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Pro-Trump Lawyer’s memo Begins With a Lie, Then Descends into Madness.



The two-page memo from John Eastman, disclosed in the brand new book by Bob Woodward and Robert Costa, begins with a lie and then descends into madness.

Eastman is a lawyer who caused former president Donald Trump’s legal team to overthrow democracy and make an effort to steal the 2022 election.

First, the lie: “7 states have transmitted dual slates of Electors to the President of the Senate.” What seven states? What are “dual slates of electors”? How were they purportedly “transmitted” to the Senate? This is all, needless to say, nonsense. Each state certified one, and only one, slate of presidential electors based on the 2022 election results.

The Eastman memo proceeds from this foundational lie to create a wild legal fantasy; the message is a perfect encapsulation of Trump’s overarching strategy to steal the 2020 election. Eastman casually adopts as true a bold legal fiction that “[t]here is the quite solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, like the resolution of disputed electoral votes … and most of the Members of Congress can do is watch.” That’s simply wrong as a matter of law and history. Thankfully, the President of the Senate, then-Vice President Mike Pence, recognized this and refused to override the votes cast by the disputed states unilaterally.

Eastman proceeds to formulate a purposefully deceptive strategy. He suggests Pence should announce the outcomes in the states alphabetically but should “defer decision” on Arizona and the other six states that Trump is attempting to steal before the very end of the count.

Eastman suggests that Pence reject the vote counts from those seven states when this occurs. Then, according to Eastman, comes the dramatic climax: “Pence then gavels Trump as re-elected.”

This suggestion is as wrong-headed since it is audacious. No person – not the vice president or anybody else – can “gavel” anybody as the President of the United States. That’s the stuff of dictatorship. However, that seems to be precisely what Eastman aims for in his memo.

Eastman dismissively predicts “[h]owls, needless to say, from Democrats…” He’s only partially correct here; without a doubt, there would have been “howls,” but likely from many conscientious Republicans and Democrats alike. Republican members of Congress, including Senators Mike Lee and Lindsey Graham – both reliable Trump loyalists – rightly ridiculed and rejected Eastman’s proposed plan and other variations of it, according to Woodward and Costa, authors of “Peril.”

Eastman closes the memo by noting that Vice President Pence should enact his plan, but “Pence should do this without asking for permission – either from a vote of a joint session or from the Court.” That is a sure sign Eastman knows his scheme is outrageous and illegal. He proposes only to ram it through and make the other side fight after the fact to undo the damage.

Eastman now claims that his memo merely “explored all options that had been proposed.” But that’s revisionism. In the message, Eastman doesn’t simply “explore” or meditate on theoretical or academic possibilities. He specifically argues that Pence “should” carry out the plan, as proposed, and he offers strategic advice on how best to spring the scheme as a lure on unsuspecting members of Congress (by holding the seven states until last and by starting the plot first “without asking for permission”).

Eastman is both a lawyer and a senior fellow at a study institute. He’s also a disgrace to the profession. At the same time, his memo is rife with falsehoods, childlike in its reasoning, and deadly dangerous in its proposed application.

Eastman needs to handle consequences. State licensing authorities should review his fitness for practicing law. Congress must demand answers, issuing a subpoena to compel Eastman to testify if necessary. And the Justice Department must, at a minimum, open a criminal investigation to find out whether Eastman’s proposed actions constituted conspiracy to violate federal election laws.

If nobody takes action, Eastman will fade into memory as just another unhinged conspiracy theorist who proposed dangerous abuses of power to serve Trump’s whims and then walked away unscathed.

Now, your questions:

David (North Carolina): Regarding Roe v. Wade, doesn’t established federal law from the Supreme Court supersede any conflicting state law?

That’s precisely how things are designed to work. However, the Supreme Court earlier this month declined to issue an emergency stay (a pause, essentially) on a Texas state law called “SB-8,” which makes it virtually impossible for a woman to get an abortion in Texas – squarely contradictory to Roe v. Wade.

The five-justice majority noted that, while they expressed no view on the constitutionality of the Texas law, they’d not issue a stay because regulations posed complex procedural conditions that could pose an obstacle to future legal challenges.

The Justice Department has now filed an immediate legal challenge to the Texas law, arguing that it operates in “open defiance” of Roe v. Wade. While the Texas case winds through the federal courts over the coming months, keep an eye on a different restrictive state law out of Mississippi. The Supreme Court will hear and rule on this case in the upcoming term, with an oral argument set for December and a determination likely in the spring or summer of 2022. The Mississippi case has been positioned by advocates as an immediate challenge to Roe v. Wade and could provide the court a chance to overrule its longstanding precedent.

Gregory (Indiana): How much jeopardy is DACA in, given that it was created by executive action and not by Congressional legislation?

Once more, the Deferred Action for Childhood Arrivals program, adopted through executive action by then-President Barack Obama in 2012 to supply a reprieve from deportation for “Dreamers” who found their way to the United States as children, is in legal jeopardy. A year ago, the US Supreme Court rejected the Trump administration’s try to rescind DACA, ruling that the administration had not followed proper administrative procedures. However, a federal judge has ruled that DACA is unconstitutional on the merits because it was enacted by presidential decree without Congressional authorization. The Biden administration has appealed that ruling to the federal Fifth Circuit Court of Appeals. That court’s ruling likely will settle the issue unless the Supreme Court decides to take the case and rule on the merits once and for all.

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