Read John C. Eastman’s response here.
In late September, two memoranda surfaced that seemed to outline the plans of former President Donald Trump’s personal lawyers to keep the U.S. Congress from certifying the Electoral College victory of his presidential opponent, Joseph Biden. The election had occurred on November 3, 2020, and within a few weeks all 50 states and the District of Columbia had certified the results. The electors, chosen by popular vote and committed to voting for either Trump or Biden, met in their states on December 14. They cast their ballots and sent the vote tallies to Congress, where they were to be opened and officially counted on January 6, the date specified in federal law. In no case did any public official or public agency send in more than one slate of electors.
As is well known, the president’s supporters raised concerns about widespread vote fraud and the failure of state executive officials (and sometimes state judges) to follow their own election laws. Arguably, such failure violated the constitutional mandate in Article II, Section 1 that presidential electors be appointed “in such Manner as the Legislature thereof may direct.” Even before all the votes were counted, Trump himself insisted that, in fact, he had won a landslide victory. As he put it in a tweet during the January 6 attack on the Capitol, his “sacred landslide election victory” had been “unceremoniously & viciously stripped away.”
The memos at issue were written by John Eastman, then a professor of law at Chapman University in southern California (he has since retired from this position) and also director of the Center for Constitutional Jurisprudence at the Claremont Institute, where he is a member of the Board of Directors and a senior fellow. Eastman is a highly credentialed lawyer who clerked for Justice Clarence Thomas, served as dean of Chapman’s Fowler School of Law, and is past chairman of the Federalist Society’s Federalism and Separation of Powers Practice Group.
I should add that I know him personally, and we have always been on friendly terms. Eastman’s legal and constitutional arguments, made to influence the counting of electoral votes on January 6, must be taken seriously. My aim here is to elucidate those arguments as clearly as I can and to assess their implications. This is, I believe, the most detailed analysis of the memos to date.
As far as I know, Eastman was in no way acting on behalf of, or representing, the Clare-mont Institute (publisher of the Claremont Review of Books) when he joined the Trump legal team in the fall of 2020, prepared the two memos in late December and early January, and, in an Oval Office meeting on January 4, assisted Trump in trying to persuade Vice President Mike Pence to postpone the counting of electoral votes on January 6. This would give state legislatures time to investigate charges of fraud and illegality. Then, if they became convinced that Trump truly had won their states, they would overturn the previous certification of the Biden electors’ votes and, in their stead, certify the votes of Trump electors.
Eastman’s memos have generated enormous controversy. Mainstream media outlets now regularly describe them as a scheme to overturn the lawful results of the 2020 presidential election—the “coup memos,” to use the media vernacular. On CNN’s Inside Politics, for example, host John King said of the first memo to become public that “the goal, outlined in six steps, [was] to have then Vice President Mike Pence throw chaos into the electoral college certification process and find a way to ignore the 2020 election results.” “It’s just scary,” he continued, “scary because of the threat and it’s also lunacy as you read through it.” Both memos have also been criticized in conservative and libertarian outlets such as the Volokh Conspiracy and National Review. It is not my intention here to pile on. Yet, given the controversy they have generated and the importance of the issues they raise about counting electoral votes in contested presidential elections, it behooves us to examine the memos and the positions elaborated therein with some care.
There are, as noted, two distinct memos at issue: a two-page memo and a six-page memo. The first to become public was the shorter one. Apparently, it became known to the media through the publication of Bob Woodward and Robert Costa’s Peril, which recounts the final days of the Trump Administration. The authors had obtained a copy of the memo, and either they or someone else provided it to media outlets. CNN brought the two-page memo to public attention on September 20. Almost immediately after its release, Eastman made known the existence of the longer six-page memo and provided a copy. On the morning of September 21, CNN posted the full two-page memo online. By the end of the day, the network ran a fairly lengthy story describing Eastman’s reaction to the release of the first memo: “Eastman told CNN that the two-page memo had been only a preliminary draft.” The story provided links to both the two-page memo and the six-page memo. Neither memo identifies the addressee, the author, or the date. Both are headed “PRIVILEGED AND CONFIDENTIAL,” followed on the next line by “January 6 scenario.” Eastman has acknowledged that he is the author of both.
According to the account in Peril, Senator Mike Lee of Utah was the principal Republican senator investigating the legal and constitutional issues surrounding the upcoming congressional certification of the presidential vote. Lee has an extensive legal background. Sometime around Christmas, he was put in touch with Eastman, who told him, “There’s a memo about to be developed. I’ll get it to you as soon as I can.” The two-page memo arrived on Saturday, January 2, four days before the scheduled congressional vote. According to the same source, the second, longer memo was introduced by Eastman two days later (on Monday, January 4) at a meeting in the Oval Office attended by Eastman, President Trump, Vice President Pence, and two Pence aides—Chief of Staff Marc Short and counselor Greg Jacob. According to Woodward and Costa’s summary of the meeting, Trump and Eastman sought (unsuccessfully, it turns out) to persuade Pence he had the constitutional authority to “pause the process in Congress so Republicans in state legislatures could try to hold special sessions and consider sending another slate of electors.”
In the first of two interviews that Eastman gave in October to John McCormack of National Review, he asserted that he “never had any dealings with Mike Lee about this at all. I don’t know who gave him a copy of the internal memo.” But in the second interview, after McCormack read him the relevant passages from Peril, Eastman admitted, “I did have a conversation with Senator Lee. But I have no record of having given him either of the two memos.” There seems to be no dispute, however, that Eastman wrote the two-page memo and that Senator Lee received it on January 2. If Eastman did not send it directly to Lee, then presumably he sent it to one or more others who sent it to the senator. (The interviews with Eastman are recounted in “John Eastman vs. the Eastman Memo,” published by National Review on October 22. As the title indicates, McCormack elaborates ways in which Eastman’s current position varies from the contents of the two memos.)
Furthermore, retired federal appellate judge Michael Luttig seems also to have seen the memo by early January 2021, when he advised Vice President Pence that his “only responsibility…[was] to faithfully count the Electoral College votes as they have been cast.” In a series of tweets on September 21, just after the story about the memos broke, Luttig wrote, “I believe(d) that Professor Eastman was incorrect at every turn of the analysis in his January 2 memorandum.” Luttig followed this with a point-by-point rebuttal that closely tracked the recommendations of the two-page memo. Eastman once clerked for Luttig, a highly respected conservative jurist who was on President George W. Bush’s short list for a Supreme Court nomination. Vice President Pence (either personally or through high-level staff) had previously solicited Luttig’s legal and constitutional opinion on the issue. This seems to indicate that Lee, Pence, and Luttig were all in possession of the two-page memo in the leadup to January 6.
Skirting the Question
Before turning to the details of the two memos, it will be useful to review what Eastman has said about the relationship between them. On September 30, the conservative website American Greatness published Eastman’s response to the controversy. This is how he began:
The media-generated controversy over the legal memo I wrote in January (a preliminary, incomplete draft of which was recently made public) outlining the possible scenarios for the certification of the electoral vote is another instance of the press whipping up a frenzy around a false narrative and thereby further undermining its own legitimacy.
The carefully curated snip, lifted from a preliminary draft, showed only one scenario out of the many that had been floated.
Others, defending Eastman’s actions, have reiterated his characterization of the two-page memo released by the press. Ryan Williams, president of the Claremont Institute, wrote in Newsweek on October 1 that “[w]hat the public has seen is a truncated part of a draft version of John’s memo.” (In the same statement, Williams confirmed that Eastman acted in an “independent role as President Donald Trump’s attorney during challenges to the 2020 election.”) And in an article on the American Greatness website on October 2, Roger Kimball, editor of the New Criterion and publisher of Encounter Books, called the two-page memo “a bowdlerized fragment of Eastman’s original memo.”
Although these characterizations of the two-page memo by Eastman, Williams, and Kimball make it appear that the memo was never intended to stand on its own, the evidence indicates that the memo was delivered to Senator Mike Lee, to Vice President Pence (or his staff), and, through Pence’s office, to former judge Michael Luttig. This is reason enough to take its contents seriously. Note also that the memo bears no notation indicating that it is a draft—though it is common practice to include such notation prominently when circulating a preliminary memo for review or comment by others.
In the weeks and months since it became public, Eastman has not defended the contents of the two-page memo, especially its highly controversial recommendation that Vice President Pence gavel Donald Trump the winner at the joint session of Congress on January 6 (more on this below). For example, on September 27, Eastman appeared on the podcast Another Way for a nearly hour-and-a-half long conversation with Harvard Law professor Lawrence Lessig and Matthew Seligman, a legal expert on election law who taught a course with Lessig on disputed presidential elections. There, Eastman explained that the short memo “was just a preliminary version, just done quickly over Christmas day, or Christmas Eve, I think.” Near the end of the conversation, Seligman pressed Eastman on his view regarding the independent authority of the vice president, when presiding over the joint session of Congress, to reject electoral votes unilaterally or to decide among competing slates. Eastman replied that the first memo “was done on a 24-hour turn[-around] over Christmas, and it was only because I was asked that specific question, and I laid out what would happen under it. It was not my advice. That’s why my name’s not on it.” (Anyone interested in the substance of the debate about how to resolve disputed presidential elections should listen to the entire podcast, which is a scholarly engagement of the relevant legal and constitutional issues at a very high level.)
Similarly, in his piece for American Greatness, Eastman wrote that “in my memo I do not even recommend the alternative which they claim I do.” But here he must be talking about the later six-page memo, which indeed makes no formal recommendations. By its own terms, however, the two-page memo doesn’t just list possible scenarios; it recommends a course of action. Moreover, it is not clear what Eastman means when he accuses the press of presenting only “a carefully curated snip” from the two-page memo, since CNN made both memos available in full, word-for-word, within 24 hours of breaking the story. It is true that the press pounced on one particular paragraph (#3 of the two-page memo). But the reason for this will become obvious when we examine the contents of the memos.
In my view, it is not helpful when other conservatives misstate what happened here. It is not correct, for example, to say that “[w]hat the public has seen is a truncated part of a draft version of John’s memo.” CNN posted the entire two-page memo on its website—not “a truncated part” of it—and then linked both memos in a longer story, all within 24 hours or so of breaking the story. It is, of course, a distinct question whether CNN news anchors and commentators (and others) properly interpreted the contents of the memos, or whether they failed to give sufficient attention to the longer memo. But at least we can say this: CNN certainly made it easy to check the originals. Moreover, based on what we now know, the publicly released two-page memo was not “a bowdlerized fragment of Eastman’s original memo.” That description reverses the sequence of the creation of the memos, implying that the longer memo was written first and then “bowdlerized” (by the press?) to give a distorted rendition of Eastman’s argument. I am aware of no evidence to support this interpretation; nor, as far as I know, does Eastman himself make such a claim.
Fortunately, we can examine and assess the memos themselves. Originally communicated as “PRIVILEGED AND CONFIDENTIAL,” presumably because they were legal work produced for a client, they are now in the public domain (Eastman has affirmed that Donald Trump has given him permission to discuss the memos). The memos make claims about the vice president’s authority over certifying electoral votes, and they detail a variety of congressional certification scenarios, some of which (as we will see) would, in effect, allow the vice president to choose the president of the United States. Can the arguments and scenarios in the two memos withstand scrutiny? If not, why not? Are they of any value in guiding us as to how to address, through new law or constitutional amendment, the conundrum we face when statewide vote results are disputed in presidential elections—a conundrum likely to bedevil us for many elections to come in our hyper-partisan political environment?
The Ultimate Arbiter
We start with the two-page memo. As noted above, the memo, lacking an addressee, designated author, or date, was titled “January 6 scenario.” The first (single-sentence) paragraph reads: “7 states have transmitted dual slates of electors to the President of the Senate.” As many commentators have pointed out, this assertion is itself deeply problematic, for in no state did any public official or agency (including any chamber of a state legislature) send to Congress the votes of more than a single slate of electors. Though the memo neither names the seven states nor explains what it means by “dual slates of electors,” this information is provided in the subsequent longer memo. There we learn that the states are Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin. Altogether, these seven states cast a total of 84 electoral votes for Biden. Had Trump won an additional 38 electoral votes from some combination of these states, he would have achieved a majority in the Electoral College and been re-elected.
What, then, does the author mean when he says that these states “transmitted dual slates of electors to the President of the Senate”? Simply this (from the longer memo): “Because of…illegal actions by state and local election officials,” Trump electors in these states “met on December 14, cast their electoral votes, and transmitted those votes to the President of the Senate (Vice President Pence). There are thus dual slates of electors from 7 states.” Although in most of these states the popular vote for president was closely divided, this was hardly the case in New Mexico, where Biden won 54.3% of the popular vote to Trump’s 43.5%, or a margin of slightly under 100,000 out of 923,965 votes counted.
The second paragraph of the two-page memo has two sentences. The first quotes one provision of the 12th Amendment: “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” The 12th Amendment did change the presidential vote process by dividing up the votes for president and vice president (rather than awarding the office of vice president to the second-place finisher in the presidential vote). But the particular language cited in the memo is identical to that in Article II, Section 1 of the original Constitution. Neither the Constitution of 1787 nor the 12th Amendment says anything about what happens if there are dueling slates of electoral votes from a state, or if there is any reason to believe that the votes sent to Congress are defective in form or in some way inaccurate. In such cases, who decides?
The vice president, serving as president of the Senate, opens the votes, which “shall then be counted.” Does this make the vice president the ultimate authority as to which votes count in contested cases, or does the passive voice (“shall then be counted”) imply that the legislators do the actual counting? The two-page memo sides with the vice president: “There 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 (as [John] Adams and [Thomas] Jefferson did while Vice President, regarding their own election as President), and all the Members of Congress can do is watch.” Lest there be any ambiguity, the penultimate sentence of the memo asserts that when there is a dispute about electoral votes, the Constitution makes the vice president “the ultimate arbiter.”
In neither this memo nor the longer one does Eastman elaborate the nature and relevance of the Adams (1796) and Jefferson (1800) precedents. In neither case, however, were there dueling slates of electoral votes from any state. In 1796, newspapers had raised questions as to whether Vermont’s four electors had been lawfully selected. In 1800, the four Georgia electors did not follow the proper form for certifying their votes. Vice President Adams presided over the joint session in 1797, opened the sealed envelope with the Vermont votes, and then turned it over to the congressionally appointed “tellers” to be counted. After this process had been followed for all the states, the tellers reported the results to Adams, who then announced his own victory. This was repeated with Jefferson and the Georgia votes four years later. In neither case did a single legislator in attendance object, and no one doubted that Vermont had voted for Adams in 1796 and Georgia had voted for Jefferson in 1800.
In 2004, David Fontana and Bruce Ackerman presented the results of their extensive research on these two episodes in a lengthy article for the Virginia Law Review. Drawing upon this work and additional research of his own, Matthew Seligman (one of the interlocutors in the podcast mentioned above) has recently argued persuasively that the dominant view among early American lawmakers was that Congress, not the vice president as president of the Senate, was responsible for counting the electoral votes—and therefore that the House and Senate had full authority to determine how to resolve electoral disputes. Seligman presented a short version of his argument at Slate on October 22 (“John Eastman Is Right: His Election Memo Was ‘Crazy’”). He also posted a draft of a longer, scholarly article on the same topic: “The Vice President’s Non-Existent Unilateral Power to Reject Electoral Votes.”
Although there is no explicit constitutional rule for how to resolve disputes about electoral votes, Congress tried to fill this gap in 1887 when it passed the Electoral Count Act, a decade after the presidential election of 1876, which saw three Southern states submit to Congress contesting slates of electoral votes. (There was also a dispute about one elector from Oregon.) Eastman’s initial memo introduces a lengthy excerpt of the relevant portion of the act by stating, “[t]he Electoral Count Act, which is likely unconstitutional, provides:….” Following the excerpt is a short paragraph indicating why “we believe [this part of the Act] is unconstitutional.” It gives two reasons: 1) the Act provides for each house of Congress to vote separately on disputed electoral votes “whereas the 12th Amendment provides only for a joint session,” and 2) it makes the “executive” of the state the final authority “regardless of whether there was ever fair review of what happened in the election, by judges and/or state legislatures.”
The next paragraph begins, “So here’s the scenario we propose:” After this come six numbered paragraphs. In the first, the vice president, presiding over the joint session as the president of the Senate, “begins to open and count the ballots.” In effect, then, the memo interprets the key phrase from the 12th Amendment—“open all the certificates and the votes shall then be counted”—as equivalent to the phrase: “open all the certificates and count the votes.”
The memo’s second paragraph stipulates that when the vice president, going through the states in alphabetical order, gets to Arizona, “he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States. This would be the first break with the procedure set out in the Act.” Note that here the vice president has made two momentous decisions: 1) that the votes for Trump sent in by his 11 proposed Arizona electors, though not endorsed or certified by any public official or agency in the state, constitute an alternative “slate of electors,” and 2) that the vice president need not follow the provisions of the Electoral Count Act governing contested slates of electors—that is to say, the vice president may unilaterally choose to treat the Electoral Count Act as unconstitutional.
Throwing Out Votes
It is the next paragraph (#3) that is the most controversial. Here it is in its entirety:
At the end [of the roll of the states] he [i.e., Pence] announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed”—the language of the 12th Amendment—is 454 [as opposed to the 538 potential votes in the current Electoral College]. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe [here the memo links to a September, 2020 article in Verdict co-authored by Tribe with fellow legal scholars Neil Buchanan and Michael Dorf]. A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.
We must be clear on exactly what the memo here recommends. If, in states where the authorities certified Biden’s victory, any group of proposed Trump electors sent their “votes” to Congress, this 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.” Thus, even though the seven states at issue did in fact and in law appoint electors who then voted for Biden on December 14, those votes will be treated as if never cast at all. Given the current size of the House of Representatives (435) and Senate (100), and including the District of Columbia’s three electoral votes, the total number of electors is 538. A majority is 270. But if you eliminate the 84 electors from the seven states in question, you get a total of 454 electors, reducing the majority to 228. Because Trump received 232 uncontested votes, he would have a majority and Pence would declare him the winner. Under this scenario, even New Mexico’s five votes for Biden would not be counted, despite the fact that in the state’s official count of under a million votes cast, Biden received 100,000 more votes than Trump. Has anyone suggested that Trump “really won” the popular vote in New Mexico? Has even Trump made such a claim?
It is hardly a surprise that this paragraph set off alarms in the media, and has been the focus of intense criticism from legal scholars and others. What is the principle here—that whenever proposed electors from a state which the other side officially won meet on the designated day, vote for their candidate, and send in their “votes” to Congress, the vice president on his own authority may simply refuse to count the officially certified votes from enough of these states to give the victory to the vice president’s preferred candidate—who could, of course, be the vice president himself or herself? If that’s the principle, then, of course, in the future proposed delegates from all the states that the other side won in the certified vote will send in their “votes” to Washington so that the vice president can, in effect, choose the next president. One doesn’t have to be a scholar of the American Founding, a professor of constitutional law, or an expert in election law to know that this simply cannot be right.
Or perhaps the principle is that whenever two slates of electoral votes from the same state show up at the vice president’s office, even if one lacks certification from any public official or agency, the vice president must automatically reject all the certified votes from that state, no discretion necessary. In that case, we would soon have no electoral votes at all counted in the joint session, sending every presidential election to the House. At the Philadelphia Convention in 1787, the framers grappled for days with how the new chief executive should be elected. In the end, they rejected election by Congress because of the danger that this would render the president subservient to the legislative body. So, under paragraph #3 of Eastman’s two-page memo, either 1) the vice president must reject the certified votes from all states in which the losing side sends in its own votes, thereby throwing every presidential election into the House of Representatives; or 2) the vice president gets to pick and choose which certified votes to count, making him the ultimate kingmaker—even if he is the one who gets to wear the crown.
Perhaps because this proposal is simply untenable, the memo does not stop here. Although paragraph #3 ended with Pence gaveling Trump’s victory, the fourth paragraph draws back: “Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House,” where each state gets one vote. The memo then notes that if Republicans in the House stand firm, their control of 26 state delegations will assure Trump’s victory. (Laurence Tribe, a prominent liberal law professor and practicing attorney, now retired from Harvard Law School, is mentioned by name in each of the final four paragraphs. No other academic or legal expert is mentioned in the memo.) It is hard to know what to make of the transition from paragraph #3 to paragraph #4. Could Pence decide the matter at one point—“Pence then gavels President Trump as re-elected”—and then in the face of “[h]owls…from the Democrats” immediately reverse course and, instead, send the case to the House of Representatives so that it can choose the President? Though the memo presents these two scenarios sequentially, perhaps it is better to think of them as two distinct alternatives available to Pence if he simply ignores the Electoral Count Act.
Paragraph #5, by contrast, assumes that “the Electoral Count Act is followed” in its requirement that when legislators object to electoral votes in the joint session, “the two houses break into their separate chambers.” But the memo also requires Congress not to follow the Act’s time constraints on debate: “That would mean that a prior legislature was determining the rules of the present one—a constitutional no-no.” This would allow Republican senators to insist on “normal rules (which includes the filibuster).” A Senate filibuster would create “a stalemate that would give the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.” This is the first time the memo mentions the possibility of state legislatures “formally endors[ing]” pro-Trump Republican electors in states that had previously certified Biden’s victory.
But note how little additional time this tactic would allow. Under the 20th Amendment to the Constitution, the terms of the president and vice president end at noon on January 20—exactly two weeks after the joint session. Would the Republican legislatures in these crucial swing states conduct a hurried investigation to learn who “truly won” their state, or would they simply assert that Trump had won and certify the votes of his electors? In Arizona, it took five months to conduct a comprehensive audit of the presidential vote in a single large county, Maricopa (which includes Phoenix). According to the final audit report, the process “involved over 1,500 people who contributed a total of over 100,000 hours of time.” At the end, both sides claimed victory. Democrats (and Republican election officials) noted that the final vote count was virtually identical to the initial certified results. Meanwhile, Trump and his supporters emphasized that the audit disclosed a large number of potential vote problems—such as mail-in ballots from people who no longer lived at the specified address, people who voted in multiple counties, and people who no longer lived in Maricopa County. According to Trump, this demonstrated “fraud many more times than the so-called margin of ‘victory,’ which was only 10,457.” If such a massive five-month post-election audit in one county of one state could not determine that Biden’s victory was fraudulently obtained, why should we expect that state legislatures could reach definitive conclusions, one way or the other, in the two short weeks between January 6 and January 20?
Here the scenarios in the two-page memo end. The final paragraph emphasizes the vice president’s independent authority to make the key decisions. It begins, “The main thing here is that Pence should do this without asking for permission—either from a vote of the joint session or from the Court.” If Democrats challenged the vice president’s actions in court, the case would likely be dismissed as involving “non-justiciable political questions.” The paragraph, and the memo, concludes: “The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.”
In total, then, the memo presents three distinct scenarios, apparently ordered from most controversial to least. In the first, Pence declares Trump the winner. In the second, he sends the matter to the House of Representatives, where the Republican hold on 26 state delegations should ensure a Trump victory. In the third, he allows the dispute procedures of the Electoral Count Act to begin, but then ignores key time limits in the Act so that a resulting stalemate between the chambers gives state legislators time to endorse the votes of Trump electors in states that had previously certified the votes of Biden electors. The memo does not explain what would happen after this—whether the vice president would rule that any subsequent endorsements by the legislatures would supersede the prior endorsements by governors or other executive officials, or whether Congress would make this decision. Nonetheless, it is fair to say that by its insistence that the vice president is the “ultimate arbiter” and that “[w]e should take all of our actions with that in mind,” the memo strongly implies that if state legislatures certified the votes of alternative Trump electors, the vice president would count them at a reconvened joint session.
The vice president, according to this two-page memo, has vast independent powers over the certification of electoral votes. He may ignore federal law by disregarding officially certified votes if the electors pledged to the losing candidate simply meet and send in their own votes (even if the certified victor won by a comfortable majority, as in New Mexico in 2020). When he does so, he may exclude the certified votes from the total used to calculate a majority (in effect removing these votes from both the numerator and the denominator), thus reducing the absolute number of votes required for victory. Alternatively, he may keep the excluded votes in the denominator, denying the apparent winner a majority of all the electoral votes (currently 538), thereby sending the dispute to the House of Representatives for final resolution. Or, if he rejects these options, he may decide to follow some, but not all, of the provisions of the Electoral Count Act, potentially leading to a stalemate, thereby giving time for state legislatures to endorse the votes of competing slates of electors. As the “ultimate arbiter,” the vice president seems to have unfettered discretion to choose among these various options.
The Six-Page Memo
As noted above, as soon as the two-page memo became public on September 20, Eastman described it as only a “preliminary draft” and provided the longer six-page memo. According to Peril, this longer memo was the basis for the Oval Office meeting on Monday, January 4. In his interviews with John McCormack of National Review, Eastman reported that the final six-page memo was drafted on January 3 and that the memos “were not part of our discussion on January 4, but the ideas certainly were.” We don’t know from Peril or (I believe) from Eastman himself to whom he submitted the longer memo or how extensively others may have circulated it.
The six-page memo has four sections. Preceding these sections is a short paragraph that begins, “Article II, § 1, cl. 2 of the U.S. Constitution assigns to the legislatures of the states the plenary power to determine the manner for choosing presidential electors” (emphasis in the original). Next comes a nearly two-page section on “[i]llegal conduct by election officials.” It begins by asserting that “important state election laws were altered or dispensed with altogether in key swing states and/or cities and counties.” It then lists examples of such violations of state law in Georgia, Pennsylvania, Wisconsin, Michigan, Arizona, and Nevada. For four of these states, the memo details at least three purported violations of state law by executive or judicial officials. Only one violation is alleged in each of the remaining two states: a federal court decision to shorten Arizona’s requirement for voters to register within 29 days of the election, and Nevada officials’ decision to allow machine inspection of signatures as opposed to human inspection. There is, however, no mention of any supposed illegal actions by officials in New Mexico, which Biden won handily. The section concludes: “Because of these illegal actions by state and local election officials (and, in some cases, judicial officials[),] the Trump electors in the above 6 states (plus in New Mexico) met on December 14, cast their electoral votes, and transmitted those votes to the President of the Senate (Vice President Pence). There are thus dual slates of electors from 7 states.”
The next section is titled, “The Constitutional and Statutory Process for Opening and Counting of Electoral Votes.” It repeats the language in the first memo from the 12th Amendment about the president of the Senate (i.e., the vice president) presiding over the joint session of Congress for the official count of electoral votes. It follows this with the same language from the two-page memo on the vice president’s authority: “There 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 (as Adams and Jefferson did while Vice President, regarding their own election as President), and all the Members of Congress can do is watch.”
Next comes the same lengthy excerpt from the Electoral Count Act as appeared in the previous memo, introduced with the same statement that “[t]he Electoral Count Act of 1887…is likely unconstitutional.” Following the excerpt is virtually the same summary paragraph explaining why “we believe [this part of the Act] is unconstitutional.” The one difference is that the longer memo adds this sentence: “That also places the executive of the state above the legislature, contrary to Article II.” This refers to the provision of the Electoral Count Act that makes the electoral votes certified by the “executive” of the state the ones to be counted if the House and Senate disagree. This, then, appears to link back to the very opening of the six-page memo: “Article II, § 1, cl. 2 of the U.S. Constitution assigns to the legislatures of the states the plenary power to determine the manner for choosing presidential electors.” In a dispute over electoral votes between the executive of a state and its legislature, it is the lawmakers who retain the decisive constitutional authority.
These two sections fill the first three pages of the memo. Section III, which fills nearly all of the next two pages, is titled “War Gaming the Alternatives.” It details nine different possibilities. In five of these Biden wins, and in four Trump wins. In the first scenario, no one objects to the electoral votes previously certified by state authorities, and Biden wins. In the next three scenarios, legislators object to the ballots received from “the 7 states with multiple ballots” and, following the terms of the Electoral Count Act, “[t]he two bodies adjourn to their separate chambers and decide which slate of electors to count.” In the first of these three scenarios the House and Senate vote for the Biden electors. In the second, the two houses disagree, but because the Electoral Count Act privileges votes certified by the state’s executive, Biden wins. In the third, there is a Senate filibuster, which eventually ends, and, following one of the previous two scenarios, Biden wins.
The next three scenarios, in all of which Trump emerges the victor, are preceded by the following language: “VP Pence opens the ballots, determines on his own which is valid, asserting that the authority to make that determination under the 12th Amendment, and the Adams and Jefferson precedents, is his alone (anything in the Electoral Count Act to the contrary is therefore unconstitutional).” This was the position urged in the two-page memo.
The first of these three scenarios rests on the condition that at least some state legislatures (not merely some legislators) have certified the votes of Trump electors, in opposition to their state’s prior certification of the votes of Biden electors:
If State Legislatures have certified the Trump electors, he counts those, as required by Article II (the provision of the Electoral Count Act giving the default victory to the “executive”-certified slate therefore being unconstitutional). Any combination of states totaling 38 elector[al] votes, and TRUMP WINS.
The next scenario assumes that the state legislatures have not so acted:
If State Legislatures have not certified their own slates of electors, VP Pence determines, based on all the evidence and the letters from state legislators calling into question the executive certifications, decides [sic] to count neither slate of electors…. At the end of the count, the tally would therefore be 232 for Trump, 222 for Biden. Because the 12th Amendment says “majority of electors appointed,” having determined that no electors from the 7 states were appointed (a position in accord with that taken by Harvard Law Professor Laurence Tribe…), TRUMP WINS. [Emphasis in the original.]
This is quite similar to paragraph #3 of the two-page memo. The difference is that here the vice president first weighs “all the evidence and letters from state legislators” before ruling that no electors were appointed in the seven states at issue. In the earlier memo, the mere fact that Trump’s electors met and sent in their votes was sufficient for Pence to refuse to count the certified Biden votes for the seven states, thereby dropping 84 electoral votes from both the numerator and the denominator needed to calculate the majority winner. This scenario does not mention the possibility that Pence might decide differently for different states, creating the possibility that Biden might win a majority even under the new count.
The third scenario is effectively identical to paragraph #4 of the two-page memo:
Alternatively, VP Pence determines that because multiple electors were appointed from the 7 states but not counted because of ongoing election disputes, neither candidate has the necessary 270 elector[al] votes, throwing the election to the House. 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. [Emphasis in the original.]
Note both 1) that in this scenario the mere fact that potential electors pledged to Trump met on December 14 and sent their “votes” to Congress is sufficient for Pence to reject the certified electoral votes received from their states and 2) that here the denominator for calculating a majority remains 538, the total set by the Constitution given the current size of the House and Senate.
The final two scenarios presume that “VP Pence determines that the ongoing election challenges must conclude before ballots can be counted, and adjourns the joint session of Congress, determining that the time restrictions in the Electoral County [sic] Act are contrary to his authority under the 12th Amendment and therefore void.” Subsequently, “state legislatures convene, order a comprehensive audit/investigation of the election returns in their states, and then determine whether the slate of electors initially certified is valid, or whether the alternative slate of electors should be certified by the legislature.” (As noted above, it seems wholly unrealistic to believe that a state could complete a “comprehensive audit/investigation” of its election returns in the two weeks before Trump’s term ended on January 20.) In so doing, Eastman argues, a legislature “exercise[s] authority it has directly from Article II and also from 3 U.S.C. § 2 [which allows a state that ‘failed to make a choice on the day prescribed by law’ to appoint its electors ‘on a subsequent day’].” In one scenario, the investigations do not prove sufficient “fraud and illegality” to change the results: “BIDEN WINS.” In the other scenario, at least some state legislatures become convinced that “there was [sic] sufficient fraud and illegality to affect the results of the election.” These legislatures “certif[y] the Trump electors.” Then, after the joint session of Congress reconvenes, “those votes are counted and [if this results in Trump winning at least 270 electoral votes] TRUMP WINS.”
The final short section IV has this heading: “BOLD, Certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules, therefore.” What follows are two short paragraphs. The first reproduces the final paragraph (#6) of the two-page memo:
The main thing here is that VP Pence should exercise his 12th Amendment authority without asking for permission—either from a vote of the joint session or from the Court. Let the other side challenge his actions in court, where Tribe (who in 2001 conceded the President of the Senate might be in charge of counting the votes) and others who would press a lawsuit would have their past position—that these are non-justiciable political questions—thrown back at them, to get the lawsuit dismissed. The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.
The memo then concludes:
I have outlined the likely results of each of the above scenarios, but I should also point out that we are facing a constitutional crisis much bigger than the winner of this particular election. If the illegality and fraud that demonstrably occurred here is [sic] allowed to stand—and the Supreme Court has signaled unmistakably that it will not do anything about it [sic]—then the sovereign people no longer control the direction of their government, and we will have ceased to be a self-governing people. The stakes could not be higher.
Recall that although Eastman has virtually disavowed the two-page memo, he has not distanced himself in the same way from its sequel. Nonetheless, in calling the first memo a “preliminary draft” of the second, he implies some kind of organic continuity between the two. So, in what ways does the second memo repeat, or reinforce, the key points of the first memo, and in what ways does it vary?
Here are the ways in which the second memo is similar to the first:
- it asserts that there are “dual slates of electors” from seven states, even though no official person or agency had certified the votes of more than one slate;
- it claims that key provisions of the Electoral Count Act of 1887 are “likely unconstitutional” or simply “unconstitutional”;
- it basically repeats the two most controversial scenarios—one in which Pence declares Trump the victor by dropping all the Biden votes from seven states, and another in which Pence sends the matter to the House by dropping these Biden votes—and
- it emphatically makes large claims for the vice president’s authority under the 12th Amendment—that he resolves disputes over electoral votes, that “all the Members of Congress can do is watch,” that the vice president should exercise his authority “without asking for permission,” and that the vice president is the “ultimate arbiter” of matters pertaining to contested electoral votes.
And here are ways in which the second memo differs from the first:
- it details the ways in which public officials in six states did not follow their own election laws;
- it lists nine distinct alternatives for how the vote count might proceed, including five in which Biden wins;
- unlike the two-page memo, which explicitly proposes a course of action, it makes no formal recommendations;
- it essentially asserts that a state legislative certification of electoral votes supersedes a prior executive branch certification;
- it includes the provocative statement that “we’re no longer playing by Queensbury Rules”; and
- it concludes by asserting that the nation is “facing a constitutional crisis” and that if the certified results of the November presidential election are not overturned, “we will have ceased to be a self-governing people.”
Eastman’s Written Response
Since the longer memo includes all the key elements of the first memo, it would be helpful if we knew which substantive claims in the first memo Eastman now disavows when he says, as in the Another Way podcast, “It was not my advice.” Yet, in the piece he published on the American Greatness website on September 30, he simply ignored the two-page memo. As for the longer memo, here are six key passages from Eastman’s description of it for American Greatness, with my comments after each selection:
- “[I]n my memo I do not even recommend the alternative [paragraph #3 of the two-page memo] which they claim I do.”
Eastman refers here to “my memo,” implying that there was really only one—the second, which grew out of the earlier “preliminary draft.” But the first memo, as we have seen, unambiguously recommends the course of action Eastman refers to here: Pence rejects 84 electoral votes from seven states, excluding these votes from both the numerator and denominator and “gavel[ing] President Trump as re-elected.”
- “Each of the scenarios I presented was grounded in constitutional text and supported by scholarly writings or prior judicial precedent. They were presented to serve as the basis of a full discussion of all the options available to our elected leaders, premised on the assumption of proven electoral fraud or illegality.”
This wording makes clear that the four scenarios in the six-page “legal memo” (this is how Eastman labels the document at the beginning of the article) were not presented as merely hypothetical things that might happen on January 6, but rather as legitimate constitutional options available to the vice president: “grounded in constitutional text and supported by scholarly writings or prior judicial precedent.” Eastman adds that these options were “premised on the assumption of proven electoral fraud or illegality.” Is this true? It is for the first and fourth “Trump wins” scenarios, according to which state legislatures certify Trump electors—assuming, of course, that the legislatures sincerely conclude that fraud and illegality resulted in Biden’s initial win. But what of the second and third Trump-victory scenarios? In the second, the state legislatures “have not certified” Trump electors, and the vice president on his own reviews the evidence and letters from state legislators (presumably between January 4 and 6). He then decides at the joint session to count neither the Biden nor Trump electors, which results in a Trump victory by discounting 84 electoral votes altogether (essentially the paragraph #3 scenario of the first memo).
Given the sheer complexity of the charges of fraud and illegality—pressed by Trump’s lawyers unsuccessfully for several months throughout the key swing states—is it reasonable to characterize a judgment by Pence in Trump’s favor, reached by reviewing evidence from six or seven states over two days, as proof of “electoral fraud or illegality” sufficient to flip the results? Surely not. Finally, in the third of the pro-Trump scenarios—where Pence simply sends the matter to the House of Representatives for a state-by-state vote for president—there is no assumption or finding of fraud or illegality at all, just a determination by Pence that “multiple electors were appointed from the 7 states” and “not counted because of ongoing election disputes.” And this is despite the fact that no public official or agency in these states had certified any electoral votes other than those for Biden.
- “Ironically, the scenario I actually recommended to Vice President Mike Pence was that he accede to requests from numerous state legislators, including the president pro tempore of the Pennsylvania state senate, to delay the proceedings long enough for the legislatures in the contested states to assess the impact of acknowledged illegality in the conduct of the election.”
This is the fourth (and final) of the scenarios that would result in Trump’s re-election (assuming that a sufficient number of state legislatures certified Trump electors). Eastman maintains that this is what he actually recommended to Pence, presumably at the Oval Office meeting on January 4. Woodward and Costa confirm this. For whatever reasons, however, the six-page memo does not recommend this course of action, because it makes no formal recommendations at all.
- “Indeed, I explicitly stated to Pence during an Oval Office meeting on January 4 that even assuming he had constitutional authority to reject contested electoral votes, it would be ‘foolish’ to exercise any such authority in the absence of the state legislatures actually having certified the alternate Trump slate of electors.”
Here Eastman makes a prudential judgment that it would be “foolish” for Pence to reject the “contested electoral votes” without state legislative certification of Trump electors. Though this contradicts the course of action recommended in the previous two-page memo, one can hardly fault the author for changing his mind between January 2 and 4, if this is what happened. Note also that this prudential judgment in no way undermines the holding in both memos that Pence had the constitutional authority to throw out Biden votes without any new state legislative action.
- “The memo’s proposals aimed to prevent certification of a potentially illegal election—and this is what the [media blood]hounds call ‘overturning the election’ and urging a ‘coup’.… Simply applying [Laurence] Tribe’s constitutional analysis, I noted that if all 84 of the contested electoral votes were disregarded on the grounds that they were based on the counting of explicitly illegal ballots, Trump would lead 232 to 222—a majority of the 454 actually ‘appointed.’ And under Tribe’s constitutional analysis, Trump would have won.”
Although this is an accurate restatement of one of the scenarios in the six-page memo (and also in the two-page memo), this way of formulating the point makes it appear that what is going on here is a kind of legal exercise: if Laurence Tribe’s analysis of several years ago is sound, what would follow for the 2020 election? Yet neither of Eastman’s memos rests its case for this highly controversial scenario on the soundness of Tribe’s prior writings. Presumably, Eastman cites Tribe to show that at least part of his argument is compatible with previous work by an ideological opposite. (For the record, Tribe has denied that he agrees with Eastman on this, but see the Tribe quotes near the end of this piece.)
- “Finally, the memo unambiguously acknowledges that if, after formal investigation by the legislatures in the contested states, it was determined that any proven fraud and illegality was ‘insufficient to alter the results of the election, the original slate of electors would remain valid’ and Biden would prevail when the joint session of Congress reconvened. That is the plain text of my full memo.”
This also is accurate, but it ignores the fact that the six-page memo includes two scenarios (as did the two-page memo) by which Trump would become president without any investigation at all by state legislatures.
A Government of Laws
My purpose here has been to provide a close analysis of John Eastman’s two memoranda and not to assess the soundness of whatever oral advice Eastman gave to his client, President Trump, or to Vice President Pence, in the two or three days before the January 6 joint session.
The memos are controversial mainly because they maintain that these few words of the 12th Amendment—“the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted”—vest in the vice president uncontrollable power and discretion to 1) reject the only certified electoral votes submitted by a state if the losing side sends in its own “votes” (even if the certified candidate won the popular vote handily); 2) decide whether to exclude the rejected votes only from the numerator in calculating the majority needed to win the presidency or also from the denominator; 3) decide, depending on the number of electoral votes at issue, whether to send the election to the House of Representatives; 4) decide whether to follow the provisions of the Electoral Count Act of 1887, which spells out in great detail how to resolve disputes over contested electoral votes; 5) decide whether to send contested elections back to the state legislatures for further investigation; and 6) if a state legislature certifies electoral votes other than those previously certified by executive officials, decide to reject the original certification in favor of the later certification.
Near the end of his second memo, Eastman writes that “we’re no longer playing by [Marquess of] Queensbury Rules.” Though I am not a lawyer, this seems to me a remarkable statement to make in a legal memo. By what rules, then, are we playing? To our misfortune, the authors of the Constitution and of the 12th Amendment did not make provision for settling disputes about electoral votes in presidential elections. (Seligman shows in the article cited above that in 1800 both the House and Senate passed bills to address contested presidential elections, but the bills died when the chambers could not agree on all the details.) Yet the American founders embraced as central to their whole enterprise the principle famously articulated in the Massachusetts Constitution of 1780: that ours should be “a government of laws and not of men.” The Eastman memos, by finding that the Constitution vests a vast reservoir of uncontrollable power and discretion in the vice president, fall far short of meeting this basic test of American constitutionalism.
Because I am a constitutionalist and a political conservative, it particularly pains me that the Claremont Institute, whose vital mission it is “to restore the principles of the American Founding to their rightful, preeminent authority in our national life,” has, with its public statement of October 11, basically circled the wagons, blaming “disinformation,” “almost universally false news accounts,” “deliberate misrepresentations,” and “false and slanderous statements” for the controversy that followed the release of the memos. The Institute’s statement, which purports to “correct the record and state the truth about…John’s legal advice” to the vice president, remarkably does not even mention the two memos, whose very publication sparked the current controversy. According to its authors—the chairman of the Board of Directors and the president of the Claremont Institute—the statement seeks “to correct the record and state the truth.” Quoting Thomas Jefferson, they write that truth will prevail if not “disarmed of her natural weapons, free argument and debate.” And they conclude: “The Claremont Institute will not remain silent in the face of widespread lies peddled by malicious domestic political opponents. We welcome debate, and so should our opponents and especially our friends.”
Well, I am neither malicious nor a domestic political opponent, but rather a long-time friend of the Institute and sometime contributor to its programs, who has devoted a considerable part of his scholarly life to understanding the framers’ design for the presidency and its contribution to the success of American democracy. The framers well understood that presidential elections could give rise to dangerous passions that would threaten the nation’s “domestic tranquility”—one of the six essential purposes of the Constitution announced in its Preamble. Thus, when Alexander Hamilton defended in The Federalist the Constitution’s provision for choosing presidents, he praised this innovation for making it unlikely that the contest for the nation’s highest office would stimulate “tumult and disorder” or would “convulse the community with any extraordinary or violent movements.” Though the rise of political parties altered how the Electoral College system functions, surely here the framers’ ends should be ours as well.
Half a century after the founding, Alexis de Tocqueville described American presidential elections as “a crisis in the affairs of the nation”:
For a long while before the appointed time is at hand the election becomes the most important and the all-engrossing topic of discussion. The ardor of faction is redoubled; and all the artificial passions which the imagination can create in the bosom of a happy and peaceful land are agitated and brought to light…. As the election draws near, the activity of intrigue and the agitation of the populace increase; the citizens are divided into hostile camps…; the whole nation glows with feverish excitement.
Without clear rules for resolving electoral vote disputes—our version of “Queensbury Rules,” if you will—a future election crisis could do permanent damage to our political and civic order. This is what might possibly have happened if on January 6 Vice President Pence had—on the basis of an imagined constitutional authority—either gaveled Donald Trump as re-elected; sent the election to the House of Representatives for a Trump victory by the votes of 26 Republican-majority state delegations; or sent the election back to the state legislatures so that they could determine in two weeks’ time who truly won.
Hamilton and Tocqueville remind us of the stakes involved in how we conduct our presidential elections. As I have tried to show, constitutionalists who cherish the rule of law and the legitimacy of our governing institutions have every reason to be deeply troubled by the Eastman memos and the effects they might have had on the peaceful transition of power from the Trump to the Biden Administration—and perhaps on such transitions of power in the future.
As if to underscore the point, the Atlantic posted an article by a staff writer in early October that asked whether Vice President Kamala Harris, who will preside over the congressional certification of the 2024 presidential vote on January 6, 2025, may have to “stop the steal” by Republicans. Laurence Tribe told the writer that Harris would not be “simply a figurehead” and that she could reject what he called “ungrounded challenges” to state certifications. “She may have other powers, he said, but he refused to discuss them with me.” The reason for his reticence: “I don’t want to lay out a complete road map for the other side.” As if preparing the ground for a large assertion of power by Harris, the article ends with this quotation from a Democratic lawyer: “We all know how it turned out for Weimar…. And we may face the hypothetical, the worst-case scenario, where it’s only the vice president standing between totalitarianism and us, between a bloodless coup and democracy.” Predictions like this should weigh heavily on conservatives who might have been inclined to accord Vice President Pence vast authority over the congressional certification of the 2020 presidential vote.
I trust these reflections have advanced the very debate that the Claremont Institute welcomes.