Vice President Mike Pence preside over a joint session in Congress, January 6, 2021 in Washington DC. Erin Schaff - Pool/Getty Images
Laurence Tribe wrote an article in September 2020 about Trump's attempts to undermine the election.
This article outlined Trump's belief in Congress and not the Electoral College being able to keep him in power.
John Eastman, Trump attorney, cited the article in a memo of two pages.
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An ex-law professor was quoted in an effort to reverse the 2020 election. His argument was said to have been part of a "ploy" by former President Donald Trump's legal teams to disenfranchise millions.
Right-wing attorney John Eastman outlined a six-point plan to throw out votes in seven states Trump lost. This was part of an attempt to win him a second term. CNN published the memo this week. It incorrectly claimed that Mike Pence, former Vice President, could reject electors in those states - Arizona, Georgia and Pennsylvania - and throw the decision over who should become president to the House of Representatives. Trump would have won despite losing the popular vote.
Eastman referred to an unusual interpretation of the 12th Amendment of the US Constitution. It states that the President (in this case Vice President Pence) is charged with opening "certificates" for each state's slates of electors, and counting votes before a dual session Congress. According to Eastman, Pence may reject the certificates and accept competing slates from pro-Trump states.
Or Pence could choose not to accept any battleground list, giving Trump the majority of the votes.
Eastman stated that Harvard Law Professor Laurence Tribe has also advanced this reading of the 12th Amendment, citing a September 2020 article written by Eastman and a former Obama administration official.
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Eastman suggested that Pence could choose to resolve the conflicting slates by casting the vote to Congress, despite presenting multiple arguments in order to reach the same conclusion.
The article described a variety of ways Trump could try to stay in power even if he loses both the popular vote as well as the Electoral College. Eastman reframed his argument in two paragraphs. These paragraphs described a Trump-related attempt to persuade Pennsylvania Republicans to appoint another pro Trump slate of electors, regardless of the intent of the voters.
The article stated that this slate would be illegal. However, Trump's team could argue that it is impossible to determine which slate is credible. This would force the House of Representatives to ask the question. There, the next president would be decided not by a majority vote in the Democratic-controlled chamber, but by allotting each state's congressional delegation one ballot, where "Republicans would have the edge."
Tribe and his coauthors did not argue in the September 2020 piece that Pence would be able to do this alone, whether it was rejecting slates of voters or handing over the matter to the House.
Tribe was not impressed.
He posted the following tweet: "This Eastman memo pretends that it is based on mine analysis." In fact, he took snippets from my work out of context and created a completely fake web of law that no half-decent lawyer would take seriously.
Eastman's advice was rejected by the former vice president. "No wonder it couldn’t fool even Mike Pence," Tribe wrote. An angry mob of Trump supporters stormed Congress at Capitol on January 6 in an effort to stop the process moving forward. Many of them were angry at Pence.
Tribe stated in an interview with Insider that he didn't see the need to address the memo's arguments further.
He said, "Eastman's ploy doesn't merit more time."
Eastman, a senior fellow at The Claremont Institute and an influential conservative think-tank, claims that he wasn't using Tribe to support his memo. He just stated the obvious part: That elections are decided by who receives more votes in The Electoral College.
Insider asked him to clarify that the part about Pence deciding which slates are legal was not the one for which he cited Tribe.
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Business Insider has the original article.
