Former law professor and outside counsel to President Trump John Eastman is under attack from Democrats and the Far Left for advising then-President Trump on strategies for challenging the Electors certified after the disputed 2020 election, including proposing that the Vice President had the power (if not the responsibility) to reject ballots cast by disputed Electors.
Prof. Eastman’s detractors, including anti-Trump “conservatives,” have alleged that his advice to the then-President amounted to insurrection or sedition and that the respected attorney and constitutional scholar, after being hounded from his teaching position, should be “cancelled” by being disbarred and possibly thrown in jail for offering what they claim is a baseless theory of the Vice President’s powers.
Even the center-right Wall Street Journal endorsed the claim made by former federal appeals judge J. Michael Luttig, who testified that “There was no basis in the Constitution or laws of the United States at all for the theory espoused by Mr. Eastman”; and Greg Jacob, a lawyer for Mr. Pence, who testified that “We examined every single electoral vote count that had happened in Congress since the beginning of the country. . . . No Vice President in 230 years of history had ever claimed to have that kind of authority.”
Let us first dispense with the claim that there is no legal or historical basis for Prof. Eastman’s position that the Vice President’s role in counting the Electoral College votes is not merely ministerial. As Mr. Eastman explained in a letter to the Wall Street Journal:
The Journal’s reliance on these authorities introduces the distortion intended by the committee. Start with Mr. Jacob. What he is quoted as saying is not true. Here is what he wrote in a Dec. 8, 2020, memo he prepared for the vice president:
“There is some historical evidence that Adams and Jefferson both resolved issues over the validity of electoral votes in their own favor, and in 1857 the President of the Senate (a role filled by Senator John Crittenden, as the Vice Presidency was then vacant) personally overruled an objection to the counting of Wisconsin’s electoral votes, and asserted that it was his responsibility to make the validity determination in the first instance, while suggesting that the House and Senate might thereafter jointly overrule him.”
As for Judge Luttig, he appears to be unfamiliar with the scholarly and historical support of my position. As I have publicly stated many times, it is an “open question” whether or not the vice president has the power to judge the validity of disputed electoral votes. In the case at hand, I advised the vice president that, whether or not he had such a power, he would be foolish to exercise it.
As to the argument that the Constitution grants the vice president this power, to mention a few of the sources I relied on: Edward Foley, director of Election Law at Ohio State University’s Moritz College of Law, acknowledged in a 2019 law review article that this argument has a “significant historical pedigree.” In an earlier article, Mr. Foley had noted, along with a coauthor, that “[d]uring the first period, from 1789 to 1821, the power [to count and/or determine the validity of votes] was generally thought vested in the states or the President of the Senate” rather than the two houses of Congress.
University of California, Berkeley, law professor John Yoo and University of St. Thomas law professor Robert Delahunty advanced this same position in an important article published at the American Mind in October 2020. From the other end of the ideological spectrum, Yale Law Professor Bruce Ackerman and George Washington University Law Professor David Fontana advanced a similar position in their 2004 article addressing Thomas Jefferson’s decision to count “obviously defective” electoral votes from Georgia in the 1800 election.
Another scholarly article cites Chancellor Kent’s statement in his influential treatise, Commentaries on American Law: “The Constitution does not expressly declare by whom the votes are to be counted and the result declared. In the case of questionable votes, and a closely contested election, this power may be all-important; and I presume, in the absence of all legislative provision on the subject, that the President of the Senate counts the votes, and determines the result, and that the two houses are present only as spectators, to witness the fairness and accuracy of the transaction, and to act only if no choice be made by the electors.”
Mr. Jacob acknowledged all this in his Dec. 8, 2020. memo: “Some scholars argue that under the text of the Twelfth Amendment, it is the sole responsibility of the Vice President to count electoral votes, and that it is accordingly also the Vice President’s sole responsibility to determine whether or not disputed electoral votes should be counted.”
There was substantial legal scholarship and historical support for the argument long before I advanced it in 2020…
None of these ideas or arguments have ever been tested in court, because the Washington DC political and legal establishments have done everything possible to ensure that no court provided Mr. Trump the forum in which to present them.
That the Wall Street Journal, Judge Luttig and the Vice President’s counsel Mr. Jacob don’t agree with or don’t like the authorities cited by Prof. Eastman doesn’t erase them from the record, nor does their mere disagreement with them nullify their validity – only a court hearing both sides in an adversarial proceeding before a neutral factfinder can do that, and to date no such proceeding has taken place.
And that’s exactly how Prof. Eastman’s detractors want to keep it.
Far better, and safer for Washington’s Uniparty establishment, to render judgement against Eastman and Trump on the editorial pages and TV talk shows and a rump committee of the House of Representatives than to give them their day in court where they have the right to present their evidence and their theory of the case and the authorities supporting it – however novel – unhindered.
Democrats are past masters at “lawfare” and making the process the punishment, so for offering his good faith advice to his client Prof. Eastman is now being forced from his home for his own safety and being bankrupted answering an unprecedented tsunami of lawsuits and complaints against him.
While the effects of this are deeply personal to Prof. Eastman and his family, they should also terrify every American. Imagine for a moment finding yourself before the bar of justice in a politically charged case, only to discover that no attorney will represent you because you are unpopular with the power elite and your defense relies on novel and little-known arguments and authorities and no lawyer is willing to expose himself to the campaign of destruction that would surely be heaped upon him if he represented you.
That’s exactly the intent of the attacks against Prof. Eastman, and that is why – whether you like or dislike Donald Trump – Americans of good conscience should flock to Eastman’s defense. The alternative, if the lawfare against Eastman succeeds, is a system of justice where only those who pose no threat to the established order get their day in court and only those arguments that are approved by the ruling elite get to be made in their defense.
We need more lawyers like John Eastman who represent their clients with all their vigor and talent despite the threats to their livelihood and wellbeing. If Eastman is cancelled for representing Donald Trump, then modern America has truly divorced itself from our ancient ideas of the rule of law and we are left with a husk of false liberty in which only the martyr can be free. Such a result should be intolerable to conservatives and liberals alike.
Prof John Eastman
2020 election
challenging electors
vice president reject ballots
Judge J. Michael Luttig
Constitutional powers
Twelfth amendment
disputed votes
lawfare