permission—either from a vote of the joint session or from the Court. . . . The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind." [29]
From the start, President Trump was looped in on Eastman's proposal. The same day Eastman started preparing the memo, he sent an email to President Trump's assistant Molly Michael, at 1:32 p.m.: "Is the President available for a very quick call today at some point? Just want to update him on our overall strategic thinking."[30] Only five minutes later, Eastman received a call from the White House switchboard; according to his phone records, the conversation lasted for almost 23 minutes.[31]
EASTMAN CHANGED HIS EVALUATION OF THE 12TH AMENDMENT, AND THE ROLE OF THE VICE PRESIDENT, AFTER PRESIDENT TRUMP LOST THE ELECTION.
In Eastman's theory, which was the foundation of President Trump's January 6th plot, the Vice President of the United States is the "ultimate arbiter" and could unilaterally decide the victor of the 2020 Presidential election.[32] However, just before the 2020 presidential election, Eastman had acknowledged in writing that the Vice President had no such expansive power.
In the course of a lengthy exchange of ideas and emails throughout the pre- and post-election period with an individual named Bruce Colbert, Eastman provided comments on a letter Colbert was drafting to President Trump.[33] The draft letter purported to provide recommendations of "crucial legal actions" for the Trump Campaign to take "to help secure your election victory as President of the United States."[34] One of the draft letter's recommendations was that "the President of the Senate decides authoritatively what 'certificates' from the states to 'open.'" In response, Eastman wrote on October 17, 2020, "I don't agree with this" and continued, "[t]he 12th Amendment only says that the President of the Senate opens the ballots in the joint session and then, in the passive voice, that the votes shall then be counted. 3 USC § 12 says merely that he is the presiding officer, and then it spells out specific procedures, presumptions, and default rules for which slates will be counted. Nowhere does it suggest that the President of the Senate gets to make the determination on his own. §15 doesn't, either."[35]
By the first week of December, Eastman's correspondence with this same individual illustrates that he was open to advocating for the very point he had rejected before the election—that is, that "the 12th Amendment confers dispositive authority on the President of the Senate to decide which slate to count."[36] And on December 5, 2020, Eastman wrote to Colbert, "I have spoken directly with folks at the top of the chain of command on this. They are now aware of the issues."[37]
