The disbarment trial of Donald Trump’s former attorney and constitutional legal scholar, John Eastman, is in its eighth week and expected to continue into a ninth week. On Wednesday, Eastman testified all day, focusing on the 1960 election and then-Vice President Richard Nixon’s role in deciding which of three electoral slates from Hawaii to accept.
Eastman said Nixon received three slates of electors from Hawaii, including one that was not certified — the second one from the Democrats. Nixon opened up all three envelopes and chose which one to accept, the third Democratic one that was certified by the governor after the recount. None of the alternate slates of electors in the 2020 election were certified by a state government entity.
Eastman’s attorney, Randy Miller, asked him about his reliance on the Congressional Record from the 1960 presidential race. It went into significant detail about how Nixon exercised his authority in accepting the third slate. Referring to Nixon as “the Chair,” part of it stated, “In order not to delay the further count of the electoral vote here, the Chair, without the intent of establishing a precedent, suggests that the electors named in the certificate of the Governor of Hawaii dated January 4, 1961, be considered as the lawful electors from the State of Hawaii.” No one in Congress objected.
Eastman went over how he researched and discovered, like several other legal scholars — including their articles here, here, and here, which were discussed previously in the trial — that the 1887 Electoral Count Act (ECA) was likely unconstitutional. It became clear to him after researching that the Constitution did not give Congress the authority to decide disputed electoral slates, so Congress did not have the authority to pass the ECA, giving itself the power.
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