Overview
Donald Trump and his legal team coordinated a scheme to create a new and fake slate of electors for each of the states that he had close races in. These fake slates would then be delivered to Congress and Trump would pressure the Vice President, Mike Pence, on January 6th to either certify the election with these fake slates or contest the election and send it to the house delegates, which was at the time predominantly Republican.source needed Trump and his allies would later be indicted by the DoJ for these actions by special counsel Jack Smith, who is leading this case.source needed
Chesebro memos
Background
On November 8th, 2020, Kenneth Chesebro sends an email to James R. Troupis,(Chesebro) lawyer for the Trump campaigns in 2020 for Wisconsin,(Journal Sentinel, Beck) saying “I would be happy to volunteer for the Trump legal team.”(Chesebro)
On November 18th, 2020, Chesebro would then send a memorandum that would later become the first part of the false elector scheme, discussing the deadline being January 6th for the plot.(Chesebro) Then he’d send another memorandum on December 6th, 2020, going into more detail about the plot and how important it is for the fake electors to meet on December 14th,(Chesebro) while also discussing the logistics of the plan, with one final memorandum being sent on December 9th clarifying the one sent on December 6th.(Chesebro) He would also send an email to Rudy Giuliani a few notes about a lost fourth memo.
Chesebro’s first memo
Overview
In the beginning of the memo sent on November 18th,(DoJ, p. 32) Chesebro uses historical precedent from the 1960 United States presidential election to show that an elections results can be contested as late as January 6th, saying it’s “the real deadline.” He then goes on to elaborate that the electors vote for the president and vice president on December 14th, and that it’d be preferable to send the Trump-Pence fake electors then so that judicial proceedings and court orders would not be necessary. January 6th is outlined as the date with the “ultimate significance” for the vice president counts the votes, and if this date is missed, Trump loses.(Chesebro, p. 1)
Wisconsin electoral laws
The memo then goes into detail about the electoral laws in Wisconsin and how to best send the fake electors as close to the law as possible, even stating that the electors are the one’s who sign the certificates and the governor simply certifies them, noting, “These actions are carried out without any involvement by state officials.”(Chesebro, p. 2) He further explains with the following:
But nothing in federal law requires States to resolve controversies over electoral votes prior to the meeting of the electors. Indeed, there is no set deadline for a State to transmit to Congress a certification of which slate of electors has been determined to be the valid one. The duty of a state governor is merely to transmit the certification “as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment … .”(Chesebro, p. 3)
2020 and previous elections
Chesebro gives specific aspects of the 1960 United States presidential election and how this election is similar.(Chesebro, pp. 3-4) He does admit, however, that the governor signed both electoral votes, and that Nixon, the vice president and candidate for the election at the time, says when counting the electoral vote, “without the intent of establishing a precedent.”(Chesebro, p. 4)
He also adds that the “safe-harbor” provision was a “key factor” in the 2000 United States presidential election and likely affected the outcome of the election.(Chesebro, p. 5)
Conclusion
Chesebro ends the memo by warning Trump to not under estimate the January 6th deadline and to not fall for the same failures as previous candidates such as Al Gore.(Chesebro, p. 6)
The position taken by the Trump-Pence campaign regarding the outside deadline for resolving post-election challenges could conceivably end up proving critical to the result of this election. If so, it would not be the first time: the failure of the Gore team in 2000 to focus on the real deadline early enough was a clear mistake. Thus, the issue of the real deadline should be examined carefully in the near future, so that the campaign presents a clear and united front concerning it.(Chesebro, p. 6)
Chesebro’s second memo
Overview
The second memo, sent on December 6th,(DoJ, p. 22) contains the bulk of the false elector scheme, outlining the following three components of the plan:(Chesebro, p. 1)
- Importance of the electors from the six contested states.
- Presenting this as “routine.”
- Marking the “logistics.”
He then goes to mention the three possible outcomes for how Trump could win the election with the fake electors.(Chesebro, p. 1)
- Trump-Pence fake electors meet on December 14th and attempt to comply with federal and state statutes.
- A lawsuit helping to flip a state in favor of Trump on January 6th.
- The vice president, Mike Pence, alone, to open and count the votes and calling the Electoral Count Act unconstitutional, due to the twelfth amendment.
Plan overviews
Chesebro clarifies that he is not necessarily advising these actions, but that his point is that the “alternate slates of electors” meet on December 14th to prevent Biden from reaching 270 electoral votes, even if Trump has not obtained them through the courts, “invalidating” Biden in the process. The January 6th plan, on the other hand, is how he puts it, “not simply to keep Biden below 270 electoral votes.”(Chesebro, p. 2)
Detailing the December 14th strategy, Chesebro warns of trying this on states where he was not declared the winner, as that may cause the plan to “leak out prior to December 14th,” so it may be ideal to have “messaging that presents this as a routine measure,“(Chesebro, p. 2) then referencing the 1960 United States presidential election again.(Chesebro, p. 3)
Points for supporting the plan publicly
For this plan to go smoothly, Chesebro lays out two points that “might be made to support this as being a routine,” keeping the presentation for the public.(Chesebro, p. 3)
Point one
Their “key adversary in Wisconsin, the Wisconsin Elections Commission (WEC),” recognized that there is time for disputes like this to happen, referencing a Wisconsin Supreme Court decision.(Wisconsin Supreme Court) Then giving more examples of how even critics of Trump admit that January 6th is “the only real deadline for a State’s electoral votes to be finalized.”(Chesebro, p. 3)
Point two
An essay published by “prominent liberal figures” at CNN, Van Jones and Larry Lessig on November 4th, on how Biden may really only have won Pennsylvania by January 6th, due to the litigation expected for this election and what happened to Al Gore and the 1960 United States presidential election.(CNN, Jones, Lessig) (Chesebro, p. 4) Chesebro provides the following quote from the essay, bolding certain words:
That insight shows what should happen this year on December 14, 2020, when the electors are to meet to cast their ballots. On that day, assuming the final count of the popular votes has not yet been certified, both slates of Pennsylvania presidential electors should meet in Harrisburg. Both slates should cast their votes by ballot. And Pennsylvania Gov. Tom Wolf should await the final resolution of the popular vote count before he certifies which slate should represent the state. So long as that certification happens before January 6, there is nothing that should stop it from being counted by Congress.(CNN, Jones, Lessig)
Because of the essay, Chesebro makes the claim that “it would be the height of hypocrisy for Democrats to resist January 6 as the real deadline, or to suggest that Trump and Pence would be doing anything particularly controversial…”(Chesebro, p. 4)
Logistics for the electoral votes on December 14th
At the end of the memo, Chesebro lays out the legal requirements for casting and transmitting the fake electors to Congress,(Chesebro, pp. 5-6) underlining the part where he mentioned “without any involvement by the governor or any other state official.”(Chesebro, p. 5)
Chesebro’s third memo
In the final memo, sent on December 9th,(DoJ, p. 22) that Chesebro sent, he simply lists all the statutes of all the six states and the possible problems they might run into trying to get the fake electors to pass their electors to Congress, noting in the federal law that “there is no requirement that they meet in public. It might be preferable for them to meet in private, if possible, to thwart the ability of protesters to disrupt the event.”(Chesebro, p. 1)
Chesebro’s e-mail to Giuliani
On December 13th, due to the hotel computer restarting, Chesebro lost progress on what would’ve been a fourth memo, so he instead simply emailed Rudy Giuliani, along with forwarding the same e-mail to John Eastman, “notes” on the “strategy.”(Chesebro, p. 1)
He mentions in the e-mail that the President and Vice President need to “live with the result as long as there is a serious look” to help ensure authenticity. He also mentions the 1876 United States presidential election and how the Republicans at the time abused the election commission loopholes at the time to elect their candidate Rutherford B. Hayes, and that “Republicans should use it again.”(Chesebro, p. 1)
He goes on with the specifics of the plan on how Mike Pence should recuse himself and “break” the Electoral Count Act and claim it goes against the Constitution.(Chesebro, p. 2) He also admits that the Supreme Court would likely not side with Pence and would likely side with Biden instead.(Chesebro, p. 3) But if the Supreme Court did not decide to weigh in,(Chesebro, p. 3) due to the “‘political question’ doctrine,“(Chesebro, p. 5) then everything would become “messy and unpalatable,” in term causing a constitutional crisis. If this happens, then its more likely that Trump and Pence are reelected.(Chesebro, p. 3)
Eastman memos
Background
John Eastman wrote two memos for how Donald Trump could still win the 2020 United States presidential election,(Eastman) (Eastman) with the plan primarily involving an “alternate slate of electors.”(Eastman, p. 2) Eastman would later go on to admit to Gregory Jacob that, “you had to set aside a number of the positions of the Electoral Count Act.”(January 6th Committee, Jacob’s Deposition p. 96)
Eastman’s first memo
Overview
On December 23rd, 2020,(DoJ, p. 32) (January 6th Committee, p. 431) John Eastman wrote a memo giving a summary on how the vice president, or Mike Pence in this instance, could “do the counting,” implying that Pence could unilaterally change the electoral votes or decide if the votes should be counted or not. This memo also seems to be inspired by Chesebro’s second memo relating the vice president’s role in counting the electoral votes.(Eastman)
12th Amendment and the ECA
In the beginning of the memo, Eastman quotes the 12th Amendment of the United States Constitution, going on to claim that the Electoral Count Act is unconstitutional. It’s important to note that the historical example he gives, Adams and Jeffersons election, took place before the Act was passed, so this example would only hold if it was indeed true that the Act was unconstitutional.(Eastman, p. 1)
What Pence is supposed to do
Eastman then lays out a point by point summary of the plan for how Pence would start to “break” the Electoral Count Act. He goes on that Pence could declare, because of the ongoing disputes in the seven states, “there are no electors that can be deemed validly appointed in those States,” getting the inspiration for this from
Harvard Law Professor Laurence Tribe, who Eastman notably quotes from an article where Tribe argues against what Eastman is arguing for. After Pence would claim this, Eastman says “Pence then gavels President Trump as re-elected.” Eastman further predicts that Democrats would “howl” and Pence would go “fine” and, “where the ‘the votes shall be taken by states, the representation from each state having one vote … .’ Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.”
Eastman, as a backup, mentions that if “the Electoral Count Act process is followed,” and “the two houses break into their separate chambers,” then there should be an attempt by “Ted Cruz, Rand Paul, etc.,” to return the debate to “normal rules (which includes the filibuster),” and try to stall as must as possible to support the false slate of electors.(Eastman, p. 2)
Conclusion
Eastman ends the memo by stating that “Pence should do this without asking for permission,” and that his actions should be challenged in court. He brings up the Tribe article again and “that these are non-justiciable political questions – thrown back at them, to get the lawsuit dismissed.” At the end, he emphasizes that the Vice President is “the ultimate arbiter. We should take all of our actions with that in mind.”(Eastman, p. 2)
Eastman’s second memo
Overview
John Eastman’s second memo, sent on January 3rd,(DoJ, p. 34) (January 6th Committee, p. 443) is where the bulk of the plan for Mike Pence to over turn the election, first going through election fraud claims, then the constitutional claim mentioned in the previous memo, and finally the actual plot with a warning at the end.(Eastman)
Election fraud claimed by Eastman
Eastman claims that election officials took part in “illegal conduct” and that “election laws were altered” for the benefit of the Democratic Party. He then goes on to list the seven states he claimed were lost by Trump due to fraud, such as Georgia, Pennsylvania, Wisconsin, Michigan, Arizona, Nevada, and New Mexico, although he does not give any specific examples for New Mexico. Each of these states would later have “dual slates of electors” crafted by the Trump legal team.(Eastman, pp. 1-2)
Constitutional “loophole”
Eastman repeats most of what he already wrote in his previous memo about how the 12th Amendment to the United States Constitution makes the Electoral Count Act unconstitutional.(Eastman, pp. 2-3)
War gaming alternative outcomes
Eastman puts out four possible outcomes for the plan, calling it “War Gaming the Alternatives.”(Eastman, pp. 4-5)
- Pence opens the ballots, counts the ones certified by the States and does not accept any objections. “BIDEN WINS 306-232.”(Eastman, p. 4)
- Pence opens the ballots, hears objections from the seven states, and the two bodies of Congress adjourn to debate the objections.(Eastman, p. 4)
- House counts for Biden; Senate counts for Biden as well. “BIDEN WINS 306-232.”(Eastman, p. 4)
- House counts for Biden; Senate counts for Trump. Under the Electoral Count Act, and if the two bodies disagree, “the slate certified by the ‘executive’ prevails.” “BIDEN WINS 306-232.”(Eastman, p. 4)
- House counts for Biden; there’s a filibuster in the Senate “(contrary to the time limits of the Electoral Count Act).” After the cloture vote, either option one or two. “BIDEN WINS 306-232.”(Eastman, p. 4)
- Pence opens the ballots, “asserting” that he can decide the authenticity of the ballots under the 12th Amendment, which Eastman notes is “contrary” to the Electoral Count Act.(Eastman, pp. 4-5)
- If State Legislatures certify the fake electors for Trump, Pence counts those, assuming the Electoral Count Act is unconstitutional. “TRUMP WINS.”(Eastman, p. 4)
- If State Legislatures have not certified their own slates of electors, Pence doesn’t count either slate of electors. At the end of the count, the tally would therefore be 232 for Trump, 222 for Biden. Because the 12th Amendment just states “‘majority of electors appointed,’” “TRUMP WINS.”(Eastman, pp. 4-5)
- Pence throws the election to the House, assuming Republicans in the house “stand firm,” “the vote there is 26 states for Trump, 23 for Biden, and 1 split vote.” “TRUMP WINS.”(Eastman, p. 5)
- Pence declares that due to ongoing election challenges, adjourns the Congress, violating the Electoral Count Act due to the 12th Amendment, making it “void.” This would give the state legislatures a chance to recertify either the original slates they certified or the fake electors to be certified to end the controversy.(Eastman, p. 5)
- If investigations prove not enough fraud to change election outcome, “BIDEN WINS.”(Eastman, p. 5)
- If investigations prove enough fraud to change election outcome, “TRUMP WINS.”(Eastman, p. 5)
Conclusion
Eastman concludes the memo by emphasizing that, with it boldened, “this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage,” and that “we’re no longer playing by Queensbury Rules,” with Pence as the “ultimate arbiter.” He ends the memo by stating that there is a “constitutional crisis much bigger than the winner of this particular election,” and that the Supreme Court should intervein if necessary to stop the “illegality and fraud that demonstrably occurred.”(Eastman, pp. 5-6)
Carrying out the plan
Pence’s role
The first mention of Mike Pence being able to toss the electoral vote unilaterally was made by Ivan Raiklin, a lieutenant colonel in the Army Reserve, in early December, likely the 7th.(Reuters, Roston, Heath, et al.)
The memos from Chesebro and Eastman both explicitly state that Mike Pence as Vice President has the authority to unilaterally toss out the electoral vote, at least in so far as the vice president believes there to be irregularities with the election.
Pence’s legal team
When Pence first heard about the idea on December 7th, he went to his legal counsel, Gregory Jacob, and asked questions about how this would work.(C-SPAN [17:35]) (NPR|January 6th Committee)
The first time that I had a conversation with the Vice President about the 12th Amendment and the Electoral Count Act was in early December, around December 7th. The Vice President called me over to his West Wing office and told me that he had been seeing and reading things that suggested that he had a significant role to play on January 6th in announcing the outcome of the election.(C-SPAN [17:35]) (NPR|January 6th Committee)
Gregory Jacob counseled Pence about how he had no power to carry the actions set by Trump’s legal team.(C-SPAN [19:03]) (NPR|January 6th Committee)
So we concluded that what you have is a sentence in the Constitution that is inartfully [ph] drafted. But the Vice President’s — first instinct when he heard this theory was that there was no way that our framers, who [abhorred] concentrated power, who had broken away from the tyranny of George III, would ever have put one person, particularly not a person who had a direct interest in the outcome because they were on the ticket for the election, in a role to have decisive impact on the outcome of the election.
And our review of text, history, and frankly just common sense all confirmed the Vice President’s first instinct on that point. There is no justifiable basis to conclude that the Vice President has that kind of authority.(C-SPAN [19:03]) (NPR|January 6th Committee)
Comparisons to past elections
Comparing 2020 to 1876
1876 United States presidential election
Comparing 2020 to 1960
Some of Donald Trump’s allies will say that this situation has already happened in a previous election, the 1960 United States presidential election with the Hawaiian dual slates.(Heritage Foundation, Malcolm) (USA Today, Kochi) The difference, however, is that this election’s dual slates were both certified by the Governor of Hawaii, while the second slate of electors for Trump in the 2020 United States presidential election were never certified officially by any state governors.(January 6th Committee, Jacob’s Deposition p. 86)
Comparing 2020 to 2000
2000 United States presidential election
Aftermath of the failed scheme
John Eastman on January 11th, 2021, emailed Rudy Giuliani about adding him to a “pardon list,” implying that he’s guilty or at least believes that he’ll be prosecuted for crimes by the federal government, and that a “pardon list” might even exist.(Eastman)
Third, I’ve decided that I should be on the pardon list, if that is still in the works. Will taint me, but given the outright lies and false witness being spewed, having that protection is probably the prudent course.(Eastman)