By Josh Dawsey, (TWP)
Tom Hamburger, Jacqueline Alemany and
Rosalind S. Helderman
Lawyers for the House panel investigating the Jan. 6, 2021 attack on the Capitol said in a court filing Wednesday that former president Donald Trump and key allies engaged in two potential crimes during their effort to overturn the election: conspiring to defraud the United States and obstructing an official congressional proceeding — the counting of electoral votes.
The alleged criminal acts were raised by the committee in a California federal court filing challenging conservative lawyer John Eastman’s refusal to turn over thousands of emails the panel has requested related to his role in trying to persuade Vice President Mike Pence to reject electors from states won by Joe Biden. Eastman has cited attorney-client privilege as a shield against turning over the documents.
“The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States,” according to the filing.
The committee argued in that filing that Eastman’s claim of privilege was potentially voided by the “crime/fraud exception” to the confidentiality usually accorded attorneys and their clients, which holds that communications need not be kept confidential if an attorney is found to be assisting their client in the commission of a crime. They asked the judge deciding whether to release Eastman’s emails to privately review evidence the committee has so far gathered to see if he believes it establishes that Eastman was assisting Trump in criminal acts.
The court filing is the strongest assertion yet from the committee that it believes Trump and some of his allies potentially committed crimes during the effort to overturn Biden’s victory and by falsely stating repeatedly that the election was stolen.
“The facts we’ve gathered strongly suggest that Dr. Eastman’s emails may show that he helped Donald Trump advance a corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power,” the committee’s chairman, Rep. Bennie G. Thompson (D-Miss.), and vice chair, Rep. Liz Cheney (R-Wyo.), said in a statement.
The committee has no authority to initiate criminal proceedings, and the fact that potential criminal law violations were mentioned in a court filing by the panel does not provide any indication that the Justice Department will consider any prosecutions. Nor does it mean that the lawyer-client protection asserted by Eastman will not be upheld.
But it underscores the committee’s aggressive approach and effort to hold Trump and his allies accountable for both their actions before Jan. 6, 2021, and on that day, which the panel’s members have charged were an assault on American democracy.
Lawyers for the committee argued that the evidence it has gathered so far led to a “good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts” and that Eastman was “used in furtherance of those activities.” They argued that the judge should review the documents the panel has obtained privately to determine whether he agreed they included evidence of illegal acts that would pierce the attorney-client privilege.
The filing is intended to challenge Eastman’s claim that he should not be required to turn over thousands of emails the committee has requested — and it attempts to show that Eastman directly encouraged people in the government to not follow the Electoral Count Act, the 1887 law governing the congressional certification process.
Eastman has so far submitted roughly 8,000 pages of emails to committee investigators but is withholding about 11,000 documents, citing attorney-client privilege. Last month, a U.S. district judge in California ordered an expedited schedule to review Eastman’s bid to shield emails sent between Jan. 4 and Jan. 7.
The argument by Eastman and some other Trump allies ahead of Jan. 6 was that Pence could choose not to recognize the slate of electors from some states that Biden won and instead decide to recognize an alternate slate of electors who would support Trump for president. Many legal scholars said this was a gross misreading of the law. Pence and his staff said publicly ahead of the certification process that they had studied the argument pushed by Eastman and rejected his premise that the vice president had the power to reject electors, infuriating Trump and his allies.
The brief not only makes the case against Eastman’s claim of lawyer client privilege, but it also provides a review of the committee’s findings to date, including the panel’s belief that Trump and his advisers may have been involved in a criminal conspiracy to overturn the results of the 2020 election.
“As the courts were overwhelmingly ruling against President Trump’s claims of election misconduct, he and his associates began to plan extra-judicial efforts to overturn the results of the election and prevent the President-elect from assuming office,” the brief said. “At the heart of these efforts was an aggressive public misinformation campaign to persuade millions of Americans that the election had in fact been stolen. The President and his associates persisted in making ‘stolen election’ claims even after the President’s own appointees at the Department of Justice and the Department of Homeland Security, along with his own campaign staff, had informed the President that his claims were wrong.”
A spokesman for Trump did not immediately respond to a request for comment. Eastman also did not immediately respond to a request for comment.
The filing claims that documents may show that Eastman “provided advice to advance an agreement to impede the transfer of power to the President elect and the Vice President elect.” In addition, the filing says that the documents “may show that Plaintiff provided advice to advance efforts to obstruct, impede, or influence the counting of electoral college ballots before a Joint Session of Congress.” It also suggests that Trump and others “may have been involved in common law fraud in connections with their efforts to overturn the 2020 election results.”
Despite being told that the allegations of fraud were not supported by evidence, the brief notes that Trump continued to push the stolen election thesis publicly.
“The President nevertheless continued to insist falsely through January that he had ‘won the election in a landslide,’” the brief said. “And despite being repeatedly told that his allegations of campaign fraud were false, the President continued to feature those same false allegations in ads seen by millions of Americans. (The Select Committee will address these issues in detail in hearings later this year.)”
To help make its case, the committee included in the filing details about Eastman’s efforts to pressure Pence, referencing testimony from two of Pence’s top aides, Marc Short and Greg Jacob, according to people with knowledge of the matter. The Pence aides explained in detail to the committee that Eastman led a pressure campaign against Pence, which they believed he was doing at Trump’s behest, the people said. Short, Pence’s chief of staff, along with Jacob, Pence’s counsel, were with the vice president during the assault on the Capitol.
Among the revelations in the filing is that after the violent pro-Trump mob left the Capitol and Congress reconvened to finish certifying Joe Biden’s victory, Eastman made a last-ditch effort in an email to Jacob to get the vice president to change his mind and not certify the results by committing a violation of the Electoral Count Act.
The emails included in the filing also show Eastman laying blame for the riot at the feet of Pence and his team, as The Washington Post has previously reported, and repeatedly inveighing against the certification of the election as required by law. Emails obtained by the panel show Jacob at one point rebuking Eastman and some of his associates for spreading misinformation to the president about what Pence could legally do, as rioters were still in the Capitol.
The Electoral Count Act is a 135140-year-old law that governs what Congress and the vice president should do in the case of any disputes about which candidate won in a given state. It was passed in 1887, and has been described by critics across the political spectrum as confusing and in need of updating. Trump has said that recent congressional discussions about reforming the law supports his claim that Pence had the authority to overturn the 2020 election. Among the changes lawmakers are currently weighing is making it more explicit that the role of the vice president is merely ceremonial — and that he cannot overturn the result of a presidential election as Trump hoped.
The email correspondence referenced in the filing was part of a longer battle between Jacob and Eastman over what Pence should do in response to Trump’s false claims the election was stolen.
“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 at one point, referring to Trump’s claims of voter fraud.
Eastman’s emailed remarks were included by Jacob in a draft opinion article about Trump’s outside legal team that he wrote in January 2021 following the attack but ultimately decided against publishing.
Other new details about Eastman’s role in Trump’s efforts to overturn the results of the 2020 election have been released via court filings in recent weeks. An appeal filed by the States United Democracy Center last month revealed a new memo written authored by Eastman that he sent to a state legislator in Wisconsin. The memo falsely asserts that the Wisconsin Legislature “has the constitutional authority to decertify previously certified electoral votes for a candidate.”
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