Opinion: Trump-supporting lawyer’s memo begins with a lie, then descends into madness


Eastman is a lawyer who worked with former president Donald Trump’s legal team to overthrow democracy and try to steal the 2020 election.

First, the lie: “7 states have transmitted dual slates of Electors to the President of the Senate.” What seven states? What “dual slates of electors”? How were they purportedly “transmitted” to the Senate? This is all, of course, nonsense. In fact, every single state certified one, and only one, slate of presidential electors based on the 2020 election results.
The Eastman memo proceeds from this foundational lie to build a wild legal fantasy on top of it; in that respect, the memo is a perfect encapsulation of Trump’s overarching strategy to steal the 2020 election. Eastman casually adopts as true a bold legal fiction that “[t]here 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 … and all the Members of Congress can do is watch.” That’s simply wrong as a matter of law and history. Thankfully, the President of the Senate, who was then-Vice President Mike Pence, recognized this, and refused to unilaterally override the votes cast by the disputed states.

Eastman proceeds to lay out a strategy that is purposefully deceptive. He suggests Pence should announce the results in the states alphabetically, but should “defer decision” on Arizona and the other six states that Trump is trying to steal until the very end of the count.

At that point, Eastman suggests, Pence should reject the vote counts from those seven states. Then, according to Eastman, comes the dramatic climax: “Pence then gavels Trump as re-elected.”

This suggestion is as wrong-headed as it is audacious. No person — not the vice president or anybody else — has the power to “gavel” anybody as the president of the United States. That’s the stuff of dictatorship. Then again, that seems to be precisely what Eastman aims for in his memo.

Eastman dismissively predicts “[h]owls, of course, from Democrats…” He’s only partially correct here; no doubt, there would have been “howls” but likely from many conscientious Republicans and Democrats alike. Republican members of Congress, including Senators Mike Lee and Lindsey Graham — both reliable Trump loyalists — rightly ridiculed and rejected Eastman’s proposed plan and other variations of it, according to Woodward and Costa, authors of “Peril.”

Eastman closes the memo by noting that his plan should be enacted by Vice President Pence but, “Pence should do this without asking for permission — either from a vote of a joint session or from the Court.” That’s a sure sign Eastman knows his scheme is outrageous and illegal. He proposes simply to ram it through and make the other side fight, after the fact, to undo the damage.

Eastman now claims that his memo merely “explored all options that had been proposed.” But that’s revisionism. In the memo, Eastman doesn’t merely “explore” or ruminate on theoretical or academic possibilities. He specifically argues that Pence “should” carry out the plan, as proposed, and he offers strategic advice on how to spring the scheme as a trap on unsuspecting members of Congress (by holding the seven states until last and by springing the plot first “without asking for permission”).
Eastman is, somehow, both a lawyer and a senior fellow at a research institute. He’s also a disgrace to the profession. His memo is at once rife with falsehoods, childlike in its reasoning and deadly dangerous in its proposed application.
Eastman needs to face consequences. State licensing authorities should review his fitness to practice law. Congress needs to demand answers, issuing a subpoena to compel Eastman to testify if necessary. And the Justice Department must, at a minimum, open a criminal investigation to determine whether Eastman’s proposed actions constituted conspiracy to violate federal election laws.

If nobody takes action, then Eastman will fade into memory as just another unhinged conspiracy theorist who proposed dangerous abuses of power to serve Trump’s whims, and then walked away unscathed.

Now, your questions:

David (North Carolina): Regarding Roe v. Wade, doesn’t established federal law from the Supreme Court supersede any conflicting state law?

That’s exactly how things are supposed to work. However, the Supreme Court earlier this month declined to issue an emergency stay (a pause, essentially) on a Texas state law known as “SB-8,” which makes it virtually impossible for a woman to get an abortion in Texas — squarely contradictory to Roe v. Wade.

The five-justice majority noted that, while they expressed no view on the constitutionality of the Texas law, they would not issue a stay because the law posed complex procedural issues that could pose an obstacle to future legal challenges.

The Justice Department has now filed a direct legal challenge to the Texas law, arguing that it operates in “open defiance” of Roe v. Wade. While the Texas case winds through the federal courts over the coming months, however, keep an eye on a different restrictive state law, out of Mississippi. The Supreme Court will hear and rule on this case in the upcoming term, with oral argument set for December and a decision likely in the spring or summer of 2022. The Mississippi case has been positioned by advocates as a direct challenge to Roe v. Wade, and could give the court an opportunity to overrule its own longstanding precedent.

Gregory (Indiana): How much jeopardy is DACA in, given that it was created by executive action and not by Congressional legislation?

Once again, the Deferred Action for Childhood Arrivals program, adopted through executive action by then-President Barack Obama in 2012 to provide a temporary reprieve from deportation for “Dreamers” who arrived in the United States as children, is in legal jeopardy. Last year, the US Supreme Court rejected the Trump administration’s attempt to rescind DACA, ruling that the administration had not followed proper administrative procedures. However, a federal judge has since ruled that DACA is unconstitutional on the merits because it was enacted by presidential decree, without Congressional authorization. The Biden administration has appealed that ruling to the federal Fifth Circuit Court of Appeals. That court’s ruling likely will settle the issue, unless the Supreme Court decides to take the case and rule on the merits once and for all.

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