Attempts to overturn the 2020 United States presidential election
The electoral map for the 2020 election. Blue denotes the 306 electoral votes for Biden, while Red denotes the 232 electoral votes for Trump.
DateNovember 4, 2020[1] – January 7, 2021[2]
(2 months and 3 days)
Location
Arizona, Georgia, Michigan, Nevada, Pennsylvania, Wisconsin and Washington, D.C.
Caused byFabricated claims of electoral fraud[3][4][5]
Resulted inFailure to overturn election; Joe Biden inaugurated January 20, 2021

The Eastman memos, also known as the "coup memo",[6][7] are documents by John Eastman, an American law professor retained by then-President Donald Trump advancing the fringe legal theory that a U.S. Vice President has unilateral authority to reject certified State electors. This would have the effect of nullifying an election in order to produce an outcome personally desired by the Vice President, such as a result in the Vice President's own party's favor, including retaining himself as Vice President, or if the Vice President is himself the presidential candidate, then to unilaterally make himself president.

Trump and Eastman used the memos in an unsuccessful campaign to pressure then-vice president Mike Pence into preventing or nullifying the 2021 United States Electoral College vote count, and eventually overturning the 2020 United States election of Joe Biden, so that Trump could retain power.

The Trump campaign engaged Eastman with a formal retainer agreement signed December 5 for services in litigating the election outcome.[8][9] The memos have been described as an instruction manual for a coup d'état.

Overview

After the 2020 United States presidential election in which Joe Biden prevailed, then-incumbent Donald Trump, as well as his campaign, his proxies, and many of his supporters, pursued an aggressive and unprecedented effort[10] to deny and overturn the election[11] by means of a legalistic soft coup (or self-coup).

In late December 2020, Trump and some of his supporters, such as former National Security Adviser Michael Flynn, began to promote the idea of the Pence Card, a legal theory by which then-Vice President Mike Pence had unilateral authority to reject electoral votes from states deemed to be fraudulent.[12][13][14] The theory originated with a two-page proposal tweeted to Trump by Flynn associate Ivan Raiklin on December 22.[15]

In that context, John C. Eastman tried to convince then-Vice President Mike Pence that he could overturn the election results on January 6, 2021 (when Congress counted the Electoral College votes) by throwing out electors from "7 states" – presumably Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, along with either New Mexico or the federal district Washington, D.C. Slates of electors declaring Trump the winner were submitted from the seven states, but the National Archives did not accept the unsanctioned documents and they did not explicitly enter the deliberations.[16][17][18] Under Eastman's scheme, Pence would have declared Trump the winner with more Electoral College votes after the seven states were thrown out, at 232 votes to 222.[19][20][21]

According to a news report in The Washington Post on October 23, 2021, the Willard Hotel was a "command center" for the White House plot, that included Eastman, to overturn the results of the 2020 election.[14] According to The Guardian, Eastman was part of a legal team at the Willard that Trump called the night before the January 6 attack on the Capitol and asked them to find ways to stop Biden's certification the next day.[22] Further related details of the effort to deny and overturn the election have been reported,[23][24][25][26][27] including a meeting between election deniers and Trump administration official Robert Destro at the State Department on January 6.[28] Also, in October 2021, Richard Painter said that the former president could be blocked from running again in 2024, due to his activities associated with the January 6, 2021 attack on the Capitol.[29]

The memos are undated. The first memo was prepared in late 2020 following a December 24, 2020 request by a Trump aide.[30] The second and longer memo was likely prepared in early 2021 as it cites a December 31, 2020 court filing.

First memorandum

The first memo described the constitutional and statutory process for opening and counting of electoral votes under the Twelfth Amendment and Electoral Count Act, alleging that the Electoral Count Act was unconstitutional. The memo further claimed that the Vice President, who also serves as President of the Senate and presides over the joint session of Congress, "does the counting, including the resolution of disputed electoral votes... and all the Members of Congress can do is watch." The memo refers to the actions of John Adams and Thomas Jefferson during the presidential elections of 1796 and 1800 as evidence for this claim; some supporters of President Trump, such as Congressman Louie Gohmert, had falsely claimed that Jefferson's counting of Georgia's electoral votes in 1800 indicated that the Vice President could unilaterally accept or reject electoral votes.[31]

The memo then laid out a six-step plan for Pence to overturn Biden's election:[32]

  1. VP Pence, presiding over the joint session (or Senate Pro Tempore Grassley, if Pence recuses himself), begins to open and count the ballots, starting with Alabama (without conceding that the procedure, specified by the Electoral Count Act, of going through the States alphabetically is required).
  2. When he gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States. This would be the first break with the procedure set out in the Act.
  3. At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment – is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe. A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.
  4. Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where “the votes shall be taken by states, the representation from each state having one vote . . .” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.
  5. One last piece. Assuming the Electoral Count Act process is followed and, upon getting the objections to the Arizona slates, the two houses break into their separate chambers, we should not allow the Electoral Count Act constraint on debate to control. That would mean that a prior legislature was determining the rules of the present one – a constitutional no-no (as Tribe has forcefully argued). So someone – Ted Cruz, Rand Paul, etc. – should demand normal rules (which includes the filibuster). That creates a stalemate that would give the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.
  6. The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session or from the Court. Let the other side challenge his actions in court, where Tribe (who in 2001 conceded the President of the Senate might be in charge of counting the votes) and others who would press a lawsuit would have their past position – that these are non-justiciable political questions – thrown back at them, to get the lawsuit dismissed. 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.

Second memorandum

The second memo laid out a more extensive plan with multiple scenarios for Pence to take to overturn Biden's election:[33] The first section outlined alleged illegal conduct by election officials in six states (Arizona, Georgia, Michigan, Nevada, Pennsylvania, Wisconsin). The second section again alleged that the Electoral Count Act was unconstitutional, and that Pence had the power to unilaterally accept or reject electoral votes. The third section referred to "7 states" and outlined various alternatives for Pence to take to overturn Biden's election:

  • VP Pence opens the ballots, determines on his own which is valid, asserting that the authority to make that determination under the 12th Amendment, and the Adams and Jefferson precedents, is his alone (anything in the Electoral Count Act to the contrary is therefore unconstitutional).
    • If State Legislatures have certified the Trump electors, he counts those, as required by Article II (the provision of the Electoral Count Act giving the default victory to the “executive”-certified slate therefore being unconstitutional). Any combination of states totaling 38 elector votes, and TRUMP WINS.
    • If State Legislatures have not certified their own slates of electors, VP Pence determines, based on all the evidence and the letters from state legislators calling into question the executive certifications, decides to count neither slate of electors. (Note: this could be done with he gets to Arizona in the alphabetical roster, or he could defer Arizona and the other multi-slate states until the end, and then make the determination). At the end of the count, the tally would therefore be 232 for Trump, 222 for Biden. Because the 12th Amendment says “majority of electors appointed,” having determined that no electors from the 7 states were appointed (a position in accord with that taken by Harvard Law Professor Laurence Tribe (here)), TRUMP WINS.
    • Alternatively, VP Pence determines that because multiple electors were appointed from the 7 states but not counted because of ongoing election disputes, neither candidate has the necessary 270 elector votes, throwing the election to the House. IF the Republicans in the State Delegations stand firm, the vote there is 26 states for Trump, 23 for Biden, and 1 split vote. TRUMP WINS.
  • 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 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: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
    • If ... the investigation proves to the satisfaction of the legislature that there was sufficient fraud and illegality to affect the results of the election, the Legislature certifies the Trump electors. Upon reconvening the Joint Session of Congress, those votes are counted and TRUMP WINS.

Rejection by Vice President Pence

Gregory Jacob, chief legal counsel to then-Vice President Pence, wrote a memo on December 8, 2020 to the vice-president regarding the January 6 Process for Elector Vote Count, outlining the constitutional issues at stake in the Twelfth Amendment and the Electoral Count Act of 1887.[34]

The Jacob memo provided a basis for Vice President Mike Pence's deferral on January 6 to the U.S. Constitution and to the States, in opposition to the direct request from a sitting president.[35]

Jacob's memo accepted a key legal claim made by Eastman, that there was a precedent set by Jefferson (and possibly Adams) for a vice president to choose which electoral college votes to count. The claim originated in a series of articles by Bruce Ackerman that then-Vice President Thomas Jefferson had in 1800 counted electoral college votes that he should not have done. By implication, this raised the notion that choosing which votes to count was an inherent right of the vice president under the Constitution. Ackerman first put this theory forward, with David Fontana, in 2004.[36] He repeated it in 2020 in a op-ed for the Los Angeles Times that was widely shared that fall.[37]

On December 31, 2020, Ackerman's claim was debunked in an article published on the Backbencher then later in the Washington Monthly on January 5, 2021.[38][39] Another published article further debunked Eastman and Ackerman's claim that Vice Presidents had the right to choose which electoral college votes to count.[40]

On January 5, 2021, Judge Luttig tweeted a response to Holly Brewer, the article writer and legal historian at the University of Maryland. Luttig reaffirmed Brewer’s historical scholarship and attributed its influence to the January 5, 2021 political and constitutional history.[41]

The Trump administration's Attorney General William Barr rejected the legal theory presented in the Eastman memos, submitting his resignation on December 14.[42] In an interview, Barr stated that Eastman's claim that Pence could change things was "crazy," but that "there's nothing inherently wrong with naming an alternative slate of electors".[43]

On September 27, 2021, Laurence Tribe, American legal scholar and University Professor Emeritus of constitutional law at Harvard University, and colleagues, fully described the legal background of the attempt to overturn the 2020 election, as well as possible ways of averting the use of such a legal strategy or similar approach in the future.[44]

The Eastman memos have been described as an instruction manual for a coup d'état.[45][46][47][48]

Disciplinary action

In October 2021, serious complaints that could lead to disbarment were officially submitted against Eastman and related attorney Jeffrey Clark regarding their conduct in attempting to overturn the 2020 election.[49][50] In March 2022, the State Bar of California confirmed that it had been investigating Eastman since September 2021.[51] Also in March 2022, Reuters reported that two U.S. Justice Department officials, Jeffrey A. Rosen and Richard Donoghue, had cooperated with the D.C. Bar's Office of Disciplinary Counsel in its investigation of Jeffrey Clark's possible misconduct in his alleged efforts to help Trump overturn the results of the 2020 election.[52]

Electoral Count Reform of 2022

In December 2022 president Biden signed into law the Electoral Count Reform and Presidential Transition Improvement Act of 2022, which clarified that the Vice President's role in the counting of the electoral votes is "solely ministerial," with no power to "determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or the votes of electors". Also, the bill states that any objection made by a senator or representative during the counting of the electoral votes must be made in writing and signed by at least one-fifth of the Senators and one-fifth of the Members of the House of Representatives. Previously, an objection required the signatures of only one member of each chamber.

See also

References

  1. ↑ Chalfant, Morgan; Samuels, Brett (November 4, 2020). "Trump prematurely declares victory, says he'll go to Supreme Court". The Hill. Retrieved June 18, 2021.
  2. ↑ Liptak, Kevin; Stracqualursi, Veronica; Malloy, Allie (January 7, 2021). "Trump publicly acknowledges he won't serve a second term a day after inciting mob". CNN. Retrieved May 13, 2021.
  3. ↑ Woodward, Calvin; Dale, Maryclaire (November 6, 2020). "Fact Check: Trump Fabricates Election Corruption".
  4. ↑ Crowley, Michael (November 6, 2020). "Trump's False Election Fraud Claims Split Republicans". The New York Times. Archived from the original on November 16, 2020. Retrieved November 6, 2020.
  5. ↑ Funke, Daniel (November 20, 2020). "Dozens of claims about election fraud, debunked". PolitiFact. Tampa Bay Times.
  6. ↑ Bort, Ryan (June 16, 2022). "'Coup Memo' Author Knew About Secret Supreme Court Election Tension … Somehow". Retrieved June 17, 2022.
  7. ↑ "'Coup memo' author asked for pardon and lobbied VP to overturn election after riot". June 16, 2022. Retrieved June 17, 2022.
  8. ↑ "Inside Pence-world's preparation for a Jan. 6 legal showdown". POLITICO. March 30, 2022. Retrieved June 10, 2022.
  9. ↑ "Re: Engagement Letter for Legal Services" (PDF).
  10. ↑ Multiple sources:
    • Kumar, Anita; Orr, Gabby (December 21, 2020). "Inside Trump's pressure campaign to overturn the election". Politico. Trump's efforts to cling to power are unprecedented in American history. While political parties have fought over the results of presidential elections before, no incumbent president has ever made such expansive and individualized pleas to the officials who oversee certification of the election results.
    • Sanger, David E. (November 19, 2020). "Trump's Attempts to Overturn the Election Are Unparalleled in U.S. History". The New York Times. President Trump's attempts to overturn the 2020 election are unprecedented in American history and an even more audacious use of brute political force to gain the White House than when Congress gave Rutherford B. Hayes the presidency during Reconstruction.
  11. ↑ Lozada, Carlos (October 8, 2021). "Adam Schiff points to a second insurrection — by members of Congress themselves - In his memoir ["Midnight In Washington: How We Almost Lost Our Democracy and Still Could"], the House Intelligence Committee chair argues America barely passed Trump's "stress test" of American democracy". The Washington Post. Retrieved October 9, 2021.
  12. ↑ Evon, Dan (December 23, 2020). "Can Veep Play the 'Pence Card' and Reject US Election Results?". Snopes.com.
  13. ↑ Levinson, Adam (December 24, 2020). "Why is the so-called "Pence Card" a canard?". statutesandstories.com. Retrieved January 11, 2021.
  14. 1 2 Alemany, Jacqueline; Brown, Emma; Hamburger, Tom; Swaine, Jon (October 23, 2021). "Ahead of Jan. 6, Willard hotel in downtown D.C. was a Trump team 'command center' for effort to deny Biden the presidency". The Washington Post. Retrieved October 23, 2021.
  15. ↑ Ram Roston; Brad Heath; John Shiffman; Peter Eisler (December 15, 2021). "The military-intelligence veterans who helped lead Trump's campaign of disinformation". Reuters.
  16. ↑ Broadwater, Luke; Feuer, Alan (January 21, 2022). "Jan. 6 Panel and State Officials Seek Answers on Fake Trump Electors - Pressure is mounting on the Justice Department to investigate bogus electors who claimed that Donald J. Trump defeated Joseph R. Biden Jr. in their states". The New York Times. Retrieved January 22, 2022.
  17. ↑ "American Oversight Obtains Seven Phony Certificates of Pro-Trump Electors". American Oversight. March 2, 2021. Retrieved January 16, 2022.
  18. ↑ Eggert, David (January 14, 2022). "Michigan AG asks feds to investigate fake GOP electors". Associated Press. Retrieved January 17, 2022.
  19. ↑ Gangel, Jamie; Herb, Jeremy (September 20, 2021). "Memo shows Trump lawyer's six-step plan for Pence to overturn the election". CNN. Retrieved September 30, 2021.
  20. ↑ The Editorial Board (October 2, 2021). "Jan. 6 Was Worse Than We Knew". The New York Times. Retrieved October 3, 2021.
  21. ↑ "Memo shows Trump lawyer's six-step plan for Pence to overturn the election". cnn.com. September 20, 2021. Retrieved September 30, 2021.
  22. ↑ Lowell, Hugo (November 30, 2021). "Trump called aides hours before Capitol riot to discuss how to stop Biden victory". the Guardian.
  23. ↑ Dawsey, Josh; Alemany, Jacqueline; Swaine, Jon; Brown, Emma (October 29, 2021). "During Jan. 6 riot, Trump attorney told Pence team the vice president's inaction caused attack on Capitol". The Washington Post. Retrieved October 30, 2021.
  24. ↑ Kaczynski, Andrew; Steck, Em (October 30, 2021). "Trump lawyer John Eastman said 'courage and the spine' would help Pence send election to the House in comments before January 6". CNN. Retrieved October 30, 2021.
  25. ↑ Stracqualursi, Veronica (October 30, 2021). "Washington Post: Trump lawyer John Eastman blamed Pence for January 6 violence by refusing to block 2020 election certification". The Washington Post. Retrieved October 30, 2021.
  26. ↑ Blake, Aaron (October 30, 2021). "The most shocking new revelation about John Eastman - He and Trump were not just pressing forward despite the mob; they apparently were trying to leverage it". The Washington Post. Retrieved October 30, 2021.
  27. ↑ Broadwater, Luke (October 30, 2021). "Trump Lawyer Blamed Pence for Violence as Rioters Stormed Capitol - John Eastman, the author of a memo that some in both parties liken to a blueprint for a coup, sent a hostile email to the vice president's chief counsel as the mob attacked". The New York Times. Retrieved October 31, 2021.
  28. ↑ Helderman, Rosalind S. (May 17, 2022). "Senior Trump official at State met with election denial activists Jan. 6". The Washington Post. Retrieved May 18, 2022.
  29. ↑ Kilander, Gustaf (October 5, 2021). "Trump could be blocked from running again, former White House ethics boss says - 'We should not have to deal with his candidacy in 2024'". The Independent. Retrieved November 4, 2021.
  30. ↑ Schmidt, M.S., Haberman, M. The Lawyer Behind the Memo on How Trump Could Stay in Office https://www.nytimes.com/2021/10/02/us/politics/john-eastman-trump-memo.html New York Times. 2 October 2021. Retrieved 11 February 2022
  31. ↑ "No, Thomas Jefferson Didn't Rig the 1800 Vote Count". Washington Monthly. January 5, 2021.
  32. ↑ Staff (September 21, 2021). "Trump lawyer's memo on six-step plan for Pence to overturn the election". CNN. Retrieved September 30, 2021.
  33. ↑ CNN (September 21, 2021). "READ: Trump lawyer's full memo on plan for Pence to overturn the election". CNN. Retrieved October 31, 2021. {{cite web}}: |last= has generic name (help)
  34. ↑ Gregory Jacob (December 8, 2020). "JANUARY 6 PROCESS FOR ELECTORAL VOTE COUNT" – via Politico.
  35. ↑ "Inside Pence-world's preparation for a Jan. 6 legal showdown". POLITICO. March 30, 2022. Retrieved June 9, 2022.
  36. ↑ Fontana, Bruce Ackerman, David (March 1, 2004). "How Jefferson Counted Himself In". The Atlantic. Retrieved May 31, 2023.{{cite web}}: CS1 maint: multiple names: authors list (link)
  37. ↑ Ackerman, Bruce; Khanna, Ro (September 13, 2020). "Op-Ed: Claims of a rigged election? Here's how Congress could save our democracy from vote-count chaos". Los Angeles Times. Retrieved May 31, 2023.
  38. ↑ Brewer, Holly (December 31, 2020). "No, Jefferson didn't rig the 1800 vote count". Backbencher.
  39. ↑ Brewer, Holly (January 5, 2021). "No, Thomas Jefferson Didn't Rig the 1800 Vote Count". Washington Monthly.
  40. ↑ Brewer, Holly (January 5, 2021). "More on this Jefferson nonsense". Backbencher.
  41. ↑ Luttig, J. Michael. "@judgeluttig". Twitter.
  42. ↑ America, William P. Barr, Attorney General of the United States of (December 14, 2020), English: Attorney General William P. Barr's resignation letter to President Donald J. Trump dated 14 December 2020. (This work is in the public domain per 17 U.S.C. § 105 as it is a work product of a US Federal Government employee made in the course of his/her duties.), retrieved June 10, 2022{{citation}}: CS1 maint: multiple names: authors list (link)
  43. ↑ "EXCLUSIVE: Last night, I asked Trump AG Bill Barr if he had spoken w/ coup memo author John Eastman". Twitter. Lauren Windsor's twitter account. Retrieved June 10, 2022.
  44. ↑ Tribe, Laurence H.; Buchanan, Neil H.; Dorf, Michael C. (September 27, 2021). "How to prevent the legal strategy that nearly undid the last election from ending democracy - Congress needs to act and the executive branch needs to step up". The Boston Globe. Retrieved September 30, 2021.
  45. ↑ Sullivan, Margaret (September 30, 2021). "A Trump lawyer wrote an instruction manual for a coup. Why haven't you seen it on the news?". The Washington Post. Retrieved September 30, 2021.
  46. ↑ Benen, Steve (September 21, 2021). "Trump lawyer outlined plan to overturn election in newly disclosed memo.The newly disclosed Eastman Memo sketched out a six-step scenario to overturn the election and keep Trump in power. It effectively outlined a coup". msnbc. Retrieved October 1, 2021.
  47. ↑ Bookman, Jay (September 27, 2021). "Eastman memo shows how close Georgia GOP chair came to enabling Trump coup". ohiocapitaljournal.com. Retrieved October 1, 2021.
  48. ↑ Parton, Heather Digby (October 8, 2021). "Trump's coup plot was worse than anyone knew - Republicans are trying their best to make attempted coups now normal politics in America". Salon. Retrieved October 8, 2021.
  49. ↑ Stern, Mark Joseph (October 5, 2021). "The Legal Architects of Trump's Failed Coup May Finally Face Real Consequences". Slate. Retrieved October 5, 2021.
  50. ↑ Benner, Katie (October 6, 2021). "Report Cites New Details of Trump Pressure on Justice Dept. Over Election - A Senate panel fleshed out how Donald Trump pursued his plan to install a loyalist as acting attorney general to pursue unfounded reports of fraud". The New York Times. Retrieved October 7, 2021.
  51. ↑ "California bar investigating Trump lawyer for ethic breaches". abc10.com. March 1, 2022. Retrieved May 28, 2022.
  52. ↑ Lynch, Sarah N. (March 29, 2022). "EXCLUSIVE Two former U.S. officials help ethics probe of Trump ally Clark, source says". Reuters. Retrieved May 28, 2022.
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