Jurisprudence

No, Constitutional Scholars Are Not “50/50” in Agreement With Donald Trump About Jan. 6

Mike Pence wears a mask and adjusts his tie as he presides over a joint session of Congress on January 6
It’s not “50/50” among constitutional scholars that Pence could have overturned the election, nor is it “common sense” that he should have been killed. Erin Schaff/Getty Images

Donald J. Trump, constitutional scholar, has entered the chat. In a remarkable interview with Jon Karl published by Axios on Friday, Trump defended the Jan. 6 rioters chanting “Hang Mike Pence” on the grounds that “it’s common sense” that Pence should have overturned the Electoral College count.*

Beneath the horrifying justification of political violence—the attempted assassination of the sitting vice president—there is a rotten foundation of truly terrible legal analysis. As I’ve explained in Slate and in scholarship, the vice president has no constitutional authority to reject electoral votes he doesn’t like. In the interview, Trump claimed that “50/50, it’s right down the middle for the top constitutional scholars when I speak to them” on the vice president’s authority to unilaterally throw out election results. He’s wrong—at least if “constitutional scholars” means people who have read and understand the Constitution.

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Who are these “constitutional scholars” feeding Trump this radical view? Johnny McEntee, a 31-year-old former college football player with no legal training, sent a “memo” by text message to Marc Short, Pence’s chief of staff, claiming that “Jefferson Used His Position as VP to Win” the presidency by manipulating the electoral count and so Pence could as well.* (As I’ve explained, Jefferson did no such thing.) Rudy Giuliani, whose law license has been suspended to “protect the public,” falsely told Trump that there “is no question, none at all, that the VP can do this. That’s a fact. The Constitution gives him the authority not to certify. It goes back to the state legislatures.” And of course John Eastman, whose memo baldly asserted that “the fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter.”

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Even Eastman has backtracked a bit, admitting that his memo was “crazy” for suggesting the plan that Pence simply reject electoral votes. Instead, he says, his real plan was for Pence to halt the count to “send it back to the states.” In Eastman’s view, this approach was at least a modicum more reasonable, because all the delay would do is give states time to look into allegations of voting irregularities. And who cares about the federal law that prohibits it:

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Eastman said that [the Jan. 6 delay] prompted him to email Jacob to say that Pence should not certify the election because he had already violated the Electoral College Act, which Pence had cited as a reason that he could not send the electors back to the states.

“My point was they had already violated the electoral count act by allowing debate to extend past the allotted two hours, and by not reconvening ‘immediately’ in joint session after the vote in the objection,” Eastman told The Post. “It seemed that had already set the precedent that it was not an impediment.”

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This is, frankly, nuts. Eastman’s idea is that because a violent mob stormed the Capitol, physically preventing Congress from sticking to the law’s two-hour time limit in the most brutally literal way, Pence could ignore the law entirely going forward. Imagine you got stuck in a traffic jam on your way to mail your tax return by the legal deadline. Even if the IRS forgave the delay, it would be decidedly unimpressed if you cited it as “precedent” for you never having to pay your taxes again.

Eastman’s view, which is really the principal constitutional scholar viewpoint Trump has clung to, was not only nonsensical. He had no idea what he was talking about and looked only so far as it took to find the legal conclusion he wanted, regardless whether it was right.

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I know this firsthand. In late September, shortly after Eastman’s memo became public, Harvard law professor Lawrence Lessig and I debated him on its legal merits. I wasn’t interested in Eastman’s rehashing of thoroughly debunked allegations of voting improprieties. I wanted to push him on why he advised Pence to assert such a stunningly anti-democratic power. Especially when “sending it back to the states” would plainly have violated federal law.

The elections clause of Article II of the Constitution provides that “Congress may determine the time of choosing the electors.” Congress has exercised that unambiguous power by requiring that “the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November,” Election Day. And Congress created only an extremely narrow exception, permitting states to appoint electors later only if it “failed to make a choice on the prescribed day.”

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Sending the electoral vote count back to the state legislatures to undo the decision of the voters made on Election Day would have been a blatant constitutional violation. The “failed to make a choice” exception might sound broad. But as election law scholar Michael Morley has explained, its history in the Presidential Election Day Act of 1845 shows that it applies only if state law requires a runoff to get a majority winner, like the Georgia Senate races earlier this year, or possibly if a natural disaster interferes with Election Day.

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But Eastman was completely ignorant of all that. When I pressed him on why he thought Pence could delay the count for states to appoint new “alternative” slates of electors, it was clear he was hearing the history for the first time and he was spitballing a new theory on the fly. If I were to write a memo to the vice president recommending that he assert the unprecedented power to halt the counting of electoral votes over the objections of Congress, I would have spent more than a few days over Christmas looking into it. The fate of American democracy requires a bit more rigor than that.

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Between Eastman’s insane, off-the-cuff legal theories and Trump’s delusions about the state of constitutional scholarship, what is going on here? Why would anyone assert these crazy ideas? And why would anyone believe them?

These are legal conspiracy theories. They arise from the same dark place that leads people to believe that millions of fraudulent votes were cast by dead people or noncitizens. Or that the deceased Venezuelan President Hugo Chavez rigged electronic voting machines. Or that Italian military satellites changed votes from Biden to Trump.

If Trump and his enablers believe these unbelievable lies about election fraud, it’s pure motivated reasoning. If they believe them, it is only because they want them to be true. For Trump, sunk deep in a bottomless ocean of narcissism, it saves him from confronting the fact that he lost the election by millions of votes.

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The new twist is that the conspiratorial mindset has metastasized from delusions about facts to delusions about the law. America has a vast history of legal conspiracy theories. The IRS has a website debunking dozens of “theories” about why individuals don’t have to pay income taxes, including the ridiculous notions that the income tax violates the 13th Amendment prohibition on slavery and involuntary servitude and that the 16th Amendment was never validly ratified. A defendant in the Jan. 6 cases claims to be a “sovereign citizen” not subject to federal law. Some self-appointed sovereign citizens believe that only admiralty law applies to them, because the flags in the courtrooms have gold tassels like Navy flags. MyPillow CEO Mike Lindell has repeatedly claimed that Trump would somehow be “reinstated” to the presidency this year despite the utter absence of any constitutional provision permitting it, and apparently Trump believes it.

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This road leads to dangerous places. As harrowing as the last year has been, the nation’s legal institutions strained but did not break in preventing those currents from taking over to prevent the (not quite peaceful) transition of power. Courts ruled against Trump’s wild voter fraud allegations. Congress counted the valid electoral votes. President Joe Biden was sworn in on Jan. 20, just as the Constitution prescribes.

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But legal conspiracy theories, once they take hold beyond the fringes because they are shouted by a former president and his advisers, threaten to sweep those guardrails away. Pathological detachment from truth by leaders, about the facts and about the law, is acid eroding the foundations of our legal and political systems.

And legal conspiracy theories, amplified by social media into misinformation that reaches millions of people, create incendiary conditions for political violence. The rioters wanted to hang Mike Pence because the president told them the lie that the law was on their side.

Correction, Nov. 12, 2021: This piece originally misspelled Jon Karl’s last name and misidentified Gregory Jacob as Pence’s chief of staff. Marc Short was Pence’s chief of staff in January 2021.

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