Initial Reaction to Eastman Memo

from The Election Law Blog

My first thought on reading the Eastman memo revealed yesterday was that it could wait until I do the relevant work for a planned second edition of Ballot Battles before I reflect on it in earnest. But in light of some discussion that I’ve seen on Twitter, it might be helpful to share these preliminary thoughts:

Setting aside the fundamental fact that the memo outlines a strategy to overturn enough valid electoral votes to keep Trump in power for a second term that he did not lawfully win (and therefore appropriately can be considered as a kind of coup attempt–with all the moral depravity that a purely despotic power grab of that nature entails), on its own terms the memo does not address the countermoves that would have caused its strategy to end in failure. (My analysis of this point derives from my Loyola Law Review article, Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management, as well as the follow-up Atlantic essay co-authored with Larry Diamond.)

More here.

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8 Comments

  1. The conversation regarding whether or not Trump should be the true president is absolutely ridiculous. It is not a dispute whether the presidential election was somehow rigged, or the voter fraud was what caused Biden to win, regardless of what the Trump fan-base would have you believe. The fact that this is even a relevant topic of discussion to this day is even more preposterous. All of these memos and cases and whatever else has been brought out are nothing more than clear attempts to undermine the democratic process. The mere fact that ex-vice president Pence even thought of this plan is more than worrying. Regardless of someone’s political stance, to look at the actions Pence wanted to take should set off huge amounts of red flags. Today, in the political divide that we live in, various parties advocate fir their own personal agendas, while actively attempting to stop other agendas. This in turn means the entire system is significantly slower, and in general, does not work as intended. Want a law passed? That’s unfortunate, there’s a filibuster in place and the relevant process is delayed. At this present day, cases can take years to solve. For the most part, the system is significantly flawed in the advantage of the rich and powerful, while being rigged against the average American. Pence is not the only person who would engage in this form of intentional disregard for the democratic process. Look at some of the voter id laws that have been passed in recent years. They all restrict voting times, the ids you need to vote, and effectively make certain groups of people less likely to vote. The Eastman memo is just one of thousands of disguised attempts at destroying democracy. This country is moving towards a place where we are no longer listening to the will of the people, but rather to those who have the assets to support their positions. Lobbying groups like the NRA are especially egregious in this, as they continue to use every loophole and resource to push their own agenda into the political mainstream. Ned Foley’s comments on the memo highlights, at first glance, that the plan itself was flawed to begin with and wouldn’t work regardless of if Pence actually went through with it. However, it also highlights the “legal” methods that Pence could go about achieving his goal. It sets a precedent for the type of loopholes that other, more determined power-hungry individuals could take advantage of to suit their selfish needs. Right now, America is in a state of political disarray, and there are far too many issues with out legal system and form of government that allow these kinds of things to occur. It halts progress and creates more problems than it solves. If this isn’t solved quickly and soon, then American society could ultimately collapse. I simply hope that we never get to that point.

  2. I think that the plan that Eastman proposed is bizarre. The idea was to create a strategy to overturn enough electoral college votes to keep Trump in the presidency even though he did not honestly win. Just the fact that this sort of plan was being discussed is highly concerning. Although the project would have never worked, it shows how far people were willing to go to keep Trump in office. This can also be demonstrated by many of Trump’s supporters stormed the Capitol on January 6th, trying to interfere with the constitutional process to confirm the election result. I think that part of this incident results from the former president claiming that there was voter fraud during the election and that he should have won. Many of his supporters believed what he was tweeting and thought that the election results were not honorable. Just the mere fact that so many people believed there was voter fraud in this past election is very worrying. There are no actual facts to back up this ridiculous claim, yet so many people believe it anyway. Also, I agree with the article that there needs to be reform in the Electoral Count Act. I think that there is too much room for interpretation, and it needs to be fixed. Eastman used his own interpretation of the Twelfth Amendment to try and bypass the Electoral Count Act. Reforming the act will not eliminate the risk entirely, as some people will find another way to get around it. However, revising the Electoral Count Act will be favorable because it will reduce the chances of anything like this happening in the future. This is not the only problem, though. There are many other acts and amendments that leave too much room for interpretation, and people try to exploit them. I believe that the country’s acts and amendments need to be more specific so that no one can try to take advantage of them for their own good. Overall, I think that there are many problems with the American political system right now. Something like the plan that Eastman proposed should never be a possibility.

  3. The Eastman Memo was proposed as a plan to help President Donald Trump cheat his way into re-election. The memo proposed was not well thought out because the twentieth and twelfth amendments stopped any actions that would have overturned the election. This memo is dangerous because it made people believe that they were being cheated out of an election when in reality the election process was completed with no major cases of fraud. Fraud occurs on small scales, but not at the proportions described by President Trump and members of the Republican Party. Now, had this memo been used as the plan to take back the election, House Speaker Nancy Pelosi would have been able to halt all sessions of the House and Senate that would confirm the election for Trump. She is allowed to do this through the use of the twelfth and twentieth amendments. Now if this continues as a stalemate through January twentieth, Mike Pence would no longer be Vice President and Pelosi would become the Acting President thus shutting down any plans for Trump’s return to a second term. Joe Biden would be instated as President either way with or without this foolish memo. The article also states that there needs to be an improvement for the Electoral Count Act, which would have allowed the Eastman memo to be used. I agree that this act needs to be further developed to prevent such unjust acts from happening in future elections.

    https://electionlawblog.org/?p=124705

  4. Donald Trump has always been and will always be a controversial figure in the United States of America. Despite being the 45th president of the United States and having a large amount of the country support him, there will be many in the country who will never respect him. One instance that shows why some people in the country will never respect him is when he tried to claim the 2020 presidential election was rigged when he lost to the now 46th President of the United States, Joe Biden. This led Trump to advocate for ballots to be reopened in several swing states and electoral votes to be recounted. This statement from Trump caused him to get a lot of backlash from the media and the people in America as people were offended or thought what he was doing was absolutely ridiculous. However, some of Trump’s followers that believed his claims or were disappointed that he lost the election agreed with him and rallied for the votes to be recounted. The Eastman Memo was a plan that the author of this article was reacting to that suggested that electoral votes should be overturned so Trump could stay in office for a second term.
    To make this clear, I do not have strong opinions on politicians. I am not a Donald Trump supporter yet, I’m not anti Trump. However, reading this memo from one of his supporters was scary. To see the amount of hysteria a political figure could have in this country by comments he made that he knew were not accurate in a time and age like this was quite concerning. I think the author made a fair point by suggesting that some of the language in the twelfth amendment and Electoral Count Act allows instances like this to happen and therefore, they should be rewritten to prevent the opportunity of these events from ever happening. However, that seems highly unrealistic. Therefore, I am sure we will unfortunately see a similar scenario like this in the future with politicians in America losing, creating chaos that the press will cover, subsequently causing people to make crazy suggestions like this.

  5. The topic of this article “Initial Reaction to Eastman Memo”, by Ned Foley, can be best described as horrifying. The Eastman Memo, as the article explained, was proposed as a plan to undermine democracy, and assist in trying to keep Donald Trump in power – despite losing the completely fair Presidential Election. As Filip mentioned in his response above, it is absolutely ridiculous that this still even has to be a current discussion. No matter what your political stance may be, there is absolutely no legitimate argument that Trump is somehow “still in power” and that very way of thinking is extremely dangerous. This memo goes against everything that the United States of America is supposed to stand for and was an inappropriate and frankly stupid attempt to destroy the natural democratic process. This country is built on the idea of fairness and equal opportunity. The Eastman Memo is in direct conflict with that idea. And to the supposed “super patriotic” group of people that would support this memo in order to keep their ex-president in office, they do not understand that everything this plan stands for is the opposite of patriotic.
    No one can deny that the 2020 Presidential Election was fair, and that Trump lost – but apparently his legal team could not accept this fact and they felt the need to create a cheat in order to sway the numbers in his favor. As Foley explained, “The memo outlines a strategy to overturn enough valid electoral votes to keep Trump in power for a second term that he did not lawfully win…” (https://electionlawblog.org/?p=124705). Foley also talked about how the Electoral Count Act, a key factor in this case, is in desperate need of reform and how this Eastman Memo would have helped Pence avoid it and declare it unconstitutional. The Eastman Memo’s intentions were quite literally to change the rules and oppose the Constitution in order to maintain power. From the eyes of those who did not support Trump during his former presidency (including me), this failed coup-like attempt was just another, grander, showing of how him and his team would stop at nothing to spread misinformation and bend the truth in their favor. From the eyes of those who wanted him to stay in power, I would hope that they see this memo as a sad attempt to deny democracy and proof that Trump and his legal team were simply sore losers. For this issue to still be a topical discussion, proves that the political system in the United States is highly problematic and in desperate need of updating.

  6. The Eastern Memo was a plan proposed to keep Former President Donald Trump in Power for four more years. Although the 2020 election has been proven multiple times to not be fraudulent, Trump wanted to do everything in his power as President to stay in office for another term. There cannot be an argument made on whether or not Trump lost the election fairly, since there is absolutely no evidence to show that there was election fraud. The Eastern Memo was a senseless attempt to overturn the election and Trump should have accepted the results of the election when there was no evidence to back up Trump’s claims. Even Former Vice President Mike Pence said that there is nothing more unamerican than overturning the election results. Regardless of what anyone’s political opinions or beliefs are, no one can prove that the 2020 election was rigged in any way. Although I was too young to vote during this time, I was always a supporter of Trump. However, I completely disagree with what Trump was trying to do to stay in office. I understood that Trump did not want to leave the White House and still be President for another term, but he always has the opportunity to run for President again in the 2024 election. I also believe that Trump knew that he had lost the 2020 election once the results showed President Joe Biden won, but he just wanted to stay in power for another term. If the memo were to somehow go through and make Trump become President once again, tens of millions of Americans would have been outraged. I am sure that there would be protests, riots, and seemingly endless violence in America. The attempt to overturn the election with the eastern memo was very unpatriotic and undermined democracy.

  7. While reading through this article I discovered many connections and questions regarding the 2020 election. After I finished reading the article I read the original memo that described the plot in detail. I found the tone of the memo to be extremely misleading. The creators of the plan, like the article suggests, do not mention any counter moves that would prohibit the plan from going farther. I find that these empty promises are simply a mechanism to unite those who voted red in the 2020 election. During November and December of last year congress proceeded to call a recount of the electoral votes multiple times. Every ballot was carefully checked and marked at least twice. The plan acts as if by having congress under Pence’s leadership recount the votes, the outcome would be different. The only way the election could have ended differently was if there was indeed fraud, and not from the democratic end. I find the initial inclusion of Pence in the plot to also be intriguing. It was Pence that originally addressed Biden’s win. From this, Trump called upon many of his supporters in an attempt to invalidate his own vice president. In this context, although the memo nods to Pence as a hero in the memo, I believe the memo is written to rally Trump’s supporters against Pence in making the situation appear as if more could have been done. This belief that the last administration is still in power is now causing a chain of quote on quote “safe guards” to try and confirm a republican majority in the future. We see it now in the new voting legislation being passed in states that saw a significant surge of blue votes in the 2020 elections. I find that this memo is another form of the voting laws being passed to try and instill fear and oppression in those that oppose, and anger and hope in those that agree.

  8. There is still lots of controversy surrounding the 2020 presidential election in which current president Joe Biden came out as a vector. Former President of the United States Donald Trump believed that he was cheated and the election was rigged in favor of President Biden but with the revelation of the Eastman memo there is a strong argument that there was no fraudulent action taking place against former President Trump. It further verifies the fact that the election was fair and just. Making efforts to try and overturn votes in favor of former President Trump to change the outcome of the election shows that the fraud is being committed the other way around and not by the current president and his staff. Flipping vote in favor of Trump could have validated a second term in office for him but as we all know that possibility has become slimmer with time. The memo not addressing the counter moves that eventually led to the fall of this entire project if that’s what you choose to call it, shows the level of insecurity that the writers of this memo had because not including those facts almost make their argument and attempt at turning votes around seem more possible than it actually ended up being.

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