George Thomas is the Wohlford Professor of American Political Institutions and Director of the Salvatori Center at Claremont McKenna College. Professor Thomas is a regular contributor to The Constitutionalist.
John Eastman was the architect of former President Trump’s plan to get his Vice President to declare him the winner of the 2020 election. The scheme turned on Eastman’s insistence that in seven states there were “dual slates of electors.” But that’s a lie. There were no competing slates of electors in these seven states or in any others. All of the states certified their electoral votes by December 8 and the Electoral College cast those votes on December 14, making clear that Joe Biden defeated President Trump by 306 to 232 electoral votes. Yet Eastman argued that when Congress met on January 6 to count the Electoral College votes, Vice President Pence could discard the certified electoral votes of seven states.
All Pence had to do was act and Trump would remain president. And Eastman argued for Pence’s constitutional authority to act in a six-page memo. Indeed, Eastman’s memo practically screams at Pence to act. You can almost see the spittle coming from Eastman’s mouth as he works himself into a frenzy and channels Trump: “this election was Stolen.” Yet now, the Claremont Institute, the think tank where Eastman is a fellow after ignominiously stepping down as a law professor at Chapman University, is walking back his argument. In a public statement, the institute said Eastman was only offering Pence “legal advice.” Right.
Read the memo.
Eastman begins by arguing that actions in seven states were “illegal” despite the fact that the states certified their electoral votes. He then claims, because these actions were “illegal” in his analysis, that “There are thus dual slates of electors from 7 states.” These supposedly illegal actions were challenged in state and federal courts. A jurist appointed by President Trump, Judge Stephanos Bibas, captured all of this perfectly in a case dismissing Trump’s claims against Pennsylvania: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.” But even if you think Judge Bibas and scores of other jurists were wrong, as Eastman does, no state had submitted a “dual slate of electors.”
This is key. It’s Eastman’s Big Lie. And this Big Lie is the predicate for allowing Vice President Pence to resolve disputed electoral ballots in favor of President Trump. The insistence on dual slates of electors is what gives the Vice President the constitutional authority under the 12th Amendment to set these state certified electoral votes aside. As Eastman argues, there’s “solid legal authority” and “historical precedent” that the Vice President not only counts the votes but resolves any disputed electoral votes. What’s more, Eastman insists, “all the members of Congress can do is watch.”
Break this down. There are no “disputed electoral votes.” None. Eastman has made this up out of whole cloth. And continues to do so. Nor is there legal authority or historical precedent that gives the Vice President the power to resolve disputed electoral votes. But we only get to this question if there are disputed electoral votes. So let me say it again: There are not! Yet Eastman leaps ahead and gives the Vice President the constitutional authority to make the decision no matter what members of Congress happen to think.
And the memo goes on in this vein. In fact, parts of the memo read like an effort to manufacture disputes about the electoral votes, which would give Pence a pretext for setting aside state certified electoral votes that went for Biden.
Here’s Eastman, for instance, on the constitutional process for opening and counting the electoral votes: “VP Pence opens the ballots, determines on his own which is valid, asserting . . . the authority to make that determination under the 12th Amendment.” But the 12th Amendment gives no such authority: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” The certification is done by the states, who then seal the certification and transmit their electoral college votes to the seat of government under the care of the President of the Senate (the VP). The Vice President then opens the certificates and the electoral votes are counted. The Constitution grants no independent authority to determine the legitimacy of the electoral votes to the VP.
Yet Eastman, premised on the lie that there are alternative slates of electors, outlines various scenarios where Pence’s authority effectively determines the election. Pence can discard electoral votes and Trump wins the presidency. Or Pence can say there is not enough evidence to decide between competing electoral slates and the election is thrown into the House of Representatives (where Eastman has Trump winning because there are 26 Republican House delegations, giving him the necessary votes as each state delegation in the House gets a single vote).
But if Pence, in Trump’s words, acts like a “pussy” rather than a “patriot” and just counts the certified electoral votes, Biden wins. Eastman’s memo channels this sentiment; it is the textual embodiment of Trump’s vulgarity, pushing, pleading, bullying Pence to call the election for Trump.
This is more than bad legal advice; it is just what it has been called: a blueprint to undermine a lawful election and unlawfully and unconstitutionally keep a sitting president in power. The memo makes that clear: “The main thing here is that VP Pence should exercise his 12th Amendment authority without asking for permission.” And again: “The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.”
But don’t take my word for it, or Eastman’s, watch him on January 6 “demanding” that Vice President Pence act on his constitutional “authority” and halt the counting of the state certified electoral votes. The mob that descended on the Capitol looking to hang Vice President Pence was urged on by Eastman’s Big Lie.
Yet Eastman’s memo is right about one thing: the future of constitutional self-government in America is under threat. And Eastman is among the insurrectionists.