The Eastman memo was a plan drafted by attorney and constitutional law professor John Eastman in late 2020 and early 2021, laying out steps for Vice President Mike Pence to block or delay certification of the 2020 Electoral College results on January 6, 2021. It rested on the theory that the Vice President could unilaterally reject electoral votes from contested states. Pence refused to follow it, a federal judge later found it likely furthered crimes, Congress rewrote the governing law to foreclose it, and Eastman faced disbarment proceedings and criminal indictments before receiving presidential pardons in 2025.1CNN. January 6 Scenario Memo
What the Memo Proposed
Eastman drafted several versions of the plan. The most widely circulated was a two-page “six-step scenario” shared with the President’s legal team and presented directly to Pence and his staff before the January 6 joint session.1CNN. January 6 Scenario Memo
The script called for Pence to open the electoral certificates in alphabetical order and, upon reaching Arizona, announce that he had received “multiple slates of electors” and defer any decision on which slate to count. He would repeat this for each of seven contested states. After setting those aside, Pence would announce the remaining totals: 232 electoral votes for Trump and 222 for Biden, with neither reaching the 270-vote majority normally required to win.1CNN. January 6 Scenario Memo2National Archives. What Is the Electoral College?
From there, the memo offered two paths. The first was for Pence to declare that the 454 remaining votes made up the full pool of “electors appointed” under the Twelfth Amendment, lowering the majority threshold to 228 and giving Trump the win with 232. The fallback was to declare that no candidate had reached a majority and throw the election to the House of Representatives for a vote by state delegation, a procedure in which Republicans then controlled 26 of 50 delegations.1CNN. January 6 Scenario Memo3USAGov. Electoral College
A variation contemplated stalling. If members of Congress objected and the chambers split into separate debate sessions, an ally in the Senate would demand full debate rules including the filibuster, creating a stalemate meant to buy time for state legislatures to certify alternative slates. The memo was explicit that Pence should act “without asking for permission — either from a vote of the joint session or from the Court.”1CNN. January 6 Scenario Memo
The Legal Theory Behind It
Eastman’s central claim was that the Vice President held broad, unreviewable discretion over which electoral votes to count. He grounded this in the Twelfth Amendment’s language that the “President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”4Congress.gov. U.S. Constitution – Twelfth Amendment He read that passive construction as granting the presiding officer inherent authority to resolve disputes over which certificates were valid, rather than performing a ceremonial function.
A major piece of the argument attacked the Electoral Count Act of 1887, the statute that had governed the counting process for over a century. That law required both chambers of Congress to concur before rejecting a state’s certified results. Eastman called the statute “likely unconstitutional” because it allowed the two houses to act separately, whereas the Twelfth Amendment only contemplates a joint session. If the Electoral Count Act was invalid, he argued, the Vice President would default to the broader authority he claimed under the Twelfth Amendment alone.1CNN. January 6 Scenario Memo
Eastman also pointed to historical examples, citing actions by Vice Presidents John Adams in 1797 and Thomas Jefferson in 1801 as evidence that presiding officers had exercised discretion. The Jefferson example involved Georgia’s electoral certificates failing to meet the Constitution’s formal requirements; Jefferson, presiding as Senate President, counted the flawed votes in his own favor rather than ruling them invalid.5GW Law Faculty Publications. Thomas Jefferson Counts Himself into the Presidency
Why the Theory Failed
No Vice President had ever claimed the power to unilaterally reject a state’s certified electoral votes. The National Archives, which administers the Electoral College process, describes the Vice President’s role in the joint session as “strictly ministerial,” limited to presiding over the count and announcing results.2National Archives. What Is the Electoral College?
Pence himself refused. In a letter to Congress released shortly before the January 6 joint session, he stated that he lacked “unilateral authority to determine which electoral votes should be counted” and that the Framers never intended the Vice President to hold such power. His counsel, Gregory Jacob, had prepared an internal rebuttal describing Eastman’s position as historically unfounded and constitutionally unsound.
Judge Carter’s Crime-Fraud Ruling
The most significant judicial assessment came in March 2022, when Federal District Judge David Carter ruled on an attorney-client privilege dispute in Eastman v. Thompson. Applying the crime-fraud exception, Judge Carter found it “more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021,” and that the plan likely furthered “conspiracy to defraud the United States.”6DocumentCloud. Eastman v. Thompson Order
Judge Carter wrote that “the illegality of the plan was obvious” and that Eastman “likely knew that the plan was illegal.” He described the effort as “a coup in search of a legal theory.”6DocumentCloud. Eastman v. Thompson Order The ruling itself imposed no criminal penalties; it required Eastman to turn over communications to the House Select Committee investigating January 6.
How Congress Closed the Door
In December 2022, Congress passed the Electoral Count Reform and Presidential Transition Improvement Act as part of the annual spending bill, replacing the 1887 Electoral Count Act with updated procedures designed to prevent the exact scenario the memo described.7GovInfo. Congressional Record – Electoral Count Reform and Presidential Transition Improvement Act
The reformed law, codified at 3 U.S.C. § 15, states that “the role of the President of the Senate while presiding over the joint session shall be limited to performing solely ministerial duties.” It explicitly denies the Vice President any “power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.”8Office of the Law Revision Counsel. 3 USC 15 – Counting Electoral Votes in Congress The language reads as a point-by-point rebuttal of the memo’s claims.
The new law also raised the threshold for objecting to a state’s electoral votes. Under the old statute, a single member of each chamber could force a debate. The reformed version requires one-fifth of each chamber’s members to sign a written objection and limits objections to narrow, specified grounds such as a failure to comply with the certification process.
What Happened to Eastman
The House Select Committee’s final report, released in December 2022, identified Eastman as “the architect of the scheme to pressure then-Vice President Mike Pence to reject states’ electoral votes” and referred him for prosecution.
Disbarment Proceedings
The California State Bar brought disciplinary charges against Eastman for violations of professional conduct rules, including making false and misleading statements about the election. After a trial in early 2024, a State Bar Court hearing judge recommended permanent disbarment and a $10,000 monetary sanction. The State Bar Court’s Review Department affirmed that recommendation.9California State Bar. John Eastman State Bar Court Review Decision – Disbarment Recommendation Remains As of mid-2025, his law license was on involuntary inactive status, with the case awaiting final review by the California Supreme Court.
Criminal Cases and Pardons
In the federal election interference case brought by Special Counsel Jack Smith against Trump, Eastman was widely identified as an unindicted co-conspirator, referred to as “Co-Conspirator 2” in court filings. That federal case was dismissed in November 2024 after Trump won the presidential election.
In Georgia, Eastman was indicted alongside Trump and others under the state’s racketeering statute. That case was dismissed in its entirety in November 2025. In Arizona, Eastman was among 18 Republicans indicted on charges of forgery, fraud, and conspiracy related to the submission of an alternative slate of electors. As of May 2025, a Maricopa County judge ordered the Arizona case sent back to a grand jury after finding that prosecutors failed to present the text of the Electoral Count Act to the original grand jury, though the state Attorney General’s office indicated it would appeal.
On January 20, 2025, President Trump issued a broad pardon and commutation proclamation covering offenses related to events at or near the Capitol on January 6, 2021, and directed the Attorney General to seek dismissal of pending federal indictments from those events.10The White House. Granting Pardons and Commutation of Sentences for Certain Offenses Relating to the Events at or Near the United States Capitol on January 6, 2021 In November 2025, Trump issued a separate proclamation specifically covering conduct related to alternate elector slates in the 2020 election, naming Eastman and granting him “a full, complete, and unconditional pardon” for related conduct.11Federal Register.