John Eastman's "I'm Just a Mainstream Constitutional Lawyer" Defense
Whether and when John Eastman faces a jury of his peers in Georgia for his efforts to overturn the results of the 2020 Presidential election remain to be seen, but his first trial is already underway in California, where the issue is whether he will be disbarred. Eastman is trying to persuade the judge that in promoting the plan for Vice President Pence to disqualify slates of Biden electors and give the election to Trump he was just engaging in mainstream constitutional lawyering. To make that point, Eastman has relied on testimony from Berkeley Law Professor John Yoo.
That might seem an odd choice, given that Professor Yoo isn't himself all that mainstream. If you had your choice of constitutional law professors to testify on your behalf that you're not an authoritarian kook, you probably would want to pick a constitutional law professor whose classes aren't picketed by people clad in orange jumpsuits decrying him as a war criminal.
But what Professor Yoo lacks in mainstreaminess, he makes up for in willingness to stake out highly unconventional positions. It would have been difficult for Eastman to find another well-known constitutional law professor to enthusiastically testify that the 12th Amendment is best read to give unilateral power to decide Presidential elections to the Vice President. Yet that's what Professor Yoo said. He will be cross-examined tomorrow.
Even entirely apart from Professor Yoo's reputational challenges, his substantive view is outlandish. After all, in most Presidential elections in living memory, the sitting Vice President was a candidate for either re-election or the Presidency itself. Assigning the power to decide the election to someone who is likely a candidate is a terrible idea that should not be read into the Constitution unless that conclusion is completely unavoidable. Thus, nearly everyone to have considered the matter seriously--and thankfully, that includes Mike Pence himself--has concluded that the VP's role on January 6th is ceremonial.
Nonetheless, Eastman appears to be staking his license to practice law on the "I'm just a mainstream lawyer" defense and claiming that his radical and anti-democratic views are widely held by serious constitutional scholars across the political spectrum. Based on his track record, this defense is very weak. It relies on gross distortions of the views of such scholars to make them sound like Eastman's own radical claims. I know because I have already been on the receiving end of just such a distortion from Eastman.
On January 3, 2021, Eastman wrote a memo to the Trump team in which he outlined a scenario in which VP Mike Pence would discard electoral votes for Biden from Georgia, Pennsylvania, Wisconsin, Michigan, Arizona, and Nevada. He stated in the memo that this plan would lawfully result in the election of Trump. Moreover, Eastman claimed that he was taking "a position in accord with that taken by Harvard Law Professor Laurence Tribe (here)." That "here" link takes readers to a September 30, 2020 essay on Verdict co-authored by Professor Tribe, Professor Buchanan, and me.
So, is that right? Was Eastman's scheming simply an application of mainstream constitutional analysis by liberal constitutional scholars, including me?
No, of course not. When the Eastman memo came to light in September 2021, Professor Tribe, Professor Buchanan, and I were shocked to see that it claimed our Verdict column as any kind of authority. Hence, we wrote an op-ed in The Boston Globe explaining that Eastman had totally distorted our argument.
Our 2020 Verdict column was devoted to showing that a great many people were misreading the plain text of the Constitution when they asserted that if neither candidate received 270 or more Electoral College votes, the House of Representatives would choose a President. As we explained, that's false. The 12th Amendment does not require a winning candidate to receive a majority of the Electoral votes that are in theory available (538). It requires only that a winning candidate receive a majority of the "electors appointed." Hence, as we explained in our column, Trump couldn't throw the election to the House of Representatives by simply getting Biden's count below 270. He would have to disqualify enough of Biden's Electoral votes so that Biden would have fewer than Trump. If so, Trump would win. Only if the result were a tie would the election go to the House.
Eastman's January 3 memo proposed that VP Pence could disqualify the votes of six states, so that Trump would "win" 232-222. In explaining why that's the math, Eastman did rely on the Buchanan/Dorf/Tribe observation that under the 12th Amendment a candidate need only receive a majority of Electoral votes that are counted. But that agreement about arithmetic was the only way in which the Eastman proposal was "in accord with" any position we took. As we wrote in our Globe op-ed: "Our analysis showed that in the event some states’ electors had been legitimately excluded, the candidate receiving the majority of electoral votes actually cast would win. Eastman apparently took this as a challenge to see how many states he could exclude illegitimately."
And yet, despite our Globe op-ed's thorough debunking of Eastman's claim that he was simply following the same playbook as a famous liberal law professor (and two liberal law professors not worth mentioning), Eastman will likely continue to make his demonstrably false claim. After all, Eastman was already re-bunking his "Tribe supports me" claim almost immediately after we had debunked it. Our Globe op-ed ran on September 27, 2021. Just three days later--surely enough time for Eastman to have been made aware of the debunking but not enough time for him to have forgotten it--Eastman wrote an essay for American Greatness in which he made this assertion:
Tribe has accused me of taking his argument “wholly out of context,” but the only change in the “context” is that Tribe’s preferred candidate would have prevailed in his hypothetical, but not in the scenario presented by the actual alternate slates of electors who cast votes in December.
The phrase "wholly out of context" appears nowhere in our Globe op-ed. It is an apparent reference to a tweet that Professor Tribe sent out a week before our op-ed appeared and ten days before Eastman's American Greatness essay. It's hard to believe that a minimally competent lawyer concerned about his public reputation wouldn't have wondered to himself whether Professor Tribe hadn't in the interim written anything longer than a tweet, so I strongly suspect that Eastman responded to the tweet rather than the op-ed because he had no good response to the latter.
But let's give Eastman the benefit of any doubt and assume that he incompetently failed to minimally investigate what else Professor Tribe had written in response to Eastman's memo. Even so, Eastman's claim is absurd.
To begin, the accusation that Professor Tribe was outcome-driven is just wrong. Eastman suggests that Professor Tribe was happy to use the 12th Amendment to steal an election for Biden but not to see it used to steal an election for Trump. But the point of our Verdict column was not that Biden could or should somehow use the 12th Amendment to his benefit. The point was that it wouldn't help Trump if he managed to disqualify electors from only a handful of states. And Professor Tribe's tweet didn't deny that Eastman's math was right. His (and our) quarrel was with the mechanisms Eastman proposed to whittle the Biden number down to 232: mechanisms that we never came remotely close to endorsing in our Verdict column--indeed, mechanisms that we and every responsible observer decried.
Thus, Professor Tribe was absolutely correct in that tweet to say that Eastman took us totally out of context. The context in which Eastman invoked the denominator referenced in the 12th Amendment differed from the context in which we had invoked it in at least four very important ways:
(1) As we noted in our original Verdict column, even the least illegal version of the Trump scheme violated the Electoral Count Act. Our column anticipated that hypocritical lawyers working for Trump would say that the Electoral Count Act is unconstitutional, despite the Supreme Court's reliance on it in Bush v. Gore. Sure enough, when Eastman's January 3 memo came out, we learned that it depended on the assertion that the Electoral Count Act is unconstitutional.
(2) We imagined in our Verdict column that for Trump to engineer a victory in Congress on January 6, he would rely on state legislatures actually voting to certify Trump's slates of electors. It never occurred to us that Trump's legal team (i.e., Eastman and Kenneth Chesebro) would attempt to manufacture a contest over competing slates of electors using fake electors who were never chosen by any official state body.
(3) Eastman's memo named Professor Tribe and linked the Buchanan/Dorf/Tribe Verdict column in a scenario in which Eastman was assuming that VP Pence unilaterally decides which ballots to count. As I noted above in describing Professor Yoo's ludicrous testimony in support of Eastman, that is a wildly implausible and affirmatively dangerous claim. We made the same point in our Globe op-ed. Respected conservative former federal appeals court judge Michael Luttig had also made that point to Mike Pence just before January 6, 2021.
(4) The factual predicate for the plot that Eastman (and Chesebro) hatched was that state and federal courts had ordered or allowed departures from the letter of state election law--and that these allowances deprived state legislatures of their constitutional authority under Article II. But of course the Trump legal team had lost all of the cases in which they made these claims, and the Supreme Court had not intervened despite being asked to do so by Trump and his allies. Nothing Professor Buchanan, Professor Tribe, and I said in our 2020 Verdict column remotely suggested that we thought that the Vice President could reject Electoral votes based on arguments that had been aired in and rejected by courts.
Even taken individually, any one of those four differences in "context" is more than sufficient to make clear that Eastman had no business claiming that his views were in the same ballpark as those of Professor Tribe. Together, the differences in context are overwhelming.
Nonetheless, I fully expect Eastman to continue to make the claim that his January 3 memo was simply stating points that even liberals like Professor Tribe had made. That will almost certainly be dishonest. The only possible explanation other than that Eastman would be using the Buchanan/Dorf/Tribe Verdict column dishonestly is that Eastman is an incompetent lawyer. But that itself would seem relevant to whether he should be able to continue to practice law.