CNN on Tuesday morning published a copy of the so-called “Eastman Memo,” a two-page document from conservative lawyer John Eastman advising then-President Donald Trump’s legal team on a strategy to overturn the election results from the House floor.
Eastman proposed that, during the Jan. 6 certification of the states’ Electoral College votes, then-Vice President Mike Pence shepherd Congress through a multi-step process, in which he would take the vote-counting procedure into his own hands by acknowledging “multiple slates” of electors from seven contested states. Pence would then discard those disputed states’ electors before tallying up the final vote. (In reality, no state legislature had sent Congress competing slates of electors.)
In one outcome envisioned by the memo, this partial count would give Trump the win. In another, Democrats objected to the maneuver, at which point each state’s House delegation would be given one vote on the outcome, again giving Trump a slim victory. Eastman also posited that a filibuster from a Senate Republican during the proceedings could create a “stalemate,” allowing state legislatures “more time to weigh in to formally support the alternate slate of electors.”
“The main thing here,” he wrote, “is that Pence should do this without asking for permission — either from a vote of the joint session or from the Court.”
The memo, first reported by the Washington Post’s Bob Woodward and Robert Costa in their book “Peril,” failed: Pence rejected its logic, as did others including Sen. Mike Lee (R-UT).
Crucially, the memo was the culmination of months of work aimed at the Jan. 6 certification date, pulling together Trump’s win-at-any-cost strategy with the then-President’s willing accomplices in Congress. In the end, it represented the last known attempt Team Trump made at peacefully stealing a second term.
After Pence rejected that effort, Trump’s mob went after him and Congress.
The Long Game
Even before the election, Trump had committed to contesting a losing result as fraudulent.
“The only way we’re going to lose this election is if the election is rigged,” he said three months before Election Day.
Trump and company followed their election loss with weeks of harassment aimed at state election officials, pressuring them to throw out votes, and frantic legal action. Those roads reached a dead end on Dec. 8, the “safe harbor” deadline for states to certify their results.
On that day, Trump lawyers Rudy Giuliani and Jenna Ellis made another bold attempt to move the goal posts. They wrote in a statement blasted out by the campaign that “The ‘Safe Harbor Deadline’ is a statutory timeline that generally denotes the last day for states to certify election results. However, it is not unprecedented for election contests to last well beyond December 8.”
“Justice Ginsburg recognized in Bush v. Gore that the date of ‘ultimate significance’ is January 6, when Congress counts and certifies the votes of the Electoral College,” they added.
They had allies in Congress willing to make pursue the same strategy: On Dec. 2, a day after Attorney General Bill Barr said federal investigators had not found “fraud on a scale that could have effected a different outcome in the election,” Rep. Mo Brooks (R-AL) committed publicly to contesting the election results on Jan. 6.
By Dec. 17, 18 Republicans notified congressional leadership that on Jan. 6, Trump’s false claims of widespread election fraud “may or will be the subject of extensive floor debate as Congress determines whether to accept or reject various states’ electoral college vote submissions.” As Jan. 6 approached, more lawmakers would pledge to contest the results.
Two days later, on Dec. 19, Trump beckoned his supporters to D.C. on Jan. 6, said on Twitter that the planned protest “will be wild!” On Dec. 21, several House Republicans held White House meetings with Trump and Pence to discuss strategy — at which, The Washington Post later reported, “Pence told them his constitutional duty will be to open and count the results, not to determine their legitimacy.”
The pressure was growing. Axios reported on Dec. 22 that Trump had grown angry with Pence, and that “Pence’s role on Jan. 6 has begun to loom large in Trump’s mind.” Trump would see Pence validating the election results as “the ultimate betrayal,” the outlet reported.
In an unsuccessful lawsuit filed Dec. 27, Gohmert alleged that Pence had the authority, “where there is objection to any single slate of electors, to determine which electors’ votes, or whether none, shall be counted.”
So Who’s John Eastman?
John Eastman, according to CNN’s description of Woodward and Costa’s book, met with Pence in the midst of this pressure campaign, on Jan. 4.
Then a law professor at Chapman University, a position from which he retired after the Capitol attack, Eastman had previously clerked for Supreme Court Justice Clarence Thomas. Prior to Election Day, he’d drawn attention for a Newsweek article in which he questioned then-vice presidential candidate Kamala Harris’ qualifications to serve in office — even though Harris was born in Oakland and has always been a natural-born U.S. citizen — because “neither [of her parents] was a naturalized U.S. citizen at the time of Harris’ birth.”
After the election, Eastman represented the Trump campaign in its attempt to intervene in several Republican states’ unsuccessful attempt to have the Supreme Court overturn the election. The court rejected that suit on Dec. 11. The following month, Eastman, Trump and Pence discussed their options.
“You really need to listen to John,” Trump told Pence in the Jan. 4 meeting with Eastman, according to CNN’s description of “Peril”’s reporting. “He’s a respected constitutional scholar. Hear him out.”
Pence reportedly sought out his own counsel too, including from the Senate parliamentarian and former Vice President Dan Quayle — both of whom said his authority included counting the Electoral College votes and nothing more. Pence opted to take that advice and count the Electoral College votes as the states had submitted them, certifying Biden’s win.
Responding to the Post’s reporting on his memo, Eastman told the paper that the document merely “explored all options that had been proposed.” But on the day of certification itself, Jan. 6, Eastman was standing on a stage outside the White House to tout the memo’s theory. He was joined by Giuliani, who demanded “trial by combat!” over Trump’s election lies.
“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!” Trump would tell the crowd later that day.
Eastman was one of several speakers to address the D.C. rally Trump had beckoned — the rally that turned into a mob — and he didn’t mince words.
“We know there was fraud,” he said, falsely. “We know that dead people voted.”
Then, he aimed his fire squarely, and publicly, at Pence.
“All we are demanding of Vice President Pence is this afternoon at 1 o’clock, he let the legislatures of the states look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not!”