George Thomas at The Constitutionalist:
John Eastman was the architect of former President Trump’s plan to get his Vice President to declare him the winner of the 2020 election. The scheme turned on Eastman’s insistence that in seven states there were “dual slates of electors.” But that’s a lie. There were no competing slates of electors in these seven states or in any others. All of the states certified their electoral votes by December 8 and the Electoral College cast those votes on December 14, making clear that Joe Biden defeated President Trump by 306 to 232 electoral votes. Yet Eastman argued that when Congress met on January 6 to count the Electoral College votes, Vice President Pence could discard the certified electoral votes of seven states.
All Pence had to do was act and Trump would remain president. And Eastman argued for Pence’s constitutional authority to act in a six-page memo. Indeed, Eastman’s memo practically screams at Pence to act. You can almost see the spittle coming from Eastman’s mouth as he works himself into a frenzy and channels Trump: “this election was Stolen.” Yet now, the Claremont Institute, the think tank where Eastman is a fellow after ignominiously stepping down as a law professor at Chapman University, is walking back his argument. In a public statement, the institute said Eastman was only offering Pence “legal advice.” Right.
Read the memo.
Eastman begins by arguing that actions in seven states were “illegal” despite the fact that the states certified their electoral votes. He then claims, because these actions were “illegal” in his analysis, that “There are thus dual slates of electors from 7 states.” These supposedly illegal actions were challenged in state and federal courts. A jurist appointed by President Trump, Judge Stephanos Bibas, captured all of this perfectly in a case dismissing Trump’s claims against Pennsylvania: “Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.” But even if you think Judge Bibas and scores of other jurists were wrong, as Eastman does, no state had submitted a “dual slate of electors.”
This is key. It’s Eastman’s Big Lie. And this Big Lie is the predicate for allowing Vice President Pence to resolve disputed electoral ballots in favor of President Trump. The insistence on dual slates of electors is what gives the Vice President the constitutional authority under the 12th Amendment to set these state certified electoral votes aside. As Eastman argues, there’s “solid legal authority” and “historical precedent” that the Vice President not only counts the votes but resolves any disputed electoral votes. What’s more, Eastman insists, “all the members of Congress can do is watch.”
Break this down. There are no “disputed electoral votes.” None. Eastman has made this up out of whole cloth. And continues to do so. Nor is there legal authority or historical precedent that gives the Vice President the power to resolve disputed electoral votes. But we only get to this question if there are disputed electoral votes. So let me say it again: There are not! Yet Eastman leaps ahead and gives the Vice President the constitutional authority to make the decision no matter what members of Congress happen to think. …