The Eastman Memo
Here is the content of the first Eastman memo
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
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Donald Trump approved of this scenario-
- 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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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.
ANYTHING that Trump is for, I'm against!
Trump is my moral compass.
I like cheeseburgers...
You’re a back azimuth man.
prison, financial ruin, and loss of past reputation seems to be the common bond among the maga hierarchy now...
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.
It boggles the mind.
I guess all the ones that wanted to "debate" dont have anything to say here.
Wow!!! What a scheme to undermine a fair and proper election. I hope those memos help to put Trump where he belongs.
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.