Following Joe Biden’s victory in the 2020 United States presidential election, various efforts led by Donald Trump were made to deny and overturn the election results. In the attempts that followed, a legal theory with no real precedence or validity was promoted, that had its origins in a two-page proposal made by Ivan Raiklin, an associate of the former National Security Advisor Michael Flynn.
The theory, called the Pence Card, gave the Vice President (Mike Pence at the time) unfettered authority to reject electoral votes from states they deemed to be fraudulent. In order to build on this theory, John Eastman, a lawyer under the employ of Donald Trump at the time, released two memos that would assert the vice president’s “power to hold up the certification.” These came to be known as the Eastman memos.
The first memo alleges that the Electoral Count Act is unconstitutional. Broadly, the Act is a set of procedures that dictate the process of counting electoral votes in a presidential election. In the memo, Eastman points to the presidential elections of 1796 and 1800, where John Adams and Thomas Jefferson had counted the votes, using these two examples as precedence. By using these two presidential elections as proof of concept, Eastman proposes that Pence reject or approve the electoral votes in certain states, more specifically, in states where counting had either not yet concluded or had not voted in favour of Trump.
The second memo was a more detailed memo that assumed fictional illegal behaviours from electoral officials in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin. Additionally, it reiterates the supposed illegality of the Electoral Count Act and the fact that the Vice President has the sole authority to decide which electoral votes are valid and which ones are not. The final section of the second memo provides detailed instructions on what the VP can do to overturn Biden’s election if the suggested methods of disallowing the votes of other states don’t work.
In the lead up to the Jan 6. attacks on Capitol Hill, Pence’s team of lawyers categorically rejected the proposal from Eastman and instead decided to refer to the US Constitution. Finally, legal experts came together to describe how to avert the use of such a strategy in the future, with many calling the memos a step by step manual for performing a coup.