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The Eastman Connection

In an office where I was working at the Salvatori Center, I found what must have been a retired CMC professor's rolodex. It was a kind of time capsule, with names and phone numbers of famous conservatives — Ronald Reagan, Milton Friedman, and Francis Fukuyama. But the name that really caught my eye was John C. Eastman.



CMC has always had a more conservative tilt in its faculty relative to comparable liberal arts colleges. Henry Salvatori (namesake of the Salvatori Center) was one of Reagan's first supporters for governor of California, serving as state finance chairman for his 1966 campaign and as part of Reagan's "kitchen cabinet." Many liberal-minded students, myself included, applied to CMC not in spite of a conservative presence here, but because of it. It's rare for any liberal arts college to have as diverse of an intellectual or political culture as CMC does.


But when some of those conservative professors ally with attempts to undermine the very foundation of America's constitutional democracy, how should we respond? The value of open debate reaches a logical extreme around attempts to override or overthrow democracy itself. January 6th was not an impromptu outburst of violence. Nor was it merely egged on by Trump's tweets. Jan. 6th was the result of a meticulously orchestrated campaign aimed at overturning the results of the 2020 election, and thus overturning American democracy itself.


John Eastman and some of his CMC faculty colleagues, have left our college embarrassingly linked to the attempt to prevent the peaceful transfer of presidential power. After all that we've learned about Eastman's brazen effort, the fact that some CMC professors remain associated with him and the Claremont Institute is a source of shame.

 

Although the Claremont Institute has no formal affiliation with any of the Claremont Colleges, it was founded in 1979 by students of the late political theorist Harry V. Jaffa, a professor emeritus at CMC. According to historian Kevin Starr, in his history of CMC's first 50 years, Jaffa's arrival at CMC in the 1960s contributed to the College's prominence in conservative political circles. "Through the writings of Arthur Kemp in Modern Age and Harry Jaffa in National Review," Starr writes, "CMC emerged in the 1960s as one of the headquarters of the conservative intellectual revival then under way in the United States."


Professor George Thomas, who arrived at CMC long after Jaffa had retired, remembers Jaffa still visiting campus from time to time: "Some graduate students at neighboring CGU still revered Jaffa in a manner that tended toward idolatry," Thomas writes in an essay.


Jaffa at Honnold-Mudd. Photo courtesy of CMC.


Jaffa was a Straussian, a follower of the political philosopher Leo Strauss. In his 1959 book, Crisis of the House Divided, Jaffa offers a moral and philosophical reading of the Lincoln-Douglas debates. Jaffa characterizes the debates as "identical with the issue between Socrates and Thrasymachus" from Plato's Republic. That is, while Lincoln argued for natural right, Stephen Douglas argued for "popular sovereignty" concerning the expansion of slavery into western territories. For Jaffa, Lincoln insisted that slavery was morally wrong, while Douglas argued that such moral questions depended on the judgment of the people by way of popular sovereignty. Jaffa casts Lincoln as arguing that the moral principles of the Declaration required citizens to recognize the wrong of slavery and to eradicate it, fulfilling the moral and political principles set in motion by the American regime – as Straussians like to call systems of government.


So far, so good. But many of Jaffa's disciples at the Claremont Institute have gone much further, arguing that the way to fulfill Lincoln's vision was by fighting, by any means, against the forces of progressivism. In their interpretation, liberals are the legatees of Douglas who succumb to the claims of human will (progressivism) in defiance of natural right.


Over the years, numerous CMC alumni and professors have been associated with the Claremont Institute. CMC professor Charles Kesler is currently a senior fellow at the Institute, and the founding editor of its signature publication — The Claremont Review of Books. Kesler receives a six-figure salary (in 2022: $241,000) from the Claremont Institute on top of his compensation from CMC.



Kesler Introduces Jaffa. Photo courtesy of The American Mind.


CMC Professor Mark Blitz (who, for the record, is my advisor on paper but has no idea who I am) is also a fellow of the Claremont Institute. As a Government student at CMC, you are required to take Intro to Political Philosophy. Between Blitz and Kesler there's a pretty good chance you'll end up taking it with a 'Claremonster.'


Overall, the Trump era has been a boon to the Claremont Institute. In the leadup to the 2016 election, the CRB published the infamous 'Flight 93 Election' essay under a pseudonym. The article seized the imagination of the audience by likening the choice between Clinton and Trump to that faced by Flight 93 passengers, who wrested control of the plane from Al Qaeda hijackers on 9/11. Right-wing radio hosts promptly alerted their audiences of the must read essay from the CRB. The audience grew. In the most recently available fiscal year (ending June 2021), the institute reported over $8 million dollars in donations.


The author of 'Flight 93 Election' was eventually revealed to be Michael Anton, a former student of Kesler's who went on to work in the Trump administration.


"Never Trumpers," then and now, arguably constitute the dominant strain of conservative intellectual sentiment. Yet, here was Anton, a member of a prestigious Straussian wing of the intellectual right making a positive case for a nominee that most conservative intellectuals dismissed as a clown and a surefire loser. According to the article, a Hillary Clinton win would mean certain death of the republic. By contrast, electing Trump was merely risky — "you may die anyway" — but clearly preferable to certain death at the hands of terrorists. If Clinton won, progressivism would destroy the American regime. This vision found its ultimate expression in the attempt to overturn the 2020 election. Eastman, who is a founding director of the Center for Constitutional Jurisprudence — a subsidiary of the Claremont Institute — provided both incitement to the insurrection and legal cover. In a hysterical speech to the crowd on January 6th, Eastman shouted:

"So we get to the bottom of it, so that the American people know whether we have control over the direction of our government or not! We no longer live in a self-governing Republic if we can't get the answer to this question! This is bigger than President Trump! It is the very essence of our Republican form of government and it has to be done. And anybody who is not willing to stand up and do it does not deserve to be in the office. It is that simple!"

The backdrop to that unhinged performance was Eastman's promulgation of the myth that there were legal pathways to overturn the results. In December 2020, he filed a brief on Trump's behalf in a Texas lawsuit challenging Biden's win before the Supreme Court. The court threw the case out, but Eastman kept up his efforts. Later that month, he wrote and circulated a series of memos espousing the theory that the vice president is "the ultimate arbiter" of the election and had the power to delay Congress' count of Electoral College votes.


In the memos, Eastman outlined the way that Vice President Mike Pence, while presiding over the electoral vote count in Congress on January 6, could reject the election results of seven states because of supposed "ongoing disputes" over state electors and thereby exclude the electoral votes from those states.

"When (Pence) gets to Arizona," Eastman wrote, "he announces that he has multiple slates of electors" and "(a)t the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed by those States."

This was not a long-shot theory but an attempted fraud. The election results of every state were certified by December 9. On December 14, the Electoral College convened and all 538 electors cast the electoral votes for president, with Joe Biden receiving 306 electoral votes to Trump's 232. At that point, Trump had already lost 60 different lawsuits alleging 'voter fraud.'

While the Claremont Institute was not affiliated with Eastman's efforts to upend the 2020 election results, the arguments he advanced reveal a shared genealogy of belief – a version of the Flight 93 argument all over again.


Eastman's memo essentially argues that any random group of persons in a state can submit a paper to Congress claiming to be the true electors of a state, and that the Vice President can then use that as a basis to throw out the votes of those states. Another pillar of Eastman's memo is the idea that Pence could simply declare that Trump was re-elected President.

Eastman outlines how, after Pence rejected the votes from the seven states, Trump would then have the majority of electoral votes: "Pence then gavels President Trump as re-elected," Eastman writes, adding later that the vice president is "the ultimate arbiter."

This is not true.

In fact, there's never a time the presiding officer of the Senate gets to make a final substantive decision about any matter.

The 12th Amendment outlines the vice president's role in the certification process on January 6 as largely ceremonial. As the President of the Senate, the Vice President "shall… open all the certificates and the votes shall then be counted," according to the 12th Amendment.

To be clear, not "certified," but "counted." The votes were already certified a month earlier and no state legislature or judiciary had filed formal requests for them to be recertified.

During the Jan. 6 Committee hearings in 2022, Pence lawyer Greg Jacob explained that in the days leading up to Jan. 6, Eastman proposed two paths for Pence to keep Trump in power. Pence could outright reject the electors and their votes, or he could delay the certification for ten days, which would give state legislatures time to send Trump-friendly electors for a later vote count.


Eastman's theories were rejected at every turn by principled conservatives including Pence and the federal courts. Even Eastman knew his proposals were not just absurd but potentially criminal, which is why he subsequently sought a presidential pardon. Both Jacob and retired conservative judge J. Michael Luttig testified before the Jan 6 committee that both of Eastman's avenues were illegal. Jacob said Pence never considered either option. Rep Pete Aguilar (D., Calif.) also produced a pre-election memo in which Eastman himself acknowledged that those pathways were not legal.


Jacob testified that Eastman switched back and forth over which route he recommended, noting that the second might be more "politically palatable," because the ten day window would provide time to build public acceptance for the move.


Despite Pence never entertaining Eastman's suggestions, Eastman pushed the issue numerous times up through Jan 6. Eastman spoke alongside Trump lawyer Rudy Giuliani at Trump's Jan. 6 rally at the Ellipse before rioters headed toward the Capitol. During the siege, he exchanged emails with Jacob.


"The 'siege' is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so that the American people can see for themselves what happened," Eastman wrote to Jacob.

After the insurrection, which delayed the count beyond what is technically called for in the Electoral Count Act, Eastman tried at least once more to convince the Vice President to delay the certification.


"Now that we have established that the Electoral Count Act is not so sacrosanct as you have made it out to be, I implore you to consider one more relatively minor violation and adjourn for 10 days to allow the legislatures to finish their investigations," he emailed Pence.

Days later, Eastman emailed Trump lawyer Rudy Giuliani asking to be placed on a potential presidential pardon list, the committee revealed, though he ultimately was not.


Back to Claremont.


In the Claremont Review's Winter 2020/21 edition, Kesler shared his thoughts on how January 6th could impact Trump's legacy. While he denounced the violence and criticized the Trump administration's unpreparedness for the day's events, Kesler only mildly questioned John Eastman's theory. Generally, the piece can be viewed as a strenuous attempt to justify Eastman's scheme: he defends Trump's speech on January 6th, critiques the second impeachment, and characterizes Eastman as a brilliant lawyer.


Before Eastman's memos were published, Kesler sounded like he thought the theories they advanced were plausible. In "After January 6," he calls Eastman's theory "novel" and "complex," but does not reject it.


"Trump was not asking for Pence to single-handedly reverse the election, but to pause the process of counting long enough for the state legislatures to clarify for whom their states had actually voted," Kesler writes.



Kesler surprisingly leaves room for the possibility that Eastman and Trump's allegations of a stolen election had merit, even though no evidence had been presented and numerous people had scrutinized the matter (recall the 60 post-election lawsuits Trump lost). Kesler goes on to write, "Truth is, of course, that claims are 'baseless' only until such time as a base of evidence appears for them." Kesler's pivot here is a tell-tale sign of denialism: It's not made up if someday, somehow, there might be evidence for it. Kesler and flat-earthers can find common ground on this point.


The essay continues in this vein for some time—highlighting counterfactuals giving credence to Trump and Eastman's underlying assumptions, and so on. But in the end, he does admit "there is persuasive evidence of a more normal sort" that Trump simply lost. It's unlikely Kesler expects that quote to be as funny as it is.


More than a year and half passed before Kesler clearly expressed disagreement with Eastman's flawed legal viewpoints and Trump's lies about the 2020 election. "I disagree with John. I think it was a bad idea to give Trump that advice and an even worse idea to speak at the rally," Kesler told The Washington Post in an interview.


What changed over that year and a half for Kesler? In his piece from January 2021, Kesler had already conceded the central flaw in Eastman's arguments, saying, "In any event, none of the state legislatures in question had actually filed a formal request to withdraw and reexamine their state's electoral votes." Kesler conceded that fact, but never pondered its significance to Eastman's larger argument, namely, that it was fraudulent because it lacked any factual basis.


Eastman and Trump at Fulton County Jail. Photo Courtesy CNN.


Given the damning trail of actions and communications, it's no surprise that Eastman finds himself indicted in the Georgia RICO case and implicated in the federal Jan. 6th indictment. Others who participated in the insurrection, or supported it, have already been punished in various ways. The Justice Department has secured hundreds of criminal convictions of Jan. 6 rioters, including seditious conspiracy convictions for leaders of the Oath Keepers and the Proud Boys.


Fox News, which amplified Trump's election lies, agreed to a stunning $787 million defamation settlement with Dominion Voting Systems, and multiple defamation cases continue against multiple right-wing media outlets.


To be clear, this accountability has not come exclusively through the left — though the Biden administration and the Attorney General Merrick Garland deserve immense credit for their responses to Trump's insurrection, which have been firm without overreaching. Multiple Republicans joined with Democrats to pass Electoral Count Act reform, which would make a repeat of Trump's coup attempt far more difficult. Both conservative and liberal justices rejected the independent state legislature doctrine, which essentially argued that partisan legislatures could overturn the will of the voters. Conservative and liberal judges, including multiple Trump appointees, likewise rejected Trump's election challenges. Republican governors and other Republican elected officials in Arizona and Georgia withstood immense pressure from within their own party to uphold Joe Biden's election win.


But while many Jan. 6 actors have paid the price, Eastman and Trump so far have not. For justice to be served, you can't just punish the foot soldiers. The generals and planners have to be held responsible too. Even if they might be friends with some of your teachers.

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