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The Eastman Memo

  
By:  John Russell  •  3 years ago  •  13 comments


The Eastman Memo
 

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Here is the content of the first Eastman memo

  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 . 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 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.

Here is the second Eastman memo

  • 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 (anything in the Electoral Count Act to the contrary is therefore unconstitutional).
    • If State Legislatures have certified the Trump electors, he counts those, as required by Article II (the provision of the Electoral Count Act giving the default victory to the “executive”-certified slate therefore being unconstitutional). Any combination of states totaling 38 elector votes, and TRUMP WINS.
    • If State Legislatures have not certified their own slates of electors, VP Pence determines, based on all the evidence and the letters from state legislators calling into question the executive certifications, decides to count neither slate of electors. (Note: this could be done with he gets to Arizona in the alphabetical roster, or he could defer Arizona and the other multi-slate states until the end, and then make the determination). At the end of the count, the tally would therefore be 232 for Trump, 222 for Biden. Because the 12th Amendment says “majority of electors appointed,” having determined that no electors from the 7 states were appointed (a position in accord with that taken by Harvard Law Professor Laurence Tribe   (here) ), TRUMP WINS.
    • Alternatively, VP Pence determines that because multiple electors were appointed from the 7 states but not counted because of ongoing election disputes, neither candidate has the necessary 270 elector votes, throwing the election to the House. IF the Republicans in the State Delegations stand firm, the vote there is 26 states for Trump, 23 for Biden, and 1 split vote. TRUMP WINS.
  • 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 County 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, exercise authority it has directly from Article II and also from 3 U.S.C. § 2, which provides: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
    • If ... 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.

======================================================================================

Donald Trump approved of this scenario-

  1. 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 . 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.

He is NOT fit for office. 


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JohnRussell
Professor Principal
1  author  JohnRussell    3 years ago

At his J6 speech at the Ellipse, Trump told the crowd that there was still time for Pence to follow the Eastman plans. 

I'd like Trump supporters to explain this. 

 
 
 
cjcold
Professor Quiet
1.1  cjcold  replied to  JohnRussell @1    3 years ago

ANYTHING that Trump is for, I'm against!

Trump is my moral compass.

 
 
 
Thomas
Professor Guide
1.1.1  Thomas  replied to  cjcold @1.1    3 years ago

I like cheeseburgers...

 
 
 
Drinker of the Wry
Senior Guide
1.1.2  Drinker of the Wry  replied to  cjcold @1.1    3 years ago
ANYTHING that Trump is for, I'm against!

You’re a back azimuth man.

 
 
 
devangelical
Professor Principal
1.2  devangelical  replied to  JohnRussell @1    3 years ago

prison, financial ruin, and loss of past reputation seems to be the common bond among the maga hierarchy now...

 
 
 
TᵢG
Professor Principal
3  TᵢG    3 years ago

This was Trump's last ditch effort to circumvent the CotUS and then violate the foundation of democracy by disenfranchising the electorate.

Just amazing that so many GOP loyalists will engage in the irrational, irresponsible and unpatriotic act of voting for this traitor.

And almost as bad are those who engage in deflection (and lies) in an attempt to defend Trump.

 
 
 
JohnRussell
Professor Principal
3.1  author  JohnRussell  replied to  TᵢG @3    3 years ago

It boggles the mind. 

 
 
 
JohnRussell
Professor Principal
3.2  author  JohnRussell  replied to  TᵢG @3    3 years ago

I guess all the ones that wanted to "debate" dont have anything to say here. 

 
 
 
JohnRussell
Professor Principal
4  author  JohnRussell    3 years ago
Authored by conservative law professor John Eastman, the "Eastman Memo," as it has been dubbed in the press, argued that Vice President Mike Pence, while presiding over the joint session of Congress on January 6, 2021, possessed the sole power to count electoral votes and that Pence should use this power to reject pro-Biden votes and thus deliver the White House to Trump. "Howls, of course, from the Democrats," Eastman wrote. "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." According to Eastman, "the Constitution assigns this power to the Vice President as the final arbiter. We should take all of our actions with that in mind."

In reality, the Constitution   assigns no such power   to the vice president. Eastman's scheme is bogus on its face.  

Trump’s ‘Eastman Memo’ Proposed an Unconstitutional Power Grab by the Vice President (reason.com)
 
 
 
Buzz of the Orient
Professor Expert
5  Buzz of the Orient    3 years ago

Wow!!!  What a scheme to undermine a fair and proper election.  I hope those memos help to put Trump where he belongs.  

 
 
 
TᵢG
Professor Principal
5.1  TᵢG  replied to  Buzz of the Orient @5    3 years ago

Tens of millions of Trump loyalists do not believe this took place.   These people are delusional.   Worse, there are tens of millions of GOP loyalists who do indeed realize this took place and are going to vote for Trump anyway.   After that, we have what remains of the GOP before it lost its way.

 
 
 
JohnRussell
Professor Principal
6  author  JohnRussell    3 years ago
excerpt from the book  Tired of Winning by Jonathan Karl

There is, however, no evidence Trump wanted to stop anything other than the counting of electoral votes and the official certification of his election loss. Just look at what White House counsel Pat Cipollone told Liz Cheney in his sworn deposition:

liz cheney: And who on the staff did not want people to leave the Capitol?

pat cipollone: On the staff?

liz cheney: In the White House, how about?

pat cipollone: I don’t—I—I can’t think of anybody, you know, on that day who didn’t want people to get out of the Capitol once the, you know, particularly once the violence started, no.

adam schiff: What about the president?

liz cheney: Yeah.

pat cipollone: She said the staff, so I answered.

liz cheney: No, I said in the White House.

pat cipollone: Oh, I’m sorry. I—I apologize. I thought you said who—who else on the staff. I—I—I can’t reveal communications, but obviously I think, you know.[4]

Trump’s unwillingness to take any action whatsoever to call off his supporters or to send reinforcements to protect the US Capitol is now well established. His acting defense secretary, Christopher Miller, testified he received calls while the attack was underway from Vice President Pence and from congressional leaders. They pleaded for him to send the National Guard to the Capitol. He received no call from the commander in chief.

The top military official at the Pentagon at the time, General Mark Milley, chairman of the Joint Chiefs of Staff, said the same thing. “I am not aware of anyone in the Pentagon having a conversation with President Trump on the day of the 6th,” Milley recalled. “We talked to members of the House and the Senate leadership a lot, all afternoon. We talked to Vice President Pence. We talked to Meadows in the White House. But never once did we talk to, at least to my knowledge, to President Trump.”

Milley says Pence was particularly emphatic.

“There were two or three calls with Vice President Pence. He was very animated, and he issued very explicit, very direct, unambiguous orders. There was no question about that,” Milley later said. “He was very animated, very direct, very firm to Secretary [of Defense] Miller: Get the military down here, get the Guard down here, put down this situation, et cetera.”[5]

It was precisely the time to show leadership. Violence had broken out at the US Capitol—right down the road from the White House—and Trump was missing in action.


—

It’s not that he wasn’t making any calls at all. Press Secretary Kayleigh McEnany testified that as rioters battled the police on the steps of the Capitol, Donald Trump asked for a call list of senators. He was still trying to whip votes for the lost cause of getting a majority in Congress to reject Joe Biden’s electoral votes. Those calls didn’t go well. Trump managed to get through to Senator Tommy Tuberville but only after calling Senator Mike Lee by accident. The White House phone list had the two senators’ numbers mixed up.

Tuberville took the call from Trump about fifteen minutes after rioters broke into the Capitol and at a point of maximum danger for Pence. Secret Service agents had just whisked the vice president out of the Senate chamber. A few minutes later, at 2:24 p.m.,[6] Trump posted his infamous tweet saying, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.” Just two minutes after Trump posted that tweet, rioters came within a mere forty feet of Pence as the Secret Service rushed him down the stairwell behind the Senate chamber on his way to a loading dock below the Capitol.

The crowd’s reaction to Trump’s tweet proved the rioters were taking their cues from him. In video presented by the January 6 Committee, a man with a bullhorn can be seen on the steps of the Capitol reading the tweet to the crowd. After the man reads the tweet, the crowd starts chanting, “Bring out Pence! Bring out Pence!” Those chants soon changed to the more direct and unforgettable chants of “Hang Mike Pence! Hang Mike Pence!”

With all that going on and the senators themselves about to be evacuated, Tuberville took Trump’s phone call. Here’s how he described his first call from a president as a United States senator:

“I basically told him, I said, ‘Mr. President, we’re not doing much work here right now because they just took our vice president out, and, matter of fact, I’m going to have to hang up on you,’ ” Tuberville said, recounting the conversation weeks later. “I’ve got to leave because the Secret Service and Capitol Police want us out.”[7]

And with that, the newly minted freshman senator from Alabama hung up on the president of the United States.

Once again, Mitch McConnell’s description of the state of the play was spot-on.

“A mob was assaulting the Capitol in his name,” McConnell said after casting his vote in the Senate impeachment trial. “These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him. It was obvious that only President Trump could end this. He was the only one.”[8]

That fact was blatantly obvious to most of the people at the White House that day—especially the most junior among them. Sarah Matthews, a twenty-five-year-old deputy press secretary, testified that she watched the events unfold on a television in the West Wing with twenty-eight-year-old Ben Williamson, an aide to White House chief of staff Mark Meadows. “We both recognized that the situation was escalating and it was escalating quickly, and that the president needed to be out there immediately to tell these people to go home and condemn the violence that we were seeing,” Matthews said.[9]

Cassidy Hutchinson, Meadows’s twenty-four-year-old personal assistant, described her reaction to the situation unfolding. “I remember feeling frustrated, disappointed,” she testified. “I was really sad. As an American, I was disgusted.”[10]

Judd Deere, another deputy press secretary, testified that he believed the president’s tweet saying Pence lacked courage was “extremely unhelpful” and that he told his boss, Press Secretary Kayleigh McEnany, that the White House needed to put out a message telling the rioters to go home.[11]

Most of the senior players in the White House were saying the exact same thing. As White House counsel Pat Cipollone testified, “There needed to be an immediate and forceful response, statement, public statement, that people need to leave the Capitol now.”[12]

Trump, as we now know, wasn’t listening to any of it. Kevin McCarthy said that as he was being evacuated from the Capitol, he called Trump and told him, essentially, the same thing those junior aides in the White House were saying—that he needed to tell his own supporters to go home. Trump shrugged it off, telling McCarthy the rioters just cared more about the stolen election than McCarthy did.

When Hope Hicks, who had worked for Trump even before he announced his 2016 presidential campaign and had been as close to him as anybody in the White House, watched the assault on the Capitol unfold on television, she reacted with a mix of anger and horror. She hadn’t gone to the White House that day, but she told me several people, including longtime Trump advisor Kellyanne Conway, had called her to say they had tried to reach Trump to tell him to call off the rioters. Hicks herself decided not to call because she didn’t think it would do any good.

“I didn’t call him because I felt like if the people who reached out to me to say they tried to talk to him and get him to tell people to go home weren’t successful, I wasn’t going to be either,” Hicks told me. “I was really sad. I was really angry.”[13]

As the rioters broke into the Senate chamber, Trump lamely tweeted again:

Donald J. Trump

@realDonaldTrump

Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!

2:38 PM · Jan 6, 2021

Still no condemnation of the violence. Still no call for his supporters to leave the Capitol. And we now know, Trump had to be browbeaten by his own daughter to include the words “Stay peaceful!” in a message to a group of people who were anything but peaceful. Press Secretary Kayleigh McEnany told her deputy, Sarah Matthews, “The president did not want to include any mention of peace in that tweet.”[14]

The most radical of Trump’s supporters heard his message loud and clear. Intercepted communications of those leading the assault on the Capitol captured their real-time reaction to Trump’s tweet, with one member of the Oath Keepers militia saying, “That’s saying a lot by what he didn’t say. He didn’t say not to do anything to the congressmen.”

And he didn’t say “go home.”

Chief of Staff Mark Meadows received a blizzard of text messages while the riot was underway. The messages, which Meadows turned over to the January 6 Committee, provide a window into the real-time thinking of many of those closest to Trump outside the White House. Even Trump’s own son Donald Trump Jr. begged Meadows to get his father to do something, texting, “He’s got to condemn this shit ASAP. The Capitol Police tweet is not enough.” Meadows replied, “I am pushing it hard. I agree.”

In reality, it didn’t seem Meadows was pushing hard at all. Not because he didn’t want the violence to stop, but because he was resigned to the fact that no matter what he did or said, Trump was not going to act.

 
 

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