In a letter to the editor published by the Wall Street Journal, conservative academic John Eastman attempts to defend his advice to Vice President Mike Pence, which was at the heart of the scheme to overturn the 2020 election. Reacting to the January 6th committee hearings, Eastman objects to those who’ve described his theories about the vice president’s powers as historically and constitutionally baseless. He claims that instead, his advice was actually grounded in historical precedents and previously published scholarship. 



Eastman’s historical claims are seriously inflated and offer no persuasive precedent in support of his position. The Constitution assigns the vice president no job other than to open the envelopes received from the Electoral College. It does not even say that vice presidents are necessarily supposed to preside over the joint session, though Congress has by tradition and statute assigned that role to them.


The various minor incidents Eastman mentions, such as Thomas Jefferson handling electoral votes that hadn’t strictly complied with the forms required by the Twelfth Amendment, were never understood to amount to a vice presidential power to defy Congress during the count. At best, they show that vice presidents have, in a few instances, glossed over harmless errors without serious controversy. 



Eastman cites some examples of scholars who had previously entertained the idea that the vice president, if presented with a genuinely uncertain controversy or facially defective votes, might be called upon to exercise some independent judgment. But that is a moot point, because no such controversy or uncertainty existed as to any state’s votes in the 2020 election. Every state had submitted only a single, duly certified set of votes with no apparent defects. The scholarly articles he cites were thus irrelevant and inapplicable to the 2020 election even if taken on their own terms.



More importantly, Eastman emphasizes that he did not advise Vice President Pence to simply decide which votes to count. Though that theory is widely rejected, he’s not wrong to note it had at least been discussed by some experts as something that might apply in some narrow circumstances. But Eastman can offer no such defense for what he urged Pence to do instead, and he does not even attempt to.


Eastman’s preferred plan was for Pence to instead halt the count and demand that the states somehow confirm or reconsider their votes over a ten day period. There’s no basis for this idea in any law or in any legal scholar’s previously published writings. Eastman’s suggestion was that Pence could simply make it up on the spot, concocting the whole procedure out of thin air. 



Even if the vice president did have some substantive, limited authority in presiding over the count, there is no basis whatsoever for the vice president to unilaterally halt the joint session, “send the votes back” to the states, demand that state legislatures somehow act on his instructions, and set a later date for Congress to reconvene. This would involve the vice president usurping Congress’s power to determine its own rules, and it would mean instructing the state legislatures to do something they have no constitutional power to do.


Eastman also points to how some state legislators supported overturning the election. Among the thousands of state legislators across the country, there were a smattering who bought into Trump’s wild conspiracy theories. But the reality is that no state legislature had taken any official action in support of rescinding their state’s duly cast electoral votes. Due to the opposition of principled Republicans like Arizona House speaker Rusty Bowers, there was not a single upper or lower house in the entire country where a majority was willing to do what Eastman proposed. 



Eastman presents this send-it-back-to-the-states scenario as a more restrained option, because it would have attempted to enlist state legislatures to legitimize a vice-presidential power grab. But it is actually much less defensible as a legal theory. Nobody had ever heard of or suggested such a thing before. No law or provision of the Constitution envisions anything like it. It had no history, no scholarship, no statute, and no constitutional basis to support it. Simply put, he made it up, and his critics are entirely correct to say so.


We’re lucky Pence saw through the absurdity of Eastman’s idea. Congress should reform the Electoral Count Act to make sure there’s no doubt about that in the future.