Facing the Eastman memo

The Washington Post said Thursday’s hearing produced “new details and never-before-seen videos and photos.” NPR said the hearings have revealed “new details.” USA Today said the committee “unearthed new details.” ABC News: “new details.” Politico: “new details.” Reuters: “new details.” New York Times: “new details.” You get the idea. New details about a story you already know.

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So the hearings are the Democratic Party’s politically motivated productions of previously known material. No wonder Republicans would tune out or never tune in in the first place — especially since voters overall seem to have moved on from the events of Jan. 6.

But still, there are things Republicans need to know. And one of those things is the story of conservative lawyer John Eastman. A professor at the Claremont Institute, Eastman came up with a plan in which then-Vice President Mike Pence, as presiding officer of the Senate, would throw out election results from some key states Trump had narrowly lost on Jan. 6, when Congress met to certify the vote of the Electoral College. Eastman’s proposal had no merit. Had it been enacted, the plan, which Eastman personally presented to Trump and the then-president’s top advisers, would have led to untold conflict in Congress, in Washington as a whole, and across the country. It would have been a disaster.

Eastman wrote two memos outlining his plan, a short one and a long one. They each had the same premise: There was a conflict over who had won the presidential election in several states, including Georgia, Arizona, Pennsylvania, and Wisconsin — all key to a possible Trump victory. The conflict was so intense that the states had actually submitted two sets of electors, one for Trump and one for Joe Biden, to the president of the Senate — that would be Pence — for resolution on Jan. 6. Therefore, on Jan. 6, Pence could throw out the results in some of those states and then “gavel President Trump as re-elected.” Or Pence might throw out the results and declare that the House of Representatives should decide the election. Or Pence might send the results back to the states for resolution.

The short Eastman memo began this way: “7 states have transmitted dual slates of electors to the President of the Senate.” The long memo outlined irregularities in the states and said: “Because of these illegal actions by state and local election officials … the Trump electors in the above 6 states (plus in New Mexico) met on December 14, cast their electoral votes, and transmitted those votes to the President of the Senate (Vice President Pence). There are thus dual slates of electors from 7 states.”

So the existence of “dual slates” of electors was the foundation for Eastman’s argument. If there were no “dual slates,” then there was no case for Pence to interfere with the results.

But here’s the problem: There were, in fact, no “dual slates” of electors. None. By Jan. 6, all the states had certified their results and chosen electors. It was done. Eastman’s entire scheme was based on a false premise.

Now, you may have heard that Republican Party officials in some states chose their own sets of electors, for Trump, on Dec. 14. That is apparently what Eastman was referring to. And indeed, they did do that. But 1) A political party is not a government body, like the state legislature, and 2) Party officials made clear they were choosing electors on a contingency basis — that is, they were choosing electors who could support Trump if and only if Trump succeeded in the various lawsuits he had filed challenging the election results in their states. It was the longest of long shots — it was never going to happen — but the state parties did it out of hope or desperation or whatever. In any event, the electors they chose were not their state’s real electors. They were backups for a contingency that never occurred, and everyone knew that.

I discussed it with Eastman in a conversation in January of this year. He said yes, the party-chosen electors were contingent on a court taking action but also on the possibility that “some other legitimate authority would invalidate the election.” By “other legitimate authority,” he said he meant a state legislature.

But that didn’t happen, either. “The contingencies had not occurred,” Eastman conceded. “So the question is whether Jan. 6 is a definitive, dispositive day,” the day the final results of the election would be certified and Biden would, beyond all question, be president-elect. Eastman concluded that Jan. 6 was not dispositive, “given the unconstitutionality that had occurred in the conduct of the election.” So even without the dual slates of electors, Eastman believed Pence could still throw the election results out. But the bottom line was that no “legitimate authority” had invalidated the election or certified a Trump victory. Even though the foundation of his plan with “dual slates” fell apart, Eastman still wanted to throw out the results in states Trump lost.

Thursday’s committee hearing outlined the extensive back-and-forth that went on among Eastman, Pence’s office, and Trump in the days leading up to Jan. 6 and on Jan. 6 itself. Pence and his top aides strongly rejected Eastman’s plan. They resisted Trump’s pressure to do what Eastman proposed. When the riot erupted and Pence was moved to a secure place in the Capitol, the vice president would not leave until the work of certification was done on the night of Jan. 6.

What is the point of examining the Eastman affair? First, there is an intrinsic value in knowing what happened. Even if Republicans choose not to watch the politically motivated hearings, they still need to know what happened in the Jan. 6 matter. And the second point is what it says about Trump.

By Jan. 6, all the states had certified their election results. They had chosen their electors. There were no avenues left to challenge the election. Certifying those electors on Jan. 6 should have been a formality. Trump had had the period from Nov. 3, Election Day, until Dec. 14, when the Electoral College voted, to challenge the results. He did not seriously and systematically investigate rumors of election fraud, and he came to rely on lawyers who came up with crazy ideas like the Great Venezuelan Hugo Chavez Communist Dominion Smartmatic ballot-changing theory. Trump wasted precious time, and even if there were evidence of fraud so widespread that it would change the results of the election — and there was not — Trump would not have found it by relying on the likes of Sidney Powell, Rudy Giuliani, Lin Wood, and others.

The day for Trump to drop his challenges was Dec. 14, 2020, when the Electoral College voted. But he did not stop. Even before Dec. 14 arrived, some aides began hinting that the Electoral College vote would not be the final word — that would come on Jan. 6. It was a disastrous idea. As I wrote in January 2021, “With the exception of the COVID vaccine, everything Trump did after the election has led to catastrophe for himself, the Republican Party, and the nation.”

Trump’s defenders will point out, correctly, that he was unfairly targeted even before he took office. Trump’s enemies were literally talking about impeaching him before he was sworn in. They abused law enforcement authority in an effort to get him. Defenders will also point out, correctly, that some House Democrats did not show much respect for the electoral system when they objected to the certification of Electoral College votes after Republicans were elected president in 2000, 2004, and 2016. Defenders will also point out that, as far as political violence is concerned, many media voices were not particularly outraged during the Black Lives Matter riots in the summer of 2020.

It’s all true. But the fact is, in January 2021, President Donald Trump had an obligation to respect the electoral process and the verdict that he had tried, but failed, to overturn. He did not do that. Now, even though Democrats have baldly political motives for dwelling on it, Republicans still need to know what happened.

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