Initial Reaction to Eastman Memo

My first thought on reading the Eastman memo revealed yesterday was that it could wait until I do the relevant work for a planned second edition of Ballot Battles before I reflect on it in earnest. But in light of some discussion that I’ve seen on Twitter, it might be helpful to share these preliminary thoughts:

Setting aside the fundamental fact that the memo outlines a strategy to overturn enough valid electoral votes to keep Trump in power for a second term that he did not lawfully win (and therefore appropriately can be considered as a kind of coup attempt–with all the moral depravity that a purely despotic power grab of that nature entails), on its own terms the memo does not address the countermoves that would have caused its strategy to end in failure. (My analysis of this point derives from my Loyola Law Review article, Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management, as well as the follow-up Atlantic essay co-authored with Larry Diamond.)

Had Pence done any of what Eastman’s memo suggested, the plot would not have prevailed because the House of Representatives under Speaker Pelosi’s leadership would have caused the Twelfth Amendment’s joint session to come to a halt incomplete. Given Majority Leader McConnell’s acceptance of President-elect Biden’s victory, which he acknowledged in his speech on December 15, the day after the electoral college vote, it’s highly likely that the Senate under McConnell’s leadership would have joined the House under Pelosi’s in opposing any move by Pence to announce entirely on his own, based on his own manipulation of the process contrary to the procedures of the Electoral Count Act, that the Trump-Pence ticket was reelected. But the key point for Twelfth and Twentieth Amendment purposes is that the House under Pelosi’s leadership could have caused this halt in the joint session’s procedures even without the Senate’s participation. After all, it takes both chambers to conduct the joint session, and thus if the House shuts it down (even potentially kicking the Senate out of its own chamber), the joint session can’t proceed to completion to identify whether any candidate has won an electoral college majority. Likewise, if the process has broken down with the inability to identify whether any candidate has an electoral college majority, then there is no predicate for the backup “contingent election” procedure in the House (in which each state’s delegation gets a single vote).

With a stalled and incomplete count because of a standoff between Pence and Pelosi, the Twentieth Amendment becomes the relevant constitutional provision (not discussed in Eastman’s two-page memo, but the relevant part of the analysis in my Loyola Law Review article and the Atlantic essay). From the House and Pelosi’s perspective, because the counting of electoral votes remains incomplete, if that condition continues all the way through until noon on January 20, then Pelosi is in a position to assume the role of Acting President (and entitled immediately to receive the nuclear football, with its launch codes). Pence might take the alternative view, that he’s “gavel[ed] President Trump as reelected,” but then it becomes a question of whom the Pentagon recognizes as Commander-in-Chief: Pelosi as Acting President under the Twentieth Amendment, or Trump based on Pence’s asserted claim that the electoral count has been completed over the House’s objection and non-participation. Based on all we know about General Milley, from both before January 6 occurred and especially with all that has come to light since, in the context of this Pence-Pelosi standoff, Pelosi was going to be the one to prevail as consistent with the Constitution.

Moreover, once noon has passed on January 20, Pence is no longer Vice President (or Senate President) by virtue of the Twentieth Amendment. Thus, the Pence-Pelosi standoff will end this way: With the Vice Presidency still vacant, and Pelosi as Acting President, the joint session under the Twelfth Amendment and the Electoral Count Act will resume properly despite Pence’s earlier attempt to derail it. Once that proper process is complete, it will yield the conclusion that it would have all along: Biden and Harris have electoral college majorities and are duly elected. At that point, Biden becomes President under the Twentieth Amendment, and Pelosi is no longer Acting President. The whole process obviously would have been horribly messy, and deserving of the label “constitutional crisis,” but it would have ended with Eastman’s plan in failure.

Last point: I’ve read that the Eastman memo proves the need to reform the Electoral Count Act. To be clear, I’ve long been strongly in favor of reforming the Electoral Count Act. But what Eastman proposed was for Pence to bypass the ECA, declaring it to be unconstitutional, and purporting to proceed on his own authority based on his own (highly disputed) interpretation of the Twelfth Amendment. Improving the ECA might reduce the risk of a future Vice President trying to make that kind of move, because with a better ECA in place, it would make that kind of unilateral power grab by a Vice President even more brazen and politically untenable. But ECA reform can’t eliminate this risk entirely. To do that, it would be necessary to undertake the even more difficult task of revising the Twelfth Amendment itself, to remove its frustratingly ambiguous language about the process of counting electoral votes in the joint session, including the role of the Senate President.

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