John Eastman, a conservative lawyer working with then-President Donald Trump’s legal team, said in a radio interview in early January that then-Vice President Mike Pence had the power to throw the 2020 presidential election to the House of Representatives, saying it depended on whether Pence had “courage and the spine.” Those comments are more direct than how Eastman has recently described his conversation with Pence, when he has said he told the vice president it was an “open question” whether he could throw out seven states’ Electoral College votes and that it’d be a “foolish” option to pursue.
Eastman made the comments, unearthed by CNN’s KFile, on the radio show of former Trump White House senior adviser Stephen Bannon on January 2 – just two days before Eastman briefed both Pence and Trump on his controversial memo about how Pence could overturn the election and just four days before January 6, when he spoke at the rally that preceded the attack on the US Capitol.
CNN reported Tuesday that the House select committee investigating January 6 plans to subpoena Eastman if he chooses not to cooperate with its inquiry.
Eastman’s memo outlines a scenario in which Pence would disregard seven states’ Electoral College votes – making sure no candidate received the 270 Electoral College votes required to be declared the winner – thereby throwing the election to the House. Each state delegation would then have had one vote to cast for president, and since Republicans controlled 26 state delegations, a majority could have voted for Trump to win the election.
Eastman claims the memo does not reflect his own views and called the scenario to have Pence reject electoral votes and therefore throw the election to the House not “viable” and “crazy” to pursue in comments to the National Review. He also told CNN the memo was a draft.
In a conversation with CNN, Eastman said that his statements have been consistent and that he told Pence during their January 4 meeting that throwing the election to the House was “the weaker argument” and ultimately did not advise it.
“My statement on Bannon on January 2 acknowledges that that was one of the scenarios that was being discussed. But the issue that I presented to the vice president, when he asked me point blank, I told him, I said, ‘It’s an open question,’ which is true. And I said, ‘I happen to think it’s the weaker argument,’ which is true. And that’s why I recommended that he delay rather than taking that step,” Eastman said.
After CNN pointed out that on Bannon’s radio show, Eastman did not specify that the option to throw the election to the House was the “weaker” option, Eastman responded, “That’s right. Because it was a radio show.”
“I didn’t go into a whole legal treatise about the weights and the demerits. I said, ‘These are the things, these are a couple of things that have been suggested.’ That was certainly one of the paths that had been suggested by a lot of people. Was that the advice I ultimately gave to Pence? No, because I told him I thought it would be foolish to exercise that even if he had that authority.”
After the attack on the Capitol and before the memo was first reported last month, Eastman maintained that he encouraged delaying or pausing the certification of the election, notably after the vice president released a letter on January 6 saying he could not submit to demands to delay or even overthrow the election.
But days before the election certification on January 6, Eastman suggested Pence could do just what his memo outlined.
In the interview with Bannon, Eastman was pressed on whether a contingent election – a procedure used to elect the president if neither candidate secures 270 Electoral College votes – or another “alternative way” was possible to convince Pence to throw the election.
Eastman argued that a contingent election was one of two possible routes to take.
“I think if the vice president, as presiding over the joint session, would at least agree that because those ongoing contests have not been resolved, we can’t count those electors. That, that, that means that nobody has a majority of the electors,” he said. “And either they delay things – so those constitutional challenges are resolved – or they say, ‘OK, well, we don’t have electors from those states, that nobody has a majority. This is going to the House.’”
“Either route requires that we look at what actually happened here and get to the bottom of it,” said Eastman.
The recently unearthed comments come on the heels of a video posted by Democratic activist Laura Windsor, who posed as a supporter and fan of Eastman’s in order to get him to talk with her. In the video, Eastman boasted of the importance of the memo he recently tried to downplay as a draft, and blamed Pence for not carrying it through because he is an “establishment guy.”
‘Courage and the spine’
In the interview with Bannon from January 2, Eastman implied that if Pence had enough “courage and the spine,” he could overthrow the election.
“Are we to assume that this is going to be a climactic battle?” Bannon asked.
“Well, I think a lot of that depends on the courage and the spine of the individuals involved,” Eastman responded.
“When you just said the courage and the spine,” Bannon said, “are you talking on the other side of the football? Would you be, would you be, that’d be a nice way to say a guy named Mike, Vice President, Mike Pence?” asked Bannon.
“Yes,” Eastman answered.
Trump echoed Eastman’s rhetoric about courage when speaking at the rally on January 6. “I hope Mike has the courage to do what he has to do,” Trump said.
In another radio interview from January 4 – the same day that Eastman met with Pence to present options on how to overthrow the election – Eastman said there’s a “very compelling” view that the vice president can throw out the votes, though he doesn’t make clear what he wants – delaying or sending to the House.
“So if somebody were just to say, I don’t like the results, even though they were properly conducted and there’s no evidence of fraud, I don’t like the results as I’m going to certify my favorite slate of electors. The political reaction to that would be so severe and so swift, and nobody would do that. And nobody has done it in 150 years. But what we have here is a systematic violation of state laws by election officials,” said Eastman.
“This level of corruption just can’t be allowed to stand. And I think that makes, I think that makes the exercise of the vice president’s power here very compelling,” he said.
In the interview with CNN, Eastman said he could not recall what he meant by the vice president’s power being “very compelling,” but reiterated he believed the vice president had the power to delay the election and that throwing the election to the House was the weaker of two arguments.