‘Do you think I have that authority?’: Pence queried lawyer who proposed he ADJOURN electoral count

A conservative lawyer who counselled Trump about how to overturn the election result has revealed details of Mike Pence’s involvement.

John Eastman claims the former VP ‘wanted to look at’ an idea that Trump liked about adjourning a joint meeting of Congress after lawmakers gathered to count the electoral votes submitted by states.

‘He asked me point blank: do you think I have that authority,’ Eastman said, describing a scenario where Pence would act on his own authority to refuse to accept ballots. 

‘And I told him point blank, it’s an open question, but even if you had, it would be foolish to exercise it, absent legislatures certifying the alternate slate of electors.’   

The delay could have bought valuable time for state legislatures to try to push through competing slates of delegates for Trump – and provide a way for Congress to return at a later date and count electors for Trump.  

Eastman, who spoke at the ‘Stop the Steal’ rally on Jan. 6th, says he ran through a variety of options with the former President during a high-stakes Jan. 4th White House meeting, where Pence was also present.

This included discussion of a scenario where Pence could open ballots submitted by states and determine on his own authority which set was valid – even knocking out ballots sent by states that were in dispute. 

‘He was thrilled by the law review arguments that Pence could simply decide which electoral ballots count or not,’ Eastman told DailyMail.com in an interview, describing Trump’s reaction.

But Eastman said he argued – and Trump agreed – ‘that that was not what we should be doing. ‘He came around to my argument on why I didn’t think it would pass muster,’ said Eastman, who was then the dean of the Chapman University Law School.

 

Former Chapman University law professor John Eastman, next to U.S. President Donald Trump's personal lawyer Rudy Giuliani, drafted a six-point memo spelling out his beliefs about how Vice President Mike Pence could refuse to accept votes from seven states where Trump allies were claiming fraud. A later version runs through multiple scenarios. He says he advised Pence to try to adjourn Congress during a joint session to count the electoral votes

Former Chapman University law professor John Eastman, next to U.S. President Donald Trump's personal lawyer Rudy Giuliani, drafted a six-point memo spelling out his beliefs about how Vice President Mike Pence could refuse to accept votes from seven states where Trump allies were claiming fraud. A later version runs through multiple scenarios. He says he advised Pence to try to adjourn Congress during a joint session to count the electoral votes

Former Chapman University law professor John Eastman, next to U.S. President Donald Trump’s personal lawyer Rudy Giuliani, drafted a six-point memo spelling out his beliefs about how Vice President Mike Pence could refuse to accept votes from seven states where Trump allies were claiming fraud. A later version runs through multiple scenarios. He says he advised Pence to try to adjourn Congress during a joint session to count the electoral votes

Eastman says Pence did not have an especially skeptical intonation. ‘The vice president looked at me and said: “Do you think I have the authority to do any of those things,” Eastman recalled. 

Eastman says he told Pence it was the ‘weaker argument,’ but it ‘it’s not 90-10 weak. It was, you know, 60-40 weak.’

But without having states having sent up alternate electors for Trump, it would be ‘foolish to exercise it. That’s why the recommendation, the final scenario’ was ‘to simply delay things a little bit’ – he said, a reference to ending the joint session. 

The push for delay came as several states where Trump was claiming electoral fraud were seeking to undermine prior certification of votes, with some seeking special legislative sessions. 

This could have provided critical time for Trump-loyalist Republicans in multiple states to try to corral state legislatures to produce alternate slates of electors – setting off uncertain results that could ultimately have been thrown to the House. 

Eastman provided a six-page memo on election scenarios that he drafted after being contacted by a group of lawyers being organized by longtime Trump lawyer Rudy Giuliani. 

It is a counterpoint to the two-page, six-point ‘draft’ memo published in Bob Woodward and Robert Costa’s new book, Peril. 

The Woodward book quotes Trump as telling Pence: ‘You really need to listen to John. He’s a respected constitutional scholar. Hear him out’ – a characterization Eastman agreed with.   

Eastman says the two-page memo was an earlier draft version of what he ultimately compiled. He says he does not know if his longer memo ultimately made it into Trump or Pence’s hands – although he says when Pence questioned him about his ideas he met with Pence’s general counsel on January 5th, the day before Congress ultimately met to count the votes that made Joe Biden president. 

‘I was asked to give a comprehensive … war-gaming, maybe alternatives. What was the legal authority or the claims and what would be the result,’ he said.

Former President Donald Trump was 'thrilled' by legal arguments that Vice President Mike Pence could throw out votes from contested states, according to Eastman. But he was persuaded the best way forward was for Pence to try to adjourn a joint session

Former President Donald Trump was 'thrilled' by legal arguments that Vice President Mike Pence could throw out votes from contested states, according to Eastman. But he was persuaded the best way forward was for Pence to try to adjourn a joint session

Former President Donald Trump was ‘thrilled’ by legal arguments that Vice President Mike Pence could throw out votes from contested states, according to Eastman. But he was persuaded the best way forward was for Pence to try to adjourn a joint session

Eastman says he proposed having Vice President Mike Pence adjourn a joint session of Congress to allow time for states to probe election returns and send 'alternative' slates of electors. Pence asked if he had the authority to do, and Eastman met with a top Pence lawyer Jan. 5th, Eastman says

Eastman says he proposed having Vice President Mike Pence adjourn a joint session of Congress to allow time for states to probe election returns and send 'alternative' slates of electors. Pence asked if he had the authority to do, and Eastman met with a top Pence lawyer Jan. 5th, Eastman says

Eastman says he proposed having Vice President Mike Pence adjourn a joint session of Congress to allow time for states to probe election returns and send ‘alternative’ slates of electors. Pence asked if he had the authority to do, and Eastman met with a top Pence lawyer Jan. 5th, Eastman says

Several scenarios he described included a caveat that a Republican-run legislature had certified an alternate slate of electors – something numerous state Trump loyalist lawmakers had called for following state certification of the Nov. 3 election results.

He said those were ‘not as fully explained in the preliminary draft,’ which would have Pence cite ‘ongoing disputes in the 7 States’ to claim that there are in fact ‘no electors that can be deemed validly appointed in those States.’

That could have handed Trump a win by throwing the election into the House, where Republicans controlled a majority of delegations and could therefore ensure Trump prevailed.

Eastman got more than just a hearing from Trump and Pence. White House lawyers looked over his proposals.

‘Ultimately, by the next day [Jan. 5th] his staff had said that would violate [a] subsection of the Electoral Count Act and we won’t do it,’ he said.  ‘At the meeting on Jan. 4, we didn’t resolve it.’  

The president Pro Tempore of the Pennsylvania Senate, Jake Corman, for example, was claiming that his state’s votes were illegally certified – although claims by Trump-backing lawyers were thrown out of court.

Corman and Pennsylvania Republicans wrote Republican congressional leaders Jan. 4th, where they outlined a series of election ‘inconsistencies.’  

‘Due to these inconsistent and questionable activities, we believe that PA election results should not have been certified by our Secretary of State,’ they wrote, and asked them to ‘delay certification of the Electoral College to allow due process as we pursue election integrity in our Commonwealth.’ 

What Eastman wanted Pence to do was ‘suspend the counting, say look, we’ve got contested elections here, and we’ve got requests from a number of state legislatures … saying our electoral votes were illegally certified.’

A Pence spokeswoman did not provide a response to a request for comment on whether Pence asked Eastman if he had the authority to do what Eastman was suggesting. 

Eastman says he recommended the delay option at the White House meeting. He says it is the same as the final scenario Eastman outlined in the longer memo. 

It describes a situation where ‘VP Pence determines that the ongoing election challenges must conclude before ballots can be counted, and adjourns the joint session of Congress, determining that the time restrictions in the Electoral Count Act are contrary to his authority under the 12th Amendment and therefore void.’ The 130-year-old law sets out various dates for the processing and counting of electoral votes.

Eastman provided DailyMail.com with a six-page memo he says he drafted about Jan. 6 scenarios

Eastman provided DailyMail.com with a six-page memo he says he drafted about Jan. 6 scenarios

Eastman provided DailyMail.com with a six-page memo he says he drafted about Jan. 6 scenarios

It revisits fraud claims by Trump allies in states Joe Biden won

It revisits fraud claims by Trump allies in states Joe Biden won

It revisits fraud claims by Trump allies in states Joe Biden won

Eastman argued the Electoral Count Act may be unconstitutional

Eastman argued the Electoral Count Act may be unconstitutional

Eastman argued the Electoral Count Act may be unconstitutional

Some scenarios had Biden winning by the electoral vote margin submitted by the states, 306-232

Some scenarios had Biden winning by the electoral vote margin submitted by the states, 306-232

Some scenarios had Biden winning by the electoral vote margin submitted by the states, 306-232

Eastman says he ultimately pitched the idea of Pence adjourning a joint session of Congress to allow states more time to investigate and send up alternative slates of pro-Trump electors

Eastman says he ultimately pitched the idea of Pence adjourning a joint session of Congress to allow states more time to investigate and send up alternative slates of pro-Trump electors

Eastman says he ultimately pitched the idea of Pence adjourning a joint session of Congress to allow states more time to investigate and send up alternative slates of pro-Trump electors

States would then ‘order a comprehensive audit/investigation of the election returns in their states, and then determine whether the slate of electors initially certified is valid, or whether the alternative slate of electors should be certified by the legislature,’ he writes – in a scenario akin to what ultimately happened in Arizona after Biden took office. 

The longer says if fraud and illegality is deemed ‘insufficient,’ then ‘BIDEN WINS.’

But if the probe proves to the satisfaction of the legislature ‘that there was sufficient fraud and illegality to affect the results of the election, ‘the Legislature certifies the Trump electors. Upon reconvening the Joint Session of Congress, those votes are counted an TRUMP WINS.’  

For that to happen, states would have had to go into session to undo certifications already sent to Congress based county vote tallies. But it could have set up a legislative clash over rival slates of pro-Trump electors. 

Trump’s 1:00 am tweet on January 6th appears to reference this legal reasoning. ‘“If Vice President @Mike_Pence comes through for us, we will win the Presidency,’ Trump wrote. Many States want to decertify the mistake they made in certifying incorrect & even fraudulent numbers in a process NOT approved by their State Legislatures (which it must be.) Mike can send it back!”

Trump also referenced the idea at 8:17 AM.

‘States want to correct their votes, which they now know were based on irregularities and fraud, plus corrupt process never received legislative approval. All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”

Both tweets featured in the timeline referenced by Democratic managers in Trump’s second impeachment trial.

Trump also referenced the scenario in his Jan. 6th speech, which took place shortly before the Capitol riot – and repeatedly talked up Eastman’s credentials while making the case.

‘Because if Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number one, or certainly one of the top, constitutional lawyers in our country. He has the absolute right to do it. We’re supposed to protect our country, support our country, support our Constitution, and protect our constitution,’ Trump said.

‘States want to revote. The states got defrauded, They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.’

Trump continued: ‘And I actually, I just spoke to Mike. I said: “Mike, that doesn’t take courage. What takes courage is to do nothing. That takes courage.” And then we’re stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.’

In his own Jan. 6th letter, Pence wrote of his own ‘largely ceremonial role,’ and found it necessary to refute the idea that he could reject votes certified by states.

‘It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not,’ Pence wrote. 

Eastman’s draft cites a reading of the 12th Amendment by Harvard Law Professor Lawrence Tribe in a pre-election article as giving Pence necessary authority.

But Tribe, in a tweet Monday, blasted the claim. 

‘This Eastman memo pretends to be based on my analysis but in fact takes snippets of my work wholly out of context and spins a totally fake web of “law” that no halfway decent lawyer would take seriously. No wonder it couldn’t fool even Mike Pence.’

Eastman said he had been released from any attorney-client privilege constraints on describing the events. 

‘Draft memo’ 

The earlier version of the memo that Eastman describes as a draft, published by CNN, carves out a pivotal role for Pence. When counting votes from states where Trump was claiming fraud, Pence would cite ‘ongoing disputes in the 7 States’ to claim that there are in fact ‘no electors that can be deemed validly appointed in those States.’

Doing so would put Trump ahead, by 232 to 222 electoral votes. ‘Pence then gavels President Trump as re-elected,’ Eastman rights. 

In fact Biden amassed 306 electoral votes, according to the results certified by states.

The move would provoke ‘howls’ from Democrats, Eastman predicted.

‘So Pence says fine’ and sends the matter to the House, where under the 12th Amendment each state delegation would get a single vote in deciding a disputed election.

‘Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well,’ Eastman writes.

‘The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind,’ according to Eastman’s interpretation. 

Link hienalouca.com

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