Will Laurence Tribe draft his own Eastman memo for January 6, 2025?

Last month, The Atlantic published a piece with the title, “Kamala Harris Might Have to Stop the Steal.” That is, the vice president* may have to exercise some authority during the counting of electoral votes in 2025 in the joint session of Congress.

Support for this proposition comes from Professor Laurence Tribe:

Should Trump or his acolytes try to subvert the 2024 election, the last Democrat with any power to stop the steal—or at least try to—would be Harris. “She’s certainly going to have quite a job on her hands on January 6, 2025,” Laurence Tribe, a Harvard law professor and liberal constitutional scholar, told me. Nine months ago, Tribe and other Democrats praised Pence for interpreting his authority narrowly, but the next time around, they might ask Harris to wield the same gavel more forcefully.

. . .

Tribe told me that Eastman’s argument was “ludicrous,” but they did agree on one point: Every four years on January 6, the vice president is not powerless. “I don’t think we can argue that Kamala Harris has absolute authority,” Tribe said. “On the other hand, she is not simply a figurehead.” Harris’s principal role during the Joint Session, he said, could be to reject “ungrounded challenges” to state certifications. She may have other powers, he said, but he refused to discuss them with me. “I don’t want to lay out a complete road map for the other side, because I think sometimes they’re not as smart as they think they are,” he said.

. . .

Multiple lawyers I spoke with said that Harris’s role would likely be moot if Republicans wield majorities in 2025 because they could simply overrule any decision she tried to make. “The principal responsibility will always lie with the members of the two houses,” Eisen said. “If they chose to, they could fight the actions of the vice president.” Tribe, however, suggested that the law wasn’t that clear.

Tribe and John Eastman “agree,” in other words, that the vice president holds some authority. Both Eastman’s shorter memo and longer memo rely on unilateral vice presidential authority to, say, pick an alternative slate of electoral votes, to refuse to count electoral votes, or to delay counting electoral votes.

Eastman favorably cites Tribe in his memo, and it appears the feeling is mutual. Tribe argues that Harris is “not simply a figurehead,” despite what I or others have argued here and elsewhere.

The vice president’s authority must come from the Constitution or from some appropriate delegation from Congress pursuant to a statute. The Twelfth Amendment provides, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” The only vice presidential role explicitly provided, then, is to “open all the certificates.” The only other responsibility, counting of votes, is, as argued here and elsewhere, left to Congress.

As an interstitial matter, what else might the vice president do during that session? The Electoral Count Act gives some additional answers. The vice president, for example, gets to “announce the state of the vote” after the tellers count the votes. The vice president is instructed to “call for objections.”

Tribe suggests in this interview that the vice president’s power “could be to reject ‘ungrounded challenges’ to state certifications.” There is no such power in the Constitution, and there is no such power in the Electoral Count Act. A procedurally-valid objection goes to Congress, without debate, and there is no opportunity for anyone, the vice president or otherwise, to prejudge the substance (i.e., whether it is “grounded”). Here’s the ECA once again:

Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision

Upon the statement of a ground, in writing, given clearly and concisely, signed by one senator and one member of the House, the objection is a valid one for consideration of Congress. It happened that way in 1969, 2005, and 2021. As frivolous (as I believe) the objections in 2005 and 2021 were, Vice Presidents Dick Cheney and Mike Pence simply read from the script and allowed the debate to play out in Congress, with no prior adjudication of the merits.

Any early decision from the vice president improperly shortcuts this process in two ways. First, the vice president is prejudging the merits, which a matter left to Congress. Second, the ECA by its own terms requires the objections to be clear, concise, and made “without argument,” because the appropriate forum for examining the merits is left for the separation of the houses of Congress.

In short, Tribe’s argument, like Eastman’s, is inconsistent with both the Twelfth Amendment and the Electoral Count Act. It is hard to examine the potential “other powers” Tribe alludes to at this stage. (There are other interesting debates about Congress’s power, but that’s not at issue here, I think.)

But it is worth spending a little time trying to shut down any Eastman-Tribe gambit in advance of 2025 or any future election.

*While the Constitution says that the President of the Senate presides, we’ll operate under the assumption it’s the vice president, although this raises a number of other interesting inconsistencies if a Senator is presiding–it would seem strange, I think, that the one Senator can outvote the rest of the Congress in this scenario, and that this one Senator is chosen by some internal Senate rule. The presiding officer in 2025 may well be Chuck Grassley or Pat Leahy, among others. Congress might amend the ECA before then to alter who is formally presiding, as the Twelfth Amendment is silent on that point. But this is for another day….

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