Everyone on the right end of the political spectrum in command of the facts has a solemn responsibility to call out the outrageous plot to overturn the results of the 2020 presidential election what it was: incredibly frightening.
A newly released memo written by John Eastman, a lawyer who previously worked for President Trump, lists a six-point plan to subvert our Republic. Eastman’s report begins by arguing then-Vice President Mike Pence should reject the election results in seven battleground states on the pretense they submitted competing electors. That is false. Republicans in those states (i.e., Trump loyalists who promoted disproven voter fraud claims) tried to appoint themselves “alternate electors.” They were never designated electors by state officials and had no legal standing to act as such.
Eastman argued that if Pence acquiesced to this step, Trump would have led Joe Biden in the race for electoral votes by a margin of 232-228. Eastman then claimed that Pence had the authority to declare the election results inconclusive. Responsibility for deciding the next president would fall to members of the House of Representatives, or more precisely, a representative from each state’s congressional delegation. Although Republicans were still in the minority following the 2020 elections, they had regained most congressional seats in a slight majority of states. Under those conditions, Eastman believed the House would declare Trump the winner of the presidential election.
Besides being based on lies, another problem here is that Eastman’s argument defies the prevailing interpretation of the Constitution’s role for Congress and the vice president when counting electoral votes. The Washington Post describes how Bob Woodward and Robert Acosta’s new book, Peril, details Utah Republican Senator Mike Lee’s response:
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.
Writing for Reason.com, Jonathan H. Adler adds:
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.
The election results seem in doubt to some of Trump’s strongest supporters because they gorge on unabashedly pro-Trump media like The Gateway Pundit. That conspiracy theory diet doesn’t do the political right any good, even practically. If no one challenges your views, they won’t get stronger in a natural, healthy way. It also becomes harder to understand why others see things differently.
Ideological echo chambers aren’t a new phenomenon. Trump’s victory over Hillary Clinton popped the so-called liberal bubble in 2016. For millions of Hillary voters, the shock of her loss was all more traumatic as they had seen few or no outliers suggesting she was in trouble. Even the Clinton campaign fell victim to fawning press coverage. After the election, the New York Times reported that senior campaign aides began drinking champagne hours before Secretary Clinton lost the election.
Failing to analyze constitutionally dubious behavior exhibited by Trump that fomented an assault on the Capitol Building undermines any future arguments the political right will have against presidents for corrupt and unethical behavior. Moreover, if Pence had acted on Trump’s whims, the United States would have faced a constitutional crisis worse than any since the Civil War.
Presidents of both parties have betrayed the Constitution. Objective defenders of liberty must acknowledge that. Putting blinders on to the actions of one side or the other out of deeply misguided beliefs or partisan calculations threatens the very document that made America exceptional. It won’t be viewed kindly by future generations.
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