The Washington PostDemocracy Dies in Darkness

The architect of Trump’s plot to steal the 2020 election explains himself — absurdly

Attorney John Eastman gestures as he speaks next to Rudolph W. Giuliani, a personal attorney President Donald Trump, at a Jan. 6 rally in Washington. (Reuters/Jim Bourg)

The man who provided a road map for subverting democracy to a president intent upon doing just that, which the president then attempted to follow, would like to let you know that he is in fact the hero of this story.

That is, if he can remember exactly what he did.

John Eastman, the conservative lawyer who wrote the infamous “Eastman memo” laying out how Vice President Mike Pence might facilitate an actual stolen election, is now offering a lengthy defense of himself. He did interviews with the National Review’s John McCormack, who does a great job of digging into Eastman’s defenses and dissecting his claims.

Perhaps the most stunning comment from the whole thing is the idea that, not only is Eastman misunderstood; he’s actually some kind of savior of democracy.

“Call me the white-knight hero here, talking [President Donald Trump] down from the more aggressive position,” Eastman said.

That’s certainly a take.

The reason Eastman claims this? Because he supposedly helped convince Trump and others to push for something besides Pence unilaterally trying to declare Trump the winner — the most drastic of options. Eastman says he moved the conversation to instead focus on merely getting states to provide alternate electors that Congress could then consider, as if this were a real contested election. This, of course, would still have involved Pence declining to count votes from states with no actual reason to suspect malfeasance. The more drastic option was also something Pence, very notably, seemed unwilling to go along with.

It’s a bit like floating a robbery and then, when that looks unfeasible, instead plotting embezzlement. Both are pretty bad things, even if one is more heavy-handed.

In his comments since his two-page memo was first reported in a new book by The Washington Post’s Bob Woodward and Robert Costa last month, Eastman’s strategy has been to focus on a longer six-page memo that laid out a fuller range of options for how the counting of votes on Jan. 6 might transpire. While the first memo proposed ways in which Trump would ultimately be declared the winner, the longer one also lays out ways in which the strategy might fail and is less prescriptive about what should be done.

The idea is basically that Eastman was laying out all of the options, regardless of what he actually supported. It’s seemingly what any lawyer would do for a client, right?

But even the longer memo undercuts Eastman’s claim to hero status. It, in fact, describes Pence as the “ultimate arbiter” in all of this — a fact that Eastman somehow seemed unfamiliar with.

Here’s a whole chunk of McCormack’s write-up. Every word is worthwhile:

When I pointed out that both memos said it’s a “fact” that Pence is the “ultimate arbiter” and “we should take all our actions with that in mind,” Eastman at first incorrectly claimed he’d only written that in the two-page “preliminary” memo.
“No, that’s the preliminary memo,” Eastman replied. “I don’t think that’s the strongest legal argument or scenario. So that was just the first piece that I’d been asked to look at and put together how that would work if that condition was true. And it was that condition that I specifically told them I thought was the weaker argument, which is why I’m going to give you a more complete assessment of all the various scenarios.”
After I pointed Eastman to identical language near the end of the six-page memo, he argued that he did not mean it was a fact that Pence was the ultimate arbiter of which electoral votes to count. He meant only that Pence was the ultimate arbiter of which ballots to open in a contested election, while he believes that Congress “most likely” makes the final substantive decision.
Readers can read the final memo for themselves, but that seems like a very odd interpretation of a memo that concludes: “The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.”

That wasn’t the only time that Eastman fudged the facts in an effort to downplay his efforts.

At another point, he claimed he never spoke with Sen. Mike Lee (R-Utah) about his memo, saying, “I’ve never had any dealings with Mike Lee about this at all.”

McCormack then pointed out that Woodward and Costa’s book contradicted that. It said Lee was directed to Eastman, and Eastman told him, “There’s a memo about to be developed,” and, “I’ll get it to you as soon as I can.”

Confronted with this, Eastman acknowledged he had in fact spoken with Lee — and even that it’s possible that he provided him the memo.

“I did have a conversation with Sen. Lee,” Eastman said. “But I have no record of having given him either of the two memos. We were working on broader things. If I did give him one, it would have been the fuller memo, but I don’t have any record of having done that.”

Eastman explained the contradiction. “I want to be very precise here: I said at the time I did not recall having any conversations with Mike Lee, and I certainly don’t have any record of having given him the memo,” he said. “But now that I’ve seen that quote from — I do recall that Mike Lee called me at one point. I don’t remember the subject of the conversation.”

Except Eastman was decidedly imprecise. He didn’t say he didn’t “recall” conversations with Lee — a lawyerly response often offered in such circumstances — he instead said they didn’t have any dealings. It makes you question precisely what he “recalls” about the advice he gave and whether it might indeed have gone further than he lets on.

These factual inaccuracies could indeed be dismissed as rather harmless imprecision, but they fill out a picture of an attempt to whitewash Eastman’s efforts. The attempt follows closely on a statement from Eastman’s employer, the Claremont Institute, which offered a similar defense: that Eastman didn’t, in fact, tell Pence he should try to overturn the election himself. Nothing to see here!

This defense leans heavily upon a technicality, though. The idea — as Eastman laid out clearly in his Jan. 6 speech before the Capitol riot broke out — was to get Pence to do something extraordinary with no historical precedent and of highly questionable legality to pave the way for overturning an American election.

At a rally on Oct. 9, 2021, in Des Moines, former president Donald Trump continued to unleash a litany of false and unproven claims of voter fraud in 2020. (Video: Adriana Usero/The Washington Post)

Whether that meant getting Pence to try to overturn the election himself or to get him to pretend there was enough suspicion of certain states’ results to delay the process and try to get partisan politicians to do the dirty work, the goal was clearly the same. And there’s plenty of reason to believe that a more drastic idea was abandoned not for moral reasons, but because it was impractical.

“In the last 24 hours or so [before January 6], it became crystal clear finally — even though the vice president had been telling them this for three weeks — it’s finally sunk in he wasn’t going to do that,” an anonymous source close to Pence told McCormack. “So, then their position moved to: Well, would you delay it and send it back [to the state legislatures]?”

In other words, the watering-down was a strategy of necessity, as the timeline makes pretty clear. But while focusing on marginalizing that most drastic and unfeasible of the options you proposed is a neat political trick, it doesn’t change Eastman’s role in laying the groundwork for an attempt to steal an American election — or the fact that this whole effort was based upon virtually nothing and was a necessary precursor to a literal attack on the U.S. Capitol.

As this interview shows, Eastman still doesn’t have a good explanation for his increasingly infamous role in American history.