John Eastman: Here’s the advice I actually gave Vice President Pence on the 2020 election

I have been debating constitutional law with Erwin Chemerinsky, the dean of the UC Berkeley School of Law and Bee contributor, for over 20 years. We disagreed on almost every issue, but always with civility.

One thing I hoped we shared from our respective Catholic and Jewish faith traditions is the biblical command that one “shall not bear false witness against your neighbor.” Judging from his recent scurrilous attack on me, we do not share even that.

The memo on which Chemerinsky relied for his accusation that I tried to “overthrow the government” and “stage a coup” was a preliminary and incomplete one, a draft of a more complete memo that outlined all the scenarios that had become topics of discussion following the November 2020 election. The Washington Post and other media organizations had access to the complete memo, but they focused on the preliminary version to advance their “coup” narrative.

Neither version of the memo reflects the advice I gave to then-Vice President Mike Pence (though, to be precise, the final scenario laid out in the complete memo does).

The issue is whether the 12th Amendment gives the vice president any authority to determine the validity of electoral votes.

In 1796, Vice President John Adams made such a determination regarding contested electoral votes from Vermont, confirming his own election as president. In 1800, Vice President Thomas Jefferson did the same with improper electoral votes from Georgia, throwing that election to the House, where Jefferson eventually prevailed. Richard Nixon did the same thing in 1960, accepting from Hawaii the subsequently certified John Kennedy electors rather than the initially certified Nixon electors.

These precedents, and several scholarly articles written after the 2000 election, served as the basis for some of the scenarios discussed in my memo.

But as the New York Times confirmed through thorough investigation and reporting on this critical issue, I did not advise Pence to exercise such authority. Indeed, responding to a direct question from the vice president during a meeting in the Oval Office on Jan. 4, I noted that even if he had that authority, it would be foolish to exercise it in the absence of certifications of alternate Trump electors from the contested states’ legislatures.

Here’s how the Times accurately portrayed that exchange, apparently citing one of the two Pence aides also in attendance:

“Mr. Eastman said that Mr. Pence then turned to him and asked, ‘Do you think I have such power?’

“Mr. Eastman said he told Mr. Pence that he might have the power, but that it would be foolish for him to exercise it until state legislatures certified a new set of electors for Mr. Trump — something that had not happened.

“A person close to Mr. Pence, who was not authorized to speak publicly about the Oval Office conversation, said that Mr. Eastman acknowledged that the vice president most likely did not have that power, at which point Mr. Pence turned to Mr. Trump and said, ‘Did you hear that, Mr. President?’”

So what did I actually advise? As The Times quoted me as saying, “What we asked him (Pence) to do was delay the proceedings at the request of these state legislatures so they could look into the matter.”

Hardly an attempt to “overthrow the government” or “stage a coup.”

Whether my recommendation was justified is worthy of serious, civil discussion of the kind Chemerinsky and I used to have. I extend to him an open invitation to engage me on the subject. But truth be told, I’m not holding my breath.