United States District Judge David Carter ordered former Chapman University law professor Dr. John Eastman on March 28 to release 101 documents (mostly e-mails) to the House of Representative Select Committee to Investigate the January 6 Attack on the U.S. Capitol.
Judge Carter’s 44-page ruling sheds light on Eastman’s role as a legal strategist assisting former president Donald Trump’s attempt to overturn the results of the 2020 election.
“Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history,” Judge Carter wrote. “Their campaign was not confined to the ivory tower–it was a coup in search of a legal theory. The plan spurred violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process.”
Before describing the specific documents in question (mostly e-mails from Jan 4-7, 2021), Judge Carter gives a brief history of Eastman’s role as a key legal architect of Trump’s efforts to prevent the peaceful transition of power. Here are some excerpts:
- On January 2, 2021, President Trump and Dr. Eastman hosted a briefing urging several hundred state legislators from states won by President Biden to “decertify” electors.
- This despite the fact that, “In the months following the election, numerous credible sources–from the President’s inner circle to agency leadership to statisticians–informed President Trump and Dr. Eastman that there was no evidence of election fraud…By early January, more than sixty court cases alleging fraud had been dismissed for lack of evidence or lack of standing.”
- In response to alleged fraud, Eastman researched and planned a strategy for Donald Trump to win the election. Just after Christmas, Eastman wrote a now-public two-page memo proposing that Vice President Pence refuse to count certified electoral votes from states contested by the Trump campaign.
- On January 3, 2021, Eastman drafted a six-page memo expanding on his plan and analysis. This memo “war gam[ed]” four potential scenarios for January 6, only some of which would lead to President Trump winning reelection.
- On January 4, President Trump and Dr. Eastman invited Vice President Pence, the Vice President’s counsel Greg Jacob, and the Vice President’s Chief of Staff Marc Short to the Oval Office to discuss Eastman’s memo. Eastman presented only two courses of action for the Vice President on January 6—to reject electors or delay the count. During that meeting, Vice President Pence consistently held that he did not possess the authority to carry out Eastman’s proposal.
- President Trump and Eastman continued to urge Pence to carry out the plan. At 1:00am on January 6, President Trump tweeted, “If Vice President @Mike_Pence comes through for us, we will win the Presidency . . . Mike can send it back!” At 8:17am, the President tweeted again, “States want to correct their votes . . . All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!”
- On January 6, 2021, tens of thousands of people gathered outside the White House to protest the lawful transition of power from President Trump to President-elect Joseph Biden. Both Eastman and President Trump gave speeches to relay the plan not just to the thousands gathered at the Ellipse but also to those watching at home.
- Before the Joint Session of Congress began, Vice President Pence publicly rejected Trump and Eastman’s plan. “It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not,” Pence said.
- During the riot, Vice President Pence, members of Congress, and workers across the Capitol were forced to flee for safety. Seeking shelter during the attack, Pence’s counsel Greg Jacob emailed Eastman that the rioters “believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day.” Jacob continued, “[a]nd thanks to your bullshit, we are now under siege.”
- As the attack progressed, Eastman continued to urge Pence to reconsider his decision not to delay the count. In an email to Pence’s counsel Greg Jacob at 2:25pm on January 6, Eastman wrote: “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 the American people can see for themselves what happened.”
- At 6:09 pm, Eastman “remain[ed] of the view” that “adjourn[ing] to allow the state legislatures to continue their work” was the “most prudent course.” At 11:44pm, Eastman sent one final email to persuade Jacob to change his mind: “I implore you to consider one more relatively minor violation and adjourn for 10 days . . . .”
- The rampage on January 6 “left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol.” As the House of Representatives later wrote, January 6, 2021 was “one of the darkest days of our democracy.”
- In response to the attack, the House of Representatives created the Select Committee to “investigate and report upon the facts, circumstances, and causes relating to the January 6, 2021, domestic terrorist attack upon the United States Capitol Complex . . . and relating to the interference with the peaceful transfer of power.”
- On November 8, 2021, the Select Committee issued a subpoena to Eastman. Chairman Thompson said that Dr. Eastman was “instrumental in advising President Trump that Vice President Pence could determine which electors were recognized on January 6, a view that many of those who attacked the Capitol apparently also shared.”
- Eastman declined to produce any documents or communications to the Select Committee and asserted his Fifth Amendment (and attorney-client) privilege against production.
The e-mails were archived because they were sent using Eastman’s Chapman University e-mail address.
Judge Carter’s decision to force the production of 101 documents was based, in part, on the crime-fraud exception to privilege, which applies when a “client consults an attorney for advice that will serve [them] in the commission of a fraud or crime.” Here are some excerpts from his ruling:
- Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly.”
- Trump and Eastman justified the plan with allegations of election fraud, but Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful.
- President Trump’s repeated pleas for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”
- Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally mandated process. And he knew how to pursue election claims in court; after filing and losing more than 60 suits, this plan was a last-ditch attempt to secure the presidency by any means.
- The illegality of the plan was obvious. Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Pence stated, “no vice president in American history has ever asserted such authority.” Every American, and certainly the President of the United States, knows that in a democracy, leaders are elected, not installed. Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.
- Eastman himself repeatedly recognized that his plan had no legal support. In his discussion with the Vice President’s counsel, Eastman “acknowledged” the “100 percent consistent historical practice since the time of the Founding” that the Vice President did not have the authority to act as the memo proposed. More importantly, Eastman admitted more than once that “his proposal violate[d] several provisions of statutory law,” including explicitly characterizing the plan as “one more relatively minor violation” of the Electoral Count Act.
- Eastman’s views on the Electoral Count Act are not, as he argues, a “good faith interpretation” of the law; they are a partisan distortion of the democratic process. His plan was driven not by preserving the Constitution, but by winning the 2020 election…The evidence shows that Eastman was aware that his plan violated the Electoral Count Act.. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.
- President Trump and Eastman participated in numerous overt acts in furtherance of their shared plan…Trump’s acts to strong-arm Vice President Pence into following the plan included meeting with and calling the Vice President and berating him in a speech to thousands outside the Capitol…Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.
- This may have been the first time members of Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action. The draft memo pushed a strategy that knowingly violated the Electoral Count Act, and Eastman’s later memos closely track its analysis and proposal. The memo is both intimately related to and clearly advanced the plan to obstruct the Joint Session of Congress on January 6, 2021.
In Judge Carter’s concluding thoughts, he writes, “More than a year after the attack on our Capitol, the public is still searching for accountability. This case cannot provide it. The Court is tasked only with deciding a dispute over a handful of emails. This is not a criminal prosecution; this is not even a civil liability suit. At most, this case is a warning about the dangers of “legal theories” gone wrong, the powerful abusing public platforms, and desperation to win at all costs. If Eastman and Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution. If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”