John Eastman has offered an account of his advice to Vice President Pence in response to Dean Erwin Chemerinsky’s quite extraordinary attack on him. I was surprised by Dean Chemerinsky’s call that Eastman be “shunned.” But John’s account of what happened does not quite cut it.
It is true, as Eastman says, that it is odd that people are evaluating a “preliminary and incomplete” draft of his memo to the President and Vice President. The right document to read is the final draft — or as he calls it, the “complete memo”—which maps out carefully all of the conceivable scenarios that Eastman believed might legitimately happen when counting electoral votes on January 6.
But what’s striking about that “complete memo” is that it deviates substantially from what Eastman says — and contemporaneous accounts confirm—he told Vice President Pence on January 4th.
Eastman’s memo asserts:
There is very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes (as Adams and Jefferson did while Vice President, regarding their own election as President), and all the Members of Congress can do is watch. (emphasis added)
And in his Sacramento Bee article, he summarises that historical precedent:
In 1796, Vice President John Adams made such a determination regarding contested electoral votes from Vermont, confirming his own election as president. In 1800, Vice President Thomas Jefferson did the same with improper electoral votes from Georgia, throwing that election to the House, where Jefferson eventually prevailed. Richard Nixon did the same thing in 1960, accepting from Hawaii the subsequently certified John Kennedy electors rather than the initially certified Nixon electors.
It was “these precedents,” Eastman tells us, “and several scholarly articles written after the 2000 election, [that] served as the basis for some of the scenarios discussed in my memo.”
Yet these “precedents” stand for nothing. Because in none of these three moments did anyone in Congress actually contest what the Vice President did.
Consider an analogy to make the point. Imagine if the leading executives of Silicon Valley took a field trip together to visit the Muir Woods. Along the way, they plan to stop for lunch. The tour guide tells the bus driver to pull over at an In-N-Out. No one says a thing. Would we infer from the silence of the executives that the tour guide had the absolute power to decide where they were going to eat, and all the executives could “do is watch”? Obviously not. Maybe if Tim Cook objected, and he was told by the guide, “Shut up, Cook, we’re eating here whether you like it or not,” and then everyone, including Cook, simply went along—maybe then we’d conclude that this tour guide had superpowers over the titans of American capitalism. But without any such demonstration, it is simply wrong to infer from silence that power is conceded.
The same is true about this “historical precedent.” If Members of Congress had stood and objected in any one of these three moments, maybe then there would be “precedent” for the (truly extraordinary) view that the Constitution gives the VP final authority to determine which electoral votes will be counted. But in fact, there was no objection in any of these three contexts because there was nothing really to object to. Nixon expressly said that he didn’t mean his decision to set a precedent, and anyway, the decision didn’t matter to the final result. And in neither 1796 nor 1800 did anyone even think to object to the VP’s decision — because the VP’s decision was so obviously correct.
Matthew Seligman (who co-taught a seminar with me at Harvard in 2020 called “Wargaming the 2020 Election,” where we worked through these issues in extreme detail, and who has written the definitive takedown of Eastman’s memo here) has found even more support for this already perfectly clear conclusion. As he demonstrates in his essay, in 1796 and 1800, it was clear that the counting of electoral votes was done not by the Vice President, but by “Tellers.” And in 1800, when Jefferson (a Democratic-Republican) was VP and was counting the votes, 2 of those 3 Tellers were from the opposition party—Federalists. Certainly, if they had thought that there was any reason to object to a ruling or decision by Jefferson, they would have objected, because that objection could have resolved the election against Jefferson. They didn’t utter a single word—because, most plausibly, they didn’t believe there was any legitimate basis to reverse Jefferson’s ruling.
Even weaker is Eastman’s claim that there were “several scholarly articles written after the 2000 election” that support the suggestion that the Vice President had unreviewable power to determine the vote of electors. Eastman never cites the “several” articles he’s referring to. I know of one that might be read to that conclusion — by Bruce Ackerman and David Fontana. But as Seligman describes, neither Ackerman nor Fontana believes their work supports Eastman’s conclusion — and both made that belief clear prior to the 2020 election. Fontana was on our podcast, recorded before the election but released on the day of the election, and expressly stated that he didn’t believe the VP had any constitutional power above Congress. Seligman reads the same implication in Ackerman’s later book, The Failure of the Founding Fathers (2007). As Seligman summarizes the argument,
Their more nuanced analysis rejects the notion that Jefferson asserted any unilateral constitutional authority. Instead, they argue, Jefferson completed the count in a discreet manner precisely to avoid creating a conflict with Congress that would force a resolution on the constitutional question of whether the President of the Senate could definitively decide a contested count.
So this memo asserting “very solid legal authority and historical precedent” for the VP having a constitutional final say actually rests on no real historical precedent or legal authority. Yet based on that non-existent legal authority, Eastman wrote in his memo (emphasis added) to the President and Vice President:
VP Pence opens the ballots, determines on his own which is valid, asserting that the authority to make that determination under the 12th Amendment, and the Adams and Jefferson precedents, is his alone
…
The main thing here is that VP Pence should exercise his 12th Amendment authority without asking for permission — either from a vote of the joint session or from the Court.
Eastman was wrong in his memo. There is no legal authority for the belief that the VP has final authority — above the power of Congress—to determine the votes of electors.
Even Eastman seemed to recognize the weakness in his claim, because as he advised the Vice President, the view that the VP had this authority was “the weaker view.” As the Times reported,
Mr. Eastman said he told Mr. Pence that he might have the power, but that it would be foolish for him to exercise it until state legislatures certified a new set of electors for Mr. Trump — something that had not happened.
Rather than assert a constitutional power over Congress, Eastman advised the Vice President to “delay the proceedings at the request of these state legislatures so they could look into the matter.”
That advice was not much better than the flatly incorrect advice given in his memo — there is no authority to delay the count. But let’s be clear: Eastman’s memo does not describe his flatly incorrect advice as “weak.” To the contrary, he describes it as based on “very solid legal authority.”
Whether or not Dean Chemerinsky was right to call on all of us to “shun” John Eastman, at the very least, John Eastman should be much clearer about his error in describing the view that the VP has a constitutional authority to determine the votes of electors as based on “very solid legal authority.” Indeed, I should have thought that in this effort in the Sacramento Bee to explain what he did on January 4, he would have included what he expressly told Matt Seligman and me in a podcast we did with him after his memo was released. As he told us then,
“the Vice President does not have this power.”
That is the conclusion that rests on “very solid legal authority.” And making that simple and clear statement is the truly appropriate penance for whatever mistakes Eastman made on January 4.
The harder question here for me is Dean Chemerinsky’s call that Eastman be “shunned.” That feels wrong. Eastman is a former law professor — indeed, a former Dean at Chapman Law School. He was wrong in his legal advice, just as many of us have been. His error, if it had been acted upon, could well have thrown the nation into a civil war. Few of us have had errors with the same potential consequence.
Error alone can’t justify a call to be “shunned.” But certainly, lying or cheating or abuse should be sufficient to justify a call to be shunned. When Matthew and I had our podcast with Eastman (not bravely to defy the Dean but before the Dean’s demands), it was in part to understand the nature of Eastman’s arguments. Unlike Chemerinsky, I hadn’t debated Eastman on a weekly radio show for the past 20 years. But Eastman was my student when I had first begun to teach. I wasn’t going to presume bad faith.
In the end, our conversation led to some important common ground, even if it bracketed important disagreements. Eastman conceded the most important point: The Vice President has no power to overrule Congress in the count. I acknowledged (I won’t speak for Matthew here) a critical point that more of us should be clear about: if there were “fraud” proven, then much could be unraveled. But we disagreed fundamentally about how broadly “fraud” should be understood — does it include irregularities?, or even acts contrary to law but without any fraudulent intent?—and in the end, it was still unclear just how much “fraud or irregularities” Eastman believes there actually was. It’s clear he believes—honestly, in my view—that there was some. He did not insist that he believed that there was enough to overturn the election.
This is a hard line to draw. There are clearly some we should shun. Clearly, we should craft a legal culture where we shun as few as possible. And we should do much more to unpack this ethic of shunning before it simply greases the wheels on an accelerating reality of our democracy — that we’re two worlds that will only ever meet on the field of an increasingly destabilizing battle. That reality advances no decent cause, even if there are many who yearn for that precisely.
