Thursday’s hearing of the select committee investigating the insurrection took us inside the White House in the lead up to the Jan. 6, 2021, attack on the Capitol, and the star was John Eastman, author of the blueprint for Donald Trump’s effort to overthrow the 2020 election.
But as you ponder the case against Eastman, remember this: Eastman functioned as Trump’s agent throughout. Trump directly instructed his vice president, Mike Pence, to heed to Eastman’s advice, and to carry out his scheme.
The hearing on Thursday developed two big new storylines about Eastman.
First, it showed that Eastman might have fully understood that his scheme — which entailed getting Pence to delay the electoral count in Congress, giving states time to certify sham electors for Trump, based on a fictional legal theory — could lead to violence. And Eastman apparently shrugged off this possibility.
This came from White House lawyer Eric Herschmann, who testified that he directly warned Eastman that executing his scheme would “cause riots in the streets.”
“And he said words to the effect of, ‘There’s been violence in the history of our country in order to protect the democracy or to protect the republic,’ " Herschmann continued.
Riots, you see, would be a small price to pay in service of carrying out the coup.
Similarly, Greg Jacob, chief counsel to Pence, testified he told Eastman that if Pence followed his advice, the resulting conflict “might well then have to be decided in the streets.” If Eastman was troubled by this, it didn’t slow his plotting.
Of course, we did get street violence. But it was the other way around: Trump incited the violence for the apparent purpose of pressuring Pence to complete the plan Eastman had hatched.
Indeed, as the hearing also demonstrated, Eastman made one last-ditch effort to get Pence to delay the electoral count after the mob had already rampaged through the Capitol.
The second big reveal was that in the days after Jan. 6, Eastman sought a pardon from Trump. It’s hard to say what this means: Eastman didn’t get one, and he might simply say he figured he’d be prosecuted, martyr-like, by the incoming regime. But it appears to reveal consciousness of legal vulnerability.
It’s important to remember that Eastman wasn’t a rogue operator. He was operating at Trump’s direction. Just about everything Trump did — pressuring elections officials to find fake votes, pressuring the Justice Department to manufacture fake evidence of voter fraud, pressuring state legislatures to certify fake electors — was in service of the ultimate scheme outlined by Eastman.
On Jan. 4, Trump assembled Eastman and Pence in the Oval Office, and reportedly instructed Pence to follow Eastman’s plan: “You really need to listen to John. He’s a respected constitutional scholar. Hear him out.”
Then on Jan. 6, Pence aides lashed out at Eastman, claiming he personally was to blame for the violence, having pushed Trump’s scheme to its maximal extent. One of them described Eastman’s advice as “a serpent in the ear of the President of the United States.” That was entirely accurate.
Trump and Eastman were co-conspirators. Recall that when a federal judge recently posited that laws were broken in connection with Jan. 6, he asserted that both Trump and Eastman may have committed crimes.
In those court papers, the judge wrote that they may have committed “conspiracy to defraud the United States.” He suggested they enter into an agreement to obstruct a lawful function of government — Congress’s counting of electoral votes — and that both “likely knew” the plan was an illegal violation of the Electoral Count Act of 1887. Corrupt pressure on Pence may have constituted the requisite “act” in furtherance of that conspiracy.
Of course, the Justice Department might not view Eastman’s conduct this way. And Matthew A. Seligman, a legal scholar and expert on the ECA, says Eastman might argue he was simply advising his client — Trump — that he had the option of trying to get Pence to delay the electoral count, in the good-faith belief that the ECA might be unconstitutional and Pence might not have to follow it.
“Eastman's defense will be to shroud himself in his role as a lawyer — how could it be criminal just to give his client legal advice?” Seligman told us.
But such a defense might break down, since this legal advice might have been knowingly bogus and offered in furtherance of a conspiracy to thwart the electoral count — and to break our constitutional order.
“As the committee’s hearing demonstrated, this was knowingly giving a bogus legal pretext to violate the Constitution as the president frantically tried to stay in power after losing the election,” Seligman said. “That is the most profoundly corrupt intent possible in our constitutional system.”