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President Trump’s lawyer gave Vice President Mike Pence a six-step guide to overturn the 2020 election—and that memo is now public, thanks to a new book from Washington Post reporters Carl Woodward and Robert Costa.
The memo, titled “January 6 scenario” and labeled “privileged and confidential,” shows in explicit detail exactly how Trump’s team wanted Pence to try to block Trump’s election loss when Congress met on January 6 to certify President Biden’s victory, using potential ambiguities and weaknesses in an obscure election law to sow chaos and keep Trump in power.
The memo gives the clearest picture yet of the chilling game plan Trump’s team wanted to execute—and lays out an anti-democratic and dangerous roadmap Trump could theoretically try to adapt for 2024 as well if he’s the GOP nominee.
The memo’s argument, crafted by Trump attorney John Eastman, is based on a crass reading of the Electoral Count Act of 1887, a poorly written law whose weaknesses pose potential constitutional risks. Election experts had sounded the alarms heading into the 2020 election that Trump could use it to try to overturn the election results, banking on a conservative-dominated Supreme Court to back up his team’s reading of the law. Eastman argues that the law is likely unconstitutional, and looked to leverage its potential weaknesses to trigger a constitutional and national crisis and keep Trump in power.
It lays out a six-step process where Pence would have rejected electors from seven states Biden won, claiming that because competing slates of electors existed, he couldn’t pick either and had to toss out those states’ results. He’d then close the vote, claiming Trump had won. When Democrats objected, saying no one hit the required 270 Electoral College votes, he could respond by agreeing and letting the House decide. Because of a quirk in the law, each state’s House delegation would get one vote, giving Republicans the edge they needed to reject the will of the American people and try to reinstall Trump as president.
“The main thing here is that Pence should do this without asking for permission—either from a vote of the joint session or from the Court. Let the other side challenge his actions in court,” Eastman wrote.
But the memo claimed, incorrectly, that seven states “have transmitted dual slates of electors” to the Electoral College, when in fact those supposed competing slates of electors hadn’t actually been certified in any of those states—they were simply groups of pro-Trump activists that falsely claimed to be electors. If Republicans in those states had actually managed to certify competing elector slates to the ones Biden had won, it could have given Trump’s side leverage to try to trigger an actual constitutional crisis. But Republican state lawmakers didn’t actually give Trump this weapon, making Eastman’s already-flimsy argument even weaker.
That memo and others from Trump’s camp were used to try to convince conservative lawmakers to support a soft coup for Trump. But while a number of GOP House members went along, few senators did. As the Washington Post reported Monday, this was one of a number of memos shown to Utah Sen. Mike Lee and South Carolina Sen. Lindsey Graham, who found their arguments implausible to ludicrous.
Pence rejected this flimsy argument as well, honoring his constitutional duty and infuriating Trump and his supporters.
This wasn’t Eastman’s only bank-shot attempt to overturn the 2020 results using suspect legal arguments. His brief to the Supreme Court filed on Trump’s behalf attempting to get the court to overturn the election’s results didn’t get much traction either.
The day Eastman targeted, of course, turned into a violent mess as Trump egged a mob of his supporters into attacking Congress in an attempt to block their proceedings. Some chanted “Hang Mike Pence!” for his refusal to go along with the coup attempt.
Pence’s refusal to go along with this half-baked scheme helped avoid the worst-case outcome on January 6, 2020. But it’s unclear what might happen if Republicans attempt to run the playbook Eastman suggested in 2024, challenging election results and seeking to break democracy with a little more vigor.