Why legal experts are so disturbed by a Trump lawyer's 6-point plan to overturn the 2020 election

Why legal experts are so disturbed by a Trump lawyer's 6-point plan to overturn the 2020 election
(Official White House Photo by Shealah Craighead)

President Donald J. Trump addresses the nation from the Oval Office of the White House Wednesday evening, March 11, 2020, on the country's expanded response against the global Coronavirus outbreak.


A new CNN report on Monday revealed a memo from a lawyer working with former President Donald Trump that detailed a plan to overturn his loss to Joe Biden on Jan. 6. The report reveals findings from the new book, "Peril," by reporters Bob Woodward and Robert Costa.

It included a copy of the memo from conservative law professor John Eastman, showing a six-point plan to leverage then-Vice President Mike Pence's role as the president of the Senate to control Congress's vote counting and throw out the votes of seven states.

This would leave Trump in the lead with 232 Electoral College votes over Biden's 228. Then, according to Eastman, Democrats would let out "howls." (The whole memo shows open contempt for Democrats.) But if they object, he argued, Pence could declare the election inconclusive, at which point it would move into the House. And because Republicans control a majority of the House delegations, they could select Trump to carry out a second term.

"The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session [of Congress] or from the Court," the memo said. "The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind."

Pence, of course, ultimately disagreed with these arguments and refused Trump's pleas to carry out the plan. And despite the insurrection carried out by Trump's followers on the Capitol that day, Pence fulfilled his role as expected, and Congress counted all the Electoral Votes as they were actually awarded, affirming Biden as the winner.

But even though the plan failed, the document remains a disturbing record of the time. It's impossible to know what would have happened if Pence had tried to go along with the plan — there might've been outrage and chaos in the streets, just as there were outbursts of celebration when Biden was declared the winner in November 2020. But if the vice president could just throw out the votes of states he didn't like, it would indisputably be the end of democracy in the United States.

Many legal experts found the document chilling, deeply disturbing, and absurd.

"This 'plan' is laughable, but we shouldn't laugh," said conservative lawyer David French. "If carried out, it would have led to the country's greatest political crisis since April 1861. And Eastman was no mere internet crank. He was a law professor and close to POTUS in the final days."

Steve Vladeck, a law professor at the University of Texas, agreed: "This memo is horrifying. As is the fact that it was written by a (former) law professor. As is the reporting that Pence agonized over the matter. As is so much else about how close we came to a coup (fine — an autogolpe) on 1/6. As is how little we're doing to respond to it."

Asha Rangappa, who teaches at Yale Law School, called the memo a "sinister plan" that would let "Trump to unconstitutionally grab and hold on to power." She added: "Note, by the way, that he's pretty confident the R's would go along with it until then end."

However, the CNN report notes that GOP Sen. Mike Lee of Utah, was a staunch opponent of the plan when it was presented to him.

"It was a dress rehearsal," said Rick Hasen, a prominent expert in election law. "Here's how to do the coup next time, with more loyalists in key places." Hasen argued that there are various ways lawmakers could strengthen our elections against such attempts at subversion, including reform of the Electoral Count Act.

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