power to reject the certified electors from several States out-of-hand. "[T]hey've got multiple slates of ballots from seven states," Eastman said. "And they've gotta decide [ ] which is the valid slate to count . . . I think they have that authority to make that determination on their own."[114]
Bannon claimed the Vice President of the United States is "hardwired in," and an "actual decisionmaker."[115] The Vice President's role is not "ministerial," Bannon declared.[116] Eastman agreed.[117] "Are we to assume that this is going to be a climactic battle that's going to take place this week about the very question of the constitutionality of the Electoral Count Act of 1887?" Bannon asked.[118]
Eastman replied, "I think a lot of that depends on the courage and the spine of the individuals involved." Bannon asked Eastman if he meant Vice President Mike Pence. "Yes," Eastman answered.[119]
JANUARY 3, 2021: EASTMAN DRAFTS ANOTHER “JANUARY 6 SCENARIO” MEMO “WAR GAMING” THE WAYS THAT VICE PRESIDENT PENCE COULD CHANGE THE OUTCOME OF THE ELECTION.
The next day, January 3, 2021, Eastman drafted a six-page memo that imagined several scenarios for January 6th, only some of which led to President Trump's victory.[120] In a section titled, "War Gaming the Alternatives," Eastman set forth the ways he thought President Trump could remain in power.[121] Importantly, Eastman concluded that President Trump could remain president if—and only if—Vice President Pence followed Eastman's illegal advice and determined which electoral college ballots were "valid."[122] In another scenario, Eastman imagined that President Trump may somehow win re-election in January 2021 if Vice President Pence remanded the electoral votes to State legislatures, such that they could have ten days to investigate President Trump's baseless claims of fraud. In that case, Eastman allowed that former Vice President Biden may still win, should the State legislatures determine that the evidence was "insufficient to alter the results of the election."[123]
Eastman Knew that there Were No Valid "Alternate" Slates, But He Nonetheless Predicated His Advice to the Vice President and President on this Claim. In his six-page memo, consistent with the earlier two-page memo, Eastman states that "the Trump electors" met and transmitted votes, finding that "[t]here are thus dual slates of electors from 7 [S]tates."[124] Even since January 6th, Eastman has continued to affirm and defend his assertion that there were dual slates of electors, writing: "Trump electors from seven [S]tates in which election challenges were still pending met (albeit of their own accord) on the date designated by Congress, cast their votes, and transmitted those votes to Congress."[125]
