The memo provides step-by-step instructions for a coup.
Written by conservative legal heavyweight John Eastman and circulated by the White House prior to January 6, it ostensibly drew a legal map for vice president Mike Pence to steal the election for Donald Trump — not defer things, not raise objections, but actually declare Trump the winner.
Now we know exactly what Trump wanted Pence to do. Now we know how close we came to effectively losing our republic – or at the very least smashing a 220-year precedent of stable, peaceful transitions of power
The memo, first mentioned in a write-up of the new book by Bob Woodward and Robert Costa, then published in its entirety by CNN (and followed by an even longer version), is an utterly chilling document of hugely historic proportions.
It is, as legal scholar Steve Vladeck put it, “horrifying.” It is, as legal scholar Asha Rangappa put it, “a sinister plan.” It is, as New York magazine’s Jonathan Chait put it, one of “a few key moments” in “the Republican Party’s long, gradual slide into authoritarianism.”
But what it isn’t, according to the New York Times, is worth writing about.
At the Times – along with several other major news outlets – editors and reporters are evidently so desensitized to the idea of a coup, so inured to what happened after the election, and so defensive about their contemporaneous reporting, that the memo merited zero coverage.
Nothing to see here, folks. Move along.
Editors at the Times evidently feel the coup attempt is behind us, dealt with, old news.
But it’s not.
The attempted coup effectively continues, most notably with the Big Lie that Trump won becoming Republican dogma and the party’s continued efforts to manipulate and, if necessary, disregard the voting process if they don’t win.
There may of course be other factors at play here, such as the famous “not invented here” syndrome. Since Washington Post reporters uncovered the memo and slipped it to CNN, the Times was faced with a choice between either chasing the story or ignoring it. It chose the latter.
It’s also a fuck-you to the constitutional lawyers and activists who have been hectoring editors at the Times and elsewhere about not taking the coup attempt seriously enough — and who saw the memo as revelatory.
The Washington Post published no news story about the memo per se, but 19 paragraphs into a Monday story about the new book, Isaac Stanley-Becker wrote about:
a two-page memo from the White House marked “PRIVILEGED AND CONFIDENTIAL.” It included a stunning claim — that Vice President Pence could hand the election to Trump because seven states had submitted dueling slates of electors to Congress, split between the incumbent and Joe Biden. Pence could simply set those states aside on Jan. 6 and count only electors from the remaining states, it claimed. “Pence then gavels President Trump as re-elected.”
That outcome was envisioned by John Eastman, the conservative legal scholar and author of the memo, titled, “January 6 scenario,” which was obtained for “Peril” and reviewed by The Washington Post.
The Post story also included a response from Eastman, who called the memo merely an exploration of options and said he didn’t actually advise Pence to act on it.
CNN’s Jamie Gangel and Jeremy Herb published the actual memo in full on Tuesday, and provided a summary:
The Eastman memo laid out a six-step plan for Pence to overturn the election for Trump, which included throwing out the results in seven states because they allegedly had competing electors. In fact, no state had actually put forward an alternate slate of electors — there were merely Trump allies claiming without any authority to be electors.
Under Eastman’s scheme, Pence would have declared Trump the winner with more Electoral College votes after the seven states were thrown out, at 232 votes to 222. Anticipating “howls” from Democrats protesting the overturning of the election, the memo proposes, Pence would instead say that no candidate had reached 270 votes in the Electoral College. That would throw the election to the House of Representatives, where each state would get one vote. Since Republicans controlled 26 state delegations, a majority could vote for Trump to win the election.
After the memo was published on Tuesday, Post reporter Philip Bump took note of it in an analysis, writing: “What’s remarkable about the memo is that it presents a plan to subvert an American election in flat, legal language… Eastman (and by extension, Trump) were arguing that Pence simply announce to the world that he was not bound either by the written law or by the will of the voters and make Trump president.”
The next day, in an analysis headlined “Somehow, we’re still learning the depths of Trump’s dishonesty,” Bump wrote that the memo, to him, had “crystallize[d] a sense of despair about the ruthless effectiveness of Donald Trump’s habitual dishonesty.”
Post opinion columnist Greg Sargent weighed in on Monday, writing that the new revelations “should prompt new urgency among Democrats.” He explained that “The fact that these ideas were considered this seriously was made possible in part by the absurd ambiguities in the Electoral Count Act.” That’s the 1887 law that governs how Congress counts electoral college votes.
On Tuesday, Sargent wrote: “We now know that Donald Trump’s scheme to steal the 2020 election was put into writing, and we can all read it. Call it the Trump coup memo.”
USA Today covered it. Even the Times’s Maggie Haberman recognized its import – albeit only on Twitter. She tweeted that the memo belied Trump’s post-1/6 insistence that “he merely wanted Pence to send the tabulations ‘back to the states’ and not to overturn the election.” By contrast, she wrote, the memo “explicitly call for Pence declaring Trump the winner.”
But nothing from the New York Times officially. And they weren’t alone. Based on my scanning, it appears the story never moved on the Associated Press wire, and never made it onto the network news, either. As one Twitter wag noted, it did make it onto CBS, but only on Stephen Colbert’s “Late Show.”
It all reminds me a little bit of the “Downing Street Memo.” That memo, which dated back to 2002, was essentially a smoking gun in which a British intelligence official asserted that George W. Bush was manipulating intelligence to build support for war with Iraq — and that he was already set on invasion long before acknowledging as much in public. The Sunday Times of London published a leaked version on May 2006. It took six weeks for the American mainstream media to touch the story, and even then, only with distaste.
Even those who don’t consider the memo worth mentioning will, at some point, hopefully agree that perhaps a coup attempt like that needs to be more soundly preempted in the future. As it happens, election law expert Rick Hasen has a paper on just that subject that he’s presenting this week at his legal conference on “Election Subversion”:
The solutions to these problems are both legal and political. Legal changes should include: (1) paper ballot, chain-of-custody, and transparency requirements, including risk-limiting audits of election results; (2) rules limiting the discretion of those who certify the votes, including Congress through reform of the Electoral Count Act; (3) rules limiting the over-politicization of election administration, especially by state legislatures; (4) increased criminal penalties imposed on those who tamper with federal elections or commit violence or intimidation of voters, elected officials, or elected candidates; and (5) rules countering disinformation about elections, particularly disinformation about when, where, and how people vote. In addition, it will be necessary to organize for political action to reenforce rule-of-law norms in elections. This means advocating for laws that deter election subversion and against laws making stolen elections easier; politically opposing would-be election administrators who embrace false claims about stolen elections; and preparing for mass, peaceful protests in the event of attempts to subvert fair election outcomes.
And writing in Election Blog, law professor Ned Foley notes that Eastman’s plan would have, after much chaos, backfired. It would have resulted in Nancy Pelosi becoming president on Jan. 20.
What worries me the most is the constitution’s amateurish inadequacy in dealing with the transfer of presidential power. Ned Foley’s column implies that a party controlling both houses of congress has the power under the constitution to determine the next president regardless of the voters. We do not have a democratic constitution, we have a system designed by and for a small club of rich white men, The Founders, and it still functions to preserve the power of their heirs.