The lawyer behind the Trump coup memo unmasks the absurdity of the coverup

The lawyer behind the Trump coup memo unmasks the absurdity of the coverup

John Eastman in 2017. (Susan Walsh/AP)

By Greg Sargent

Columnist

Today at 11:06 a.m. EST

This is ridiculous on its face. Members of the committee have repeatedly said their work may inform efforts to reform the congressional process of counting presidential electors, which Trump sought to exploit. There are other obvious potential legislative purposes as well.

But this argument has grown even more absurd now that it’s being advanced by the lawyer who may have been most directly involved in plotting how Trump could overturn his 2020 election loss.

We’re talking about John Eastman, who wrote that now-notorious memo advising Trump’s vice president, Mike Pence, to refuse to count Joe Biden’s electors from numerous states, to tip the election to Trump.

Eastman has just sued the Jan. 6 committee and Verizon over the committee’s subpoena of his phone records, which the committee is seeking to shed further light on the plot to overturn the election. The lawsuit asks the court to block the subpoena.

Underlying this dispute is something larger than this particular lawsuit’s legal complexities, and larger than the battle between the committee and Trump’s co-conspirators. What’s really at stake is whether this effort to overturn U.S. democracy through extraordinary corruption and then mob violence merits a political and policy response of any kind.

The answer to this question from Trumpworld, and indeed from many congressional Republicans, is essentially, “No.”

Eastman’s lawsuit captures the absurdity of this. One of its leading arguments is that the committee is “attempting to exercise a law enforcement function, rather than genuine legislative activity.”

To make this case, the lawsuit relies on public quotes from committee members, none of which meaningfully supports that broad conclusion. What’s more important here is the suit’s claim that the committee is not pursuing “valid legislative activity” and that its subpoena lacks a “legitimate legislative purpose."

In fact, there may be no human being alive who underscores the committee’s legislative purpose more clearly than Eastman does.

Eastman is a living, breathing argument for reform of the Electoral Count Act (ECA) of 1887, which governs how Congress counts electors appointed by states. That’s because Eastman was a key architect of the scheme to exploit holes in the ECA to subvert the outcome.

Eastman argued that Pence effectively had the unilateral power to count electoral votes and thus could refuse to count Biden’s electors. Eastman also argued that by doing this, Pence could delay the election’s conclusion, allowing compliant GOP legislatures in swing states time to conclude that Trump actually won in them and then send alternate electors.

On Dec. 13, Rep. Liz Cheney (R-Wyo.) detailed a series of text messages Mark Meadows received on Jan. 6 from Donald Trump Jr. and Fox News host Laura Ingraham. (AP)

We’ve now learned from former White House chief of staff Mark Meadows’s texts that this plot, in its various iterations, was more elaborate and involved more actors than we knew.

Of course, the argument is nonsense. The vice president doesn’t actually have that power. And there was no legitimate basis for states to send alternate electors.

But that aside, the critical point here is that the ECA could be revised to make such a scheme even less likely to succeed, or even to be attempted at all, in the future.

For instance, the ECA could be reformed to clarify that states cannot appoint alternate slates of electors in the aftermath of the election based on vaguely supported — or entirely baseless — claims of voter fraud, a clarification that’s clearly within Congress’s power. ECA reform could also make it even clearer that the vice president’s role in counting electors is purely ceremonial.

Legal scholar Matthew A. Seligman, who has done extensive research into the ECA’s history, notes that Eastman’s blueprint itself constitutes reasons to pursue these legislative reforms. Seligman told me: “The committee’s subpoena has a clear legislative purpose.”

Seligman noted that Eastman’s scheme turned on “exploiting the ambiguities and vulnerabilities” in the ECA. Strengthening the ECA’s “legal framework” will likely be a key committee recommendation, Seligman continued, which “plainly falls within its legislative powers.”

This legislative purpose is served by seeking Eastman’s phone records as well, Seligman said. He noted that determining how Eastman tried to operationalize this plot could shed light on how the ECA’s ambiguities invited that scheme.

“If Congress wants to pass a law to prevent the plot from succeeding in 2024, it needs to know precisely how it almost happened in 2020,” Seligman told me.

Beyond this, there are many other ECA revisions that Congress might pursue to foreclose other avenues Trump tried to exploit, such as making it harder for Congress to object to or invalidate electors. Those also illustrate the committee’s obvious legitimate legislative purpose.

Other Trump co-conspirators, such as Meadows, have also argued that the committee lacks a valid legislative purpose. Trump himself has argued this.

But the idea that Eastman, of all people, would attempt this argument is particularly ludicrous. He arguably illustrates the need for legislative reform as clearly as you could possibly want.

At this point, Trumpworld has been reduced to effectively arguing that the committee’s goal of developing a political and policy response to an effort to overturn and destroy our political order is itself illegitimate. The coverup has devolved into an assertion that we should respond to those extraordinary events by doing nothing along those lines at all.