Eastman’s argument, in a late-Monday court filing, is his first formal rebuttal to the select committee’s effort 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 counting of electoral votes on Jan. 6, 2021.
The select committee’s argument included email exchanges between Eastman and Pence’s own lawyer, Greg Jacob, in which Jacob excoriated Eastman for promoting the unsupported notion that Pence had the authority to stop the count – creating expectations that helped fuel the mob attack on the Capitol. Eastman replied sharply that it was Pence’s own actions that led to the attack.
The committee contends that Eastman’s embrace of fringe legal theories that stood little chance of holding up to scrutiny – while urging Pence to violate federal laws related to the counting of Electoral College ballots – amounted to a crime.
But Eastman said, in essence, that the select committee’s claim that he might have broken the law belies the fact that Trump was receiving similar legal advice from numerous members of his inner circle. That internal debate, Eastman contended, suggests a policy dispute, not a criminal conspiracy.
“[T]he fact that the Select Committee may disagree with Plaintiff’s legal advice does not convert his representation of former President Trump into a criminal matter, ”Eastman argued. He added: “This Court would need a full-scale trial, complete with expert audits of the contested state election tallies before it could even consider Defendants’ arguments.”
Eastman cited recent comments from former Attorney General Bill Barr, who said in TV interviews that Trump “was surrounded by these people who would very convincingly make the case for fraud.” He also cited Barr’s successor, Jeffrey Rosen, who echoed that sentiment in a deposition with the committee.
Eastman premised his response to the committee on claims that questions about the results of the 2020 election are still in dispute. He cited highly politicized efforts by a pro-Trump judge to question the election results in Wisconsin as evidence of this ongoing dispute. But Trump has never substantiated any claims of widespread election fraud, and while he disputed states’ decisions to loosen absentee voting rules amid the Covid-19 pandemic, courts across the country upheld those decisions and effectively closed off Trump’s path to legally contesting the outcome.
Instead of ceding, Trump turned his focus to the Jan. 6, 2021 session of Congress, when lawmakers and Pence were charged by the Constitution with finalizing the election. Trump spent the final chaotic weeks of his presidency pressuring Pence to assert power to reject dozens of electoral votes for Joe Biden and attempt to have Republican state legislatures certify Trump electors instead. But Pence ultimately refused and a pro-Trump mob that had gathered in Washington at Trump’s urging later 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 in-person arguments from Eastman and the select committee on Tuesday. Carter, an appointee of former President Bill Clinton, has viewed the panel’s argument favorably in recent weeks – forcing Eastman to turn over thousands of pages of emails he had tried to shield. He also rejected Eastman’s attempt on Friday to delay the hearing and force the committee to turn over reams of additional “exculpatory” evidence.
Eastman also used the filing to push back on the select committee’s claims that he had failed to prove he was legitimately acting as Trump’s lawyer. The panel argued that Eastman had produced only a single document – an unsigned “engagement letter” from Trump’s campaign – formalizing the relationship.
But Eastman said the absence of a signed agreement did not change the nature of his work for Trump. He noted that he filed and consulted on several legal efforts Trump had pursued in the days after the 2020 election. He also noted that Trump invited him to the Oval Office on Jan. 4, 2021, to discuss Pence’s role at the Jan. 6 session.
“President Trump certainly considered Dr. Eastman to be his lawyer in the ‘relevant time period’ and for the ‘relevant matters’ at issue here, ”he argued.
At the heart of Eastman’s effort was an attempt to invalidate the Electoral Count Act, the 1887 law that has governed the way Congress and the vice president finalize presidential elections for 135 years. Eastman’s theory relied on the premise that the act was unconstitutional and that, in fact, the vice president had authority to declare entire slates of electoral votes invalid.
In his brief, Eastman argues that Pence and Congress did violate the Electoral Count Act’s provisions when they reconvened after the riot. He says they violated it by “allowing for extended debate” past the Electoral Count Act’s strict time limits. In an email exchange with Jacob on the night of Jan. 6, Eastman also argued that Pence’s decision to permit legislative leaders to make comments after the riot had been cleared violated the Electoral Count Act.
“Such technical violations of the Act were consistent with Dr. Eastman’s own well-grounded legal opinion (shared by other scholars) that the Electoral Count Act was unconstitutional to the extent it infringed on authority given to the Vice President directly from the Constitution, ”his attorneys wrote.