Donald Trump’s Legal Theory Destroyed – Back in the summer, in a particularly damaging move for Trump supporters, the Supreme Court of the United States (SCOTUS) struck down what was former President Donald J. Trump’s legal theory that undergirded his claim that the 2020 Presidential Election was stolen away from him by the Democrats.
This theory, created by a controversial—though brilliant and accomplished—legal scholar, John Eastman, argued that the vice-president of the United States, Mike Pence, did not have to certify the results of the 2020 Presidential Election.
A Theory In Search of Facts
Instead, Eastman’s legal theory called for the vice president refusing to certify the results of the election and kicking it back to the states for the individual state legislators to name new electors, presumably friendlier to the Trump Campaign, to vote again.
Eastman based his unique legal theory that argued the Electoral Count Act was unconstitutional and was somehow–in his mind–a violation of the twelfth amendment.
Supporters of this argument, such as Rep. Louie Gohmert (R-TX), went further by claiming that Thomas Jefferson, as vice-president presiding over his own election certification in the contentious 1800 Presidential Election against President John Adams, made the preposterous claim that Jefferson had effectively stolen the election from Adams. That, as the presiding Senate officer overseeing the election certification in 1800, Jefferson chose which ballots he wanted to count.
A closer examination of the historical record clearly proves that Jefferson did no such thing.
Nevertheless, Eastman’s dubious legal theory became the crux of Trump’s challenge to the outcome of the 2020 Presidential Election.
In Eastman’s view, because the ballots in seven key states in the 2020 Presidential Election may have been fraudulent, Pence could deploy Eastman’s theory during the certification process to demand that those seven states redo the election and send a different set of electors for certification to be done by Vice President Pence at a later date.
None of the seven states in question, though, wanted to send a new slate of electors as they argued their elections were legitimate.
Rallying in Washington, D.C. on the day of certification—January 6, 2020—Trump supporters wanted to show their support for the forty-fifth president by protesting outside of Congress, where Pence was conducting the certification.
Meanwhile, Eastman had gathered with key Trump advisers in the “war room” at the Willard Hotel to place pressure on Pence and his staff up-to-the-last-minute of his time certifying the controversial election results that day.
It is believed that the infamous riot that erupted on that dreadful day was, in part, the result of overzealous Trump supporters growing irate at the knowledge that Pence was not going to follow Eastman’s legal theory and refuse to certify the election.
As Pence and his legal team have argued from the beginning, though, there was no basis for Eastman’s theory.
The North Carolina Case
And the SCOTUS back in June proved that with their recent ruling in Moore v. Harper. In that case, the North Carolina state legislature drew up a new congressional map—they redistricted—that the North Carolina Supreme Court disapproved of.
According to defenders of the 2022 North Carolina congressional district map that the state legislature concocted, it didn’t matter what issue the state supreme court had with the new map. The legislature believed their right to redistrict was protected even from ordinary checks-and-balances.
The case ultimately made it to the SCOTUS where the justices there sided with the notion that, of course, the North Carolina Supreme Court can challenge the state legislature.
What’s more, the SCOTUS’ conservative justices—including two appointed by former President Trump, Amy Coney Barrett and Brett Kavanaugh—sided with the majority. This decision not only reset the congressional map in North Carolina, but it set a major legal precedent which negated any standing that Eastman’s gonzo theory may have had.
As for John Eastman, by all counts, a gifted, brilliant, respected (though conservative and therefore automatically viewed as controversial) legal scholar, is now widely discredited and risks being disbarred.
This is truly tragic.
While he may have become far too fixated on his unorthodox legal theory, he was serving the interests of his client, President Donald Trump. It wasn’t long ago that lawyers who crafted creative and unique theories to serve their clients were rewarded.
But, since it’s Trump, not only is the former president being punished for embracing the theory but they are also in California (where Eastman is based) trying to have Eastman disbarred.
A Strange Double-Standard
It is a strange double standard. After all, John Eastman is hardly the first attorney to work for a politician challenging the outcome of an election.
Point in fact, President Joe Biden’s first chief of staff, Ron Klain, was the brains behind former Vice-President Al Gore’s legal challenge to the George W. Bush victory in my home state of Florida.
Angry that the SCOTUS during the 2000 Recount ordered that all votes in Florida be recounted, rather than just the four blue counties that Klain wanted, Klain was known as an evangelical on pressing Gore’s challenge to the election outcome—so much so that he was ultimately drummed out.
Was Klain threatened with disbarment? Did he suffer any legal ramifications for having represented—indeed having been the leader of—the election deniers in 2000?
In fact, he was rewarded by having a fawning film made about him in 2008 (HBO’s Recount), and ultimately rose to become the forty-sixth president’s very powerful chief of staff!
Eastman’s theory was outlandish. But it was no crazier than the theories undergirding Ron Klain’s obsession with overturning the 2000 Presidential Election results.
What’s more, our system, replete with its checks-and-balances, has a way of sorting these issues out without the need to pile on with partisan, frankly crazed, overreactions in the press.
Just look at how the SCOTUS threw out the North Carolina case. A case that everyone knew, had SCOTUS ruled in favor of North Carolina’s legislature, would have been used as the primary example by the Trump people to justify their endless challenge to the 2020 Presidential Election results.
John Eastman and those legal scholars who supported him (what few there were) were not insurrectionists. They were serving their client, the former president, to the best of their ability.
Destroy the Idea, Not the Man
The majority of people can see that Trump was wrong in the way he went about challenging the 2020 election results. Trump has suffered in terms of favorability—among the all-important independent voters—because of his irreversible actions in the wake of the 2020 Presidential Election.
Trump’s legal theory has been destroyed.
Why must we also destroy the minds of the legal scholars who crafted it on behalf of their client? Isn’t that what attorneys are supposed to do? What Ron Klain did in 2000?
It’s very strange—grossly unfair—times we live in.
A 19FortyFive Senior Editor, Brandon J. Weichert is a former Congressional staffer and geopolitical analyst who is a contributor at The Washington Times, as well as at American Greatness and the Asia Times. He is the author of Winning Space: How America Remains a Superpower (Republic Book Publishers), Biohacked: China’s Race to Control Life (Encounter Books), and The Shadow War: Iran’s Quest for Supremacy (July 23). Weichert can be followed via Twitter @WeTheBrandon.