Election Integrity and Constitutional Authority | John Eastman

Full Episode Transcript:

John Eastman: One of the cornerstones of our Republican form of government is consent of the governed. If the elections aren’t free and fair, we no longer control the direction of our government and we cease to be citizens in a free republic. The notion that the vice president has no role whatsoever is just flatly incompatible with the language of the 12th amendment.

Look, so the question is not, as Pence posted, would the founders have wanted one person to have this much power? The question is, if there’s a dispute about the electoral votes, who did the founders want it to be? Resolved by, if he thought that he had an unreconcilable conflict of interest, the remedy is not to pretend he doesn’t have authority that the constitution gives him.

The remedy is to recuse himself and let the next person in line assume the role. That would have been Chuck Grassley.

Matt Kane: Joining me today is Dr. John Eastman, an attorney, constitutional law scholar, and former professor. 19 defendants in the Georgia election case. Doctor, thank you for joining me today. Welcome.

John Eastman: Thanks very much for having me.

Matt Kane: Of course. So your disbarment trial was eye opening for many reasons, but in my view, mostly because of how much substance from your testimony regarding election fraud was cut short and later seemed to disappear from public view.

Now we hear about suppression regarding many topics, the Hunter Biden laptop, Russia collusion, and many more, but it really seems as though the topic of election fraud is truly suppressed almost entirely. Very few people seem to know about the schemes you raise, such as, Duplicate votes, mail in ballot and dropbox dates that don’t match up, chain of custody abuses, and those are just a select few.

Now, America has been long viewed as a country that stands as a beacon of truth and justice. So what does it say about our nation when such critical information is withheld from the public?

John Eastman: one of the cornerstones of our Republican form of government is consent of the governed. We give that in an ongoing way by free and fair elections.

If the elections aren’t free and fair, we no longer control the direction of our government and we cease to be citizens. In a free republic and we become subjects of an increasingly tyrannical government. That’s why the illegality and that was where my focus was on the illegality and the conduct of the 2020 election Is so critically important because if people can cheat to get over the finish line They deprive the american people of that foundational cornerstone That is consent of the governed and that cheating occurred in every single one of the swing states You know, the, constitution article two of the federal constitution is quite clear, the power to direct the manner for choosing presidential electors is vested slowly, solely in the state legislatures.

They do that by their election codes. And when non legislative officials like secretaries of states or county clerks Or even state court judges altered the rules of the game without legislative approval. That was not only illegal under state election law, but unconstitutional under the federal constitution.

And, they’ve, there are lots of examples. they got rid of signature verification in Pennsylvania. They weakened it in Georgia. they, they. They, authorized illegal human drop boxes in Wisconsin. They prohibited the bipartisan teams that are required from going into nursing homes. and that one I like in particular because that illegality opened the door for fraud.

and then we know that people walk through that door in massive ways because, Voter turnout in nursing homes in Wisconsin went from historic averages of 20, 25 percent to nearly 100 percent, including in memory care wings. And many of the ballots were signed and filled out in the same handwriting.

So the illegality opened the door for fraud. that nursing home scandal that was identified in former Wisconsin Gabelman’s report. So in every one of the swing states, these illegalities affected more ballots than were, at issue in the margins in the races.

Matt Kane: Now, a few months after your trial where you revealed so many of these issues, you were featured on 60 Minutes, as was Mike Pence’s legal counsel, Greg Jacob.

And as I listened to his remarks, I picked up on several inaccuracies that unsurprisingly went unchallenged. So I’d like to ask you about a few of them. Jacob stated that Pence never believed he had any authority beyond a purely ceremonial role on January 6th and doubled down by insisting that Pence never considered a waiver at any point.

However, just two days before January 6th, Pence said this to a crowd of supporters. Take a quick listen.

Mike Pence: we all, got our doubts about the election and I want to assure you I

share the concerns of millions of Americans about voting irregularities. And I promise you, come this Wednesday, we’ll have our day in Congress. We’ll hear the objection.

Matt Kane: So either Jacob was lying when he said that Pence didn’t believe he had any authority, or Pence was lying to the crowd that day. Either way, somebody is. Who do you think it is?

John Eastman: look, they’re both lying. one thing Greg Jacob doesn’t talk about is his December 8th memo to the vice president.

It said there are serious arguments made by scholars throughout our history that the vice president has a dispositive role in, in resolving disputes about the validity of electoral votes. Alternatively, if you don’t want to assert that prerogative, here’s the way it plays out under the Electoral Count Act and all you do is open the envelopes and listen to objections.

And so Pence is trying to tell the crowd he’s going to do something about it when he’s knows full well by then that he’s not going to do anything about it. And look, it remains an open question in our constitutional law, never addressed by any court, whether in fact the vice president has any role to play other than a high price letter opener and, the historical record is pretty clear.

John Adams, Thomas Jefferson, the president of the Senate in 1817, in 1837, in 1857, and even Richard Nixon in 1961 all made dispositive determinations on the validity of electoral votes. The one thing we know from the records of the federal convention is when they, designed this system of the electoral college.

The one thing that was absolutely clear is they did not want Congress having any role whatsoever in determining who the president would be. That would turn us into a parliamentary system where the prime minister is subject to the control of the legislature, of the parliament. They had spent the whole summer crafting a very strong separation of powers system.

And to give Congress the control over the choosing of the president would destroy separation of powers. It would make the president subservient to him. the question is not As Pence posted, would the founders have wanted one person to have this much power? The question is, if there’s a dispute about the electoral votes, who did the founders want it to be resolved by?

Congress? The answer to that is clearly no. or what was the other alternative? the vice president, the president of the Senate. so they’re being mischievous in their characterization of the issue. Pence was walking a line. He was trying to retain the power. Trump’s base for his future presidential run.

and, knowing full well what we learned after the fact that he had no intention of doing anything whatsoever. And Greg Jacob testified in my bar that they had made that decision weeks earlier. I said, what was the point of me meeting them with them if they’d already decided they weren’t going to do anything?

Matt Kane: And that sort of leads me to my next question for you because Jacob claimed you just mentioned a bunch of dates where the president of the Senate at the time obviously had some authority and Jacob claimed that there weren’t any historical roots for your quote theory and that no vice president had ever claimed to have the power you suggested Pence had that day.

Now, aside from the video we just showed of Pence, which proves he at least was outwardly suggesting he had some authority. This is a much bigger issue with Jacob’s claims, which is that his error comes from viewing Pence as the vice president when, as we just discussed, in this scenario, he should have been viewed as the president of the Senate, not the vice president.

And when viewed from that lens, there is clear precedent in 1876, at least, which is infamous for dueling electors where the president of the Senate established an electoral commission to investigate fraud. In fact, Ted Cruz even referenced this commission in 2020 when he was trying to address the fraud.

Unless Jacobs is lying again, which I will say is always possible in Washington, how could the legal counsel for the Vice President of the United States be so ill informed about something like this? For which there is such a clear historical precedent. How do you explain this?

John Eastman: you’ve got to parse his words very carefully he doesn’t actually say there’s no historical record of the vice president deciding the validity of electoral votes He says there’s no historical record of the vice president rejecting electoral votes so in 1796 adams accepted contested votes in 1801, Jefferson accepted the contested votes from Georgia.

in, 1857, the acting president of the Senate accepted the votes from Wisconsin. And I think that precedent is probably the most relevant. Because it demonstrates not only the vice president deciding the question, but it also demonstrates that the role of the House and the Senate were to be mere observers to that process.

The language of the 12th Amendment, which parallels the original language in Article 2, says, at the joint session, the vice president The President of the Senate shall, in the presence of the House and the Senate, open all the certificates, and they shall be voted. So the House and the Senate are merely there to be present, to observe, to make sure what goes on is gone on in a public, transparent way.

and in 1857, the issue was, the one power Congress has is to set the date when the electors meet, and the Constitution requires that date be the same throughout the United States. in 1856, when the electors were supposed to meet, there was a blizzard in Wisconsin, and the electors couldn’t meet, get to the state house in order to cast their votes.

They cast them a day late. And the issue was whether they could be constitutionally counted. The president of the Senate, decided to count those votes. There were objections made by members of the house and the Senate, and he ruled those objections out of order because their role is just to be present.

And then he gaveled the session closed and, and declared that James Buchanan had been elected president. Now he was elected president with, or without the Wisconsin vote. So it wasn’t material to the outcome. But he made the decision to count those votes. He said that his was the only authority to do it.

He ruled out of order, any objections to that. Now, after the session was over, the house and the Senate then went back to their separate chambers and they debated the validity of that decision for three days without ever reaching a result, but it demonstrates the vice president acting in that role that I think the constitution assigns to him and making a determination.

And also demonstrates what I believe the founding, Records of the federal convention clearly demonstrate that the Congress, the founders did not want Congress itself to have a role in this.

Matt Kane: Now, just one last note on Jacob, but then we’ll move on. He also mentioned that one reason for Pence’s hesitance to take any action was because he was directly involved as someone on the ticket.

But truth and justice, regardless of who it benefits, should always come before optics. So if that’s true, And Pence based his decision on personal factors. What did that mean? He was derelict in his duty and violated his oath of office.

John Eastman: if he thought that he had a unreconcilable conflict of interest, and that’s a perfectly plausible thing to believe, then the remedy is not to pretend he doesn’t have authority that the constitution gives him, but the, remedy is to recuse himself and let the next person in line assume the role that would have been Chuck Grassley.

And there was some talk about that. there is always going to be the case that there is a political conflict of interest in a two party system. Somebody’s going to be in that role. But, the more direct, I’m on actually on the ballot conflict of interest, he could have recused himself and handed the ball to Chuck Grassley to make the determination on the validity of those electoral votes.

And by the way, We weren’t asking him, to absolutely reject the votes and claim that Trump was elected. Although some people had been floating that idea for months. I think it began in an Atlantic magazine article back in September, of 2020, long before the election about what might happen given, the ambiguities of the 12th amendment.

but our advice was to simply accede to requests from hundreds of state legislators who had advised Pence that the elections in their states were illegal. certified because of violations of the election law by non legislative officials, and that they wanted now that they were back in session a week or so to try and assess the impact of that illegality and then report back.

If the impact was smaller than the margin, they would recertify Biden. But if it was bigger than the margin, and in fact, Trump had actually won. The most legal votes, when you exclude the illegal votes, then to give effect to the will of the people properly understood, then they should have designated Trump as the, as the electorate.

That’s what was asked. And that’s what we asked of Pence. but they distort it. And in Pence’s letter to the dear colleague letter on the morning of January 6th, he says, some people have urged that I can just gavel Trump reelected as if I’m a King. yeah, some people had said that, various, public press places, but it wasn’t the advice I gave him or the request that I made of him.

So he was distorting what was asked in order to make it look so unreasonable that he was, the knight on the shining white horse coming in to save the day, when in fact what he was doing was refusing requests for quite legitimate requests from state legislators who were telling him our election laws were violated.

We think it had an impact on the election, but we don’t know for sure. Give us a week to try and assess whether that’s true or not. So we’re not putting into office somebody who doesn’t reflect the will of the American people.

Matt Kane: Now, since that day, January 6th, 2021, the electoral count act, which is central to much of the debate surrounding that day has been reformed in December of 2022.

It was amended to ensure that moving forward. The vice president’s role would be purely ceremonial to the average person. That sounds like prior to the amendment, including on January 6th, 2021, what you proposed was perfectly constitutional. Now, even though this reform is not something to be celebrated, in my opinion, Personally, I want to ask, do you see it as vindication for your efforts?

John Eastman: I see it as vindication because they wouldn’t have needed to change it if in fact the prior language, didn’t support my positions. But look, my view is the prior language was unconstitutional because it had Congress making decisions that the Constitution deliberately did not give them the authority to make.

It usurped the power of the state legislatures or of the vice president. and the amended version makes that worse. so it was unconstitutional before, but there were provisions of it that supported my analysis. And now it’s even more unconstitutional. The notion that the vice president has no role whatsoever is just flatly incompatible, with the, language of the 12th amendment.

Look, the language says the president, the vice president acting, the president of the Senate shall open. all of the certificates. if you get two slates of certificates, does that mean he has to open both and count both? That’s preposterous. That would give, New York double the number of electoral votes that they’re supposed to have.

you’re, so that’s, an absurd conclusion. The only, reasonable interpretation is that in deciding which ones to open, he has a judgment requirement. He has to discern Which of the two slates is actually the proper one and to hand that power of discernment over to Congress is an express violation of the quite clear, meaning and purpose of the, people that drafted the constitution and those that ratified it.

We don’t want Congress making that decision. It would make the president subservient to us and destroy our separation of powers.

Matt Kane: Now before we let you go, I do want to look to the future, not really the too far distant future because the election is now 7 weeks away. Earlier we mentioned the suppression of information regarding obviously legitimate accusations of election fraud.

This has undoubtedly made it more difficult to implement necessary changes to prevent similar issues from happening again. So now, as I said, with less than 8 weeks, 7 weeks around that time, until election night, and early voting already underway in some states, I Are you concerned that the kind of theft we saw in 2020 will happen again?

And if it does Do you believe legal challenges will be more welcomed than they were in 2020?

John Eastman: we’re already seeing it. We’re, seeing skirmishes over keeping people off the ballot, if their appearance on the ballot might be interpreted as hurting Kamala Harris. we’re, seeing in Georgia, the state election board recently adopted a rule.

Complying with a long, an ignored state statute that says before you certify the election, you’ve got to reconcile the number of votes with the number of voters. What a surprise! And that’s being challenged as, suppressing the vote. Wait a minute, we want to make sure that the vote reconciles before we certify it.

so you already see these legal skirmishes and unfortunately, I fear that our judiciary has been become embroiled in the partisanship of this, rather than in neutrally and faithfully applying the law. And that’s a huge danger. And so I fully expect if the election is as close as the last one and, with the cheating that goes on under the radar, It’s very likely to be as close as the last one, that you’re going to see a mess in the courts and you’re going to see the same kind of willful blindness, to the election illegality that we saw the last go round.

how many times have people heard the mantra? 65 courts looked at these issues and rejected Trump’s claims in every one of them. That is just a blatant lie. In almost all of those cases, the rulings were not based on the merits. they were based on jurisdictional grounds, or my favorite, pair of cases, there was a guidance from the secretary of state, I forget Wisconsin or Michigan that was clearly illegal under state law.

and, a challenge was brought before the election and the court held, it’s only a guidance until they actually Follow the guidance and violate the law. Your case is not ripe, dismissed. And then lo and behold, on election day, they follow the guidance, violated the law, and the suit was brought challenging that after the fact, and the court held, you can’t wait till your guy loses to bring this challenge, it’s denied on laches grounds and dismissed, you should have brought it earlier.

These were the kind of things that we were dealing with, those so called 65 cases that ruled against Trump. It was preposterous. one, one court even held that the candidate himself. didn’t have standing to challenge the violations of state law that led to his loss. A preposterous decision out of, the Pennsylvania federal courts.

but this is what we were dealing with. The candidate doesn’t have standing. Voters don’t have standing. A couple of months ago, the legislators brought suit challenging Biden’s executive order, basically Weaponizing the federal government to be a Democrat, get out the vote effort, and the legislators were held to not have standing.

the courts need to step up here, and actually faithfully apply the law in these cases, rather than punting and kicking the count down the road. Because if they don’t, the American people are going to say, what’s the point of an election? We no longer control the direction of our government.

And that, it seems to me, is a very, fearful prospect.

Matt Kane: It’s sad, it’s dark, and I think most people in this country feel it, and your mugshot, as well as President Trump’s and all the others who have been targeted, truly serves as the poster for the resistance, in my opinion, to those who are destroying America.

So while it certainly can’t be an easy path, We all owe you a debt of gratitude for continuing to go down it. Dr. Eastman, thank you so much for joining me today. God bless you.

John Eastman: let me ask if people want to learn more about this, we’ve got my, my, my legal defense website is actually a blog that posts articles about what’s going on.

It’s give send go. com slash Eastman. People can send prayers. They can send. Financial support if they’re so inclined, but they can also arm themselves with the knowledge of what’s going on by looking at the articles we post there.

Matt Kane: We’ll definitely amplify that. That’s a great resource and we’re sure to share that with everybody.

So to all of our listeners out there, thank you for joining us today. Be sure to like, and subscribe that you don’t miss so that you don’t miss any of AMAC’s great content. I’m Matt Kane until next time.

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