Matt Ford in TNR:
It’s worth underscoring the full nature of what Eastman proposed here. The 2020 election was free, fair, and legitimate, and there was zero evidence of serious or significant fraud. Americans simply voted to elect Joe Biden as their next president in overwhelming numbers. Trump disputed those results by lying about widespread voter fraud before and after Election Day. Eastman then argued that Trump and Pence could use those false claims to ignore the voters and the Electoral Count Act and grant themselves another four years in power. It was a staggeringly corrupt plan that would have collapsed American democracy and almost certainly led to widespread civil unrest, if not bloodshed—all because Trump could not handle the embarrassment of losing a presidential election….
Ned Foley, an Ohio State University law professor who specializes in election law, is skeptical of Eastman’s strategy as applied to the 2020 election on practical grounds. “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,” he wrote earlier this week. Foley noted that Democrats controlled the House at the time and they could have simply ended the joint session when the scheme became apparent. Pelosi could have waited until Pence’s term as vice president expired on January 20 and then restarted the joint session, this time with Vermont Senator Patrick Leahy acting as president pro tempore in lieu of the vacant vice presidency. She would also briefly serve as acting president after Trump left office.
That analysis is slightly reassuring in the context of January 6, 2021. It’s also deeply alarming for January 6, 2025. Whatever schemes the Republicans could hatch, short of violence, the ultimate backstop was that Democrats controlled the House of Representatives that day. Throwing out a disputed slate of electors requires the assent of both houses, and the House Democratic majority’s existence ensured it would not succeed. If Republicans control one or both houses of Congress the next time this rolls around, and if Trump or his successor convinces GOP lawmakers to abuse the electoral counting process for their own gain, the nation could face an even greater crisis than the one that unfolded nine months ago.
There is no law strong enough to prevent future John Eastmans and Donald Trumps from plotting similar anti-constitutional schemes in 2025 or beyond. But there are steps that can be taken to make it harder for them to succeed. The best solution here is to strengthen and clarify the Electoral Count Act of 1887, as I wrote in June and as other commentators and legal scholars have also urged. Congress can and should take steps like making it harder for lawmakers to launch spurious challenges of electors and clarifying the vice president’s lack of discretion over the ballots before the next presidential election. The stakes for American democracy if they fail could not be higher.