Perspective 52. The Eastman Memo: Attempted Insurrection?

Donald Trump's attempt to block certification of Presidential electoral votes, on January 6, was guided by a memorandum written by one John Eastman, then law professor at Chapman University. Is Eastman's memo part of an attempt to overturn valid election results -- i.e., peaceful but extra-legal insurrection?

Yes. The document is now available online, and it is amazing that it has not ignited a storm of protest blowing Trump off the political map. We've dealt with this issue before, but at the risk of undue repetition let's take a close look at what should have evoked such outrage.

Harking back to the stolen 1876 election, Eastman proposes that Vice President Pence, presiding over the counting of electoral votes on Jan. 6, announce that seven states have submitted more than one slate of electors, and that therefore "no electors that can be deemed validly appointed in those states."

The fact is that no state did submit more than one slate, but presumably this could have been arranged. Or, as happened, the one slate submitted could be disputed and therefore not counted.

This means, says Eastman, that "the total number of 'electors appointed' -- the language of the 12th amendment -- is 454." Trump, with 232 at this point, would have a majority, and "Pence then gavels President Trump as re-elected."

"Howls, of course, from the Democrats," Eastman concedes. But he has a Plan B. Pence declares, based on the 12th amendment, that since no candidate has a majority the matter is referred to the House of Representatives where each state has one vote. And the Republicans control 26 of the state delegations.

Eastman's legal case, however tortured, depends further on another bit of legerdemain. There is a procedure, established in the Electoral Count Act of 1887 to avoid a repeat of the 1876 debacle, for deciding between disputed slates of electors. It involves the two Houses of Congress each meeting separately to decide which electors are legitimate.

But both Houses were inconveniently controlled, on Jan. 6, by Democrats. Well, says Eastman, we just have to declare that this part of the Electoral Count Act is unconstitutional. On what slippery grounds? Well, because "the 12th amendment provides only for a joint session."

On this slim reed rests the entire ramshackle legal case. It could only have proceeded if all Republicans had gone along with the gag -- as most in fact did by voting against the certification of electoral votes from two states. In other words, by engaging in peaceful but extra-legal insurrection against election returns certified by members of their own party.

Eastman was, by the way, one of the speakers at the Jan. 6 rally inspiring the mob that then invaded the Capitol to stop the electoral count. One week later he retired from his position at Chapman University. Coincidence, no doubt.

The 14th Amendment provides that no person who "shall have engaged in insurrection or rebellion against the Constitution of the United States" can hold any federal office. This will surely be invoked if Trump tries to return to the White House in 2024.