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Eastman’s scheme: arrange for neither Trump nor Biden to win a majority of the electoral votes

If the Electoral College had not produced a majority winner, and if all Republican legislators had backed Trump over Biden, Trump would actually have won a second term even though he lost both the national popular vote and the national electoral vote.

Attorney John Eastman speaking next to Rudy Giuliani
Attorney John Eastman speaking next to Rudy Giuliani on the Ellipse in Washington, D.C., on January 6, 2021.

During Thursday’s U.S. House hearing on Donald Trump’s effort to steal the 2020 election, I was reminded of an old joke about the meaning of the Yiddish word “chutzpah,” which stands pretty close to the English words “gall” or “audacity.” 

The light-hearted illustration of chutzpah defines it as the quality possessed by a child who, having murdered both his father and mother, pleads for the mercy on the grounds that he’s an orphan.

The Trump plan for stealing the 2020 election, designed for him by lawyer John Eastman, was pure chutzpah.

As you probably know, the plan was that Trump — having decisively lost both the national popular and electoral vote, but insisting based on no evidence that he had won — would raise and direct a vicious mob, hoping the mob would intimidate either the Electoral College or the U.S. House into awarding him a second term. It didn’t work.

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Now he is basically asking to be not only forgiven but excused on the grounds that he really, really thought he had won. He would settle for either being reinstalled in the Oval Office (until recently there were rumors that Trump still believed his 2020 defeat could be overturned) or restored to the presidency by a grateful nation in the 2024 election.

If he really, really thought that would work, he is too stupid or blinded by ego to ever be allowed near any position of power in the U.S. government. But bear in mind that Trump, who once modestly described some of his attributes by saying (actually tweeting) My two greatest assets have been mental stability and being, like, really smart,” seems to think intelligence is all about conniving. 

This really smart, mentally stable man, having lost both the popular and electoral vote in 2020, did not (as every other loser of a presidential contest in U.S. history has done, at least eventually) concede and wish his opponent well. 

Instead, on Jan. 7, 2021, he riled up (with lies) a mob of his true believers, sent them from a rally (with a lie that he would be going with them, while he stayed safely in his office) and motivated them to believe they should physically prevent Congress from certifying the election of Joe Biden. Trump supporters and Capitol police officers died in the ensuing riot, and America’s two-and-a-half-century streak of peaceful transfers of power came to a sad end.

Thursday’s installment of the congressional investigation of those events demonstrated again that he had failed. The big remaining mystery is why the disgraced former president seems to still command a large enough following to be the presumptive frontrunner for the 2024 Republican nomination, if he is not in prison.

There are grounds for criminal charges, but I don’t dare believe that Trump will be in prison. And I don’t really comprehend his unshakeable hold over his admirers. Nor do I see evidence that his following has shrunken much. I confess, I just don’t get it.

At Thursday’s third public meeting of the committee investigating the bloody events surrounding the 2021 Congressional certification of Joe Biden’s election, our poor, dear nation saw deeply into Trump’s last-ditch efforts to prevent the transfer of power. 

The scheme was built on a pile of lies, cockamamie constitutional theories, half-baked tricks and no legal or constitutional basis. The roadmap was drawn up for Trump by Eastman, who, one assumes, will continue to assert that there was indeed a legal basis for the attempted bloody coup. That “legal basis” went something like this:

The recounts were over and Trump had exhausted all of the legal challenges available to him to overturn the results in any states. There was nothing left to do but the normally pro forma steps of a Senate session to officially count up the electoral votes and confirm that, as everyone already knew, Biden had received 306 electoral votes, a solid majority, to 232 for Trump. A very solid margin.

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Trump and his enablers had worked feverishly to steal some states by fairly conventional means, but failed. 

Eastman, the legal genius behind the last-ditch effort to steal another Trump term, had sold Trump on the idea that they could create enough doubt around the vote in enough states to remove several from the list of states Biden had won. If they couldn’t actually convince the Senate to flip those states to Trump, they would ask that those electoral votes be set aside so that neither Biden nor Trump would have the requisite 270 electoral votes. That’s where the tricky part comes in (and you can store this away in case we experience a presidential that gets thrown into the House).

According to the Constitution, if no candidate gets a majority of the electoral votes, the entire national popular vote and the electoral vote go out the window. The power to pick the president moves to the state delegations in the U.S. House, on a one-state, one-vote basis.

Since they were around before the national two-party system developed, the Framers may have thought this would happen fairly often, and presumably they thought it would be a good idea. I guess we can forgive them, but they were wrong. It hasn’t happened since 1824 (and it resulted in John Quincy Adams, who had lost both the popular and the electoral vote, becoming president). But the rules, embedded in the Constitution, are still there and they favor Republicans, who control many small states.

Wyoming’s single House member, a Republican, would have equal weight with California’s 53 House members, comprised of 42 Democrats and 11 Republicans. 

I believe that crazy system was key to this final Trump-Eastman scheme. Even though there are more Democrats than Republicans in U.S. House, much of that is packed into a few big blue states like California and New York. 

Republicans actually held and still control a majority of delegations in the U.S. House. If every House member had voted the party line (as seems reasonably likely), this crazy wrinkle could have given Trump a second term. And if this crazy scenario ever comes close again, remember that if no candidate wins an Electoral College majority, whichever party controls 26 U.S. House delegations, even if they are the 26 smallest states, can elect a president who has lost both the popular and the electoral vote. (That happened once, in 1824, when John Quincy Adams finished second in both the popular and electoral and was chosen by the U.S. House, which, in that circumstance, votes on a one-state, one vote basis.

(Pause here to ask yourself if this sounds like a good system. Not to me it doesn’t. It made sense to the Framers in the 1780s, in part, because they needed small states to ratify the Constitution and wanted to reassure them that they wouldn’t be pushed around in the powerful new national government by a few big states. Fast forward back to 2020 it sounds like a potential disaster. And it came somewhat close to happening.)

If the Electoral College had not produced a majority-winner, and if all Republican legislators had backed Trump over Biden, Trump would actually have won a second term even though he lost both the national popular vote and the national electoral vote.

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Basically, this was Eastman’s big idea — to arrange for neither Trump nor Biden to win a majority of the electoral votes, to get the election thrown into the House, and for Trump to win there because more state delegations are controlled by Republicans.

But the plan required Pence’s help. One of the very few constitutional powers of the vice president, other than being available to take over if the president dies and voting in the Senate in case of a tie, is to preside over the counting of the electoral votes. It’s usually not much more than a ceremonial job.

But Trump wanted Pence to join the scheme to steal the election by using his status as the presiding officer over the counting of the ballots to disqualify enough Biden electoral votes that either Trump would win, or (more likely) the Election Day results would have been nullified and the choice thrown into the House where each state delegation has a single vote, and Republicans have an advantage because they control more state delegation.

Pence, to his undying credit, wouldn’t do what Trump wanted. He consulted neutral experts who told him that his ceremonial constitutional role of presiding over the counting of electoral votes did not give him the power to throw out, overturn or otherwise manipulate any electoral votes. The outcome of the popular vote had been checked, certified and supplied in sealed envelopes. The vice presidential task is ceremonial only, to open the envelope submitted by each state and read aloud which ticket was entitled to that state’s electoral votes. The veep’s role comes with no discretion to overrule the state’s certificate.

In their book 2021 “Peril,” which includes an account of Pence’s decision, Bob Woodward and Robert Costa wrote that on the day before the ballot-counting ceremony, Trump came to understand that Pence planned to play the ballot-counting straight. Trump insisted that Pence had the power to go along with the steal, and warned Pence that he would pay a price if he disobeyed Trump’s orders. Pence declined. Trump then issued the ultimate third-grader threat (as Woodward and Costa quoted it):

 “I don’t want to be your friend anymore if you don’t do this.”

In the Thursday hearing, the Eastman plan was discussed by retired federal Judge J. Michael Luttig, a powerful witness in part because he is a staunch conservative with Republican background. and a stellar reputation as a legal scholar. 

Eastman had told Luttig about the plan. Luttig replied that even if Republicans had the House votes to make it work (which I guess we’ll never know), the House action would not only have set aside the will of the electorate, but would have ended up in the Supreme Court, which Luttig said would have thrown out the election steal by 9-0 and declared Biden the winner. 

According to Luttig at last week’s hearing, Eastman, rather hilariously, disagreed. He said (at first) that the Supreme Court would throw out his scheme, but not by 9-0, only by 7-2. (Of course, that would have the same effect and Biden would still be president..

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But, Luttig added, after he pressed Eastman further, Eastman agreed that yes, the court would throw his election-stealing idea out on a unanimous 9-0 vote.

In the actual event, Pence — even against the threat of being unfriended by Trump — played it straight, making Biden president, although there are still demands from Trump diehards to reverse the result and Trump, unsurprisingly, still insists he won fair and square. As recently as April, almost halfway through Biden’s term, Trump was quoted as saying that he could have and should have been reinstated in the Oval Office and I’ve never seen a clear statement from him that Joe Biden, health permitting, is legally and democratically entitled to serve at least one four-year term.