The House committee investigating the coup attempt has gotten additional emails from the lawyer who assisted in the planning of Donald Trump’s scheme to overthrow the 2020 election. They expose a whole new level of planning behind that attempt, which was considerably more malevolent than previously suspected.
But the emails also raise worries about the future: What do these fresh discoveries tell us about the future attempts to steal a presidential election? And may future circumstances change in a manner that would support such a scheme?
The responses to these inquiries are troubling. However, they also provide a means through which we might protect ourselves from the worst. Congress to act?
The emails from attorney John Eastman reveal that he urged Republican state lawmakers in Pennsylvania to throw doubt on the 2020 vote totals in order to provide cover for the certification of Trump’s presidential electors. Politico reported that the select committee got the emails from the University of Colorado, where Eastman worked at the time, on January 6.
Eastman’s plan had an extra layer. We were previously aware that his strategy hinged on encouraging Trump’s vice president to misuse his position in the congressional count of electors to disrupt the outcome of the election.
In these new emails, Eastman is seen concocting an excuse for state legislatures to nullify Joe Biden’s electors and certify fraudulent Trump electors. He tells a Pennsylvania lawmaker to employ a sophisticated math — based on deeming mailed-in ballots as invalid — to extrapolate that a sufficient number of Biden votes are fraudulent to demonstrate that Trump won the popular vote.
Then, having done that math, you’d be left with a significant Trump lead that would bolster the argument for the Legislature adopting a slate of Trump electors — perfectly within your authority to do anyway, but now bolstered by the untainted popular vote. That would help provide some cover.
Eastman tells the lawmaker to claim that Biden’s certified electors are thus “null and invalid.”
This is remarkable material. Eastman urged a state legislature to invent a pretext for declaring the correct Biden electors certified by the governor illegal and instead certifying Trump electors.
First, remember that Trump has likewise engaged in similar conduct. When Trump exerted pressure on the Georgia secretary of state to “find” votes to ensure his victory, he was attempting to construct a similar excuse for replacing Biden voters with Trump electors.
“Eastman wasn’t doing anything that Trump wasn’t doing himself,” Rep. Jamie Raskin (D-MD), a member of the Jan. 6 committee, stated. “They were both trying to get officials in the electoral process to substitute a counterfeit for the actual vote totals.”
“Eastman was seeking to implant a new mathematical calculation contrived to produce a Trump win in Pennsylvania,” Raskin said.
The emails from Eastman indicate that the manipulation of vote totals to provide “cover” for state legislatures to nominate fake Trump electors was more crucial to the plot than previously believed.
Whether this increases Eastman’s and others’ exposure remains to be seen. But this also has other significant ramifications: it clarifies a potential path via which malicious actors may attempt to undermine a future election.
Notably, Eastman mentions, almost as an afterthought, that state legislatures have the power to nominate additional electors even if the popular vote totals do not warrant it.
“Eastman’s view is that the legislature has absolute power in terms of picking presidential electors,” elections expert Richard L. Hasen said, even if that means “ignoring the will of the voters” or “the legislature’s prior rules on how to pick those electors.”
Hasen argues that in the future, negative actors may see this as “a means to steal an election.”
In addition, numerous Republicans in thrall to Trump’s 2020 falsehoods are already campaigning for positions of power over state electoral apparatus, such as secretary of state.
Importantly, such individuals would be able to construct the precise pretense that Eastman envisioned. How? Creating “cover” for a state legislature and/or governor to certify fraudulent electors on behalf of a losing candidate by casting doubt on the results of the popular vote. A House controlled by the GOP may then count these electors in order to swing a state or even an election.
Eastman has laid out the blueprint. “This shows the country one more strategic booby trap that was improvised by Trump’s team that can sit there for use by bad-faith actors in future elections,” Raskin said.
Currently, such a situation may look implausible. All of this highlights the urgent need to modify the Electoral Count Act of 1887 in order to reduce the likelihood that such an effort will be made.
Properly implemented reform might prevent a repeat of Eastman’s precise plan. It might provide that if a state attempts to certify fictitious electors, Congress shall only count the slate that the courts judge to be legal.
“Congress absolutely must reform the ECA to clarify that no state officials — not governors, not state secretaries of state, and not state legislators — can manipulate which electoral votes it will count,” legal scholar Matthew Seligman, an expert on the ECA, stated.
“The only way to do that is to require that Congress follow courts’ decisions about which electors are valid,” Seligman said.
If Congress does not intervene, it will be necessary to depend on the virtue of individuals in key positions to foil the program.