Mike Pence tried “over and over” to find a way to satisfy Trump’s demand that he overturn the election's outcome, ending with a phone call in which even Dan Quayle informed him that he had “no power” to do anything. Legally, Pence’s entire role was to gavel the session into order, listen to the roll call of states reporting their electoral results, and make a formal announcement of the totals. That’s it. The Constitution provides him with no one teeny tiny lever to nudge the outcome in any way.
So precisely what illegal action was it that Trump wanted Pence to take on Jan. 6? Now we know.
CNN has made public a six-point memo from one of the attorneys who represented Trump in his failed lawsuits against various states, John Eastman. Eastman was previously best known for writing an op-ed claiming that, somehow, Kamala Harris was not an American citizen and was ineligible to be vice president. That op-ed was initially run by Newsweek, which then scrambled to issue an apology after other outlets made clear how Newsweek was spreading racism, xenophobia, and lies that the U.S. Constitution doesn’t provide citizenship to the children of immigrants.
In the 2020 election, Eastman met with Pence and Trump in the White House and put forward a six-point plan where some previous speculation over what Trump wanted out of Pence assumed that the goal was to halt the count and turn the process into chaos, allowing Trump to litigate the election before the freshly stocked with conservatives Supreme Court, that turns out not to be the case.
The goal on January 6 was to have Mike Pence declare Trump the winner of the election by simply leaving out seven states. And if anyone objected to that tactic, there was a backup plan for Pence to hand Trump the election through a second route.
Eastman’s plan for Pence was simple: in his role as the president of the Senate, Pence was to call the roll of states normally until he got to Arizona, at which point Pence was to claim “that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States.” Pence was then to repeat this claim for the seven other states that Trump lost but claimed to have won.
When the count was complete, this would mean that only 454 of the electors had been recognized. Pence was then to say that, of this 454, Trump had won 232. So, big smack of the gavel, Trump wins.
Eastman’s memo anticipates “Howls, of course, from the Democrats.” However, Pence was to quiet any howling by moving to elect Trump through another means. That involved declaring that “no candidate has achieved the necessary majority” and taking the 12th Amendment remedy of polling the states by asking for a single vote from each slate of representatives. Since Republicans have a majority of House representatives in 26 states, and they were all expected to fall in line, Trump wins again.
All of this was based on not one but two Big Lies.
First, they required Pence to pretend that there was some question about the outcome in the seven states. There wasn’t. Pence knew there wasn’t. And that undisputed outcome gave President Joe Biden a decisive victory. In fact, Biden’s 306 to 232 victory exceeded Trump’s margin in 2016.
Second, they required Pence to ignore the Electoral Count Act, in effect since 1887, which has no provision for Pence to take any of the actions in Eastman’s memo. When coming to Arizona or any other state, Pence's total options under the Act are to call the name and listen to the results. The whole declaration of “multiple slates,” or the idea that any state could just be set aside, is not allowed.
That was okay, according to Eastman, because Trump’s team believed the 134-year-old law, the law which has governed every election since that of Benjamin Harrison was unconstitutional. In pointing out why he considered the law unconstitutional, Eastman uses the same arguments about how state electors are certified by the governor that had already been rejected in dozens of court hearings.
The goal wasn’t just to turn the Jan. 6 electoral count into chaos—though that certainly would have been the result—but to turn it into chaos while allowing Republicans to walk out of the room claiming that Trump won the election. And to litigate any follow-on action with Trump sitting in the White House.
All of it was illegal as hell. However, it’s not as if there was someone on hand who could have easily said “no.” It’s not as if Nancy Pelosi could have raised her hand, explained the actual law, and seen the Republicans slink away in shame. Republicans in the Senate like Josh Hawley and Ted Cruz came prepared to defend nonsensical claims about Trump’s “victory.” All but a handful of Republicans in the House had already demonstrated that they were on board. There is no doubt that the plan put forward in Eastman’s memo is illegal, unconstitutional, and nonsensical. There’s also no doubt that, had Pence moved to enact even the first step, the results would have been an insurgency inside the House chamber every bit as real as the one boiling up the steps outside the Capitol.
If Eastman seems like he must be some radical character from outside the ranks of the Republican mainstream, he’s not. Eastman is a former clerk for Clarence Thomas, the former dean of Chapman University School of Law (a private law school for those whose primary qualification is having enough cash to pay the tuition—i.e. Hugh Hewitt’s alma mater), and is the founding director of the Center for Constitutional Jurisprudence at the conservative Claremont Institute. Claremont, as The Daily Beast reported in July of 2020, “has arguably done more than any other group to build a philosophical case for Trump’s brand of conservatism.” And what is that case? As Slate explained one month later, Claremont “masquerades as an intellectual salon of the right, but it is really just a racist fever swamp.”
The thing is, both The Daily Beast and Slate are right about this: Claremont is the intellectual center of Trumpism, and it is a racist fever swamp. From the swamp, John Eastman plotted how to overthrow the United States.
And it’s all too easy to see how that might have resulted in Donald Trump, ensconced in the White House, a series of nonsense cases trotted out to a Supreme Court, and an American public left angry and confused at how easily their government fell.
