Not all of the Trump legal adviser’s arguments challenging the election results are unserious, but all of them are wrong.
Not all of the Trump legal adviser's arguments challenging the election results are unserious, but all of them are wrong, several in multiple ways.
T he Republican Party and the conservative movement would both be best served by moving on from Donald Trump, the 2020 election controversies, and the January 6 Capitol riot. Unfortunately, Trump is not eager to go away, a faction of his hard-core supporters still care deeply about defending stolen-election theories, and some of them are agitated about the January 6 prosecutions.
Moreover, Democrats and their allies in the media and the pundit class are — for fairly obvious reasons — far more interested in talking about Trump, the 2020 election, and January 6 than in talking about the current government of the United States. So, the subject is not going away, and those of us who revisit it periodically have a duty to posterity to get the facts right.
One of the major legal advisers to the post-election Trump team was John Eastman. Eastman has the kind of resume that would normally mark him as a sober figure of the mainstream conservative movement: Clarence Thomas clerk, alumnus of the major law firm Kirkland & Ellis, Ph.D. in government, 2010 candidate for California attorney general (he lost a primary to the guy who lost, narrowly, to Kamala Harris), founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, senior fellow of the Claremont Institute, dean and professor at Chapman University School of Law, chairman of the Federalist Society’s Federalism and Separation of Powers Practice Group, and extensively published legal scholar. He has even written in these pages, albeit most recently in 2016. Eastman has long advocated against constitutional birthright citizenship — a position on which I disagree with him vigorously — but as a legal scholar, he was generally not previously regarded as a crank, and his advice to Trump on constitutional matters was well within his area of expertise.
Nonetheless, unlike many other established conservatives, Eastman has not covered himself in glory in this episode. He spoke at the January 6 “Stop the Steal” rally and attempted to convince Mike Pence that the vice president had the unilateral authority to reject seven states’ Biden electors. Examining his two-page summary of election conclusions and his more detailed six-page analysis, Eastman’s theory ran, in its simplest form, through six main points. Not all of these arguments are unserious, but all of them are wrong, several in multiple ways. The most glaring is the first point.
First, Eastman started off with the premise that “7 states have transmitted dual slates of electors to the President of the Senate,” creating a dispute over which slates to credit.
As I detailed at the time, however, there were no alternative slates of electors appointed by any state. A “state” is not just a geographic expression on the map; I could not walk into National Review’s offices in Manhattan, round up some people, and declare that “New York has named a slate of electors.” A state, in American law, means the government of the state. No state legislature, no state governor, and no arm or subdivision of any state ever purported to appoint any Trump slate of electors in any of the seven states at issue. The entirety of Eastman’s legal analysis was, therefore, based on a fantasy.
This is not a small point. Conservatives believe in rules. We have a variety of institutions and procedures that exist to hear challenges to elections, including state recount and contest procedures and federal court lawsuits. The Trump campaign availed itself of many of these. It lost. Sometimes it lost because it failed to produce evidence of its claims; more often it lost because it did not even come up with arguments that would be enough to overturn an election even if they were true. The constant failure of the campaign to make its case when it had the chance is why it got to January 6 without having a single official determination that there was a legitimate question as to who won any state.
Second, Eastman’s longer memo offers a laundry list of grievances with the legality of actions taken by Georgia, Pennsylvania, Wisconsin, Michigan, Arizona, and Nevada, and then throws in New Mexico for good measure.
Eastman offered legitimate grievances in some of the states, although his list of complaints was notably short for Arizona and Nevada, and he did not even bother making an argument about New Mexico, which Biden won by 100,000 votes and nearly ten points. He did not address whether any of those legal grievances, if credited, would change enough votes to change the outcome — which was a major reason why the courts turned many of them away.
That is even before we get into the weeds of which of the legal complaints actually involves the casting of illegal votes, rather than simply the casting of timely votes by qualified, registered voters in reliance on state actions that were in force on Election Day in some manner not entirely consistent with the state legislature’s original direction. Not every technical deviation from state election law equals an illegal voter or an illegal vote.
Third, the Twelfth Amendment says that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;” in Eastman’s reading, that empowers the president of the Senate (i.e., the vice president) to decide what to count.
But there is no precedent for the vice president invoking the Twelfth Amendment to claim unilateral power to decide, without consulting Congress, what electoral votes to count. Eastman, noticeably, cites two vice presidents (Adams and Jefferson), both acting in elections before the passage of the Twelfth Amendment. In fact, as I also detailed at the time, if you buy Eastman’s argument, you would have to believe that the Jeffersonian Congress and state legislatures in 1804 meant to give the sole power of decision over the counting of electors in that year’s presidential election to the sitting vice president, Aaron Burr — the very last man on earth that Jefferson and his party trusted, given that the whole point of the amendment was to prevent a repeat of Burr’s challenge to Jefferson in 1800.
Fourth, Eastman contends that the Electoral Count Act of 1887 unconstitutionally conflicts with the language of the Twelfth Amendment because it empowers the House and Senate to vote separately, rather than together. Eastman effectively takes the view that Congress cannot add to or alter the procedures set forth in the Twelfth Amendment, notwithstanding the vague and incomplete nature of its description of those procedures.
This is perhaps the most serious argument of the bunch, although it overlooks the significant reasons why Congress came around to a consensus view by 1887 that it had the authority to write ground rules. I disagree with former judge Michael Luttig, who advised Pence and contends that these issues should have been settled by the courts, but Congress would have been well within its rights, citing nearly two centuries of tradition and the obvious absence of detailed procedures in the Twelfth Amendment, to take the position that this was not within Pence’s power to just ride roughshod over the ECA.
Fifth, Eastman contends that the ECA also violates Article II by allowing (in its safe-harbor provision) state governors to certify electors, whereas Article II gives the sole power of appointment to the state legislature.
This point might be worth considering if a state legislature intervened to declare that its governor had certified the wrong winner. But every state in the Union delegates the actual administration of state election law to executive officials. Of course, a state executive can violate those laws in how it conducts an election, which may invalidate the election. But there is nothing illegitimate about Congress asking the governor, as the executive official charged with carrying out state laws, to certify how the process turned out. That is not, by itself, reason to throw out a slate of electors chosen in accordance with the laws written by the legislature.
Sixth, given that Eastman argues that Pence has the unilateral power of decision and is not bound by the statute, he contends that Pence should rule out the electors from the seven disputed states and declare Trump — who would then have a majority of the remaining electors — the president. In the alternative, Pence could throw the election to the House, where Republicans controlled 26 state delegations.
Where did Eastman get the idea that a president could be selected by a majority of the electors voting, rather than a majority of all electors, after throwing out a bunch of state slates? From a September 2020 op-ed by Laurence Tribe, Michael Dorf, and Neil Buchanan. Eastman seemed to believe, with stunning naïvete, that Democrats would have difficulty disagreeing with a position taken by these prominent left-leaning legal scholars, as if such a thing could deter Democrats from doing whatever they like. In any event, the fact that Laurence Tribe argues something should, in the 2020s, be enough to warn away any reasonable, self-respecting attorney.
Moreover, the Tribe/Dorf/Buchanan argument — which assumes that a state was taken out of the calculations by an objecting legislature, not by vice presidential fiat — depends upon some states simply not having “appointed” electors. That might be a plausible argument if a state sends no slate at all. But if there are competing slates and the vice president simply refuses to recognize either of them, we are really pushing the language to its breaking point.
Eastman’s fallback position also has some practical problems: It depends on House Republicans remaining united (Wyoming’s House delegation, for example, consists entirely of Liz Cheney), and it rather pointedly ignores the fact that the Senate chooses the vice president in a disputed election, so Pence throwing the race to the House might save Trump, but not Pence. True, Republicans still held a 51–48 edge in the Senate that day (David Perdue’s term had ended January 3; Kelly Loeffler, defeated the day before, served until January 20), plus Pence as the tiebreaker. But as we saw, it was much harder to hold the Senate Republican caucus together.
Taken as a whole, Eastman’s memo reeks of the kind of advice you give a client when you start with the conclusions and have to backfill your way through a long series of insurmountable obstacles. This is not what good lawyers should do.
I was critical, in November 2020, of efforts to harass qualified and respected lawyers away from representing Donald Trump in his post-election challenges. In addition to the general assault that represented on the ideals of the legal profession, there were two bad consequences that could, and did, flow from those attacks. One, there is value in showing the voters that a disgruntled candidate has had his day in court to prove his grievances. Bottle up that anger, it turns toxic. Two, if you drive out good lawyers from representing an irresponsible client, bad ones will rush in and impose fewer constraints on what the client does. Instead, the better path is to see what lawyers actually do when representing an unpopular client with a flimsy case. If the lawyers themselves misbehave, they can then be held to account.
Professor Eastman ought to face that now. At a moment when he stood between responsible people doing the right thing at political cost and hacks and shysters peddling conspiracy theories, he sided with the latter. In doing so, he helped bring on a totally unnecessary constitutional crisis and a literal riot — all to the detriment of the causes to which he has dedicated his career. That is a sad journey.