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Trump lawyer outlined plan for Vice President Pence to overturn election results, report says

Vice President Mike Pence.ERIN SCHAFF/NYT

A controversial lawyer advising former president Trump outlined a step-by-step plan for former vice president Mike Pence to overturn the results of the 2020 presidential election in a memo newly surfaced by CNN.

CNN published the two-page memo, written by attorney John Eastman, on Monday. The memo was first reported in “Peril,” a new book by Bob Woodward and Robert Costa.

The memo underscores the lengths to which Trump and his allies went in an effort to overturn the results of the presidential election, as well as the pressure Pence faced to refuse to certify the results in the days leading up to the Jan. 6 insurrection.


In the memo, Eastman describes six steps Pence should take to unilaterally declare former president Trump “re-elected” to a second term by claiming there was an “ongoing dispute” over the results in seven states, and throwing out those states’ votes. In fact, Trump’s legal challenges were consistently thrown out of court, and there was no “dispute” over the validity of the results certified by the states.

Under the plan, Pence would declare that since electors from seven states had been thrown out, the remaining count put Trump ahead in the electoral vote tally.

“Pence then gavels President Trump as re-elected,” Eastman wrote in his memo.

When Democrats inevitably objected, Eastman argued, Pence would send the matter to the House of Representatives, which would choose the president. Eastman argued that in accordance with the Constitution, each House delegation — rather than each House member — would receive one vote for president, thus allowing Republicans to prevail.

In his memo, Eastman pressed Pence to act unilaterally rather than in accordance with Congress or the courts.

“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,” he wrote. “The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter.”


Legal experts have long rejected the idea that the vice president has such a power.

In the memo, Eastman at several points tried to invoke constitutional arguments made by liberal Harvard Law professor Laurence Tribe to support his case, something Tribe took exception to in a tweet late Monday.

“This Eastman memo pretends to be based on my analysis but in fact takes snippets of my work wholly out of context and spins a totally fake web of ‘law’ that no halfway decent lawyer would take seriously. No wonder it couldn’t fool even Mike Pence,” he wrote.

Eastman’s memo was also sent to Republican Senator Mike Lee of Utah, who dismissed it out of hand, the authors of “Peril” report in the book.

“You might as well make your case to Queen Elizabeth II. Congress can’t do this. You’re wasting your time,” Lee reportedly said.

Eastman, a former professor at Chapman University who left the school in the wake of the Jan. 6 attacks and also came under fire earlier in the presidential campaign for advancing a racist “birther” theory against then-Senator Kamala Harris, was among those who pressed Pence in an Oval Office meeting to overturn the election results, the New York Times has reported.

Ultimately, after consulting with constitutional scholars and others including former vice president Dan Quayle, according to the new book, Pence rejected Eastman’s argument, drawing Trump’s ire and that of the violent mob who descended on the Capitol amid the Electoral College certification Jan. 6.


Christina Prignano can be reached at christina.prignano@globe.com. Follow her on Twitter @cprignano.