The Washington PostDemocracy Dies in Darkness

By memo or by mob, Trump and his team positioned the country for chaos

John Eastman, left, stands near former New York mayor Rudolph W. Giuliani at a Jan. 6 rally in support of President Donald Trump. (Jacquelyn Martin/AP)

There was a moment in my phone conversation in November with Edward B. Foley, director of the election law program at Ohio State University, that stuck with me for months afterward.

We were talking about his essay for The Washington Post in which he warned that the Electoral Count Act of 1887 was riddled with uncertain language and loopholes. This was about two weeks after the election, so I was exploring the actual threat posed by President Donald Trump’s efforts to undermine the results. Foley delineated a process by which Vice President Mike Pence, counting the submitted electoral votes on Jan. 6, might try to point at that vagueness to throw the entire election into a state of uncertainty.

At one point after I’d asked about the possibility of competing slates of electors — that is, Trump’s chosen electors saying that their votes should count — Foley paused.

“I think it’s important to be very careful here,” he said. “There’s a version of what you just said that I have not publicly written about because I don’t want to invite a scenario that I think is inappropriate in an electoral democracy, which should be based on what the voters want.”

This is not a common thing to hear, an expert telling you there’s some toxicity they don’t even want to bring into the world. But it was obvious that he understood that there was at least enough breathing space within the normally uncontentious process of counting those votes that an actor less interested in upholding the will of the electorate might be empowered.

But, of course, Foley was not the only expert to have considered these loopholes. One, Claremont Institute senior fellow John C. Eastman, not only developed a route for subverting the results of an election, he began publicly advocating that Trump do exactly that.

It happened out of the sight of many observers, in part because Trump was flooding the zone with nonsense about the results of the election and in part because he himself never elevated the precise process Eastman eventually outlined. There was discussion of how state legislatures could simply decide on new electors and talk — often, in the days before Jan. 6 — of Pence simply sending everything back to the states, but it seemed no more concrete than Trump’s various other false assertions about rampant fraud and a nefarious plot against him. Trump himself was simply throwing things against the wall; why should this more esoteric idea be expected to stick?

Eastman, though, was making his case. He made it during a hearing called by Republican legislators in Georgia seeking to subvert Trump’s loss in that state. He made it in the media. He made it, most publicly, during a speech on the morning of Jan. 6 itself, speaking a few minutes before Trump asked the crowd he’d called to Washington on that day to march to the Capitol.

But he also made it in a two-page memo that came to light this week with the release of “Peril,” the new book about the Trump administration by The Post’s Bob Woodward and Robert Costa. On Jan. 5, Trump, Pence, Eastman and others met in the Oval Office during which, one assumes, Eastman made one final push for his strategy.

What’s remarkable about the memo is that it presents a plan to subvert an American election in flat, legal language. It includes six steps, the first four of which can be summarized as follows:

  1. Pence starts by counting the electoral votes from Alabama.
  2. He gets to Arizona and sets the state aside, rationalizing doing so by the fact that there were electoral votes submitted by the state’s Trump electors. He does the same with six other states for which “competing” slates exist.
  3. With all of the other votes counted, he declares that the contested states are not to be included. And since Trump won the counted votes, he’s reelected.
  4. Predicting “howls” from Democrats, Pence says, fine, let the House decide, as is procedure when there’s a tie in the electoral college. In that case, each state gets one vote and, given that Republicans controlled 26 states, Trump wins again.

All of this is centrally based on the idea that the Electoral Count Act was unconstitutional and that, therefore, Pence can simply count what he wants to. The memo goes on to two other points — assuring that any consideration of the competing ballots be open to the filibuster process and that Pence not ask permission before doing any of this — but those are largely housekeeping. Eastman (and by extension, Trump) were arguing that Pence simply announce to the world that he was not bound either by the written law or by the will of the voters and make Trump president.

Had this occurred, had this seemingly academic memorandum been followed, it’s unclear what the result would have been. It’s unlikely that the courts would have upheld Pence’s ploy, but it is certain that there would have been an enormous outcry of opposition — justifiably. What Eastman derisively casts as “howls” would, in reality, have been the furious protests of the 81 million Americans whose votes were suddenly tossed in the garbage. Not to mention two-and-a-half centuries of precedent on stable, neutral transitions of power. In “Peril,” we also learn that Pence paid this memo more heed than one might expect. He consulted with former vice president Dan Quayle, among others, who insisted that Pence had only one role to play on Jan. 6: Respect the outcome of the cast votes.

Eastman apparently believed that his argument was justified. He argued even as he announced his retirement earlier this year that the results of the election were suspect, citing legal rationalizations about changes in how voters were allowed to cast ballots (a comfortable harbor for those looking to coddle Trump’s conspiracy theories) and that there was suspicious activity surrounding the actual vote, which isn’t true. (For example, he cited the repeatedly debunked idea that something questionable had happened in Antrim County, Mich.) So he cobbled together a plan.

On the morning of Jan. 6, Pence rejected the idea. The mob of people Trump had invited to Washington and stoked with fantasies about Pence’s ability to steal him a second term swept into the Capitol and, for a time, prevented the election from being finalized. The mob did what the memo didn’t, at least temporarily.

Ultimately, in both cases, reason and the law prevailed. But Foley’s worry proved to be founded, that the Electoral Count Act might prove to be as thin a line of defense against a coup as a half-dozen Capitol Police standing behind a bike rack.

Eastman, meanwhile, is scheduled to give a speech to the American Political Science Association next month. Its title? “The 2020 Elections and the State of American Conservatism.”