I’ve been continually updating the Merrick Garland FAQs. The newest additions are in green, but at this point I have forgotten what I added when. Some of the stuff in green may have been there last week as well. But there are some new sections, including pinpointing the problem with how we get information.
Anyway, check out the updates here.
This week I wrote some analysis for the Washington Post.
You can read it on the Washington Post website, or here:
John Eastman, a former law professor at Chapman University and legal adviser to former president Donald Trump, tried to withhold some of his emails from the congressional committee investigating the Jan. 6 attack on the U.S. Capitol — and his plan blew up in his face. A court ruled on Monday that the committee can have the emails Eastman was trying to withhold, and U.S. District Judge David O. Carter issued a blistering decision: The court found it was “more likely than not” that both Eastman and Trump had engaged in criminal activity.
As the facts disclosed in Monday’s ruling make clear, Eastman played a central role in Trump’s attempt to overturn the 2020 election. In the words of the court, Trump’s coup was in “search of a legal theory,” and Eastman provided that theory.
The opinion lays out the following details: After Joe Biden won the election but before the results were certified, Eastman wrote a six-step scheme to overturn the election and hand the presidency back to Trump. The plan required then-Vice President Mike Pence to violate the Electoral Count Act by rejecting the electors from seven states that voted for Biden. On Jan. 4 — two days before the insurrection — Trump and Eastman invited Pence, Pence counsel Greg Jacob and Pence Chief of Staff Marc Short to the Oval Office, where Eastman and Trump tried to pressure Pence into accepting the plan. Pence, Jacob and Short resisted. On Jan. 6, even as the violence was unfolding, Eastman kept up the pressure on Pence through a heated email exchange with Jacob.
On Nov. 8, 2021, the House select committee investigating the events of Jan. 6 issued a subpoena for Eastman’s documents and testimony. Eastman refused to comply and asserted his Fifth Amendment rights. Eastman had used his Chapman University email account for the emails the committee wanted, so the committee issued a subpoena to the university for the messages.
The committee responded by claiming, among other things, that the crime-fraud exception applied, so the emails could not be privileged. That exception says that a privilege cannot be used to hide a crime. To decide the matter, the court looked at the emails privately, using the preponderance of the evidence standard, which means that if it’s more likely than not that the documents were written in furtherance of a crime, the exception applies, and the committee gets the emails. That’s a lower evidentiary standard than is required to prove guilt in a criminal trial, which requires that the crime be proven beyond a reasonable doubt.
In its ruling issued on Monday, the court found, by a preponderance of the evidence, that some of Eastman’s emails were written in furtherance of two likely crimes:
- Trump attempted to obstruct Congress’s proceeding to count the electoral votes on Jan. 6 in violation of 18 U.S.C. § 1512(c) (2);
- Trump and Eastman (and others) entered a conspiracy to defraud the United States by interfering with the election certification process in violation of 18 U.S.C. § 371.
The court listed evidence to support its conclusion — and it had some harsh language for Eastman. For example, Carter gave a blistering response to Eastman’s “good faith” defense. Eastman argued that his plan was grounded on a good faith interpretation of the Constitution. The court responded by saying that “believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it,” and moreover, that “the illegality of the plan was obvious” — a stinging rebuke to a former professor of law. But then again, Eastman himself had acknowledged in conversations before the insurrection that his plan had no legal support and “violated several provisions of statutory law.” Little wonder, then, that the court rejected his good faith defense.
The court concluded it was likely that both Eastman and Trump knew the plan was illegal — which means it was likely that Trump, with Eastman’s help, attempted to obstruct Congress’s counting of the votes in violation of the law.
The court also found “strong circumstantial evidence to show that there was likely an agreement between President Trump and Dr. Eastman to enact the plan articulated in Dr. Eastman’s memo.” For example, the court found that the fact that Eastman led meetings in the Oval Office in the days before the insurrection implied an agreement between Eastman and Trump, and a shared goal of enacting Eastman’s illegal plan. Also, according to the court, the strength of this agreement was “evident from President Trump’s praise for Dr. Eastman and his plan in his January 6 speech on the Ellipse” when Trump said, “John is one of the most brilliant lawyers in the country, and he looked at this and he said, ‘What an absolute disgrace that this can be happening to our Constitution.’ ”
Eastman should have seen all this coming. He knew what was in those emails and he knows the law. He would, therefore, have been wise to withdraw his lawsuit when the court began the process of reviewing the emails for the crime-fraud exception. Allowing the lawsuit to proceed did nothing to hide the emails; all it did was deliver a court ruling that he and Trump had likely engaged in illegal activity.
And even had Eastman prevailed with his lawsuit, he would not have achieved any real objectives in withholding the emails from Congress. Congress is not a criminal tribunal. The goal of the congressional committee is to consider legislation to prevent future insurrections and to make the story known to the public. Had Eastman simply allowed Congress to have the emails, he could have raised his defenses in the Court of Right-Wing Public Opinion, where his judges would have been more accepting of his arguments.
Allowing the emails to go to Congress wouldn’t have made much difference anyway because the committee already had much of this information. For example, Pence’s former counsel, Jacob, has been cooperating, and in a sworn deposition, he told the committee about Eastman’s attempts to pressure Pence.
Ultimately, the Justice Department — the institution that makes the decisions about whether to charge people with federal crimes — has access to this information through different procedures. Investigators can obtain a subpoena with a gag order, and Eastman would never know or have the opportunity to challenge the subpoena until after the emails were handed over. And one of the key email chains involved Rudy Giuliani, which means it is most likely already in the possession of the government — since federal authorities confiscated Giuliani’s phone and are going through the process of checking the information for privileges.
Eastman should have sat tight in the hopes that the Justice Department would not find (or be able to prove) his guilt under the much higher evidentiary standard used in a criminal trial. Instead, by foolishly allowing his lawsuit to proceed, he triggered an adverse — and humiliating — ruling from a court. Perhaps it’s not surprising that his legal strategy for Trump on Jan. 6 didn’t pan out, after all.
