Eastman says ‘contradictory’ advice to Trump nullifies January 6 committee’s allegations of criminal intent

Eastman’s argument, in a filing late Monday, is his first formal rebuttal to the select committee’s efforts to persuade a federal judge to overturn Eastman’s privilege claims and unlock thousands of pages of emails between Eastman and members of Trump’s inner circle. Eastman helped develop Trump’s post-election legal strategy and, when that failed, devised a plan to pressure then-Vice President Mike Pence to single-handedly stop the count electoral votes on January 6, 2021.

The select committee’s argument included Mails exchanges between Eastman and Pence’s own lawyer, Greg Jacob, in which Jacob excoriated Eastman for promoting the unsubstantiated idea that Pence had the power to stop the count – creating expectations that helped fuel the attack on the crowd against the Capitol. Eastman snapped that it was Pence’s own actions that led to the attack.

The committee argues that Eastman’s adoption of fringe legal theories that were unlikely to withstand scrutiny — while urging Pence to violate federal laws relating to the counting of Electoral College ballots — constituted a crime.

But Eastman said, in essence, the select committee’s claim that he may have broken the law contradicts the fact that Trump was receiving similar legal advice from many in his inner circle. This internal debate, Eastman argued, suggests a political dispute, not a criminal conspiracy.

“[T]The fact that the select committee may disagree with plaintiff’s legal advice does not convert its portrayal of former President Trump into a criminal case,” Eastman said. He added: “This Court would need a full-scale trial, with expert audits of disputed national election tallies before it could even consider defendants’ arguments.”

Eastman cited recent comments by former Attorney General Bill Barr, who said in television interviews that Trump “was surrounded by these people who would very convincingly argue fraud.” He also quoted Barr’s successor, Jeffrey Rosen, who echoed that sentiment in deposition before the committee.

Eastman based his response to the committee on claims that questions about the 2020 election results are still in dispute. He cited the highly politicized efforts of a pro-Trump judge to question the Wisconsin election results as evidence of this ongoing dispute. But Trump has never substantiated any allegations of widespread voter fraud, and although he has challenged state decisions to relax mail-in voting rules amid the Covid-19 pandemic, courts across the country upheld those rulings and effectively closed the way for Trump to legally challenge the result.

Instead of giving in, Trump focused on the Jan. 6, 2021 session of Congress, when lawmakers and Pence were constitutionally tasked with finalizing the election. Trump has spent the chaotic final weeks of his presidency pressuring Pence to assert the power to reject dozens of electoral votes for Joe Biden and attempt to get Republican state legislatures to certify Trump voters instead. But Pence ultimately refused, and a pro-Trump crowd that had gathered in Washington at Trump’s request then stormed the Capitol, battling police and sending lawmakers fleeing for safety.

U.S. District Court Judge David Carter, who sits in Central California, will hear arguments in person from Eastman and the select committee on Tuesday. Carter, a President Bill Clinton appointee, viewed the panel’s argument favorably in recent weeks, forcing Eastman to turn over thousands of pages of emails he had tried to protect. He also has rejected Eastman’s attempt Friday to delay the hearing and force the committee to hand over tons of additional “exculpatory” evidence.

Eastman also used the dossier to push back against claims by the select committee that he had failed to prove he was acting legitimately as Trump’s attorney. The panel argued that Eastman produced only one document — an unsigned “mission letter” from Trump’s campaign — formalizing the relationship.

But Eastman said the lack of a signed deal doesn’t change the nature of his job for Trump. He noted that he had filed and consulted on several legal efforts that Trump had pursued in the days following the 2020 election. He also noted that Trump had invited him to the Oval Office on January 4, 2021 to discuss the role of Pence during the January 6 session.

“President Trump certainly viewed Dr. Eastman as his counsel in the ‘relevant period’ and for the ‘relevant issues’ at issue here,” he argued.

At the heart of Eastman’s efforts was an attempt to strike down the Electoral Count Act, the 1887 law that has governed how Congress and the vice president finalize presidential elections for 135 years. Eastman’s theory was based on the premise that the act was unconstitutional and that, in fact, the vice president had the power to declare entire lists of electoral votes invalid.

In his brief, Eastman argues that Pence and Congress violated provisions of the Voter Count Act when they met after the riot. He says they violated it by “allowing prolonged debate” beyond the strict timelines of the Voter Count Act. In an email exchange with Jacob on the night of Jan. 6, Eastman also argued that Pence’s decision to allow legislative leaders to comment after the riot was cleared violated voter count law.

“Such technical violations of the law were consistent with Dr. Eastman’s well-founded legal opinion (shared by other scholars) that the Voter Count Act was unconstitutional insofar as it infringed the authority given to vice -president directly by the Constitution,” his lawyers wrote.


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