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The heated Jan. 6 email exchange between Trump’s and Pence’s lawyers, annotated

John Eastman, left, a lawyer for President Donald Trump, appears with Rudolph W. Giuliani at the Jan. 6 rally that preceded the Capitol insurrection. (Jacquelyn Martin/AP)
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The big revelation Wednesday night was that the Jan. 6 committee, in a new court filing, argues that President Donald Trump and his aides might have engaged in a “criminal conspiracy” in their effort to overturn the 2020 election.

The committee has previously floated potential crimes that Trump and others might have committed, but for the first time it lays out its case in significant detail.

In doing so, the filing also details tense sparring between a leader of Trump’s effort to overturn the election, his lawyer John Eastman, and Vice President Mike Pence’s chief counsel, Greg Jacob. We knew significant details about the exchanges, thanks to an October investigation by The Washington Post, but the emails they exchanged are published verbatim in the new filing.

Below are the full emails, in chronological order. Key sections are bolded — by us — for reference, with context and analysis beneath each one.

Eastman to Jacob (Jan. 5 evening):

Good talk earlier tonight.
Major new development attached. This is huge, as it now looks like PA Legislature will vote to recertify its electors if Vice President Pence implements the plan we discussed.

This email references (and attaches) a Jan. 4 letter from Pennsylvania Republican state senators to the GOP leaders of the U.S. House and Senate, Rep. Kevin McCarthy (R-Calif.) and Sen. Mitch McConnell (R-Ky.). In the letter, the state senators ask for more time to review the certification of Pennsylvania’s election results, citing a case that the Trump legal team pitched as validating their claims (after overwhelmingly losing other cases).

As the Jan. 6 deadline approached, the Trump legal team needed state legislatures to cast their results into question. But none had done so officially, so the idea was to buy more time by delaying Congress’s counting of the votes.

Jacob to Eastman (Jan. 6):

Thanks, John. Will call.
Is it unconstitutional for the [Electoral Count Act] to direct that the members should do objections, at least in the first instance? Would the constitutional imperative you argue for not kick in only after that statutorily required mechanism has been applied, and failed to uphold the Constitution?

It’s a little difficult to place this email, since it appears to reference discussions outside the email chain. But Jacob expresses skepticism of Eastman’s idea.

Eastman to Jacob:

I’m sorry Greg, but this is small minded. You’re sticking with minor procedural statutes while the Constitution is being shredded. I gave you the Lincoln example yesterday. Here’s another. In the situation room at the White House during the first Iraq war, the Sec of Interior said the law required an environmental impact assessment before the President could order bombing of the Iraq oil fields. Technically true. But nonsense. Luckily, Bush got statesmanship advice and ignored that statutory requirement.

In a nutshell, the argument advanced by Eastman and other Trump allies was that the Electoral Count Act, the 1887 law that guides Congress’s counting of the votes, was unconstitutional, and Pence should simply disregard it.

Ignoring the law would supposedly have allowed Pence to either unilaterally count the votes he decided were valid — the most drastic option for reinstalling Trump — or declare the result to be in doubt and give the states more time to potentially change course. It might also have given Republicans more power to object and potentially send the dispute to court.

Eastman appears to compare the situation to President Abraham Lincoln’s suspending the writ of habeas corpus early in the Civil War and President George H.W. Bush disregarding a legal impediment in another war time.

Jacob to Eastman (after Jan. 6 riot began):

John, very respectfully, I just don’t in the end believe that there is a single Justice on the United States Supreme Court, or a single judge on any of our Courts of Appeals, who is as “broad minded” as you when it comes to the irrelevance of statutes enacted by the United States Congress, and followed without exception for more than 130 years. They cannot be set aside except when in direct conflict with the Constitution that our revered Framers handed us. And very respectfully, I don’t think that a single one of those Framers would agree with your position either. Certainly, Judge Luttig has made clear he does not. And there is no reasonable argument that the Constitution directs or empowers the Vice President to set a procedure followed for 130 years before it has even been resorted to.
Lincoln suspended the writ when the body entrusted with that authority was out of session, and submitted it to them as soon as it returned. I understand your argument that several state legislatures were out of session. But the role for state legislatures has for our entire history ended at the time that electoral certificates are submitted to Congress. Congress has debated submissions, including competing submissions. It has never once referred them out to state legislatures to decide.
I respect your heart here. I share your concerns about what Democrats will do once in power. I want election integrity fixed. But I have run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a results oriented position that you would never support if attempted by the opposition, and essentially entirely made up.
And thanks to your bull----, we are now under siege.

Jacob refers to a private rebuke Eastman’s strategy had received from renowned conservative former federal judge J. Michael Luttig. Luttig detailed his Jan. 6 advice to Pence a few months ago, after Eastman’s memo was publicly disclosed by reporters from The Post.

The key part, though, is the bottom — where Jacob more forcefully decries Eastman’s efforts and blames them for the Capitol “siege,” which by that point had forced Pence and his aides to retreat to a safe area. Rioters chanted “Hang Mike Pence” during the insurrection.

The purpose of Wednesday’s legal filing was to argue that Trump and those around him were informed that their allegations of voter fraud and a stolen election were baseless and even that they had been informed what they were doing was illegal. Here, the top lawyer for Pence tells Eastman that he concluded “as a legal framework,” Eastman’s idea was “essentially entirely made up.” (Jacob made a similar case in a draft op-ed that he decided not to publish but was later obtained by The Post.)

We knew previously that Jacob had blamed Eastman for the siege, but these emails provide the fuller exchange.

Eastman to Jacob:

My “bull----” — seriously? You think you can’t adjourn the session because the ECA says no adjournment, while the compelling evidence that the election was stolen continues to build and is already overwhelming. The “siege” is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.

Again, this was an exchange we previously knew about. Eastman blames Pence for the Capitol riot, even as Pence had been endangered by it.

Jacob to Eastman:

I do apologize for that particular language, which was unbecoming of me, and reflective of a man whose wife and three young children are currently glued to news reports as I am moved about to locations where we will be safe from people, “mostly peaceful” as CNN might say, who believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day. Please forgive me for that.
But the advice provided has, whether intended to or not, functioned as a serpent in the ear of the President of the United States, the most powerful office in the entire world. And here we are.
For the record, we were in the middle of an open, widely televised debate that was airing every single point that you gave members of Congress to make when all of this went down and we had to suspend.
I am not for a moment suggesting that you intended this result. But we were in fact giving you precisely the transparent debate that you suggest we were not. It was then up to you and the legal team to arm members with a case at least sufficient to convince a Senate that our own party controls. I’m not hearing that case at the moment, which I was anticipating with great interest (having previously reviewed many of the underlying filed materials), because the Senate floor has been abandoned.
Respectfully, it was gravely, gravely irresponsible for you to entice the President with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets. The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.
I do not begrudge academics debating the most far-flung theories. I love doing it myself, and I view the ferment of ideas as a good and helpful thing. But advising the President of the United States, in an incredibly constitutionally fraught moment, requires a seriousness of purpose, an understanding of the difference between abstract theory and legal reality, and an appreciation of the power of both the office and the bully pulpit that, in my judgment, was entirely absent here.
I’ ll say no more. And perhaps at some future Federalist Society Convention, we can more fully engage in the academic debate.
God bless.

Jacob offers a somewhat halfhearted apology for his language, noting the danger he finds himself in. More importantly, he describes why Eastman is culpable for that.

He says Eastman’s advice, regardless of intent, “functioned as a serpent in the ear of the President of the United States, the most powerful office in the entire world. And here we are.” He tells Eastman “it was gravely, gravely irresponsible for you to entice the President with an academic theory that had no legal viability.” He suggests that Eastman had little regard for the damage that could be done by feeding Trump these ideas.

It’s an indictment of Eastman, to be sure, but it also adds to a long history of Republicans and White House aides treating Trump as if he weren’t capable of parsing these issues for himself.

Eastman to Jacob:

I appreciate tamping down the rhetoric. I will respond in kind.
With all due respect, the VP’s statement today claimed the most aggressive position that had been discussed and rejected. “Some believe that as Vice President, I should be able to accept or reject electoral votes unilaterally.” But we had given a much more limited option, merely to adjourn to allow state legislatures to continue their work. I remain of the view not only would that have been the most prudent course as it would have allowed for the opportunity for this thing to be heard out, but also had a fair chance of being approved (or at least not enjoined) by the Courts.

Here, Eastman complains that Pence’s rejection of his strategy (in a Jan. 6 letter) referenced only the most drastic option — Pence unilaterally trying to throw the election to Trump. Eastman argues, as he has after the emergence of his memo, that his preferred option was to have Pence merely send it back to the states. Eastman and allies have strained to disown that more drastic option, despite Eastman’s having pitched it as a viable strategy in the memo.

Jacob to Eastman:

Did you advise the President that in your professional judgment the Vice President DOES NOT have the power to decide things unilaterally? Because that was pushed publicly, repeatedly, by the President and by his surrogates this week. And without apparent legal correction.
I acknowledge that the final proposal as to actual actions to be taken by the Vice President in violation of the ECA that was retreated to last night was more modest. But the legal theory is not. And it does not appear that the President ever got the memo.

This is a key point. To the extent Eastman pushed Trump away from the most-drastic option — he later claimed he should be treated as a “white-knight hero” for doing so — Trump indeed kept talking about that unilateral option.

He did so as late as the evening of Jan. 5. He also continued to say, as recently as a little over a month ago, that Pence “did have the right to change the outcome” and, “Unfortunately, he didn’t exercise that power, he could have overturned the Election!”

(Trump soon tried to back off this, emphasizing the less-drastic option instead — potentially because of the legal liability it might create, which has now been driven home by this filing.)

It’s also very interesting that Jacob asked Eastman whether he actually pushed Trump away from that option. That’s notable for a reason we’ll get to next.

Eastman to Jacob:

He’s been so advised, as you know because you were on the phone when I did it. I should not discuss other conversations that I may or may not have had privately on that score with someone who is a client. But you know him — once he gets something in his head, it is hard to get him to change course.
When this is over, we should have a good bottle of wine over a nice dinner someplace.

Eastman claims Jacob would be well aware of Eastman having talked Trump off the more drastic option, because Jacob was party to a conversation in which Eastman did. But Jacob’s email sure seems to suggest he didn’t view things that way.

Eastman also declines to detail further instances in which he might have advised Trump against the more-drastic option, citing attorney-client privilege. (The case in which this filing was made involves Eastman seeking to withhold documents he says are privileged from the Jan. 6 committee.)

Eastman to Jacob again (Jan. 6 evening):

The Senate and House have both violated the Electoral Count Act this evening — they debated the Arizona objections for more than 2 hours. Violation of 3 USC 17. And the VP allowed further debate or statements by leadership after the question had been voted upon. Violation of 3 USC 17. And they had that debate upon motion approved by the VP, in violation of the requirement in 3 USC 15 that after the vote in the separate houses, “they shall immediately again meet.”
So now that the precedent has been set that the Electoral Count Act is not quite so sacrosanct as was previously claimed, I implore you to consider one more relatively minor violation and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here. If none of that moves the needle, at least a good portion of the 75 million people who supported President Trump will have seen a process that allowed the illegality to be aired.

Here is Eastman, in real time after the Capitol riot, still looking for ways to overturn the election. We already knew the substance of this email, thanks to that October investigation from The Post’s Josh Dawsey, Jacqueline Alemany, Jon Swaine and Emma Brown.

Effectively, the idea was that Congress had violated the Electoral Count Act by allowing debate to go beyond the allotted two hours — because of the insurrection, mind you — and for various other reasons.

As we analyzed at the time of The Post’s investigation, what this essentially amounted to was Eastman trying to “use the fallout of a mob attack — one spurred by his and Trump’s baseless claims of electoral fraud and Eastman’s highly unorthodox plan to overturn the election — to then get Pence to reject election results based upon a technicality.”

The final point worth emphasizing — as it will likely be a focal point of the legal case — is that Eastman acknowledges he’s asking Jacob and Pence “to consider one more relatively minor violation." He acknowledges he’s asking for something that violates the law. Of course, that’s pretty obvious, as the entire strategy revolves around disregarding a law he views as unconstitutional. But spelling it out so explicitly is something.