Trump attorney John Eastman had a plan to switch Pennsylvania from Biden to Trump in the final days of 2020: have state legislators count the votes just a little bit differently.
In Eastman’s case, newly released emails show, he wanted to have the legislature use a formula he devised that, in his words, would leave the state “with a significant Trump lead.”
It’s a variation on the age-old and apocryphal Stalin quote that “it’s not who votes that counts, but who does the counting.”
The emails were obtained via a Freedom of Information Act request by the Colorado Ethics Institute, and were first reported by the Denver Post. The emails stem from Eastman’s time as a fellow at the University of Colorado, Boulder in 2020.
Eastman made the suggestion in an exchange with Pennsylvania State Rep. Russ Diamond (R), who had contacted the conservative law professor on Dec. 4 after seeing Eastman testify before the Georgia state Senate. Diamond wanted to know whether the supposedly “unlawful election” gave the state legislature the right to “exercise its plenary authority to appoint presidential electors, regardless of restraints existing within Pennsylvania’s constitution and statutes.”
Diamond forwarded Eastman a draft resolution that he had written. It would declare that the state’s general assembly had found the election to be unlawful and, therefore, that the state “had failed to make a choice on the day prescribed by law” and could not determine which candidate won.
Eastman replied the same day with several edits. The main one was to suggest that the legislature be more aggressive.
Not only should the state’s legislators declare the election invalid, Eastman wrote in the Dec. 4, 2020 message, they should choose a new slate of electors for Trump.
“Do you want to only go half way, and require another resolution to actual choose a slate of electors? Or should you do it all in one resolution?” Eastman wrote. “I don’t know the dynamic of your Legislature, so can’t answer that. But my intuition is that it would be better to do what you need to do in one fell swoop.”
Eastman added that Diamond should add a section to the resolution that included “factual findings,” based in part on hearings held before the Pennsylvania state legislature the week before. (Trump himself appeared at that hearing via his attorney’s cell phone, which was held up to the mic for state legislators to hear. The President proceeded to complain that nobody would “overturn” the election for him.)
Eastman went on to articulate a series of claims that the legislators could make to do just that: why not just “pro-rate” the vote totals, ignoring a subset of mail-in ballots?
“For example, depending on how many ballots were counted that were received after the statutory deadline (say 10,000 for example’s purpose), those 10,000 votes need to be discarded, and you can take the absentee ballot ratio for each candidate in the counties were late-received ballots were illegally counted and deduct the pro-rated amount from each candidate’s total,” Eastman wrote.
In an emailed statement to TPM Wednesday, Diamond put distance between himself and Eastman’s ideas, writing, “at no time did I consider presuming any alternative count of the popular vote in Pennsylvania.”
In the Dec. 4 exchange, Eastman floated another option that had to do with verification: Why not just apply the “historical rejection rate” for ballots and then “discount each candidates’ totals by a prorated amount based on the absentee percentage those candidates otherwise received.”
That, Eastman pointed out, would leave Trump with a lead in the state, therefore “bolster[ing] the argument for the Legislature adopting a slate of Trump electors — perfectly within your authority to do anyway, but now bolstered by the untainted popular vote.”
“That would help provide some cover,” he added.
Diamond replied to Eastman the same day, thanking him for the ideas while complaining about the Trump team.
“Honestly, the Trump legal team was not exactly stellar at PA’s hearing, failed to provide the affidavits of their witnesses, and made a glaring error by purporting that more ballots had been returned than mailed out,” he wrote. “It is for this reason that I so latched onto your comments that actual fraud is irrelevant when the election itself is unlawful.”
Diamond tried to separate his efforts in 2020 from those of Eastman in the statement to TPM.
“Professor Eastman was but one of many individuals I interacted with in the aftermath of the 2020 General Election,” he wrote. “I believe the emails in question pretty much comprised the sum of our interactions.”
Diamond added that he continues to “believe that jealously guarding and preserving the legitimate authority of the Pennsylvania General Assembly should always remain a priority.”
