- In September 2020, Laurence Tribe co-wrote an article about Trump’s efforts to undermine the election.
- The article detailed Trump’s belief that Congress, not the Electoral College, could keep him in power.
- The article was cited by Trump attorney John Eastman in a two-page memo.
A law professor whose work was cited as part of an effort to overturn the 2020 election says former President Donald Trump’s legal team butchered his argument as part of their “ploy” to disenfranchise millions of voters.
In a two-page memo, right-wing attorney John Eastman laid out a six-point plan for throwing out votes from seven states that Trump lost, part of a last-ditch effort to secure him a second term. The memo, published this week by CNN, claimed incorrectly that former Vice President Mike Pence could unilaterally reject electors from those states — including Arizona, Georgia, and Pennsylvania — and ultimately throw the decision over who should be president to the House of Representatives, where Trump would have prevailed despite losing the popular vote and Electoral College.
Eastman pointed to a novel and extraordinary interpretation of the 12th Amendment to the US Constitution, which states that the President of the Senate — Vice President Pence, in this case — is entrusted with opening the “certificates” representing each state’s slate of electors and counting the votes in front of a dual session of Congress. Per Eastman, Pence could decide to reject those certificates in favor of competing, unofficial slates put forward by pro-Trump contingents in each state.
Or Pence could decide not to accept any battleground slate, giving Trump a majority of the electors counted.
“This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe,” Eastman claimed, citing a September 2020 article co-written by the former Obama administration official.
Putting out multiple arguments to achieve the same result, Eastman also maintained that Pence could elect to have the question of competing slates resolved by throwing the vote to Congress.
That article detailed a number of scenarios whereby Trump could attempt to remain in power after losing both the popular vote and the Electoral College. But Eastman pegged his argument to two paragraphs that detailed a reported attempt by Trump to get Pennsylvania Republicans, prior to the election, to appoint another pro-Trump slate of electors that would back the former president irrespective of voters’ intent.
While that slate would be illegitimate, the article noted, Trump’s team could attempt to argue that it was impossible to decide which slate actually was indeed credible, forcing the question on the House of Representatives. There, the next president would be decided not by a majority vote in the Democratic-controlled chamber, but by allotting each state’s congressional delegation one ballot, where “Republicans would have the edge.”
But nowhere in the September 2020 piece did Tribe and his coauthors argue that Pence would have the power to do any of this on his own, be it rejecting slates of electors or handing the matter off to the House.
Tribe was unimpressed.
“This Eastman memo pretends to be based on my analysis,” he posted on Twitter, “but in fact takes snippets of my work wholly out of context and spits a totally fake web of ‘law’ that no halfway decent lawyer would take seriously.”
The former vice president ultimately rejected Eastman’s advice — “No wonder it couldn’t fool even Mike Pence,” Tribe wrote. On January 6, an angry mob of Trump supporters stormed Congress at the US Capitol in an attempt to stop the process from moving forward, many of them angry at Pence.
In a statement to Insider, Tribe said he saw no need to further address the memo’s arguments.
“Eastman’s ploy isn’t worth more time,” he said.
For his part, Eastman — a senior fellow at The Claremont Institute, an influential conservative think tank — asserts that he was not using Tribe to bolster everything in his memo, just the uncontroversial part: that elections are decided by who gets more votes in the Electoral College, not whether they reach 270 or not.
The part about Pence himself deciding which slates are legitimate, he told Insider, “is not the proposition for which I cited Tribe.”
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