A right-wing lawyer working with President Donald Trump’s legal team authored a detailed plan explaining various ways then-Vice President Mike Pence and congressional Republicans could overturn the 2020 election in the days leading up to the January 6 counting of electoral votes. The plan, laid out in a two-page memo obtained by reporters at CNN and The Washington Post, was a six-step scheme to end American democracy, foiled largely because Pence was ultimately unwilling to go through with it.
That lawyer, John Eastman, is a member in good standing of the conservative legal establishment. A former clerk to Associate Justice Clarence Thomas, Eastman helms the Center for Constitutional Jurisprudence at the Claremont Institute, a conservative think tank that has embraced Trumpism. He has chaired one of the Federalist Society’s practice groups as well as the anti-LGBTQ National Organization for Marriage and is a director of the conservative Public Interest Legal Foundation.
Eastman is also a welcome guest on right-wing news networks. In the days following the 2020 election, he went on a tour of those outlets talking up the legal theories that he claimed supported Trump’s push to subvert its results. He repeatedly claimed during those interviews that if the election results stood, “we no longer have a self-governing republic,” helping to prime audiences to believe Trump’s lie that the election had been stolen.
Eastman's media tour came amid a larger, concerted push by Fox News and other right-wing outlets to undermine confidence in the results of the 2020 election.
Eastman’s December push for the Texas lawsuit to throw out swing state results
Eastman used a series of appearances in early December to promote a novel and doomed lawsuit aimed at throwing out the vote results in four swing states that Trump lost, which had been launched by the state attorney general of Texas and joined by numerous other Republican state attorneys general.
Eastman described the suit during a December 8 appearance on Fox News host Laura Ingraham’s prime-time show as a “terrific one for the Supreme Court, because it doesn't turn on proof of the allegations of fraud and the Dominion machines and all these other things that are huge evidentiary matters. It turns on a very simple legal question -- did these states conduct an election in violation of their state law?” He later termed the suit “an extremely important legal issue” the court was likely to take up.
“This is the case,” Ingraham replied, “that I've been waiting for, and I can't wait to see where it goes.”
Two nights later, after filing a motion on the president’s behalf in support of the lawsuit, Eastman returned to Ingraham’s show to again promote it. During that segment, he claimed that the suit put “the burden on their side to prove that there wasn't fraud, because the very statutes that were put in place to prevent fraud they deliberately violated.”
For her part, Ingraham argued that “this case is about protecting and upholding the Constitution.”
“The Texas suit has got merit,” Eastman concluded. “I'm very confident the Supreme Court is taking it very seriously tonight."
The Supreme Court summarily tossed the case the next day with a brief, unsigned opinion which stated that Texas “has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections.”
Eastman is a regular on Ingraham’s show, making 45 appearances there since December 2017, according to Media Matters’ database. But he discussed the suit during the same period on Newsmax and on former Trump campaign chair Steve Bannon’s War Room: Pandemic show.
Eastman role in the January 6 coup plot
With the Texas suit dead and the Electoral College confirming Biden’s victory on December 14, Eastman turned to a new phase of his effort to help Trump overturn the election results. That’s the plot detailed in his memo, which asserts that when Congress convened on January 6 to count the electoral votes, Pence had the power to single-handedly reject Biden electors in states with “ongoing disputes” and then “gavels President Trump as re-elected.” This argument is legally preposterous, but dangerous ambiguities in federal law left the election vulnerable to that strategy, if Pence and congressional Republicans were willing to play along.
Eastman detailed that plan during a January 2 appearance on Bannon’s show. Introduced as “one of the great thinkers about the Constitution and also a man of action,” Eastman explained that “the U.S. Constitution very clearly assigns the power of selecting the manner of selecting electors to the legislatures of the state.” Alleging that “partisan” elected officials and judges had “ignored or altered” election laws passed by those legislatures, Eastman claimed that the elections were thus “illegally conducted” and the results should be “devolved back to the state legislatures.”
Eastman went on to argue that Pence also had a vital role to play.
“I think if the vice president, as presiding over the joint session, would at least agree that because those ongoing contests have not been resolved, we can't count those electors, that means that nobody has a majority of the electors,” Eastman said. “And either they delay things so those constitutional challenges are resolved or they say, OK, well, we don't have electors from those states, that nobody has a majority.”
As described in his memo, at that point the state delegations of the House of Representatives, where Republicans had the advantage, would be able to declare the winner.
“This is about more than who wins this particular race,” Eastman concluded. “We no longer have a self-governing republic if the elections that we participate in are meaningless because of fraud.
“And that's the stakes,” he added. “Are we going to be a self-governing republic or are we not? Those are the stakes.”
On the morning of January 6, in response to Trump’s public and private exhortations to throw out the election results and declare him the winner, Pence released a letter stating that he lacks “unilateral authority to determine which electoral votes should be counted and which should not.”
Moments later, speaking before the White House to a raucous crowd of thousands of supporters drawn to Washington, D.C., under the impression that the election could still be reversed, Trump said, “I hope Mike has the courage to do what he has to do." Incited by Trump, the mob then marched on the U.S. Capitol, violently overcoming law enforcement officers defending the building and its occupants and halting the joint session of Congress. Some chanted, “Hang Mike Pence!” The then-vice president and his family only narrowly avoided the mob before escaping to an undisclosed location.
At a little before 6 p.m. EST, as law enforcement was trying to clear the Capitol of rioters, Eastman was on Bannon’s show tearing into Pence for refusing to overturn the election results. He claimed that Pence was “exaggerating what the request was” for him to do and argued that the vice president had ignored his “constitutional obligation not to allow our Constitution to be shredded by allowing illegally cast electoral votes to decide the election.”
Eastman went on to say that while he does not “in any way endorse any violence” at the Capitol, it happened “because we have failed in every one of our formal institutions” to address the supposed election fraud, and as a result, “some of the people think they've got no other option.”
After detailing supposed fraud allegations, he added, “These are the kind of things that have people angry and by God, they ought to be angry.”
“The undermining of the democracy occurs when you change the rules of the game in the middle of the election or, in the case of Pennsylvania, continue to change them even after the election in order to let your guy win,” Eastman concluded. “That's what undermines our democratic process. And if people don't have faith in the ballot box, as the way to control the government, we no longer have a self-governing republic. Those are the stakes here.”
Eastman’s actions were part of a broad effort by Trump supporters in the right-wing media and in the Republican Party to delegitimize the results of the 2020 election. That strategy was incredibly effective, ensuring that a huge swath of Republicans believe that the election was stolen.
It also paved the way for future efforts by GOP lawyers and politicians to overturn elections that the party loses. The party has institutionalized the Big Lie, purging its opponents and raising up its supporters. Those efforts rely on a right-wing media that is willing and eager to support these assaults on democracy. Eastman’s memo wasn’t acted on, in the end. Next time, we may not be so lucky.