John Eastman, the lawyer who authored the legal “justification” for Trump’s illegal plan to stop the Electoral Count on January 6, filed a lawsuit to prevent Congress’ January 6th committee from obtaining 111 documents that it subpoenaed from him, arguing attorney-client privilege.
Eastman and the committee agreed to let the judge in the case, David Carter, review all 111 documents and decide whether they should be given to Congress. Carter ruled today that 101 of the documents be given to Congress.
Carter’s analysis of the evidence also led him to conclude in the ruling that Eastman and Trump “more likely than not” engaged in illegal activity, and that both knew that their claims that the 2020 election was fraudulent and that Vice President Pence had the power to stop the count were false.
Carter’s 44-page opinion should be required reading for all Americans. The following are some his most startling findings after his review of the evidence. Carter is ruling in a civil case, but his decision is really a plea to the Justice Department to indict Trump and Eastman. (Every statement of fact in his opinion has a citation to its source. I’ve removed those citations in these quotations from Carters ruling, which follow:)
In the months following the election, numerous credible sources–from the President’s inner circle to agency leadership to statisticians–informed President Trump and Dr. Eastman that there was no evidence of election fraud. One week after the election, the Cybersecurity and Infrastructure Security Agency declared “[t]he November 3rd election [] the most secure in American history” and found “no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” An internal Trump Campaign memo concluded in November that fraud claims related to Dominion voting machines were baseless. In early December, Attorney General Barr publicly stated there was no ev idence of fraud, and on December 27, Deputy Attorney General Donoghue privately told President Trump that after “dozens of investigations, hundreds of interviews,” the Department of Justice had concluded that “the major allegations [of election fraud] are not supported by the evidence developed.” President Trump repeatedly urged that “the Department [of Justice] should publicly say that the election is corrupt or suspect or not reliable.”
By early January, more than sixty court cases alleging fraud had been dismissed for lack of evidence or lack of standing.
On January 4, President Trump and Dr. Eastman invited Vice President Pence, the Vice President’s counsel Greg Jacob, and the Vice President’s Chief of Staff Marc Short to the Oval Office to discuss Dr. Eastman’s memo. Dr. Eastman presented only two courses of action for the Vice President on January 6: to reject electors or delay the count. During that meeting, Vice President Pence consistently held that he did not possess the authority to carry out Dr. Eastman’s proposal.
The Vice President’s counsel and chief of staff were then directed to meet separately with Dr. Eastman the next day to review materials in support of his plan. Dr. Eastman opened the meeting on January 5 bluntly: “I’m here asking you to reject the electors.” Vice President’s counsel Greg Jacob and Dr. Eastman spent the majority of the meeting in a Socratic debate on the merits of the memo’s legal arguments. Over the course of their discussion, Dr. Eastman’s focus pivoted from requesting Vice President Pence reject the electors to asking him to delay the count, which he presented as more “palatable.” Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice, would likely be unanimously rejected by the Supreme Court,38 and violated the Electoral Count Act on four separate grounds
President Trump facilitated two meetings in the days before January 6 that were explicitly tied to persuading Vice President Pence to disrupt the Joint Session of Congress. On January 4, President Trump and Dr. Eastman hosted a meeting in the Oval Office with Vice President Pence, the Vice President’s counsel Greg Jacob, and the Vice President’s Chief of Staff Marc Short. At that meeting, Dr. Eastman presented his plan to Vice President Pence, focusing on either rejecting electors or delaying the count.210 When Vice President Pence was unpersuaded, President Trump sent Dr. Eastman to review the plan in depth with the Vice President’s counsel on January 5. Vice President Pence’s counsel interpreted Dr. Eastman’s presentation as being on behalf of the President.
On the morning of January 6, President Trump made several last-minute “revised appeal[s] to the Vice President” to pressure him into carrying out the plan. At 1:00 am, President Trump tweeted: “If Vice President @Mike_Pence comes through for us, we will win the Presidency . . . Mike can send it back!” At 8:17 am, President Trump tweeted: “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!” Shortly after, President Trump rang Vice President Pence and once again urged him “to make the call” and enact the plan. Just before the Joint Session of Congress began, President Trump gave a speech to a large crowd on the Ellipse in which he warned, “[a]nd Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you. I will tell you right now.” President Trump ended his speech by galvanizing the crowd to join him in enacting the plan: “[L]et’s walk down Pennsylvania Avenue” to give Vice President Pence and Congress “the kind of pride and boldness that they need to take back our country.”
Together, these actions more likely than not constitute attempts to obstruct an official proceeding.
A person violates § 1512(c) when they obstruct an official proceeding with a corrupt mindset. The Ninth Circuit has not defined “corruptly” for purposes of this statute. However, the court has made clear that the threshold for acting “corruptly” is lower than “consciousness of wrongdoing,” meaning a person does not need to know their actions are wrong to break the law. Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly” under § 1512(c).
President Trump and Dr. Eastman justified the plan with allegations of election fraud— but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful. Although Dr. Eastman argues that President Trump was advised several state elections were fraudulent, the Select Committee points to numerous executive branch officials who publicly stated and privately stressed to President Trump226 that there was no evidence of fraud. By early January, more than sixty courts dismissed cases alleging fraud due to lack of standing or lack of evidence, noting that they made “strained legal arguments without merit and speculative accusations” and that “there is no evidence to support accusations of voter fraud.” President Trump’s repeated pleas for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.” Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.
The plan not only lacked factual basis but also legal justification. Dr. Eastman’s memo noted that the plan was “BOLD, Certainly.” The memo declared Dr. Eastman’s intent to step outside the bounds of normal legal practice: “we’re no longer playing by Queensbury Rules.” In addition, Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states. In the meeting in the Oval Office two days before January 6, Vice President Pence stressed his “immediate instinct [] that there is no way that one person could be entrusted by the Framers to exercise that authority.”
Dr. Eastman argues that the plan was legally justified as it “was grounded on a good faith interpretation of the Constitution.” But “ignorance of the law is no excuse,” and believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it. Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump knew how to pursue election claims in court—after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.
The illegality of the plan was obvious. Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Vice President Pence stated, “no Vice President in American history has ever asserted such authority.” Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed. With a plan this “BOLD,” President Trump knowingly tried to subvert this fundamental principle.
Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.
The Court discussed above how the evidence shows that President Trump likely knew that the electoral count plan was illegal. President Trump continuing to push that plan despite being aware of its illegality constituted obstruction by “dishonest” means under § 371.
The evidence also demonstrates that Dr. Eastman likely knew that the plan was unlawful. Dr. Eastman heard from numerous mentors and like-minded colleagues that his plan had no basis in history or precedent. Fourth Circuit Judge Luttig, for whom Dr. Eastman clerked, publicly stated that the plan’s analysis was “incorrect at every turn.” Vice President Pence’s legal counsel spent hours refuting each part of the plan to Dr. Eastman, including noting there had never been a departure from the Electoral Count Act and that not “a single one of [the] Framers would agree with [his] position.”
Dr. Eastman himself repeatedly recognized that his plan had no legal support. In his discussion with the Vice President’s counsel, Dr. Eastman “acknowledged” the “100 percent consistent historical practice since the time of the Founding” that the Vice President did not have the authority to act as the memo proposed. More importantly, Dr. Eastman admitted more than once that “his proposal violate[d] several provisions of statutory law,” including explicitly characterizing the plan as “one more relatively minor violation” of the Electoral Count Act.256 In addition, on January 5, Dr. Eastman conceded that the Supreme Court would unanimously reject his plan for the Vice President to reject electoral votes. Later that day, Dr. Eastman admitted that his “more palatable” idea to have the Vice President delay, rather than reject counting electors, rested on “the same basic legal theory” that he knew would not survive judicial scrutiny.
Dr. Eastman’s views on the Electoral Count Act are not, as he argues, a “good faith interpretation” of the law; they are a partisan distortion of the democratic process. His plan was driven not by preserving the Constitution, but by winning the 2020 election:
[Dr. Eastman] acknowledged that he didn’t think Kamala Harris should have that authority in 2024; he didn’t think Al Gore should have had it in 2000; and he acknowledged that no small government conservative should think that that was the case.
Dr. Eastman also understood the gravity of his plan for democracy—he acknowledged “[y]ou would just have the same party win continuously if [the] Vice President had the authority to just declare the winner of every State.”
The evidence shows that Dr. Eastman was aware that his plan violated the Electoral Count Act. Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.
President Trump and Dr. Eastman participated in numerous overt acts in furtherance of their shared plan. As detailed at length above, President Trump’s acts to strong-arm Vice President Pence into following the plan included meeting with and calling the Vice President and berating him in a speech to thousands outside the Capitol.262 Dr. Eastman joined for one of those meetings, spent hours attempting to convince the Vice President’s counsel to support the plan, and gave his own speech at the Ellipse “demanding” the Vice President “stand up” and enact his plan.
Based on the evidence, the Court finds 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.
Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower—it was a coup in search of a legal theory. The plan spurred violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process.
More than a year after the attack on our Capitol, the public is still searching for accountability. This case cannot provide it. The Court is tasked only with deciding a dispute over a handful of emails. This is not a criminal prosecution; this is not even a civil liability suit. At most, this case is a warning about the dangers of “legal theories” gone wrong, the powerful abusing public platforms, and desperation to win at all costs. If Dr. Eastman and President Trump’s 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.
DATED: March 28, 2022
DAVID O. CARTER
UNITED STATES DISTRICT JUDGE