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theory, the Gohmert plaintiffs asserted that the Vice President has the "exclusive authority and sole discretion" to determine which electoral votes to count.[71]
Although the Gohmert suit was premised on the same theory Eastman advocated, Eastman did not agree with the decision to file suit. Eastman argued that filing a suit against the Vice President had "close[ ] to zero" chance of succeeding, and there was a "very high" risk that the court would issue an opinion stating that "Pence has no authority to reject the Biden-certified ballots."[72] As highlighted by Judge Carter, Eastman's theory was that Vice President Pence should take this action "without asking for permission" from Congress or the courts.[73] Another attorney, Bill Olson, stated that getting a judicial determination "that Pence is constrained by [the Electoral Count Act]" could "completely tank the January 6 strategy."[74] Those who were advocating to press on with the Eastman scheme did not want to bring it before a Federal judge because of the high risk that a court's determination that the scheme was illegal would stop the plan to overturn the election dead in its tracks.
Eastman himself pushed this cavalier attitude towards the courts and compliance with the law during a call with Arizona House Speaker Rusty
