At the Jan. 6 rally preceding the assault on the Capitol, Rudolph Giuliani called for “trial by combat.” The next speaker was John Eastman. He praised Giuliani’s remarks and then made fantastic claims of voter fraud, including that “secret folders” of ballots were deployed to deny Donald Trump reelection.
Who is John Eastman? Like Giuliani, he was once a respected lawyer. Eastman is a former law clerk to Supreme Court Justice Clarence Thomas and the former dean of Chapman Law School. At the time of the insurrection, he remained a tenured professor there. Within weeks, Chapman and Eastman cut ties. Soon he would also forfeit his position as a visiting professor at the University of Colorado.
Appalling as Eastman’s public performance was on Jan. 6, his behind-the-scenes machinations were worse. Reportedly, two days earlier Eastman met in the Oval Office with Trump and Vice President Mike Pence to persuade Pence to abuse his ceremonial role under the Constitution and hand Trump an unearned second term.
A recently uncovered Eastman-authored memo reveals a jaw-droppingly ludicrous legal strategy. The memo instructs the vice president to set aside the votes of seven states won by Biden on the completely bogus ground that there were “ongoing disputes” concerning the election’s outcome in those states. Pence could then declare Trump the winner because he would have a majority of the remaining Electoral College votes after the supposedly “disputed” stateswere excluded.
To our surprise, Eastman’s memo includes a link to an essay we wrote in September 2020 explaining that a scheme then being bandied about to throw the presidential election to the House of Representatives relied on an obvious misreading of the 12th Amendment. Our analysis showed that in the event some states’ electors had been legitimately excluded, the candidate receiving the majority of electoral votes actually cast would win. Eastman apparently took this as a challenge to see how many states he could exclude illegitimately.
It is tempting to try to use Eastman’s memo against the 2024 Republican presidential nominee, especially if the nominee is Trump. Doing so would place the outcome entirely in the hands of Vice President Kamala Harris. The irony would be delicious because Eastman’s prior brush with infamy was occasioned by his absurd claim that Harris was ineligible for the vice presidency and not even a citizen because her parents may have been in the United States on student visas when she was born in Oakland, Calif. The 14th Amendment and a century and a half of Supreme Court case law run clearly contrary to Eastman’s birtherism.
Despite the temptation to engage in a kind of vice presidential jujitsu, the memo’s preposterous blueprint for a coup cannot be taken seriously. In addition to the outlandish claim that a few rogue Trump-loyal legislators could cast doubt on officially certified Electoral College votes, the memo’s premise that the vice president could unilaterally identify and resolve disputes over the presidential election would make a mockery of American democracy. In all but a handful of presidential elections in modern times, the sitting vice president was either a candidate for reelection or for the presidency. Neither the Constitution’s text nor any sensible purpose anyone could impute to its framers would license such self-dealing.
Eastman’s memo is laughably stupid. We are not laughing, however, because the past may be prelude. The memo and the broader effort to enlist Pence constituted the penultimate step in a multipart strategy to steal the election for Trump, one that culminated in the mob’s assault on the Capitol. Earlier stages of Trump’s attempted coup included numerous entirely frivolous court filings and manifestly unlawful pressure campaigns on state election officials and legislators. They failed because enough Republican-appointed judges and elected Republicans stood up to Trump and for the rule of law.
A 2024 reprise could end differently for at least two reasons. First, Trump and his allies have been purging their party of everyone but the kinds of loyalists who will do his bidding regardless of the facts and law. Second, Republican-dominated state legislatures around the country — including in states Biden won in 2020 — are making it harder than ever to vote and, even more ominously, turning over the election certification machinery to party apparatchiks. In 2024, these measures could give what Democratic Representative Adam Schiff of California has rightly called “a patina of legality” to efforts to overturn an election victory by the Democratic ticket. The peril will be especially grave should Republicans gain control of both chambers of Congress in next year’s midterm elections.
What is to be done? Congress should pass the pending bill that protects the right to vote. It should also supplement it to make clear that state laws that disproportionately discard the votes of minority voters are no more permissible than those that make it difficult for such voters to cast their ballots. Congress could also clarify the Electoral Count Act — passed in the wake of the disastrous election of 1876 — to prevent state legislatures from overriding the popular vote in their states. Article II, Section 1 of the Constitution expressly authorizes Congress to “determine the time of choosing the electors.” Congress should make clear that after a popular election has occurred, its outcome cannot be upended.
Passing legislation, of course, requires cloture in the Senate, and two Democratic senators continue to resist calls to abolish or even narrowly modify the filibuster. We understand the appeal of tradition, but the current version of that Senate rule stands in the way of national legislation desperately needed to preserve representative government itself.
The federal executive branch must also step up. As we learn more about the events leading up to the storming of the Capitol, it is increasingly apparent that Trump himself committed the federal crimes of inciting insurrection and seditious conspiracy. It would be wrong for Attorney General Merrick Garland to prosecute Trump or anyone else for the purpose of eliminating a political opponent. Yet it would be equally wrong to fail to indict Trump — if the evidence warrants an indictment — to avoid appearing to be bringing a politically motivated prosecution.
Politically motivated non-prosecution is as bad as politically motivated prosecution. Even so, if Garland chooses to avoid making Trump a martyr, the Justice Department must at least pursue criminal charges against all of Trump’s traitorous conspirators.
Trumpism with or without Trump remains a peril, because his unprecedented appetite for authoritarianism has spread to his followers and enablers. The continued viability of the United States as a constitutional republic requires both that seditionists be brought to justice and that we do all we can to repair the weaknesses in our system that they exposed.
Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus of Constitutional Law at Harvard University. Follow him on Twitter @tribelaw. Neil H. Buchanan holds the James J. Freeland Eminent Scholar Chair in Taxation at the University of Florida’s Levin College of Law. Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He blogs at dorfonlaw.org.