Discussing The John Eastman Memo with John Eastman

This podcast is part of the Democracy Group. This is Larry Lessig. This is a special episode of the podcast Another Way following up on the series we had during the fall of 2020, when we worked through all the possible games that might be played in the 2020 election to reverse the election from the results of the popular and Electoral College vote. This episode follows the release of two memos by John Eastman, who was a lawyer representing President Trump and advising the President and the Vice president about the vice President's power in the context of the vote on January 6 for for counting the Electoral College votes. In the memo, John Eastman describes scenarios that would lead to the election of Joe Biden and the election of Donald Trump. And in this conversation, Matt Seligman, who was a co host of the series last fall and I will work through this memo with John Eastman to determine whether indeed there's a reason to doubt the ultimate choice there the Senate and the House made Now I have some history with John Eastman. He was one of my first students at the University of Chicago, also I think the only student I've had who's slightly older than I am and he was an extraordinary student and I would have considered him a friend back then. And though I've not had much interaction with him since, I have admired the career that he has had leading him to become both a professor, a tenured professor at Chapman University School of Law, and he was dean at Chapman University School of Law. He is a twice failed candidate for public office, not that I hold that against him because I've known people who failed in their runs for office, and he's been a significant focus of legal attention on on the question of the President's power and the power to elect presidents as executed or articulated in Article 2 and the 12th Amendment to the Constitution. His memos have taken on a life of their own after being reported after the release of Bob Woodward's latest book, Peril. And this opportunity to unpack them, we hope helps in the cause of understanding this election. I also hope it helps in another cause too. It's extremely hard for people right now to talk to each other when they have such radically different views about the way the world is or should be or works and especially around this last election, both the election and the challenges to the election, and then the events of January 6th. So as much as trying to unpack this memo, I wanted to try to have this conversation to see whether it was possible to have a conversation that was not cable show talking over each other or screaming at each other, but an effort to understand what the argument is. Stay tuned and you'll see whether indeed we succeeded. John Eastman, great to see you again. You're here on a podcast which is really a continuation of a 10 part series that we did way back in the fall in a podcast, working through all these issues. So it was a little bit like coming back from the dead to see the memo surface. We're with Matt Seligman and Matt was a co host of that special series of the podcast. Matt, why don't you say hi.

Hi. Good to be back and addressing important issues once again.

And John, welcome. So we're going to talk about this memo, which we've seen two versions of. One was a very short version, but I hope we can talk about the longer version about what was supposed to happen on January 6th. Can you help us just understand a little bit about the context of the memo? I mean, you obviously wrote it, but you wrote it in the context of conversations, I guess, with people who are trying to decide what exactly would happen. What about that story? Can you tell and would you like us to understand?

Sure. And although I did have a client in this, the client, the former President of the United States, has authorized me to talk about these things. I want to make that clear up front. Look, we begin with a premise that there was a number of actions taken in some of the key states by non legislative officials, whether state courts or county clerks or the secretaries of state that were contrary to existing state law. And in our view, my view, that violated Article 2 of the Federal Constitution because that article gives the legislatures the plenary power to determine the manner for choosing presidential electors. And so the initial draft of the memo had that as the backdrop. But it wasn't spelled out in the memo. That was just a preliminary version, just done quickly over Christmas Day or Christmas Eve, I think. But the full version of the memo, and by the way, the latest controversy all swirls around the preliminary version because it's cited in a book by Bob Woodward and Robert Costa. They had the full version. I had given it to them, but they apparently chose not to acknowledge its existence, which tells you a lot. The full version lays out in part one, you know, the various illegal action that had been taken that may well have called into question the validity of the certified electors, the Biden electors. And then it sets out, if we take that as the premise, that there was illegal activity here that, for example, got rid of checks on fraudulent voting, such as signature verification, that changed deadlines, that barred people from objecting, that barred people from access to observation all of those things. What would be the results? Is there any constitutional mechanism to deal with those illegalities? And then it spells out both the historically grounded argument, which by the way, I happen to think is the weaker argument, though it remains an open question on whether the Vice president under the 12th amendment has the sole authority to determine the validity of electors. That issue becomes most poignant when there are two slates of electors that are transmitted to the, to the Congress, such as happened in 1960 from Hawaii. You had the Nixon electors who had been properly certified as the winner of the election, and then they met and cast their votes on the designated day in December. But you also had the alternate Kennedy electors meet that same day just on their own and cast their votes. And it was their certification that the governor, the newly elected governor, Democratic Governor of the state, decided to certify as well and transmit quickly to Congress to be there on the morning of the joint session of Congress so that they could be counted instead. And at some point, when you've got two competing slate of electors, somebody has to make the decision on which to count. And the 12th Amendment, it has been argued in a number of law review articles, and I think there's historical precedent and legal authority for this, that the Vice President is the only one with an active role under that amendment and therefore has to make that decision. The Electoral Count act, however, puts that decision making power into the joint session of Congress, acting separately in their own branches, a mechanism that the 12th Amendment doesn't recognize. Many scholars, at least until the hyper partisan scenarios in which we find ourselves today, had thought that those provisions of the Electoral Count act were very likely unconstitutional. Nevertheless, they were there. And then I took that as the premise on what could be done and I lay out all of the different scenarios. And I think ultimately, if you look at the Fuller memo, there are 4, 5, 6, 7, 8, 99 different scenarios spelled out, citing the various statutory or constitutional authority for each one of them and then outlining what happen under each scenario.

So that's an extremely careful and helpful introduction, but I want to just work through this a little bit piece by piece so that everybody's on the same page. Your memo begins with the allegation of the, as you put it, the illegal conduct by election officials. And of course, you assert in the memo that you don't believe the Electoral Count act is constitutional, but let's just make sure everybody understands where we are with the Electoral Count Act. So the Electoral Count act was enacted by Congress after a very hotly contested presidential election. In the late part of the 19th century, the electoral Count act purports to govern the method by which Congress will count the electoral vote. If the Electoral Count act is constitutional, what it says is if a state has a procedure for resolving contests about its election, and if those contests are over six days before the Electoral College votes, if there's only one slate presented to Congress from a state, and if there's no allegation that the vote of the electors, not the vote of the people, but the vote of the electors was not, quote, regularly given, then what the Electoral Count act is, is a promise by Congress to count the votes that were presented by the states to Congress. Now, are we at least, can we at least agree that if the Electoral Count act is constitutional, then all the arguments about the fraud or the problems in procedure or whatever else happened in the state are just literally legally irrelevant to the question of what the count of the vote is?

I disagree with that. The Electoral Count act requires that the votes be regularly given, which, and then give the votes of the electors, and

those are the people or the electoral college.

The electoral votes, in my view, are not regularly given if they're based on fraudulent certification of the election. And the Electoral Count act further says that the two houses acting separately can concurrently decide whether they are regularly given or not. So there are several pieces there. The fact that the electoral vote in the process in the state has met the so called safe harbor provision and is presumptively to be counted, there is this caveat in the Electoral Count act itself, and they have to be regularly given. And the ultimate authority to decide that is given to the two houses acting separately. Now, it's that acting separately piece that several constitutional scholars have argued. There's no merit for that because under the 12th amendment, there's no mechanism, it's a joint session of Congress who are to be present in the opening and counting of the ballots. There's no mechanism authorized in the 12th Amendment for them to separate out and then to make those decisions other than as a collective body, if they have any authority to make a decision at all as a collective body, when the text of the 12th Amendment merely says in their presence. So I think these are very significant and unresolved questions. One of the reasons why scholars for decades have been saying not only the Electoral Count act, but the 12th Amendment and the original text of the Constitution leaves these very grave matters in such a state of uncertainty.

Okay, but I just want to be clear about what our differences might be. Again, the points about separate houses voting raises the question of whether the act is constitutional or not. But if we put that aside and we assume the act is constitutional, and then we say the only grounds that you've identified here for questioning the votes was whether the votes were, quote, regularly given and you've asserted that they're not regularly given. If they're based on mistaken or fraudulent or improper procedures in the states, I guess I want to know where is the authority for that? Because regularly given in the act is talking about the fact that you hadn't bribed the electors or you hadn't coerced them or they actually counted their votes. It's not that everything that happened before that mattered. In fact, they didn't have to have a vote by the people at all. So where's the authority for the idea that regularly given means the electors voted on the basis of what they thought was the right vote by the people?

Well, I'd throw that back at you and ask where's the authority that it's limited in the way you suggest? I mean, there's no definition of what that phrase regularly given means means. There's nothing, as far as I recall in the debates over the 1887 act that would give more meaning to it that we might ascertain. And I think it's perfectly plausible that regularly given means, if the election's been validly certified and they meet and then get bribed to vote for somebody else, that would be not regularly given. But if the initial election that led to their certification was fraudulent, then anything that follows from that fraud, I would argue, would not be regularly given as well. And both are perfectly plausible definitions of what that phrase may mean.

Okay, so that's an interesting point of contention, and I guess we can bracket whether that's a resolvable question by us,

but I guess, I guess there's a point of information here. So, John, you suggested that there's no legislative history on what regularly given means, and that's not true.

So, Representative, I said to my recollection because I, you know, got a lot, I've been drinking a lot from a fire hose here. So I'd be happy to hear if you've got you. You looked at this in your class, so let, let me know what you found.

Yes. So totally understood. You've had a lot going on. So I can come in and pinch it here a little bit and say that there was discussion of what regularly given means. And so Representative Adams in 1886, this is in the Congressional Record 18 Congressional Record 52 discussed what regularly given means and he was talking about defects, including failing to comply with the constitutional requisites for electoral voting, such as voting on the correct day, voting for constitutionally disqualified candidates, or corruption in that office as elector. So the legislative history does indicate that regularly given refers to the conduct of the elector, not the manner in which the elector was appointed.

Well, I'd certainly want to look more at that. Obviously, those are examples of things that would be irregularly given. Did he actually forcefully say, and these are the only things that qualify as irregularly given? I don't recall at hand the exact debates, but I'd be surprised if it went that far, particularly against the basic common law principle of fraud, if we've got a proven fraud in the election. Let me take an example from the recent election. Trump clearly won Kansas, but it had a Democrat governor and Secretary of State. Suppose they had fraudulently certified the Biden electors and then they met and properly cast their votes. Are you really contending that that would be regularly given in that context?

Well, if that happens, you can imagine there's a procedure in Kansas law for challenging that. Right. And that's what the Electoral Count act talks about. It talks about a procedure for contesting the election, and the procedure is completed six days before the election. That's obviously what happened, what drove the 2000 decision. And if you're assuming that the courts actually don't step in, they're Republican courts, they don't step in and they do something about that, then I guess we have to say that the votes are still regularly given. It's just everything else in the process you could still criticize.

Yeah, see, that's where I disagree, because you look at the timetable, the election challenges would have been completed by then. The governor then certifies the Biden slate of electors in Kansas, even though Trump clearly won and they meet on December 14th and cast their votes. I just find it rather extraordinary that after the deadlines in Kansas have passed to be able to challenge that illegal decision, whether there's nothing under the Electoral Count act or under the 12th Amendment that can be done to challenge that illegal action by the governor and the electors following through on that illegal action.

Because there ought to be. But whether there is or not is a separate question.

Right, Right. And it turns on the scope of regularly given. And if the examples that were given in the debates specifically say it's these things and only these things, then I would agree with you. But I'd be surprised if it's that clear cut that it is limited to those things. Maybe I'm wrong about that. And I'll go back and look at it. But. But it just seems to me intuitively that the notion that such a thing could be left to stand and the phrase regularly given when it is so irregular could not be utilized to challenge it, I think is a stretch.

Okay, so let's shift to this question which is fundamental to what you're arguing, that the Electoral Count act is unconstitutional. I take it we all agree this issue has never been adjudicated. The Justice Department has never asserted this in court. No administration has tried to argue this in the 100 plus years, 150 years since the act has been in force. I mean, we have law professors that speculate about it and many of them I have enormous respect for. But it's nothing more than speculation among people like us. Right. It's not any legal action.

That's right, because the issue has never arisen, although I think it did arise in 1960. And in fact, Richard Nixon took action that was contrary to the Electoral Count Act. He accepted the alternate slate of electors that had been certified by the governor rather than the original slate of electors who had met on the designated day regularly given their electoral votes. And he unilaterally chose not to accept them, but to count the other ones that had been subsequently certified by the governor. Now that right there implies that the Electoral Count Act's requirement that that can only be done with the two sessions of Congress separating out and meeting separately to agree on an objection to the electoral votes that had been regularly given.

So there are a couple problems with what you just said, John. So first let's spell out the factual history of the election of 1960 Hawaii a little bit more. So what happened in that election was that it was very, very close in Hawaii between Nixon and was just a couple of hundred votes. And so there were a couple of court cases and there were successive recounts. And those recounts took weeks and weeks and weeks. And so it's a little bit like what happened in Florida in 2000, but it was even more extreme because the last recount didn't end until just before January 6th. And so what happened in the succession of recounts is the governor certified the electors that were appointed per the results of the election according to each successive recount. And so what was happening is were the successive certifications by the governor that was just updating based on the most recent lawful recap. So that's what was going on. Now you have an interpretation of 3 USC 6, which is a provision of the Electoral Count act about the governor's certification. And as I understand your interpretation, you think that it's the first certification that matters that's legally operative for the purposes of 3 USC 15, and that in this situation where the governor of Hawaii in total good faith just following the results of these successive recounts, updates his certification and says, okay, now we've had another recount, court ordered recount, so I'm updating the certification. Now you think that those updated certifications are not legally operative. Now, holding aside whether you're right or not about that, and I think you're incorrect in Your interpretation of 3 USC 6 happened in Congress then was that actually the morning of January 6th in 1961, Congress received the last governor's certification for Kennedy selectors. And Vice President Nixon, who was a candidate, was the presiding officer over the count. And what he did was he stood up, he said, you know, we've received these three successive certifications. Everyone agreed that it didn't make a result, a difference to the result of the election. And so he said, without the intention of making any kind of precedent, let's just count them. And no one objected. So what happened there was that, you know, there was total good faith all around and there was a succession of certifications by the governor. Nixon, to his great good credit, stood up and said, look, this isn't going to change the outcome of the election. I'm going to take the last lawfully certified appointments of electors that we got this morning and we're going to count those. But we're. Because we don't. It doesn't even matter for the outcome of the election. We're just going to say it doesn't cause any precedent and no one objected. So the outcome of that is, well, I don't think it shows that the vice President has any particular authority under the act, nor do I think it means that the act was violated in 1961.

Well, we may disagree with that. He had multiple slates of electors and he had to make a judgment about which one to count. And he did. Nobody objected to it. And I agree. Part of the reason nobody objected to it is he thought that his chance of prevailing in challenging Texas and Illinois's electoral votes, which were both necessary for him to have prevailed, were slim to none. And anybody who knows the politics of Texas courts in those days with Lyndon Johnson on the ballot, that was probably the correct real, what do we call it legally realist view assessment. So, so I agree. Let me, let me pose a different case. That almost happened in 2000. So the, the executive, the governor had certified the Bush slate of electors. The state supreme court looked to be on a path to order the certification of the Gore slate of electors. And suppose they had succeeded in that and the governor, complying with that state court order, had certified another slate of electors. I was retained by the legislature of the state to draft legislation that would protect the original slate of electors. And they had. That legislation was drafted and had been passed in both the key committees in the house and the Senate or the assembly and the Senate. I forget what it's called down there. And had been scheduled for floor votes a couple of days after the Supreme Court resolved the issue in Bush versus Gore. Now, had we had those three slates of electors, the original governor's slate, the state court ordered slate of electors and the legislative order slate of electors. The Electoral Count act says you have to take the one certified by the executive. Does that mean the first one certified by the executive or the one that was mandated to be certified by the executive by the court? I believe that part of the Electoral Count act is unconstitutional. I think I'm on fairly solid ground there under Article 2, that in either case, if the legislature had certified an alternate slate of electors, that was the one that should prevail contrary to the language of the Electoral Count Act.

So you brought up this interesting detail about what's called the Governor's tiebreaker in 3 USC 15, that if there are multiple slates under certain circumstances, the slate that was certified by the governor is the one that prevails. And you brought up constitutional concern about that particular provision. And there, you know, we can talk about the merits of that. And that's a very complicated question. Now, I'm glad that you brought up your 2000 testimony. So I had a great time watching it last night. And, you know, I thought that you made some really, really cogent points. And so I just have a couple of quotations from this right now. So you gave a really, really excellent rundown of Sir, USC 15, which is, you know, for anybody who's read or tried to read through USC 15, it's except difficult to parse. And I thought you did a really good job of that. And so your description of this. So your testimony starts at about 4, 4 hours and 20 minutes into this marathon hearing that the subcommittee had.

And let me, let me, let me interrupt there and set the stage even further. They had a day of hearings and nobody could answer any of their questions. And so they called me on the afternoon of that day, and I ended up, I mean, nobody had looked at this stuff for 100 years. And so I gathered the materials. I had a whole team of students because that particular window of legislative history is not online. We had to dig out the microfiche. We had to print it out on onion skin paper. They put binders together for me. So on the flight, the red eye flight to get there in time, I could read up on this as much as possible in that short time period. But what was, what was on the ground? There was every major television outfit in the world in a square block, 10 square block, cordoned off area around the legislature was there. This was quite a heady experience.

And, you know, that just makes your lucidity in explaining these points in your testimony before the Select Joint Committee on the matter of appointment of presidential electors. And this is on November 29, 2000. So that sets the stage of this is right in the heat of the contested election there. So you said, and this is at about 4 hours, 25 minutes into the hearing, you said that it is Congress, both houses operating separately, concurrently, can reject a single plate of electors if they view those electors were not lawfully certified. That gives Congress the power to be the, quote, ultimate judge on whether the certification process comported with the law. Now, so you were talking about the Electoral Count act there, you know, and that, you know, so that's about the statutory law. But you also talked about the constitutional question later. And so this is at 4 hours, 32 minutes. And you say, and this is you summing up at the very end. So you've given this really Lucid explanation of 3 USC 15 and the different scenarios. And you said that's the mechanism by which Congress has set out for itself how it will govern its counting obligations, that at each step of the way, it retains that judging ability. It is answerable to nobody, not the Supreme Court of the United States, not the Supreme Court of Florida in that judging, because that power is delegated to it to Congress by the Constitution. And that was the end of your testimony. So it sounds to me like what you're saying in that testimony before the Florida state legislature in 2000 is that the Congress that the Constitution, the 12th Amendment, designates Congress as having the power to what you call the judging ability when counting, when exercising its counting obligations, when fulfilling its counting obligations under the Constitution. So I was wondering if you could tell us a little bit more about your views about the constitutional authority of Congress versus the president of the Senate or the vice president, who you did not mention at all in your testimony to the Florida state legislature. So I was wondering if you could explain your thinking about that.

Yeah. So a couple of things. One, as I pointed out, dealing with the question of state supreme court and state legislatures was what was at issue there. Who within the Congress had the authority to make that judgment was not part of the controversy at the time. And I had not given any thoughts to it subsequent to that testimony, as you know, and subsequent to the contested election itself. There were a number of law review articles, including a very prominent one by a graduate student at Yale under the tutelage of Akhil Amar and Bruce Ackerman, highly, highly respected constitutional scholars from Yale, that argued that, in fact, under the language of the 12th Amendment, only the vice president is the key in Congress, who has that authority, that the two separate houses are there to be present. He has affirmative authority to open the ballots, to open the envelopes in the presence of the House and the Senate. And then this odd passive voice, and they shall be counted. And it's the passive voice that, as court creates all sorts of consternation. Well, who counts them? And the argument from this law review article, and I think it's certainly a credible argument, I had not parsed the language of the 12th Amendment because this was not at issue in what I was testifying about in Florida. Because the vice president is the only one that has an active role. The others are merely there to observe, then it must be that he has the role to decide which should be counted. A necessary, particularly clear if there are two competing slates of electoral votes. And I think those arguments find support in the historical debates in the 1876 election and in the debates over the electoral count. Act, as I advise the vice President, though explicitly, on January 4th. I tend to think that is the weaker argument. I think it doesn't make much sense that the vice president, who is, quite frankly, quite often going to be one of the candidates for president, gets to make that final determination. But it is certainly a credible argument that was made when the vice President turned.

So let's just be clear about the nature of the argument that Bruce Ackerman and David Fontana made. And Fontana was actually on our podcast last fall and walked pretty far back this argument he was making then. But the basis of the argument is that Jefferson and Adams both, when they occupied this role of vice president, ruled on questions of which electors shall be counted, and didn't really, especially Jefferson, give anybody an opportunity to question their ruling. And so based on that fact, the suggestion is there was a precedent established that this power to rule was held by the vice president. Now, the challenge to that theory is, first, nobody questioned the rulings because they didn't matter, and nobody wanted to question them. Nobody after the Jefferson act said Jefferson acted improperly. It was just obvious how the numbers were going to come out in that respect, not obviously in that election. That was whether Jefferson was going to be president or not in 1800. There's a lot of other issues that were at stake. And number two, this precedent established through inaction by Congress is inconsistent with the repeated effort by Congress, both before and after, and certainly under the Electoral Count act, to exercise control over the process of how the President's votes are counted. And they have asserted that and under the Electoral Count act in the legislative history is perfectly clear. They believe it's Congress's job to do the counting. That's why the passive voice is there. So what's striking about this argument is just step back and imagine that we had an election, which we did, where the popular vote went one way and the electoral vote would have gone one way. But, you know, the vice President stands up and says, on the basis of Congress's silence in 1796 and 1800, we're going to deem that the vice President has the power to throw out the electoral votes of enough states to change the result. I mean, just as a realist about what would happen in the face of that, aren't you afraid that if you cut the, you know, you're a dog shaking, chasing a fire truck. If you cut that fire truck, what happens then? I mean, because that would have been astonishing.

Well, so a couple of things. One, the Georgia electoral votes in Jefferson's case were dispositive. The New Hampshire electoral votes in Adams case in 1796 were dispositive. Had those votes gone the other direction, the elections come out differently.

True. But my point is that nobody objective. Because nobody doubted that the underlying rule.

That's correct. The second thing is both of those examples were prior to the 12th Amendment,

and so, but they were under Article 2, which had the exact same phrase. So just for our listeners here, I think it might be helpful to read. The text of this is both in Article 2, Section 1, Clause 3, and the 12th Amendment. And so when the 12th Amendment was ratified, the relevant text remains exactly the same. And so the relevant text is, the President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates, and the votes shall then be counted. And so that has in the first part of the sentence, the active voice, the President, Senate shall open all the certificates. And then, as you mentioned before it goes to the passive voice, to the votes shall then be counted by whom? The it doesn't say. So. Now, the relevance of the history of the 1796 and the 1800 elections and then something we'll get to in a little bit about the legislative action in 1800 about this very issue is that they were operating under an understanding of this phrase, this critical phrase in Article 2. And then just a couple years later in 1804, they and actually in 1803 is when Congress passed the 12th Amendment, they used the exact same phrase. And so it stands to reason that the very same people who were operating under this phrase in Article 2 and then use the very same phrase again in the 12th Amendment just two or three years later that it carries the same meaning. As a result of that, we can look to the contemporary understanding and practice under Article 2 in this critical phrase that has the active and in the passive voice to tell us a little bit about what the ratifiers of the 12th Amendment meant for it to mean. And so that's the relevance of the 1796 election, the 1800 election, and then we'll talk about the grand committee bills of 1800 in a little bit.

Yeah, and I agree. And look, that's that formed the basis of that Yale Law Review article that made the case that the vice president, because he's the only one with an active role, had the sole authority. Nobody had objected to it at the time, and he took that to be some kind of precedent. And as I said earlier, when Vice President Pence asked me point blank whether I thought he had that authority, I said it's an open question and quite frankly, I think it is the weaker argument. But even if you had that authority, the fact that you don't have certified the alternate slate of electors from the state legislatures means it would be foolish to exercise it. That's extremely important of where we ended up in the discussion. What I outline in the memo is all of the various scenarios that anybody had come up with, whether in the law review articles, in the historical precedents or whatever. And so, for example, one of them, I say Vice President Pence opens the ballots, receives the objections as compatible as specified out in the Electoral Count act, the two bodies adjourn. And if they disagree or if they both decide to count the Biden slate, then Biden wins. Or if they disagree and the Senate counted Trump and the House counted the Biden electors, then under the Electoral Count act, as you pointed out earlier, then Biden would win. But if there is a filibuster in the Senate as a standoff, and ultimately the senators break that and come out after a cloture vote. Then Biden wins there as well. These were some of the scenarios that I was talking about. Those were the ones that were compatible with the Electoral Count Act.

Yeah. Other scenarios, it's clear you map out a whole bunch of cases where Biden clearly wins. And that's hard to hear in the context of this conversation because we're focusing on the ones that seem to be most contentious. But what's very interesting about your argument is that you ultimately do not believe the vice president should have acted in this particular election because the legislatures, the state legislatures, had failed to do something to ratify the votes by the Trump electors that were contrary to the votes made by the Biden electors. One thing that's very striking about the history here is that though the Electoral Count act says that the president of the Senate is supposed to present before Congress all the electoral votes received, he didn't. In this case, the parliamentarian ruled that the alternate slates would not be presented before Congress. Now, what did you think that the legislatures should have done and when should they have done it?

Well, I testified before the Georgia legislature because beginning back in late November and December, these legislatures had asked their governors to call them into special session. Most of those state constitutions required that the governor do a call in order to have a special session. Pennsylvania's was an odd one because by constitutional provision, there was really no legislature. The prior one's term of office had ended at the end of November and the new one didn't begin till December. And nobody was able to give me a response to my question. Well, what happens if you have an emergency that the legislature has to be called into special session? Which one is it, the outgoing one or the incoming one in December? Nobody ever gave me an answer. But let's leave that one aside for a moment. There's an old Supreme Court case in the 1890s called McPherson vs Blecker. I'm sure you are both very familiar with it, and I think this is accurate. Although it too is an open question. McPherson seems to resolve it, but in ways that I don't think are plausible, and that is that the legislature always retains the power to reclaim the ability to choose elect electors, to choose the manner of choosing electors, even after the fact.

Well, that's not what it says. What McPherson says is at any time. So something that is a feature of our constitutional system that many people don't know but is pretty clear in the electors clause is that state legislatures get to choose the manner of appointing electors. And that doesn't have to be popular elections. And through a good chunk of the 19th century in many states we're wasn't. So what McPherson is talking about is let's say the state of Idaho says, you know what, we don't want to bother with having popular elections for president in 2024. And after that we know how it's going to turn out, so we're just going to appoint the electors ourselves going forward. What McPherson says is that's okay. What McPherson doesn't say is that after a popular election for the appointment of of electors has been held pursuant to laws that were passed by the state legislature so that popular election was held on election day, that after the fact the state legislature can then appoint electors itself, disregarding the results of the popular election.

I agree with you, but the language is at any time and some people have used that language to say even after the fact. But you made a very important caveat there in your description. And I agree with this. And I told the president and the vice president at any time can't possibly mean after a validly conducted election they decide they don't like the results and then they can name their own slate of electors. Contrary to that, they had set out the manner the manner was complied with. And if they don't like the results, they don't get to take it back that power back. And I agree with that. The language in McPherson could plausibly be read otherwise, but I think that's a foolish way to read it. But the important caveat you made there is was the election conducted in accord with the manner that they'd set out in accord with the election laws. And the premise of my whole memo is in fact that didn't occur here. And the question is not only were the manner the election laws violated by non legislative officials, but what the impact of those violations were. And we didn't know the answer to that. That I believe under McPherson. Again, another part of McPherson that the legislature's power is derived from Article 2 of the Federal constitution. Constraints in state law that prevent it from exercising that power are therefore preempted by the power it has from Article 2. And so my testimony to the Georgia legislature was I don't think you can be thwarted by the governor refusing to call you into special session to deal with these issues. You're exercising power you have here directly from Article 2. So it's really important.

That's a really important point. And I can see the strength to that position. But let's be clear about exactly why it's not possible to imagine the vote being reversed after an election. And that's because in addition to this power given to the state legislatures, Article 2 also gives a power to Congress. And the power it gives to Congress is the power to determine the time of choosing the electors and the day on which they shall give their votes. And so if Congress has chosen that, and there has been an election subject to that, after that the power of the state to interfere with the appointing of the electors disappears. Not because of some, I mean some people say that's because of due process. You don't have to get to fancy due process arguments. It's just the plain text of Article 2.

Well, yes and no. The question is, was a valid election conducted on the day appointed by Congress? And I think why is that a question if they are not?

Why is that a question? Because historically we've seen that if the electors don't vote on the proper day, like in Wisconsin, we had a snowstorm and they couldn't vote on the proper day. Not clear, their vote counts. Not clear. They get to vote. So the law says, here's the day you get to have an elect the choosing of electors. If you don't do it that day, too bad. So sad.

Well, there's another law that says and if they don't make a determination on that day, the power devolves back to the legislature.

Actually, it's a little bit different. Yeah, it's read.

I don't have the text in front of me. So read the text. What's article section?

So it's 3 USD 23 USC 2. And so what it says is that if a state chooses to appoint electors by popular election and then on the appointed day fails to make a choice, then this state legislature can appoint electors in a manner, in the manner of its choosing on a subsequent day. And so the critical phrase here is failed to make a choice. And so there is unambiguous constitutional authority for Congress to determine the time for when states are going to choose the electors. It's exercised that authority in 3 USD 1 which says that electors will, or states will appoint electors on election day. And then 3 USD 2 creates an exception to that. And that exception applies only if the state has held a popular election, but quote, failed to make a choice. And so then the critical question is what does failed to make a choice mean?

Now historically we actually know the answer to that question. But I, but I think this is a one of the many messes of the Electoral Count Act. Historically, what failed to make a choice meant was with states that had something like a ranked choice voting system, where you've got to reach a certain cutoff to get a qualified vote. If they fail to do that on that day, then there can be a backup procedure for selecting electors. So I think it's is it Massachusetts and New Hampshire that both have those

provisions at the time, Georgia, Massachusetts and New Hampshire. And specifically what was going on here is those three states required a majority winner. You had to get a majority of the votes as an elector to be appointed through the popular election. And as we've seen, because the third party candidates write in sometimes, and indeed frequently, the winner, the plurality winner doesn't have a majority. And so we see this in other types of elections as well. We saw this in the two Senate races within Georgia this past year when so Georgia continues to require for its Senate elections that you don't win the election unless you get a majority of votes. And so it has a mechanism for resolving that, a runoff election. And so that's how the Senate elections in Georgia were resolved this year. Now, the tricky thing though, is that so these three states required a majority of votes, not just the plurality, but in 1845, Congress shrunk the amount of time that states had to appoint electors. So prior to that, it had 34 days to appoint electors. And so these three states could conduct runoff elections, but then Congress shrunk it to just one day. And so then these three states were understandably, really concerned, saying, hey, you know, how are we going to conduct a runoff election or have our state legislature step in and pick between the two top vote getters if we only have that one day? And so that's the historical origin of 3 USC 2. And so the quotation from the legislative history that explains this is Representative John Hale from New Hampshire speaking on behalf of his state, which had one of these requirements. It said that it appeared to him that the bill which didn't have this exception, the bill was sufficient as it made no provision for an election if the people should fail to elect on the day designated. And in the state which he had the honor to represent, a majority of all the voters cast was required to elect the electors president and vice President of the United States. And it might so happen that no choice might be made. And so that immediately after that 3 OSC 2's exception was introduced and then it was ultimately adopted. So the historical origin of this, of this phrase fail to make a choice is referring to when there's a mathematical requirement of a majority and there's only a plurality winner, so they need a runoff.

The question then is the text doesn't say only failed to make a choice because of a numerical majority not being achieved. It just says fail to make a choice. And so the question here is the same one we dealt with earlier when we were looking at regularly given votes, the examples given in the debates. Is that a limitation on that language or were they examples of how that language might be used and that language fails to make a choice? If, for example, the secretary of state in Georgia, contrary to state law, allows 16 year olds to vote and then certifies the election based on that, and the legislature is challenging that, have they failed to make a choice on that election day such that sections two, devolution of power back to the legislature gets triggered? That's an open question in my view. And yes, I think you've got a good argument on why that's not the purpose of section 2. But the language isn't limited to that purpose. The language may well be broader. And then the question is in the face of violations of state law by the legislature, which is set out under their power under Article 2, is the legislature impotent to deal with that after the fact or can only Congress deal with that? And I want to posit the argument that in fact both have a role to play in that. Section two seems to confirm that the legislatures have in at least certain circumstances the ability to resolve things only by statutory grief.

You know, it doesn't have to be 3 USD 2 at all. You could say you have to appoint on election day, period. No exception. No if answer. But. And that's unambiguously within conversation.

So that means that all of the state statutes and every state has them that allow for after election day electoral challenges that can flip the certification after the fact. You're essentially arguing that all of those are illegitimate as well.

No, no, no, no. Because those are all presuming that you're just trying to figure out what happened on election day. You're just trying to figure out.

That's right. And my presumption is the same. The legislature is looking at the assessment here, and I agreed with you at the outset that I don't think if the legislature's manner was followed and it simply they didn't like the results that they could take the power back under Article 2 or under Section 2. But if in fact the manner wasn't followed and the legislature is now weighing in to assess the validity of what happened on Election Day. I don't think anything in the Electoral Count act bars that okay.

But in this election, we actually don't have legislatures stepping up and affirming.

So let's go back to that. Why? So let's. If we concede that I'm wrong, that they could have called themselves into special session, or even that I'm right, that they could have, but they chose not to, the question is, can they still look at this as they're coming back into regular session the week of January or at that point after the Dec. 14 certification of the electors? Is that now fixed in stone? We've already established that it's not fixed in stone. If the governor subsequently, in response to election challenges or recounts, does a recertification. The question is, can the legislature, which under Article 2 has plenary power to set the manner, can it assert any authority to say, you violated our manner? And the consequences of that? The impact of that was that the results of the election decided on December 3rd were actually contrary to the way it was certified. Does the legislature have no role in that, even if we assume that a governor might, as it happened in Hawaii?

Well, the governor had the role in Hawaii to follow what the courts had determined through a fact finding process. But then what you're describing, the legislature's power, it asks the question whether the legislature on January 4th can come together and say, gee, somebody alleged that the absentee ballot system was not followed according to our law, and somebody alleged that there were too many voting boxes in this particular jurisdiction, and we can understand how those possibly could have affected a result. And so therefore, because we know that something wasn't done precisely how it was supposed to be done and it could have possibly had a result, we have the power to reverse the actual result that's been certified now.

Yeah. So let me make it a more clear hypothetical from the facts. In Pennsylvania, the secretary of state altered the statutory deadline for returning absentee ballots, kicked it back a week past the election contrary to the manner the legislature had set out. The state supreme Court ratified that decision and even allowed ballots where you couldn't determine the postmark to be counted and therefore ballots that came in after election day. This was clearly contrary to the manner the legislature set out. Now, in Pennsylvania, it turned out that only affected 10,000 ballots and the margin was 80,000. But let's suppose there were 100,000 ballots affected by that that came in after the deadline and therefore should not and would be counted and were illegally counted had they were. And if the certification is based on those illegal Ballots. Does the legislature not have any role to say you violated our manner? And the fact that the Secretary of the Commonwealth has determined on her own to do this and that the state supreme court, which also has no power under Article 2, has determined to ratify that decision, does the legislature have no role in asserting its plenary power to enforce the manner that it had set out in the statute? And I think it does.

So let's step back for a second and give some context for our listeners about the doctrine that you're talking about, which is called the independent state legislature doctrine. So there are several provisions in the constitution that refer to state legislatures rather than states. And so the, the idea here is that the electors clause of Article 2 says state legislatures that the electors shall be appointed in the manner that state legislatures direct. Now the independent state legislature doctrine then infers from that that any other part of the state's ordinary lawmaking process, for example, the governor, you know, states have, just like Congress, you know, both houses of the state legislature passed a bill and then the governor has to sign it, or the state legislature has override a veto. So that part of the legislative process is not, is not considered according to the independent state legislature doctrine. Similarly, state constitutional provisions, which was what it was at issue in the Pennsylvania case, saying that indeed it was required under the Pennsylvania State constitution to extend the deadline for receipt of mail and ballots. And so this wasn't just the Secretary of State, this was the interpretation by the Supreme Court of Pennsylvania which has the final word on what the Pennsylvania state constitution says. That's what they said. Now according to the independent state legislature doctrine, which is a doctrine that I, I'm hearing you embrace, that doesn't matter because it's the legislature alone that gets to determine the manner. Now the independent state legislature doctrine is something that people have talked about for a long time. It's also never been adopted by the Supreme Court. And indeed the only case that is on point here is from just several years ago, a case called Arizona State Legislature vs. Arizona Independent redistricting Commission. And so in this case it explicitly rejected the independent state legislature doctrine. The issue in that case was Arizona established a independent redistricting commission to decide its congressional district as an anti charity measure. And just like the electors clause, the elections clause of Article 1 says that the state legislature gets to determine the manner of how congressional elections take place. And this includes districting. And the Supreme Court said the term state legislature refers to the state's lawmaking function and that's the majority holding. And it's never been overruled. Now, there were defense in that case. The chief justice did dissent and he said, whoa, this whole thing that you said, that the elections clause, you know, refers to the entire lawmaking function of the state, including in the initiative process, including the governor's veto, including the state constitution. That applies to other parts of the Constitution too, including, he said, the electors clause. So both the majority and the dissent in the only Supreme Court case on point here says that in the electors clause. You're right.

Well, except for this, the reason that the chief pointed that out in dissent is it's contrary to his opinion granted a concurring opinion in Bush vs Gore and it's arguably contrary to the Supreme Court's earlier decision in McPherson vs Blecker. And let me put it in a different context where I don't think there is any dispute another clause that refers to the legislature in the federal Constitution. When the Congress passes a constitutional amendment and it refers to the states legislatures rather than separate state conventions, it has that choice and it goes to the legislature. It's not the legislative power. It's not the legislative power is constrained by the state constitutions. It's not the legislative power requiring the governor's signature. It is the legislature alone. And so we do have an example using identical language where the power given to the legislature means the legislature, the application to this particular issue, this particular clause under Article 2. But for Chief Justice Rehnquist concurring opinion in Bush versus Gore and the majority opinion, I think in McPherson versus Blacker, which is a little bit more ambiguous on it remains an open question. Yes, Eric.

So I want to so I want to say I agree with you, John, that this is a real debate like what the independent legislator power is under the Constitution. And and though I think Matt is right about what the Supreme Court thinks it's resolved, at least the majority we all know that that resolution is not stable. But here's the real question I want to make sure that we're clear on. Under the standard you've articulated, you've given us a hypothetical of clear violations of law or clear illegal ballots which lead the legislature to have to step in and do something about it. It do you think that that standard was actually met in this particular election?

Do you think that I do. Look and I think the evidence that's coming in now from Arizona let me. Let me or Georgia let me there's still pending litigation in Georgia. And here's what we've discovered in Georgia so far. 5,000 ballots have now been confirmed in Fulton county alone to have been processed and counted multiple times. The margin is 11,000. In Georgia, 35,000 people voted at their prior residence after having moved out of the jurisdiction, contrary to state law. Those two things combined are more than enough to exceed the margin of victory in Georgia. I think we see similar things in Pennsylvania, Michigan, Wisconsin, and I think we'll learn tomorrow in Arizona that the number of conditions of illegal ballots or the discrepancy in the ballot count is greater than the margin. That's why I think it's so important that we have these audits and why I thought it was so important that the legislature step in in December or when they were coming back into normal session in January to try to the best they could on the short timetable that was available to get to the bottom of it. Because, as the President Pro Tem of the Senate, Pennsylvania Senate, explicitly said, our electoral votes should not have been certified by the Secretary of State, given the illegalities that occurred.

Okay, but what you're describing now is a process that has gone many months after the actual swearing in of the president. And all of that process makes sense only because you insist on the interpretation of the Electoral Count act that says we have infinite potential to continue to determine whether the underlying votes were as they were represented to be. Now, just from a practical standpoint, wouldn't it make a lot more sense to have a system which it seems the Electoral Count act creates, which basically says you have a time, you have a deadline, states, get your act together, whatever you say, by six days before the Electoral College votes is the vote. And, you know, we can argue in theory, like people have done with Bush versus Gore for 100 years, about whether in fact the vote was in fact the vote. That's not the question. The question is what was true six days before the electoral vote? And at least between my system and your system, your system invites this perpetual litigation for every presidential election. We could have done it in 2004 in Ohio. We could have done it in Florida forever. Isn't my system at least a better system for purposes of just resolving and moving on?

It may be, but that then ratifies fraud. And that seems deeply troubling if we posit that in fact there was significant enough fraud to have affected the results of the election. And that, you're saying is after the illegal certifications, there's really nothing more that can be done about it.

Hold on a second. How are these. The certification is illegal certifications took place pursuant to state law.

So let me. Well, they didn't. And this Is, I think, extremely important. You know, it wasn't just the state law and the conduct of the election that was violated, but it was the state law in the considering of election challenges that was violated. State law in Georgia, for example, says that there has to be a judge appointed to hear on an emergency basis, any election challenges. The Trump team filed an election challenge on December 4. A month later, no judge had still been appointed. We filed a federal court action on the New Year's Eve to try and, you know, force the issue to get a judge appointed. So the next business day, Monday morning, January 4th, a judge was finally appointed to hear that election challenge, set an initial status conference for Friday, January 8th, and then dismissed the case on January 7th as movement. Right. So even the election challenges provisions in state law were violated and ignored, which means nobody ever got a chance to actually have these things heard or aired in the advocacy process that the state law allowed for.

Okay, but here's a really important point we should be clear about. You've said fraud a number of times, and that's because we lawyers recognize that if you show a process is, quote, fraudulent, that poisons the process and what flows from it. Then you've also talked about procedures that were not followed appropriately. That's a completely different game. Right. And so the question, the precise question for overturning a certified election is, have you shown fraud? Now, the fact that election officials make mistakes doesn't establish they've made fraudulent mistakes, especially when it's Republican officials running an election that you don't like the result for, for the Republican candidate. So what is the evidence of fraud? That would be enough to say that we should revert, should have reversed on January 5th, 4th, the results of the election.

Well, and this is why it was important, in my view, that these state courts actually hear on the merits, the election challenges. There were 1500 pages of documented fraud and allegations and expert reports submitted in connection with the Georgia case. There's a sworn affidavit in Pennsylvania of trucking in 200,000 ballots from long island to the Philadelphia suburbs that was never rebutted. There's evidence in Nevada, very carefully documented Expert report on 1505 people voting that were dead in Nevada. These things never got the light of day. That's the fraud. The second piece. And Professor Lessing, I fully agree.

Voting dead. Dead people count votes counting is. Is fraud, right?

Yep.

So it's fraudulent to count that. But when you say that there are documented cases of fraud, what you've got is allegations that were never adjudicated.

In Nevada, the Nevada dead people voting was an expert report. The expert was not disqualified on Delbert grounds or anything else. It was unrebutted. And yet the judge, in his order dismissing the action, never even references the unrebutted evidence. So yes, we have allegations, but we also have it at an evidentiary point. Evidence by experts that is unrebutted is taken to be conclusive and it wasn't. We now have the evidence in Georgia that was merely alleged in those was supported by affidavits in the December 4 action that has now been confirmed. Multiple batches of votes run through the machines multiple times and counted multiple times. That's pure fraud. And those have now been proven. They were merely alleged there because we never got the day in court to prove them out. But Professor Lessig, I do agree with you 100%. There's a difference between fraud and the illegalities that are occurred. And the illegality cases are much more difficult. And I'm going to separate those into two different categories. And I think this is important one, a lot of the statutory provisions that were ignored were designed by the legislature to make it more difficult to engage in fraud because we all know how difficult it is to prove the fraud after the fact. Who is it that submitted that ballot? That's why we have a signature verification process process. It's impossible to determine the validity of that after the ballot has been separated from the envelope. And that's why this signature verification process by statute in Pennsylvania and most of these other statutes requires that to be done before the envelope can even be opened. When you get rid of that statutory illegality, you now open the door for fraud and also open the door for making it almost impossible to prove the fraud down the road. That's why we have those statutory provisions there. There are other provisions that I think pose a much more difficult question. In Wisconsin and Dane in Milwaukee county, the county clerks advise people that they could vote absentee using an exception, statutory exception, for having to provide their voter ID if they just claimed they were indefinitely confined. Now, indefinitely confined was statutory poorly set out and it did not include. I'm just afraid of going outdoors because of COVID The court ultimately after the fact, agreed that these directives by the county clerks were illegal. But if I'm the voter and I'm following, my county clerk has said, is it really fair to not count my ballot because of an illegal action by the county clerk? And I think that poses a much more difficult question than I've not done the signature verification that's required on the first front end to determine whether you are actually who is legally allowed to be voting this ballot. And so I think it's important to disaggregate those different kinds of claims. They were all floating around and got, you know, particularly in the time crunch, but also just in the, in the way press report these things. They all got conflated. But I think it's very important to distinguish between those cases.

Right. And I agree. So the one about following the mistaken instructions of an election official is not fraud.

It's not fraud. The question is that the ballots are illegal or not.

Well, but they're not fraudulent. So the whole point about triggering this special reversal is that it has to be predicated upon fraud.

That's where I disagree. I don't think so. I think if it's predicated on illegality, let's suppose the county clerk in Colorado, you are not eligible for to vote if you're only in Colorado attending school, and yet the county clerk in Boulder county accepted as verified proof of your eligibility to vote that you had a student ID card from the University of Colorado. There were a lot of people, therefore, that were allowed to vote, that were ineligible to vote. And, you know, that's a different thing than saying how I vote, you know, being altered by the county. This is, you know, I've now cast a vote that was illegal, and I think those should be disqualified as well.

Okay. But if you go to the legislative history again of the Electoral Count act, the only place they're talking about the potential to unravel what happens is when they're talking about, quote, unquote, fraud. Because everybody understands elections have mistakes. Elections have rules that are not applied in the right way. And we've never had a history in America of continuing to litigate every time you think some law or some rule has not been applied in precisely the right way, there's been this potential for, quote, unquote, fraud. But again, that raises the question, like, what do we have to be able to know to allow a legislature to come in and say, okay, we're going to ignore what is presumptively the result in this state and vote in a different way? And that's what I've just not. I mean, you've got a lot of things about things that were not exactly as they should happen. But I'm not yet clear. And it's not going to really be helpful to dig too deep on this because I think Matt's got a good point. We should at least figure out who's got to Decide this, but it's not yet clear that what you've got is actually fraud as opposed to things aren't as you thought they should be.

So, two points. I don't think the Electoral Count act is limited to fraud in the way you suggest. I think illegality would qualify. But if in fact, the bull Boulder county clerk fraudulently accepts ballots from people who are not legally registered to vote, then I think that's fraud as well as illegality. Even. Even if the electoral count addict is limited to fraud.

Well, but you know that if I'm going to prove a case against that government official, I have to show that he knew that these people were not eligible to vote. That's fraud. If he's just a careless government official and he accepts these ballots, that's not fraud. That's a mistake.

No, but, but if he does it, so, so if Colorado law says you got, you can't, you can't, you got. In order to be domiciled and therefore eligible vote in Colorado, you can't be here only attending college when the sec, when the county clerk says, but I'm willing to accept your college card as sufficient to register you vote. That. That's not just a slight mistake. That's now opening the door for people who are not eligible to vote. Because I'm not. I'm not insisting on the necessary proof to show that I'm eligible to vote. I'm deliberately choosing to accept something that doesn't demonstrate that you're eligible to vote.

Doesn't necessarily demonstrate.

Doesn't necessarily demonstrate, but certainly doesn't demonstrate

on its own fraud.

So let's go to another example of the sorts of allegations of impropriety in the conduct of an election that could ultimately be just positive, not just to a single state, but to the outcome of the presidential election as a whole. So in Palm beach county in the 2000 election, there was a very confusing design of a ballot, the famous butterfly ballots, where you can look them up online to see how confusing it is. It's really, actually difficult to tell. You're supposed to punch in the famous chad. You're supposed to punch them in. And the line pointing to the different places you're supposed to punch are really confusing. And as a result of that, there were, in the words of Pat Buchanan, an implausible number of votes in Palm beach county for Pat Buchanan. And the reason, according to Pat Buchanan, was that the lines pointing to the different chads were confused. Now, let's take.

Hang on. Since I was involved in litigation, I want to Correct something here that exaggerates what Pat said. The reason people presumed that the butterfly ballot created concern is that so many people voted, particularly in the African American neighborhoods of Palm beach county, voted for Pat Buchanan. What that overlooked is that Pat Buchanan had an African American as his running mate. Right. And therefore people anticipated that there would be a much larger number of votes cast for Buchanan in those communities than would otherwise.

Doesn't matter. For the question that I'm going to ask, which is who decides? Okay, so now let's go. So we've been talking about the state legislature. We've talked a little bit about the Electoral Count Act. Let's go back to the vice president. Okay, so you asserted in your memorandum, you know, you've now said that you're asserting it as a possible series. You can consider that improprieties of various sorts can, because the Electoral Counts act is unconstitutional, can justify the president of the Senate, which is the vice president, when he or she is there to reject electoral votes on the basis of improprieties in the underlying election, popular election for the appointment of elector. So let's see how that theory plays out in the election of 2000. So in the election of 2000, the sitting vice president was Vice President Al Gore. Do you think that under your view of the law, Vice President Al Gore could have stood up on January 6, 2001, said there were improprieties, there were just, you know, these factually implausible counts. There was illegality in the way that various county clerks conducted the election. There was a lawless way of conducting the recount. And therefore I am going to reject the electoral vote from the state of Florida from which there was only one return sent to Congress. If he had done that, he would have won the Electoral College. Discounting Florida's electoral vote. Do you think he had the constitutional authority to do that?

No. And you premise your thing under my view of the law. That's just one of the alternatives or scenarios I posit in this memo. And at the end of the day, when the vice president asked me directly, do you think I have that authority? I said it's an open question, which I believe it is. I think it's the weaker of the argument. But even if you had that authority, it would be foolish to exercise it in the absence of the legislatures of those states having certified the alternate slate of electors. And I think that's perfectly consistent with saying that I don't think Gore had that authority either.

But it is consistent that the Al Gore situation and the Mike Pence situation are because there were. No. The state legislatures haven't sent in alternative slates in either case that they're of appeal. So if Vice President Pence had the authority to do it, then Vice President Gore had the authority.

And I said that. And I. And I expressly said that. I think that is the. It's an open question, but I think it is the weaker argument. But even if you had that power, it would be foolish to exercise it in the absence of the state legislature having certified the alternate slate of electors. Okay, So I think presents it in a different. Entirely different light.

I agree. But let's be then clear about the punchline here. So you advised the vice president, and apparently Dan Quayle advised the vice president as well, that given the state legislatures had not done anything, he should not discount the votes for Joe Biden, and Joe Biden therefore was properly elected president on that procedure.

One difference. One difference between my advice and apparently Vice President Quayle's advice and that Vice President Quayle said that's the end of the matter. And I said these legislators have asked for additional time to try and assess the impact of the acknowledged illegalities. And I thought he should give him that additional time, even though that violates the you cannot adjourn once you begin requirement of subsection 16 of the Electoral Count Act. That's, I think, the one difference.

Okay, but they haven't. They hadn't formally done anything. Right?

They hadn't formally done anything because they hadn't been in session to formally do anything because their governors refused to call them into special sessions.

Well, I mean, in North Carolina, they could have called the. They could have called themselves back into session if they had enough votes from the legislature. So that. This is state law is very different. But then the qu. The point is, given what happens, your view is Joe Biden is properly elected president.

I think the certification without the legislature's votes means that Biden was properly certified and inaugurated. They leave open the question whether the election that produced those certified votes was valid.

Okay, and so then these ongoing proceedings are for the purpose of history. I mean, you know, the president apparently thinks that, you know, the. The ongoing proceedings are a predicate for reversing the certification of the election. But is that your position?

Well, I. I've pretty consistently set out that. And let's go back to the law of fraud. What's the basic rule on fraud? It is supposed to be that if fraud is proved, it unravels the actions taken pursuant to the fraud. That's never happened in a presidential election. And I don't think it will ever happen. Even if the fraud is definitively proved, or fraud or illegality, I'm putting those two together. If the fraud and the illegality turns out to have produced enough votes in enough states that the election actually should have come out the other direction under the proper returns, as the election was conducted on November 3, is there any remedy? And I have pretty consistently since January told people the evidence has to be definitive, and it's got to be so definitive politically that the other side is willing to accept it. And even then, you know, and we do have. In the context of legislative elections we had in North Carolina's congressional district in 9, one of the contractors for the Republican candidate for Congress had engaged in illegal ballot harvesting. The number of ballots affected was bigger than the margin, but where those ballots were cast could not be proved. So the State Board of Elections ordered a new election after the fact in Pennsylvania's Senate district. In Bruce Marx's case in 1994, the fraud was discovered after the certification, after the swearing in, after the Democrat candidate that had been declared the winner was sitting in the Senate and he was stripped of his seat. And Marx, because the fraud there was proven not just bigger than the margin, but how it would have affected the result. And Marx actually won, and then he was seated instead. Historically, those are the two. They don't happen very often. And the reelection happens much more than the receding. It's never happened in the presidential election. And I don't think we would ever get such a definitive assessment of the confusing claims here to ever get to that point.

I have a question about the. So when you say that there was a senator who was elected by fraud and then receded, there's a relevant constitutional provision there, right? So we're talking about the United States Senate, right?

No, no, no, no. He's a state senator.

Okay, so then my question is, okay, so we have. So states can conduct their elections however they want to, and, you know, they can have a provision in their statutory law, their state constitution that says if, you know, they could adopt the Eastman rule that says that if there is definitive fraud that is so convincing, the evidence is so convincing that the other side agrees and acquiesces to it, then we will reverse the results of the election, and states can do that if they want. Where in the federal Constitution does it say that can happen? Well, with respect to a presidential election,

where and where in the federal Constitution is it prohibited? There are two provisions. Hang on, hang on, hang on. There are two provisions in The Constitution that deal with the removal of a president. One is impeachment for high crimes and misdemeanors and, you know, bribery and treason. The thing we're positing here is that Joe Biden had no knowledge of any of this. So it's hardly a high treason or high crime and misdemeanor that would warrant removal for him. The other is the 25th Amendment, which has nothing to do with this issue. And the question is, by those two provisions, is that the entirety of the way to deal with a question that was unanticipated? You could fall back on the law of fraud, which says we unravel the fraud.

Okay, But I want to make sure

we clear the truth here. I don't think it's ever going to happen. So I've been telling people since January. The thing is done. The reason I'm focusing on what happened is if in fact the extent of the fraud and illegality had an effect on the election, we need to know that so that we can put in place systems that prevent it from happening again. Because the.

There's no disagreement with that. But let's be clear about what the consequences of fraud are. There are other contexts where you could have fraud which might affect things substantially. For example, imagine you show fraud in the passage of a bill. So I committed fraud. I committed a crime. And that led to the vote going the way it did. Does that mean the bill is now no longer law? No, it doesn't.

That's fraud. Hang on, hang on. Let's go back to the old Supreme Court Fletcher versus PAC case. Very important, very important. One of the overlooked parts of it, the reason that case said we can't unravel the fraudulent selling off of Alabama and Mississippi by the corrupt Georgia legislature because the property ownership had been transferred to a bona fide third party for value. Right. But the court specifically says in that thing, of course, we don't overturn the normal challenges to the validity of a contract, fraud being one of them. So I think it's important to keep that in mind.

We're not talking about contract law, right?

We're talking about.

We're talking about the election of a.

Well, no, but we're talking about the background principle of fraud.

Right, but the point is the background principle of fraud in the context of ordinary government processes. And what I'm claiming is that in the context of the legislature, if you prove fraud led to a bill being passed and. But for that fraud, fraud, the bill would not have been passed. That has no effect on the validity of the bill. And so by analogy, what I'm saying is maybe you prove fraud. Maybe, you know, we turn out that 2000 was fraudulent. Maybe somebody proves that 2004 there was voting machines that were fraudulently done. That doesn't affect the validity of the result, even though there was fraud there. Because we have this basic, more fundamental principle of stability. We don't want to create the incentive for this ongoing process to undermine and

draw into that may be true, but you're ignoring the language. And by the way, the Fletcher vs Peck decision, what was the contract? Was the statute passed by the legislature and the court specifically treated as a contract? It was created as a contract, but the court specifically said that fraud would allow it to unravel it. Right. And that was a statute passed by the legislature. Now, I'm not arguing for that here. And I really we've gone an hour and a half. I have to go. I've got a, I've got an appointment. But which is, which is why I have been out front saying to people, the reason I am looking at the election allegations and trying to cross the T's and dot the I's is not to unravel the January 20th inauguration because I think even if there was some slim argument that that could be done, I think we're never going to get there as a practical matter. But I think it's extremely important that we know the extent of illegality and the impact it had so that as our legislatures are trying to protect the election integrity going forward so that people can have faith in the results of the election. Again, we've got to identify what went on. We've got to be able to identify the false claims. And I'll close with the good example. We've all seen the charts on the Internet of the vote sp Right. Well, one of the things that happened in this election was a lot of the canvassing of absentee ballots was done in central big city locations like Atlanta or Detroit. And if throughout the evening they're not reporting anything and then all of a sudden in that heavy Democrat area, they report all of their results, there's going to be a huge vote spike for Biden. And yet if they'd been reporting partial returns all night long and then all of a sudden there's a vid volkswage, I think that's pretty good indication that there may well be fraud. How do we tell between the two? Well, you look instead of the state data, time series data, you look at the county level data to find out what actually happened in Atlanta. And that would help us determine whether that's just perfectly explainable or whether that's a strong indication of fraud. And I think it's important to get to the bottom of those things. If for no other reason that the American people can. Can take steps to prevent that kind of conduct from creating such a controversy over the legitimacy of the election in the future, because at the end of the day, our ability to govern ourselves turns on our ability to have faith in the election results. And if we don't have that faith, whether legitimately or illegitimately, then something's very wrong and we gotta fix that.

Well, we need to have faith, and I agree with that, and I appreciate you coming on and spending 30 minutes more than we even contracted for. But there was no fraud that led to this.

There was no fraud. Just a joint mistake.

I think it was so exciting. I mean, who could stop. We could go for another three hours. But, John, thank you so much, and good luck with this. Let's agree that we ought to make sure that there isn't fraud. Let's bracket whether there was enough fraud here to matter. And let's. I would just say from my side, the idea that people are led to believe, as more than half Republicans say they believe, that there's clear evidence that there was fraud here is deeply troubling about our infrastructure of media right now. That anybody would believe there's clear evidence seems to me a little bit crazy.

Or on the other side that there's no evidence.

Okay, no evidence is a good word, too.

Yeah, yeah. And I think that that's why it's important that we get to the bottom of it and demonstrate one way or the other what happened so that people have some resolution that their guy lost in a fair fight or their guy won in a fair fight. I think it's important on both sides.

And then, you know, I think another really important takeaway from this conversation is, you know, the. The aspect of your memorandum that gotten so much attention over the last several days is the one of these scenarios that you considered that Vice President Pence had the unilateral and unreviewable authority to reject electoral votes on the basis of anything at all, whether that's fraud, whether. No matter the amount of evidence, and that people have been very concerned about the idea of a single person in a constitutional democracy having that amount of power to determine the results of an election in which they are a candidate. Because, of, of course, Vice President Pence was a candidate in this election as well. And as you know, I was encouraged to hear that you say that you advise the Vice President not to do that and you think that that's the weaker argument. And the reason why I think it's important that we came to that agreement is because it's important that we not leave these legal theories lingering for the future that the Vice President doesn't have this power.

I agree. And you know, I published a piece on this called Setting the Record Straight. When the vice Presidents put out a memo the morning of January 6, said some people have suggested I have this unilateral power that was then leaked to the New York Times as that some people was me. And I published an article called Setting the Record Straight to point out I'm the one that walked the President down from that position because that was the position that had been articulated in the Yale Law Review article, several other law review articles that had been reaffirmed by John Yoo in an op ed published in October of last year. And when the Vice President asked me point blank, do you think I have that power? I said, it's an open question. I think it's the weaker of the argument. But even if you had that power, it would be foolish to exercise it in these circumstances. And I spell that out, people can go to American Mind and look for the article Setting the Record Straight. I think it was published back in late January or early February.

So we will link to that article in this podcast casting. We'll also link to the full memo if that's okay, because obviously you've been.

The full Memo is a. A more. The first one was done on a 24 hour turn over Christmas. And it was. And it was only because I'd been asked that specific question and I laid out what would happen under it. It was not my advice. That's why my name's not on it. The full memo. The full memo that you have is laying out all of the various scenarios that had been proposed. And the ultimate conclusion was, I think the. The best recourse here is to send this back to the legislatures as they have requested. And I know on that point we disagree. You think that the time had already passed. I think it was still open, particularly because they hadn't been allowed to come back into special session. But that's a much less significant disagreement than the one that the press are focusing on right now.

Okay, John Eastman, thank you very much. Matt, thank you both. Thank you very much.

Take care.

Take care.

So that's our conversation with John Eastman about his memo war. What would happen on January 6th before we end, I wanted to pull together a little bit about what this conversation reveals about the disagreement that might still exist about what the Vice President could have done on that fateful day. One core issue in our discussion with John Eastman was the theory advanced in his memorandum, a theory that most in the legal academy would consider to be radical, that in John's words, quote, the President of the Senate, the Vice President does the counting, including the resolution of disputed electoral votes, and all the members of Congress can do is watch, end quote. Or as he put it in the conclusion of that same memorandum, that, quote, the fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter, end quote. But one important conclusion of our discussion with John is that in fact, this is not a fact. It is at most a theory. A theory John himself calls a weak theory, advanced by no court, advanced by no administration, but suggested only by a few academics. John points to a single article in the Yale Law Journal by Bruce Ackerman and Dave Fontana. And you might remember that we had Dave Fontana on our podcast last fall and he indicated quite clearly that he believes his theory is not only weak, it is also wrong. Obviously, Matt and I agree it is a weak theory because we both believe it is flatly wrong. Another core issue in our discussion is the question of the quote, unquote, fraud. John's memo begins by outlining seven states where there were suggestions of fraud and irregularities. And in the course of this episode, John insisted, insists that he believes that there is evidence of, and this is important as he describes variously, quote, irregularities or illegalities or fraud. Now, the distinctions here are really important. It is true, as John suggests, that the law has a special place for remedying fraud and that showing that there was indeed fraud could have profound consequences in consequence. But not every irregularity or illegality is fraud. For example, his memo describes in Nevada that there was machine inspection of signatures rather than the human inspection of signatures mandated by state law. Maybe, but that's not fraud. That may be an illegality. But never in the history of America has the mere presence of an election illegality led anyone to think that you could overturn a presidential election. Likewise with the allegations about Arizona. As the memo stated, a federal court reduced Arizona's 29 day before election registration requirement. Okay, again, maybe I don't know the facts, but even if a court did that, that doesn't show fraud. That might show a desire to assure more people get to vote, but the desire to assure more people get to vote is different from quote, unquote, fraud. Now, this is much more than a quibble about language, because ultimately, the whole thrust of John's memo is that there could have been a legal and legitimate predicate for state legislatures to vote, to appoint a different slate of electors in the face of the allegations that were actually made before January 6th. That predicate, that legal authority to select a different slate of electors, could either exist in the language of the law or it could be implied from the very nature of election law. North Carolina's law, for example, has an express provision to govern the cases when an election can't be resolved before the Electoral College is supposed to vote. As far as I know, only North Carolina has such an explicit provision. So the only ground that John could be resting his argument on is the ambiguous or uncertain or certainly historically untested ground of fraud. Yet not since 1876 or the election of 1876, has any legislature ever thought it had any special power because of fraud. And after 1876, Congress enacted the statute that would govern exactly what it would do in the face of contested slates of electors. So assuming, just for the moment, that such a basis could exist, a basis grounded in fraud, the question then must be whether there is any actual evidence of fraud to sustain it. Now, you'll hear in our conversation that there's no clear claim that there is fraud at any level sufficient to overturn this election, either at the level of the nation or even at the level of any particular state. We recorded this podcast before the Arizona audit results were revealed. But those audit results revealed that Joe Biden's margin was actually greater than first reported. No substantial evidence of fraud was reported in Arizona, so no substantial basis of fraud exists to overturn that result. And even in the examples that John hangs so much of his argument on Georgia and Pennsylvania, he's not actually showing a plausible claim of fraud. He's showing that there's a plausible claim of irregularities or errors or mistakes, the stuff that happens in every single election since the beginning of elections, and the sort of stuff that has never in the history of America provided the basis for undoing a presidential election. One other core issue began our conversation, and on retrospect, I have to confess that my own bad lawyering allowed it not. To end the conversation, as you recall, I asked John whether, assuming that the Electoral Count act was constitutional, any of the allegations of frauds or irregularities or illegalities actually mattered. I asked that because the plain language of the Electoral Count act says that first, if a state has a procedure for contesting elections which every state in the nation does. And number two, if that procedure was completed at least six days before the Electoral College was to vote, and in every single state, that Too was true. Three, if there's only one slate of electors, and as we saw on January 6th, the Vice President admitted only one slate of electors for each of the 51 jurisdictions counted. And finally four, if there is no claim that the electors votes were not regularly given, which there was no claim that the votes of the electors were tainted by fraud or bribery or anything else like that, the votes of the electors, if, in other words, these four facts were true, which I assumed we all agreed were indeed true in this case, then the Electoral Count act says quite directly that Congress promises it will count the electoral votes so certified to it. Now, surprisingly, John resisted this argument, and I'll confess I was so surprised by that resistance that I was not sufficiently prepared for what should have been the obvious response to his resistance. John said that the fourth condition, that the votes be, quote, regularly given, did not actually obtain in these cases because, as he said, the votes of the voters who selected the electors were, he believed, marred by fraud. And he said nothing in the legislative history of the statute indicated that the framers of the Electoral Count act didn't mean to give to Congress awaits which avoid an elector's vote if the elector himself was chosen improperly. Now, I stupidly let this flatly false arguments go too quickly. For whatever is or isn't in the legislative history, the plain language of the statute is speaking of the votes of the electors, not the appointment of the electors. The question is whether their votes were regularly given, not whether they were appointed in a regular or proper manner. Maybe Congress should not have promised as they did. Maybe the ECA should have reserved for Congress a greater opportunity to police how the electors were appointed as well as how they voted. But nothing in the language of the electoral countax suggests that Congress has any power beyond determining whether the votes of electors were bribed or otherwise not regularly given. I let that pass and I shouldn't have. If the Electoral Count act is constitutional, something John Eastman says it is not, though something that no one else in this process was actually arguing, then there was no basis in Congress on January 6th for second guessing the certified votes from the electors who were presented to Congress. There was no basis in the law because the Electoral Count act was a promise, a law that promised the states that they, Congress would respect what the states did so long as the states had a procedure for challenging elections, completed that procedure at least six days before the Electoral College voted only sent one slate of electors to Congress and the votes of those electors were regularly given. Those four conditions mean Josh Hawley and Ted Cruz and everybody else who stood up and voted against the certification of the results were voting contrary to the law. Or let's put it more strongly, they were voting lawlessly. The bottom line is this. In the end, John repeatedly conceded that the theory of the Vice President's power at the core of his memorandum is, at a minimum, the weaker view. Though of course those words don't actually exist in his memorandum. By the end of our conversation, he conceded even more that he agrees that, and here are his words precisely, quote, the Vice President does not have this power, end quote. This is an important concession. Our aim in this episode was to engage John on a politically and historically significant legal interpretation of the Constitution and to confront him with its flaws. This concession by the principal proponent of that dangerous view should discredit it so that hopefully no president, and certainly no Vice president in the future, will ever assert that argument to support their own election over the votes of the people as represented by their electors. Finally, there is one other conclusion that we should not leave unremarked. At the very most, John has defended the idea that there could in theory be sufficient evidence of fraud, sufficient to draw the election of enough electors into doubt. That it therefore draws the election of a President into doubt. Maybe. But no fair observer could believe that there is enough evidence of fraud, not mistakes, not simple irregularities, but quote, fraud, to suggest that 38 electoral votes should have gone a different way. The question then becomes a question of political decency, or maybe political morality. Is there any moral argument in favor of continuing to suggest, as so many do, that this election was stolen in the face of this evidence? Those suggestions have had their effect. More than half of self identified Republicans believe there is, quote, clear evidence that the election was stolen. Now I'm old enough to remember how Republicans reacted to charges that the Russians had thrown the 2016 election to Donald Trump. Those arguments, without a clear basis in fact, those Republicans said were unfair and wrong because they only tended to weaken the authority and public integrity and confidence in the man who was actually elected president. If those complaints are true vis a vis Donald Trump, they are many, many more times true. About Joe Biden. It is immoral. I'll speak for myself here, but I'm sure Matt would agree with me. Immoral, politically immoral. For anyone to continue to press the idea that Joe Biden was not legitimately elected president, there is no doubt under the law as it is that he clearly was. And there is no doubt that even under the law, as John Eastman hopes it is, there is not enough evidence to throw the election into doubt because there is no substantial evidence of quote, unquote fraud. So let's study how the election actually happened, and let's figure out how to make sure elections happen more efficiently, more accurately, and more effectively to assure that every legal voter has the right to cast a ballot. But let's not engage in that inquiry under the pretense that it could in any sense throw into doubt an absolutely certain conclusion that Joe Biden was elected president on the election in 2020, and nothing that's happened since suggests that that claim is false. This is Larry Lessig. These podcasts are produced by Equal Citizens. You can find us on the web at Equal Citizens Us. And if you go to Equal Citizens Us anotherway, you can find other episodes of this podcast and you can find a place to tell us what you think and to give ideas for other topics going forward. This has been a special episode out of the ordinary run that we're doing right now because our focus right now is the lead up to, we hope, the eventual passage of the most important and democracy reform legislation we've seen in generations. But given the media attention that has recently been drawn to this memo by John Eastman, we thought it important to continue the conversation that Matt and Jason and I had last fall about how this last presidential election would be war gamed. This was an important element in that history and we believe this episode demonstrates how weak that element was. Thanks for listening. Stay tuned, stay safe.

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