Signs that Eastman is getting increasingly desperate to distance himself from his false claims that the election was stolen from Trump and that VP Pence could unilaterally steal it back for him when Congress was supposed to confirm the Electoral College votes:
When Eastman spoke that day, he echoed Giuliani’s claims regarding the conspiracy theory that voting machines had fraudulently changed the vote tallies in Georgia. “We now know, because we caught it live last time in real time, how the machines contributed to that fraud,” Eastman said of the Georgia Senate and 2020 presidential-election results. “They put those ballots in a secret folder in the machines, sitting there waiting until they know how many they need.”
As for the electoral-vote tally at the Capitol, Eastman made the case that “all we are demanding of Vice President Pence is this afternoon at one o’clock he let the legislatures of the states look into this so that we get to the bottom of it and the American people know whether we have control of the direction of our government or not! We no longer live in a self-governing republic if we can’t get the answer to this question!”
But Eastman now tells National Review in an interview that the first of the two strategies Giuliani highlighted on stage — having Pence reject electoral votes — was not “viable” and would have been “crazy” to pursue.
What makes that admission remarkable is that Eastman was the author of the now-infamous legal memo making the case that Pence had that very power — that the vice president was the “ultimate arbiter” of deciding whether to count Electoral College votes….
Eastman says he disagrees with some major points in the two-page memo. That version says that Trump would be reelected if Pence invalidated enough electoral votes to send the election to the House of Representatives: “Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is reelected there as well.”
Eastman’s final six-page memo says Trump would be reelected by the House “IF the Republicans in the State Delegations stand firm.” But Eastman says he told Trump at the January 4 meeting in the White House: “Look, I don’t think they would hold firm on this.” (There were actually 27 delegations under GOP control, but Liz Cheney is the sole representative for Wyoming, Wisconsin’s decisive vote would have been Mike Gallagher, and both Cheney and Gallagher strongly opposed overturning the results of the election.)
“So anybody who thinks that that’s a viable strategy is crazy,” Eastman tells National Review.
When it comes to the legal argument that the vice president is the only person with authority to count the electoral votes, Eastman says: “This is where I disagree. I don’t think that’s true.”
“It’s certainly not been definitively resolved one way or the other,” he adds. “There’s historical foundation for the argument that the vice president is the final say and the argument that he is not. I think the argument that he is the final say is the weaker argument.”
Eastman says that weaker argument “doesn’t make a whole lot of sense given that we know the vice president is very likely to be one of the contenders for the office that he’ll be deciding.”
“The memo was not being provided to Trump or Pence as my advice,” he insists. “The memo was designed to outline every single possible scenario that had been floated, so that we could talk about it.”…
In other words, a plain reading of both versions of the memo would lead the reader to conclude that Pence had the power to take any of the options outlined in them.
When I pointed out that both memos said it’s a “fact” that Pence is the “ultimate arbiter” and “we should take all our actions with that in mind,” Eastman at first incorrectly claimed he’d only written that in the two-page “preliminary” memo.
“No, that’s the preliminary memo,” Eastman replied. “I don’t think that’s the strongest legal argument or scenario. So that was just the first piece that I’d been asked to look at and put together how that would work if that condition was true. And it was that condition that I specifically told them I thought was the weaker argument, which is why I’m going to give you a more complete assessment of all the various scenarios.”
After I pointed Eastman to identical language near the end of the six-page memo, he argued that he did not mean it was a fact that Pence was the ultimate arbiter of which electoral votes to count. He meant only that Pence was the ultimate arbiter of which ballots to open in a contested election, while he believes that Congress “most likely” makes the final substantive decision.
Readers can read the final memo for themselves, but that seems like a very odd interpretation of a memo that concludes: “The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.”