On Friday, National Review reported that one of the key legal architects of Donald Trump’s effort to overturn the last election, John Eastman, now has some second thoughts. “Anybody who thinks that that’s a viable strategy is crazy,” Eastman now says of his own work product. While Eastman’s acknowledgment comes with many strings attached—he repeatedly misremembered and mischaracterized his own advice to Trump in his conversation with National Review—it is not wrong. The Eastman memo and its suggestion that Vice President Mike Pence had unilateral authority to overrule the voters and decide the election for his own side was crazy. It’s worth it, though, to fully rebut Eastman’s nonsensical theories lest they get brought back by a future would-be autocrat and cause a deeper constitutional crisis.
It’s important to understand that in the hours before the Jan. 6 insurrection, Trump’s entire effort to undo the result of the election turned on the radical theory of the vice president’s powers that was at the foundation of the Eastman memo, which falsely claimed:
There is very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes (as Adams and Jefferson did while Vice President, regarding their own election as President), and all the Members of Congress can do is watch.
Eastman’s legal position was absolutely unequivocal, without any hint of uncertainty about its conclusion:
The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter.
(For what it’s worth, both Eastman and the Claremont Institute where he is a fellow now claim that this was only a draft and that he orally advised Trump and Pence that the memo’s theory was “the weaker view.” That’s a bit like writing a memo for Julius Caesar that concluded, without qualification, that “the fact is that the Roman Constitution assigns this power to you, Caesar, as the ultimate arbiter about whether to cross the Rubicon.” And then later claiming that the day before Caesar started the Roman Civil War, you had told him that actually it was the weaker view and he shouldn’t do it.)
This extreme theory of the vice president’s powers—the unilateral rejection power theory—is morally dangerous and legally incorrect. The former is obvious to anyone who believes in constitutional democracy and the rule of law. The latter should be obvious to anyone with a passing familiarity with the basic legal and political premises of the Constitution of the United States.
Yet the tragic truth is that all that was obvious before the 2020 election too, and that wasn’t enough to prevent the theory from capturing the imagination of powerful political figures and a public movement behind them. The rioters who were chanting “Hang Mike Pence” on Jan. 6 weren’t concerned with the intricacies of the Electoral Count Act. They violently stormed the Capitol because they were in the grips of the delusion that Pence had constitutional authority to hand the election to Trump and he refused to do it.
Many commentators reacted to the Eastman memo with shock at its audaciously anti-democratic claims. They were right: The Constitution does not establish such an absurd, almost monarchical system. But that reductio ad absurdum argument is not enough when millions of people have already accepted the absurdity.
As a result, with an eye toward future Jan. 6s, it is critical to establish exactly why the unilateral rejection power theory is legally mistaken. As I explain in a new essay, mistaken it is—every major tool of constitutional interpretation that we have tells us so.
Text: The only reason that this theory ever arose in the first place is that the critical phrase in the 12th Amendment is written in the passive voice: “The President of the Senate [i.e., the vice president] shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted” (emphasis mine). The obvious question is, who does the counting?
The text doesn’t explicitly say. But context suggests someone other than the president of the Senate does the counting. After all, its drafters could simply have written “The President of the Senate shall open the certificates and shall then count the votes.” But it doesn’t say that. As Justice Antonin Scalia and legal lexicographer Bryan Garner explained, “a material variation in terms suggests a variation in meaning.” Here, the variation in tense indicates that the vice president opens the certificates but doesn’t do the counting.
A mundane example may make this conclusion even clearer. When I was a kid, my parents had me do chores. They never told me, “Do the dishes, and the trash shall then be taken out.” They said, “Do the dishes and take out the trash.” The reason they used the natural sentence structure was because it makes clear that I—and not someone else, like my brother—was responsible for both chores.
Historical practice: That critical sentence in the 12th Amendment (ratified in 1804) used the exact same words that Article II, Section 1, Clause 3 of the original Constitution (ratified in 1788) used. During the 16 years in between, four presidential elections took place under the constitutional framework established by the unamended Article II. In those four counts of the electoral votes, its drafters showed us what they meant by that critical sentence, which remained in both versions: that Congress, not the vice president, counts electoral votes.
The Eastman memorandum misleadingly relies on a law review article by law professors Bruce Ackerman and David Fontana to claim that there is “historical precedent” for the unilateral rejection power theory because “[John] Adams and [Thomas] Jefferson did while Vice President, regarding their own election as President.”
The Eastman memorandum’s constitutional claim relies on a stark misreading of history. Neither Adams nor Jefferson ever asserted unilateral power to resolve disputes about counting the electoral votes, and no one in Congress or anywhere else acquiesced to any assertion of that power.
Vice President John Adams presided over the electoral count in 1797 that he himself won by a single electoral vote over Jefferson. Before the count, newspapers reported rumors that Vermont’s critical four electors were appointed in violation of state law. The rumors were meritless—the 18th century equivalent of fake news.
But the rumors put Adams in an awkward position, because Vermont’s electors voted for Adams and were essential to his victory. Jefferson, to his immense credit, told his ally James Madison that his supporters should not dispute the Vermont electors:
Surely in so great a case, substance and not form should prevail. … I pray you to declare it on every occasion … in favor of the choice of the people substantially expressed, and to prevent the phaenomenon of a Pseudo-president at so early a day.
On the day of the count, Congress took the lead. Two “tellers” (members of Congress appointed by the two chambers to act on their behalf) “made a list of the votes as they shall be declared.” After the tellers “reported the result” to Adams, Adams announced the vote totals and sat down for a moment. Not one member of Congress objected.
Adams rose again and said, “In obedience to the Constitution and law of the United States, and to the commands of both houses of Congress, expressed in their resolution passed in the present session, I declare that” he himself had won. He didn’t overrule Congress; no one objected because everyone agreed on the outcome. And Adams announced the result “in obedience … to the commands of both houses of Congress.”
Four years later, Jefferson won a rematch over Adams. Technically, Jefferson tied with his vice presidential candidate Aaron Burr for the most electoral votes due to the quirky rules of the original Electoral College. Because of the tie, the House ultimately decided the election for Jefferson over Burr.
There was once again a complication, though, this time with Georgia’s electoral votes. No one alleged that Georgia’s votes were cast for anyone but Jefferson and Burr. But, as Ackerman and Fontana discovered in archival research, its electors’ certificate had a few technical mistakes. Due to the convoluted rules of the original Electoral College, without Georgia’s electoral votes, the runoff in the House would have included the Federalists Adams and his running mate Thomas Pinckney along with the Democratic-Republicans Jefferson and Burr.
Critically, the Federalists controlled the House. So if Georgia’s votes were out, and the Federalist candidates were back in, the House probably would have picked a Federalist president instead of Jefferson.
On the day of the count, Congress once again took the lead. The tellers, two Federalists and one Democratic-Republican, apparently noticed the technicalities but nonetheless reported Georgia’s electoral votes as “the true votes.” Jefferson announced the result that he and Burr had tied for the lead, which resulted in Adams and Pinckney being excluded from the runoff in the House. Come Inauguration Day, Jefferson took office without controversy.
Imagine that Vice President Mike Pence had ultimately decided to attempt to reject the electoral votes from enough states to throw the election to Trump. And imagine, in the aftermath of what many commentators today characterize as an attempted “coup,” not one member of the opposition political party and not one member of the press even bothered to mention it. It simply beggars belief.
The silence in the aftermath of the count of the electoral votes of the 1800 election is deafening, and it cannot be reconciled with the notion that Jefferson asserted constitutional authority to decide a contentious question of whether to count Georgia’s electoral votes at a moment when the dynamic between the political parties was as vitriolic as at any time in American history. The unilateral rejection power theory’s reading of the history requires us to believe that the Federalists let Jefferson blatantly steal the election and in response they meekly said nothing.
The only reasonable interpretation of the history of the electoral counts in 1796 and 1800 is that there were simply no disputes to resolve. Neither Adams nor Jefferson ever asserted the constitutional power to overrule Congress, because Congress agreed on the outcome. The Eastman memorandum relies on a mythical historical precedent that never happened.
Drafting history of the 12th Amendment: The fiasco of the Jefferson-Burr runoff convinced many in Congress that the Electoral College needed fixing. That fix came in 1804 with the ratification of the 12th Amendment. But the 12th Amendment left the critical sentence untouched.
Congress’ actions in the years preceding the 12th Amendment’s ratification tell us volumes about its meaning. In 1800, both chambers of Congress passed versions of the “Grand Committee bill.” The bill would have established a committee composed of members of Congress and the chief justice of the United States to resolve disputes about electoral votes.
The House and Senate couldn’t agree on the details, so it didn’t become law. Usually, legal scholars can’t conclude much from a bill that didn’t become law. This is a rare but powerful exception.
Just before the 12th Amendment was introduced in Congress, both chambers passed slightly different versions of a bill that unequivocally asserted Congress’ power under the original Constitution to resolve disputes about electoral votes. Then a few years later, the 12th Amendment used the exact same words as the original Constitution. Congress could have changed the wording if it wanted to change the meaning. It chose not to, and in light of the Grand Committee bill debates, that was no mere oversight. Whatever Congress understood that critical sentence to mean in the original Constitution, it meant the exact same thing in the 12th Amendment.
Congress’ understanding was clear. The critical sentence—passive voice and all—had a settled meaning that Congress, and not the vice president, had constitutional power to count and to resolve disputes about electoral votes. The 12th Amendment incorporates that settled understanding. More than 200 years later, the settled meaning in 1804 settles the question now: The Eastman memorandum’s unilateral rejection power theory is just plain wrong.
None of this should be remotely surprising. The basic principles of American constitutional democracy demand it. James Madison, the architect of the Constitution, explained in the Federalist Papers that self-government is at the core of the system he designed because a “dependence on the people is, no doubt, the primary control on the government.” Without the democratic check of an election whose result is fairly and independently determined, that primary guarantee of liberty would be eviscerated.
And as Madison wrote later in the same essay: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” The founding generation fought the Revolutionary War to overthrow a monarchy and to create a representative democracy, not to establish an executive branch that could entrench itself indefinitely by deciding the results of its own reelection.
The answer to the constitutional question is clear. The text of the 12th Amendment, historical practice in the early republic, the drafting history of the 12th Amendment, and the basic principles of American democracy all demonstrate that the unilateral rejection power theory is, without a doubt, legally incorrect. It is shocking that such an absurdly anti-democratic theory ever rose to political prominence. The survival of the United States as a constitutional democracy requires that we decisively reject it forever.