Your Guide To John Eastman’s High Falutin’ Word Salad to Overthrow the Constitution

Originally Titled 'Summa Contra Bullshitica Eastmana'
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I’ve been returning to this John Eastman interview again and again. In a way it doesn’t deserve so much attention. This is a shallow-thinking, casually self-justifying, fundamentally dishonest man. But his central role in America’s profound political crisis — one that is ongoing — makes him and his arguments important. What interests me are the sophisms he uses to justify his own criminality, attacks on the democratic process and more by projecting his own bad acts on to his foes.

The structure is consistently the same. Assert enemies were about to do X in the cause of the Deep State, wokeness and anti-Americanism so Eastman had to do X to preserve America. In a way he takes to the nation-state level the argument of every guy who blows someone’s head off and justifies it by saying he was afraid they were about to hurt him. Beyond these “I had to do it first” claims there’s another theme: a lot of railing against coastal intellectuals from the Eastman crew’s headquarters in Southern California while using layer upon layer of high-falutin’ fancy talk that falls apart when you kick any tire.

There’s an irony here for anyone familiar with the “Straussian” milieu, the idea pond in which Eastman spent his academic and political career. A centerpiece of that intellectual world is what allows republics to survive is not perfectly crafted constitutions or the most copious knowledge but virtue. And yet in the crunch, they were the ones most willing to come up with transparently silly and circular arguments to get what they wanted. To the extent “virtue” is really the cement that holds republics together, they turned out to have the least of it, which is of course what brought them and Trump together.

Let me just note a couple examples.

So for instance, just past 17 minutes into the interview he says this: “If Trump is the legitimate winner and you’re afraid of saying that because of mob violence then you’re subjecting yourself to mob rule. And that’s not the rule of law.”

This comes up in his account of a conversation he had with Eric Herschmann, a member of the Trump White House General Counsel’s office. You may remember Herschmann’s account of this conversation from his testimony to the January 6th committee when he recalled telling Eastman, “Are you out of your effing mind? I said I only want to hear two words coming out of your mouth from now on: ‘orderly transition.'” Here Eastman is giving his account. He says Herschmann said there would be riots in every American city if they pursued Eastman’s plan. Herschmann is saying if you try to steal the election all hell is going to break loose.

In Eastman’s response you have the right wing fear of being “silenced,” being afraid to say something and also the prospect of imaginary left wing mobs. In his tweedy armchair militance, Eastman wraps these together into an argument that breaking the law — switching the winner of the election without a legal rationale let alone a substantive rationale — is actually upholding the rule of law. Indeed, if Eastman and Trump’s supporters don’t overturn the election they’ll be surrendering to mob rule in advance.

A bit later Eastman gets to the point where he grounds his argument on the Declaration of Independence and its justification of overthrowing governments that become oppressive — the part I focused on in this weekend post. He references this because he’s not really saying he had a good legal argument. He’s saying that the stakes in this case were so grave and existential that they required going outside the constitution, “fighting back” as he puts it. Or as he notes in his reference to the Declaration, “abolishing” the government. He and the interviewer actually go into a digression about how he probably wouldn’t have decided to overturn the 1960 or 2000 election because the stakes weren’t as high. So here he says it wasn’t just any stolen election. It was a “stolen election that thwarts the will of the people trying to correct course and get back on a path that understands the significance and the nobility of America and the American experiment is really at stake and we ought to fight for it.”

The last part here about understanding the “significance and the nobility of America and the American experiment” is from an idea world of the Straussian clique centered on the Claremont Colleges and now embodied in the Claremont Institute. (I have some familiarity with these guys. As a 20 year old I spent a summer making copies and shooting the shit about the Declaration, Aristotle and Thomas Jefferson with their movement’s founder.) But set that aside. What makes it so important, in Eastman’s account, is that the American people had a final chance to do the right thing and shift course. It’s so important because here were the American people trying to correct course in an election in which they got fewer votes.

Last point. One highly notable thing about this interview is that Eastman doesn’t actually bring up or hang his hat on any of the “stolen election” or election fraud conspiracy theories. He’s clearly not willing to. He says the following, which comes just after 27 minutes, 30 seconds into the interview …

“The amount of information about illegality was, I thought, clear-cut. That opened the door for fraud. And I think both the statistical evidence and the anecdotal evidence [that] I had for people engaging in that fraud because the door had been open to it was significant enough to have halted the results of the election.”

With this logic he makes a key jump (actually stated most clearly earlier in the interview at just after seven minutes): “Because of the illegality, the actual burden of proof shifts on to” those who wanted to certify the election. So because of the “illegalities,” Trump and Co don’t even have to explain why the election result should be overturned. Everyone else has to explain why it shouldn’t be overturned!

Let’s break down the keywords here by translating it out of Trumpspeak: When he talks about “illegalities,” he’s talking about the raft of adjustments and changes that were made to election administration to hold an election during what was then the-still pre-vaccine pandemic. In many cases these changes were quite significant. But we can say that they were all definitively legal. How can we say this so categorically? Because the Republican Party and the Trump campaign aggressively litigated all of them in the courts in the lead up to the election. They won some of these cases but most they lost. The changes that were in effect for the actual election were all ones that withstood judicial scrutiny, in the great majority of cases before right leaning courts. Ergo, they were all legal. (As a separate matter we can ask what it says about the GOP that they were so focused on making it harder to vote during a pandemic. But that’s besides the point here.) In a way we can thank the Trump campaign for securing in advance, with judicial certainty, proof that all of their after-the-fact claims of “illegalities” were false. The premise of Eastman’s argument for overturning the result of the election is one he and his colleagues themselves blew to bits in the summer and fall of 2020. Thanks, guys!

With his bogus claim of “illegalities” in place, then note Eastman’s next sleight of hand. He says that this “opened the door” to fraud and that he had both “statistical evidence and … anecdotal evidence” to suggest that fraud happened. It’s this “opened the door” which is the crux of his argument: not that it happened but that it “opened the door.” “Statistical evidence” is basically claims that various numbers just don’t look right — error rates or numbers of rejected ballots were too high or too low. The technical term for this is self-serving bullshit. “Anecdotal evidence” is just what it sounds like: various things he heard without any substantiation or actual evidence.

The whole justification for what he concedes in the interview really was an attempt to overthrow the constitutional order turns out to be nothing more that wisps and snowflakes. He doesn’t have jack.

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