The answers to these questions are unsettling. But they also point toward a way we can protect ourselves from the worst. Will Congress act?
The emails from lawyer John Eastman show him urging GOP state legislators in Pennsylvania to cast doubt on 2020 vote totals, to create cover to certify a slate of presidential electors for Trump. Politico reported on the emails, which the Jan. 6 select committee obtained from the University of Colorado, where Eastman worked at the time.
The key revelation: Eastman’s scheme had an additional layer to it. We already knew his plan centered on urging Trump’s vice president to abuse his role in the congressional count of electors to subvert the election’s conclusion.
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Now, in these new emails, Eastman is seen devising a pretext for state legislatures to invalidate Joe Biden’s electors and certify sham Trump electors. He advises a Pennsylvania legislator to use a complex formula — based on treating mailed-in ballots as illegitimate — to extrapolate that enough Biden votes are invalid to show Trump won the popular vote.
Then, having done that math, you’d be left with a significant Trump lead that would bolster the argument for the Legislature adopting a slate of Trump electors — perfectly within your authority to do anyway, but now bolstered by the untainted popular vote. That would help provide some cover.
Eastman advises the legislator to argue that Biden electors certified by the governor are thus “null and void.”
This is extraordinary stuff. Eastman advised that a state legislature should concoct a fig leaf justification for declaring the correct Biden electors certified by the governor invalid and certifying Trump electors instead.
First note that Trump himself also did something like this. When Trump pressured the Georgia secretary of state to “find” votes to make him the winner, this was designed to create a similar pretext for replacing Biden electors with Trump ones.
“Eastman wasn’t doing anything that Trump wasn’t doing himself,” Rep. Jamie Raskin (D-Md.), a member of the Jan. 6 committee, told me. “They were both trying to get officials in the electoral process to substitute a counterfeit for the actual vote totals.”
“Eastman was seeking to implant a new mathematical calculation contrived to produce a Trump win in Pennsylvania,” Raskin said.
These Eastman emails show that manipulating vote totals to create “cover” for state legislatures to appoint sham Trump electors was more central to the scheme than we knew.
Whether this creates more exposure for Eastman and others remains to be seen. But this also has other important implications: It reveals with more clarity an avenue by which nefarious actors might seek to subvert a future election.
Note that Eastman says, almost as an aside, that state legislators have the “authority” to appoint new electors even if the popular vote totals don’t justify it.
“Eastman’s view is that the legislature has absolute power in terms of picking presidential electors,” elections expert Richard L. Hasen told me, even if that means “ignoring the will of the voters” or “the legislature’s prior rules on how to pick those electors.”
In the future, Hasen notes, bad actors might see this as “a path to steal an election.”
There’s more: Right now many Republicans in thrall to Trump’s 2020 lies are running for positions of control over election machinery at the state level, including secretary of state positions.
Crucially, such people would be in a position to create exactly the pretext that Eastman envisioned. How? By using official stature to cast doubt on popular vote outcomes, manufacturing “cover” for a state legislature and/or governor to certify fake electors for a losing candidate. A GOP-controlled House could then count those electors and flip a state or even an election.
Eastman has laid out the blueprint. “This shows the country one more strategic booby trap that was improvised by Trump’s team that can sit there for use by bad-faith actors in future elections,” Raskin told me.
Such a scenario might appear unlikely right now. Nonetheless, all this underscores the dire need to reform the Electoral Count Act of 1887 to minimize the risks of such a thing being attempted.
Done properly, reform could help thwart a rerun of exactly the scheme Eastman developed. It could create a requirement that if a state-level attempt is made to certify sham electors, Congress must count only the slate that the courts deem the legitimate one.
“Congress absolutely must reform the ECA to clarify that no state officials — not governors, not state secretaries of state, and not state legislators — can manipulate which electoral votes it will count,” legal scholar Matthew Seligman, an expert on the ECA, told me.
“The only way to do that is to require that Congress follow courts’ decisions about which electors are valid,” Seligman said.
If Congress doesn’t act, that would mean relying on the virtue of individual actors in the right places to thwart such a scheme. But given all we’ve seen since Jan. 6, institutional reforms seem like a far safer bet, wouldn’t you say?