The newest Trump Era book, Peril, hits the stands tomorrow. Quite a few good tidbits have been teased already, but I particularly like this memorandum from John Eastman, a purported constitutional law expert. He used to teach at Chapman University in California but resigned on January 13, 2021 after it was disclosed that he was part of the Capitol insurrection on January 6.
Here’s a copy of a “privileged and confidential” memo Eastman sent to Mike Pence.
1.VP Pence, presiding over the joint session (or Senate Pro Tempore Grassley, if
Pence recuses himself), begins to open and count the ballots, starting with
Alabama (without conceding that the procedure, specified by the Electoral
Count Act, of going through the States alphabetically is required).–
2. When he gets to Arizona, he announces that he has multiple slates of electors,
and so is going to defer decision on that until finishing the other States. This
would be the first break with the procedure set out in the Act.–
3. At the end, he announces that because of the ongoing disputes in the 7 States,
there are no electors that can be deemed validly appointed in those States. That
means the total number of “electors appointed” – the language of the 12th
Amendment — is 454. This reading of the 12th Amendment has also been
advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the
electors appointed” would therefore be 228. There are at this point 232 votes for
Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.–
4. Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior
position, that 270 is required. So Pence says, fine. Pursuant to the 12th
Amendment, no candidate has achieved the necessary majority. That sends the
matter to the House, where the “the votes shall be taken by states, the
representation from each state having one vote . . . .” Republicans currently
control 26 of the state delegations, the bare majority needed to win that vote.
President Trump is re-elected there as well.–
5. One last piece. Assuming the Electoral Count Act process is followed and, upon
getting the objections to the Arizona slates, the two houses break into their
separate chambers, we should not allow the Electoral Count Act constraint on
debate to control. That would mean that a prior legislature was determining
the rules of the present one — a constitutional no-no (as Tribe has forcefully
argued). So someone – Ted Cruz, Rand Paul, etc. – should demand normal rules
(which includes the filibuster). That creates a stalemate that would give the
state legislatures more time to weigh in to formally support the alternate slate
of electors, if they had not already done so.–
6. The main thing here is that Pence should do this without asking for permission
– either from a vote of the joint session or from the Court. Let the other side
challenge his actions in court, where Tribe (who in 2001 conceded the President
of the Senate might be in charge of counting the votes) and others who would
press a lawsuit would have their past position — that these are non-justiciable political questions – thrown back at them, to get the lawsuit dismissed. 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.
Is the Vice President’s role “ultimate arbiter” or merely ceremonial, with respect to vote certification? I opt for the latter. One thing is certain: If Mike Pence could have figured out a way to make this happen, he would have. He researched day and night and even called up Dan Quayle. I’m not sure what that’s about, but he called up Dan Quayle in any event. Quayle told him to forget about it, which means either that even Dan Quayle knows the constitution better than the people who were trying to steal the election or even a broken clock is right twice a day.
The irony here is that now everybody thinks Mike Pence is a coward. The Democrats did before because of the coddling treatment Pence gave Trump and now the Republicans think he’s a coward as well for not figuring out a way to steal the election on January 6.
You can’t win for losing, Mike.
FBI should ask Eastman some very pointed questions. For one thing, the Constitution doesn’t give the presiding officer for that occasion any choices. For another, once a state certifies, that’s it for the state, and after the EC votes, it’s done.
Mike Pence IS a coward…and a fool…and one of the most useless members of the Trump regime (which is saying something). In many ways, his political career was already dead after his botched time as Indiana’s governor. His time as Veep was just the zombie phase of his career.
I agree, Bare … the rush to be stupid in public by virtually all Trumpists, in every way and at all levels, boggles one’s mind … the big lie, worn to clear glass transparency, still has roots in Trump’s own la la land mind … he is a non-person now, a voice from the recent past of criminal ignorance and total lack of any responsibility as a REAL president would have ..
Total malignant narcissism, not one micro dot of caring for the hundreds of thousands dead from his promoted and ignorant stance on Covid-19, guilty on every level of cold blooded murder of thousands, worse than many world-known country despots … why the hell is he not yet in prison? … He continues to lie and grift people for his own pocket change …
I’m sure that the hammer is close to falling on Trump, the signs of an abundant list of personal witnesses from former WH staff, with firsthand evidence, has Trump’s poor me video spinning through that cavern of mental absence, looping through what-ifs and here they come now versions …
Pence, on the other hand, bumbles through his days, like a gardener without his tools, looking at all the weeds he needs to clear out, and all the answers are still hanging on hooks in the tool shed, where the pull-chain light bulb burned out so he has no idea what to do …