The Washington PostDemocracy Dies in Darkness

The Eastman memo was alarming. Legally speaking, it was also nonsense.

The wild scenarios a Trump attorney dreamed up would never have worked out

Lawyer John Eastman speaks next to Rudolph W. Giuliani at a rally near the White House on Jan. 6. A memo that Eastman wrote about how then-President Donald Trump could subvert the 2020 election results recently surfaced. (Jim Bourg/Reuters)

After Joe Biden won the 2020 election but before the results were certified, John Eastman, a former law professor at Chapman University’s School of Law and an active member of the Federalist Society, outlined a six-step scheme to overturn the election and hand the presidency back to Donald Trump. Eastman’s scheme, which was revealed this week, had no chance of succeeding — but the memo tells us much about Trump’s intentions and state of mind on Jan. 6, when a horde of his supporters stormed the Capitol to try to obstruct the constitutional process for confirming the election result.

Eastman detailed the plan for what would happen Jan. 6, the day Congress would count electoral votes. Under this scheme, Vice President Mike Pence would begin counting electors from the states alphabetically, “without conceding” that he was following the procedure outlined in the Electoral Count Act. When reaching Arizona, Pence would announce that “he has multiple slates of electors and so is going to defer decision on that until finishing the other states.” This, as Eastman intended, would be “the first break with the procedure set out in the [Electoral Count] Act. ”

Even if Pence had agreed to go along with this scheme — which he didn’t — the plan would have gone off the rails right there because, in fact, no states put forward alternate slates of electors. The “alternate electors” were Trump allies claiming, without authority, to be electors. Members of Congress would have, therefore, objected immediately to Pence’s false statement and his refusal to count certified electors. Chaos would have ensued.

No, Jan. 6 wasn't another chance for Trump to reverse the election

But as Eastman envisioned the procedure unfolding, Pence would simply set aside the electors from seven states with “ongoing disputes,” and the assembled lawmakers would sit silently by.

Then, according to Eastman’s memo, after counting each state and concluding with Wyoming, the last state in alphabetical order, Pence would announce that “because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States.” Pence would then announce that Trump had won the majority of valid votes, whereupon he “gavels President Trump as reelected.”

Eastman’s fantastic scenario is based on the laughable claim in his memo that the “Constitution assigns the power to the Vice President as the ultimate arbiter.” The idea is absurd on its face. If, in fact, the Constitution empowered the sitting vice president to select the next president, Vice President Al Gore in the 2000 election could have rejected the Florida electors and declared himself elected. Also under this theory, in 2024, the Democrats can send pretend electors from red states, and Vice President Harris can “resolve the dispute” by rejecting the certified electors and declaring President Biden reelected regardless of how the vote actually turns out.

Eastman anticipated that there would be objections after Pence announced Trump’s reelection. One possibility his memo envisioned was that Democrats would insist on following the Electoral Count Act, which requires disputes to be resolved separately by each house of Congress.

But in reality, this wouldn’t have happened. The proceedings would have broken down entirely because there were no disputes. The “disputes” had been manufactured and, as numerous courts held, were not based on the law or facts. And Pence didn’t have the authority to do anything other than to count the electoral votes.

That didn’t stop Eastman, who imagined that Congress would go along with Pence’s pronouncement that there were “disputes” to resolve and had the next step prepared. Senate Republicans — the memo suggests Sen. Ted Cruz (Tex.) or Rand Paul (Ky.) — would gum up the works by declaring the Electoral Count Act unconstitutional and demanding “normal rules (which includes the filibuster).” Eastman imagined this would create a “stalemate” for the Democrats to take to court. He further imagined that the courts (which had already indicated by early January that they were not willing to set aside the will of the voters and hand Trump the election) would take the patently absurd position that the Constitution grants the sitting vice president the power to decide the winner of a presidential election.

Trump couldn’t steal the election. That doesn’t mean warnings were overblown.

The scheme also presumed that the American people, the vast majority of whom knew that Trump lost the election, would tolerate Trump setting aside the results of the election and remaining in power. After a year that saw passionate nationwide protests over George Floyd’s death, it’s clear that Americans would not have sat back and tolerated such a coup. It would have been obvious to everyone that if Trump could indeed overturn an election and remain in power, nothing at all could constrain him. The president who once said that Americans should give lifetime presidential appointments “a shot someday” would, in effect, be a dictator. It was never within the realm of possibility that Americans would passively tolerate this, and at any rate, U.S. military leaders had no interest in using force to keep Trump in power, either.

While Eastman’s scheme would not have succeeded in keeping Trump in power, it could have given further credence to his lie that the election had been stolen from him, thus stoking more unrest and resentment among his supporters. It also could have caused widespread chaos and perhaps additional violence. After all, at the precise moment that Pence was supposed to enact this plan, a mob of insurrectionists was prepared to do battle on Trump’s behalf.

The harebrained scheme outlined in Eastman’s memo would not have kept Trump in office, but it nonetheless has evidentiary value. Trump introduced Eastman at a rally near the White House as “one of the most brilliant lawyers in the country.” Trump also appeared to refer to the scheme outlined in Eastman’s memo (which was, of course, not yet available to the public) when he told the assembled crowd on Jan. 6 that Eastman “looked at this and he said, ‘What an absolute disgrace that this can be happening to our Constitution.’ And he looked at Mike Pence, and I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win.”

As historian Heather Cox Richardson pointed out, the memo thus serves as evidence that Trump intended to subvert the election and have himself declared the winner.

The memo also makes clear exactly why Trump turned the crowd that day against Pence. At about noon Jan. 6, Trump told rallygoers that if Pence didn’t “come through,” it would be a “sad day for our country.” The mob got the message. Several hours later, the Trump supporters roamed the Capitol calling out for Pence to be hanged.

So despite its ludicrous reasoning and absurd interpretation of the Constitution, the memo will no doubt be useful to the House Select Committee to Investigate the January 6 Attack on the United States Capitol as lawmakers look at evidence of Trump’s intentions.

The Jan. 6 insurrection

The report: The Jan. 6 committee released its final report, marking the culmination of an 18-month investigation into the violent insurrection. Read The Post’s analysis about the committee’s new findings and conclusions.

The final hearing: The House committee investigating the attack on the U.S. Capitol held its final public meeting where members referred four criminal charges against former president Donald Trump and others to the Justice Department. Here’s what the criminal referrals mean.

The riot: On Jan. 6, 2021, a pro-Trump mob stormed the U.S. Capitol in an attempt to stop the certification of the 2020 election results. Five people died on that day or in the immediate aftermath, and 140 police officers were assaulted.

Inside the siege: During the rampage, rioters came perilously close to penetrating the inner sanctums of the building while lawmakers were still there, including former vice president Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on Jan. 6. Here’s what we know about what Trump did on Jan. 6.