Donald Trump is the first president in the modern era not to concede after his electoral defeat. The ensuing Jan. 6 insurrection postponed the peaceful transition of power, a hallmark of democratic governments. Recent weeks have provided new details regarding the events leading up to that day, especially surrounding Trump’s claims that Mike Pence could “do the right thing” when the vice president officiated over the joint session of Congress to certify the votes of the 2020 Electoral College.
Earlier on Jan. 6, Trump held a rally, at which he heralded Rudy Giuliani for having guts – “unlike a lot of people in the Republican Party” – before highlighting the legal prowess of John Eastman (pictured). Trump said:
John is one of the most brilliant lawyers in the country, and he looked at this and he said, “What an absolute disgrace that this can be happening to our Constitution.” And he looked at Mike Pence, and I hope Mike is going to do the right thing. … Because if Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number one, or certainly one of the top, constitutional lawyers in our country. He has the absolute right to do it. … States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.
This passage now has much greater context thanks to the new book by Bob Woodward and Robert Costa, “Peril.” In it, the authors claim that Eastman pitched a plan to have Pence unilaterally reject votes from disputed states that would result in Trump winning a majority of the Electoral College votes that would be counted. Details of the plan appear to have been corroborated by former federal Judge J. Michael Luttig, who tweeted that he “was honored to advise Vice President Pence that he had no choice on January 6, 2021, but to accept and count the Electoral College votes as they had been cast and properly certified by the states” and that he “believe[d] that Professor Eastman was incorrect at every turn of the analysis in his January 2 memorandum.” In his memo, Eastman acknowledged that his plan was “BOLD, Certainly,” but that they were “no longer playing by Queensbury Rules.”
“Bold” is one way to put it. Ultimately, Eastman’s plan rested on Mike Pence having the sole authority to determine whether a state’s electoral votes should be counted or not. Eastman claimed that there was “a very solid legal authority, and historical precedent” that the Congress is powerless when it comes to the vice president’s counting of electoral votes.
There is much to contradict this reading of history and the law, however. Chiefly, Eastman disdains the established procedure to handle disputed votes – the Electoral Count Act of 1887. He argues that it is unconstitutional and instead cites the actions of John Adams and Thomas Jefferson in the elections of 1796 and 1800 to show that past vice presidents have used their authority to resolve disputed votes. University of Iowa law professor Derek Muller, among others, has shown that Eastman’s reading of history is incomplete. Notably, both Adams and Jefferson were acting prior to the passage of the 12th Amendment, which Muller suggests gives the vice president a passive role in the counting of Electoral College votes.
Close inspection also reveals that neither Adams nor Jefferson acted with as much sovereignty as Eastman suggests. In 2004, Bruce Ackerman and David Fontana offered a deeply learned examination of Jefferson’s actions in 1800, one that now lends insight into just how dangerous Eastman’s prescriptions are. Ackerman and Fontana contend that both Adams in 1796 and Jefferson in 1800 could have manipulated the counting of electoral votes in their role as sitting vice presidents, but that both acted in ways where “substance should prevail over form,” even if it put them in awkward situations.
Similarly, in the 1960 election, Democrats and Republicans from Hawaii each submitted slates of electors to be counted in the joint session of Congress. By a razor-thin margin of just 105 votes, John F. Kennedy was declared the winner just a week prior to the meeting of the joint session. In his role as sitting vice president, Richard Nixon asked for unanimous consent that the body accept the slate in favor of John F. Kennedy, rather than for himself, which it did.
The overwhelming view by election officials, courts, and security experts was that the “substance” of the 2020 election revealed that Joe Biden won the Electoral College vote, 306-232. Every state certified its election results, courts dismissed more than 50 lawsuits alleging irregularities, and multiple federal officials found no evidence of fraud, concluding that 2020 was the “most secure election in American history.”
Eastman argued that the vice president has the sole authority to determine whether electoral votes should be counted or not. This is an incredible amount of power to vest in one individual – especially one who could gain the presidency by using his own discretion.
Imagine if, in 2000, Al Gore had embraced Eastman’s theory. This would have meant that in his role as vice president, Gore would have had sole authority to accept or reject the electoral votes from all states, including Florida, where he lost by just 537 votes. Had he done so, he would have won the presidency by obtaining a majority of the electoral votes that were counted. By Eastman’s logic, Congress would have had no choice but to sit and watch Gore do it.
The Eastman memo has generated serious criticism among some observers, but it has gone largely unnoticed by most Americans, as Margaret Sullivan notes. And some have even dismissed Eastman’s “bold” play as unserious and unworthy of much concern.
Ramesh Ponnuru, for example, recently argued that concerns about Trump’s post-election efforts to stay in power are overblown, pointing out that no states changed their electoral results and that Pence ultimately did not intervene on his ticket’s behalf. Yet, we know that on Jan. 6, and before, Trump openly campaigned for both outcomes. An attempt by a sitting president to get his vice president to ignore federal law, state election officials, and the courts by single-handedly disregarding electoral votes should concern all Americans. That it did not happen does not dismiss the possibility that it could have happened.
Instead of discounting Trump’s radical effort as a zany scheme, we should approach it as we would any other attack upon the United States. If another country tried to attack us and failed, we would not ignore its attempt. Instead, we would do everything in our power to prevent a sequel. We should take the same approach when it comes to efforts such as that encouraged by the Eastman memo.