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- John Eastman is a lawyer and senior researcher at the Claremont Institute, a conservative think tank.
- CNN this week released a two-page memo it wrote for Trump’s legal team.
- A longer version, obtained by Insider, claims Mike Pence could have handed the election over to Trump.
A six-page memo, presented to former President Donald Trump’s legal team days before Jan.6 – and obtained by Insider – details a right-wing attorney’s argument on how the previous administration might remain in power despite the loss of the 2020 elections.
On Monday, CNN released a two-page memo from attorney John Eastman, allegedly obtained by reporters Bob Woodward and Robert Costa and detailed in their new book, “Peril.”
This document outlined a six-part plan that former Vice President Mike Pence was to follow on Jan.6, claiming the Constitution granted him the right to reject voters in states where Trump’s legal team falsely alleged he was. there had been significant electoral fraud.
But Eastman, a senior researcher at the Claremont Institute, a conservative think tank, told Insider the document was a “draft.” He provided a longer document – “the full memo”, dated January 3 and labeled “privileged and confidential” – which developed the new and extraordinary claim, made in the so-called draft, than the 12th Amendment to the US Constitution. empowered Vice President Mike Pence to not only count the Electoral College’s votes, but unilaterally determine their legitimacy.
“There is a very strong legal authority and a historic precedent for the view that the Speaker of the Senate conducts the count, including the resolution of contested electoral votes,” Eastman wrote, saying that “all that members of Congress can do is watch. “
In this scenario, Eastman maintained that Pence could decide to count “Trump voters” who had been approved by Republican-led state legislatures – even after those states had already sent in a list of certified voters, approved by their voters. Governors, for President Joe Biden.
Even if there were no competing pro-Trump slates, Eastman argued, Pence could thwart Biden’s victory by deciding for himself, “based on all the evidence and letters from [pro-Trump] state lawmakers questioning executive certifications, ”not to accept any slate.
Kermit Roosevelt, a constitutional expert at the Carey School of Law at the University of Pennsylvania, told Insider the arguments were shocking. “We knew this theory existed, but it is alarming that it was drafted and presented to Trump’s legal team and presumably taken seriously by them,” he said.
Roosevelt said that while he didn’t doubt Eastman’s sincerity, he couldn’t understand the reasoning.
“Legally speaking, the analysis is bad,” he said. Even if there were two voters lists – there weren’t any – “it is a marginal point of view to say that the vice-president decides what is valid”.
“I would say this is a coup plan masked by legal language,” Roosevelt added.
In total, Eastman suggested that Pence could reject voter lists for seven battlefield states, including Pennsylvania, Georgia and Arizona, depriving millions of voters of the right to vote. To support this argument, he said it was “a position consistent with that taken by Harvard law professor Laurence Tribe.” A former Obama administration official, Tribe co-wrote an article in September 2020 – on scenarios in which Trump might attempt to subvert the will of voters – that noted elections are decided by who has a majority of “nominated” voters. , not necessarily the majority. voters from all states.
In a Twitter post, Tribe accused Eastman of taking “parts of my work completely out of context.” He never argued that the vice president alone can determine the legitimacy of a state’s voters.
Eastman, who told Insider he presented the note to Trump’s attorneys, said he only intended to cite Tribe’s uncontroversial view that there was no requirement minimum for the number of voters who ultimately decide on a presidential contest.
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