Trump lawyer linked to ‘coup memo’ tells judge claims of criminal conspiracy are ‘lies’

Sign up for the daily Inside Washington email for exclusive US coverage and analysis sent to your inbox

Get our free Inside Washington email

Please enter a valid email address

Please enter a valid email address

SIGN UP

I would like to be emailed about offers, events and updates from The Independent. Read our privacy policy

Lawyer John Eastman, who advised former President Donald Trump as he tried to overturn the 2020 election, forcefully pushed back on claims made by the House Select Committee investigating 6 January that his work could amount to criminal conspiracy.

Dr Eastman is attempting to use attorney-client privilege to block the committee from accessing some of his emails. He said the committee’s claims would criminalize “good-faith” legal advice and that Mr Trump’s decision to take notice of his guidance, at a time when he was also getting advice from his staff, cannot be interpreted as criminal acts, Politico reported.

Dr Eastman’s attorneys, Anthony Caso and Charles Burnham, rejected the committee’s legal filing as being “based on lies, distortions drawn from select snippets of behind-closed-door testimony, and innuendo”.

The filing outlined evidence possibly describing three crimes committed by Mr Trump and Dr Eastman – obstruction of Congress’ January 6 session, conspiracy to defraud the United States, and violations of DC’s fraud code.

Dr Eastman is trying to prevent thousands of pages of emails between him and Mr Trump’s confidantes from being shared with investigators. The attorney was instrumental in the development of Mr Trump’s legal strategy after the election. When that effort failed, Dr Eastman also aided Mr Trump in coming up with a plan to push then-Vice President Mike Pence into stopping the counting of the electoral votes on 6 January 2021.

The committee’s case included exchanges between Dr Eastman and Mr Pence’s attorney Greg Jacob. Mr Jacob criticised Dr Eastman for pushing the inaccurate notion that Mr Pence had the power to stop the counting of votes. The idea helped fuel the mob attacking the Capitol, with some of them chanting “hang Mike Pence”. Dr Eastman instead argued that it was Mr Pence’s decisions that prompted the attack.

The committee contends that Dr Eastman’s support for peripheral legal theories that were highly unlikely to pass muster, while pushing Mr Pence to break federal regulations, was a crime.

Dr Eastman argued that the committee claiming that he could have broken the law ignores that Mr Trump received similar guidance from other associates and that the debate between advisors was a policy disagreement and 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,” Dr Eastman argued, and added that the “court would need a full-scale trial, complete with expert audits of the contested state election tallies before it could even consider Defendants’ arguments”.

Dr Eastman cited comments made by the last two attorneys general in the Trump administration. Bill Barr has said in TV interviews that Mr Trump “was surrounded by these people who would very convincingly make the case for fraud”, with Jeffrey Rosen making similar statements to the committee.

The premise of Dr Eastman’s argument is that the 2020 election is still disputed, citing efforts by a pro-Trump judge to spread doubts about the Wisconsin results.

There’s no evidence that the 2020 election was affected by widespread fraud.

Dr Eastman’s strategy was based on an attempt to invalidate the Electoral Count Act of 1887, which guides the finalisation of presidential elections. Mr Eastman argued that the law was unconstitutional and that the vice president had the power to declare electoral votes invalid.

He also argued that Mr Pence and Congress violated the law when they continued proceedings after the riot on 6 January by “allowing for extended debate” beyond the time limits of the law. Dr Eastman wrote to Mr Jacob on the night of 6 January that Mr Pence had violated the act by allowing congressional leaders to make comments after the riot.

“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 lawyers argued.