The Washington PostDemocracy Dies in Darkness

What did John Eastman really want to have happen?

Attorney John Eastman speaks at a rally near the White House on Jan. 6 before the siege of the Capitol by Trump supporters. (Jim Bourg/Reuters)

The document that Sen. Mike Lee (R-Utah) was handed Jan. 2 was not subtle. In two pages, it outlined a four-step plan for Donald Trump to retain the presidency despite having lost the 2020 election — in other words, for Trump to steal a second term in office.

“7 states have transmitted dual slates of electors to the President of the Senate,” it began, a statement from which everything else followed — and which was not true, as Lee knew. Written by an attorney named John Eastman, the document made a number of other dubious assertions, more importantly that the rules governing the counting of electoral votes Jan. 6 were probably unconstitutional and that Vice President Mike Pence could unilaterally throw out the electoral votes cast in those seven states. Should he do so, “Pence then gavels President Trump as reelected.”

There would be “Howls, of course, from Democrats,” Eastman blithely writes — so to mollify those complaints, he recommends that Pence then hand the election to the House, where, he predicts, Trump again wins.

This has been called the “coup memo,” an apt description of a document that breezily encourages the theft of the presidency. Since it was first reported by The Washington Post’s Robert Costa and Bob Woodward in the book “Peril,” Eastman and his allies have been trying to reframe the document, first by insisting that it was supplanted by a later, more nuanced memo and then with other claims by Eastman about his intent and beliefs. (There’s good reason for Eastman to want the document to be interpreted differently, given a complaint made to the California bar.) But the memo is what it is, and the nuance Eastman later tried to introduce was both unmentioned in his public discussions at the time as well as blatantly ignored by Trump.

What is clear is that Eastman’s assessment of the 2020 presidential election is rooted in many of the same deluded beliefs as Trump’s own. The idea that states submitted multiple slates of electors, for example, means treating as serious the post-election gatherings of Trump supporters in which they cast meaningless “electoral votes” on the then-president’s behalf. It’s a bit like voting on hall of fame inductees with your football-loving friends: You can have the vote and even send the results to Canton, but don’t expect your picks to make the cut.

Speaking to former Trump adviser Stephen K. Bannon on Jan. 2, Eastman argued that Congress should throw out the actual electoral votes from the seven states he identified because of purported illegalities.

Congress “can’t count a slate of electors that were illegally certified,” he said on Bannon’s podcast. “And if they were certified after an election that violated fundamental state law, those are illegally certified.” In his second, six-page memo, he precedes his arguments in favor of Pence throwing out the results or — given much more prominence in the second iteration — pushing results back to state legislatures by making various claims about how voting expansions that generally stemmed from the coronavirus pandemic were themselves illegal, tainting the election results.

“The states ignored their state election law,” and those slates of electors “are invalid,” Eastman told Bannon, so Pence should just throw them out. But speaking at Trump’s ironically named “save America” rally outside the White House on Jan. 6, Eastman went a bit further.

The team had petitions pending before the Supreme Court outlining “the number of times state election officials ignored or violated the state law in order to put Vice President Biden over the finish line,” he claimed. But also: “We know there was fraud, traditional fraud that occurred. We know that dead people voted. But we now know because we caught it live last time in real time how the machines contributed to that fraud.” He then went on to claim that votes were taken from “secret” folders on vote-counting machines to aid Biden’s victory.

In other words, Eastman wasn’t simply making an academic claim about changes in voting laws that mandated that state electors be rejected. He was more broadly bolstering Trump’s claims about rampant illegal voting.

“We no longer have a self-governing republic if the elections that we participate in are meaningless because of fraud,” he told Bannon. That would be true if any significant fraud had occurred, but it didn’t.

The thrust of his conversation with Bannon was to encourage listeners to contact their legislators to insist that they use the power Eastman argued they were granted under the U.S. Constitution to simply shift their states’ electoral votes to Trump. While Congress had its own authority to reject electors, Eastman said, “it would certainly be helped immensely if the legislatures in the states looked at what happened in their own states and weigh in exercising their power under the U.S. Constitution.” So people should call legislators and use “rolling thunder pressure” to get legislators to undo the election results. During a call with state legislators organized by Trump’s team that same day, Eastman made this case to them directly.

Speaking to the National Review last month, Eastman claimed that he was more skeptical of success than the memo makes it sound.

“The memo was not being provided to Trump or Pence as my advice,” he said of the lengthier iteration of the document. “The memo was designed to outline every single possible scenario that had been floated, so that we could talk about it.”

Eastman also claimed to be the “white-knight hero” for having talked Trump “down from the more aggressive position,” though the National Review cites a person close to Pence as saying that Eastman admitted the weakness of the have-Pence-toss-the-votes argument only when he was challenged on it. It’s probably also useful to point out that Trump never actually abandoned the aggressive position on Pence. Even after the riot started on Jan. 6, Trump attacked Pence for not simply rejecting the cast electoral votes.

The effort to reposition himself as a sage, skeptical adviser to the president was further damaged last week with the publication of hidden-camera interviews. Speaking to undercover journalist Lauren Windsor, Eastman insisted that Pence could have thrown out the electors, but Pence is “an establishment guy at the end of the day” who “bought into this very myopic view that Trump was destroying the Republican Party.” He reiterated his claims about rampant fraud. He suggested that the legislators on the Jan. 2 call who didn’t act on Trump’s behalf were “spineless” and should be primaried. This is a slightly different position than when he told the National Review that anyone who thought the have-Pence-kick-it-to-the-House plan was “a viable strategy is crazy.”

There’s a relevant question that remains unanswered: Why did Eastman write two memos? We know from Costa and Woodward’s reporting that Lee saw the shorter, blunter version Jan. 2. The six-page, more nuanced version obtained by CNN is dated Jan. 3. Was it Lee’s rejection of the Pence plan that spurred Eastman to create a document that might more easily pass muster with people who understood constitutional law? Eastman told the National Review that neither memo was part of a critical group discussion involving Trump, Pence and Eastman that unfolded in the Oval Office on Jan. 4, “but the ideas certainly were.” So if it was drafted on Jan. 3, what was the point? Was this more nuanced argument ever presented to anyone at all before it was offered to CNN after the two-page memo became public?

Or was that second memo simply the first part of Eastman’s ongoing effort to present his views as moderated and nuanced?