John Eastman is right to resist the January 6 committee

John Eastman, a former member of Donald Trump’s legal team, has just declined, through his attorney, to cooperate with the congressional inquiry into the events of January 6, 2021 at the Capitol.

I think he was right to do so, for several reasons.

In the first place, the congressional inquiry would be better named a congressional vendetta. Its composition is heavily weighted towards Democrats. The committee includes no “ranking members” of the opposition as the rules stipulate, hence the frequent invocation of the “Star Chamber” in descriptions of the inquiry. It is less an investigation than an inquisition.

Given the frankly biased structure of the congressional panel, Eastman, like Steve Bannon before him, was right to decline to testify or provide documents to aid in his own prosecution.

For readers who are a little fuzzy about just who John Eastman is, the relevant fact is that (apart from being a brilliant constitutional lawyer at the storied Claremont Institute), Eastman wrote the now infamous memo, originally a two-pager, later expanded to six pages, in December 2020 outlining various strategies that team Trump might consider in response to the 2020 election.

It is not, as widely reported, a scheme to “overturn” the election. It is an effort to layout various ways in which an election that was widely seen to be corrupt could be lawfully challenged.

Nevertheless, the memo and its author have been subject to wild accusations and misinterpretation.

Writing in the Washington Post, Daniel Drezner accused Eastman of being a “coup plotter.”  The New York Times echoed that complaint, charging that Eastman “counseled [Trump] on how to retain power after losing the election.”

No, he didn’t. Both the Times and the Post cite a preliminary version of Eastman’s memo in support of their charges.

The original memo, which is widely available, tells a different story.

Eastman’s main purpose was to explain the constitutional issues the 2020 election presented and to outline possible alternative responses for the vice president. His main point was that if the slates of electors presented by certain states were invalid, then the vice president was authorized under the Twelfth Amendment to pause the count of the electoral votes and return the slate to the state legislatures in question for recertification.

Did you know that legislators in Pennsylvania, Arizona, Georgia, Wisconsin and Michigan sent letters to Pence in early January outlining illegal manipulation of the election laws and asking (in the words of legislators from Pennsylvania) that Pence “delay certification of the Electoral College to allow due process as we pursue election integrity”?

Somehow, that news doesn’t get mentioned by people perpetrating the big lie that anyone who questions the legitimacy of the 2020 election is a partisan of “the Big Lie.” According to The Narrative, Donald Trump asked Mike Pence to reject the electoral votes.

In fact, as Eastman shows in a thoughtful essay from late January: “the vice president was not being asked to decide the matter himself, but to pause the proceedings long enough to give the couple of states whose legislators had asked for more time to assess whether the illegal conduct by their state election officials — illegal conduct that Pence himself twice acknowledged in his statement — was sufficient to warrant revoking the existing certification and submitting a new one that accurately reflected the state’s vote.”

Does that sound like the ravings of a “coup-plotter” aiming at a “putsch”?

If you sense a certain amount of desperation emanating from the framers of The Narrative, you are not wrong.

That creaking, crashing sound you hear off-stage is the fracturing of the meme that January 6 was a coordinated effort to effect a “overturn” the 2020 election and stage a “coup.”

In the immediate aftermath of January 6, we were told that it was the worst assault on “our democracy” since 9/11 or Pearl Harbor.

Then Joe Biden said that it was the worst since “the Civil War”!

The FBI hoovered up some 600 people who had been in or around the Capitol that day. Many are languishing in jail, some in solitary confinement. Doubtless they are pondering the meaning of the Sixth Amendment’s guarantee of a speedy trial.

As more and more video clips emerge of what actually happened that day, the less plausible the prosecution’s case seems. People are being charged not sedition or treason but trespassing or “disrupting an official proceeding.”

Added to that emerging video evidence are more and more reports of FBI assets salted among the crowd and egging on the protesters.

The name of the game Congress is playing with its partisan inquisition is intimidation. John Eastman is right to resist. Every American who cares about our Constitutional rights should support him.