CRB: The Eastman memos

The new (Fall) issue of the Claremont Review of Books is now online and in the mail. I just received the galley on Monday and am in the process of picking out essays and reviews to feature on Power Line, as usual. To kick things off, I have the exchange published in the issue under the rubric of The Disputed Question. The question is the soundness of John Eastman’s memo(s) on the role of the vice president in certifying the Electoral College vote.

Advising President Trump, Eastman and his memos played a role in the events leading to the events of January 6. Constitutional scholar Joseph Bessette reconstructs the role of the memo(s) and thoroughly examines the merits of Eastman’s analysis in “A critique of the Eastman memos.” Eastman himself responds in “Constitutional statesmanship.” I submit The Disputed Question to interested readers.

John’s memo(s) are not the end of the story concerning his role in the events of January 6. It should be noted that John was also a part of the show warming up the crowd for President Trump at the rally that day. John spoke following Rudy Giuliani. His remarks appear at about 2:25:00 of the C-SPAN video of the rally.

In his brief speech, John “demand[ed Vice President] Pence” to do something other than announce the result of the Electoral College vote. Pence was to defer announcement of the Electoral College vote and “let the legislatures of the states look into this [vote fraud] so we get to the bottom of it…” John told the crowd, “We no longer live in a self-governing republic if we can’t get the answer to this question…” In his conclusion John stated, apparently referring to Pence, “Anybody not willing to stand up and do it does not deserve to be in the office. It’s that simple.”

John also appears in the October 29 Washington Post story on the riot later that afternoon. The Post story reports:

As Vice President Mike Pence hid from a marauding mob during the Jan. 6 invasion of the Capitol, an attorney for President Donald Trump emailed a top Pence aide to say that Pence had caused the violence by refusing to block certification of Trump’s election loss.

The attorney, John C. Eastman, also continued to press for Pence to act even after Trump’s supporters had trampled through the Capitol — an attack the Pence aide, Greg Jacob, had described as a “siege” in their email exchange.

“The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so that the American people can see for themselves what happened,” Eastman wrote to Jacob, referring to Trump’s claims of voter fraud.

Eastman sent the email as Pence, who had been presiding in the Senate, was under guard with Jacob and other advisers in a secure area. Rioters were tearing through the Capitol complex, some of them calling for Pence to be executed.

When I sought to confirm the accuracy of the Post account, John Eastman wanted it to be understood that Pence general counsel Greg Jacob had accused John of inciting the riot because of his “bullshit” legal theories. John responded that if “they” had “sent things back to the legislatures as I had recommended, maybe we wouldn’t be in this situation. Both of us were angry and intemperate. He subsequently apologized for his language.” I do not understand John to dispute the Post account.

Readers are invited to make up their own minds on the merits of John’s analysis. Institute chairman Tom Klingenstein and president Ryan Williams have posted a statement “Against censorship and misrepresentation” dated October 11. Given John’s role in the events of January 6 and his affiliation with the Claremont Institute, however, I think it is incumbent on the institute to say more (as I have told Tom Klingenstein directly). My own view is that Vice President Pence conducted himself with courage and honor on January 6, fulfilling his duty as he saw it and set it forth in his “Dear Colleague” letter of that date.

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