By Holmes Lybrand
The scheme to overturn the 2020 election and have Vice President Mike Pence gavel in Donald Trump as President on January 6 is based on nonsense legal theories and invented scenarios.
John Eastman, a lawyer working for then-President Trump’s legal team, wrote a six-point memo on how Pence could dismiss the election results and hand Trump the Presidency, according to Washington Post journalists Bob Woodward and Robert Costa’s new book “Peril.” The two-page memo was subsequently obtained by CNN.
On Tuesday, Eastman provided CNN with a longer six-page memo laying out numerous other scenarios for Pence to follow on January 6.
According to Woodward and Costa, Trump implored Pence to consider the plan during a January 4 meeting in the Oval Office.
J. Michael Luttig, a lawyer and former judge for the 4th US Circuit Court of Appeals, wrote on Twitter Tuesday that he “advis(ed) Vice President Pence that he had no choice on January 6, 2021, but to accept and count the Electoral College votes.” Luttig, who was cited in Pence’s own January 6 letter explaining why he wouldn’t intervene, added that he believed “Eastman was incorrect at every turn of the analysis in his January 2 memorandum.”
The plan proposed by Eastman — which Pence rejected — had no basis in reality and attempted to establish new, undemocratic authorities for the Vice President.
Facts First: There are two foundational errors in Eastman’s memo. First, the memo falsely says there were legitimate “disputes” about the electors in seven states regarding the 2020 results. Second, the memo pretends the vice president has the power to declare who is the next President.
In the memo, Eastman outlines how Pence, while presiding over the electoral vote count in Congress on January 6, could reject the election results of seven states because of supposed “ongoing disputes” over state electors and thereby exclude the electoral votes from those states.
“When (Pence) gets to Arizona,” Eastman writes, “he announces that he has multiple slates of electors” and “(a)t the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed by those States.”
This is nonsense.
The election results of every state were certified by December 9. On December 14, the Electoral College convened and all 538 electors cast the electoral votes for president, with Joe Biden receiving 306 electoral votes to Trump’s 232.
“Every state certified one and only one slate of presidential electors based on the 2020 election results,” Elie Honig, a CNN senior legal analyst and former federal and state prosecutor, told CNN. “What states (is Eastman) talking about? What dual slates?”
“That’s just conjured out of thin air,” Honig said.
In fact, no state had actually put forward an alternate slate of electors — there were merely Trump allies claiming without any authority to be electors.
According to Richard Pildes, a professor of Constitutional law at New York University, the argument from Eastman is “fundamentally wrong.”
“This memo basically argues that any random group of persons in a state can submit a paper to Congress claiming to be the true electors of a state,” Pildes told CNN, “and that the vice president can then use that as a basis to throw out the votes of those states.”
Eastman later told The Washington Post he had advised Pence not to use the foundational tactic he spelled out in his own memo, telling him “not to act on the basis of the dueling electors”…because, as he told the Post, “at that point, no legislature had certified an alternative slate of electors.”
In an interview with CNN Tuesday, Eastman said he had told Pence it was an open question whether he had the authority to unilaterally set aside slates of electors, but that it would be “foolish” to exercise that power because state legislatures had not certified the alternate slates put forward by Trump allies.
State officials had already certified the results of the election, electors had already cast their votes in the Electoral College and there was no dispute over the assigned electors. Eastman’s memo suggests that Pence dismiss the election results in seven states based on a completely made-up scenario.
The role of the vice president
Another pillar of Eastman’s memo is the idea that Pence could simply declare that Trump was re-elected President.
Eastman outlines how, after Pence rejects the votes from the seven states, Trump would then have the majority of electoral votes. “Pence then gavels President Trump as re-elected,” Eastman writes, adding later that the vice president is “the ultimate arbiter.”
This is not true.
The 12th Amendment outlines the vice president’s role in the certification process on January 6 as largely ceremonial. As the President of the Senate, the Vice President “shall… open all the certificates and the votes shall then be counted,” according to the 12th Amendment.
“There’s never a time the presiding officer of the Senate gets to make a final substantive decision about any matter,” Michael Gerhardt, a law professor at the University of North Carolina at Chapel Hill, told CNN.
The vice president “counts the numbers and says what they add up to. And that’s it,” Honig told CNN. “The idea that the vice president, on his own, can just declare a winner and reject votes is inconsistent with anything that we have in law.”
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CNN’s Jeremy Herb and Jamie Gangel contributed to this report