March 28, 2022

Today, United States District Judge David O. Carter of the United States District Court for the Central District of California ordered John Eastman to disclose 101 documents to the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. Eastman is a former law school dean at Chapman University and author of the Eastman memo outlining a plan for Vice President Mike Pence to throw the 2020 election to Donald Trump. He also spoke at Trump’s January 6 rally on the Ellipse, lying to the crowd: “We know there was fraud…. We know that dead people voted.” Now he will have to share his communications about the events of January 6 with the January 6th Committee. 

The backstory to this lawsuit is that on November 8, 2021, the January 6 Committee subpoenaed Eastman’s testimony and disclosure of documents and emails sent or received by Eastman between November 3, 2020, and January 20, 2021, related to the Capitol attack. Eastman testified before the committee on December 3, 2021, but asserted his Fifth Amendment right against self-incrimination 146 times. He also refused to produce any documents, again asserting his Fifth Amendment rights.

So on January 18, 2022, the January 6 Committee subpoenaed Eastman’s emails from Chapman University—it had parted ways with Eastman by then—which initially collected 30,000 documents off its servers. The January 6 Committee then worked with Chapman to winnow down those results, ending up with just under 19,000 documents.

Eastman then tried to stop that document production. The court refused to agree. When Eastman appeared to be delaying disclosure, the court ordered him to focus on emails from January 4–7. On February 22, 2022, Eastman sued Representative Bennie G. Thompson (D-MS), chair of the January 6 Committee, and Chapman University to prevent disclosure of certain emails, claiming that 111 of them from January 4–7 should not be disclosed because they are covered by attorney-client privilege, with the “client” being Trump. The committee disagreed.

So Judge Carter personally examined the contested documents to decide if they should be disclosed or kept private. He concluded that 10 were indeed covered by attorney-client privilege because they did not involve Trump or involved litigation that was not covered by the subpoena. The other 101 must be disclosed.

That disclosure is important. But far more important is what is in Carter’s decision. It lays out, point by point, what depositions have now told us about the actions of former president Trump in the days before January 6, and explains what those actions mean. 

Judge Carter explains how Trump and Eastman fostered the public belief that the 2020 presidential election was tainted by fraud, despite the lack of evidence for that claim. They urged state legislators to question the results of the election. On January 2, 2021, Trump and Eastman hosted a briefing urging several hundred state legislators from states Biden won to “decertify” the electors. 

The same day, January 2, 2021, Trump called Georgia secretary of state Brad Raffensperger to get him to throw the election to Trump. Raffensperger refuted all of Trump’s arguments, “point by point,” and told him “the data you have is wrong.” Trump insisted he just wanted to find 11,780 votes, one more than Biden received to win the state.

The next day, January 3, Trump tried to remove the acting attorney general, Jeffrey A. Rosen, who had replaced Attorney General William Barr when he resigned on December 23, 2020, and replace him with Jeffrey Clark, who planned to write a letter to certain states Biden won, telling them that the election might have been stolen and urging them to decertify the electors. Richard Donoghue, the acting deputy attorney general at the time, told the January 6 Committee that the White House counsel, Pat Cipollone, described Clark’s proposed letter as a “murder-suicide pact” that would “damage everyone who touches it” and said “we should have nothing to do with that letter.” When high-ranking officials in the Department of Justice warned they would resign together if Trump appointed Clark, he did not do so. 

Judge Carter outlined how in the months after the election, sources from members of Trump’s inner circle to statisticians told Trump and Eastman that there was no evidence of election fraud. Christopher Krebs of the Cybersecurity and Infrastructure Security Agency said that “[t]he November 3rd election [was] the most secure in American history,” and that it found “no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” An internal memo from the Trump campaign said the fraud claims about Dominion voting machines were baseless. In early December, Barr said publicly there was no evidence of fraud, and on December 27, Donoghue told Trump that after “dozens of investigations, hundreds of interviews,” the Justice Department had concluded that there was no evidence of voter fraud that had changed the election results. 

Still, Trump insisted that the Department of Justice should say that the election was fraudulent.

By early January, courts had rejected more than 60 cases relating to accusations of fraud, owing to lack of evidence or lack of standing. 

By late December, Eastman wrote a memo proposing to reinstate Trump by getting Pence to reject the certified electoral votes from states Trump claimed to have won. If Pence rejected the votes from those states, Trump would win. Alternatively, Pence could send the election to the House of Representatives, where each state would get a single vote and Republicans had a majority of the states, and elect Trump that way. Eastman wrote: “[t]he main thing here is that Pence should do this without asking for permission—either from a vote of the joint session or from the Court.”

Eastman expanded on this a few days later, saying that the plan was “BOLD, Certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.”

On January 4, Trump and Eastman pressed Pence, Pence’s lawyer Greg Jacob, and Pence’s chief of staff Marc Short to reject the electors or delay the count. Pence insisted he did not have the authority to do either of those things. 

The next day, Eastman again pressed Jacob and Short to follow his plan. Jacob has testified that Eastman admitted his plan was “contrary to consistent historical practice, would likely be unanimously rejected by the Supreme Court, and violated the Electoral Count Act on four separate grounds.” Nonetheless, Eastman and Trump continued to pressure Pence to follow it.

At 1:00 am on January 6, Trump tweeted, “If Vice President [Pence] comes through for us, we will win the Presidency…. Mike can send it back!” At 8:17 am, he tweeted, “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!” Then Trump called Pence twice, reaching him on the second attempt and berating him for “not [being] tough enough to make the call” to reject or delay the electoral votes. 

At the January 6 rally on the Ellipse, Eastman and Trump spoke to explain the plan to the attendees and those watching at home. Trump’s lawyer Rudy Giuliani introduced Eastman as the professor who would explain how the Democrats cheated. Eastman told the crowd that they just wanted Pence to “let the legislators of the state look into this so we get to the bottom of it, and the American people know whether we have control of the direction of our government, or not. We no longer live in a self-governing republic if we can’t get the answer to this question. This is bigger than President Trump. It is a very essence of our republican form of government, and it has to be done. And anybody that is not willing to stand up to do it, does not deserve to be in the office. It is that simple.”

Following him, Trump praised Eastman as “one of the most brilliant lawyers in the country” who looked at this and he said, ‘What an absolute disgrace that this can be happening to our Constitution.’... Because if Mike Pence does the right thing, we win the election….” 

Pence rejected the plan publicly, and at 1:00, members of Congress, gathered in joint session, began to count the electoral votes. Trump urged his supporters to walk with him up to the Capitol, saying: “[I]t is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you, we’re going to walk down, we’re going to walk down….  [W]e’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.”

After the speech, Trump went back to the White House while several hundred protesters stormed the Capitol. Even after he had been informed of the violence, Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

During the riot, Pence’s lawyer 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….  [a]nd thanks to your bullshit, we are now under siege.” Eastman responded: “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.” 

Trump eventually released a video asking the rioters to leave the Capitol but saying “We love you, you’re very special. You’ve seen what happens, you see the way others are treated that are so bad and so evil. I know how you feel.” At 6:00 pm, he tweeted: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

Eastman continued to press Pence to delay the count until almost midnight on January 6.

Judge Carter concluded that Trump’s actions “more likely than not constitute attempts to obstruct an official proceeding.” He also concluded that “Trump likely knew the electoral count plan had no factual justification.” The plan, Carter wrote, “was a last-ditch attempt to secure the Presidency by any means.” He also found 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.” 

Eastman and Trump “launched a campaign to overturn a democratic election, an action unprecedented in American history,” Carter wrote. “Their campaign was…a coup in search of a legal theory….  If [the] 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.” 

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Notes:

https://www.politico.com/news/2021/12/03/eastman-takes-the-fifth-with-jan-6-committee-523712

https://www.washingtonpost.com/nation/2021/01/14/john-eastman-chapman-university-departure/

https://www.nytimes.com/2021/01/22/us/politics/jeffrey-clark-trump-justice-department-election.html

https://www.lawfareblog.com/white-house-counsel-and-trumps-attack-2020-election

https://storage.courtlistener.com/recap/gov.uscourts.cacd.841840/gov.uscourts.cacd.841840.260.0_4.pdf