In the lead-up to the Jan. 6 riot, John Eastman gave President Trump legal advice that was terrible, and now he’s trying to argue it was merely awful. In a letter to these pages on Nov. 14, Mr. Eastman, a former law professor of some distinction, denies he argued that Vice President Mike Pence “could unilaterally reject electoral votes and simply declare President Trump re-elected.”
Mr. Eastman claims he made only a modest proposal, Swiftian allusion intended: “The advice I gave to then-Vice President Pence was that he accede to requests from hundreds of state lawmakers to delay proceedings for a short time so that they could assess the effect of illegalities on the conduct of the election.” Mr. Eastman specifically refers to a conversation during an Oval Office meeting on Jan. 4, 2021.
But his position is contradicted by the sworn testimony of Mr. Pence’s legal counsel, Greg Jacob. According to Mr. Jacob, Mr. Eastman argued at the Jan. 4 meeting that it would, in fact, be “legally viable” for the VP to reject electors. Mr. Eastman advised against this plan only because it would be “less politically palatable.” That concession apparently didn’t last.
The debate was renewed the next morning, Jan. 5. “When Mr. Eastman came in,” Mr. Jacob testified, “he said, I’m here to request that you reject the electors. So on the 4th, that had been the path that he had said, I’m not recommending that you do that. But on the 5th, he came in and expressly requested that.” A piece of Mr. Jacob’s handwritten notes is in the public record. The top reads: “John Eastman meeting 1/5/21.” Then: “Requesting VP reject.”
There also are the two memos Mr. Eastman produced in advance of Jan. 6, which circulated among Mr. Trump’s advisers. “Here’s the scenario we propose,” the first one says. The VP “announces that because of the ongoing disputes,” seven states have “no electors that can be deemed validly appointed,” and “Pence then gavels President Trump as re-elected.” The second memo offers a menu of options. One is for Mr. Pence to outright reject electors.
A final thing to point out is that the argument in Mr. Eastman’s letter isn’t a defense. It’s more like a plea bargain to a lesser transgression against the American republic. Asking Mr. Pence to reverse the 2020 election directly was appalling. Asking the VP to stall the Electoral College, so that state legislatures could reverse the 2020 election, was also appalling.
Suppose Mr. Pence had tried to delay. The result would have been a constitutional crisis. Federal law sets the time for choosing presidential electors, and it’s Election Day in November. Mr. Trump wanted state lawmakers to overrule the will of the voters two months later, and two weeks before the scheduled transfer of power, despite no proof of widespread voter fraud. Doing this could have led to violence.
Also, the 12th Amendment says the Electoral College shall be tallied “in the presence of the Senate and House of Representatives.” Democrats controlled the House. Speaker Nancy Pelosi would not have permitted any joint session to reconvene and tally those phony electors. With no Electoral College count by noon on Jan. 20, who’s next in line to become President? The Speaker of the House. Or perhaps the Supreme Court would have intervened.
Getting this history right matters. “The Vice President has the power to reject fraudulently chosen electors,” Mr. Trump tweeted on January 5, 2021, the day before the riot. He didn’t come up with that idea himself.
The Wall Street Journal
