The Volokh Conspiracy
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The Eastman Memo: Poor Lawyering for a Disreputable Cause (Updated)
An audacious last-minute attempt to undo the results of the 2020 election.
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."
