Trump lawyer cited ‘heated fight’ among judges over election suits

Exchange is part of group of emails obtained by the House select committee investigating Capitol riot by mob of Trump supporters

A lawyer advising US president Donald Trump claimed in an email after Election Day 2020 to have insight into a “heated fight” among the US Supreme Court justices over whether to hear arguments about the president’s efforts to overturn his defeat at the polls, two people briefed on the email said.

The lawyer, John Eastman, made the statement in a December 24th, 2020 exchange with a Wisconsin lawyer and Trump campaign officials over whether to file legal papers that they hoped might prompt four judges to agree to hear an election case from Wisconsin.

“So the odds are not based on the legal merits but an assessment of the justices’ spines, and I understand that there is a heated fight under way,” Mr Eastman wrote, according to the people briefed on the contents of the email. Referring to the process by which at least four justices are needed to take up a case, he said: “For those willing to do their duty, we should help them by giving them a Wisconsin cert petition to add into the mix.”

The Wisconsin lawyer, Kenneth Chesebro, replied that the “odds of action before January 6th will become more favourable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way”.

READ MORE

Mr Eastman’s email, if taken at face value, raised the question of how he would have known about internal tension among the judges about dealing with election cases

Their exchange took place five days after Mr Trump issued a call for his supporters to attend a “protest” at the Ellipse near the White House on January 6th, 2021 the day Congress would certify the electoral vote count confirming Joe Biden’s victory. “Be there. Will be wild!” Mr Trump wrote on Twitter.

The previously unreported exchange is part of a group of emails obtained by the House select committee investigating the January 6th riot at the Capitol by a mob of Mr Trump’s supporters.

Mr Chesebro’s comment about the judges being more open to hearing a case if they feared chaos was striking for its link to the potential for the kind of mob scene that materialised at the Capitol weeks later.

And Mr Eastman’s email, if taken at face value, raised the question of how he would have known about internal tension among the judges about dealing with election cases. Mr Eastman had been a clerk for Justice Clarence Thomas.

The committee is also reviewing emails between Mr Eastman and Mr Thomas’ wife, Virginia Thomas. She was an outspoken supporter of Mr Trump, and in the period after election day she sent a barrage of text messages to the Trump White House urging efforts to reverse the outcome and supported a variety of efforts to keep Trump in office.

After debating internally about whether to seek an interview with Virginia Thomas, members of the committee have said in recent weeks that they do not see her actions as central to the plans to overturn the election.

Rep Elaine Luria, a member of the committee, said to NBC News last weekend that Ms Thomas was “not the focus of this investigation”.

But her contact with Mr Eastman could add a new dimension to the inquiry.

A federal judge has already concluded in a civil case that Mr Trump and Mr Eastman “more likely than not” had committed two felonies, including conspiracy to defraud the American people, in their attempts to overturn the election.

Mr Chesebro, and lawyers for Mr Eastman and Virginia Thomas, did not respond to requests for comment.

The email exchange involving Mr Eastman and Mr Chesebro included a request, which appears to have been denied, that the Mr Trump campaign pay for the effort to get another case in front of the US Supreme Court

Word of the exchanges among Mr Eastman, Mr Chesebro and the campaign lawyers emerged as the House committee prepared for a public hearing Thursday to present new details of the intense pressure campaign that Mr Trump and Mr Eastman waged against former US vice-president Mike Pence, which the panel says directly contributed to the violent siege of Congress.

The public hearing, the panel’s third this month as it lays out the steps Mr Trump took to try to overturn the 2020 election, is scheduled for 7pm (1pm local time). The committee plans to release materials detailing the threats of violence against Mr Pence and the ways the his security team scrambled to try to keep him safe from the mob.

The email exchange involving Mr Eastman and Mr Chesebro included a request, which appears to have been denied, that the Mr Trump campaign pay for the effort to get another case in front of the US Supreme Court. In the emails, Mr Chesebro made clear that he did not consider the odds of success to be good, but he pressed to try, laying out why he claimed the election was invalid.

Mr Eastman said that he and Mr Chesebro “are of similar” minds and that the legal arguments “are rock solid,” before going on to describe what he said were the divisions among the justices and the benefits of giving them another chance to take up an election case.

In the previous several weeks, the court had turned aside two other efforts to consider election-related suits brought by allies of Mr Trump.

Mr Chesebro then replied, according to the people briefed on the exchange: “I don’t have the personal insight that John has into the four justices likely to be most upset about what is happening in the various states, who might want to intervene, so I should make it clear that I don’t discount John’s estimate.”

He went on that he agreed that “getting this on file gives more ammo to the justices fighting for the court to intervene”.

In the weeks after the election, Mr Chesebro wrote a string of memos supporting a plan to send so-called alternate electors to Congress for the certification. A little more than two weeks after election day, Mr Chesebro sent a memo to James Troupis, another lawyer for the Mr Trump campaign in Wisconsin, laying out a plan to name pro-Trump electors in the state, which was won by Mr Biden.

Mr Chesebro also sent a December 13th, 2020 email to Rudy Giuliani, Mr Trump’s personal lawyer who was by then leading the legal efforts to overturn the election results. In it, he encouraged Mr Pence to “firmly take the position that he, and he alone, is charged with the constitutional responsibility not just to open the votes, but to count them — including making judgments about what to do if there are conflicting votes”.

That idea took root with Mr Trump, who engaged in a lengthy effort to convince Mr Pence that he could block or delay the congressional certification of Mr Biden’s victory on January 6th.

The House committee’s hearing Thursday is set to feature testimony from J Michael Luttig, a conservative former judge who advised Mr Pence that Mr Trump’s push for the vice-president to unilaterally decide to invalidate election results was unconstitutional and that he should not go along with the plan.

Also scheduled to appear is Greg Jacob, Mr Pence’s top White House lawyer, who has provided the committee with crucial evidence about the role played by Mr Eastman, who conceded during an email exchange with Mr Jacob that his plan to overturn the election was in “violation” of federal law.

The committee is also expected to play video from an interview it recorded with Mr Pence’s chief of staff, Marc Short. A day before the mob violence, Mr Short grew so concerned about Mr Trump’s actions that he presented a warning to a Secret Service agent: The president was going to publicly turn against the vice-president, and there could be a security risk to Mr Pence because of it.

The committee is not expected to display any of the new emails it received involving Virginia Thomas on Thursday, according to two people familiar with the presentation. — This article originally appeared in The New York Times.