Weekend Open Thread: Eastman Memo Led to Jan. 6 Attack

Greg here. I’m going to republish something posted in Facebook in its entirety, on the presumption that its author, Heather Cox Richardson, would not mind its being a focus in the county that brought former Chapman University Law Dean to his greatest prominence. Eastman just earned a spot as one of the greatest villains in our nation’s history. (If you’re not following HCR on Facebook, you really should be.)

Just pretend that this everything below this wavy line and the next wavy line is all blockquoted; it’s hers, not mine.

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On Monday, we learned that after last year’s election, John Eastman, a well-connected lawyer advising former president Donald Trump, outlined a six-point plan to overturn the outcome of the election and install Trump as America’s leader. They planned to cut the voters’ actual choice, Democrat Joe Biden, out of power: as Trump advisor Steve Bannon put it, they planned to “kill the Biden presidency in the crib.” This appears to have been the plan that Trump and his loyalists tried to execute on January 6.

That is, we now have written proof of an attempt to destroy our democracy and replace it with an autocracy.

This was not some crazy plot of some obscure dude in a shack in the mountains; this was a plan of the president of the United States of America, and it came perilously close to succeeding. The president of the United States tried to overturn the results of an election—the centerpiece of our democracy—and install himself into power illegitimately.

If this is not a hair-on-fire, screaming emergency, what is?

And yet, Republican lawmakers, with the notable exceptions of Representatives Liz Cheney (R-WY) and Adam Kinzinger (R-IL), have largely remained silent about the fact that the head of their party tried to destroy our democracy.

The best spin on their silence is that in refusing to defend the former president while also keeping quiet enough that they do not antagonize the voters in his base, they are choosing their own power over the protection of our country.

The other option is that the leaders of the Republican Party have embraced authoritarianism, and their once-grand party—the party of Abraham Lincoln, the party that saved the United States in the 1860s, the party that removed racial enslavement from our fundamental law—has become an existential threat to our nation.

Democracy requires at least two healthy parties capable of running a government in order to provide oversight for those currently in control of the government and to channel opposition into peaceful attempts to change the country’s path rather than into revolution. But Republicans appear to believe that any Democratic government is illegitimate, insisting that Democrats’ calls for business regulation, a basic social safety net, and infrastructure investment are “socialism” that will destroy the country.

With Democrats in charge of the federal government, Republicans are cementing their power in the states to support a future coup like the one Eastman described. Using “audits” of the 2020 elections, notably in Arizona but now also in Pennsylvania and Texas, Trump loyalists have convinced their supporters to distrust elections, softening the ground to overturn them in the future. According to a new poll by NORC at the University of Chicago, 26% of Americans now believe that “[t]he 2020 election was stolen from Donald Trump and Joe Biden is an illegitimate president,” and 8% believe that “[u]se of force is justified to restore Donald Trump to the presidency.

“Arguing that they have to stop the voter fraud they have falsely claimed threw the election to Biden, Republican lawmakers in 18 states have passed more than 30 laws to cut down Democratic voting and cement their own rule. Trump supporters have threatened election workers, prompting them to quit, and have harassed school board members and local officials, driving them from office. Although attorneys general are charged with nonpartisan enforcement of the law, we learned earlier this month that in September 2020, 32 staff members of Republican attorneys general met in Atlanta, where they participated in “war games” to figure out what to do should Trump not be reelected. The summit was organized by the Rule of Law Defense Fund, the fundraising arm of the Republican Attorneys General Association (RAGA), which sent out robocalls on January 5 urging recipients to march to the Capitol the following day “to stop the steal.” In May, RAGA elevated the man responsible for those robocalls to the position of executive director, prompting others to leave.

In states where Republicans have rigged election mechanics, party members need to worry about primary challengers from the right, rather than Democratic opponents. So they are purging from the party all but Trump loyalists, especially as the former president is backing challengers against those who voted in favor of his impeachment in the House in January 2021. Last week, one of those people, Representative Anthony Gonzalez (R-OH), announced he was retiring, in part because of right-wing threats against his family.

Trump loyalists are openly embracing the language of authoritarianism. In Texas, Abbott is now facing a primary challenger who today tweeted: “Texans deserve a strong and robust leader committed to fighting with them against the radical Left. They deserve a leader like Brazil has in Jair Bolsonaro…..” Bolsonaro, a right-wing leader whose approval rating in late August was 23%, is threatening to stay in power in Brazil against the wishes of its people. He claims that the country’s elections are fraudulent and that “[e]ither we’ll have clean elections, or we won’t have elections.”

Representative Marjorie Taylor Greene (R-GA) today used language fascists have used in the past to stoke hatred of their political opponents, tweeting that “ALL House Democrats are evil and will kill unborn babies all the way up to birth and then celebrate.” Yesterday, the leader of Turning Points U.S.A., Charlie Kirk, brought the movement’s white nationalism into the open when he told a YouTube audience that Democrats were backing “an invasion of the country” to bring in “voters that they want and that they like” and to work toward “diminishing and decreasing white demographics in America.” He called for listeners to “[d]eputize a citizen force, put them on the border, give them handcuffs, get it done.”

Today, we learned that the 2022 Conservative Political Action Conference (CPAC) will be held in Budapest, Hungary, where leader Viktor Orbán, whom Fox News Channel personality Tucker Carlson has openly admired, is dismantling democracy and eroding civil rights. When former vice president Mike Pence spoke in Budapest earlier this week at a forum denouncing immigration and urging traditional social values, he told the audience he hoped that the U.S. Supreme Court would soon outlaw abortion thanks to the three justices Trump put on the court.

Establishment Republicans who are now out of power are not on board the Trump train. They are quietly backing anti-Trumpers like Representative Cheney. Former House speakers John Boehner and Paul Ryan, former Florida governor Jeb Bush—who was widely expected to win the Republican nomination in 2016, only to be shut out of it by Trump—and former president George W. Bush’s former adviser Karl Rove have all donated money to Cheney to help her stave off a challenge from a Trump loyalist in the 2022 election. Next month, former president Bush himself will hold a fundraiser for Cheney in Texas.

Other establishment Republicans currently in power might be staying quiet about the party’s slide toward authoritarianism because they are simply hoping that the Trump fire will burn itself out. The former president is no longer commanding the crowds he once did, and his increasing legal woes as well as the investigation into the insurrection will almost certainly take up his time and energy. The mounting coronavirus deaths among his unvaccinated supporters also stand to weaken support for his faction.

But the fact that Republican lawmakers have ignored the Eastman memo, which outlines the destruction of our democracy, suggests that the party, which organized in the 1850s to protect the nation against those who would destroy it, has come full circle.

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Eastman’s two-page memo was one of the stories embedded in the new Bob Woodward and co-author book, Peril. Here’s the memo in its entirety:

PRIVILEGED AND CONFIDENTIAL

Jan. 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). 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.

When I was going over the possibilities of how the election might be derailed, about a year ago, this was (by-and-large) one of the scenarios I suggested might be tried — legislatures (though Eastman says “Governors,” which is even more extreme) would just decide to overrule the votes in their states. I considered the notion to be preposterous, but I wanted to cover all of the bases. (I’m going to find the actual cite later.) I never dreamed that an advisor to the Senate, from a university less than 20 minutes from my home, would be seriously presenting this to the President as the basis for overturning the results of a free and fair Presidential election.

To be clear, this memo suggests that elections would become charades. The only elections that would mattered would be those for Governor. because the Governor could concoct a basis (even if out of nothing for deciding that good cause existed to send a competing slate of delegates to Congress, which the Vice President could then choose — and thus preserve the continuation of their own party in power.

It’s not hyperbole to call this the end of American Democracy (at the Presidential level.) And combined with the “Unitary Executive” model that the President holds all of the power, we’re most of the way to a dictatorship. Add in abuse of the power of each house of Congress to “judge the qualification of its own members” and the system becomes close to hermetically sealed.

Eastman may now be at the Claremont Colleges, but he’s OC’s creation and denouncing him is our responsibility — and the particular responsibility of anyone who attended Chapman University Law School — or even the college itself. I’ll expand on this (and revise this piece) in the days to come; just consider this a head’s up and an invitation to your thoughts.

This is your Weekend Open Thread. Talk about that, of anything else you’d like, within reasonable bounds of decency and decorum.