Photo-Illustration: Intelligencer; Photo: Brandon Bell/Getty Images
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The Horrifying Legal Blueprint for Trump’s War on Democracy

The John Eastman memo is a new high-water mark in Republican authoritarian thought.

Photo-Illustration: Intelligencer; Photo: Brandon Bell/Getty Images

In the Republican Party’s long, gradual slide into authoritarianism, a few key moments stand out for revealing the stark transformation under way. One of them is the memo written by conservative lawyer John Eastman advocating, on President Trump’s behalf, a legal path for him to seize an unelected second term in office.

The memo, uncovered by Bob Woodward and Robert Costa in their new book, Peril, is significant both because of its author, a prestigious conservative legal scholar, and the horrifying ramifications of his argument, which would have likely spelled an end to the republican form of government that has existed in the United States since 1789.

Eastman’s argument at least broadly tracks the plan embraced by Trump and the mob of right-wing supporters who stormed the Capitol on January 6. It posits that the Electoral Count Act grants the vice-president discretion over which electoral ballots to accept as part of the official count.

The legal merits of the argument don’t matter very much — Eastman’s interpretation is widely derided as crazy, but the key point is that even if he’s right, he would have identified a wormhole in the Constitution permitting the vice-president to override the election results. Since the vice-president’s interests are typically aligned with the president’s, this power would allow the president’s party to stay in office through an indefinite series of elections.

To be sure, while Eastman’s argument persuaded the president of the United States and several officials close to him, it failed to sway many other leading Republicans, including its most important target: the vice-president himself. Most Republicans tend to dismiss episodes like Eastman’s memo as idiosyncratic ravings ignored by the powers that be. And it is possible the waning days of Trump will eventually be seen as the high-water mark of authoritarian sentiment within the party. But the bulk of the evidence suggests instead that it is a way station to a much darker destination.

After briefly recoiling at Trump’s attempted autogolpe, his party has largely fallen behind him. Trump — confounding the complacent belief that he is too lazy and incompetent to wield authoritarian power — has diligently targeted officials with power over election results and replaced them with loyal functionaries. Trumpist candidates now stand poised to grasp ahold of the election machinery in Georgia, Arizona, and Michigan. Trump’s endorsements have usually proven decisive in Republican primaries. In Arizona, he praised his preferred secretary-of-State candidate’s “incredibly powerful stance on the massive Voter Fraud that took place in the 2020 Presidential Election Scam”; in Michigan, he praised his endorsee as “strong on Crime, including the massive Crime of Election Fraud.”

Trump has intimidated his internal opposition into silence, opportunistically picking off his critics. Last week, Representative Anthony Gonzalez, until recently considered a rising star in the party, announced his retirement in a concession that his vote to impeach Trump for attempting to subvert the election left him certain to lose his upcoming primary. The party’s future belongs to the loyalists who have either tacitly or explicitly endorsed his ravings.

A typical case is Representative Elise Stefanik, now the third-ranking Republican in the House, who asserts that Democrats are planning a “PERMANENT ELECTION INSURRECTION” by offering undocumented immigrants a pathway to citizenship. Here is a perfect sample of the logic and rhetoric of Trump’s authoritarian allies. First, it presents the Democratic Party as the instigator of threats to democratic government (by allowing too many immigrants, who will become voters, presumably for the Democrats). Then it turns Trump’s own behavior into a label for the opposition — immigration reform becomes an “insurrection,” which of course justifies counter-insurrections by the GOP.

Trump’s absurd charging that the election was stolen from him has become the firm majority position among Republicans, claiming roughly 70 percent support. The opposition has retreated to the point where it now frames its objections in minimalist pragmatic terms: Voter-fraud accusations are counterproductive messaging that discourages voter turnout, conservatives sometimes protest.

It may well be true that hyping up vote fraud discourages some Republican would-be voters from casting a ballot. But it encourages Republican legislators to enact the voter-suppression laws taking shape across the country. And it further encourages the party to challenge and undermine elections it loses. This rhetoric hurts our party’s efforts to gain power is an argument that works to an extent against failed bids to overturn an election but has little purchase against successful ones.

Naked authoritarian belief has crept from the margins of the Republican Party before Trump to its very center now. The crisis might not come in 2024, but unless some heretofore undiscovered force comes along to stop its takeover of the party, the crisis will come eventually.

The Horrifying Legal Blueprint for Trump’s War on Democracy