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What John Eastman and ‘the pardon list’ means

White House lawyer Eric Herschmann said on June 16 that he told Trump lawyer John Eastman on Jan. 7 to get a criminal defense lawyer, because he’ll need it. (Video: The Washington Post, Photo: Jabin Botsford/The Washington Post)
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It’s been reported on, whispered about and hinted at since the dust was still settling on the Jan. 6, 2021, insurrection at the U.S. Capitol: There was an effort afoot to pardon key players in the GOP attempt to overturn the 2020 election.

On Thursday, the Jan. 6 committee put some meat on the bones. It disclosed an email that showed that none other than the Trump lawyer who led the plot, John Eastman, sought to be put on what he called “the pardon list” shortly after Jan. 6.

Among the many significant disclosures in the committee’s hearing Thursday, it was surely one of the biggest. The email may not have been a smoking gun in itself, but it billowed yet more smoke over the scandal. And in combination with other recent disclosures, it lends significantly more weight to the idea that the effort to overturn the election was indeed criminal.

The way Eastman made the request also was crucial: He didn’t just say he was seeking a pardon; he indicated in the email to fellow Trump lawyer Rudy Giuliani that there was a known “pardon list” circulating. That suggests that the plotters weighed the possible need for pardons in some considerable measure — that those who led the effort to overturn the election believed they might have enough legal liability that they floated the extraordinary step of obtaining rare, preemptive presidential pardons.

It appears to be the first time we’ve seen firm evidence of such a request. And while by itself it doesn’t constitute an admission of guilt, it fills out a fast-crystallizing picture that those involved in the plot knew that what they were doing was, at the very least, potentially illegal. And in the case of Eastman, there is significant evidence that he knew his plot was indeed illegal.

Getting to this moment has been a slow build.

CNN reported less than two weeks after Jan. 6 that Trump had considered pardons for himself and his family, as well as for Republican members of Congress. But he was reportedly talked out of it by White House lawyers, who warned that he probably would need to cite specific crimes for which people were being pardoned. The report mentioned that some House Republicans had “sought clemency from Trump” but didn’t specifically say who had sought clemency.

Last month, the Jan. 6 committee cited such an effort in a letter seeking testimony from one House Republican, Rep. Andy Biggs (R-Ariz.); CNN reported that a “Stop the Steal” leader said he planned the rally with Biggs and other members of Congress. But that letter did not specifically say Biggs himself sought a pardon. It merely cited “information from former White House personnel” that suggested some House lawmakers had sought pardons, and that Biggs had been “identified as a potential participant in that effort.”

Then came last week, when Jan. 6 committee Vice Chair Liz Cheney (R-Wyo.) started naming names — or at least, a name. She said Rep. Scott Perry (R-Pa.) and “multiple other Republican congressmen” had sought pardons. Perry denied it, in no uncertain terms.

We don’t yet know the truth of the Perry allegation — or just how much other GOP lawmakers were implicated. But we do now know that there was a pardon effort at the highest levels of this plot.

That by itself doesn’t establish consciousness of guilt. There are differing views on whether accepting a pardon constitutes a legal admission of guilt. But a federal appeals court ruled last year — apparently for the first time — that it did not.

In Eastman’s case, though, his seeking a pardon is, in many ways, the cherry on top of his other statements and actions.

At Thursday’s hearing, Greg Jacob, who was general counsel to Vice President Mike Pence, added to the evidence that Eastman knew what he was doing was illegal. He said Eastman conceded to him that his plot to overturn the election would have lost 9-0 at the Supreme Court, on the merits. But he said Eastman believed the court might punt on the merits and stay out of the dispute altogether.

Separately, Eastman’s own memo acknowledged that he was urging Pence to disregard the Electoral Count Act. Eastman did so because he viewed the law as unconstitutional — even though courts had not declared it as such.

And even shortly after the Capitol riot, as he continued to push for Pence to help overturn the results, Eastman told Jacob that he wanted Pence to consider committing a “relatively minor violation” of the Electoral Count Act. (In Eastman’s mind, this was okay because he believed the act had already been violated: In the aftermath of the Capitol riot, a debate over objections to election results had taken longer than the two hours allotted to Congress.)

That’s a whole lot of evidence that Eastman knew he had been pushing for something that violated the law. He might have felt that the law was unconstitutional or that it had already been violated, but he was literally saying the law should be ignored. And then he asked for a pardon.

Eastman could certainly argue that he was merely seeking to insulate himself from being targeted by the incoming administration. Indeed, in the blurred portion of the email, he appears to have gone on to say that a pardon would “taint me, but given the outright lies and false witness being spewed, having that protection is probably the prudent course."

Eastman might also have thought the law was bad or even unconstitutional, and he might have believed the Supreme Court might give him a pass because it prefers to stay out of political disputes.

But you can’t ignore all the evidence that he seemed well aware that his plan violated the law. That’s by his own admission.

Also relevant here is what happened the day after the riot. In a clip played repeatedly by the Jan. 6 committee this week, White House lawyer Eric Herschmann testified about a conversation he had with Eastman on Jan. 7.

When Eastman pressed forward with claims of election problems, Herschmann says he told Eastman: ″Now I’m going to give you the best free legal advice you’re ever getting in your life: Get a great effing criminal defense lawyer; you’re going to need it.”

So it would seem plenty of others believed that Eastman had legal liability shortly after Jan. 6.

We still don’t know how extensive the pardon deliberations were. But what we do know — based on early reporting and on the evidence Thursday — is that people were pretty scared that what they had done could come back to bite them. What’s more, the Eastman email seems to be on top of other evidence to which the committee previously alluded, other evidence from “former White House personnel.” So there’s surely more to come.