The Author of the ‘Coup Memos’ Sticks to His Story
The Author of the ‘Coup Memos’ Sticks to His Story
As storms gather for John Eastman—with disbarment possible and prosecution, too—he’s clinging to his falsehoods and debunked theories.
AS PRESS ATTENTION STAYS LARGELY FOCUSED on Donald Trump’s legal situation—he’s up to two and a half indictments, and counting—it’s worth taking a moment to check in on one of his chief accomplices in the effort to overturn the results of the 2020 election: constitutional law scholar and Claremont Institute stalwart John C. Eastman, author of the notorious “coup memos.”
Before digging into the many recent developments in Eastman’s case, here’s a quick refresher on his role in the political crisis: Recruited by the Trump team in late 2020, Eastman allegedly played a crucial role in developing the strategies President Trump pursued to retain power. In Eastman’s short and long memos, he spelled out a theory under which Vice President Mike Pence could reject electoral votes on January 6, 2021 (a theory Pence declined to act upon). On the morning of Jan. 6th, Eastman spoke at the “Save America” rally alongside Rudy Guliani, telling the cheering crowd, “We know there was fraud, traditional fraud.” A short while later, many members of that crowd were attacking the Capitol.
So how are the Trump investigations affecting Eastman? And does he continue to stand by the factual claims and constitutional theories he promulgated in late 2020?
TWO WEEKS AGO, on July 16, Trump was served a “target letter” from special counsel Jack Smith, which signaled that charges would likely be forthcoming in Smith’s investigation of the 2020 election aftermath. Eastman’s lawyers have since maintained that their client has not received a similar letter and argued that this reflects the fact that he did nothing that could be construed as illegal while counseling Trump in late 2020 and early 2021.
But apart from the lack of a target letter, the signs aren’t especially promising for Eastman.
In March 2022, while adjudicating a dispute between the House Jan. 6th Committee and Eastman over which of Eastman’s emails were legitimately covered by attorney-client privilege, a federal judge in California wrote that the actions of Eastman and Trump “more likely than not” constituted an attempt to obstruct the workings of Congress on Jan. 6th. The judge’s assessment of their actions was unambiguous:
If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution.
The reason for the privilege dispute in the first place was the significant focus the Jan. 6th Committee gave to Eastman’s role during its investigation. In December 2022, that investigation culminated in the committee’s final report recommending that Eastman be investigated and potentially charged both for “obstruction of an official proceeding,” “conspiracy to defraud the United States,” and “conspiracy to make a false statement.” According to recent reporting, Trump’s target letter indicates that at least one similar charge might be brought against the former president.
Two days after Trump received his target letter, sixteen Republicans in Michigan were charged with numerous felonies related to their roles as “fake electors” in an attempt to subvert the 2020 election results for their state. (Fake electors from some other states are feeling the heat as well, while others have reportedly cut immunity deals with prosecutors in exchange for their testimony in Washington, D.C. and Fulton County, Georgia.) The scheme to provide official-looking documents from electors casting votes for Trump in states Biden won (theoretically giving Pence the option of acting to resolve the “disputed electoral votes” by delaying the count, sending the issue back to the affected states, or even declaring Trump the winner outright on Jan. 6th during Congress’s verification of the election results) was delineated by Eastman in the longer of his coup memos.
As a lawyer for one of the defendants in Michigan’s fake elector case put it, “If they want to charge my client, how come they didn’t charge Trump and the Trump lawyers that he sent here to discuss with the delegates what to do?” It’s a fine question, and it ought to weigh heavily on Eastman’s mind. Eastman did a virtual visit with Georgia legislators in December 2020 and explained that, given the “statistical anomalies, and sworn affidavits, and video evidence of outright election fraud,” he thought they had not only the authority, but the duty to compose an alternate slate of electors, “to protect the integrity of the election.”
Not only are people being indicted on charges targeting actions Eastman prescribed in his memos, but legal theories he relied on to make his claims are being refuted in definitive ways. In June, the U.S. Supreme Court rejected the so-called “independent state legislature” doctrine, a controversial theory that holds state legislatures to have plenary power over election procedures, meaning that state courts are largely powerless in that area, and that, in some circumstances, legislatures may even have the power to choose slates of electors independently, overriding the choice of the voters, even after an election has taken place. Eastman made this theory a load-bearing part of the architecture of his plan to subvert the results of the 2020 election: He appealed to it in his discussion with the Georgia legislators as well as in his long memo, and he filed an amicus brief supporting the theory in the case that went before the Supreme Court. Its repudiation further cracks the already-shaky legal foundation for the scheme he propounded.
EASTMAN HAS ALREADY EXPERIENCED some personal consequences for his actions related to the 2020 election scheme, having lost two university positions over them. And this past January, the State Bar of California filed disciplinary charges against him, with a view to disbarment. As the news release put it:
The 11 charges arise from allegations that Eastman engaged in a course of conduct to plan, promote, and assist then-President Trump in executing a strategy, unsupported by facts or law, to overturn the legitimate results of the 2020 presidential election by obstructing the count of electoral votes of certain states.
The hearings for Eastman’s disbarment case began in June, and while they’re currently in recess, the week’s worth of proceedings so far offer intimations of how a criminal case against Eastman might go down.
NPR reporter Tom Dreisbach’s live Twitter coverage of the early days of the proceedings, including Eastman’s own questioning, documents a rare, prolonged encounter between two alternative epistemic universes. On the one side is the court and its officials, including the judge for the case, Judge Yvette Roland, and the lawyers for both parties. On the other side is Eastman and his strange array of “expert” witnesses, many of whom—including a CPA who self-published an ebook about the 2020 election and an analyst who refused to turn over his data to the state bar—Roland refused to permit to appear on account of their lack of relevant expertise.
Much of the case against Eastman rides on the state bar’s claim that his “conduct was fundamentally dishonest” throughout his association with Trump in the lead-up to Jan. 6th. That claim is still being proven, but the hearings so far have at least shown that if Eastman isn’t dishonest, his judgment has repeatedly been corrupted by extraordinary credulity and motivated reasoning when it comes to his beliefs about election fraud and his utter failure to prove their veracity.
The disbarment proceedings have also brought into sharper focus several details relating to Eastman’s role in the Jan. 6th conflagration and what followed. These include Eastman’s tense email exchanges with Vice President Pence’s counsel Greg Jacobs, the general havoc that election denialism has caused for election officials across the country, and Eastman’s habit of repeating now-debunked theories about fraud and supposed irregularities (including one claim by a trucker in Pennsylvania who also appears to be an “amateur ghost hunter” with a history of mental health issues). The gulf between the Eastman coterie and the judge and lawyers continues to widen: Among the witnesses Eastman intended to call was Garland Favorito, another known conspiracy theorist. Meanwhile, the state bar has relied on election officials, other election experts, and political scientists to make their case. The contrast is damning.
As excruciating as the spectacle of the disbarment proceedings has been, I suspect that John Eastman remains unfazed by it. He might be physically present at the hearings, but his mind is traversing the intellectual upside-down of the Claremont universe, where hostile arguments can’t touch him. Over two and a half years have passed since the 2020 election. The longer he pursues his empty claims of fraud, the further he gets from the norms and institutions that give shape to everyday American reality, and the deeper he gets into a different, darker place.
IF YOU WERE IN THE MOOD TO VISIT that other place, you could do worse than visiting the website of Tom Klingenstein, the chairman of the board of the Claremont Institute and apparently its biggest single financial backer. (Every year since 2015 for which there are publicly accessible records, he has given over $2.5 million to the institute through the Thomas D Klingenstein Fund. According to the institute’s 990 tax forms, these sums constitute a major share of the organization’s revenue. In 2021, for instance, he donated nearly $3 million directly to the institute; that year, its total revenue from contributions and grants was around $8.5 million.)
This major benefactor of the Claremont Institute is also a strong backer of Eastman. After the coup memos were first reported on, in the waning days of summer 2021, Klingenstein and Claremont Institute President Ryan Williams released a statement of support for Eastman. And although the Claremont Review of Books published a devastating critique of the coup memos by Joseph M. Bessette in its Fall 2021 issue (as well as a response from Eastman), the author of those memos has not lost any standing with the institute: He retains his position as the director of the Claremont Center for Constitutional Jurisprudence (his compensation for this position was reported at $166,425 in 2022) as well as a place on its board of directors.
Recently, Klingenstein posted two installments of an interview series with Eastman—a third is apparently forthcoming—to his website. The videos comprise some of the most high-minded material on Klingenstein’s belligerent site, which is organized around the concept of “The War” and its attendant “Battles” against the “Woke Communists” of the totalitarian regime run by the Democratic party. He appears to be finding his audience: A couple of Klingenstein’s speeches have received over a million views on YouTube.
The Eastman interviews haven’t clocked numbers anywhere near that big—they’ve each had only about 11,000 views to date—but they certainly make for intriguing and disturbing viewing. In the first installment, Klingenstein goes through many questions about the 2020 election that a “skeptic” of Eastman’s theories might pose, promising at the outset not to give him too many softballs. The second takes up the question of whether, supposing the election had been stolen, there was a proper legal remedy. (In other words, the first video is about election denial, and the second is about the coup memos.) Each video concludes with a prolonged appeal to Eastman’s legal defense fund, which has so far raised nearly $470,000.
While these Klingenstein-Eastman conversations take up interesting hypothetical questions about constitutionalism, the Founding, and election law, there are moments throughout that are completely unhinged. Some highlights:
Eastman claims to have done a calculation, assuming irregularities and fraud, and determined that “in each of the swing states, the number of ballots that are provably illegal or circumstantially illegal” exceeds the margin of victory.
Eastman estimates—“my best guess,” he calls it—that Trump would have picked up 200,000 votes in Pennsylvania alone if the election had been conducted legally. (Trump lost the state by 81,000 votes.)
Eastman declares point blank that “the very fact that the election was not conducted in the manner that they had directed, meant that it was an illegal election.”
Eastman repeats the lie that in Pennsylvania there was a “200,000 differential between the number of votes that were cast and counted and the number of people that the state voter-registration rolls show as having cast the vote.”
Eastman doubles down on the conspiracy theory about the Pennsylvania truck driver who brought in a truckload of two hundred thousand or so ballots from Long Island into Philadelphia.
Eastman also repeats conspiracy theories about the security videos of poll watchers in Georgia—conspiracy theories that were debunked years ago by (Republican-led) state officials in Georgia.
Eastman claims that Trump won about a dozen of the cases against him in court, which is false.
Eastman says that he thinks Dinesh D’Souza’s paranoid conspiracy-theorizing movie 2000 Mules is “more than credible, I think it’s very accurate.”
Eastman also plugs Joseph N. Fried’s book Debunked?, which concluded that in each swing state the votes should have gone to Trump. (Fried is the CPA whom Eastman wanted to speak on his behalf in his disbarment proceedings.)
Eastman outright denies that he advised Vice President Pence to halt the election count. He claims that under the circumstances, given that there was only one slate of electors that had been certified, “it would be foolish to exercise such power.” This claim is in plain contradiction with the testimony of Greg Jacobs and the email evidence from Jan. 6th.
It is not worth going through all the ins and outs of these videos, though any lawyers involved in pending litigation against Eastman would do well to consult them. The bottom line is that whatever the merits of his convoluted hypotheticals, there was no compelling evidence of widespread election fraud or illegality in 2020, and there isn’t any today, either.
But Eastman appears impervious to these truths and their implications, instead continuing on with his teetering tales. As he tells Klingenstein, “My whole career and my education before my career have equipped me probably better than almost anybody else in the country to be able to address the serious constitutional issues that are at stake here and to have the temerity to fight back against it.”
At one point, Klingenstein suggests—indulging in something like the kind of equivocal postmodern play that Claremont scholars used to rail against—that “everything seems to be contested, and there are usually arguments on both sides.”
That may be true enough in the abstract. We’ll see what the courts have to say.
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