One of the things you learn about Donald Trump is that whatever he accuses the other side of, he does so because he's guilty of the very same thing. After the 2020 election, Trump accused Democrats of "stealing" the election via election fraud. Trump and his crack legal team of Larry, Moe and Curly, however, could never actually produce any evidence of that fraud. But the allegation of a stolen election did divert attention from the fact that Trump and his supporters were working behind the scenes post-election to steal Biden's victory at the polls.Peril, details Trump's attempt to overturn the election results.
Part of the Trump Team's strategy was the work of "constitutional scholar" John Eastman who drafted a memorandum in which he laid out a plan by which the Vice President of the United States could exercise absolute, unquestioned authority over deciding who won the election. Eastman's memo, in full, is set out below:
PRIVILEGED AND CONFIDENTIAL
January 6 scenario
7 states have transmitted dual slates of electors to the President of the Senate.
The 12th Amendment merely provides that “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.” There is very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes (as Adams and Jefferson did while Vice President, regarding their own election as President), and all the Members of Congress can do is watch. The Electoral Count Act, which is likely unconstitutional, provides:If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.
This is the piece that we believe is unconstitutional. It allows the two houses, “acting separately,” to decide the question, whereas the 12th Amendment provides only for a joint session. And if there is disagreement, under the Act the slate certified by the “executive” of the state is to be counted, regardless of the evidence that exists regarding the election, and regardless of whether there was ever fair review of what happened in the election, by judges and/or state legislatures.
So here’s the scenario we propose:
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 (here). 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 “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
Of course, Eastman cites no legal authority to support his conclusion. But there is vagueness in the Constitution and Electoral Count Act (an 1887 federal statute which attempts to add more detail to the process involved in counting and certifying electoral votes) which allows jokers like Eastman to make nonsensical suggestions like the VP is the absolute arbiter of who wins a presidential election.
Eastman's memo isn't about law. Rather it is about using the office of the Vice Presidency to steal an election. Eastman clearly understands that once Vice President Pence handed the election to Trump, regardless of whether it was legal to do so, it would be hard to un-ring the bell. Notably, the process Eastman suggests cuts the Democratic-dominated House out of the process of certifying electoral votes, in favor of the VP doing so. The House's only role, if it came to that, would be voting by delegation for the President. Since Republicans hold majorities in 26 of the 50 House delegations, Eastman knew Trump would win.
Fast forward. Republicans in 2022 regain the House and have a narrow majority in the Senate. Republicans had a good election in 2022 and control the legislatures in swing states like Arizona, Georgia, Michigan, Wisconsin, Pennsylvania and Florida. The 2024 presidential election, a rematch of Biden v. Trump, comes down, once again, to those swing states. Biden wins the popular vote in those states. Trump screams fraud and asks his Republican friends to throw out the election results in those states and instead select a pro-Trump slate of electors. Or, let's say that doesn't work, and it comes down to the Republican House and Republican Senate certifying the Biden electoral votes from those states. Are people confident those Republican members of Congress will stand up to Trump and hand the win to Biden? I have zero confidence of that.
Trump's attempt at stealing the 2020 election was thwarted by an army of local, state and national Republican officials who decided to do their jobs honestly and with integrity. Those "traitors" are being identified and ousted by Trump and his minions in favor of those who will do Trump's bidding next time around.
Democrats can do little about that. But they can help change and clarify vague rules that open the door to the next Presidential election being stolen. Priority number one needs to be amending the Electoral Count Act so it is clear that the Vice President and Congress cannot override the will of the people as reflected in the popular vote of each state. Republicans can either agree to change the law or take the unpopular position that Congress has the right to override the will of the people.
Amending the Electoral Count Act should be priority No. 1 for Democrats. Instead they are obsessed about "voter suppression" laws passed by Republicans that will at best have a minuscule impact on turnout. Democrats are not going to lose the White House to Donald Trump in 2024 because of the voters. If they lose, it will be because of the vote counters.