Even if Pence had agreed to go along with this scheme — which he didn’t — the plan would have gone off the rails right there because, in fact, no states put forward alternate slates of electors. The “alternate electors” were Trump allies claiming, without authority, to be electors. Members of Congress would have, therefore, objected immediately to Pence’s false statement and his refusal to count certified electors. Chaos would have ensued.
But as Eastman envisioned the procedure unfolding, Pence would simply set aside the electors from seven states with “ongoing disputes,” and the assembled lawmakers would sit silently by.
Eastman’s fantastic scenario is based on the laughable claim in his memo that the “Constitution assigns the power to the Vice President as the ultimate arbiter.” The idea is absurd on its face. If, in fact, the Constitution empowered the sitting vice president to select the next president, Vice President Al Gore in the 2000 election could have rejected the Florida electors and declared himself elected. Also under this theory, in 2024, the Democrats can send pretend electors from red states, and Vice President Harris can “resolve the dispute” by rejecting the certified electors and declaring President Biden reelected regardless of how the vote actually turns out.
Eastman anticipated that there would be objections after Pence announced Trump’s reelection. One possibility his memo envisioned was that Democrats would insist on following the Electoral Count Act, which requires disputes to be resolved separately by each house of Congress.
But in reality, this wouldn’t have happened. The proceedings would have broken down entirely because there were no disputes. The “disputes” had been manufactured and, as numerous courts held, were not based on the law or facts. And Pence didn’t have the authority to do anything other than to count the electoral votes.
The scheme also presumed that the American people, the vast majority of whom knew that Trump lost the election, would tolerate Trump setting aside the results of the election and remaining in power. After a year that saw passionate nationwide protests over George Floyd’s death, it’s clear that Americans would not have sat back and tolerated such a coup. It would have been obvious to everyone that if Trump could indeed overturn an election and remain in power, nothing at all could constrain him. The president who once said that Americans should give lifetime presidential appointments “a shot someday” would, in effect, be a dictator. It was never within the realm of possibility that Americans would passively tolerate this, and at any rate, U.S. military leaders had no interest in using force to keep Trump in power, either.
While Eastman’s scheme would not have succeeded in keeping Trump in power, it could have given further credence to his lie that the election had been stolen from him, thus stoking more unrest and resentment among his supporters. It also could have caused widespread chaos and perhaps additional violence. After all, at the precise moment that Pence was supposed to enact this plan, a mob of insurrectionists was prepared to do battle on Trump’s behalf.
The harebrained scheme outlined in Eastman’s memo would not have kept Trump in office, but it nonetheless has evidentiary value. Trump introduced Eastman at a rally near the White House as “one of the most brilliant lawyers in the country.” Trump also appeared to refer to the scheme outlined in Eastman’s memo (which was, of course, not yet available to the public) when he told the assembled crowd on Jan. 6 that Eastman “looked at this and he said, ‘What an absolute disgrace that this can be happening to our Constitution.’ And he looked at Mike Pence, and I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win.”
So despite its ludicrous reasoning and absurd interpretation of the Constitution, the memo will no doubt be useful to the House Select Committee to Investigate the January 6 Attack on the United States Capitol as lawmakers look at evidence of Trump’s intentions.