Facing the Eastman memo

Washington Examiner ^ | June 17, 2022 | Byron York

[Political Junkie Too]

The day for Trump to drop his challenges was Dec. 14, 2020, when the Electoral College voted. But he did not stop.

York was wrong on this point.

The Electoral College voters in each state seal their votes and transmit them to Congress, to be opened in front of Congress on January 6. Legally, the actual results are not known until January 6. This means that President Trump had a window of opportunity up to January 6 to mount his challenge, not December 14.

There were two roadblocks to Trump:

1. No court was willing to hear his challenges.
2. No GOP legislatures were willing to take official acts based on their plenary powers (it's just not in their DNA to take controversial actions).

Regarding #1, that's the deep state in action.

Regarding #2, if Republican-controlled legislatures used the window of time between December 14 and January 6 to investigate and confirm election misconduct sufficient to throw the results in doubt, they could have voted to recall their original slate and send a second slate to Congress. There are provisions in US Code Title 3 to manage this.

This would have one of several effects, according to Title 3:

1. Congress will have received two slates, one recalled and one replacement.
2. Title 3 says that Congress should respect the most recent official slate that is received.
3. Congress still has the power to debate the case and choose the slate they want from the two slates they received (I think, but I wouldn't put it past Pelosi to do it regardless).
4. If the Democrat-controlled Congress votes to reject the replacement slate and approve the recalled slate, President Trump and/or the affected state legislature would be able to appeal to SCOTUS to argue that Congress acted unconstitutionally by usurping the state's power to choose their Electors. They would argue that Title 3 requires Congress to accept the state's replacement Electors.
5. SCOTUS would hem and haw, and in my opinion, defer to Congress (that is Roberts' DNA).

It may all be for naught in the end, but Trump would have had a path forward beyond December 14, contrary to what York believed.

-PJ

[Alberta's Child]

I agree with you on that point, but in 2020 I saw December 14th as an effective “drop dead” date for legal challenges. That’s because I figured a state legislature that refused to act between Election Day and December 14th sure as hell wasn’t going to act between December 14th and January 6th.

[Alberta's Child]

LOL. Thanks!

[Political Junkie Too]

I agree on your point about behavioral tendencies and tells.

That's why people (like me) are mad at Pence. I think he should have used his bully pulpit between December 14 and January 6 to motivate state legislatures to act to exercise their Title 3 powers to the fullest extent.

Until the Electoral College meets on December 14, there is nothing for Pence to do, as the Electoral College had not formally met. Once they met and voted, Pence became the steward of the process, and could have publicly called out friendly states to do more to protect their own powers from being usurped.

That's what Pence failed to do in this window of opportunity.

I didn't read the Eastman memo, but if I were in his shoes I would have focused on what President Trump and Pence could have done between December 14 and January 6, not on what Pence could not do on January 6 alone.

-PJ

[Triple]

https://www.forbes.com/sites/alisondurkee/2022/01/28/fake-gop-electors-subpoenaed-by-january-6-committee/?sh=f3b9ab55a966

According to Forbes, the alternate electors were invalid, but did exist.

I think the congress should have settled the dispute.

Do you still claim that alternate electors did not exist?

[Jim Noble]

My state appoints 4 Electors.

Do you believe that 4 guys can show up in Congress, announce that we are the real electors from NH, and trigger a dispute?

[Triple]

Irrelevant strawman…

These alternate electors have been subpoenaed by the J6 committee.

Do you think the committee just picked any few people to drag up to DC to interrogate?

These were election officials, that objected to their state processes and approvals. - not just ordinary schmoes

But I also see how you moved the goalposts.
It is now no-longer alternative electors did not exist. You are now much more in line with the democrat propaganda - there were no VALID alternative electors.

[cgbg]

Excellent post.

The left has “played by the rules” and taken over almost every government, corporate and non-profit institution in the country.

If we play by the rules, we lose.

The Constitution is not going to save us.

The Law is not going to save us.

“Conservatives” will eventually figure out that all they have “conserved” is the latest leftist triumph..

Saul Alinsky’s “Rules for Radicals” and Sun Tzu’s “The Art of War” teach a new set of rules—rules that lead to victory.

[DoodleDawg]

If the states had selected their electors in accordance with the laws in effect at the time, and if the state legislature changes that process after the fact, then isn’t that an ex post facto law and therefore unconstitutional?

[Jim Noble]

An Elector is someone appointed by a State Legislature.

There were no alternative Electors.

[Jim Noble]

Congress cannot pass ex post facto laws. State Legislatures are not regulated by Congress in their processes for appointment of Electors.

[DoodleDawg]

State Legislatures are not regulated by Congress in their processes for appointment of Electors

But they are regulated by the Constitution. And ex post facto laws should be unconstitutional for legislatures as well.

[Political Junkie Too]

Yes, but what happens when the legislature passes election law and then the executive branch election officials ignore that law and run the elections their own way?

What happens when the court sides with the election officials because of COVID fears, and lets them run elections in non-compliance with the laws actually passed by the legislature?

What happens when election officials install mail-in drop boxes? What happens when the court lets election officials accept mail-in ballots up to seven days after the election, when no legislature actually passed such election rules?

-PJ

[Triple]

You should let the J6 committee know…they can cancel their subpoena.