How to prevent the legal strategy that nearly defeated the last election from ending democracy
Appalling as Eastman’s public performance was on January 6, his behind-the-scenes machinations were worse. Apparently, two days earlier, Eastman had met in the Oval Office with Trump and Vice President Mike Pence to persuade Pence to abuse his ceremonial role under the Constitution and hand Trump an undeserved second term.
A recently discovered Memo written by Eastman reveals an incredibly ridiculous legal strategy. The memo asks the vice president to set aside votes from seven states won by Biden on the false grounds that there were “ongoing disputes” over the outcome of elections in those states. Pence could then declare Trump the winner because he would have the majority of the Electoral College’s remaining votes after the exclusion of the so-called “contested” states.
To our surprise, Eastman’s note includes a link to an essay we wrote in September 2020 explaining that a then-ongoing ploy to launch the presidential election to the House of Representatives was based on a manifestly misreading of the Twelfth Amendment. Our analysis has shown that in the event of legitimate exclusion of voters from certain states, the candidate receiving the majority of the electoral votes actually cast would win. Eastman apparently took this as a challenge to see how many states he could illegally exclude.
It’s tempting to try and use Eastman’s memo against the 2024 Republican presidential candidate, especially if the candidate is Trump. This would place the outcome entirely in the hands of Vice President Kamala Harris. The irony would be delightful because Eastman’s prior contact with infamy was occasioned by his absurd assertion that Harris was not eligible for the vice presidency and was not even a citizen because her parents may have been in the United States on student visas when she was born in Oakland, California. The Fourteenth Amendment and a century and a half of Supreme Court jurisprudence clearly goes against at Eastman’s delivery.
Despite the temptation to engage in some sort of vice-presidential jujitsu, the memo’s absurd coup plan cannot be taken seriously. In addition to the far-fetched claim that a few rogue lawmakers loyal to Trump might cast doubt on the Electoral College’s officially certified votes, the memo’s premise that the Vice President could unilaterally identify and resolve presidential election disputes would make a mockery of American democracy. In almost every presidential election of modern times, the incumbent vice president was either a candidate for reelection or for the presidency. Neither the text of the Constitution nor any sane purpose that anyone could attribute to its framers would allow such self-operation.
Eastman’s memo is ridiculously stupid. We don’t laugh, however, as the past can be a prelude. The memo and the larger effort to enlist Pence was the penultimate step in a multi-part strategy to steal Trump’s election, a strategy that culminated in the mob’s assault on Capitol Hill. The early stages of Trump’s coup attempt included numerous entirely frivolous court cases and patently illegal pressure campaigns on election officials and state lawmakers. They failed because a sufficient number of Republican-appointed judges and elected Republicans resisted Trump and the rule of law.
A recovery in 2024 could end differently for at least two reasons. First, Trump and his allies have purged their party of everyone except the kind of loyalists who will do whatever he wants, regardless of the facts and the law. Second, Republican-dominated state legislatures across the country – including states Biden won in 2020 – are making voting harder than ever and, even more concerning, handing the voter certification mechanism to party apparatchiks. . In 2024, these measures could result in what the Democratic representative Adam Schiff from California rightly called “a patina of legality” to the efforts to overturn an electoral victory by the democratic ticket. The peril will be especially severe if Republicans take control of both houses of Congress in next year’s midterm elections.
What is there to do? Congress is expected to pass the pending bill that protects the right to vote. It should also supplement it to clarify that state laws that disproportionately reject minority voters’ votes are no more permitted than those that make it difficult for those voters to vote. Congress could also clarify the Electoral Tally Act – passed in the wake of the disastrous 1876 election – to prevent state legislatures from overriding the popular vote in their states. Article II, section 1 of the Constitution expressly authorizes Congress to “determine the moment of the choice of the voters”. Congress should clarify that after a popular election has taken place, its result cannot be changed.
Passing a law, of course, requires Senate closure, and two Democratic senators continue to resist calls to abolish or even narrowly amend the filibuster. We understand the appeal of tradition, but the current version of this Senate rule stands in the way of national legislation desperately needed to preserve representative government itself.
The federal executive must also step up. As we learn more about the events leading up to the capture of the Capitol, it is increasingly clear that Trump himself committed the federal crimes of incitement to insurgency and seditious plot. Attorney General Merrick Garland would be wrong to prosecute Trump or anyone else in an attempt to eliminate a political opponent. Yet it would be equally wrong not to indict Trump – if the evidence warrants a charge – to avoid appearing to be politically motivated prosecution.
Lack of politically motivated prosecutions is as bad as politically motivated prosecutions. Even so, if Garland chooses to avoid making Trump a martyr, the Justice Department must at least pursue criminal charges against all of Trump’s treacherous conspirators.
Trumpism with or without Trump remains a peril, as his unprecedented appetite for authoritarianism has spread to his supporters and enablers. The continued viability of the United States as a constitutional republic requires both that the seditionists be brought to justice and that we do all we can to repair the weaknesses in our system that they have exposed.
Laurence H. Tribe is Professor Emeritus of Constitutional Law at Carl M. Loeb University, Harvard University. Follow him on Twitter @tribelaw. Neil H. Buchanan is the James J. Freeland Eminent Scholar in Taxation at the Levin College of Law, University of Florida. Michael C. Dorf is Robert S. Stevens Professor of Law at Cornell University. He blogs on dorfonlaw.org.