffic laws among taxpayers in my neighborhood, either.

                  1. That sounds like the Susan (or Suzi) Voyles affidavit.

                    You’ll likely get about as far as Lin Wood did with reliance on her affidavit. Good luck, clinger.

              2. I’m not familiar with all the States, but the belief in fraud in Detroit flipping MI is absolutely based on evidence.

                1. It is not. As the judges who considered the various affidavits submitted by Trumpkins pointed out, these documents actually demonstrated that the affiants simply didn’t understand ballot counting procedure.

                  No evidence of any fraud anywhere, other than a handful of Trump supporters voting more than once.

            2. No they didn’t. They didn’t believe that for a second.

            3. Did they also believe the moon is made of green cheese?

          2. I certainly do condemn Eastman, Trump and the Trump campaign for not taking their loss like men.

            But I will note, when Hillary and the Democrats lost in 2016 they were just as bad, they manufactured evidence and enlisted Federal law enforcement and intelligence in an effort to frame Trump for an impeachable offense.

            We certainly need a lot better candidates and political professionals on both sides. And I’m hoping Trump doesn’t run again, but will probably vote for him again if he does considering his likely opposition.

            1. The investigations of Trump were not partisan and based on a legitimate factual predicate. Trump’s IG said so.

              Your belief that there was a deep conspiracy in the intelligence community and DoJ is not the same as this actual memo trying to full-on ignore a legitimate national election.

            2. when Hillary and the Democrats lost in 2016 they were just as bad,

              No they weren’t. Not close. Where were the lawsuits, the schemes to have then-VP Biden overrule the EC results, etc.

              You may not agree that Trump’s attempt to use American aid to browbeat Ukraine into some phony investigation was impeachable, but it happened. It wasn’t “manufactured.” He wasn’t framed.

              You are making a false equivalence, and, bluntly, a vote for Trump is a vote to destroy American democracy.

        3. It’s old news, and has nothing to do with what’s happening in the world now.

          It’s from just a few months ago, and has, unfortunately, a lot to do with what’s happening in the world now.

      2. Presidents get bad advice all the time – look at Biden the past several weeks. The true test is, did the President act on that advice or just recognize it for being bad?

        1. Well the President did! He thought this was going to happen and blamed Pence for lacking courage.

        2. He did act on it. He pushed Pence to follow Eastman’s plan, you dumb cultist.

        3. You don’t remember how openly pissed he was a Pence for failing him? The several hour meeting earlier in the day where he pressured Pence to go along?

          Trump tried to follow the plan but Pence stopped it.

      3. Except that, even now, it is far from clear that Trump actually lost. A credible case had been made early on that there had been massive election fraud in six states in the early morning after the election, after Republican election judges were eliminated from the counting rooms in big cities in those six states. There was video of unsecured boxes of ballots being carted in then and counted, of ballots being counted over and over, etc. The votes in these six cities and states were statistical anomalies.

        And guess what? When investigated, the election fraud looks more and more likely to have been decisive. Already, even before the state Senate audit is complete in AZ, a canvas has shown 200k combined over and under votes, based entirely on just checking death records, asking when people moved away, whether they voted (but not for whom) etc. About 100k claimed to have voted, but a vote wasn’t counted for them, and another 100k had votes counted, but shouldn’t have. Combined, that is 10x Biden’s margin, and 5x Kelly’s margin in the state. Information we have so far is that the Senate audit will show hundreds of thousands of other discrepancies, with most of the benefit going to the Democrats. It looks very likely right now that Biden’s 10k win will turn into a quarter million or more, vote loss in Maricopa county (and, yes, I was there during the election – the enthusiasm for Trump was significant, while negligible for Biden).

        Seeing this, it should be no surprise that Republican controlled legislative bodies in these states are trying to follow Arizona’s lead. GA probably first, but PΑ and even MI seem to be trying to follow the AZ lead.

        And we haven’t even scratched the surface with the Dominion machines. Illegally (at the time) their machines had the hardware to connect to the Internet. In Maricopa County, the county officials never had the computer dongles that would have allowed high level access to their election machines. Only Dominion had them, or even now, has them. Only they can audit their own systems. Only they can validate what software and what configurations were active when their systems were used to count AZ ballots.

        1. Mitt Romney said everything that needed to be said already in response to this nonsense.

          https://www.romney.senate.gov/romney-condemns-insurrection-us-capitol

          1. Romney has never said anything that needed to be said in his life.

          2. Too bad Romney saying anything only discredits it.

          3. “Mitt Romney”

            Has he stopped trying to “put [blacks] back in chains”?

            Your side treated Romney like he was Nero but now he is an oracle. So transparently hypocritical.

            1. I don’t like Romney at all. He just happened to nail this particular matter in a succinct way.

        2. These are your peeps, Conspirators.

          This is why your deans wonder why they ever hired a movement conservative for a legitimate law faculty.

        3. Dream on. Over 60 court tests attempted and zero pieces of admissible or relevant evidence. Keep going, though. I am sure you sound really smart to dumb people.

          1. Wrong. No evidence was presented. All of the cases were thrown out on “procedural issues”. In other words the Courts didn’t want to be bothered.

            1. Not true. In at least two cases, the judges said (Giant head appears in the sky, “SHOW ME WHAT YOU GOT”), do you swear to tell the truth, the whole truth, and nothing but the truth (on pain of eternal damnation by your God)?

              “Yes.”

              “So, what happened?”

              “Mmmm…not much.”

              Reminds me of the “intelligent design” idiocy that, once the principle scientists were under oath, collapsed in a detailed analysis.

              1. Real colloquy regarding observers:

                Diamond: “I’m asking you as a member of the bar of this court: are people representing the Donald J Trump for president, representing the plaintiffs, in that room?”

                Trump campaign lawyer: “Yes.”

                Diamond: “I’m sorry, then what’s your problem?”

                1. The problem, presumably, was that they were in the room, but being kept too far away from what was going on to actually ‘observe’ anything.

                  1. Really dude? If this guy had a true statement to that effect he would have told the Court. When the Court reminded him of his professional obligation of candor to the Court he told the truth. You just don’t like it.

                    1. Pennsylvania judge permits campaign observers up-close view of ballot count after Trump complaint

                      It’s unclear to me whether this ruling preceded or followed the one you’re quoting, but it DID take seriously the complaint.

            2. You should really read the sanctions order Judge Parker wrote where she actually went through all the farcical claims in minute detail.

            3. ‘No evidence was presented.’

              Can’t present what you don’t have.

            4. From Trump vs. The Wisconsin Electoral Commission, decided by Brett Ludwig, a Trump appointee:

              “With the Electoral College meeting just days away, the Court declined to address the issues in piecemeal fashion and instead provided plaintiff with an expedited hearing on the merits of his claims. On the morning of the hearing, the parties reached agreement on a stipulated set of facts and then presented arguments to the Court. Given the significance of the case, the Court promised, and has endeavored, to provide a prompt decision. Having reviewed the caselaw and plaintiff’s allegations, the Court concludes it has jurisdiction to resolve plaintiff’s claims, at least to the extent they rest on federal law, specifically the Electors Clause. And, on the merits of plaintiff’s claims, the Court now further concludes that plaintiff has not proved that defendants violated his rights under the Electors Clause. To the contrary, the record shows Wisconsin’s Presidential Electors are being determined in the very manner directed by the Legislature, as required by Article II, Section 1 of the Constitution. Plaintiff’s complaint is therefore dismissed with prejudice.”

              So, here we have a case decided on the merits (not a procedural issue) where Trump’s legal team agreed to the set of facts reviewed by the judge, and where the (Trump-appointed) judge evaluated the evidence and found the election to be conducted fairly.

            5. ‘ Wrong. No evidence was presented. All of the cases were thrown out on “procedural issues”. In other words the Courts didn’t want to be bothered. ‘

              Is that (1) a Liberty or Regent law degree talking, (2) something you think you remember from a discount homeschooling outline your mother handed to you, or (3) what you heard from Hannity, Carlson, or Ingraham last night?

              Thank, jimc5499, for any insight on the provenance of your “legal insight.”

        4. Here is news you can use, Bruce. State legislative bodies, whether Republican or Democratically controlled, have zero legitimacy to attempt to overturn certified election results. A certified election result is a sovereign decree, constituting government. The disastrous implications of insisting that governments ought to be at liberty to ignore that, and reverse the sovereign, ought to be obvious to anyone smart enough to have found his way to commenting on the VC.

          1. Now that’s totally bullshit. Suppose the person in charge of certifying the election certifies it the morning of election day, before most of the votes have been cast? You’re making whoever certifies the unreviewable election dictator.

            It has to be possible to say, “Yes, you ‘certified’ the election, but this evidence here shows you did so fraudulently/on the basis of incomplete information/screwed up your math.”

            1. That is why certification is a weeks long process–it isn’t just one guy.

          2. Your cult beliefs about “sovereignty” have neither legal nor practical significance. A certified election result is not a sovereign anything. The government, not this imaginary sovereign, certifies the results.

            1. Of course it is the government, Nieporent. The government has the ministerial responsibility to conduct the election. Which is why the sovereign decree status of the result does not kick in until that ministerial duty is completed. Results certified by the government signal that moment, when the election is complete, and the sovereign constitutive power is recognized.

              No one in government is legitimately empowered to hamper at all the constitutive power of the sovereign. Perhaps you have not reflected on how fatally contradictory to the principles of American constitutionalism it would be if it were otherwise. Consider the implications if government officers could legitimately mobilize government power against the sovereign, as it exercised its will to remove those same government officials from office during an election.

              Elections are exercises of sovereign power. The conduct of elections is a mere ministerial duty, performed by government officials, or by others, according to law.

              There is nothing cultish, or imaginary, about what I am telling you. Of course you cannot point to any cult to blame. And as for, “imaginary,” the views I offer you were commonplace among the the founders. They can be found in the historical record.

              Previously, I offered you both original and secondary sources that confirm what I say. You have the choice to consult them, or to continue pointless, ill-informed commentary. Or you could just let the subject pass you by—which might be your wisest way to deal with it. If you do not want to entertain the founders’ views on sovereignty, and its role in American constitutionalism, concentrate instead on other topics which interest you more.

        5. Yes it is clear Trump lost. What is becoming more clear is that in many cases it was Republican themselves that were sick of him. Republican politician did well in 2020. Republican went out and supported their candidates, they just refused to support Trump.

        6. You are a delusional idiot.

          No, your claims don’t deserve any other response. The above statement covers everything in full.

        7. Could it be that Trump’s mind-bending powers of persuasion have warped the time/space continuum, such that the ex-President was actually re-elected in some sort of alternative universe? If so, I am happy to let him govern there.

        8. And guess what? When investigated, the election fraud looks more and more likely to have been decisive. Already, even before the state Senate audit is complete in AZ, a canvas has shown 200k combined over and under votes, based entirely on just checking death records, asking when people moved away, whether they voted (but not for whom) etc. About 100k claimed to have voted, but a vote wasn’t counted for them, and another 100k had votes counted, but shouldn’t have. Combined, that is 10x Biden’s margin, and 5x Kelly’s margin in the state. Information we have so far is that the Senate audit will show hundreds of thousands of other discrepancies, with most of the benefit going to the Democrats. It looks very likely right now that Biden’s 10k win will turn into a quarter million or more, vote loss in Maricopa county (and, yes, I was there during the election – the enthusiasm for Trump was significant, while negligible for Biden).

          Every. Single. One. Of. These. Numbers. Is. Completely. Fabricated. Bruce Hayden is a disgusting liar.

          1. You think he’s a disgusting liar. I think he’s a disgusting sack of shit intellectual and ethical whore. Let’s agree to disagree.

        9. Oh, it’s very clear that Trump lost.

          I mean, there’s a bazillion dollars out there waiting to be made by someone who digs up actual proof of a stolen election and writes it up. Eternal fame. I guarantee people are out there looking. But there’s nothing there to find.

          And the people committing this fraud are people that run the government at various levels. They aren’t competent enough to piss without getting it all over themselves or speak in coherent sentences. Think they actually committed the perfect election crime? In six fucking states? If they were that capable we’d all get our mail on time and we’d be driving on roads without potholes.

        10. The problem in MI was not that the truckloads of alleged “absentee ballots” were “unsecured”, but that the City Clerk(D) claimed to have “verified” them without observers viewing the process (in violation of State law) before “discovering” them and trucking them over Cobo Hall. Yes, the observers were sent home by then, but that didn’t matter much (well, maybe they would have noticed the same ballots being counted multiple times). Then you have the evidence of guilty knowledge that is the courts blocking the collection of testimony under oath, any examination of the ballots, supposed enclosing envelopes, etc.

          1. No, that’s wrong. No state law was violated. Nothing was done with observers being sent home. No ballots were counted multiple times. No testimony was blocked from being collected. This is all made up. All of it.

      4. Not at all, since many of the votes intended to be tossed out were made American citizens under false pretenses.

        1. “Not at all, since many of the votes intended to be tossed out were made American citizens under false pretenses.”

          Please learn to copyedit before posting your “thoughts”, such as they are. No votes were made American citizens.

    2. “needs to be driven out of the news cycle this week?”

      Tough choice. So many options!

  2. Another fine showing from conservative academia.

    Is there any reason for any strong law school to hire another conservative for its faculty? Why appease clingers by engaging in affirmative action for the representatives of the culture war’s deserving, deplorable losers?

    Let the right-wing law professors aggregate at conservative-controlled schools.

  3. Eastman is a former Thomas clerk.

    Of course he is.

    It may be time for better Americans to declare victory in the culture war and to start a vigorous reconstruction project in the clinger communities.

    1. Artie, you Commies ain’t won shit. You are kidding yourself. Most of the country hates you and wants you dead. That is kept out of the papers. You are being misled by the tech billionaire owned media.

      1. They also are incompetent, so without their stores being stocked and blue collar conservatives to build and fix their stuff, they couldn’t do anything.

        1. I have no doubt you are qualified for a position stocking store shelves, Nisiiko. Thank you for your service.

          1. I have no doubt that you are unqualified to do anything but eat and shit.

            1. And probably visit bath houses in San Francisco.

      2. Maybe not yet, but we are on the winning side of the culture war, watching our preferences be vindicated by American progress. And we continue watching conservatives brand themselves — particularly among younger, educated Americans developing their lifelong voting patterns — as superstitious bigots, lethally reckless boors, misogynistic losers, and disaffected misfits.

  4. If Kreskin were here, he would be rubbing his forehead and saying ‘I see a new blog . . . wait . . . two names . . . it’s a bizarre, strange sort of blog . . . it is very odd . . . OK, now I can make out a first part of it . . . it’s a name . . . it’s Eastwood, I think. Or is is Eastern, Easton . . . Eastman! That’s it . . . first is Eastman. Then . . . there’s more . . .is that a color I sense? Yes. It’s black. But, no, wait . . . black is right, but it not a color I am looking for. . . it’s a . . . maybe it’s a . . .something that is black . . . no, now I see it, it’s a name, too. Blackburn? No. Blackwood? Blackmore? I don’t think so . . . wait, it’s becoming clearer . . . ah, there is it . . . it is Blackman!

    ‘The answer, of course, ladies and gentlemen, is Eastman-Blackman. It is the Eastman-Blackman Blog. Coming soon to the clingerverse near you. It always had to be, ladies and gentlemen.’

    (Except Kreskin’s act wouldn’t have worked if the answers were always this obvious.)

    1. Desperate Bigot Artie spams the forum hoping for some attention.

      1. Artie was censored — with prejudice — by Eugene Volokh (and the Volokh Conspiracy Board of Censors) for making fun of conservatives at a right-wing blog.

        I am Arthur.

        (Are UCLA law students wearing “Free Artie Ray Lee Wayne Jim-Bob Kirkland” t-shirts these days? If any student group wants funding for those shirts, let me know!)

        1. That was many years ago. I was much traumatized by the same experience, but have been able to move on from it. What would happen if you got your Commie ass kicked by a patriot if you are this upset by being blocked over 10 years ago?

  5. “on the false pretense that competing slates of electors had been submitted by those states”

    I’ve read the memo. It does not state that the claim of multiple slates is false. On the contrary, it later assumes that there are actually multiple slates that have been submitted.

    It can easily be read as continent on the election controversies in those states resulting in the submission of multiple slates of electors. Which, of course, didn’t happen. But I’m not clear at what point in the process this memo was generated, it’s undated. So it could have been generated at a point where this was still a live possibility.

    1. Note that I’m not saying it was a good plan, I think at that point the job is purely ministerial. I’m just saying that it wasn’t obviously dependent on the VP committing a fraudulent act.

      1. No, there was no controversy, other than partisans blowing smoke.

        But more and more the right makes their hay by mistaking smoke for fire.

        1. Mistaking (or misrepresenting) self-generated smoke for/as fire was the sole exercise of Lefty from 2016-2020. It got really tiresome.

    2. The memo does not “assume that there are actually multiple slates that have been submitted”, it assumes that Pence can be manipulated into declaring that they have been.

      1. You’re reading that into it, but that’s not the words of the memo.

        How is he to be manipulated into doing this? Isn’t the most straightforward way of accomplish that just arranging for multiple slates to genuinely be submitted?

        If the state legislatures had been persuaded that as a result of election laws violations, Biden had been declared the winner, when their own investigation showed Trump the winner, you could easily have seen the state legislature submitting a slate for Trump, and the state courts submitting a slate for Biden.

        That exact scenario was on its way to happening in Florida in 2000, when the Supreme court shut down the court ordered recount.

        1. Your counterfactual didn’t happen, either in 2020 nor in 2000.

          Lookin at the actual timeline, you didn’t have the pre-election cooperation from the States required for multiple slates to occur.

          Just because better planning would have made for a more efficient power grab doesn’t mean this dumber power grab didn’t happen.

          1. That’s right. What I’m saying is that this memo describes a tactic that legally could have been used if that counter-factual had actually happened. If the state legislatures and courts had ended up at loggerhead in multiple states, and sent up competing slates.

            In that scenario, the tactic described in the memo would not have required any fraud on Pence’s part.

            So, when was the memo written? When competing slates were still a live possibility? Or after it was obvious that Pence would not, in fact, be presented with competing slates?

            In the former case it is just a contingency plan. In the latter, yes, it is a proposed fraudulent course of action.

            So, the OP doesn’t say when it was written, but a bit of digging says January 2nd.

            Alright, at that point there were clearly no duplicate slates. It’s a plan for fraud.

            But it mattered when it originated.

            1. Was there ever a realistic probability that there would be legitimate competing slates out of the 2020 election? I don’t think so.

              1. Sure, at one point there was, before the litigation about election rules. There was the possibility of one slate based on the actual election rules, and another essentially certified by the courts, according to the altered rules.

                The legislatures typically caved at the time, and agreed to the slate resulting from the altered rules. They’re now going back and trying to create safeguards against the same stunts from being pulled a second time.

                1. You have created your own total fantasy, Brett.

                  That’s really how you view what’s going on? That those evil courts somehow certified slates by brand-new rules.

                  …wow.

                  You just can’t help people that want to delude themselves.

                    1. In your confusion, you seem to be mangling all sorts of different issues, kind of like how you seem to deliberately not understand things like “doctrine” or “statutes” or “laws” or “rules.”

                      Of course, this has been explained to you. Multiple times. With sources! Many times, pleasantly.

                      You just don’t want to understand.

                      It’s that simple.

                    2. It is my understanding that this issue (whether election officials — specifically Secretaries of State — could in the name of COVID Panic rewrite legislatively enacted election rules in defiance of the US Constitution’s grant of authority) reached SCOTUS before the election and got a 4-4 vote, and that ACB could have triggered a rehearing but buggered out, claiming that she couldn’t get up to speed on the issue. A Michigan case?

                      loki13 is of course a determined ignoramus and liar.

        2. By applying private and public pressure on Pence, which is exactly what Trump, Giuliani, and Mark Meadows did right up until Jan 6.
          Why did they do that when it was plain that there were no alternate slates of electors? Because this strategy didn’t require a basis in fact, only that Pence followed the script.

    3. I’ve read the memo. It does not state that the claim of multiple slates is false.

      Huh? Of course not. It falsely states that the claim of multiple slates is true. Which is exactly what the quote you’re responding to says.

  6. So, the republic was preserved because of the pure good luck that we had a vice president who understood he worked for the American people rather than for Donald Trump. We averted disaster, but make no mistake, with a less principled vice president it would have been a disaster. And, I will add, a disaster that only would have been possible because of the electoral college.

    1. KryKry. Try to calm down. Pelosi would have waited until Jan. 20 for a new Vice President had Pence done his job and not listen to that Washington elite insider, Quayle.

      1. Daivd, this is a stupid comment even for you. The only way there would be a new vice president on January 20 would have been to count the electoral votes and certify that result in advance of January 20.

    2. Krychek_2 : “We averted disaster, but make no mistake, with a less principled vice president it would have been a disaster”

      True enough, but please step back and look at the big picture. The reigning Right-wing passion (aside from controlling women’s wombs) is legislating against voters. In state after state, the Right has passed voter harassment bills – filled mostly with petty vindictive measures that have nothing to do with election fraud.

      Studies find these attempts at voter suppression usually fail. Probably even their Right-wing sponsors realize this, but they just don’t like people voting. But another typical aspect of these bills is much more dangerous. States have been transferring final election authority from the executive to legislative branches. Those GOP election officials who behaved honorably in 2020 are seeing their power stripped away.

      So what happens in 2024 if (say) a vote in Georgia is close but Trump loses? What would the state legislature do with its newly-taken power? Does anyone believe a state house like Arizona would show the same backbone GOP election officials displayed in ’20? Long before Congressional certification we could see Trump-style coups in a half-dozen states or more.

      1. Well, here in Florida we have a Republican candidate for Congress running on a platform of refusing to certify the 2024 results if the Republican doesn’t win. As of now, he appears to be a lone nut, but given the direction the GOP is taking, whether he continues to be a lone nut remains to be seen.

        1. Having lived in Florida almost four years (Winter Haven), nothing from that state surprises me. But just look at the toxic mess of Arizona’s farce-audit and imagine something like that occurring between election and vote certification. Imagine something like that happening in five states or ten immediately following a presidential election.

          That is exactly the kind of power Republican-controlled state legislatures have been giving themselves in these voter harassment bills. Is there any reason whatsoever to believe Trump’s GOP will handle that power ethically?

    3. And, I will add, a disaster that only would have been possible because of the electoral college.

      What does any of this have to do with the electoral college?

      1. Because this type of hanky panky is far easier with the electoral college. If you’re trying to outright steal an election, which is harder: Stealing 7 million popular votes, or stealing 60,000 popular votes across a few close states?

        Nobody will even bother trying to steal close states if that state’s totals simply get added to the national popular vote, because there would be no point to it. Stealing 10,000 votes in Wisconsin (or whatever Trump’s 2016 margin actually was) isn’t worth the trouble, because nationally the Democrat still wins, just with 10,000 fewer popular votes. Stealing votes is only worth it if it flips electoral votes, a few of which actually can swing an election.

        1. Counterfeiters don’t manufacture fake nickels.

    4. The dementia patient being fraudulently elected doesn’t strike me as “a disaster averted”. It’s a disaster, full stop.

      1. Are you talking about Trump, or Biden? (Or both??)

  7. I eagerly look forward to Professor Blackman’s eloquent rebuttal to your analysis.

    1. I don’t remember Blackman endorsing the Kraken conspiracy, or any of these bizarre Pence can do whatever he wants when he has the gavel theories.

      As an aside, Eastman used to do a regular guest spot on the Hugh Hewitt show, I think it was weekly, about 15 years ago. He of course took the conservative position. The other regular weekly guest was none other than Erwin Chemerinsky, who needless to say always took the liberal line.

  8. I ask this in all seriousness. Was Eastman’s conduct criminal? If not, should there be a law to criminalize that conduct if it happens again?

    I have urged previously that members of state governments, or the federal government, who have sworn an oath to defend the Constitution, should be charged criminally with a violation of their oath if after an election has been certified they continue to deny publicly that the election is legitimate. Obviously, that is not the law now. But that conduct is essentially indistinguishable from the previously recognized English crime of high treason (which has never been a crime in the U.S., and is not the same as U.S. Constitutional treason). The essence of high treason was disloyalty to a sovereign to whom you owed allegiance. In America, an oath to uphold the Constitution is an oath of loyalty to the sovereign People of the United States, whose certified election results amount to a sovereign decree, constituting government. Given that, the damage and danger that kind of oath breaking creates is more than sufficiently evident to warrant considering whether to criminalize it.

    Presumably Eastman would not have sworn any such oath, and would enjoy the 1A-protected right of everyman to lie at will. But perhaps Eastman’s pattern of conduct comes so close to attempting to organize a coup that it is unwise to protect it as speech under the 1A.

    The more general question of course is whether the U.S. system of government can even continue if it becomes a standard political practice for the defeated political party’s office holders to deny falsely and continuously the legitimacy of their opponents’ elections. There is no reason to suggest that concern should be regarded as partisan.

    1. I don’t see where his conduct was illegal. As I said above, the memo didn’t clearly contemplate any fraud, it is plausibly read as being written in anticipation of events (Submission of competing slates of electors.) that didn’t happen.

      So, suppose that competing slates of electors HAD ended up being submitted, as very nearly happened in Florida in 2000? Say, one slate submitted by the state legislature, and another by the state supreme court.

      What exactly IS the VP supposed to do if that happens? Is it a crime to explore that?

      1. Perhaps not illegal, but…

        – VP *did* receive an alternate / bogus slate of electors from AZ. GOP kooks sent alternate slate of electors to National Archives.

        – Eastman recommends that VP ignoring the law (ECA) by disregarding valid (Gov certified) slates of electors for 7 states based on bogus AZ slate and unilaterally announcing “ongoing disputes” in other 6 (not a thing).

        – Eastman also suggests that if ECA is initially followed (i.e., raising objection to a state), that Pence should then resume ignoring ECA and require 60 votes to resolve dispute.

        – The above is illegal, fraudulent, tyrannical.

        So, to your question “What exactly IS the VP supposed to do if that happens? Is it a crime to explore that?”…. follow the goddamn law!

        1. Meant to say at the top… “Perhaps Eastman submitting the memo itself isn’t illegal, but…”

        2. I think the last two hundred years have demonstrated that tyranny isn’t necessarily illegal, especially when it pertains to who wins the WH.

      2. 1876 election. But Katherine Harris could have done her job like Rafensperger performed his job in November 2020.

    2. “. . . if it becomes a standard political practice for the defeated political party’s office holders to deny falsely and continuously the legitimacy of their opponents’ elections.”

      I don’t see a problem as long as they’re just whining and squawking (THEY STOLE THE ELECTION!!!!).

      They can even do all the legal things, e.g. request a recount, petition the courts, etc., and see where that takes them.

      It’s when someone (either side!) takes physical action (blockade, 1/6, etc), then law enforcement steps in and handles it.

      1. “I don’t see a problem”

        I do

    3. “Was Eastman’s conduct criminal? If not, should there be a law to criminalize that conduct if it happens again?”

      Making advice illegal seems like a winning strategy.

      1. Advice=legal
        Conspiracy=not legal

    4. “But perhaps Eastman’s pattern of conduct comes so close to attempting to organize a coup that it is unwise to protect it as speech under the 1A.”

      Now do General Milley…

    5. Amazing. In a thread that literally features someone arguing with a straight face that Trump won the election, you still manage to make the dumbest comment.

      1. He’s had a lot of practice.

    6. I am once again shocked to find Lathrop coming down in favor of censorship. Has there ever been a time when he took the side of a debate in favor of speech?

  9. John Eastman? Wasn’t he chair of the Federalism & Separation of Powers Practice Group at the Federalist Society? I think he was! Makes you think, doesn’t it?

  10. Has there been any word as to what Laurence Tribe thinks of the reference to him in this document?

    1. I mean, isn’t relying on something Tribe said that makes this memo facially absurd?

  11. “Fortunately, Senator Lee and Vice President Pence rejected this cynical and mendacious strategy.”

    Prof. Adler,

    First, I would like to thank you for both continuing to write up these sorts of issues, and for addressing them forthrightly. I know that is probably doesn’t make you very popular with some of the “usual suspects” in the comment section, not to mention making your life as a conservative more difficult to the extent that the “Cult of Trump” continues to hold sway over the GOP.

    That said, this fever dream will only abate once we, as a society, begin to enforce societal consequences for the truly outrageous behavior of some; no, not “serving in the Trump administration.” But those, like Eastman and Jeffrey Clark, who failed in their moral and civil duties and did everything possible to bring this country to the brink.

    When those cretins are properly shunned as the traitors supplicants who traded all of their integrity for a chance to suck at Trump’s teats for a millisecond longer … well, then we might get back to such quaint notions as “institutional integrity.”

    1. How about the outrageous behavior of various figures last year, who arranged for election laws to be violated? No consequences for them? We’re going to pretend that ignoring election laws, making up the rules as you go along, is just peachy?

      1. That didn’t happen. We have all explained to you that you disagreeing with a Court case doesn’t mean said case violates the law.

        No one is pretending, you’re just unable to learn.

        1. I swear to God last year when I pointed out to him that many of these suits were barred by laches, he was like: “That’s a doctrine, I’m talking about laws.”

          1. True story-

            First semester, first year of law school. This was a legal research & writing class, and we were learning the basics of how to read a statute. So we had a simple statute that read something along the lines of “If the property owner posts a sign that includes the words, ‘DOG ON PROPERTY’ the property owner shall not be liable for any tort action brought due to injuries cause by the dog.” (I’m paraphrasing, but you get the gist)

            Anyway, I thought I’d be clever, and asked what would happen if I put up a sign that said, “DON’T WORRY, THERE IS NO DOG ON PROPERTY” since it included the magic language.

            Anyway, that’s when the professor gave me a withering look and said, “You’d get sued. And lose. Because of estoppel. Because courts don’t like smarta$$es.”

            1. Hahahaha nice. Did they have an actual practitioner teach that class?

          2. “He really has an engineer’s view of how law works.”

            An antisocial, bigoted, autistic, fringe-inhabiting, contrarian engineer’s view, perhaps.

        2. Sarcastr0 : “That didn’t happen. We have all explained to you that you disagreeing with a Court case doesn’t mean said case violates the law”

          You have to understand where Brett is coming from. He wants a semi-serious-sounding excuse for Trump’s loss. He needs something to ally himself with his “election fraud” freak brethren, but with minimal staining from their kook excesses. This “adjustment to election procedures” shtick is the best thing he could devise.

          I once offered Brett a link to a website recording scores of election procedure court cases going back a quarter-century. So I asked: Haven’t you ever noticed this kind of thing before? (after all, it’s happened in every election you’ve experienced your entire life) I requested Brett explain how he was shocked! (Captain Renault-style) to suddenly notice it happening in 2020.

          Got back crickets. But given it’s only an excuse, I never expected anything different.

      2. Take them to court then.

        What? The courts laughed at them?

        OK….

      3. You keep going on and on about this, but you’re really just upset that the Pennsylvania Supreme Court gets to rule on Pennsylvania law and not Brett Bellmore. Also for many of the things complained about, the suits were too late. They were barred by laches.

        1. I’m actually upset that the Pennsylvania Supreme court got to rewrite Pennsylvania law, instead of leaving it to the state legislature.

          1. Well then maybe you should have changed the State Constitution of Pennsylvania when you had the chance.

          2. Judicial review you disagree with is not illegitimate.

          3. The only thing the Pennsylvania court might have done wrong is to permit ballots received after election day to be counted (they did so based on the Pennsylvania constitution even though the plain text of statute prohibited it). But, those ballots numbered less than Biden’s margin of victory and weren’t counted anyway.

            1. I think there was a bit more than that, in terms of election observers being handicapped and the like.

              But, sure, I think Trump genuinely lost. I think the 2000 election demonstrated that a candidate doesn’t have to be loved to win, you can win a turnout election just by virtue of sheer hatred of the other guy, especially if most of the media share that hatred. Trump brought something like 10 million new voters to the polls, and Democrats still beat that, on the basis of just getting their own base to vote out of white hot hatred of the man.

              This is not to say that I don’t think there were a lot of dubious things going on. There were. I just don’t think they accounted for the loss.

              But, Damn. If you’d intended that the losing side think they’d been cheated, I don’t know what you’d have done differently. I said at the time that as high as political distrust and polarization were, 2020 should have been an utterly by the book, transparency turned up to 11, election.

              Not changing up things left and right, ejecting election observers, getting rules on the books overturned. That election was a recipe for doubt.

              1. No. You don’t get to excuse your side’s delusion by blaming the Dems.

                Have some fucking integrity.

                1. Murc’s law strikes again.

                  1. murc’s law:

                    The widespread assumption that only Democrats have any agency or causal influence over American politics.

                    Huh. New one on me, but a good one. I see it on both the left and the right.

                    1. Indeed. Very common with the mainstream media, and you’ll see it in the debt ceiling stories. “What will Democrats do to stop a default?” It’s common on the left when they’re like: why won’t Democrats do something about something Republicans did in TX.

                      But I think it’s use on the right is much more fascinating. Every act or belief or delusion somehow is traceable to Democrats, as if they had no choice in the matter.

                      The Breitbart piece on how Democrats are pushing vaccines so hard because they want MAGA -types to reactively reject them so they die has brought this to concept to a deranged zenith.

              2. Democrats still beat that, on the basis of just getting their own base to vote out of white hot hatred of the man.

                As always, accusations of bad faith. You find it impossible to imagine any reason other than personal hate of Trump for anyone to vote for Biden.

                And you ignore that such hate as existed might have a rational basis in Trump’s behavior in office, indeed his entire career.

                1. bernard11 : “And you ignore that such hate as existed might have a rational basis in Trump’s behavior in office, indeed his entire career”

                  That’s true enough, but there’s an additional irony to Brett’s complaint. He describes votes against Trump as being purely negative, but somehow forgets to apply the same standard to votes for him.

                  And how absurd is that? Has there ever been a major political candidate who defined himself so exclusively thru negative projection? Maybe hate was important to the coalition against Trump, but it was EVERYTHING to the people who voted him into office. From “lock her up”, Mexican rapists, Ted Cruz’s father & wife, to the slurs, sneers, and petty insults excreted from Trump with the regularity of a well-functioning digestive system, his supporters ate-up every bit of bile & venom and then cheered for more.

                  Hate was all to them. Trump could be a waddling buffoon as long as they got to chortle and guffaw while watching him treat everybody and everything with contempt. This included the very position of president itself, as Trump never missed a chance to debase & demean our nation’s highest office. His supporters roared with laughter.

                  So it’s kinda funny to see Brett’s snowflake whining that Trump’s opponents were such meanies. Trumpism is the darkest black hole of negativity ever seen in modern American politics.

        2. That’s nothing.

          Brett’s still mad about the 14th Amendment.

          1. I’m mad about the Slaughterhouse case, and some similar cases spiking the 14th amendment early on. And I’m not terribly happy about the details of how the 14th amendment was ratified, literally at gun point.

            The amendment itself? I like it.

      4. Things aren’t boding well for America if even you, one of the more reasonable nut-jobs posting here, have your head this far in the sand about the 2020 election. May god bless us all.

    2. Prof. Adler deserves great credit for trying to maintain some integrity (and connection with the reality-based world) at an increasingly untethered blog.

      Enjoy it while it lasts — I suspect he will be following Prof. Kerr’s course.

      1. “Prof. Adler deserves great credit for trying to maintain some integrity (and connection with the reality-based world) at an increasingly untethered blog. ”

        Adler, it seems to me, has been an interesting contributor here even back when he called himself Juan and was the target of an unmasking campaign by a certain litigation-threatening, rumor-mongering blogger whose name is best left unmentioned.

    3. Well I agree with you somewhat there should be and have been, and will be consequences for those that pushed crazy constitutional interpretations, or manufactured fraud allegations.

      On the other hand I support the state legislatures auditing the election, it’s their responsibility to write the laws and investigate whether current law is sufficient, and monitor performance of state and officials and their adherence to the law.

      And there should also be the worse consequences for Democrats who manufactured evidence and enlisted Federal law enforcement and intelligence in an effort to frame Trump for an impeachable offense. Their consequences should be worse because they crossed the line into criminal activity as part of an active conspiracy.

      1. Pointing to the evil Dems that live in your imagination doesn’t really absolve the GOP of anything.

        Having a responsibility to ensure election integrity means it’s all the worse to make stuff up about how the election was corrupt only because your side lost.
        Which is what happened here.

        Your partisan spite and made-up facts are letting you rationalize some bad stuff.

      2. Kazinski, what would you have state legislatures audit? The procedures for performing the ministerial task of conducting an election? That ought to be done from time to time, and especially after instances which suggest public dissatisfaction with election procedures. There must always be an eye toward future improvements.

        Audit the vote count after it has been certified? That ought to be entirely off limits, and never done.

        There is zero legitimate power that any state legislature has to do anything at all about the vote count after it has been legitimately certified. Worse, any process to audit the count pretends an ability to infringe the sovereign People’s constitutive power—a pretense which must be vigorously rejected, to emphasize instead the state officers’ subordination to sovereign power, as their oaths of office require.

        State officers cannot be permitted—not even a little bit—to create inference that the legislature can use state power to check or constrain the sovereign People’s ability to act at pleasure during an election. Knowledge of that requirement explains why it is a grave deficiency if a losing candidate for office refuses after the result is clear to offer a prompt concession.

        Candidates who will not concede after the sovereign People have spoken their will, at that point commence a contest against the people for the nation’s sovereignty. It would be wise if the congress recognized that fact with legislation to punish that conduct, both for the candidates who do it, and for any supporters who may have sworn oaths to support the Constitution.

        1. after the sovereign People have spoken their will

          You might want to look up “begging the question” in the dictionary.

          1. Nieporent, it may be formalism, but it isn’t question begging. For elections, schedules are of the essence. A moment comes when the election ends. Certification of the count is that moment. What is left operative is a sovereign decree, not a mere government mandate. Sworn officers of government are not at liberty to question the sovereign will which constrains them.

            The interval between election day and the certification of the count is the time for legitimate questions from government officers, and it is all the time there is for that. That questioning must be ministerial in character, which means it cannot be an attempt by state officers to reach a result contrary to an accurate election count. With the count certified, any pretense of government action to question the election result further is an imposition on the sovereignty of the People. It is the duty of a sovereign’s government to guard jealously the sovereign’s power, and to act against those who illegitimately impose on it.

            1. No, it’s question begging. You keep saying that it’s a problem for politicians to challenge [what you call] the sovereign people’s will. But the question they’re raising is what the sovereign people’s will actually is. That one government official says “I certify that this is the sovereign people’s will” does not make it anything other than that one government official’s claim. The “sovereign people’s will” is a question of fact, not law.

        2. The state legislature is the ultimate authority in conducting elections in this country. If the entity responsible for ensuring free and fair elections can’t verify that the vote was free and fair, then who is in charge? In our system of government the legislature is the supreme authority.

          I certainly agree that the state cannot uncertify or reverse an election once it has been certified, but there is absolutely no principled reason they can’t assure themselves that the election was conducted according to law, and without error, or unfair advantage.

          1. No, Kazinski. The ultimate authority is not the government, it is the sovereign. As always in American constitutionalism, the sovereign People are in charge. In an election, all the substantive power belongs to the voters, none to the state. Only ministerial powers are left to the state, to conduct the election according to the sovereign will.

            State officers who have sworn an oath to uphold the sovereign’s mandate merely serve, subordinately. There is a principled reason why the election result the sovereign mandates with its votes cannot be questioned by a government. It is found in the government’s duty, ahead of all its other responsibilities, to guard the sovereign’s power and prerogative. That duty surely comes ahead of empty recriminations, aimed at undermining public acceptance of an election about which nothing further can be done.

            Because you agree that the state cannot uncertify or reverse an election once certified, you should have no problem understanding that questions the state may ask about a certified election should be confined to whether ministerial duties of state officers in conducting the election have been adequately performed. Those questions should be asked with an eye to determining whether during the next election state performance could be improved, with the sovereign’s satisfaction with the election’s conduct the standard of judgment.

  12. Attempts to hold the Presidency seem to be dominated by the shady second rate characters. Lawyers with pathetic schemes, firms attempting faux audits, and second rate politicians pushing notions of fraud. What is scary is that a first rate team could make such a takeover work. Democracy depend on people’s integrity and people like Eastman, Powell, Giuliani, and Senator Johnson have neither competency or integrity.

    1. The serious election lawyers withdrew within days, and not just because some of them were doxxed by the Lincoln Project. They knew by then that proceeding would be unethical, and by and large they had professional reputations to preserve.

      1. Agreed. The last administration did not have a Jim Baker. They did not have a case that Jim Baker would have taken.

  13. The Federalist Society website credits John Eastman with 138 presentations at Federalist Society events. I would be mildly surprised to learn that Eastman had not been a leader of a Federalist Society chapter or practice group or two.

    Does anyone still wish to contend that I am too hard on these clingers?

    (Roger was the band’s original guitarist and leader. And The Faces — Ronnie, Rod, and Kenney — apparently intend to tour with new material.)

  14. Eastman was a clerk for Clarence Thomas. He is a Federalist Society leader. He teaches at the Claremont Institute.

    1. He teaches at the Claremont Institute.

      No. Claremont is a think tank, not an educational institution. (It has no connection with Claremont McKenna.) Until recently he taught at Chapman University School of Law, but his support for insurrection was too much for them and he was ridden out of town on a rail. So to speak.

  15. It would be poor form not to mention that John Eastman is a superstitious bigot, too.

    How did this guy avoid becoming a Conspirator?

    1. Eastman’s the guy who wrote something about Kamala Harris not being a natural-born citizen. Ted Cruz was fine with him, though.

      1. Not only not natural-born, but not a citizen at all as she hasn’t been naturalized; an illegal alien, then.

      2. Ted Cruz was Eugene “Libertarian” Volokh’s pick, too.

        Kicking these clingers around is getting too easy.

        I still enjoy it, though. And it is important work.

  16. Where is Adler’s criticism of Not My President, by the Democrats, of the Mueller Investigation, a phony, pretextual, garbage, lawyer, nitpicking, rent seeking exercise in harassment.

    1. Except that the Mueller Report and the Senate Report on Russian Election Interference were well reasoned and written reports. You may not like them or what they had to say but they were accurate.

    2. “Not my President” was coined by Dick Armey referring to Bill Clinton

  17. BREAKING: Biden administration declares Russian election fraudulent due to lack of transparency and millions of votes being suddenly added in the middle of the night.

    Election officials said there is no evidence of “widespread” irregularities.

  18. 67% of Democrats believe that Russia hacked U.S. voting systems and tampered with vote tallies in order to elect Donald Trump in 2016.

    I’d say we have a problem with the public perception of the integrity of our elections.

    Basically, almost nobody believes our elections are secure. But each election has a winning side that of course believes that particular election result was on the up and up, while the other side doesn’t, and they flip flop each time according to the results.

    To remedy this, voter ID, in-person voting, and paper ballots with audit trail are just the beginning.

    1. I suggest you recheck that poll. Democrats certainly believe that Russia interfered but there is no suggestion of hacking. Democrats believe that the Russia provided in kind support by hacking and by social media posts. Very different from what you allege.

      1. Here’s a look at the poll.

        67 percent of Democrats believe it is “definitely true” or “probably true” that “Russia tampered with vote tallies in order to get Donald Trump elected.”

        https://twitter.com/peterjhasson/status/1064259048902668289

      2. I’ve seen this claim before: “that’s not what the poll actually means.” But it’s wrong, 67% of Democrats responded in the positive to the allegation. Maybe there are other problems with the poll but the poll does indicate that most Democrats think Russians tampered with the vote tallies. Where did you get the idea that the poll doesn’t have that language, since you clearly didn’t look at it yourself?

        1. Affected the tallies is not the same as changed the votes, which is what is suggested. We know the Russians support a Trump election in 2016 and provided in kind support. Those are facts. There is no fact to suggest that votes were changed or fraudulent votes added in 2016 or in 2020.

    2. Paper ballots yes. The rest of it is unnecessary.

  19. This memo reads as being about as fake as the dossier.

    Also why no reporting on the Dem lawyer who just got indicted for giving the FBI false documents accusing Trump of being in cahoots with Russia….? Gees wonder why…..

    1. He was not indicted for giving false information. He was indicted for not saying he worked for the Clinton campaign. Much like most members of the Trump administration lied about talking to the Russians.

      Why no mention of it? Probably because it pretty weak. I am guessing its good for a slap on the wrist if a conviction occurs.

      1. We already knew the dossier was false information, the FBI knew that before they even asked for the FISA warrants. Remember, they interviewed one of the sources, who told them the stories were all BS? They told the FISA judge that the source sounded trustworthy, but not that the trustworthy source had told them their basis for asking for the warrant was a steaming heap.

        ” He was indicted for not saying he worked for the Clinton campaign.”

        No, that makes it sound like he’d merely failed to mention it. He was indicted for lying about working for the Clinton campaign, he’d told them that he wasn’t working for anybody when they’d asked.

        1. First much of what was in the dossier has been verified by other sources. If you have specific items that you feel are false, state them.

          Second I believe and I have said that lying to the FBI or any official investigating body is wrong. Wrong here and wrong for the Trump administration members. Would you agree with that?

          1. Look, it’s a standard technique for constructing smears: You mix innocent verifiable stuff with the impossible to confirm dirt. Expecting people to say, “Wow, you’re right, he did take the 10PM train to Prague, I guess I’ll believe you when you say he attended secret a gathering of the Illuminati there!”

            The impossible to confirm or refute dirt is deliberately unfalsifiable, wake me when there’s actual evidence. Even not particularly reputable outlets that hated Trump’s guts wouldn’t touch that dossier, they knew it was a steaming heap. That’s why they needed Trump to be briefed on it, so the story could be, “Trump briefed on [steaming heap]”, not the steaming heap itself.

            1. So which is true?

              It’s impossible to confirm or refute? Or
              ‘We already knew the dossier was false information?’

            2. Also look forwards to your giving Hunter Biden a similar benefit of the doubt.

          2. Yeah there is some absolutely fake information in the dossier, in fact everything that was not already open source data at the time the dossier was written was fake.

            Michael Cohen did not go to Prague to meet a Russian agent on behalf of Trump, or even go to Prague at all. Russia was not coordinating and making payouts for election interference from it’s non-existent Miami consulate. Trump did not pay prostitutes to watch them pee on a bed in Moscow. That’s 3 just off the top of my head.

            Maybe you can name just one verified fact in the dossier, that was not already published in open source media? Of course it’s not hard to do a few internet searches when you are setting up a smear to sprinkle in a few verifiable facts, but it’s much harder to put in things that were not publicly known that are true, and it takes a lot more work than Steele was willing to put in.

            The fact you evidently don’t know that the FBI interviewed Steele’s primary source and he admitted that most of it was compiled in drunken bull sessions just tells me you are content to be willfully ignorant about the dossier while still regurgitating Rachel Maddow assurances that it all checks out.

        2. As a reminder : Steele’s report can be divided into three categories:

          1. Things he got 100% right, such as the Russian campaign to help elect Trump & their hacking of Clinton-associated email. In both reports he was miles ahead of everyone else.

          2. Things he got 100% wrong, of which there were very few. You probably must put his allegations on financial ties between Trump & Russian-interests here, simply for lack of evidence. However Trump did exert a massive effort to keep his finances hidden, and he lied about his Russian business ties repeatedly during the campaign. Steele may prove prescient here in the end.

          3. Then there were things he got 66-80% right, which was a large part of his report. Here we find the famous “piss tape”, which did exist & the Mueller Report documents fixer Cohen’s efforts to suppress it. However most people think the tape was a fake. As for Cohen, Steele had him sneaking into Prague to meet with Russians about the campaign. Instead he snuck into Moscow to meet with government officials about a massive Trump business deal. (This happen throughout the ’16 campaign. Trump lied repeatedly about it).

          Likewise, Steele had Manafort meeting with a Russian spy to coordinate election measures. This happened, though Manafort claimed it was only to hand over internal campaign data to his handler. Who knows? Manafort is a notorious liar, caught-out multiple times while supposedly a cooperating government witness. You have to remember the man was deeply in debt to people tied to Putin’s inner circle before taking the job of Trump campaign head (without salary). Betrayal to the Russians was hardwired in right from the start.

          All in all, Steele didn’t have a bad track record as far as raw intelligence goes. From my deep knowledge of spycraft (via reading many a spy novel), I’d say his report was a prime example of the type. He batting average was probably better than most

          1. ” Here we find the famous “piss tape”, which did exist”

            And here’s where you depart the debatable, and go into Cloud Coo Coo land.

            1. Geez Brett, how in the world can you always be so f**king stupid? It’s entirely possible any comment of yours will wander off into ludicrous fantasy because you’re you. The same cannot be said of me. Want to avoid embarrassing yourself in the future? Here’s a hint: If I say something is in the Mueller Report, that’s a strong indication you’ll find it there if you look. I’ll use a right-wing source, the NY Post:

              “According to the report, the president’s former personal attorney and “fixer” Michael Cohen received a text on Oct. 30, 2016, from a US-based Russian businessman Giorgi Rtskhiladze.

              “Stopped flow of tapes from Russia but not sure if there’s anything else. Just so you know…,” wrote Rtskhiladze, who was involved in a deal with the Trump Organization to build a tower in Batumi, Georgia.

              Last year, Rtskhiladze told Mueller that “tapes” referred to “compromising tapes of Trump rumored to be held by persons associated with the Russian real estate conglomerate Crocus Group,” which had helped host the 2013 Miss Universe Pageant in Russia, according to the report. Trump owned the pageant for years. Cohen told the special counsel’s investigators that he spoke to the president “about the issue” after receiving Rtskhiladze’s text.”

              And this : “Rtskhiladze also told prosecutors that he was told the tapes were fake, but that he didn’t communicate that to Cohen”

              Of course I noted the tape was probably a fake, didn’t I? As I point to above, Steele packaged rumors he got from his Russian sources. In almost all cases the rumors refer to clearly identifiable true events, but are often slightly off-kilter in the retelling. Thus Cohen’s covert trip to Prague to secretly meet with Russian sources becomes multiple covert trips to Moscow to secretly meet with Russian officials. (all during the 2016 election, while Trump was campaigning for president and lavishly praising Putin btw). The pee tape is no different. There existed a compromising tape which included (supposedly) Trump and prostitutes. Michael Cohen negotiated to suppress it through his Russian representative and then reported about the tape to Trump. This was included in Mueller’s report after testimony from Rtskhiladze and Cohen.

              https://nypost.com/2019/04/19/mueller-probed-rumored-existence-of-compromising-tapes-against-trump/

    2. What would the point of faking this memo be when all of this “Pence should reject electors” thing happened right out in the open?

      1. And, Trump is still crying like a baby over Pence’s refusal to follow the plan.

        I don’t understand how Pence can live with himself, not being Trump’s friend anymore. Perhaps he can start following Pompeo around, getting way too close.

    3. No reporting?

      Funny. I read about it, on CNN I think.

      Anyway, a quick google of “DNC lawyer indicted” turns up stories at Forbes, NYT, WaPo, Reuters, ABC news, NBC news, NPR.

      So STFU.

  20. I wonder if Adler, who still suffers from TDS will do if the AZ audit reveals significant fraud, well, besides the 3am vote dumps on caught on video in Georgia after GOP observers were kicked out.

    1. Nothing can be done to change the result after certification and the acceptance of the certified results by Congress. Think of it as a sort of statute of limitations.

    2. Will the AZ faux audit ever be reported? When the report is issued the money stops flowing.

    3. The AZ audit has already screwed up it’s chain of evidence, and all sorts of silly cloak and dagger nonsense.

      Whatever they come up with at this point will make waves only in the right-wing fever swamps.

    4. ” I wonder if Adler, who still suffers from TDS will do if the AZ audit reveals significant fraud, ”

      What, in your judgment, is the likelihood substantial fraud will be revealed, you bigoted, gape-jawed, poorly educated, disaffected, gullible loser?

      Thank you.

    5. well, besides the 3am vote dumps on caught on video in Georgia after GOP observers were kicked out.

      I mean, are you so stupid that you actually believe this, or are you just so dishonest that you are willing to make this claim when it was clearly explained by the Republicans running the state of Georgia that the video does not show any such thing, or anything nefarious at all?

      1. It was clearly confirmed by some of the reporters who also got kicked out at the time, that the observers were telling the truth: They had actually been lied to, “Come back in the morning, when we’ll resume counting.”

        We can argue about what exactly they did after they kicked out the observers, but none of that changes the fact that they did kick out the observers: Don’t let the other guy watch you cut the deck, he’s entitled to think you stacked it.

        1. You’ll have to take up this story with the GOP Georgia election officials who said it didn’t happen. We cannot “argue about what exactly they did after they kicked out [sic] the observers,” because it’s right there on the surveillance tape. We know what they did: continued processing ballots normally. And of course the election was audited multiple times, and everything checked out.

  21. It’s 2024. VP KH excludes results from multiple states where it seems Trump has won, citing disputes from Democrats about the result, and declares the Dem candidate the winner.

    Somehow I suspect most of you, Eastman included, would not find this a fair and legal result.

  22. Well Eastman released a longer version of his “preliminary memo” which doesn’t make him look any better. But so much for Jimmy’s “it’s a fake memo” theory.

    1. Eh, I think it makes him look a little better, because it makes the memo look more like contingency planning based on possible events, than fraud based on lying about events. I’m a bit disturbed that the preliminary version was released as supposedly the final version.

      In fact, Section 1 is a fairly good recap of all the ways election laws were violated last year. The final paragraph justifying the private transmittal of the Trump slates of electors seems a little under-theorized, though.

      Section 2 consists of an argument for the Electoral Count act being unconstitutional. Might make an interesting discussion, but I suspect getting a court to agree after all this time would be tough, and getting them to agree with the consequence that Trump wins? Basically impossible. The consequence of Trump winning caused a lot of courts to refuse to entertain arguments they otherwise might have actually been willing to discuss.

      Section 3 games out various scenarios. Biden wins under most of them. 3c is what the abbreviated memo was about. 3d, essentially, was what January 6th was about obtaining.

      Given the inclusion of various scenarios, the memo starts to look more like analysis than a game plan for fraud, but, again, this hinges on that final paragraph in Section 1, which is, to be kind, undertheorized. I’d like to see his argument there.

      1. Eastman’s memos, short and long, clearly were written after the Electoral College members had met and the certified results were sent to Washington. That’s why the second, longer Eastman memo says that “Because of these illegal actions by state and local election officials (and, in some cases, judicial officials, the Trump electors in the above 6 states (plus in New Mexico) met on December 14, cast their electoral votes, and transmitted those votes to the President of the Senate (Vice President Pence). There are thus dual slates of electors from 7 states.”

        That paragraph isn’t just “a little under-theorized”: its last sentence is flat-out wrong.

        It was, however, basically the same rationale articulated in Gohmert v. Pence, No. 6:20-cv-660 (E.D. Tex.), dismissed for lack of standing.

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