John Eastman’s six-page primer on word-twisting the Electoral Count Act to suggest that the law vests the Vice President with the power to unilaterally decide who wins presidential elections is getting a lot of attention this week — despite Trump’s efforts to change the topic. That’s understandable considering a prominent Federalist Society figure, Justice Thomas clerk, and law school dean composed a document laying out a hypothetical legal path to subverting the democratic process. Without the benefit of a Florida recount process this time!
But last night, we learned that there was a committed textualist out there who didn’t buy this reading and dutifully advised Mike Pence that John Eastman was wrong — and it was Eastman’s former boss.
Judge J. Michael Luttig doesn’t Tweet very often, but last night he took to the app to lay out his conversations with the former VP and it’s a fascinating glimpse inside Pence’s decision-making:
Chrometa: Turning Time Into Billable Value For Modern Lawyers
Adoption of Chrometa represents more than a technological upgrade; it reflects a professional philosophy that values accuracy, transparency, and efficiency.
I was honored to advise Vice President Pence that he had no choice on January 6, 2021, but to accept and count the Electoral College votes as they had been cast and properly certified by the states.
— @judgeluttig (@judgeluttig) September 22, 2021
It’s a thorough repudiation of a former clerk’s work, which is no doubt hard for a judge to put out there. But “country over clerkships,” as they say. Well, they don’t because it’s never really come up before, but they can say it now. Thankfully, Judge Luttig had retired from the bench, affording Pence the opportunity to get insights from Eastman’s mentor on the quality of the memo he’d been handed.
Stand With Survivors: Legal Tools To Make A Real Difference This DVAM
Enhance your legal skills to advocate for survivors of intimate partner violence.
But it also raises some fairly frightening questions about just how close the country came to a full-on crisis. We already knew that Pence, who is A LAWYER, turned to former Vice President Dan Quayle — also a lawyer — to discuss the memo. Quayle reportedly told Pence that the theory was nonsense and Pence continued to push back until Quayle had to say, “I do know the position you’re in. I also know what the law is.”
The revelation that Pence — again, a lawyer — consulted with another lawyer who told him the memo was garbage and then still felt the need to talk to a former federal judge about it underscores just how worryingly unsettled Pence’s resolve was. He could tell the strategy was dubious enough to seek out advice, yet seemed willing to keep searching to find anyone willing to give him the answer Trump wanted to hear.
Mercifully, the lawyers he relied upon who actually read these statutes were never going to give him that answer.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.