Eastman cites Declaration of Independence to justify rejecting election results

In a new interview, the unindicted co-conspirator says it was the people's "duty to alter or abolish the existing government" if there were abuses by Democrats

One of the unindicted co-conspirators, John Eastman, said in a recent interview that his advice to Trump was similar to that of the founding fathers in the Declaration of Independence which was if there are abuses, it is the people’s “duty to alter or abolish the existing government”

Eastman is a lawyer from a far right-wing think tank, the Claremont Institute, that promotes the idea that liberals are trying to not only take over the country but to wipe out right-wing ideology. Eastman contends that Democrats believe “that we are the root of all evil in the world and we have to be eradicated.”

Given those enormous stakes, which are obviously fanciful, Eastman proposed a plan in which Pence would throw the election into turmoil. Pence would refuse to count the electors in any state that also had a slate of fake electors. Yet, the Constitution doesn’t give the vice president any more than a ceremonial role, a fact Eastman had previously acknowledged.

According to Eastman’s plan, Pence could declare Trump the winner, send the matter back to the states with fake electors, or throw the decision to the House of Representatives.

Eastman himself had made it clear that his plan was illegal, both before and on January 6th, according to the January 6th Select Committee and the special counsel’s indictment.

But Eastman defended the plan in a recent interview by invoking the language of the founding fathers in the Declaration of Independence to overthrow an abusive government. He told Claremont Institute chairman Thomas Klingenstein:

Our founders lay this case out. The prudential judgment they make in the Declaration of Independence is the same one. There's actually a provision in the Declaration of Independence that says, you know, a people will suffer abuses while they remain sufferable. Tolerable while they remain tolerable. But at some point, the abuses will become so intolerable that it is not only their right but their duty to alter or abolish the existing government. So that's the question. Have the abuses and the threat of abuses become so intolerable that we have to be willing to push back?

Article II of the Constitution explicitly leaves it up to states to select electors. Each state assigns them based on the outcome of the popular vote. The founding fathers were concerned about Congress trying to pick a president and specifically stripped lawmakers of this power, except in a tie. The vice president is given only the authority to open the envelopes from the states and read the results.

Eastman explicitly agreed with this at one point. In an October 2020 letter, Eastman wrote:

The 12th Amendment only says that the President of the Senate opens the ballots in the joint session then, in the passive voice, that the votes shall then be counted… Nowhere does it suggest that the president of the Senate gets to make the determination on his own. - Final Report: Select Committee to Investigate the January 6th Attack on the United States Capitol.

Eastman is without a doubt unindicted co-conspirator #2 in the indictment based on detailed descriptions that only fit him. Legal scholars believe he may still be indicted.

After the election, Eastman worked with Rudy Giuliani to convince state lawmakers to overturn their state’s election results. Lawmakers in state after state told them that they had no legal authority to overturn an election, according to the January 6th Select Committee.

Another part of the plan was to organize fake electors in seven states. These electors were chosen by Trump operatives. They signed fake ballots that were not legally certified by the states. They then sent those ballots to Congress, even though they were illegitimate.

Eastman’s plan was to use these illegitimate electors to give Pence cover to argue that he couldn’t determine which electors were real and which were fake. In a memo outlining this plan, Eastman wrote:

BOLD, Certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.

Eastman expected an immediate lawsuit if Pence carried out the plan. But his hope was that the courts would decide this was a political issue and refuse to rule. But he acknowledged that if the courts did take the case, it wouldn’t be good.

On the morning of January 5th, Eastman met with Pence’s counsel, Greg Jacob, and his chief of staff at Trump’s direction. In that meeting, Eastman’s plan was for Pence to reject electors from seven states. According to the indictment, Eastman conceded that if the matter made it to the Supreme Court, they would lose 9-0.

Pence’s lawyer said the proposal would result in a “disastrous situation” where the election “might have to be decided in the streets.”

According to the indictment, Eastman responded to fears of violence “that there had previously been points in the nation's history where violence was necessary to protect the republic.”

In a recent interview, Eastman said the comment about the Supreme Court was twisted:

Greg Jacob got me to agree that if he just simply rejected electors outright, which would be equally a non-justiciable political question, the court would very likely find a way to rule anyway. And 9-0 would rule against that. And I agreed. But then in that same email exchange, I said, but were he merely to delay, I think there's a fair prospect that I would win a majority of the court saying that he could do that.

He also said that the fear of violence shouldn’t have been a concern.

We should not avoid taking the necessary right step to ensure the rightful outcome of the election because of fear of violence by a mob, because then that's mob rule. That's the antithesis of the rule of law.

Eastman gave a fiery speech at the January 6th rally just down the street from the Capitol. In it, he told the crowd that turned into a violent mob:

All we are demanding of Vice President Pence is this afternoon at one o'clock he let the legislatures of the state look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not. We no longer live in a self-governing republic if we can’t get the answer to this question.

In a memo that day, Jacob said Eastman had agreed that no state had indicated any plans to change the results. Yet, according to the indictment, Rudy Giuliani lied to the crowd on January 6th when he told them he had letters from five legislatures “begging us” to send back the electors for review.

The truth was that every state had told Giuliani that they couldn’t reverse the election results.

After the mob had left, at 11:44 p.m. on January 6th, Eastman emailed Pence’s lawyer to say “I implore you to consider one more relatively minor violation (of the law) and adjourn for 10 days to allow the legislatures to finish their investigations,” according to the indictment. Instead, Congress stayed into the wee hours of the morning to complete the vote count.

Pence was heckled by onlookers today asking why he didn’t uphold the Constitution.

“I upheld the Constitution,” he said.

When the onlooker disagreed, Pence said, “Read it.”

The January 6th Select Committee tried to depose Eastman, but he invoked the 5th Amendment. Committee staff asked him if he was willing to say things publicly that he wouldn’t tell the committee. To that, he invoked the 5th.