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The "Something Somehow" Memo
Sep. 27th, 2021 10:53 amOne of the interesting bits of news to come out this past week is that the Trump administration did try to pressure Pence to go with the "the VP can just pick the next President unilaterally right?" version of the "something somehow" steal the election plan. Put in writing by campaign lawyer and (former*) law professor John Eastman, specifically pushed for by Trump, and seriously considered, though not ultimately tried, by Mike Pence.
(*Eastman "retired" after he gave a speech to a certain crowd before they stormed into the US Capitol, his colleagues did not approve.)
Even if you treat "the Vice President can throw out entire states' elections unilaterally" as a reasonable good-faith reading of the Twelfth Amendment (it's definitely not!), giving legal advice that's along the lines of "you should just ignore the law and dare the courts to stop you" seems like the kind of thing that might be sanctionable conduct for a lawyer. Telling someone to break the law with the goal of trying to make someone other than the person who in fact got a majority of the electoral votes into the next President of the United States also seems like it might be crime!
Anyways, this leads to unexpected questions such as, "Did Dan Quayle save American democracy?" and, "If Quayle had told Pence, 'Sure man, just go for it!' instead of the actual something like, 'No, the Vice President obviously can't just choose the next President, that's not how the Constitution works,' would that plan have actually worked?" The answers are, "Maybe not, but it sure is a good thing that Quayle answered as he did!" and, "No, that wouldn't have been enough."
Eastman's memo proposes that Democrats would be in a double-bind between accepting the lie that seven states didn't cast electoral votes so Trump is reelected and accepting the lie that seven states didn't cast electoral votes so it's decided by Congressional state delegations in a joint session (where Eastman presumes, maybe correctly, that Republicans would have total unanimity in selecting the guy who didn't win). But Democrats wouldn't accept that lie, why would they?! After all, you can't have a joint session of Congress without the House, the office of President and VP become vacant on January 20 without that joint session, Nancy Pelosi is Acting President if those offices become vacant, and you can't change that without legislation.
Of course, that's a serious Constitutional crisis ("a House majority can unilaterally make the Speaker of the House the Acting President" isn't great either!), with two full weeks for additional mischief and opportunities for Trump to escalate even further into extralegal territory.
Edited to add: Want to point out (though it's also linked from the post) that the author of the blog post in that last link should get a lot of credit for writing an extensive and prescient law-review article on the topic in 2019 (published in early 2020). (Though it mainly contemplates the situation where Republicans actually got state governments to provide competing slates of electors. It does consider the "even with only one set of electors, Pence could just toss it" scenario in a footnote, but thinks that's a stretch.)
(*Eastman "retired" after he gave a speech to a certain crowd before they stormed into the US Capitol, his colleagues did not approve.)
Even if you treat "the Vice President can throw out entire states' elections unilaterally" as a reasonable good-faith reading of the Twelfth Amendment (it's definitely not!), giving legal advice that's along the lines of "you should just ignore the law and dare the courts to stop you" seems like the kind of thing that might be sanctionable conduct for a lawyer. Telling someone to break the law with the goal of trying to make someone other than the person who in fact got a majority of the electoral votes into the next President of the United States also seems like it might be crime!
Anyways, this leads to unexpected questions such as, "Did Dan Quayle save American democracy?" and, "If Quayle had told Pence, 'Sure man, just go for it!' instead of the actual something like, 'No, the Vice President obviously can't just choose the next President, that's not how the Constitution works,' would that plan have actually worked?" The answers are, "Maybe not, but it sure is a good thing that Quayle answered as he did!" and, "No, that wouldn't have been enough."
Eastman's memo proposes that Democrats would be in a double-bind between accepting the lie that seven states didn't cast electoral votes so Trump is reelected and accepting the lie that seven states didn't cast electoral votes so it's decided by Congressional state delegations in a joint session (where Eastman presumes, maybe correctly, that Republicans would have total unanimity in selecting the guy who didn't win). But Democrats wouldn't accept that lie, why would they?! After all, you can't have a joint session of Congress without the House, the office of President and VP become vacant on January 20 without that joint session, Nancy Pelosi is Acting President if those offices become vacant, and you can't change that without legislation.
Of course, that's a serious Constitutional crisis ("a House majority can unilaterally make the Speaker of the House the Acting President" isn't great either!), with two full weeks for additional mischief and opportunities for Trump to escalate even further into extralegal territory.
Edited to add: Want to point out (though it's also linked from the post) that the author of the blog post in that last link should get a lot of credit for writing an extensive and prescient law-review article on the topic in 2019 (published in early 2020). (Though it mainly contemplates the situation where Republicans actually got state governments to provide competing slates of electors. It does consider the "even with only one set of electors, Pence could just toss it" scenario in a footnote, but thinks that's a stretch.)
