Why the Text Matters: A Memorandum and a Pardon Request
John Eastman's pardon request makes sense in light of his memorandum on how to overturn the 2020 presidential election.
A Constitutional Scholar Seeks a Presidential Pardon
It is hard to imagine a lawyer seeking a pre-emptive presidential pardon (a pardon prior to a charged crime) for good faith advocacy. The hearings of the House select committee investigating the January 6 insurrection disclosed that constitutional law professor John Eastman sought a pardon for his role in laying out a path to keep former President Donald Trump in power. Eastman’s January 11, 2021 pardon request is revealing (“Will taint me, but given the outright lies and false witness being spewed, having that protection is probably the prudent course”) on his state of mind about his legal work. Here is Eastman’s email seeking a pre-emptive pardon to Trump lawyer Rudy Giuliani:
The pardon request makes it worth reading Eastman’s memorandum about overturning the 2020 presidential election.
A Roadmap to Overturn a Presidential Election
Eastman wrote two memos laying out a path to keep Donald Trump in power. Eastman’s writings were widely quoted in the media. A reading of the complete text provides a more complete understanding of what he advocated. Here is the first memorandum [1]:
PRIVILEGED AND CONFIDENTIAL
January 6 scenario
7 states have transmitted dual slates of electors to the President of the Senate.
The 12th Amendment merely provides that “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.” 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.
The Electoral Count Act, which is likely unconstitutional, provides:
If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.
This is the piece that we believe is unconstitutional. It allows the two houses, “acting separately,” to decide the question, whereas the 12th Amendment provides only for a joint session. And if there is disagreement, under the Act the slate certified by the “executive” of the state is to be counted, regardless of the evidence that exists regarding the election, and regardless of whether there was ever fair review of what happened in the election, by judges and/or state legislatures.
So here’s the scenario we propose:
1. VP Pence, presiding over the joint session (or Senate Pro Tempore Grassley, if Pence recuses himself), begins to open and count the ballots, starting with Alabama (without conceding that the procedure, specified by the Electoral Count Act, of going through the States alphabetically is required).
2. When he 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.
3. At the end, he 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. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). [2] 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.
4. 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 the “the votes shall be taken by states, the representation from each state having one vote . . . .” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.
5. One last piece. Assuming the Electoral Count Act process is followed and, upon getting the objections to the Arizona slates, the two houses break into their separate chambers, we should not allow the Electoral Count Act constraint on debate to control. That would mean that a prior legislature was determining the rules of the present one — a constitutional no-no (as Tribe has forcefully argued). So someone – Ted Cruz, Rand Paul, etc. – should demand normal rules (which includes the filibuster). That creates 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.
6. 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. 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.
Thinking About Eastman’s Memorandum
Eastman’s memorandum establishes one thing he may not have intended: the poorly drafted Electoral Count Act (the excerpt in the memorandum is very difficult to follow) should be the subject of a bipartisan congressional reform effort. This important statute which sets out the mechanics of the transfer of executive power should be clarified. Several other interesting things emerge from Eastman’s memorandum.
The memorandum, though headed “PRIVILEGED AND CONFIDENTIAL” discloses neither a recipient nor a sender which destroys any claim of attorney-client privilege. Eastman has downplayed the memorandum as a “draft” but the “privileged and confidential” heading combined with the absence of the identity of the sender and the recipient of the memorandum is strange.
The memorandum makes a huge logical leap from the language 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”) to invest a level of decisional authority in the Vice President based on “very solid legal authority, and historical precedent.”[3] No legal authority is cited and the “historical precedent” referred to (involving Presidents Adams and Jefferson) is not relevant.[4]
The memorandum’s first sentence (“7 states have transmitted dual slates of electors…”) and second paragraph are especially devious. The sentence “When he 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” is nonsense. No state certified or appointed two sets of electors in the 2020 election. The proposition that because Arizona Trump supporters sent in their own slates of electors which were not certified or endorsed by any state official or agency there are two sets of Arizona electors is crazy. [5]
The third paragraph propels the memorandum into logical outer space. The proposition that the Vice President “announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States” is another way of saying that the Vice President could decide that the fact of an election dispute—no matter how groundless—invalidates the actions of the seven states to certify or appoint electors. The votes of citizens of seven states would be instantly invalidated by the disqualification of the 84 electoral votes from their states. Thus, the election goes to Donald Trump who received the votes of the majority of the “appointed electors.”
The memorandum’s back-up plan assumes that a majority of 270 of all of the electors is required and is mathematically impossible after the disqualification of the 84 electoral votes. Thus, according to the 12th Amendment, the election must be decided by the House of Representatives voting by delegations, 26 of which are controlled by Republicans.
The memorandum closes by advocating that Vice President Pence act “without asking for permission” and that “the Constitution assigns this power to the Vice President as the ultimate arbiter”—a concept with no constitutional support whatsoever.
Why the Eastman Memorandum Was So Dangerous
Eastman’s memorandum is refined sophistry. It combines half-truths, deceptions, misinterpretations of the Constitution, and logical fallacies under a veneer of law professor sophistication. The New Yorker’s Susan Glasser describes Eastman as:
…this classic, clownish side figure. He seems to have been sort of dazzled into legal quackery by the prospect of inventing a theory that would justify keeping a President in power.
Eastman is more than this.[6] United States District Judge David Carter described the January 6 insurrection as, “a coup in search of a legal theory.” Eastman provided that theory, specious as it was. Trump and his most intense supporters seized on it to animate the mob and the January 6 insurrection.
There is a stark contrast between Eastman’s work and the 60 or so Dominion Voting machine /Venezuela/space laser election challenge cases brought by or on behalf of the Trump campaign. These cases had a pathetic quality and were swiftly dismissed by every court that heard them. In contrast, Eastman successfully weaponized the post-election noise generated by Trump and his supporters. He created a superficially plausible Constitution-related attack on a critical element of the transfer of power process. Eastman’s assault was defeated by a very small group of people.
We end where we started, with the language of Eastman’s pardon request: “false witness,” indeed.
1. Eastman has downplayed this memorandum as a “draft” that preceded a more detailed six-page memorandum that he wrote subsequently. The arguments in the second and longer memorandum are not materially different from the first one. According to Peril by Bob Woodward and Robert Costa, Eastman first proposed his plan to Vice President Mike Pence in a January 4, 2021 meeting with Trump and Pence and others in the Oval Office.
2. The citation of an authority clearly and forcefully in opposition (Lawrence Tribe, a liberal law professor, dismisses Eastman’s work) to the ideas being proposed seems to be an increasingly popular advocacy technique. Justice Alito’s draft opinion in Dobbs vs. Jackson Women’s Health Organization, the case that is expected to overrule Roe v. Wade, liberally cites the late Justice Ruth Bader Ginsburg’s writings.
3. Here is the full text of the 12th Amendment:
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;–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 person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.–]The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
4. For a thoughtful and thorough analysis of both Eastman memos see Joseph M. Bessette’s A Critique of the Eastman Memos in the Claremont Review of Books. Bessette demolishes Eastman’s assertion that the Jefferson and Adams episodes are relevant historical precedents:
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.
Bessette’s analysis is a detailed after-action report. Former federal judge (and William Shatner look-alike) J. Michael Luttig challenged Eastman’s analysis in communications to Vice President Pence’s staff in the critical period before January 6, 2021.
More about Luttig and his important role can be seen:
5. The seven states were Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin. Together, they cast 84 electoral votes for Joe Biden. Had Trump won 38 more electoral votes from any combination of these states he would have been re-elected.
6. Eastman asserted his Fifth Amendment rights over 140 times when he was interviewed by the January 6 select committee.
Terrific column. It’s interesting that Rolling Stone posted a piece last night positing that Trump World is setting up Eastman to be the fall guy.
Thank you for your in-depth tae on this. Lock'm up!