Monday, September 20, 2021

How An Essay by Neil Buchanan, Laurence Tribe, and Me Figured in Trump's Effort to Destroy the Republic

by Michael C. Dorf

You really can't make this stuff up. Here's the latest revelation from the forthcoming Peril by Bob Woodward and Robert Costa: In the days leading up to January 6, Donald Trump enlisted now-former-Chapman-law-professor John Eastman to try to persuade Mike Pence that as Vice President he had the unilateral authority to throw out the electoral votes of enough states to give Trump the lead and then declare him the winner of the election. CNN reports that Woodward and Costa retell details of a January 4 Oval Office meeting in which Trump said to Pence: "You really need to listen to John [Eastman]. He's a respected constitutional scholar. Hear him out." Fortunately, Pence did not listen to Eastman, instead receiving sound and sober advice from his fellow Hoosier VP Dan Quayle, who, for all his shortcomings, is apparently a hero of the American republic.

Meanwhile, CNN has also released a two-page memo supposedly written by Eastman and purportedly shopped by the Trumpistas to Pence. Titled "January 6 Scenario," the memo contains a number of fantastic assertions, including the contention that Pence should announce the existence of "ongoing disputes" in seven states, despite the fact that not a single state sent more than one official slate of electors--even though a minority of individual Trump-loyal state legislators in various states purported to certify Trump's electors. I would go into more detail about the memo's absurd contentions, but it's short enough that readers can examine it themselves.

I'll focus the balance of this brief essay on the one and only external source cited in the memo (purportedly) from Eastman: a September 30, 2020 essay on Verdict by Professor Neil Buchanan, Professor Laurence Tribe, and me. Although the essay lists us authors alphabetically, and thus has Professor Tribe last, the memo refers to it as the work of Tribe alone, no doubt because Professor Tribe is a bĂȘte noire for the right, the epitome of a liberal Democrat. Eastman (if he indeed authored the memo, which lists no author) probably thought that by citing Tribe he would hoist Joe Biden, Nancy Pelosi, and Chuck Schumer by their own petards because, you know, no Democrat could possibly take a different position from Tribe on anything. That's absurd, of course, but no more absurd than the use the memo purports to make of our essay.

Professors Buchanan and Tribe and I, together and separately, wrote a great many essays before and after the election about various legal shenanigans Trump and his loyalists would likely attempt. To even our surprise, they attempted just about everything we feared, and then some. In our September 30 essay, we explained why one potential gambit--aimed at throwing the election into the House of Representatives, where the majority of Republican delegations would presumably disregard the facts to choose Trump--should fail even on the assumptions then being floated by Trump's people. In particular, we argued that even if neither candidate received 270 electoral votes, so long as Biden (or Trump) received a majority of the electors "appointed," the election victory would go to the candidate with more votes. Under the plain language of the Twelfth Amendment, we explained, the discarded electoral votes would be taken out of the denominator as well as the numerator. Only an exact tie could throw the election into the House.

The memo reportedly produced by Eastman says aha! If Pence throws out the electoral votes of seven "contested" states, that leaves Trump with a majority of the electors appointed, as even that demon Tribe agrees. 

Is that right? Well sure, I suppose after a fashion, but the Eastman memo derives support from the Buchanan/Dorf/Tribe analysis for a proposition that only arises after one has engaged in an intellectual exercise of deranged fantasy. First, one must conclude that there were contested electoral slates in seven states, when there were in fact contested electoral slates in zero states. Second, one must disregard the Electoral Count Act based on the argument that it's unconstitutional (which Buchanan, Tribe, and I preemptively deemed "the height of hypocrisy"). Third, one would have to assume that the Constitution lodges in the Vice President--who is frequently a candidate for re-election or for the Presidency--the unilateral power to choose the President.

The argument that the Electoral Count Act is unconstitutional is not entirely frivolous, which is why we described its invocation as merely hypocritical. However, the other two claims are frivolous. The mere fact that Eastman offered them (assuming CNN's attribution of authorship is correct) suffices to rebut Trump's description of Eastman as "a respected constitutional scholar," although there was already reason to withhold respect.

That said, Eastman does not appear to be incompetent. He was a constitutional scholar if not a respected one. And he had an impressive resume before bathing himself in shame by bending the knee to Trump. In that respect, Eastman is no different from the likes of Ted Cruz, Josh Hawley, and other members of the conservative legal elite who, when faced with the choice between the barest show of fidelity to the values they purport to espouse and ingratiating themselves to the base of a political party beholden to a vindictive, racist, sexist, narcissistic authoritarian, chose the latter.

I never thought I'd write anything like this, but I'm glad that the former vice president had the good sense to ignore a seditious memo that cited my work in favor of the sound advice of Dan Quayle.

**Update on morning of Sept 21: I've left the foregoing as I wrote it last night--expressing uncertainty about whether Eastman really wrote the memo--but the current version of the CNN story leaves little doubt. It says: "Eastman told the Washington Post that his memo merely 'explored all options that had been proposed.'" That's false, because the memo refers to "the scenario we propose," not "an option to explore" or the like. However, the CNN story does imply that Eastman tacitly acknowledged authorship to the Post. In addition, someone with greater computer sleuthing skills than I possess informs me that the author field in the metadata in the pdf (created by MS-Word) reads "Eastman, John." 


dell said...

Ah, but if Eastman had put that in a Blue Book, what grade would you have given it, since you would have been buttered up?

Joe said...

The Quayle bit is amusing, but don't think Pence was like "I really want to do this, but damn the great Dan Quayle tells me 'no,' so I ... darn! I guess I can't."

The idea that each state gets one vote when the thing is tossed to the House is one of those things that -- like the popular vote not mattering twice in sixteen years -- is a ticking time bomb just waiting to happen.

The power of one House member in a small state having a lot of power mattered back in 1800. It can today. And, it is ridiculous.

Michael Byrnes said...

I believe that Mike Pence is now the one and only true "Heroe of the Republic."

Michael A Livingston said...

I won’t dispute the constitutional law points, but I would merely say this: If you want to avoid a Trump Redux (and note that Putin, Berlusconi, and even Mussolini after a fashion had second rounds), I think the best strategy is to make sure that the next election isn’t particularly close. While the arguments above sound persuasive, the main thing that prevented the Eastman Strategy from succeeding was the fact that there were simply too many States that needed to be disregarded for it to work. If the election came down to (say) Pennsylvania, from what I know of PA Republicans, I wouldn’t bet against it succeeding next time. I understand that Dorf on Law is a legal blog, but you do dabble in politics on occasion, and in this case it’s difficult to draw the line.

Michael A Livingston said...

PS The reason for their emphasizing Tribe may also have been that—while surely no smarter than Buchanan or Dorf—he does have a certain degree of seniority.

Bolt said...

Per Seth Abramson at Proof:

John Eastman did an interview with Steve Bannon on Bannon’s War Roompodcast on January 25, 2021. In it, Eastman admits that Team Trump’s goal on January 6 was to “delay things a little bit” so that GOP-run state legislatures could declare Joe Biden’s electors illegally seated and send Trump electors to Washington instead. As Proof has repeatedly noted, Team Trump’s plan on January 6 was not to install Donald Trump as the certified president, but to use whatever means necessary—including a giant armed mob—to make it impossible for Congress to conduct its business on January 6. Any resulting delay would have been used by GOP legislatures to swap out Biden electors for Trump electors and thereby hand Trump a second term (via an administrative coup) during any rescheduled joint session of Congress. It is essential that the House Select Committee on January 6 understand that the ambition of the Trumpist irregulars on Insurrection Day was to ensure that Trump’s legal team would have the “five- to ten-day delay” (Eastman) it was then demanding in order to—at the state level rather than the federal level—reverse the certified results of the November presidential election.

This interview is significant for a second, perhaps more important reason. According to Eastman, a statutory provision of intense interest to Trump’s legal team on January 6 was “a subsection of the Electoral Count Act of 1887” that, per Eastman, establishes that “once the joint session begins, it can’t be adjourned”—a subsection that Trump’s legal team was particularly focused on getting Vice President Mike Pence to ignore in the lead-up to Insurrection Day. Pence had apparently told Eastman on January 3 or January 4, in the Oval Office, that there was no legal authority for him to adjourn the joint session purely in response to letters from GOP state legislators claiming that their state elections may have been fraudulent. What this means is that going into January 6, the Trump legal team that had gathered at the Willard Hotel knew that it needed something more dramatic than allegations of widespread election fraud from elected Republican officials in several states. As an attorney, I can think of no claim more grave—if true; certainly, it is not as to the November election—than a fraudulent election; what this suggests is that Trump and his team knew they needed to present Pence with something more convincing than the most convincing legal claim in order to get him to adjourn the joint session. A violent attack on the Capitol that would make the continuation of the session impossible without a risk of loss of life is one of the few phenomena one can imagine that would exceed in emergency the grounds for adjournment Pence had already rejected when presented them by Trump’s lawyers.

Moreover, Eastman was very focused, in speaking to Bannon, on a statutory provision indicating that debate during a joint certification session can’t go on for more than two hours. So why, then, was Eastman’s Team Trump colleague Rudy Giuliani secretly calling Republican members of Congress—as indeed Trump did himself—to extend the duration of the joint session? It would seem that this was a means to engage a sort of “pincer” move: either Pence would be forced to adjourn the joint session because of the violence that Trump had incited, or he would be forced to adjourn it because the session’s violation of the Act authorizing it required additional litigation from Team Trump or a historic debate on how to proceed by Trump’s allies in Congress (or both). 

So why does this matter? Because this appears to be a blueprint for what the GOP will do in 2024 via GOP-run state legislatures—no matter who should win at the ballot box."

Unknown said...

Changing and restricting voting rights of people of color, in their minds, will make Republican victory a landslide, but cheaters never win.