Reviews | John Eastman’s criminal exposure is real

The committee focused on Eastman’s work representing Trump after his 2020 Election Day loss and his key role in efforts to persuade Vice President Mike Pence to refuse to certify the results. Among other things, Eastman wrote two memos outlining his theories — both of which claimed Pence was free to reject certified voters lists because “the Constitution vests that power in the vice president as the ultimate arbiter.” — and he informed Trump of this in discussions with the incumbent president.

At the committee’s third public hearing this month, the panel presented evidence indicating that this legal position has been widely and strongly rejected by Trump administration lawyers. Among other things, they recognized the absurdity of the idea that Pence could somehow arrogate all that power to himself, especially since the nominal factual predicate that there had been widespread fraud in the election was also false and, according to the evidence presented by the committee, rejected by many key administration and Trump campaign officials.

Eastman nevertheless advised Trump to continue with his strategy, but Pence did not follow through, and the result was the Jan. 6 riot.

During the siege, a Pence attorney named Greg Jacob aptly observed that Eastman’s arguments reflected “a results-oriented position that you would never support if tempted by the opposition.” And “thanks to your bullshit”, he added, “we are now under siege”. Yet the next day, Eastman continued to press another White House attorney, Eric Herschmann, who was so surprised he offered Eastman “the best free legal advice you’ve ever received in your life: get a great criminal defense attorney. You’re going to need it.'” Afterwards, Eastman told Rudy Giuliani that he had “decided that I should be on the pardon list, if that’s still going on.”

Eastman never got a pardon, but he was right to be concerned.

In March, the committee argued in a court filing in a dispute over the production of Eastman’s emails that there was evidence he and Trump had engaged in criminal conduct based on several different arguments. This included, among other things, (1) that Eastman, Trump and others participated in “an aggressive public disinformation campaign to persuade millions of Americans that the election had in fact been stolen”, and (2) that ‘they had “[interfered] with the election certification process. The judge agreed, finding it “more likely than not” that the pair committed criminal misconduct in a “campaign to overthrow a democratic election” using a plan that “not only lacked of factual basis but also of legal justification”. It was a plan, the judge concluded, which was, in effect, “a coup in search of legal theory”.

It is important to note that the arguments advanced by the committee to affirm that Trump and Eastman engaged in criminal acts are logically and legally independent of each other, even if, in practice, the two arguments are mutually reinforcing. . In other words, if Trump and Eastman’s efforts had stopped before Jan. 6, they could still be accused of their “aggressive campaign of public disinformation” about voter fraud. Likewise, even if Trump and Eastman believed their fraud allegations to be baseless, they could still be criminally liable on the basis that their efforts to pressure Pence to reject certified voters were patently illegal. Both claims are unprecedented, but so is the rest of the legal mess that Trump and his enablers have unleashed on the country.

The committee naturally touted the court’s decision several times during its hearings, but it’s important to keep a few things in mind. First, as the judge himself noted, the dispute was a civil controversy over the production of emails, not “a criminal suit” or “even a civil liability suit”, and therefore the legal standard relevant was much less than it would be in a criminal case. . Second, Trump was not a party to the dispute, so he did not directly present arguments in his defense to the court, including, perhaps, that he trusted Eastman’s legal judgment despite what he could have heard from others. And third, the notice came from a federal district court in California; it is a “persuasive authority” but not binding on any other judge, let alone the Washington judges who presided over the Justice Department’s January 6 prosecutions.

As for the prospect of a real criminal case against Eastman, that’s something that should now be taken seriously by the Justice Department, but there’s reason to be cautious in predicting what’s to come. For one thing, it’s rare for the government to charge a lawyer with criminal conduct because of their ostensible work as a lawyer, although it certainly does happen in particularly difficult cases.

Here, a case would be even more unusual because it would be based on the legal positions taken by Eastman, and lawyers generally have very wide leeway to defend even the loss of legal arguments on behalf of their clients, on the principle that zealous, client Defense-oriented advocacy is crucial to the functioning of our adversarial legal system. Attorney General Merrick Garland, who served as an appellate judge for nearly a quarter of a century, would understand this as well as anyone and would likely take it very seriously before making any charging decision.

The committee’s position is that Eastman did not actually believe his arguments were credible, which, in turn, produced a variation on a recurring theme in the assessment of evidence from the hearings: Did Eastman intentionally lie? or was he rather deceived, perhaps simply engaged in highly reasoned reasoning?

Probably the strongest evidence on this point is Jacob’s testimony – first presented in the committee’s court filing in March, but reiterated by Jacob in his public testimony – that Eastman at some point acknowledged during an internal debate that he would lose “9-0” if the Supreme Court directly considered his theory on Pence’s authority. Jacob indicated, however, that this exchange took place after Eastman argued that the court would never address the issue because he would invoke a discretionary principle known as the “political question doctrine”, in under which the court sometimes refuses to hear cases that present issues that are so politically charged that they are (supposedly) best resolved by the executive and legislative branches. It wasn’t a good argument, but it’s at least logically coherent, complicating the effort to determine what was really going through Eastman’s head and how deceptive he was trying to be.

Until he went silent late last year, Eastman also spoke openly with people about the basis of his legal positions — behavior that’s not exactly consistent with the actions of a lawyer who knew that what he was doing was wrong. Last September, for example, Eastman spoke at length on a podcast with Lawrence Lessig, who taught Eastman in law school and recalled him as an “extraordinary student” whose later career he once “admired” as well. than an election law expert, who, along with Lessig, systematically refuted Eastman’s claims for nearly two hours, occasionally correcting him on basic but important factual issues of relevant legal history. It’s a fascinating listen as Eastman sounds both ridiculous and sincere.

Still, it would be premature for the Justice Department to make any decision about whether to charge Eastman based on this case alone. If federal prosecutors aren’t already doing so, they should investigate Eastman’s conduct themselves and consider the full background and underlying circumstances, including the evidence — both exculpatory and inculpatory — that the committee doesn’t. may not own or may not have presented.

As for Trump, the Justice Department had sufficient reason to conduct a criminal investigation even before the House committee convened. But recently, some observers seemed to treat the Eastman revelations as if they also applied to Trump’s possible guilt and legal exposure. This is a misunderstanding that may have been facilitated by the judge’s opinion in the Eastman litigation, who at times seemed to equate the conduct of the two men in his analysis. But there are important differences between the two cases.

Eastman, of course, was Trump’s attorney and therefore more familiar with the relevant issues. Insofar as we’re talking about a potential case based on the second of the two aforementioned arguments – that the legal positions taken by Eastman and Trump were without merit and that they knew as much – Trump would have a colorful defense based on the advice of ‘Eastman. Whether he actually believed Eastman had a good faith basis for his allegations is unclear and should be resolved by diligent investigators using well-established legal tools and principles available to the department.

Unsurprisingly, there are now news reports that explicitly reflect what has been evident for months: that Trump deliberately kept his distance from Eastman in public recently and that Trump and his allies view the lawyer as a possible “heartthrob.” This defense would have us believe that Trump is perhaps the unluckiest rich man in the world, constantly finding himself surrounded by corrupt advisers and terrible lawyers whose misbehavior always aligns perfectly with the preconceived political and financial interests of Trump.

At the same time, some members of legal commentary have already led to speculation this Eastman could cooperate against Trump and ultimately bring him down. Here too, a feeling of deja vu is inevitable. After all, the list of unsavory Trump insiders whom people once hoped would successfully turn on him – people like Paul Manafort, Roger Stone, Allen WeisselbergMichael Flynn, Steve Bannon, Tom Barrack and even Michael Cohen, who was not a helpful collaborator — is long.

Maybe this time will be different, but don’t hold your breath.

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Post expires at 5:36pm on Sunday July 3rd, 2022