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Conservatives try (and fail) to defend pro-Trump Eastman memo

John Eastman's employer tried to mount a defense of the controversial Eastman Memo, which sketched out an anti-election scheme. It didn't go well.


When John Eastman wrote a strange opinion piece last summer arguing that future Vice President Kamala Harris was ineligible for national office because her parents were immigrants, he was a relatively obscure national figure. That soon changed.

As we've discussed, Eastman last fall began working with Donald Trump — the then-president saw him on Fox News and was impressed — and as part of that work, Eastman filed the brief last December on Trump's behalf that asked the U.S. Supreme Court to overturn the 2020 presidential election. (It was filled with factual errors — including an obvious one literally on the first page.)

Soon after, he authored what's become known as the Eastman Memo, which was effectively a blueprint Republican officials could follow to reject the results of the U.S. election and keep the losing candidate in power. Yesterday, the Claremont Institute, a conservative think tank that employs Eastman, published a relatively brief defense of the document, suggesting there's been an unfortunate misunderstanding about its author's intentions.

The Eastman Memo, according to the Claremont Institute, was simply "legal advice that has since been maliciously misrepresented and distorted by major media outlets." The defense argued:

"Contrary to almost universally false news accounts, which have done great damage, John did not ask the Vice President, who was presiding over the Joint Session of Congress where electoral votes were to be counted on January 6, to 'overturn' the election or to decide the validity of electoral votes."

It added that Eastman advised "the Vice President that, despite credible legal arguments to the contrary, the Vice President should regard Congress, not the Vice President, as having the authority to choose between the two slates."

This is so difficult to take seriously, it's a bit surprising to see the Claremont Institute put it in print. The argument, to the extent that "argument" is the appropriate word, is that Eastman didn't advise Pence to overturn the election; he simply advised Pence to set a process in motion that would permit Congress to overturn the election.

The "distinction without a difference" phrase comes to mind for a reason.

Circling back to our earlier coverage, the Eastman Memo fleshed out a multi-step scenario in which the then-vice president, rather than honor the results of the election, would exploit ambiguities in the Electoral Count Act and set aside the Electoral College votes of seven states. That would put Trump in the lead, but it would also leave both candidates short of a majority.

From there, under Eastman's reported plan, the election would shift to the U.S. House, where Republicans controlled enough state delegations to keep Trump in power, despite his defeat.

This was, in other words, a document — written by a lawyer representing the then-president — that effectively outlined how Republicans could execute something resembling a coup. Eastman even pushed his vision on Jan. 6, speaking at the pro-Trump rally ahead of the insurrectionist riot. It's why a group of prominent lawyers, including former governors and judges, have urged the California bar to launch an investigation into Eastman's work.

For the Claremont Institute, the important detail is that under the lawyer's scheme, Pence would not directly overturn the election; that task would fall on others. It's a defense that seems to miss the point of the controversy.

A Washington Post analysis summarized the bigger picture nicely: "What the Claremont Institute should really be responding to is whether it's comfortable with its employee explicitly seeking to help overturn an American election based upon claims that were routinely debunked and rejected in court. That's the issue here — not whether Eastman actually said Pence should attempt it unilaterally."