Wednesday, December 01, 2021

The Best Critique of John Eastman's Memos for Overturning the 2020 Presidential Election


The Fall 2021 issue of The Claremont Review of Books has a debate over John Eastman's memoranda for overturning the 2020 presidential election, so that Donald Trump could remain in office.  Joseph Bessette's critique of the memos is followed by Eastman's response.  As far as I know, Bessette's article is the most meticulous and rigorous study of Eastman's memos that anyone has produced so far.

I have written previously about some of the Trump lawsuits attempting to overturn the election, in which Eastman worked as one of Trump's lawyers.  I have also written about the debate among those affiliated with the Claremont Institute over whether their support for Trump was justified.

Eastman has been a professor of law at Chapman University in southern California and the director of the Center for Constitutional Jurisprudence at the Claremont Institute.  He spoke at Trump's "Save America" rally on January 6, which was followed by the Trump insurrection in the Capitol building in the attempt to stop the Congress from certifying the election of Joe Biden.

In September, the publication of Bob Woodward and Robert Costa's book Peril revealed that Eastman had written a memorandum in late December or early January that outlined the plan for how Vice President Pence could overturn Biden's election.  It was also revealed that Eastman had attended a meeting in the Oval Office on January 4, in which he and Trump tried to persuade Pence to refuse to certify Biden's election to the presidency.  On September 20-21, CNN posted online copies of two memoranda written by Eastman: one was two pages long, the other six pages.

The shorter memo described a scenario in which Pence as President of the Senate would preside over the joint session of Congress on January 6, and in counting the ballots, Pence would announce that in Arizona and other states, there were "multiple slates of electors."  The memo then describes what could happen at the end of the count:

". . . 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.  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."

Because of this passage, Eastman's memorandum has been called the "coup memo."  It looks like a false legal argument for overturning the outcome of a presidential election, and thus a coup d'etat that would have destroyed American constitutional democracy.  This has provoked intense criticism of Eastman and the Claremont Institute for betraying the professed mission of the Claremont Institute in preserving the principles of the American constitutional founding. 

Eastman and others at the Claremont Institute have responded to this criticism by claiming that Eastman did not endorse this coup scenario in the two-page memo, and that his longer memo lays out many possible scenarios without endorsing any of them.  

The longer memo begins by citing Article II, section 1, of the Constitution, which lays out the procedure for electing the President, and prescribes: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."  The memo uses italics to emphasize that this power resides in "the legislatures of the states."  This implies that state election officials must adhere strictly to the electoral laws as made by the state legislature.

According to the memo, however, there was "illegal conduct by election officials," who altered state election laws.  "Quite apart from outright fraud (both traditional ballot stuffing, and electronic manipulation of voting tabulation machines), important state election laws were altered or dispensed with altogether in key swing states and/or cities and counties."  The memo then identifies six swing states in which this happened--Georgia, Pennsylvania, Wisconsin, Michigan, Arizona, and Nevada--where Biden won by narrow margins.

Against this background, the longer memo describes nine different ways that Pence could count the ballots.  In five of these, the outcome would have been "Biden wins."  In four of them, the outcome would have been "Trump wins."

Eastman has said that in his Oval Office meeting with Trump and Pence, he recommended that Pence should try to execute the ninth scenario in his memo.  In the memo, Eastman writes:

"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 Count Act are contrary to his authority under the 12th Amendment and therefore void.  Taking the cue, 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. . . ."

. . .

 "If, after investigation, proven fraud and illegality is insufficient to alter the results of the election, the original slate of electors would remain valid.  BIDEN WINS."

"If, on the other hand, the investigation proves to the satisfaction of the legislature that there was sufficient fraud and illegality to affect the results of the election, the Legislature certifies the Trump electors.  Upon reconvening the Joint Session of Congress, those votes are counted and TRUMP WINS."

Since Republicans control the legislatures in five of the swing states where Eastman sees illegal conduct by election officials--Georgia, Pennsylvania, Wisconsin, Michigan, and Arizona--he might have assumed that the legislatures in those states would have certified the Trump electors, so that "Trump wins" the presidency.

I will not attempt to work through all of the complicated issues that arise in this debate between Bessette and Eastman.  But I will briefly take up the four most important questions raised by this debate.  (1) Was the presidential election of 2020 unconstitutional?  (2) Is the Constitution dangerously vague about how disputes over presidential balloting are to be resolved?  (3) Does the Constitution rightly allow the Vice-President to be the "ultimate arbiter" in such disputes?  (4) Does the dispute over this election remind us of the need to abolish the Electoral College? 


Trump and his supporters have claimed that the election was stolen through fraudulent voting.  Remarkably, Eastman does not make that claim.  In Trump's Bill of Complaint in Intervention in the Texas lawsuit filed with the U.S. Supreme Court, Eastman wrote: "It is not necessary for the Plaintiff in Intervention to prove that fraud occurred."  Eastman's argument is that even if there was no fraud, the election was unconstitutional, because in at least seven states, state election officials altered or set aside state election laws, which violated the constitutional stipulation that the legislatures of the states have plenary power to determine the "manner" in which presidential electors will be chosen.  For example, state election officials in some states loosened the legal standards for absentee balloting to make it easier for people to cast absentee ballots, which favored Biden over Trump.

Eastman says that the evidence for such illegal and unconstitutional conduct was clear.  And he complains about "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 every addressing the significant evidence of illegal conduct that had been presented)" (35).

Eastman is incorrect.  As I have indicated in one of my posts on the Trump lawsuits, both state and federal judges have examined the "evidence of illegal conduct that had been presented," and they have concluded that there is no evidence here of unconstitutional conduct.  They have pointed out that when state legislatures exercise their constitutional power to determine the "manner" by which presidential electors are chosen, they often give state election officials a broad discretionary power in interpreting and applying the election laws.  If state legislators had believed that election officials in 2020 were abusing this discretionary power in violation of state law, the legislators (or lawyers for the Trump campaign) could have filed lawsuits in state courts to challenge this illegal conduct.  They did not do that before the election.  Instead, lawsuits were filed after the election, when Trump saw that he had lost those swing states by small margins.

For example, in the case of Donald Trump v. The Wisconsin Elections Commission, filed in the U.S. District Court for the Eastern District of Wisconsin, Trump's lawyers argued before U.S. District Judge Brett Ludwig that the Wisconsin Elections Commission (WEC) had departed from the election laws enacted by the Wisconsin legislature.  The WEC had set up rules that allowed for a huge increase in the number of mail-in ballots, and if one assumes that many of these ballots were votes for Biden, then this would account for Trump's narrow loss (by 22,700 votes) in Wisconsin.  Trump's complaint asked that Judge Ludwig throw out the voting results and then ask the Republican-controlled Wisconsin Legislature to appoint their own slate of presidential electors.

Judge Ludwig decided that Trump's lawyers had not shown a "significant departure" by WEC from the rules set down by the Legislature, because the WEC was explicitly given a broad discretion in clarifying the statutory rules for conducting the election.  

Ludwig declared: "Plaintiff's Electors Clause claims fail as a matter of law and fact."  He concluded:

"This is an extraordinary case.  A sitting president who did not prevail in his bid for reelection has asked for federal court help in setting aside the popular vote based on disputed issues of election administration, issues he plainly could have raised before the vote occurred.  This Court has allowed plaintiff the chance to make his case, and he has lost on the merits.  In his reply brief, plaintiff 'asks that the Rule of Law be followed.'  It has been."

Judge Ludwig was appointed to the federal bench by Trump, who picked his judges from lists given to him by The Federalist Society.  In some of his other losing lawsuits, Trump's lawyers failed to persuade Trump-appointed judges. Trump was defeated because his own judges are devoted to the constitutional rule of law. 

Eastman is silent about this.


Bessette and Eastman agree with one another in answering yes.  Bessette observes: "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" (26).  Eastman says that the language of the 12th Amendment is "ambiguous" about who actually counts the electoral votes for the president (29).  The 12th Amendment says: "The President of the Senate [the Vice President] shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted."  It is clear that the Vice President is authorized to "open" the certificates.  It is not clear as to whether and how the Vice President is to "count" the votes, because this power to count is put into 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.  But Eastman argues that this law is unconstitutional because it takes away the Vice President's constitutional power to count the votes.  Eastman believes that Vice President Pence should have ignored the Electoral Count Act.

Even as Eastman admits that the language of the 12th Amendment is ambiguous, he chooses to follow those constitutional scholars--probably in the minority--who say that the Vice President has complete power to count the votes and even to reject the lists of votes certified by the state governments.


Yes, Eastman declared at the end of his shorter memo: the Constitution makes the Vice President the "ultimate arbiter."

Although Bessette admits that the vague language of the 12th Amendment is open to this possible interpretation, he rejects this as contrary to the spirit of the constitutional principle that ours should be "a government of laws and not of men" (the language used in the Massachusetts Constitution of 1780) (26).  Bessette wonders:

"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" (20).

Remarkably, Eastman does not deny that this really is the principle for him.  Nor does he deny Bessette's claim that this principle could be used by Vice President Kamala Harris in counting the electoral votes for the 2024 election, so that she could refuse to count the officially certified votes for Trump and substitute the votes pledged to Biden.

Does the Claremont Institute want to endorse this principle?  Perhaps not.  Perhaps the publication of Bessette's article in the Claremont Review of Books is meant to signal that at least some of the people at the Claremont Institute want to repudiate Eastman's memos.


Although Bessette and Eastman do not raise this question, I think we should raise this question when we see that the Electoral College has created the fundamental problem here--that so many presidential elections have been decided by a few thousand votes in a few swing states, and that the electoral votes are not in proportion to the popular votes, which creates doubts about the legitimacy of the election. 

An even more troubling manifestation of this problem was the presidential election of 2000.  While Al Gore won the popular election with a margin of over 543,000 votes, George Bush won in the Electoral College when he won Florida's 25 electoral votes, because he had 537 more popular votes than Gore in Florida, which gave Bush 271 electoral votes, one electoral vote more than the 270-to-win majority in the Electoral College.  This cannot be right.

Moreover, we should keep in mind that according to the Constitution, the state legislatures have the absolute power to select electors for the Electoral College in any "manner" they wish.  The state legislatures could--and some did in the early history of the country--select electors directly themselves without having a popular election at all.  If a state legislature is controlled by one party, it could decide to select as presidential electors only people pledged to their party's candidate.  Since the majority of the state legislatures today are controlled by the Republicans, they could select the Republican candidate as president without holding a popular election.

Today, most of the states have adopted a winner-take-all procedure--the popular vote winner across the whole state wins all the state's electoral votes--so they make it possible for the Electoral College winner to be the loser in the popular vote, as was the case in 2000 and 2016.

We could avoid these problems by abolishing or at least reforming the Electoral College process for selecting presidents.  We could abolish the Electoral College and have the winner of the national popular vote become president.  Or we could eliminate the winner-take-all procedure within each state.  We could require that all states adopt the Congressional District Method that is followed in Maine and Nebraska.  The popular vote winner in each congressional district wins one electoral vote.  The popular vote winner state-wide wins two electoral votes (corresponding to the state's two U.S. Senators).  This would virtually eliminate the possibility of the popular vote winner across the country being the loser in the Electoral College.

We could also amend the 12th Amendment to make it clear that the Vice President must count only the certified electoral votes for president submitted to the Congress by the states.  Vice President Pence decided that it was his constitutional duty to do this on January 6.  America was fortunate that day when he rejected Eastman's advice and stood up to Trump's pressure.

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