The Washington PostDemocracy Dies in Darkness

John Eastman’s employer tries to whitewash his road map for overturning Trump’s loss

Attorney John Eastman, flanked by Rudolph W. Giuliani, speaks to supporters of President Donald Trump on Jan. 6, 2021. (Jim Bourg/Reuters)

John Eastman, it seems, is the victim of one big misunderstanding.

The conservative Claremont Institute, which employs the lawyer who provided a road map for President Donald Trump and Vice President Mike Pence to overturn the 2020 election, decided to issue a statement Monday defending Eastman.

“Contrary to almost universally false news accounts, which have done great damage, John did not ask the Vice President, who was presiding over the Joint Session of Congress where electoral votes were to be counted on January 6, to ‘overturn’ the election or to decide the validity of electoral votes,” its statement says.

It adds that “John advised the Vice President that, despite credible legal arguments to the contrary, the Vice President should regard Congress, not the Vice President, as having the authority to choose between the two slates.”

The defense is among the most carefully worded straw-man arguments in modern political history.

Essentially, the statement isn’t disputing that Eastman provided a ready-made procedure for Trump and Pence to get the election overturned — he clearly and unambiguously did so — it’s that he didn’t explicitly say Pence should overturn it himself.

This, though, is a distinction without much of a difference. And it ignores the weightier issues that have led some groups to distance themselves from the Claremont Institute. (The group’s statement says the Federalist Society has “refused to allow John … to discuss essential constitutional questions,” despite his 20 years of involvement with it.)

In the memo, which was revealed recently in a new book by Washington Post journalists Bob Woodward and Robert Costa, Eastman lays out his step-by-step plan for getting Trump reinstalled:

  1. Pence defers on counting electors for several states that Joe Biden won, saying there are multiple slates of electors in them.
  2. When the counting is finished, Pence declares the total number of electors is 454 — rather than 538 — at which point Trump has a majority.
  3. When Democrats complain that one needs a majority of 538 instead of 454, Pence relents and says that, since no candidate has a majority, the House will decide the winner, as per the Constitution.
  4. (In Eastman’s own words:) “Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.”

According to the Claremont Institute, though, this is not tantamount to asking Pence to overturn the election. And that could be construed as true, only in the most literal and generous of legal readings. What Eastman was doing was providing a procedure by which Pence could simply facilitate the expected result of Congress overturning the election. But at least he wouldn’t ask Pence to try to do this himself, I guess.

Claremont’s defense in large part relies upon a fuller, six-page memo beyond the two-pager initially reported. Eastman provided CNN with a copy of the longer memo when the whole situation blew up last month, saying the initial two-pager was merely a preliminary draft.

The six-pager lays out a fuller legal case and a potentially lengthier process by which this could happen, while allowing for less of a predetermined outcome — one in which states might be allowed some time to determine whether to appoint alternate electors and then Congress might even decide in Biden’s favor. The Claremont Institute says Eastman’s advice to Pence regarded what would happen when “the state legislatures had found sufficient illegal conduct to have altered the results, and as a result submitted a second slate of electors.”

But the initially reported memo makes clear what the goal was here, without bothering with those meddlesome details. And even if we only had the longer one, there’s no secret what this was intended to do: get Pence to take steps that could predictably give control over who wins the presidency to Republicans. The shorter memo suggests Pence might declare Trump the winner with 454 electoral votes, but even it acknowledges that wouldn’t fly and that this would be thrown to Congress.

And the ultimate, hopeful result would be the same. Even Eastman in the longer memo concedes how brazen the plot was.

“But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules, therefore,” Eastman wrote.

Except there is still no evidence it was stolen, 11 months after the election. The Claremont Institute’s argument is basically that some unspecified media outlets reported that Eastman asked Pence to try to overturn the election. Whether this was ever explicitly requested or not, though (and it kinda, sorta seemed to be in the two-page memo!), there is really no question what this was intended to do.

One of the oldest tricks in politics, when facing a damning set of facts, is to mischaracterize or hyperbolize the argument made and then rebut that version of it. But it’s a lot like if you knew someone wanted to rob a bank and you gave them the blueprints to that particular bank branch. Did you tell them to rob that bank? Of course not. Did you give them the means to accomplish what you knew they wanted to do? Yes. You were an accessory.

What the Claremont Institute should really be responding to is whether it’s comfortable with its employee explicitly seeking to help overturn an American election based upon claims that were routinely debunked and rejected in court. That’s the issue here — not whether Eastman actually said Pence should attempt it unilaterally.