Trump co-conspirator John Eastman doubles down on legal theory behind illegal attempt to overturn the 2020 election: “There are huge constitutional issues here”
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From the August 2, 2023, edition of Salem's The Charlie Kirk Show as broadcast on Real America's Voice
CHARLIE KIRK (HOST): John, I want to make sure you have an opportunity, in your own words, to explain what is going on. There’s so much misinformation and disinformation in the media about you. So, let me just ask you very simply: what was the plan that you and the Trump team had leading up to January 6? John Eastman, the floor is yours.
JOHN EASTMAN (GUEST): Well, first was to challenge the illegality that everybody admits occurred in the election. People were changing state statutes without any legal authority; that made those elections unconstitutional. The courts refuse to hear these cases, and so we recommended to Vice President Pence that he accede to requests from more than 100 state legislators to give them time to assess the impact of the acknowledged illegality, an illegality that Vice President Pence himself acknowledged in his Dear Colleague letter the morning of January 6. He said there are numerous instances of state officials ignoring or suspending state election laws. That made it unconstitutional. And the state legislatures were asking for time to assess the impact because their governors had refused to call them into special session and now they were coming into normal session, and they wanted a week just to assess the impact. And in that week, if they decided the impact was less than the margin of victory, they would recertify Biden electors, and the scenarios memo that I put together specifically says that; if that happens, then they recertify Biden’s electors and Biden wins. That’s in bold print in my memo, but everybody overlooks that. This was – this was contingent on an investigation identifying impact of illegality in the election. This is something every American ought to support. We ought not to throw this stuff under the rug and pretend that it didn’t happen.
KIRK: And contingent on an investigation, that’s awfully rational, John, and something I haven’t heard the media say. So the left-wing media and the Department of Justice, John, is framing you, someone who I really, you know, enjoy and have a lot of respect for and I loved our time together at the Claremont Fellowship, as the kind of mastermind of this, what they call “fraudulent elector scheme.” What’s the truth here?
EASTMAN: Well, the truth is, these electors explicitly, in Pennsylvania and New Mexico, in the certificate itself, and explicitly in contemporaneous statements made by the electors in the other five states, were contingent on this then-still pending election challenges, because if they didn't meet on the designated day, one of the Constitution's provisions says Congress has the power to designate a day for the electors to meet, and it shall be uniform across the country. So if the electors don't meet on the designated day, even if they are later certified as the actual victors, their election – their votes may not count. And this happened once in our nation's history, there was a blizzard in Wisconsin in 1856. They couldn't meet until the next day. And the acting President of the Senate determined to count the Wisconsin electors, but the two Houses after the joint session was over, debated whether that was legal or not for three whole days and didn't come to a conclusion.
So, similar thing happened in 1960 with the Kennedy electors in Hawaii, they were not certified. They had lost the election on election day in November. They met anyway and cast their contingent votes. And then when the election challenge ended up going Kennedy's way, those votes were available to be counted in the joint session of Congress. So, nothing untoward here. This is, you know, both supported by historical precedent and law, but it's part of this narrative that these were fake electors, and therefore it was, you know, a fraudulent effort to interfere with the election. Nothing could be further from the truth.
KIRK: And part of this also was hinging on the Vice President. And from my understanding, you were encouraging state legislators to pass legislation to question, at least get to the bottom of the election results. To your knowledge in American history, has anyone ever gone to prison or been indicted for encouraging the government to pass a bill?
EASTMAN: No, no, in fact, there's actually a provision in the Constitution. It's a, you know, we all know the First Amendment’s free speech clause, but there's another clause, the right to petition the government for redress of grievances. We had a big grievance here, and asking the government to do something about it, or at least to look into it is the very essence of petitioning the government for redress of grievances. So, there are huge Constitutional issues here. And I look forward to President Trump and his current legal team vigorously raising those defenses in response to this latest indictment.
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EASTMAN: I suppose it's good news from my point of view that I'm an unindicted co-conspirator rather than an indicted co-conspirator. I look forward to maybe being called as a witness to come to President Trump's defense, because getting legal advice about contested interpretations of Constitutional provisions is not, and never has been, and never should be a criminal action. What's really going on here is an attempt to prevent people who are unpopular with the elites in our country from having competent legal representation –
KIRK: Yes.
EASTMAN: From having any representation at all.
The effort by the 65 Project to go after every one of the attorneys that was involved in any of these election challenges, they make no bones about it. They specifically said our goal here is not just to have them disbarred, but to make them toxic in their firms, in their communities, so that right-wing legal talent will never take on these election challenges again. Of course, if that succeeds, then it clears the path for, you know, complete manipulation of election processes without anybody willing or able to step up to challenge it in the courts.
KIRK: And so John, I think it's important just to take a step back for a second and remind our audience, what was the context of the 2020 election? None of this is mentioned in the indictment. You said it perfectly – unconstitutional, changing of state-based voting laws, right? We had mass mail-in ballots, we had late-night counting suspicious activity. We had an unprecedented, just – let's say, spike of reporting. And so John, when you were getting into this, and you were starting to advise the President, I think it's helpful to remind our audience and of course, Department of Justice who is watching this stream right now, the intent, the intent that you had was to get to the truth. Is it now a crime to use the legal system to get to the truth of an election?
EASTMAN: Well, they're certainly trying to make it a crime, or at least make it so miserable for people trying to do that, that nobody else will want to step up in the future. Look, Article II of the US Constitution is quite clear, the power to direct the manner for choosing presidential electors is vested in the legislature of the state. Not the Secretary of State, not the County Clerk, not the Attorney General, not the Governor. They are not legally authorized to make changes to the election code. If the election, if the legislature has chosen to have their electors chosen by an election, they could just choose the electors themselves as many of the states did at the beginning of our nation's history for nearly a half a century. But, when they set up an election code, that becomes the manner of choosing electors, and individual actors in the Executive or Judicial branch don't have the legal authority to alter that. They did. They changed deadlines, they altered signature verification process. Or in Pennsylvania eliminated it altogether. They added drop boxes, they got rid of voter ID in Wisconsin. Both of those things have been subsequently held to have been illegal, which means also unconstitutional.
The question in my mind was not whether those illegalities are clear, that's obvious. The question is whether it had an impact on the election such that, politically, in order to determine who the actual winner was, they should take account of that. And in Wisconsin, the significant report by former Wisconsin Supreme Court justice Mike Gableman identified a couple hundred thousand ballots that were affected by the illegality. An illegality, for example, the secretary of State barred bipartisan teams from observing in nursing homes, as the law required. That was not only illegal, but it opened the door for a massive and proven fraud, because the ballots that came out of those nursing homes are, in many thousands of instances, in the same handwriting. And so this kind of illegality opened the door for fraud. In numerous instances we've proved the fraud occurred, and the amount of the fraud caused by that illegality was much greater than the 20,000 vote margin in Wisconsin. So this happened in all of the swing states and the notion that we should just forget about it and pretend it didn't exist, it's like that old famous movie where the guy, you know, big explosions going on behind him and he says, “nothing to see here, move on, move on.”
KIRK: That’s exactly right. So, John just a couple of minutes in this segment, the piece that I think is most in public contention right now is the Mike Pence piece. Mike Pence says I had no Constitutional authority. This was a legal coup, bad advice. I had no – I had no right to send this back to the States. What is the truth?
EASTMAN: Well, the truth is much more complicated and nuanced than that. And it's an open question. The language of the 12th Amendment which parallels the language of the original Article II, says that the Vice President shall open the certificates in the presence of the House and Senate and then they shall be counted. The House and Senate are there to observe, not to have any role in the counting. And there have been significant legal scholars that have held that means the Vice President has the judgment authority if there is a legitimate dispute about the validity of electoral certificates. Pence decided he was just going to be a potted plant. And by the way, proof – proof that this was an open question, Congress altered the Electoral Count Act, because they recognized the prior version of it was ambiguous on whether the Vice President had a role.
They made it more unconstitutional, rather than less, however, because you can't, by statute, usurp powers that the Constitution vests in another Constitutional actor. So the Vice President basically punted. He said I'm just a potted plant up here, my role is to be a very high-priced letter opener, and that's it. Well, I'm sorry, the Constitution and our founders did not create any office with so little judgment ability, and we should have gotten to the bottom of this, as the state legislatures were asking – legislators – were asking, but he chose not to, and just keep it under the – they don't want to go anywhere here.
KIRK: John, stay right there. I want everybody to support his legal fund.