By now, you've read about John Eastman's secret memo outlining six points by which he believed the vice president could overturn the results of the 2020 election on January 6. I defer to legal scholars to explain the memo's legal absurdities. I defer to political scientists to explain why the memo represents forces threatening our republic.
What I want to suggest is so plain I'm surprised that no one else has asked: isn't this evidence of a conspiracy to commit a high crime?
News of Eastman's memo put the debate over democracy reform into overdrive. The hope has been that the Democrats in the United States Congress, especially Senate moderates, will see the light. They must kill off, or seriously change, the filibuster in order to pass election laws that would not only reach or surpass the 1965 Voting Rights Act but also prevent a political party from pulling off a coup in broad daylight.
While the Eastman memo should, for obvious reasons, put that debate into overdrive, I'm wondering if we're misplacing our hopes. It's not that I think the filibuster is good. It needs to go. It's not that I think new election laws would be bad. We need more, in a hurry. It's that laws require enforcement, and enforcement of the law is pretty much the only thing that's going to stop people who have no respect for democracy, principle, the Constitution, tradition or anything else. Without equal treatment under law, in the form of prosecution, I don't see why new laws would stop people who hold themselves above it.
We really need to acknowledge the elephant in the room before we pin our hopes for democracy on changing a Senate rule. We really need to acknowledge the reason it's possible, in a rule-of-law country, for powerful and power-hungry people to hold themselves above the law. The reason is so obvious as to be invisible, and because it's invisible few people are talking about it right now. It's because powerful and power-hungry people are in fact above the law. "No one is above the law"? Pish. Anyone with senses, and sense, can see that's not true.
News of the Eastman memo only adds to what we already know. According to CNN, the plan was for Vice President Mike Pence to throw out "the results in seven states because they allegedly had competing electors. In fact, no state had actually put forward an alternate slate of electors — there were merely Trump allies claiming without any authority to be electors." That didn't matter, though:
Pence would have declared Trump the winner with more Electoral College votes after the seven states were thrown out, at 232 votes to 222. Anticipating "howls" from Democrats protesting the overturning of the election, the memo proposes, Pence would instead say that no candidate had reached 270 votes in the Electoral College. That would throw the election to the House of Representatives, where each state would get one vote. Since Republicans controlled 26 state delegations, a majority could vote for Trump to win the election.
Two important points. One is about recognizing competing slates of electors when there were none. New laws in Georgia, Texas and other states now fill in what was missing in Eastman's memo. They allow for GOP-controlled legislatures to overrule election officials. They make room for assigning competing slate of electors when outcomes are undesirable. A future vice president might do what Mike Pence didn't.
My other point is about the impression made by CNN's reporting, and by the new book all this news comes from by Bob Woodward and Robert Costa — that Donald Trump's GOP allies believed the US Constitution forbade a vice president from recognizing competing slates of electors. The impression is of a founding document that sets the rules. "You might as well make your case to Queen Elizabeth II," Mike Lee reportedly said. "Congress can't do this. You're wasting your time." That's a dangerous impression to have in a rule-of-law country in which powerful and power-hungry people are in fact above it.
The Constitution is many things, but a set of unbreakable rules isn't one of them. It is whatever powerful and power-hungry people want it to be, when they want it to be and why. I don't know why Lee, Lindsay Graham and other high-profile Republicans were not all-in on the Eastman memo, but I do know the Constitution didn't stop them. I am confident, and you should be confident, that if they had reason to believe they could get away with it, they'd have found a way to make a coup by a political party in broad daylight seem "constitutional."
The Eastman memo is putting debate over democracy reform into overdrive. Fine and dandy. But the memo is also why we shouldn't pin our hopes on democracy reform. The incentives to cheat, steal, lie and otherwise commit treason in the pursuit of raw political power will be with us long after we've made all our dreams come true with the death of the filibuster. New laws won't take away corrupt incentives. The only way to do that is prosecuting the laws we already have. The only way to do that is prosecuting the principle of equal treatment under law so that powerful and power-hungry people are not in fact above it.
The Eastman memo is evidence of a conspiracy — a GOP conspiracy — to commit a high crime. And yet no one is being held accountable. No one will be held accountable as long as the Department of Justice is soft on high crime. Amid such lawlessness, why not give treason another go? By then, perhaps Lee, Graham and others will have found what they need to make a coup in broad daylight seem "constitutional."