In 2020, John Eastman, an attorney for then-President Donald Trump who is now facing disbarment, presented the most extreme version of the fringe independent state legislature (ISL) theory in pursuit of overturning the presidential election results.
He was enlisted by another famed Trump lawyer, Cleta Mitchell, and eventually argued, in a late December memo, that state legislatures alone have the power to determine the slate of presidential electors. Even for a proponent of the ISL theory, this was a radical interpretation.
The ISL theory is a right-wing constitutional theory about who has the power to set rules for federal elections. The theory interprets the word “legislature” to mean that the state legislature — and only the state legislature — can make laws regulating federal elections. This differs from the standard interpretation, in which “legislature” means the state’s general lawmaking process, which includes the governor’s veto, citizen-led ballot measures and rulings of state courts.
Eastman isn’t the only Republican to utilize the ISL theory in an attempt to gain power. Most recently, North Carolina legislators, in an appeal to the U.S. Supreme Court, tried to use it to avoid redrawing the congressional map that the North Carolina Supreme Court struck down for violating the state constitution. But, last month these legislators ultimately failed when the nation’s highest court rejected the ISL theory raised in Moore v. Harper.
The Supreme Court’s decision removed the tool Eastman was relying on in 2020 and, most importantly, the tool he and other MAGA Republicans could have attempted to use in 2024.
In late 2020, Eastman helped manufacture bogus legal theories in support of Trump’s attempts to overturn the presidential election results.
On Dec. 23, 2020, Eastman sent a brief two-page memo previewing his strategy to Trump’s legal team. Two weeks later and just two days ahead of the insurrection at the Capitol, Eastman sent a six-page memo entitled “January 6 scenario” to a Trump campaign attorney and legal advisor that outlined the unilateral action that then-Vice President Mike Pence could take with respect to the electoral votes of Arizona, Georgia, Michigan, Pennsylvania, Nevada, New Mexico and Wisconsin.
The memo presented an outlandish, unconstitutional plan of how Pence could declare Trump the winner of the electoral college and the presidency. Eastman opened his memo with these words: “Article II, § 1, cl. 2 of the U.S. Constitution assigns to the legislatures of the states the plenary power to determine the manner for choosing presidential electors.”
In his memo, Eastman interpreted the word “legislature” to mean that only the legislature can set the rules for federal elections, including how presidential electors are chosen.
Employing the ISL theory, Eastman asserted that the loosening of absentee voting rules by secretaries of state, state Supreme Courts and other election officials amid the COVID-19 pandemic were illegal conduct. He argued that because the adjustments were not made by the state legislatures, the changes were unlawful.
Eastman’s ISL theory-backed plan concluded that the changes outlined in battleground states, like Pennsylvania and Wisconsin, allowed President Joe Biden to win in these states and thus those wins were invalid. As a solution, Eastman offered that alternative slates of Trump electors should be presented instead.
Eastman now faces disbarment in California over his efforts to undo 2020 election results.
Even ahead of that fateful day, Eastman was concerned about the legality of his outlined coup. During the Jan. 6 hearings, Greg Jacob, who was Pence’s legal counsel, testified that on Jan. 4, Eastman admitted to Trump that his plan would violate the Electoral Count Act.
What was more damning was Eastman’s emailed preemptive pardon request. In an email to Rudy Giuliani, he wrote, “I’ve decided that I should be on the pardon list, if that is still in the works.”
That email foreshadowing Eastman’s legal troubles has come to fruition. Recently, Eastman has been in a courtroom in downtown Los Angeles facing disbarment proceedings, in part thanks to that infamous memo. Standing to be disbarred for attempting to steal the presidency through constitutional violations, Eastman faces 11 charges from the California State Bar that are as novel as his alleged crime.
These charges hinge on the fact that Eastman wrote this Dec. 23 memo well after multiple lawsuits across a variety of states found no credible evidence of fraud that would have altered the outcome of the election.
Even with this knowledge, Eastman devised a plan to keep Trump in the Oval Office and continued to publicly purport the existence of election-stealing fraud.
During the ongoing trial, Jacob, who advised Pence against the plan, testified that Eastman and his baseless legal theory inspired the Jan. 6 rioters. In the courtroom, he stated, “The reason that they were there, the reason that they were angry, and the reason they were demanding that action be taken, was they believed that there was a momentous decision to make in the building that day.”
As rioters attempted to storm the Capitol, Eastman had just finished speaking at the rally outside of the White House where he continued to spout lies about election fraud.
Eastman’s trial, which should end in late August, is a part of the effort to finally hold the most powerful accountable for the Jan. 6 insurrection. While the rioters themselves have started seeing charges and jail time, the architects of the insurrection, like Eastman, have seen few consequences for their actions.
It begs the question, if you assist in the fomentation of a violent insurrection, what are the consequences? So far, it turns out, not much. Yes, Rudy Giuliani did have his license suspended in the state of New York and now may be facing disbarment in Washington D.C., but aside from that, the consequences for the elite, who created the lies and fury that fed the mob, have been few and far between.
Some speculate that the lies in 2020 and the fueling of Jan. 6 were a dry run for 2024. As Judge J. Michael Luttig, a George W. Bush appointee to the 4th U.S. Circuit Court of Appeals and legal advisor to former Vice President Mike Pence, asserted, “Trump’s and the Republicans’ far more ambitious objective is to execute successfully in 2024 the very same plan they failed in executing in 2020 and to overturn the 2024 election if Trump or his anointed successor loses again in the next quadrennial contest.”
Attempting to use a radical, unfounded legal theory has not turned out well for the coup lawyers.
What will Eastman and other Trump lackeys do without the ISL theory to bolster their efforts? Hopefully, we don’t have to find out — this summer has been busy for the rest of Eastman’s comrades and they now face a similar fate.
On July 7, a Washington, D.C.-based Bar discipline committee concluded that Giuliani should be disbarred for his involvement in trying to overturn the election and he was recently interviewed by federal prosecutors in a suspected proffer session also regarding the events leading up to Jan. 6.
Just a few days before the Washington D.C. Bar’s announcement, Lin Wood, another key lawyer in the former president’s quest to overturn the election, requested that the State Bar of Georgia allow him to permanently retire rather than face disbarment proceedings. His request was quickly granted and with that his legal career ended.
Rounding out the anti-democratic posse is Jeffrey Clark, a controversial assistant attorney general from Trump’s Department of Justice, whose disciplinary proceedings with the District of Columbia Bar were cleared to continue last month. Clark was responsible for urging the states where Biden won to reconvene their legislatures in order to revisit the election results. Clark had no takers on his proposal.
Though we don’t know exactly what 2024 holds, we do know that John Eastman and the rest of the insurrection’s architects are busy fighting for their legal careers in courtrooms with the knowledge that the tool they relied on, the ISL theory, has now been rejected by the nation’s highest court.