Jamelle Bouie NYT column:
When this was first revealed, I assumed that Trump simply wanted Pence to do whatever it would take to keep himself in power. But this week we learned that he had an actual plan in mind, devised by John Eastman, a prominent conservative lawyer who worked with the former president to challenge the election results, a job that included a speaking slot at the rally on the National Mall that preceded the attack on the Capitol.
“We know there was fraud,” Eastman said to the crowd that would become a mob. “We know that dead people voted.”
“All we are demanding of Vice President Pence,” he continued, “is this afternoon at 1 o’clock, he let the legislatures of the states look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not!”
These weren’t just the ravings of a partisan. Eastman was essentially summarizing the contents of a memo he had written on Trump’s behalf, describing the steps Pence would take to overturn the election in Trump’s favor.
astman’s confidence throughout this memo (he dismisses potential Democratic objections as “howls”) belies his shoddy legal, political and constitutional thinking. For one, his argument rests on an expansive reading of the Twelfth Amendment for which there is no precedent or justification. The vice president has never directly counted electoral votes. “Beginning in 1793, and in every presidential election since,” the legal scholar Derek Muller notes in a piece debunking key claims in the memo for the website Election Law Blog, “the Senate and the House have appointed ‘tellers’ to count the electoral votes. These tellers actually tally the votes and deliver the totals to the President of the Senate, who reads the totals aloud before the two houses after the tellers, acting on behalf of Congress, have ‘ascertained’ the vote totals.”
The 12th Amendment, ratified in 1804, codified that practice into the Constitution. Congress would do the counting, and the vice president would simply preside over the process.
Eastman also asserted that the vice president could disregard the procedure specified under the Electoral Count Act because the law itself is unconstitutional. That, Muller notes, is controversial (and something Eastman himself rejected in 2000, in testimony before the Florida Legislature during the dispute between George W. Bush and Al Gore). And even if it were true, the 117th Congress, on its first day in operation, Jan. 3, adopted the provisions of the law as its rule for counting electoral votes, which is to say Pence had no choice but to follow them. His hands were tied.
Which gets to the politics of this scheme. If Pence were to disregard the rules and the history and seize control of the counting process, House Speaker Nancy Pelosi would presumably have suspended the joint session, which relies on the consent of both chambers of Congress. “With a stalled and incomplete count because of a standoff between Pence and Pelosi,” the legal scholar Ned Foley writes in a separate Election Law Blog post, “the Twentieth Amendment becomes the relevant constitutional provision.” Meaning, in short, that at noon on Jan. 20, Pelosi would become acting president of the United States. Pence would lose authority as vice president (and president of the Senate) and the joint session would resume, with Congress putting its stamp of approval on Biden’s victory.
And let’s not forget that a series of moves of the sort envisioned by Eastman would spark national outrage. The “howls” would not just come from congressional Democrats; they would come from the 81 million voters who Pence would have summarily disenfranchised. It is conceivable that Trump and his allies would have prevailed over mass protests and civil disobedience. But that would depend on the support of the military, which, if the actions of Gen. Mark Milley were any indication, would not have been forthcoming.
None of this should make you feel good or cause you to breathe a sigh of relief. Consider what we know. A prominent, respected member in good standing of the conservative legal establishment — Eastman is enrolled in the Federalist Society and clerked for Supreme Court Justice Clarence Thomas — schemed with the president and his allies in the Republican Party to overturn the election and overthrow American democracy under the Constitution. Yes, they failed to keep Trump in office, but they successfully turned the pro forma electoral counting process into an occasion for real political struggle.