Standing with John Eastman

John Eastman, a former clerk to Justice Clarence Thomas, is a distinguished constitutional scholar, as demonstrated by his insights into such legal arcana as Privileges & Immunities, the General Welfare Clause, and Separation of Powers. A decade ago, I drew heavily on his insights in a short book examining the pathologies of our Special Interest State.

Eastman also acted as a legal advisor to President Trump during the controversy over the 2020 election. This was a demonstration of courage, because the legal profession, with all the morality of a pack of rabid weasels, viciously and systematically attacks any lawyer who defends Trump. During the post-election period, law firms were threatened with economic ruin and even physically threatened. Eastman was forced to sever long ties with Chapman Law School, and the latest tactics are to denounce him to the state bar association and to successfully pressure the supposedly conservative Federalist Society to exclude him from its next convocation.

The only supporters that I have seen come to his public defense are his allies at the Claremont Institute, and for that Claremont was banished from the annual meeting of the American Political Science Association.

Few of these attacks have dealt with substance. Some of them purport to do so, but these do not look at what Eastman actually wrote, relying instead on a bastardized summary of uncertain provenance.

As with all the products of hysterical cancel culture, this approach impoverishes discussion. The 2020 election raised profound legal, political, and moral questions, and to override all debate and possible agreement on future remedies irresponsibly undermines Our Republic.

I do not know whether Eastman’s proposed legal conclusions about counting electoral votes are correct. Neither does anyone else because the answers would come only from nine persons in black robes after extensive briefing and argument. But the questions he raises are real ones, and his answers are persuasive.

Eastman has explained his thinking in two recent articles. “Setting the Record Straight on the POTUS ‘Ask (Jan. 18, 2021) is the most comprehensive, and “Trying to Prevent Illegal Conduct From Deciding an Election in Not Endorsing a ‘Coup’” has additional material and also attaches the actual memo to the President, which I have seen nowhere else.   

The substance involves the interplay of the Constitution’s mandate that Presidential Electors be selected by each state’s legislature, not its executive, and the Electoral Count Act of 1887, which purports to give primacy to the executive in cases of uncertainty.  There are also tricky issues of how the electoral votes are counted in cases of competing slates of electors -- whether the vice president determines the correct slate (arguable under the Constitution) or the Congress (clear under the Electoral Count Act, but probably unconstitutional insofar as this favors any slate coming from the executive as opposed to the legislature).

Eastman’s argument was that Pence, confronted with competing slates of Electors from the contested states, could and should pause the counting and ask each state legislature to clarify which slate was legitimate. 

This would have been a good, common-sense solution. In addition, rather obviously, the Democrats would have instantly filed a legal action to stop it, and we would have quickly had a Supreme Court resolution of the contested issues.

Eastman’s plan ran aground with Pence, who was perhaps badly advised, perhaps too poor a lawyer to grasp the argument, or perhaps anxious to get rid of Trump. He would have none of it.

In any case, I would bet heavily that the Democrats had a backup plan in case Pence showed signs of going along -- the January 6 riot, which disrupted the electoral counting, threw Congress into a tizzy, and aborted consideration of Eastman’s recommendations. It is odds-on that those who think that January 6 was an attempted coup have a point, but it was successful rather than attempted, and it was against Trump rather than for him.

So here we are, with half the nation convinced the election was fraudulent, and the rabid weasels determined to bring down anyone who questions their authority, starting with scholar/activists whose recommendations would have led to sober consideration and legal resolution.

Like Thomas Jefferson, “I tremble for my country when I reflect that God is just.”   

James V DeLong is former editor of the Harvard Law Review and a former Research Director of the Administrative Conference of the United States.

Image: Jeastman

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