It seems the Eastman controversy will never end…. But one should not bury the lede: this theory, too, relies on unilateral vice presidential power to ignore the Electoral Count Act.
Setting aside any narrative issues about what Eastman did or did not advocate, I want to pick apart just one item from the Claremont statement (although one could pick apart more).
It’s this line: “John advised the Vice President to accede to requests from state legislators to pause the proceedings of the Joint Session of Congress for 7 to 10 days, to give time to the state legislatures to assess whether the acknowledged illegal conduct by their state election officials had affected the results of the election.”
There are several problems:
(1) the ECA (if one agrees with its constitutionality) does not authorize the Vice President to “accede” to anything (the same language in Eastman’s recent defense), because Congress votes on all objections;
(2) state legislators may not file objections (or “requests”), because the only objections to be considered are those from a member of the House and a member of the Senate, who have done so in writing under the ECA;*
(3) objections must be resolved after two hours’ debate; and
(4) recesses may only occur pursuant to Section 16, no longer than beyond one day, and no recesses may occur five days after counting begins.
It is worth looking back at how Eastman articulated this scenario in his longer memo:
VP Pence determines that the ongoing election challenges must conclude before ballots can be counted, and adjourns the joint session of Congress, determining that the time restrictions in the Electoral County [sic] Act are contrary to his authority under the 12th Amendment and therefore void. Taking the cue, state legislatures convene, order a comprehensive audit/investigation of the election returns in their states, and then determine whether the slate of electors initially certified is valid, or whether the alternative slate of electors should be certified by the legislature, exercise authority it has directly from Article II and also from 3 U.S.C. § 2, which provides:
“His authority,” to emphasize, is the vice president’s.
There is much more to pick apart in this very short piece. But this process only works if the Vice President ignores the ECA–a process, as I’ve written here, not within the vice presidential power, but within Congress’s power. And it sounds like Congress is looking for ways to limit the role of the Vice President in the future.
*Relatedly, while Senator Ted Cruz purported to “object” to counting to Arizona’s electoral votes for a “10-day audit.” As I pointed out then, Cruz never drafted a statute to allow for such a mechanism, and the objection he filed simply objected to counting Arizona’s votes with no qualification of delay.