Breaking: John Eastman Pulls Back on January 6 Memo: Not a ‘Viable Strategy’
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On January 6, President Donald Trump took the stage at the "Save America Rally" near the White House where he spoke for more than an hour about how the worst political crime in history was about to be carried out down the street inside the U.S. Capitol.
But the fight wasn't over, Trump insisted, as he told the crowd that one man — Vice President Mike Pence — had the power to "stop the steal."
"All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people," Trump said. "When you catch somebody in a fraud, you’re allowed to go by very different rules. So I hope Mike has the courage to do what he has to do."
Two speakers immediately preceded Trump on stage that day: Rudy Giuliani and John Eastman, legal advisers to Trump who made the case that Pence could and should prevent the counting of slates of certified Electoral College votes that day.
"Every single thing that has been outlined as the plan for today is perfectly legal," Giuliani said at the rally. He continued (emphasis added):
I have Professor Eastman here with me to say a few words about that. He's one of the preeminent constitutional scholars in the United States. It is perfectly appropriate given the questionable constitutionality of the Election Counting Act [sic] of 1887 that the Vice President can cast it aside and he can do what a president called Jefferson did when he was vice president. He can decide on the validity of these crooked ballots, or he can send it back to the legislatures — give them five to 10 days to finally finish the work.
When Eastman spoke that day, he echoed Giuliani's claims regarding the conspiracy theory that voting machines had fraudulently changed the vote tallies in Georgia. "We now know, because we caught it live last time in real time, how the machines contributed to that fraud," Eastman said of the Georgia Senate and 2020 presidential-election results. "They put those ballots in a secret folder in the machines, sitting there waiting until they know how many they need."
As for the electoral-vote tally at the Capitol, Eastman made the case that "all we are demanding of Vice President Pence is this afternoon at one o’clock he let the legislatures of the states look into this so that we get to the bottom of it and the American people know whether we have control of the direction of our government or not! We no longer live in a self-governing republic if we can't get the answer to this question!"
But Eastman now tells National Review in an interview that the first of the two strategies Giuliani highlighted on stage — having Pence reject electoral votes — was not "viable" and would have been "crazy" to pursue.
What makes that admission remarkable is that Eastman was the author of the now-infamous legal memo making the case that Pence had that very power — that the vice president was the "ultimate arbiter" of deciding whether to count Electoral College votes.
The two-page memo written by Eastman proposed that Pence reject certified Electoral College votes and then either declare Trump the winner or invalidate enough votes to send the election to the House of Representatives, where Republicans controlled a majority of delegations. That memo was first published in September in Bob Woodward and Robert Costa's book Peril.
The issue here is that Eastman says the Eastman memo does not accurately represent Eastman's own views or legal advice to Pence or Trump, claiming that the two-page version published in Peril was preliminary and a final version presented various scenarios intended for internal discussion.
In two separate phone interviews this month, Eastman spoke to National Review for nearly an hour total about the memos he drafted and his private meeting in the White House on January 4 with President Trump, Vice President Pence, Pence's legal counsel Greg Jacob, and Pence's chief of staff Marc Short.
The two-page memo published in Peril was drafted on Christmas Eve, and a final six-page memo was drafted on January 3, says Eastman. "They were internal discussion memos for the legal team. I had been asked to put together a memo of all the available scenarios that had been floated," Eastman says. "I was asked to kind of outline how each of those scenarios would work and then orally present my views on whether I thought they were valid or not, so that's what those memos did."
Who asked Eastman to write the first memo? "It was somebody in the legal team. I just don’t recall," Eastman says. "It was by a phone conversation, and I've gone back in my phone records, and I have so many calls, I can’t tell, you know, which call it was."
"I was asked, if this was the view of the law that were adopted by the court, how would it play out?"
Eastman says he disagrees with some major points in the two-page memo. That version says that Trump would be reelected if Pence invalidated enough electoral votes to send the election to the House of Representatives: "Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is reelected there as well."
Eastman's final six-page memo says Trump would be reelected by the House "IF the Republicans in the State Delegations stand firm." But Eastman says he told Trump at the January 4 meeting in the White House: "Look, I don’t think they would hold firm on this." (There were actually 27 delegations under GOP control, but Liz Cheney is the sole representative for Wyoming, Wisconsin's decisive vote would have been Mike Gallagher, and both Cheney and Gallagher strongly opposed overturning the results of the election.)
"So anybody who thinks that that’s a viable strategy is crazy," Eastman tells National Review.
When it comes to the legal argument that the vice president is the only person with authority to count the electoral votes, Eastman says: "This is where I disagree. I don’t think that’s true."
"It’s certainly not been definitively resolved one way or the other," he adds. "There’s historical foundation for the argument that the vice president is the final say and the argument that he is not. I think the argument that he is the final say is the weaker argument."
Eastman says that weaker argument "doesn't make a whole lot of sense given that we know the vice president is very likely to be one of the contenders for the office that he'll be deciding."
"The memo was not being provided to Trump or Pence as my advice," he insists. "The memo was designed to outline every single possible scenario that had been floated, so that we could talk about it."
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Eastman's employer, the Claremont Institute, issued a statement on October 11 claiming that Eastman's legal advice to Trump and Pence has been "maliciously misrepresented and distorted by major media outlets."
Whatever Eastman's intent may have been when he wrote the memos, most media outlets have accurately described their content. The two-page memo includes prescriptive language: "So here's the scenario we propose." The final version of the memo is less prescriptive about how Pence should prevent the counting of Biden's electoral votes on January 6, but both versions of the memo include the following sentences: "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."
In other words, a plain reading of both versions of the memo would lead the reader to conclude that Pence had the power to take any of the options outlined in them.
When I pointed out that both memos said it's a "fact" that Pence is the "ultimate arbiter" and "we should take all our actions with that in mind," Eastman at first incorrectly claimed he'd only written that in the two-page "preliminary" memo.
"No, that's the preliminary memo," Eastman replied. "I don't think that's the strongest legal argument or scenario. So that was just the first piece that I'd been asked to look at and put together how that would work if that condition was true. And it was that condition that I specifically told them I thought was the weaker argument, which is why I'm going to give you a more complete assessment of all the various scenarios."
After I pointed Eastman to identical language near the end of the six-page memo, he argued that he did not mean it was a fact that Pence was the ultimate arbiter of which electoral votes to count. He meant only that Pence was the ultimate arbiter of which ballots to open in a contested election, while he believes that Congress “most likely” makes the final substantive decision.
Readers can read the final memo for themselves, but that seems like a very odd interpretation of a memo that concludes: "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."
***
Then there's the matter of what Eastman said privately to Trump and Pence on January 4.
The memos "were not part of our discussion on January 4, but the ideas certainly were," Eastman says. When Eastman met with Trump and Pence in the White House on that day, Eastman cast doubt on whether Pence had the authority to reject outright the counting of electoral votes. As the New York Times first reported on October 2:
A person close to Mr. Pence, who was not authorized to speak publicly about the Oval Office conversation, said that Mr. Eastman acknowledged that the vice president most likely did not have that power, at which point Mr. Pence turned to Mr. Trump and said, "Did you hear that, Mr. President?"
Mr. Trump appeared to be only half-listening, the person said.
At the January 4 meeting, Eastman tells National Review, Pence "looked at me point blank and said, 'Do you think I have the authority simply to not count electoral votes?' And I said, 'That’s an open question. I happen to think it’s the weaker constitutional argument, but it’s certainly been floated out there in scholarly articles.' I said, 'But even if you had that authority, it would be foolish to exercise it in the absence of state legislatures having certified the alternate slate of electors.'" He says he'd give the exact same advice to Kamala Harris if she's serving as vice president on January 6, 2025.
But Eastman's concession to Pence on January 4 is not the end of the story.
There is overwhelming evidence that Trump himself pressured Pence to reject enough electoral votes to throw the election to the House.
A source close to Pence tells National Review that the position of Trump and some of his advisers was initially to pressure Pence to reject outright the count of the Electoral College votes in decisive states.
"Their position was to reject," says the source close to Pence.
"Look at the memo," the source says of the two-page Eastman memo. "That was the argument they were making. . . . If you reject these out of hand, you get under the magical 270 number [of electoral votes] and then it gets thrown to the House of Representatives."
“I think [Eastman] always caveated it as an experiment, like, ‘We can try that.’ I don’t think he was ever assertive that [Pence] definitely should” outright reject electoral votes, says the source.
While Eastman calls the two-page memo a "preliminary" memo for "internal discussion" purposes only, there is plenty of evidence that it reflected the official position of Trump.
On January 2, Costa and Woodward report in Peril, the two-page memo was sent from the White House to Senator Mike Lee of Utah.
On the morning of January 5, the day after Eastman met with Trump and Pence in the White House, President Trump tweeted: "The Vice President has the power to reject fraudulently chosen electors."
On the evening of January 5, at a meeting between Trump and Pence in the White House, Trump still pushed his view that "Pence could and should throw Biden's electors out" and let "the House decide the election," according to Peril.
Pence told Trump that the vice president lacks the power to do anything other than open the envelopes, and Pence's message to Trump was reported that evening in the New York Times. Trump then issued a statement falsely claiming that he and Pence were actually in "total agreement" on the vice president's authority: "Our Vice President has several options under the U.S. Constitution. He can decertify the results or send them back to the states for change and certification. He can also decertify the illegal and corrupt results and send them to the House of Representatives for the one vote for one state tabulation.”
The Eastman memo and Peril don't uncover a secret plot — the Capitol rioters shouting "Hang Mike Pence!" clearly understood in real time that Pence was supposed to "stop the steal." But they do shed light on the behind-the-scenes efforts of a plot that was also being carried out openly on live TV and Twitter.
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According to the source close to Pence, "In the last 24 hours or so [before January 6], it became crystal clear finally — even though the vice president had been telling them this for three weeks — it's finally sunk in he wasn't going to do that. So, then their position moved to: Well, would you delay it and send it back [to the state legislatures]?"
"Even there, [the vice president] doesn't have that authority, particularly if there isn't a separate certified slate," the source adds. "Why would we ever believe our Founders wanted to put that much power into one person's hands? I think we fought a war to avoid that."
Eastman tells National Review it was "accurate" to say that Trump and some other legal advisers' position shifted from arguing that Pence had the authority to outright reject electoral votes to focusing on giving states time to certify alternate slates of electors in the final 24 to 48 hours before January 6.
"Call me the white-knight hero here, talking [Trump] down from the more aggressive position," Eastman says.
While Eastman describes himself as heroically talking down Trump, the source close to Pence describes Eastman’s comments about the relative weakness of the argument for rejecting electoral votes as a concession made under cross-examination.
***
But what Eastman and Trump publicly called for Pence to do at the "Save America Rally" on January 6 — prevent the counting of electoral votes so that state legislatures could investigate claims of fraud — was itself a radical position.
Texas GOP congressman Chip Roy, a member of the Freedom Caucus, said in January that Trump "deserves universal condemnation for what was clearly, in my opinion, impeachable conduct — pressuring the vice president to violate his oath to the Constitution to count the electors."
The Electoral College had met on December 14 and elected Joe Biden president. There hadn't been a single state Biden won where the majority of the legislature or the governor certified a separate slate of Trump electors.
There wasn't even a single state Biden won where a majority of the legislature was asking for the delay Trump and Eastman called for on January 6.
Eastman says that the request from a minority of state legislators to delay counting the certified Electoral College votes was sufficient reason to do so because "it was over Christmas, and they were having trouble getting ahold of people to sign the letter" in Pennsylvania. "Others were prominent folks in the state legislatures, but they weren't in session to do anything formal by the way of a majority." But we live in the age of email and social media, and if a majority of any legislature wanted the delay Eastman desired, they could have easily made their request known. None had done so.
The most important point of all is that there was no legitimate basis for any government authority — not the vice president, not the U.S. Congress, not any state legislature — to overturn the results of the presidential election in any state.
One of Eastman's major rationales for pushing Pence to try to delay the counting of the Electoral College votes was his belief that voting machines had changed the tallies.
But, I asked Eastman, didn't the hand recount conducted in Georgia in November — in which all paper ballots were sorted by hand and counted by humans — disprove the conspiracy theory about Dominion voting machines?
"As I understand it in Georgia, a lot of the machines don't have paper ballots, they have paper tapes that are recorded after a touch-screen, so that's just all electronically driven," Eastman replied. "When you get to the paper-ballot audit, you print them out from the machines. So, if that's true, then whatever's in the machine is going to match the paper-ballot count you end up doing."
But the Georgia secretary of state's office confirms that there was a paper ballot for each individual voter in Georgia. As you can see in this video, in Georgia, the voter uses a touch-screen to print out a paper ballot that states in plain text which candidates a voter selected, and during the hand recount, human beings read those ballots and sorted them into "Trump" and "Biden" piles in the presence of election observers. If there had been a systemic problem with the machines, the hand recount would have caught it.
The conspiracy theory about Georgia's voting machines work isn't the only reason he believes Biden's victory wasn't legitimate, but it was what he focused on when he spoke on stage on January 6.
***
In addition to his claims about voting machines in Georgia, Eastman made another statement to National Review that is, according to reporting in Peril, not accurate.
Eastman claimed in our first interview that he had "never had any dealings" with Utah senator Mike Lee about matters related to the memo, but Peril reports that Lee and Eastman did speak in December, and during the conversation Eastman told Lee the memo was forthcoming.
Costa and Woodward report that Lee, after receiving the two-page memo from the White House, told Trump's lawyers: "You might as well make your case to Queen Elizabeth II. Congress can’t do this. You’re wasting your time." During our first interview, I asked Eastman if Lee had made such a comment to him, and Eastman replied: "I've never had any dealings with Mike Lee about this at all. I don't know who gave him a copy of the internal memo. To this day, I have not had any conversation with him about in fact whether that was true or not [that Lee received the memo]."
During our second interview, I noted that Costa and Woodward write that in December 2020, "Lee was directed to John Eastman, another Trump lawyer. The two spoke with each other. 'There's a memo about to be developed,' Eastman said. 'I'll get it to you as soon as I can.'"
After I read that passage to him, Eastman said: "I did have a conversation with Senator Lee. But I have no record of having given him either of the two memos. We were working on broader things. If I did give him one, it would have been the fuller memo, but I don't have any record of having done that."
How does Eastman account for his initial statement to me that he had "never had any dealings with Mike Lee about this at all"?
"I want to be very precise here: I said at the time I did not recall having any conversations with Mike Lee, and I certainly don't have any record of having given him the memo," Eastman says. "But now that I've seen that quote from — I do recall that Mike Lee called me at one point. I don't remember the subject of the conversation."
Senator Lee and his staff did not reply to multiple requests from National Review for comment.
***
If Pence had tried to overturn the election, he would have failed, but one big lingering question is what exactly would have happened.
"I can't consider such a hypothetical. Fortunately, the vice president followed the Constitution," Utah GOP senator Mitt Romney told National Review in the Capitol.
"I can't tell you what we would have done," said Louisiana GOP senator Bill Cassidy. But, Cassidy said, the view "that this could have presented a constitutional crisis certainly seems reasonable to me."
Judge Michael Luttig, for whom Eastman once clerked, wrote on Twitter that the Supreme Court would have settled the issue: "I believe(d) that Professor Eastman was incorrect at every turn of the analysis in his January 2 memorandum. . . . I believe(d) the Supreme Court would have decided each of these issues had they been presented to the Court, which they undoubtedly would have been had the VP proceeded as outlined in the January 2 memorandum." Senate leaders may have tried to overrule Pence, and if they didn't, the speaker of the House likely could have shut down the joint session of Congress until January 20, when Pence would no longer be vice president.
It remains unclear what would have happened if Pence had acceded to Trump's demands. But either scenario — pitting the Supreme Court against Pence or the Congress against Pence — would have unleashed untold chaos before it failed.
The brazen attempt might yet unleash chaos in 2024 and beyond. If Trump is a presidential nominee again and loses, there would be even greater pressure on GOP legislatures and governors to certify alternate slates of Trump electors. Some liberal legal scholars now argue that Kamala Harris may have more than a ministerial role in the counting of the Electoral College votes on January 6, 2025.
In the Capitol, when I asked Senator Cassidy about potential efforts to overturn presidential elections in the future, he declined comment on specific scenarios but said: "If somebody attempts to subvert the constitutionally required peaceful transfer of power, that is wrong. . . . My first oath of office is to support and defend the Constitution, and pushing back on something like that I consider part of supporting and defending the Constitution."
"We avoid having so much power invested in one person or one institution that they can do a coup if you will," Cassidy added. "We distribute it in a way in which we all have checks and balances from one level upon the other. That's the beauty of our forefathers, and it worked this time. We should never take it for granted."
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