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The odd timing of Eastman’s claim of a ‘heated fight’ at Supreme Court

Attorney John Eastman speaks at the rally on the Ellipse in Washington on Jan. 6, 2021. (Jim Bourg/Reuters)
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Within a short period of time on Wednesday night, both The Washington Post and the New York Times dropped new reporting on John Eastman, the attorney close to President Donald Trump who spent the weeks before Jan. 6, 2021, fervently advocating strategies for Trump to retain power.

The Post’s report centered on his communication with Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas. It’s not clear what Thomas said in any message to Eastman, but people familiar with the messages told The Post that they involved the effort to overturn Trump’s election loss. Thomas was already known to have contacted both White House chief of staff Mark Meadows and legislators in Arizona about helping Trump stay in office.

The Times’s report involved a different set of emails involving Eastman. These were released to the House select committee investigating the Capitol riot after U.S. District Judge David O. Carter determined that they should not be subject to attorney-client privilege.

Writing to another Trump-allied attorney, Kenneth Chesebro, Eastman discussed getting the Supreme Court to take action on Trump legal challenges.

“[T]he odds are not based on the legal merits but an assessment of the justices’ spines, and I understand that there is a heated fight underway,” Eastman wrote, according to the Times. “For those willing to do their duty,” he added, “we should help them by giving them a Wisconsin cert petition to add into the mix.” That meant that Trump’s team should put a case before the court, allowing four justices to decide to hear the case.

The “odds of action before Jan. 6 will become more favorable,” Chesebro reportedly responded, “if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.”

In part because the stories were published near the same time, it was natural to wonder if they were linked: Did Eastman hear about heated fighting from Virginia Thomas?

But there’s a more interesting issue of timing. Did Eastman instead hear about this purported fighting because there was an unfounded rumor of such fighting circulating online right when he was writing?

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This would not have occurred to me as a possibility had it not been for Trump’s attempt to rebut the House committee’s Monday hearing. As you may have heard, Trump published a 12-page document rehashing a number of debunked claims about rampant voter fraud a few hours after the hearing, essentially proving the point made by his former attorney general William P. Barr that he’s immune to rational argument on the subject.

Part of the document centered on Trump’s long-standing claim that courts didn’t fully consider his legal arguments, a claim that has been debunked. Trump tried to argue, for example, that the Supreme Court rejected his last-ditch effort to block the election results, Texas v. Pennsylvania, out of fear. The document reads:

“Judges, including Justices of the United States Supreme Court, were scared. Some were political hacks who refused to be the sole arbiter of such a strong political issue. It was liberal fearmongering. Rumors circulated that the Justices devolved to shouting and argued intensely over how to handle the Texas v. Pennsylvania case.”

There’s a citation for that claim: an article from the right-wing outlet the Epoch Times. That article points to a story from the fringe-right radio host Hal Turner in which he claims that “a source deep inside the U.S. Supreme Court” — a law clerk, he claims — overhead a meeting in which Chief Justice John G. Roberts Jr. refused to hear the case due to concerns about violence and in which Justice Thomas replied that the situation was “the end of Democracy.” An elector in Texas later made this claim publicly.

To be very clear, there is literally no reason to believe this happened. The Epoch Times article linked by Trump, in fact, includes a statement from the Supreme Court pointing out that there were no in-person meetings, given the coronavirus pandemic. It simply didn’t occur, although it’s obvious why Trump wants to pretend it did.

Now we come to timing. Texas v. Pennsylvania was rejected by the high court on Dec. 11, 2020. As the University of Texas’s Steve Vladeck noted, there was no legal issue before the court when Eastman wrote to Chesebro on Dec. 24 that would imply there was a heated fight underway; it would have been settled more than a week prior. In fact, that was the point of Eastman’s email: Send them a case to take up!

What did happen before the email was sent was that the Turner story was circulating. The first iteration published on Dec. 12. The Texas elector raised it as the state cast its electoral votes on Dec. 14. The Epoch Times story eventually linked by Trump published on Dec. 18 and was updated on Dec. 20. For a while, it was even trending on Twitter.

In other words, we have an obvious conduit for claims about a heated argument making their way to Eastman even if Virginia Thomas didn’t raise them: online misinformation. Eastman was not immune to flights of fancy, certainly, making it not impossible that he might have taken the rumors at face value.

If that is what happened, the implication is jarring — not just that an attorney close to the president was strategizing about challenges to the election based on nonsense, but that his exchange with Chesebro included the idea that this nonsense bolstered the utility of a “wild” presentation on Jan. 6, 2021. When Chesebro put “wild” in quotes, he was almost certainly referring to Trump’s tweet encouraging people to come to Washington on that day, pledging that it would be “wild.”

That tweet was sent on Dec. 19 — as the rumors about Supreme Court infighting were still swirling.

Update: In a post on Substack, Eastman points to “news accounts at the time” as the reason for his making the claim. The news account he identifies is one discussing the Texas elector’s comments.

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