Former President Donald Trump increasingly appears to be set on running for the highest office in the land in 2024.
Whatever the 45th president’s chances in a rematch against President Joe Biden might be, a recently-released legal memo providing the Trump White House with advice on how to overturn the 2020 election outcome offers insight into how the GOP might try to use the courts to successfully overturn election results next time around.
Authored by Claremont Institute senior fellow John Eastman, the six-page document bore the cryptic title “January 6 scenario.” University of Texas Law Professor Steve Vladeck said it could better be described as a “how to coup in six easy steps.”
“Among other things, Eastman falsely claimed there were dueling slates of electors *and* that Pence *could* act unilaterally,” Vladeck noted in a brief Twitter thread on Monday morning.
Eastman is the former chair of the Federalist Society’s Federalism and Separation of Powers practice group and the former professor and dean at Chapman University’s Dale E. Fowler School of Law.
Weeks after Jan. 6, Eastman argued that it was wrong to suggest that his words at the pro-Trump rally that day played a role in inciting the crowd to storm the Capitol.
“They all understood . . . that I . . . immediately said what we’re demanding of Vice President Pence is that he merely delay the proceedings enough at the request of these legislatures to allow them time to review whether their certificates of electors were illegally cast — that’s all!” Eastman asserted. “And . . . to take it out of context and to tie it in to something happening two miles away that had no connection with it — I think is really dishonest!”
The Eastman memo from before Jan. 6, however, operated on the presumption that the actions of various state entities–such as court systems and elections administrators–violated state laws in seven states by, for example, extending ballot-return deadlines and making it easier to register to vote. Eastman claimed these actions violated the U.S. Constitution and could lead to a reversal of the election outcome — through Vice President Mike Pence, if need be.
“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),” Eastman inaccurately writes in the memo. “There are thus dual slates of electors from 7 states.”
That didn’t happen. Though dueling electoral slates are not a novelty in U.S. presidential election history, they are a bit of an oddity. And there were no dueling slates of electors from a single state for the 2020 contest.
Inaccuracies regarding past facts aside, Eastman’s overarching legal theory could have teeth in a similarly litigious–and similarly close–electoral environment in future U.S. presidential elections.
Eastman writes, emphasis in original, “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 other words, Eastman argued that state legislatures have something akin to absolute power over how elections are run in their respective states–even in the face of electoral administrators implementing statutes court decisions invalidating statutes. The conservative lawyer’s theory would imbue legislators themselves with the power to decide whether or not electoral laws are being accurately followed and enforced.
University of California, Irvine School of Law Professor Richard “Rick” L. Hasen recently gamed out how Eastman’s theory might used by a GOP-controlled state legislature next time in an article for Slate:
Imagine that a state legislature sets forth general rules for conducting the 2024 election, but it does not provide every detail about how the election is run. Republican legislatures in states won by the Democratic candidate could seize on some normal election administration rule created by a state or local election administrator or some ruling from a state court, and argue that implementation of the rule renders the presidential election unconstitutional, leaving it to the state legislature to pick a different slate of electors.
Key here is whether Congress would actually accept such a controversially-chosen slate of electors in a situation where voters went the opposite way. Eastman’s memo, as noted above, also has an avenue for an end-run around such considerations.
From the memo at length:
…The 12th Amendment 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.
In the memo, Eastman “war gam[ed]” out various scenarios in which then-Vice President Pence could have asserted such authority in order to hand Trump an anti-democratic victory.
“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,” the memo argues before later asserting: “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.”
Trump endorsed this idea on the eve of Jan. 6.
“The Vice President has the power to reject fraudulently chosen electors,” Trump tweeted on Jan. 5.
At a Jan. 4 rally, Trump said, “I hope Mike Pence comes through for us, I have to tell you.”
“I hope that our great vice president—our great vice president, comes through for us. He’s a great guy. Of course, if he doesn’t come through, I won’t like him as much,” he went on. “Nah, Mike is a great guy he’s a wonderful man and a smart man and a man that I like a lot.”
Just two days later and as Electoral College votes were being counted, Mike Pence was escorted out of the Capitol. Trump supporters, who had gathered in Washington, D.C. on Jan. 6 to hear the then-president speak at the “Stop the Steal” rally, stormed the Capitol building (some of them calling for Pence’s hanging).
In 2024, of course, Vice President Kamala Harris is likely to remain the president of the U.S. Senate, which would obviously complicate the potential for an end-run past Congress.
Should the GOP regain control of Congress in 2022, however, the Eastman memo offers a roadmap and legal theory that, if asserted and acted upon further in advance–rather than as a last-ditch, triage effort against losing the popular vote in several key swing states–Hasen believes that conservative courts, up to and including the Supreme Court of the United States, may find much more appealing the second time around. That would be an approach the professor describes as a “more respectable coup.”
[image via screengrab/YouTube]
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