A newly unearthed memo obtained by CNN, authored by conservative legal scholar John Eastman (whose stellar credits include past leadership of the National Organization for Marriage opposing same-sex marriage), reveals a terrifying plot to use procedural quirks and outrageous “legal” arguments to disrupt, delay, and ultimately destroy the electoral count process in Congress. The memo demonstrates that there was not only a real path to a coup d’état by Trump (or in this case, technically an autocoup—a seizure or unconstitutional consolidation of power from an existing leader), but that the insurrection of January 6th was both in direct reaction to the refusal by Vice President Pence to play along with the scheme and an attempt to achieve by force what could not be achieved by legal artifice.
The memo is in two parts. The first page explains how the Electoral Count Act is supposed to work and why the memo’s author believes it simply could be ignored. The second is a deeply cynical and dangerous six-step plan to upend the normal counting of votes and declare Trump re-elected. The plan called for unlawful and unilateral actions by the Vice President, who is supposed to be nothing more than a ceremonial figure in the official count. If it had rolled out as proposed, the plot would have thrown our country into chaos or even armed conflict, the violent nature of which might have even given Trump justification to remain in power while “restoring order.”
Let’s look closer at the proposed scheme and how it has exposed deep vulnerabilities in our process that need to be addressed immediately.
The Electoral Count Act
The process by which Congress handles the counting of electoral college votes is set out in the Electoral Count Act (ECA) of 1887. That law was enacted ten years after the disastrous election of 1876, when 20 electoral college votes were unresolved because both parties in Florida, Georgia and South Carolina claimed their party actually had won the state. Ultimately, Rutherford Hayes was elected president through a compromise, but the price for those 20 electoral votes included the withdrawal of federal troops from the South, setting off decades of violent repression against African Americans there. To prevent such an electoral mayhem from happening again, the ECA, which ultimately passed after four attempts over ten years to enact it, provides a roadmap for what to do about competing slates of electors, including the manner in which slates could be objected to and how Congress would handle objections.
Eastman’s memo argued that the ECA was itself unconstitutional because it permits the two chambers of Congress, acting separately, to decide whether to sustain or overrule an objection to a state’s electoral slate, with both chambers having to agree by majority vote. Eastman argues that the 12th Amendment to the Constitution requires a joint session of Congress (it does not) and therefore the ECA could have simply been ignored by Pence in his counting of the votes.
This is an astonishing legal sleight of hand. If Pence were to throw out the ECA by unilaterally deciding it was unconstitutional or could simply cherry-pick the parts of it he liked, then essentially the Vice President, who is himself on the ticket, could simply decide who won by changing the rules to his advantage. Never mind that, as legal scholar Derek Muller points out, the 117th Congress had on January 3rd already agreed to be bound by the rules of the ECA in Concurrent Resolution #1–the very first act the new Congress undertook.
The Six-Step Plan to Overturn the Election and Install Trump
The first procedural overreach proposed by Eastman was for Vice President Pence to proceed alphabetically through the states beginning with Alabama then stop at Arizona and declare that it has multiple slates of electors and therefore will be dealt with later. There are two issues with this.
First, it was manifestly not the case that there were two slates of electors from that state or any other. Arizona’s Republican governor (like Georgia’s) had certified the election and sent along the Democratic electors as a slate. That a handful of disgruntled Republicans had met and purportedly decided to “certify” the Republican slate had no legal force or effect. Vice President Pence would have had no basis for even claiming that there were “multiple slates.”
Second, the Vice President has no authority to skip past any states and count only the rest. When a state’s electoral count is announced, the most that anyone in Congress may do under the ECA is object to the actual slate of electors sent—which, to our collective national embarrassment, is in fact what happened. But the Vice President did not have the power to set them aside for a later vote or to declare them invalid.
The next part of the plan was to declare a full seven state slates to be disputed and therefore not part of the official count, giving Trump a majority of those actually approved. This of course also violates the ECA, which is why Eastman needed it to be ignored. Such a move would give the Vice President unprecedented, unconstitutional powers to determine which votes to actually count, in effect handing the election to someone who is also running for that elected office. Were this the rule, there would be nothing stopping Pence, for example, from simply declaring New York’s and California’s votes “disputed” and therefore not part of the electoral count.
But the point of this was not for Pence to actually prevail in the scheme right then and there, but rather to cast enough doubt on the process as to give Trump a kind of “bloodless coup” that relied on a colorable “process” to install him for a second term. In the claimed absence of a majority of electoral votes for any candidate, the memo suggests (incorrectly) that the vote could be thrown to the House of Representatives to vote state by state under the 12th Amendment. Were this to happen, with the GOP-controlled states slightly outnumbering the Democratic-controlled ones, the result would be a House “vote” to re-elect Trump, all with the imprimatur of a normal, lawful process.
As for the Supreme Court, the memo posits that it could punt the question back by ruling it to be a political question that the legislative branch must resolve on its own. After watching a cowardly SCOTUS conservative majority defer to a clearly unconstitutional, vigilante-enforced scheme in Texas to effectively undercut long-standing law under Roe v. Wade, this is not really so far-fetched a scenario.
We now know that Vice President Pence did not immediately discard the idea of going along with Trump’s and Eastman’s unconstitutional scheme to seize power, but rather consulted with others including former Vice President and fellow Indianan, Dan Quayle, who despite his shortcomings was emphatic about the Vice President not having any of the powers set out in the memo. (The very idea that Dan Quayle stands between our Republic and the abyss should give us all pause.)
We also now understand the context for Trump’s public attacks on Pence after he refused to take part in the scheme, a refusal that led insurrectionists to call for his hanging while they attacked the Capitol. The rioters hoped to accomplish what Pence did not: a stalling of the count long enough for chaos to play out and for seditionists to lay a procedural groundwork for a seizure of power.
The January 6th Commission must now investigate all those who participated and plotted around the Eastman plan. Eastman apparently knew that his fate might be sealed should the memo ever come to light; when the Biden Administration waived executive privilege over advisors’ communications around the election and its aftermath, Eastman wrote an angry OpEd with John Yoo (yes, the torture memo guy whose hiring at U.C. Berkeley School of Law I personally fought vehemently against) blasting the waiver as “terrible” and “unconstitutional.”
It appears Eastman had good cause to worry about its release. This was not a legal memo advising on legal options. It was an illegal and horrifying scheme to topple an elected government. Eastman should be sanctioned and lose his license to practice law, a prospect many other “lawyers” in Trump’s circle now face. And Congress must act to prevent perceived weaknesses or procedural or legal loopholes in the ECA from ever being exploited again.