John Eastman penned a strategy to pressure former Vice President Mike Pence to overturn results of the 2020 election, but before he did, according to a newly unearthed trove of emails, he also advised a Pennsylvania lawmaker to rejigger the state’s count so Republicans would have time to advance Trump’s bogus “alternate” electors.
The Denver Post first reported the development Tuesday and said the records were obtained initially through the University of Colorado. Eastman worked there as a visiting professor while he was simultaneously advising Trump. The Colorado Ethics Institute first demanded Eastman’s emails through a public records request. The Jan. 6 committee has received a copy of the records too, but it is unclear if the panel had this critical correspondence in their possession beforehand.
A representative for the committee did not immediately return request for comment Wednesday.
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According to one email sent to Pennsylvania Republican Rep. Russ Diamond on Dec. 4, 2020, Eastman advised that state lawmakers could have vote totals there reconfigured if they raised concerns publicly about the state’s rules for absentee ballots.
Eastman Emails by Daily Kos on Scribd
There were only four days left until the “safe harbor” deadline arrived for states to certify their electoral results when Eastman sent the proposal. He was under the gun. Once Dec. 8, 2020 came and went, Joe Biden would be effectively cemented into the presidency.
In his proposal, however, Eastman argued that once the state’s popular vote totals were recounted, thousands upon thousands of absentee ballots could be thrown out once they cited data calling the integrity of those votes into question.
Historically, mail-in or absentee voting is overwhelmingly safe and free of rampant fraud. And in the end, all of the legal challenges screeching fraud that were launched by the Trump campaign failed.
But back in early December 2020, Eastman explained to Diamond:
I did not watch the hearings that were held, but I suspect they contained ample evidence of sufficient anomalies and illegal votes to have turned the election from Trump to Biden. If that is the case, you could add another section of factual findings based on the evidence presented at that hearing, and then adopt a resolution that has the Legislature simply affirming what appears to have been the result of the popular voteuntainted by the illegal votes.
... Depending on how many ballots were counted that were received after the statutory deadline (say 10,000 for example's purpose), those 10,000 votes need to be discarded, and you can take the absentee ballot ratio for each candidate in the counties were late-received ballots were illegally counted and deduct the pro-rated amount from each candidate's total.
With this “math” in place, Pennsylvania would give Trump a “significant lead.”
“That would bolster the argument for the legislature adopting a slate of Trump electors, perfectly within your authority to do anyway, but now bolstered by the untainted popular vote” Eastman wrote.
The state lawmaker appeared receptive and more than amenable to Eastman’s advice.
In the Dec. 4 exchange, Eastman even went on to advise Diamond on on how to alter language in a proposed resolution that declared the state’s authority to appoint alternate electors for Trump.
Diamond, Eastman explained, would need to include language in that resolution that stipulated how the slate of electors already certified by the governor were done “under the illegally conducted election.”
This should make them “null and void,” he wrote.
Diamond did not immediately respond to a request for comment by Daily Kos.
In part, and importantly, the emails highlight the evolution of Eastman’s thinking—and the scheming that was in place—as the nation careened toward Jan. 6.
In the early December email, Eastman appeared to accept how the Electoral Count Act legally functions.
He even expressed frustration to Diamond about those Republican lawmakers in Pennyslvania who issued a public letter to Congress announcing their plan to object.
“I do not think the letter to members of your state congressional delegation was helpful,” Eastman wrote. “Our side can object to the slate of electors all they want. An objection, signed in writing by at least 1 member of the House and 1 member of the Senat, results in two houses breaking into their separate chambers to resolve the objection.”
In all caps and partially italicized, Eastman urged:
“ONLY IF both houses then agree to the objection is the slate deemed invalid. If the House doesn’t agree to the objection, as is almost certain here (the vote here being my majority rather than by state, then the objection is not sustained and the slate is counted. See 3 U.S.C. § 15. So don't let your colleagues rest on that letter,” he said. [Link included by Daily Kos, not original.]
Eastman appeared to grasp how the legislation functioned, but he also theorized that it was unconstitutional. And because of that, in the runup to the joint session of Congress on Jan. 6, Eastman didn’t feel the need to heed it.
Instead, the longtime conservative lawyer zeroed in another pathway: the Pence pressure campaign.
According to the six-point memo written by Eastman and first made public by Bob Woodward and Robert Costa in their book, Peril, the strategy was to have Pence declare Trump winner after votes from seven states were thrown out.
There was an understanding, the memo shows, that Democrats would push back and in response, Pence would have to affirm that no candidate had reached the requisite 270 votes in the Electoral College.
This would have kicked it back to the House where each state could get one vote, the memo noted. Republicans controlled the majority of state delegations—26 to Democrats’ 22—so if Pence went along with the scheme, then the majority in the House would be for Trump.
And Trump, despite losing to Biden popularly and through the Electoral College, would be president again.
On Jan. 4, 2021, exactly one month after Eastman and Diamond had exchanged the flurry of emails, Pence met with Trump in the Oval Office.
“You really need to listen to John. He's a respected constitutional scholar. Hear him out,” Trump said to Pence, according to Peril.
When the Jan. 6 committee first subpoenaed Eastman for his records and deposition, he wouldn’t cooperate. They worked around that obfuscation by hitting his employer, Chapman University, with a request for his professional emails.
A legal tug-of-war has continued for months between Eastman and the committee. But in March, long after the judge ordered Eastman to home in on correspondence from Jan. 4 to Jan. 7, 2021, investigators secured a crucial ruling.
U.S. District Judge David Carter found that Eastman and then-President Trump “launched a campaign to overturn a democratic election” and that “their campaign was not confined to the ivory tower.”
“It was a coup in search of a legal theory,” Carter wrote on March 28. “The plan spurred violent attacks on the seat of our nation's government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process.”
Coup in Search of Legal Theory Ruling by Daily Kos on Scribd
The emails released Tuesday included another notable detail: In one message three days after the attack on the U.S. Capitol, Eastman noted that he had “high level meetings” with Patrick Byrne, the CEO of Overstock.com.
At those meetings, Eastman indicated, Byrne shared some of the theories he was exploring to stop the count.
