Read Joseph M Bessette’s analysis of the Eastman memos here.
Finally, a serious analysis of the “scenarios” memos I prepared in late December of last year and early January of this year. And yes, there are two memos. The first, a two-page preliminary draft, dealt with only one of the scenarios discussed in the more complete six-page version. Joe Bessette is to be commended for giving them the serious attention they deserve, even though I think he overlooks some significant historical evidence and legal scholarship underlying the various scenarios set forth in the memos, which I address below.
But first, let me correct a couple of factual errors. Relying on news accounts, Bessette states that “the second longer memo was introduced by Eastman two days later (on Monday, January 4) at a meeting in the Oval Office.” That account, although inaccurate, is repeated by Yale Law School Fellow Matthew Seligman in his recent draft article, “The Vice President’s Non-Existent Unilateral Power to Reject Electoral Votes,” available online on the open access research platform SSRN. The second memo was finalized on January 3 and shared only with members of President Trump’s legal team. I did not “introduce it” at the January 4 Oval Office meeting, and to my knowledge, no one else in that meeting had a copy of it, either. This is significant because it vitiates the claim that I provided the memo to Pence in order to advise Pence that he had the authority to unilaterally declare Trump re-elected.
Bessette is mistaken, too, that “the evidence indicates that the [two-page] memo was delivered…to Vice President Pence (or his staff), and, through Pence’s office, to former Judge Michael Luttig.” The only “evidence” for this is that, in his September 21 Twitter thread, Luttig wrote: “I believe(d) that Professor Eastman was incorrect at every turn of the analysis in his January 2 memorandum,” thereby implying with the use of the parenthetical past tense, at least as Bessette reads it, that he had reviewed the memo back in January and disagreed with it then as well. If that was indeed Luttig’s intent, he was re-writing history.
Luttig’s own account of his dealings with Pence’s team in January is contained in Carol Leonnig and Philip Rucker’s book, I Alone Can Fix It: Donald J. Trump’s Catastrophic Final Year, which promotes itself as “the definitive behind-the-scenes story of Trump’s final year in office.” As Leonnig and Rucker recount, Luttig was called about 9 p.m. Eastern time on January 4 by Richard Cullen, a good friend of Luttig’s who was serving as an outside legal advisor to Pence. Cullen told Luttig, “We’ve got an issue. It’s John Eastman…. He’s advising the president that the vice president doesn’t have to accept the electoral college vote.” Luttig’s quoted response: “Now look, John is a brilliant constitutional scholar. Whatever John is telling the president has some basis in the law.” The two spoke again the next morning and Luttig offered to “tweet something,” which Cullen thought would be very helpful in giving “Pence some backup with Trump.” Cullen apparently thought having a statement from Luttig, for whom I once served as a law clerk when he was a circuit judge on the U.S. Court of Appeals for the Fourth Circuit, would give Pence stronger ground to dispute my advice in his discussions with Trump. After Luttig shared his planned Twitter thread with Cullen (who also shared it with Marc Short, Pence’s chief of staff), Cullen told Luttig that “the vice president would appreciate this.” Luttig then tweeted the following thread at 9:53 a.m. Eastern time on January 5:
The only responsibility and power of the Vice President under the Constitution is to faithfully count the electoral college votes as they have been cast. The Constitution does not empower the Vice President to alter in any way the votes that have been cast, either by rejecting certain of them or otherwise. How the Vice President discharges this constitutional obligation is not a question of his loyalty to the President any more than it would be a test of a President’s loyalty to his Vice President whether the President assented to the impeachment and prosecution of his Vice President for the commission of high crimes while in office. No President and no Vice President would—or should—consider either event as a test of political loyalty of one to the other. And if either did, he would have to accept that political loyalty must yield to constitutional obligation. Neither the President nor the Vice President has any higher loyalty than to the Constitution.
Luttig’s assessment is quite clearly not based on any serious study of the constitutional issues involved, the kind of study for which he was famous when serving on the U.S. Court of Appeals. Although he claims that the vice president’s “only responsibility and power” is to “faithfully count the electoral votes as they have been cast” (emphasis added), the only thing clear from the language of the 12th Amendment (and the identical predecessor language in Article II) is that the vice president is to “open” the ballots; the issue of who actually counts them is ambiguous, as the power to count is in the passive voice (“the votes shall then be counted”). As prominent Yale constitutional law professor Bruce Ackerman and George Washington University law professor David Fontana put it a 2004 article, “Thomas Jefferson Counts Himself into the Presidency,” in the Virginia Law Review, “The constitutional text does not speak clearly. It authorizes the Vice-President to ‘open’ the certificates but leaves the extent of his further powers hidden in the passive voice: ‘and the Votes shall then be counted.’” Section 15 of the Electoral Count Act of 1887 provides that four “tellers”—two each from the House and Senate—are to do the counting after the ballots are opened by the vice president.
Ironically, Luttig’s error here unwittingly embraces (implicitly) two of the premises in the scenario addressed in the two-page memo that Bessette believes Luttig was repudiating, namely, “that the President of the Senate [that is, the Vice President] does the counting,” and that by taking a constitutional power away from the vice president, the Electoral Count Act is unconstitutional. Significantly, however, there is no hint in Luttig’s January 5 Twitter thread that he had any knowledge of the memo, and neither is there any suggestion in the “definitive” Leonnid and Rucker account that Luttig had been given a copy of the memo, or that Pence and his team had the memo, or that it contained advice I actually gave to the vice president. Leonnid and Rucker describe the advice I actually gave: “In the run-up to January 6, Eastman had argued that Pence could conceivably object to certification and send electoral votes back to states and force state legislatures to review the votes.” That account is mostly accurate—and if by “force” they mean that Pence’s action would have brought pressure to bear on the state legislatures to address the impact of acknowledged illegality in the conduct of their states’ elections, and by “object to certification” they mean simply delay opening of the ballots, then it is entirely accurate.
Prior Analysis and Evidence
Bessette does correctly note that I have not defended the two-page memo in the two months since it became public. That is because that preliminary memo does not reflect the advice I actually gave to the vice president, as I have noted repeatedly (e.g., “Setting the Record Straight on the POTUS ‘Ask’” at the American Mind). So why does that memo contain the phrase “here’s the scenario we propose”? Because I was asked to prepare a memo articulating how the legal theory underlying the most aggressive claims of vice-presidential power that had been floated would play out in practice. It was for discussion purposes only, and—as the more complete memo makes clear—only one of the scenarios being discussed. As I explicitly stated to Vice President Pence on January 4, and as even the New York Times recently confirmed, I thought that particular scenario was based on the weaker argument about the vice president’s authority under the 12th Amendment. But “weaker” did not mean without some historical and scholarly support.
Each of the points made is grounded in prior scholarly analysis and/or historical evidence, beginning with the claim that there were dual slates of electors from seven states. Luttig asserts in his September 21 Twitter thread that “Eastman was incorrect at every turn…, beginning with his claim that there were legitimate, competing slates of electors presented from seven states.” Bessette describes my claim about dual slates as “deeply problematic.” It is not. As fully explained in the six-page version of the memo, Trump electors from seven states in which election challenges were still pending met (albeit of their own accord) on the date designated by Congress, cast their votes, and transmitted those votes to Congress.
Although both Bessette and Seligman correctly note that they had not been formally certified by any state authority at the time, they stood in exactly the same position as the John F. Kennedy electors in Hawaii in 1960, who likewise met of their own accord on the designated day, cast their votes, and transmitted those votes to Congress. (The electors from Florida, Louisiana, and South Carolina for Democratic presidential candidate Samuel Tilden did the same thing in 1876, meeting on the designated day of their own accord and casting their votes.) When the election challenge in Hawaii was deemed to have determined that Kennedy rather than Richard Nixon prevailed in Hawaii, those electoral votes were retroactively certified and, having met the statutory and constitutional requirements of voting on the designated day, were eligible to be counted at the joint session of Congress (as detailed, for example, in Nathan L. Colvin and Edward B. Foley’s 2010 Miami Law Review article, “The Twelfth Amendment: A Constitutional Ticking Time Bomb”). (I should note, however, that in counting them without the formal concurrence of the House and Senate, acting separately, Vice President Nixon violated Section 15 of the Electoral Count Act of 1887.)
The Pennsylvania Republican Party’s press release about the Trump electors confirms their purpose: “We took this procedural vote [fashioned after the 1960 Presidential election in Hawaii] to preserve any legal claims that may be presented going forward,” it noted, adding: “The conditional resolution [of the electors] states that electors certify their vote for the President and Vice President ‘on the understanding that if, as the result of a final non-appealable Court Order or other proceeding prescribed by law, [they] are ultimately recognized as being the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Pennsylvania.” There is thus nothing “incorrect,” and certainly not “deeply problematic,” about my claim that there were “dual slates of electors from seven states.” It was a factual statement, and entirely true.
An Especially Aggressive Position
Bessette next takes up the claim in the two-page memo (and scenario “c” in the full memo) that, under the language of the 12th Amendment (and its identical precursor language in Article II), the vice president, serving as president of the Senate, has sole authority not only to “open” the electoral votes but to count, and determine the validity of, them as well. This is, as I have said, the most aggressive of the arguments that had been floated for discussion. Long before I wrote my memos, Edward Foley, the director of the Election Law Center at Ohio State University’s Moritz College of Law, called it in an “especially aggressive position” in his 2019 article, “Preparing for A Disputed Presidential Election: An Exercise in Election Risk Assessment and Management,” in the Loyola University of Chicago Law Review. But the argument was not manufactured out of whole cloth. Serious scholars, as well as important historical figures, have made it. Foley himself acknowledged that it has a “significant historical pedigree,” and claimed in his 2010 article co-authored with Nathan Colvin quoted above that “[d]uring the first period, from 1789 to 1821, the power [to count and/or determine the validity of votes] was generally thought vested in the states or the President of the Senate” rather than the two houses of Congress, whether acting together or separately. There is also an important article published in 2002 in the North Carolina Law Review, “Is the Electoral Count Act Unconstitutional,” in which Yale law student Vasan Kesavan wrote, “The Framers clearly thought that the counting function was vested in the President of the Senate alone.” Although Kesavan claims later in the same article that “the best interpretation as a matter of text and the better interpretation as a matter of history [because of the understanding that no one should be judge in his own case] is that the counting function is vested in the Senate and House of Representatives,” he based his initial assertion on several pieces of historical evidence, including:
* The resolution by the constitutional convention transmitting the proposed Constitution to the states for ratification, which dealt with the fact that there would be no vice president serving as president of the Senate for the first election of president: “The Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening, and counting the Votes for President” (emphasis added); and
* Chancellor James Kent, who wrote in his influential Commentaries on American Law (1826-30):
The Constitution does not expressly declare by whom the votes are to be counted and the result declared. In the case of questionable votes, and a closely contested election, this power may be all-important; and I presume, in the absence of all legislative provision on the subject, that the President of the Senate counts the votes, and determines the result, and that the two houses are present only as spectators, to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors.
To be sure, Kent left open the possibility of a legislative override, but Kesavan elsewhere in the same article persuasively argues that “[i]f the counting function belongs to the President of the Senate, the Electoral Count Act is unconstitutional because it vests the counting function in the two Houses of Congress, and under the Constitution, Congress may not strip the President of the Senate of her constitutional duty.” Kesavan cites the 1886 remarks of Senator Henry Wilson in the Congressional Record, who argued that the counting function is vested in the president of the Senate and that the Necessary and Proper Clause “does not confer on Congress the power to assume unto itself the duty which the Constitution imposes on that officer,” and the remarks of Representative Charles Baker, who argued, “If the Constitution…does…by fair implication, vest in the President of the Senate the power and duty not only to open, but also to count, the votes, then Congress can not, by this or any other legislation, take away or transfer to any other person or officer that power and duty.” (See also Michael Stokes Paulsen’s “Someone Should Have Told Spiro Agnew” in Constitutional Commentary , noting that each House of Congress may not use the Rules of Proceedings Clause to strip the vice president of constitutional duties, and Samuel T. Spear’s “Counting the Electoral Votes” in the Alabama Law Journal , in which Spear argues that “[t]he Constitution says that ‘the votes shall then be counted,’ and if this mandate be addressed to the President of the Senate, that ends the question so far as the counting is concerned. The Constitution has then trusted him with the whole power, and any legislation to direct him, would be an impertinent intrusion upon his prerogative.”)
Congress itself, in the law it passed creating a commission to deal with the contested 1876 election, was uncertain of whether it had any authority in the matter. As Colvin and Foley describe it, quoting from J. Hampden Dougherty’s 1906 book, The Electoral System of the United States: “In a doubly uncertain move, Congress gave the Electoral Commission ‘the same powers, if any, now possessed for that purpose by the two Houses acting separately or together.’”
More recently, University of California, Berkeley, law professor John Yoo and University of St. Thomas law professor Robert Delahunty advanced this position in an important article, “What Happens if No One Wins?,” published at the American Mind in October 2020:
We suggest that the Vice President’s role is not the merely ministerial one of opening the ballots and then handing them over (to whom?) to be counted. Though the 12th Amendment describes the counting in the passive voice, the language seems to envisage a single, continuous process in which the Vice President both opens and counts the votes.
The check on error or fraud in the count is that the Vice President’s activities are to be done publicly, “in the presence” of Congress. And if “counting” the electors’ votes is the Vice President’s responsibility, then the inextricably intertwined responsibility for judging the validity of those votes must also be his.
If that reading is correct, then the Electoral Count Act is unconstitutional. Congress cannot use legislation to dictate how any individual branch of government is to perform its unique duties: Congress could not prescribe how future Senates should conduct an impeachment trial, for example. Similarly, we think the better reading is that Vice President Pence would decide between competing slates of electors chosen by state legislators and governors, or decide whether to count votes that remain in litigation.
Ackerman and Fontana advanced a similar position in their 2004 article addressing Thomas Jefferson’s decision to count electoral votes from Georgia in the 1800 election, which, they asserted, were “obviously defective” because they had not been certified by the electors as required by the Constitution and federal statute: “After all, the Constitution delegated to Jefferson, and only Jefferson, an affirmative role in the vote-counting ritual.” And although they view it as “silly,” they note that the Constitution “give[s] the sitting Vice-President a central position in the vote count.” They add that “[t]he fact Jefferson exercised the (textually arguable) authority [to determine the validity of votes] as Senate President on the Georgia matter seems very significant as a legal matter,” and the fact that his determination “might well have made a difference to the outcome…greatly enhances the precedential significance of his ruling.”
To be fair, Ackerman and Fontana note elsewhere in the article that “[t]he constitutional text does not speak clearly. It authorizes the Vice-President to ‘open’ the certificates but leaves the extent of his further powers hidden in the passive voice: ‘and the Votes shall then be counted.’” (They also describe the constitutional text as “painfully inadequate” and characterize it as a “ticking time-bomb” “if a vote-counting problem should arise.”) They ultimately applaud Jefferson for his statesmanship in giving priority to “substance over form”—had Jefferson not accepted the defective Georgia electoral votes, the top five vote getters (rather than just Jefferson and Aaron Burr) would have been referred to the House of Representatives for a decision on who would be president, where it was very likely the lame-duck Federalist majority would have denied Jefferson the election he had clearly won. Ackerman and Fontana accurately explain that Jefferson unilaterally determined to count the defective Georgia votes without pausing to await objections. What’s more, they claim, as a matter of “principle,” that Jefferson “was correct to use his power as Senate President to assure that the vote-counting ritual in Washington corresponded to the true electoral decisions made in the states.”
Who Counts the Votes?
Of course, other scholars have disagreed with the interpretation that the 12th Amendment gives the vice president authority over the counting. Matthew Seligman calls it “gravely wrong” and “extraordinary.” But almost all legal scholars who have written on the subject seem to agree—at least, until the present controversy—that the Constitution’s text on this point is ambiguous. Foley, in his 2019 article, claims that “[t]he procedures for handling a disputed presidential election that reaches Congress are regrettably, and embarrassingly, deficient.” Yet he does concede that “[d]espite its ambiguity, or perhaps because of it, the peculiar passive-voice phrasing of this crucial sentence opens up the possibility of interpreting it to provide that the ‘President of the Senate’ has the exclusive constitutional authority to determine which ‘certificates’ to ‘open’ and thus which electoral votes ‘to be counted.’” He elaborates the basis for such an interpretation in terms very similar to the position taken by Yoo and Delahunty:
This interpretation can derive support from the observation that the President of the Senate is the only officer, or instrumentality, of government given an active role in the process of opening the certificates and counting the electoral votes from the states. The Senate and House of Representatives, on this view, have an observational role only. The opening and counting are conducted in their “presence”—for the sake of transparency—but these two legislative bodies do not actually take any actions of their own in this opening and counting process. How could they? Under the Constitution, the Senate and the House of Representatives only act separately, as entirely distinct legislative chambers. They have no constitutional way to act together as one amalgamated corpus. Thus, they can only watch as the President of the Senate opens the certificates of electoral votes from the states and announces the count of the electoral votes contained therein.
This interpretation of the Twelfth Amendment is bolstered, moreover, by the further observation that the responsibility to definitively decide which electoral votes from each state are entitled to be counted must be lodged ultimately in some singular authority of the federal government. If one body could decide the question one way, while another body could reach the opposite conclusion, then there inevitably is a stalemate unless and until a single authority is identified with the power to settle the matter once and for all. Given the language of the Twelfth Amendment, whatever its ambiguity and potential policy objections, there is no other possible single authority to identify for this purpose besides the President of the Senate….
Thus, according to this argument, the inevitable implication of the Twelfth Amendment’s text is that it vests this ultimate singular authority, for better or worse, in the President of the Senate. Subject only to the joint observational role of the Senate and the House of Representatives, the President of the Senate decides authoritatively what “certificates” from the states to “open” and thus what electoral votes are “to be counted.”
To be sure, Foley is more inclined to the counterargument, that the Article I Necessary and Proper Clause “gives Congress ample legislative authority to fill the gaps and clarify the ambiguities that exist in the text of the Twelfth Amendment itself.” He thinks it “fair to say that [the] counterargument…has had more adherents throughout history than the argument on behalf of exclusive constitutional power lodged in the President of the Senate,” but quickly adds that “it must be recognized that the argument on behalf of exclusive Senate President authority has never been thoroughly vanquished.” Indeed, because the argument “has a significant historical pedigree” and “routinely had its advocates in the years leading up to the disputed election of 1876,” he expected that “Trump and his supporters would almost certainly invoke this argument if and when it was to his advantage to do so.”
In short, there is much more to this dispute than Bessette (or Seligman) claims, and I stand by my statement in both memos that “[t]here is very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes” even though, as explained below, that is not the advice I ultimately gave to the vice president. But if that position is true, then, as Foley and others have acknowledged, no act of Congress—not the resolutions in 1796 and 1800 on which Seligman relies, nor the Electoral Count Act of 1887—can take away powers that the Constitution assigns to the vice president. Bessette’s concern that my discussion of the process in item two of the two-page memo “would be the first break with the procedure set out in the [Electoral Count] Act” therefore begs the constitutional question at issue.
Bessette does make a strong case, as did Pence in his public memo of January 6, that it would be odd for the founders to have given such power to the vice president, knowing full well that he would frequently be a contender for the office. But Pence ignored, and Bessette mentions only in passing, another at least equally strong concern of the founders, namely, that Congress should not have a role in the selection of the chief executive lest that office become subservient to Congress. Vasan Kesavan quotes Senator Charles Pinckney—himself a member of the constitutional convention and of the South Carolina ratifying convention—who forcefully argued in opposition to the 1800 Grand Committee Bill, pushed by Federalists in the runup to the 1800 election in order to prevent Jefferson’s election: “Knowing that it was the intention of the Constitution to make the President completely independent of the Federal Legislatures, I well remember it was the object, as it is at present not only the spirit but the letter of that instrument, to give to Congress no interference in, or control over the election of a President.” The framers “well knew,” Pinckney added, “that to give to the members of Congress a right to give votes in this election, or to decide upon them when given, was to destroy the independence of the Executive and make him the creature of the Legislature” (emphasis added). That concern also explains why Article II assigns plenary power to the state legislatures to determine the manner of choosing presidential electors, and why, under both the 12th Amendment and its predecessor language in Article II, the failure of any candidate to achieve a majority of electoral votes sends the matter to the House of Representatives where the election is determined with each state delegation having one vote, a clear nod to the principle of federalism rather than to congressional authority.
Determining the Validity
Bessette next takes up “the most controversial” paragraph 3 of the two-page memo (scenario c.ii in the full memo), which contains the next procedural step under what I have consistently described as the most aggressive assertion of vice-presidential authority that had been floated for discussion. The analysis provided in that paragraph thus assumes the constitutional authority of the vice president to not only count but to determine the validity of the electoral votes. Bessette finds the paragraph extremely objectionable on two grounds. He thinks that my argument is that the mere sending of alternative elector votes to Congress “alone would be sufficient for the vice president to reject the certified votes from these same states” and then also “to exclude them from the total needed to determine what number constitutes a majority of the ‘electors appointed.’”
As to the first point, that is not the language in the two-page memo, of course, which specifically references “the ongoing disputes in the seven states,” not the mere sending of votes by alternative electors. But even with that correction, the fact that the two-page memo was a preliminary draft of the full memo becomes extremely relevant, because as Bessette himself acknowledges, the complete version specifically mentions that the vice president’s determination is to be “based on all the evidence and the letters from state legislators calling into question the executive certification.” Without that, or alternatively without alternative slates of certified electors, this “most aggressive” scenario would in my view be insupportable even if it otherwise had merit.
As for the second point, this is the issue for which I relied on Harvard Law professor Laurence Tribe’s analysis of what he called “the denominator problem.” Standing alone, I do not think the issue is controversial. If the electors from any state are not appointed, the text of the 12th Amendment compels the conclusion that they are not to be included in the calculation for what constitutes “a majority of the whole number of Electors appointed” (emphasis added). As an aside, Tribe’s claim that I took his argument out of context is nonsensical; I merely applied his constitutional analysis to the different set of facts actually presented—84 electoral votes at issue rather than the mere 20 at issue in his hypothetical. As a further aside, Bessette’s focus on New Mexico is beside the point; I included it merely because there was still-pending litigation in New Mexico and the Trump electors in that state, as in the six other states, had met and voted. But even if New Mexico’s five electoral votes were not deducted, Trump would still have had—with 232 out of 459—a “majority” of the electors appointed.
My main disagreement with Bessette here is his claim that “the seven states at issue did in fact and in law appoint electors” for Biden (my emphasis). This entire dispute turns on the question of whether the electors were legally appointed, and the whole foundation for my memo, and for my ultimate advice, was that they were not, precisely because non-legislative officials in the several states at issue altered or suspended state election law in violation of the Constitution’s Article II grant of that power exclusively to the state legislatures. Remove that foundational premise, and I would not have made the arguments I did. Bessette can’t resolve the dispute by ipse dixit, and he does not try. The next two paragraphs on this point are just so much hand-wringing that presume the very thing in dispute.
Violations of the Rules
Bessette next takes up what he eventually recognizes as the “alternative” scenario in the two-page memo (and which is expressly described as an “alternative” in section c.iii of the full memo), namely, that if neither candidate achieves 270 electoral votes because of disputed votes and, implicitly, if Tribe is wrong about the denominator problem (e.g., if the electors were deemed “appointed” even though the votes were deemed invalid), then the election would, under the 12th Amendment, be thrown to the House of Representatives for resolution, with each state’s delegation getting a single vote and an absolute “majority of all the states shall be necessary to a choice.” Beyond the issue of Pence choosing not to accept certain electoral votes already discussed above, there is really nothing controversial about this added step.
Bessette then turns to the actual advice I gave to Vice President Pence, namely, that he accede to requests from hundreds of state legislators to delay the proceedings to give them a bit more time, now that they were back in session, to assess the impact that the illegal conduct of state election officials had had on the results of the election. Bessette has two main objections to this advice. First, that because I acknowledge in the memo that “we’re no longer playing by Queensbury Rules,” I have somehow violated a fundamental principle of American constitutionalism, namely, that ours is “a government of laws and not of men.” That criticism ignores the context, of course, which is that swing-state elections had been conducted unconstitutionally because the “manner” for choosing electors—state election law—had been deliberately altered or ignored by election officials who had no authority to do so. It was they who had violated “Queensbury rules”—that is, the Constitution—and my memos were aimed at exploring every possible legal option to remedy those violations.
To be sure, the advice that I gave for the vice president to delay the proceedings of the Joint Session of Congress would be contrary to the provision of the Electoral Count Act that the session not be adjourned until its work was completed, but as noted above, a good number of legal scholars have contended that the Act itself is unconstitutional, particularly to the extent it intrudes on powers assigned directly to the vice president by the Constitution. Moreover, it is hard to imagine that a minor procedural provision of a statute should result in certification of a presidential election that was conducted in violation of constitutional requirements. The Supremacy Clause of the Constitution provides that the Constitution, and then only laws “which shall be made in Pursuance thereof,” is the supreme law of the land.
Bessette’s second objection here is a practical one, based on timing: “Note how little additional time this tactic would allow,” he asserts, given that the 20th Amendment to the Constitution mandates that the term for the new president begins at noon on January 20. Given that it took Arizona over five months to conduct a comprehensive audit involving over 1,500 people, Bessette wonders how Republican legislatures could possibly manage the task “in two short weeks.” His concern here is misplaced, for it is not the definitive scope of the fraud (which may be unknowable), but the impact of the illegality that is at issue. One recent example will suffice to explain the point. The sheriff in Racine County, Wisconsin, recently announced that he would be referring criminal charges against county officials who knowingly violated state law and allowed ballot harvesting of votes from mentally incapacitated residents of nursing homes. Added to the illegal “human drop box” ballot-harvesting scheme called “Democracy in the Park,” the illegal suspension of voter I.D. requirements for those absentee voters who falsely claimed to be indefinitely confined, and the illegal curing of absentee ballots, well over 100,000 ballots were affected by the illegal conduct, in a state where Biden’s margin of victory was only 20,682. Given that it would be impossible to determine how those ballots were actually voted, whether Biden or Trump actually won cannot be determined. That means the State “failed to make a choice on the day prescribed by law,” and under Section 2 of Title 3 of the United States Code, “the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
Each of the contested states had similar issues with illegal conduct affecting more votes than Biden’s margin of victory. In Pennsylvania, for example, the secretary of the Commonwealth’s unconstitutional elimination of signature verification requirements resulted in a dramatic decrease from prior election cycles in the number of fraudulent ballots that were discovered and invalidated, from as high as 8% in some counties to a mere 0.28% in 2020, affecting as many as 150,000 ballots on that issue alone—nearly double the Biden margin of victory in that state. Georgia had the same problem, with a non-legislative (and therefore unconstitutional) relaxing of signature and other verification requirements producing a decline in disqualified ballots from 2.9% in 2016 to an anemic 0.34% in 2020, affecting roughly 40,000 ballots, or nearly four times the 11,779 vote margin in the state. Other issues, too, affected these and/or the other swing states of Michigan, Arizona, and Nevada, such as the unlawful transmittal of absentee ballots without request, the unlawful curing of ballots with missing information in order to avoid statutory mandates that such ballots not be counted, the allowance of voter registrations for underage prospective voters before the time permitted by statute, etc. A full audit on the scale of that which was conducted in Arizona was not necessary for the state legislatures to determine that, in light of this illegal activity by state and local election officials, the actual results of the election conducted on election day simply could not be determined, thus triggering the U.S. Code’s contingent authority for the legislatures to act as they saw fit.
Seligman claims that my reliance on that statute is “incorrect,” because in his view, “the Section 2 exception applies only when state law requires a majority winner and the popular election on Election Day yields only a plurality winner.” He made that point during the lengthy podcast I did with him and Harvard Law professor Lawrence Lessig, when I pointed out that even were that the motivating purpose of the section, it would take something more to prove that it was the only situation covered by the language. He offered no evidence then, and his recent draft article also offers no evidence on that score, save for his assertion that he explains it “elsewhere” in an unpublished paper. But even if he has unearthed some evidence to suggest that Section 2 is so limited, the legislatures’ powers under Article II are not. As the Supreme Court acknowledged in McPherson v. Blecker (1892), “there is no doubt of the right of the legislature to resume the power [to appoint electors] at any time, for it can neither be taken away nor abdicated.” Due process concerns might limit the legislature’s ability to appoint electors, after a valid election, merely on the grounds that it did not like the voters’ choice, but when the election itself failed to follow the “manner” that the legislature had set out, those concerns do not (or at least should not) exist.
I do find it disappointing that Bessette references a patently false media narrative claiming I admitted my analysis was “crazy.” That meme is a distortion of a statement I made to John McCormack at National Review. As McCormack’s article makes clear, I was speaking about the notion that Trump would win if the election was thrown to the House of Representatives. In describing that particular scenario, my memo italicized the caveat: “IF the Republicans in the State Delegations stand firm, the vote there is 26 states for Trump, 23 for Biden, and 1 split vote. TRUMP WINS.” What I described as “crazy” was for anyone to expect that all Republicans would stand firm. A single vote, say, from Representative Liz Cheney of Wyoming, whether for Biden or merely to abstain, or a single vote in any state in which Republicans held only a one-vote margin, would prevent Trump from obtaining the constitutionally required absolute majority of states. Nevertheless, what the late Rush Limbaugh used to call the “drive-by media” seized on that statement to claim falsely that I had disavowed my entire analysis as “crazy.” Granted, McCormack invited that distortion by first reporting the “crazy” phrase standing alone, only much later in the article providing the context. But the context is there for anyone to see, and Bessette ought to have been more careful than simply to repeat the distortion.
Principle and Prudence
Finally, Bessette notes that it “pains” him that the Claremont Institute “has…basically circled the wagons” in its defense of me. While I certainly appreciate the Institute’s ongoing support, I would hope that giving me a platform to defend my views is not based on some undue sense of loyalty, for I would neither ask for nor deserve such loyalty if I had sought to overthrow the legitimate government of the United States, as I have been falsely accused of doing. As I have previously noted, trying to prevent illegal conduct from deciding an election is not a “coup.” But the Institute’s full name is the Claremont Institute for the Study of Statesmanship and Political Philosophy. Statesmanship is the political skill of advancing principle to the fullest extent possible given the circumstances. It is central to the argument for revolution contained in the Declaration of Independence:
Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
Fontana and Ackerman make a similar point in their defense of Jefferson’s decision to count Georgia’s electoral votes when “the certificate was illegal on its face.” “Placed in full historical context,” they write, “Jefferson’s decision provokes renewed appreciation for the complexities of constitutional interpretation, with three distinct dimensions salient in the present case: …principle…prudence…[and] pragmatism.” “All in all,” they conclude, “it was not the best moment for a rule of rules unvarnished by principle, prudence, or pragmatism to prevail. By recognizing this, Jefferson provides a glimpse into the meaning of constitutional statesmanship well worth bringing to light after all these years.”
Foley makes a similar point with prescient reference to the very situation we confronted in 2020. He begins by “noting that the strength of any argument against direct legislative appointment of presidential electors may depend heavily on the specific factual context in which such direct legislative appointment is attempted.” If illegal activity by election officials in the conduct of the election was something akin to a cyberattack, he posited, the authority of the state legislature to certify an alternative slate of electors would be strengthened (at least in the eyes of Trump’s supporters). “That [would be] enough for Congress to consider the votes and potentially accept those votes as the authoritative electoral votes” from that state. If both the House and Senate voted to accept the governor-certified Biden electors instead of the legislature-certified Trump electors, that would end the matter “in terms of what the [Electoral Count Act] provides,” he added.
But even then, “as a political matter, the fight may remain unsettled depending on exactly the nature of the Senate’s vote. If only a few renegade Republicans—like Mitt Romney and Lisa Murkowski—joined all the Democrats [in the Senate]” to join the House in accepting the Democratic electors, “Mike Pence might be tempted to assert a constitutional prerogative to supersede the provisions of the Electoral Count Act and, despite this joint agreement of the two congressional chambers, declare the legislatively appointed electors to be the authoritative ones.” Conversely, “if Mitch McConnell leads the Republican-controlled Senate to agree with the Democratic-controlled House that the governor-certified electoral votes from Pennsylvania are the valid ones, it would seem impossible as a practical matter for Pence to prevail on his constitutional claim that he is entitled to overrule this bicameral (and bipartisan) determination of which electoral votes from Pennsylvania to count.”
Granted, the pragmatism Foley describes in his hypothetical appears to be in furtherance of base politics rather than high principle, but it has been my contention all along that in the circumstances that actually unfolded, principle of the highest order—the legitimacy of government based on the consent of the governed—was at stake. It is undisputed that Democratic Party election officials in key swing states altered or ignored state election laws that had been put in place by the state legislatures pursuant to their plenary authority to determine the manner of choosing presidential electors. It is equally undisputed that Democratic operatives even took over county election operations in some key counties in those states. The evidence strongly indicated at the time—and is even more strongly being confirmed as additional time goes by—that that unconstitutional conduct affected the results of the election, that the certification of electors was therefore improper, and that to simply ratify those certifications would undermine rather than uphold the “consent of the governed” principle.
Fontana and Ackerman praised Jefferson for “us[ing] his power as Senate President to assure that the vote-counting ritual in Washington corresponded to the true electoral decisions made in the states.” Because of practical considerations, I advised Vice President Pence that even if he had such unilateral power as had been exercised by Jefferson (a position that I explicitly described as an “open question”), it would be foolish to exercise it absent certification of alternate Trump electors by the state legislatures. But that did not foreclose the more modest path in pursuit of the “consent of the governed” principle for which I advocated, namely, that Pence simply accede to requests from state legislators for time to give their best assessment on what “the true electoral decision” made in their respective states was. I stand by that advice, and remain of the view that had Pence accepted it, he would have demonstrated his own constitutional statesmanship in furtherance of the consent principle to the extent prudently possible. Instead, the wounds that were inflicted by the manifestly illegal conduct of the election, and by the unwillingness of our courts even to address that illegal conduct (and yes, in almost every instance, election challenges were dismissed on technical procedural grounds without the courts ever addressing the significant evidence of illegal conduct that had been presented), remain as raw as ever, foreclosing, or at least forestalling, the healing necessary to bridge the increasingly intractable chasm that divides our fellow citizens. That, to me, is the greatest tragedy of this whole affair.