Tom Klingenstein, Chairman of the Board of Directors of the California-based conservative think tank the Claremont Institute, has released the second of a three-part interview series with former Trump attorney John Eastman.
In part one of the interview series, Klingenstein pressed Eastman to give a thorough account of fraud in the 2020 presidential election — which Eastman believes was substantial.
Watch part one of Tom Klingenstein’s interview with John Eastman here.
Klingenstein moves in this second interview to understand — if the 2020 election really was stolen — what legal remedy exists per the U.S. Constitution and historical or legal precedent.
Watch the full second part of Claremont Chairman Tom Klingenstein’s interview former Trump attorney John Eastman below:
Eastman discusses the meaning of the 12th Amendment to the Constitution, which outlines the procedure for electing the president and vice president.
“The President of the Senate shall in the presence of the Senate and House of Representatives open all certificates and the votes shall then be counted,” the 12th Amendment reads.
This language, in Eastman’s view, would have given then-Vice President Mike Pence the authority to delay the certification of electors from the states with suspected fraud.
Prior to Jan. 6, 2021, Eastman provided then-President Trump with legal advice on the question of whether or not Mike Pence had the authority to delay certification of the 2020 election.
In one memo, Eastman claimed that Pence could have declared President Trump as re-elected after invalidating the electors from seven disputed states.
After “howls” from the Democrats, he argues Pence could have sent the matter to the House of Representatives where the state legislatures would decide the president on a bare majority.
Klingenstein and Eastman dive into the historical precedent of disputed elections and procedural intrigue, going through the elections of 1796, 1800 and 1876 — examples of disputed and delayed elections.
Eastman also challenges the constitutionality of the Electoral Count Act, and argues that recent attempts by lawmakers to amend it to clarify the ministerial and entirely symbolic role of the vice president in the certification of electors betrays that the original role outlined in the Constitution must not have been simply symbolic.
President Trump made it fairly clear before and after Jan. 6 that he wanted Pence not to just delay the certification of the electors, but to reject them and choose an alternative slate of electors so that he would be re-elected.
“Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” President Trump said on Jan. 6, 2021.
Eastman told Klingenstein that such a course of action was a complicated legal matter and an open question, one that had never been addressed by the Supreme Court, and that there was scholarship on both sides of the issue.
What we normally do with respect to such unprecedented legal matters, Eastman said, is fall back on English common law — which would have any action borne out through fraud thrown out.
But Eastman recognized that for this to have been a winning argument following the 2020 election, the fraud would have to have been so bad that the New York Times would have been forced to acknowledge it.
“It’s not not going to happen, because I always set up as a predicate the fraud has to be so clear that even the New York Times would acknowledge it,” Eastman said. “And that’s just, as you pointed out, extremely unlikely.”
Despite the battery of lawfare levied against him due to his opinions on the 2020 election, Eastman affirmed that the would give the same legal advice with respect to the constitutionality of the vice president delaying the certification of electors.
“So I listen to all this, and I say that the one thing should be clear: that almost nothing is clear,” Klingenstein said in summary. “Everything seems to be contested, and there are usually arguments on both sides.”
Klingenstein attributed the confusion on the issue to several factors: the unclear text of the Constitution and the “most-likely unconstitutional” Electoral Count Act, the lack of any court ruling on the issue, only a handful of scholars having studied it, the historical evidence being clouded, and today’s commentary being so influenced by political polarization.