9/22/21: We learned this week (unless we watch a steady diet of right-wing media news), that in the waning days of the Trump presidency, the Big Orange Guy was kicking around a truly crazy plan to remain in power. Fortunately, it hinged on what Vice President Pence and Congress would be able to stomach.
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Professor John Eastman, left, had a secret plan. |
This plan was crafted by Chapman University Law School
Professor John Eastman, previously dean of that university’s law school.
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“Pence then gavels President Trump as elected.”
Professor John Eastman
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A copy of that plan eventually fell into the hands of Bob Woodward and Robert Costa, and served them well in writing their aptly-named new book, Peril. Starkly explained: peril to the U.S. Constitution.
Again, if all you do is tune in to Fox or OAN or Newsmax, you
missed this story for sure. Or you heard a tidbit or two about it but were too
obtuse to understand the ramifications.
Boiled down to its authoritarian essence, Eastman argued that in six simple steps, Trump could gain a second term. And let’s just say, if he pulled it off, perhaps a third, fourth and fifth if he lived long enough. The first step would be for Pence, as President of the Senate (did you know the VP is President of the Senate; well, he or she is), to open the electoral votes from Alabama and count them. Votes are counted, by state, in alphabetical order: Alabama, nine votes for Trump. Alaska, three votes for Trump. Then Arizona. Pence would simply set those votes aside.
No votes for Trump, who didn’t win the state. No votes for Biden, who did. Eleven votes for no one, in other words.
Eastman justified his plan by arguing that it would be no different than what both John Adams and Thomas Jefferson had done, in their roles as vice president, back when the Founding Fathers were cool. According to Eastman – reputed to be something of a constitutional scholar – both men, had used their powers to swing disputed elections their way.
To put it plainly, you knew, if you knew anything about
American history, that Eastman was full of dung from the start.
Vice President Adams ran against Jefferson in a keenly contested election in 1796, but there was never any dispute about his win. In those days, each elector voted twice, once for president, once for vice president. Adams prevailed, 71-68. Jefferson never balked at his loss. Adams never took action to steal a term for himself. He had clearly, albeit narrowly, won. The problem was that the U.S. Constitution did not explain how the vote for president and vice president should work. When only 59 votes were cast for Thomas Pinckney, of the same party as Adams, Jefferson walked away with the consolation prize of “Vice President of the United States.”
(One might imagine, under this system, Trump serving as vice
president in the Biden administration, which would be fun. Biden could call him
into the Oval Office, call him “Loser Don,” and order him to take out the trash.)
Nor did Jefferson, as vice president in 1800, need to screw around with the electoral votes to gain his victory. This time, Jefferson had 73 electoral votes, Adams 65. The loser, again, was clear.
The problem was the two-votes-per-elector plan. This time Jefferson and Burr, who everyone in their political party knew had been intended to fill the vice presidential role, tied with 73 votes. Not one of those 73 electors intended for Burr to be president. But a tie was a tie, especially since Burr was a man without honor. (Same as Trump.) As stipulated by the Founding Fathers, in the event of a tie in the Electoral College, the decision would go to the U.S. House of Representatives. There, each state would have a single vote. (Stupid system, right? Remember: The Founding Fathers never achieved perfection, and in this case, you could argue they f**ked it up.)
There were in 1800, only sixteen states. You can probably do
the math. Thirty-five times the members of the House of Representatives voted,
ending in thirty-five ties, eight states for Jefferson, eight for Burr. The Federalist
Party was only too happy to keep voting for Burr and screw with Jefferson and their
Democratic-Republican rivals. Finally, the lone representative from Delaware, a
Federalist, fearing for the country, announced he would change his vote. On the
thirty-sixth try, James Bayard cast a blank ballot and the tie was broken – not
by the machinations of Jefferson, but by the belated decency of Bayard of
Delaware.
So, one prop of Eastman’s plan could be kicked out rather quickly. And the other prop was no sturdier. Eastman’s plan also revolved around the idea that the Electoral Count Act of 1887 was unconstitutional. Only no one, besides Eastman, had figured that out in the 134 years since it passed. You can read what he says if you like. Let me save you the time and just say, “It’s bunk.”
In other words, Eastman’s argument was specious from the start, but the six points flowed from his pen and his mouth into Trump’s uninformed, unscrupulous, wannabe authoritarian ears.
Point 1: As already mentioned, Pence begins opening the returns from the states and counting electoral votes.
Point 2: When he gets to states where votes have been challenged, like Arizona, he sets those aside.
Point 3: Pence sets aside the challenged votes of seven states, leaving Trump with 232 electoral votes, and Biden 222. With the votes of those seven states cast aside, it takes a majority of 228 to win.
“Pence then gavels President Trump as elected,” the plan
reads.
Point 4: The Democrats naturally – and rightfully – protest. Eastman explains:
So Pence says, fine. Pursuant to
the 12th Amendment, no candidate has achieved the necessary majority. That
sends the matter to the House, where the “the votes shall be taken by states,
the representation from each state having one vote . . . .” Republicans
currently control 26 of the state delegations, the bare majority needed to win
that vote. President Trump is re-elected there as well.
(For history neophytes, the 12th Amendment made changes to how the Electors would vote, basically requiring them to specify who they chose to be president, and who they chose to fill the lesser role of vice president.)
Point 5: You can puzzle this one out yourself; it boils down to using arcane rules to block the electoral count – with Eastman citing the possible help of Sen. Ted Cruz. That would have given states more time to put forward new slates of electors to challenge the slates they’d already forwarded.
(Another glaring flaw to the Eastman plan was that the seven “contested”
states had had weeks to put forward competing slates of electors, as required
by law. Not one of the seven had done so, in large part because many state lawmakers
were not men and women of zero principles. Plus, to cite a few pertinent
details, the Republican governors of Arizona and Georgia had insisted their
elections were legit, and Trump had lost. Plus, the claims of “stolen votes”
had been shot down in more than sixty courts. And finally, those claims had
been blown to bits by a variety of complete or partial recounts, which
generally found, that Biden did a little bit better than originally thought.)
Anyway: to the final point:
Point 6: To give you some idea of how shady this plan was from the start, Eastman warned that in implementing its parts, “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.”
Eastman didn’t care, and we know the president had never been bothered by matters of law or constitutionality. But if this plan had been implemented, then you figure almost every vice president to come could finagle the electoral count to ensure that he or she, or the presidential choice of his or her party, prevailed.
Finito.
The U.S. Constitution would be done.
(Once again: If you like Trump, don’t be kidding yourself. In
some variation of this insane plan, VP Clinton in 2016, in an election that was
much closer, could have thwarted Trump’s first term.
*
WHILE DR. EASTMAN’S plan remained unknown till now, he had also given a brief but fiery speech at the “March to Save America” rally on January 6, doing his part to stir the fury of the crowd that became a mob. (Point 7: Insurrection?) To give you some idea of how over-the-top his appearance was, on January 13, he was pressured to resign his post at Chapman University.
The school released a statement that read in part:
After discussions over the
course of the last week, Dr. John Eastman and Chapman University have reached
an agreement pursuant to which he will retire from Chapman, effective
immediately. Dr. Eastman’s departure closes this challenging chapter for
Chapman and provides the most immediate and certain path forward for both the
Chapman community and Dr. Eastman. Chapman and Dr. Eastman have agreed not to
engage in legal actions of any kind, including any claim of defamation that may
currently exist, as both parties move forward.
Chapman President Daniele Struppa had originally stated that Eastman’s acts were “in direct opposition to the values and beliefs of our institution.”
Because, again, the U.S. Constitution would have been finito.
“An effort to destroy our democracy.”
Normally, as Ms. Struppa explained, a tenured faculty member, like Eastman, could only be terminated if he or she had committed a felony and/or been disbarred. But a letter calling for Dr. Eastman to be stripped of his position had been signed by more than 150 Chapman University faculty members and members of the board of trustees. That damning letter made the danger of Eastman’s behavior clear, even before his much worse, six-point plan was made known:
[Professor Eastman’s behavior] should
disqualify him from the privilege of teaching law to our students and strip him
of the honor of an endowed chair.
Free speech is sacred, and
tenured academics like Eastman have the privilege of speaking their mind
without fear of repercussion. But Eastman abused that freedom ... When speech
shades over into violence and insurrection, it is no longer permissible.
On this basis, it is time to
move beyond President Struppa’s defense of free speech, to respond to a new
situation, a very real threat, and an effort to destroy our democracy.
We call on Chapman University’s officialdom, including the Faculty Senate, the
President, the Provost, and the Dean of Fowler Law School, to promptly proceed
to take action against John Eastman for his role in the events of January 6.
[Chapman’s mission is to provide] “personalized education of
distinction that leads to inquiring, ethical and productive lives.” None of
Eastman’s actions over the past year have been ethical, productive, or of
distinction. … He does not belong on our campus.
The University of Colorado, where he was a visiting scholar, quickly followed suit, and terminated Dr. Eastman for his role on January 6. In that case, he sued for defamation and loss of earnings due to “reputational harm.”
(Too bad Trump University had to close. Eastman would have been a real fit for the faculty there.)
Finally, we should note that Eastman suggested Vice President
Kamala Harris was ineligible to serve in her role because her parents
were born outside the United States, a kind of “birther lite” position, for
sure.
*
LOOKING FOR Eastman’s speech on January 6, I came across a CSPAN tape of the entire five-hour “March to Save America” rally. If you cared to watch you discovered that Eric Trump spoke, and Donald Trump Jr., and his main squeeze, Kimberly Guilfoyle, former Fox News babe. Rudy Giuliani was there, too, insisting that the two senate races in Georgia the day before were also stolen, using “the same algorithm” used to cheat President Trump out of a November win – which struck me as odd since neither loser in those two special elections ever claimed they were defeated because the voting machines or anything else had been rigged. Eastman stands by Rudy’s side, while Rudy echoes his points on how Adams and Jefferson messed with the elections in the past.
Giuliani adds that he has “scientific proof” that the elections the night before were stolen, and that the November election was stolen the same way. He can prove it in “two days.” If you can’t get enough of unhinged stupidity, I can tell you to fast forward to the 2:24:30 mark (the rally lasts just under five hours, with about half of that time taken up by songs playing over the loudspeakers).
Eastman finally has a chance to speak. He insists that there was “a secret folder” inside the computers, which allowed the people intent on stealing the election to wait until the very end to see how many votes they needed. Then they put in votes for people who hadn’t actually showed up to cast ballots. “And, voila, we have enough votes to barely get over the finish line,” he said. All Dr. Eastman wants, he tells the crowd, is for results to be delayed, “and the American people [to] know whether we have control of the direction of our government or not.”
Rudy interrupts briefly to clap.
Eastman then warns, “We no longer live in a self-governing republic if we can’t get the answer to this question. This is bigger than President Trump, it is the very essence of our republican form of government, and it has to be done. And anyone who is not willing to stand up and do it does not deserve to be in the office. It is that simple,” he says, shaking his fists.
In other words: Cue the “Hang Mike Pence” chants.
BONUS NUTS: Dr. Eastman was backed at a recent rally, in what he insisted was really a “free speech” affair, by Chuck Bonniwell, a former radio talk show host whose program was canceled in 2019.
His sin? Bonniwell suggested on air that he wished for “a
nice school shooting” to disrupt the focus during the first impeachment of
Donald J. Trump.
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