“No, Constitutional Scholars Are Not ’50/50′ in Agreement With Donald Trump About Jan. 6”

Matt Seligman for Slate:

This is, frankly, nuts. Eastman’s idea is that because a violent mob stormed the Capitol, physically preventing Congress from sticking to the law’s two-hour time limit in the most brutally literal way, Pence could ignore the law entirely going forward. Imagine you got stuck in a traffic jam on your way to mail your tax return by the legal deadline. Even if the IRS forgave the delay, it would be decidedly unimpressed if you cited it as “precedent” for you never having to pay your taxes again.

Eastman’s view, which is really the principal constitutional scholar viewpoint Trump has clung to, was not only nonsensical. He had no idea what he was talking about and looked only so far as it took to find the legal conclusion he wanted regardless whether it was right.

I know this first-hand. In late September, shortly after Eastman’s memo became public, Harvard Law Professor Lawrence Lessig and I debated him on its legal merits. I wasn’t interested in Eastman’s rehashing of thoroughly debunked allegations of voting improprieties. I wanted to push him on why he advised Pence to assert such a stunningly antidemocratic power. Especially when “sending it back to the states” would plainly have violated federal law.

The Elections Clause of Article II of the Constitution provides that “Congress may determine the time of choosing the electors.” Congress has exercised that unambiguous power by requiring that “[t]he electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November,” Election Day. And Congress created only an extremely narrow exception, permitting states to appoint electors later only if it “failed to make a choice on the prescribed day.”

Sending the Electoral Vote count back to the state legislatures to undo the decision of the voters made on Election Day would have been a blatant constitutional violation. The “failed to make a choice” exception might sound broad. But as election law scholar Michael Morley has explained, its history in the Presidential Election Day Act of 1845 shows that it applies only if state law requires a runoff to get a majority winner like the Georgia Senate races earlier this year, or possibly if a natural disaster interferes with Election Day.

But Eastman was completely ignorant of all that. When I pressed him on why he thought Pence could delay the count for states to appoint new “alternative” slates of electors, it was clear he was hearing the history for the first time and he was spit balling a new theory on the fly. If I were to write a memo to the vice president recommending that he assert the unprecedented power to halt the counting of electoral votes over the objections of Congress, I would have spent more than a few days over Christmas looking into it. The fate of American democracy requires a bit more rigor than that.

Between Eastman’s insane off-the-cuff legal theories and Trump’s delusions about the state of constitutional scholarship, what is going on here? Why would anyone assert these crazy ideas? And why would anyone believe them?

These are legal conspiracy theories. They arise from the same dark place that leads people to believe that millions of fraudulent votes were cast by dead people or non-citizens. Or that the deceased Venezuelan President Hugo Chavez rigged electronic voting machines. Or that Italian military satellites changed votes from Biden to Trump.

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