The emails also signaled another idea that Eastman would continue to repeat in the coming weeks: that the Vice President could act without getting permission from a court. Specifically, he argued that they could take the position that the Vice President's authority was a "non-justiciable political question"—in other words, that Vice President Pence could just act, and no court would have jurisdiction to rule on the issue.[38] As Eastman's emails later in the month make clear, he thought there was an important reason to keep this issue out of the courts—they would rule that the theory was unlawful.
EASTMAN'S "JANUARY 6 SCENARIO" CLEARLY REQUIRED THE VICE PRESIDENT TO VIOLATE THE ELECTORAL COUNT ACT, THE FEDERAL LAW GOVERNING THE CERTIFICATION OF PRESIDENTIAL ELECTIONS.
There are other parts of Eastman's two-page December 23rd memo worthy of attention. Eastman wrote that Vice President Pence could recuse himself from presiding over the joint session of Congress on January 6th. In that event, the session would be overseen by the Senate President Pro Tempore, Senator Charles Grassley. Eastman was clearly arguing that Vice President Pence (or Senator Grassley) should violate the Electoral Count Act. "When he gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States," Eastman wrote.[39] "This would be the first break with the procedure set out in the Act."[40] This "break" with "procedure" that Eastman's memo was openly advocating for was in other words the Vice President breaking the law. When Chesebro read Eastman's memo, he commented favorably, declaring it "[r]eally awesome."[41]
At this point, Eastman continued, Congress would likely follow the "process" set forth in the Electoral Count Act, and "the two houses [would] break into their separate chambers" for debate.[42] But Eastman advised "we should not allow the Electoral Count Act constraint on debate to control" and the Trump team "should demand normal rules (which includes the filibuster)." [43] Eastman thought this would create a "stalemate," giving "the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so."[44] As discussed previously in this report, at the time he drafted this memo—and throughout the post-election period—Eastman, Giuliani, President Trump and others were simultaneously working to replace certified electors for former Vice President Biden in certain States. Eastman, Giuliani, and President Trump all pressured State legislators to name their own separate electors or to certify the campaign's fake electors.
