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 bête 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."