John Eastman’s Disastrously Bad Idea

By Byron York

 Claremont Institute legal scholar John Eastman will be arraigned next week on nine felony counts related to his efforts to reverse the results of the 2020 election, charges that were brought by the Democratic district attorney of Fulton County, Georgia, Fani Willis. Eastman is one of the minds behind the scheme that, had it been enacted on Jan. 6, 2021, called for then-Vice President Mike Pence, presiding over the congressional certification of Electoral College results, to send the votes of key states including Arizona and Georgia back to the states for more debate and investigation, thus denying Joe Biden a victory in the Electoral College that was already settled and certified.

Pence refused to take part in the scheme. Then the proceedings were interrupted for several hours by the Capitol riot. And then Biden’s victory was finally certified. There was never any chance Eastman’s plan would have succeeded, but there is no doubt that, had Pence followed Eastman’s advice, the already chaotic day would have descended into a far more serious disorder.

That doesn’t mean Eastman’s idea was illegal. It does not mean it was a crime. In the political world, there are a lot of very damaging ideas that are not crimes. But prosecutor Willis has pushed ahead, even though a judge barred her from pursuing one possible defendant because of her, Willis’s, partisan political activities.

In any event, now Eastman, facing the possibility of years in prison, will begin his defense. This week, he began it in a very public way by sitting for an interview with Fox News’s Laura Ingraham, who in addition to her work on television is a lawyer and former Supreme Court clerk. In just a few minutes, Ingraham exposed a key flaw, perhaps the key flaw, of Eastman’s plan: He had no idea what to do if he succeeded.

Early in the interview, Eastman claimed that he had “lots of evidence of fraud” in the 2020 presidential election. Ingraham challenged him. “I haven’t seen that evidence,” she responded. “And I’m always wanting to see everything. So I haven’t seen that evidence.” The conversation then turned to the legal challenges of election results. But then Ingraham got to the simple question at the heart of the Jan. 6 story: “John, on Jan. 6, what did you want to happen? … Just so the viewers can understand what would have unfolded and how that would have ultimately been constitutional.”

Eastman began by saying that “some people,” meaning some around then-President Donald Trump, “had urged that Vice President Pence simply had power to reject electors whose certification was still pending.” In other words, Pence could, all on his own, reject Biden’s victory. Ingraham quickly noted, “I don’t believe that,” but Eastman maintained that it was an “open issue.” Nevertheless, Eastman said he told Pence “it would be foolish to exercise such power even if he had it.”

OK. So what did Eastman want Pence to do? “What I recommended, and I’ve said this repeatedly, is that he accede to requests from more than a hundred state legislators in those swing states to give them a week to try and sort out the impact of what everybody acknowledged was illegality in the conduct of the election.”

“Not everyone acknowledged it,” Ingraham noted. And then a more practical question: “You thought a week was going to be enough to hear all these challenges?” Underlying Ingraham’s question was a simple fact: There was no way in the world the challenges could have been resolved in a week. Eastman acknowledged that when he responded, “We’re still 2 1/2 years later looking at the evidence.”

Still, Eastman maintained that “what a week would have done is give them an opportunity to assess, OK, is the uncertainty so great because of the illegality in the election that we have a failed election? And at that point, the power to do the best they can revolved back to the [state] legislature. … A week would have given them a time to try and decide what, if anything, to do about it. And, you know, we were never going to get in a week to the bottom of how much fraud or what have you. But we could get to the bottom of illegality, and we could make some estimates and extrapolations to try and do the best job we could to assess what the likely outcome actually was.”

There it is. Eastman said a week would be enough for the state legislatures to come up with “estimates and extrapolations” to see if the election was legitimate or not. That was his plan. But remember this:

1) The state results were already certified. They were literally signed, sealed, and delivered. The challenges from “more than a hundred state legislators” that Eastman mentioned were from several states and from people who did not represent a majority in any house of any state legislature. They were just groups of Republican lawmakers who questioned the election results. When Eastman referred to “electors whose certification was still pending” — there weren’t any. No legislature, as a body, and no governor had declared a state’s results illegitimate. Indeed, just the opposite was true. After recounts in the key states, the states had certified the results. There was no legal reason to send the election results back to any state.

2) The “illegalities” that Eastman cited had been considered in the courts. Some claims had been rejected before the election, some after the election. One important claim, in Pennsylvania, where the state Supreme Court, acting on its own, extended the time in which mail-in ballots could be received, made its way to the Supreme Court, which declined to hear it. That is not to say there was no valid criticism of the Pennsylvania court’s action, but the fact is, the objection had been taken all the way to the Supreme Court, and the case was over.

3) Most importantly, Eastman did not know what to do if he won. Let’s say Pence sent the electoral results back to some states. In a week, according to Eastman’s thinking, the state legislatures could “get to the bottom of illegality.” And what then? At that point, somebody would make “estimates and extrapolations” to determine if 2020 was a “failed election.” Then they would do “the best job we could” to “assess what the likely outcome actually was.”

Who knows how that would work. But here is the fundamental question. Under Eastman’s plan, who would be president of the United States at noon on Jan. 20, 2021? Would the president take office on the basis of Electoral College results or somebody’s “estimates and extrapolations” of what those results would be if the election were somehow conducted differently? What legitimacy would the president chosen on the basis of “estimates and extrapolations” have?

Click here to read the full article in the Washington Examiner