# Eastman Memo A two-page memorandum written by [[John Eastman]], a [[Claremont Institute]] senior fellow and former [[Clarence Thomas]] clerk, that laid out a six-step plan for Vice President Mike Pence to unilaterally overturn the 2020 presidential election during the January 6, 2021 certification of electoral votes. The memo is the closest thing to a written blueprint for a coup d'état in American history — a document authored by a credentialed constitutional scholar that reduced the overthrow of an election to a six-step checklist. ## The Six Steps Eastman's plan, in its most aggressive form, instructed Pence to: **Step 1**: When he opened the electoral certificates on January 6 (his ceremonial role as President of the Senate), Pence would announce that the seven states with "competing" slates of electors (the fake electors created by [[Kenneth Chesebro]]'s scheme) could not be counted. **Step 2**: Pence would declare that with those seven states excluded, no candidate had achieved 270 electoral votes (the constitutional majority). **Step 3**: Pence would then either (a) declare Trump the winner based on a count that excluded the contested states, or (b) invoke the [[Twelfth Amendment]]'s contingency procedure, sending the election to the House of Representatives for a "contingent election." **Step 4**: In a contingent election, each state's House delegation gets one vote (not each individual member). Because Republicans controlled 26 of 50 state delegations, Trump would win despite Democrats having more total House members. **Step 5**: Democrats and some Republicans would object, but Pence would use his role as presiding officer to override or dismiss objections. **Step 6**: If challenged in court, the Supreme Court would likely either refuse to intervene (political question doctrine) or rule in Trump's favor, with Eastman apparently counting on sympathetic justices including his former boss, Clarence Thomas. ## The Constitutional Theory Eastman's argument rested on an aggressive reading of the Twelfth Amendment and the Electoral Count Act of 1887: **The Vice Presidential Power Claim**: Eastman argued that the Vice President's role in "opening" electoral certificates was not merely ceremonial but included substantive authority to reject electors he deemed illegitimate. This interpretation had no support in constitutional history, practice, or scholarship — every previous Vice President had treated the role as ministerial. **The "Competing Slates" Premise**: The entire plan depended on the fake electors scheme producing "competing" slates that Pence could point to as creating genuine ambiguity. Without Chesebro's fake certificates, there were no competing slates and Eastman's theory had no trigger mechanism. The two operations were designed to work in tandem. **The Historical Analogy**: Eastman pointed to the disputed 1876 election as precedent, but that election actually demonstrated the opposite of his argument — it was resolved by a bipartisan electoral commission, not by the Vice President acting unilaterally. ## Why Pence Refused Pence consulted with multiple legal advisors, including former Vice President Dan Quayle and retired Judge J. Michael Luttig (a conservative icon), all of whom told him he had no authority to do what Eastman proposed. Luttig publicly described the Eastman plan as "wrong at every turn" and said it would have plunged the nation into a constitutional crisis with no legal resolution. Pence's January 6 letter stated that he did not believe he had the power to "determine which electoral votes should be counted and which should not." This decision — arguably the most consequential act of constitutional fidelity in modern American history — prevented the Eastman plan from being executed. ## The January 4 Meeting Two days before January 6, Eastman met with Pence and his legal team in the Oval Office, with Trump present, to argue for the plan. According to testimony before the [[January 6 Select Committee]], Eastman acknowledged that his plan would likely be struck down by the Supreme Court 9-0 — but pressed forward anyway, suggesting that Pence should at least delay the certification to give state legislatures time to act. This admission is analytically critical: Eastman knew his constitutional theory was legally indefensible but promoted it as an operational plan regardless. The memo was not a good-faith legal analysis; it was a political strategy document dressed in constitutional language. ## Legal and Professional Consequences **Disbarment**: Eastman was disbarred in California and the District of Columbia for ethical violations related to his post-election conduct. **Georgia RICO Indictment**: Indicted alongside Trump and other co-defendants in Fulton County. **Federal Indictment**: Named as a co-conspirator (though not charged) in Special Counsel [[Jack Smith]]'s federal case against Trump. **January 6 Committee**: The Committee obtained the memos despite Eastman's claims of attorney-client privilege, with a federal judge ruling that the documents were likely evidence of a crime and therefore not privileged — a judicial finding that the memo constituted participation in a criminal conspiracy. ## The Electoral Count Reform Act One direct consequence of the Eastman Memo was the Electoral Count Reform Act of 2022, passed with bipartisan support, which explicitly clarified that the Vice President's role in counting electoral votes is "solely ministerial" — codifying what everyone had previously understood as obvious. The fact that Congress felt the need to pass a law stating that the Vice President cannot unilaterally overturn elections is itself a measure of how close the Eastman plan came to being executed. ## Analytical Framework The Eastman Memo is the **constitutional theory layer** of the [[Stop the Steal]] operation. Every component of the coup attempt had its own function: Chesebro designed the fake electors mechanism, Clark attempted to weaponize the DOJ, Alexander organized the street-level movement, Save America monetized it, and Eastman provided the constitutional argument that tied all the pieces together. The memo's significance extends beyond January 6. It demonstrated that credentialed legal scholars from elite institutions (Eastman clerked for Thomas; the Claremont Institute is a prestigious conservative think tank) were willing to produce legal arguments they knew to be wrong in service of overturning an election. The memo was not a mistake or a good-faith disagreement — Eastman admitted it wouldn't survive judicial review. It was a blueprint designed to be executed before courts could intervene. This represents a failure of the legal profession's gatekeeping function: the assumption that lawyers and legal scholars will produce honest analysis, even when politically inconvenient, is one of the democratic system's guardrails. Eastman broke that guardrail deliberately.