Opinion | At the hearing on January 6, a criminal case unfolds against Trump’s lawyer

The committee focused on Eastman’s work representing Trump after his defeat on Election Day 2020 and his key role in trying to convince Vice President Mike Pence to refuse to confirm the results. Among other things, Eastman wrote two memos exposition of his theories — both argued that Pence was free to reject approved voter lists because “the Constitution gives that power to the vice president as the final arbiter,” and he advised Trump about this in discussions with the outgoing president.

At the committee’s third public hearing this month, the commission presented evidence indicating that this legal position has been widely and strongly rejected by lawyers in the Trump administration. Among other things, they acknowledged the absurdity of the notion that Pence could somehow appropriate all this power to himself, especially since the nominal factual predicate of widespread electoral fraud was also incorrect and, according to evidence presented by the committee, rejected by many key officials the Trump administration and campaign.

Nevertheless, Eastman advised Trump to follow his strategy, but Pence disagreed and the result was the January 6 riot.

During the siege, a lawyer for Pence named Greg Jacob aptly observed that Eastman’s arguments reflected “a result-oriented stance that you would never take if the opposition tried to take it.” And “thanks to your nonsense,” he added, “we are now under siege.” However, the next day, Eastman continued to lobby another White House attorney, Eric Hershmann, who was so taken aback that he offered Eastman “the best free legal advice you’ll ever get in your life: get a great criminal defense.” . lawyer. You will need it.” Afterwards, Eastman told Rudy Giuliani that he “decided I should be on the pardon list if it was still in development.”

Eastman never received a pardon, but he was right to be worried.

In March, committee argued in a lawsuit in a dispute over the creation of Eastman’s emails that there was evidence that he and Trump engaged in criminal behavior based on several different arguments. This included, in part, (1) that Eastman, Trump, and others engaged in “an aggressive public disinformation campaign to convince millions of Americans that the election was, in fact, stolen” and (2) that they “[interfered] with the election certification process”. The judge agreed, concluding that it was “more likely than not” that the two committed a criminal offense as part of a “campaign to cancel democratic elections” using a plan that “lacked not only a factual basis but also a legal basis”. It was a plan, the judge concluded, which was really “a coup in search of a legal theory.”

It is important to note that the arguments put forward by the committee that Trump and Eastman are involved in criminal behavior are logically and legally independent of each other, although in practice the two arguments reinforce each other. In other words, if Trump and Eastman’s efforts had ended before January 6, they could still be on the hook for their “aggressive public disinformation campaign” about election fraud. Similarly, even if Trump and Eastman were to believe their baseless claims of fraud, they could still be prosecuted on the grounds that their attempts to pressure Pence to reject approved voters were clearly illegal. Both disputes are unprecedented, as is the rest of the legal mess that Trump and his aides have unleashed on the country.

The committee understandably touted the court’s decision repeatedly during the hearings, but it’s important to keep a few things in mind. First, as the judge himself noted, the dispute was a civil email production dispute, not a “criminal prosecution” or “even a civil liability suit”, and thus the relevant legal standard was much lower than in a criminal case. . Second, Trump was not a party to the dispute, so he did not present any arguments in his defense to the court, including perhaps that he trusted Eastman’s judgment despite what he may have heard from others. And third, the opinion was obtained from the federal district court of California; this is “convincing authoritybut does not bind any other judge, let alone the judges in Washington who presided over the January 6 Justice Department prosecution.

As for the prospect of actually bringing criminal charges against Eastman, the Justice Department should now take it seriously, but there are reasons to be cautious about predicting what will happen. First, the government rarely accuses a lawyer of criminal behavior on the basis of his alleged work as a lawyer, although it certainly happens in especially severe cases.

Here the case would be even more unusual because it would be based on the legal positions that Eastman held, and lawyers are usually given very wide bed defend even losing legal cases on behalf of our clients, based on the principle that a diligent, client-focused defense is critical to the functioning of our adversarial legal system. Attorney General Merrick Garland, who was an appellate judge almost a quarter of a centurywill understand this as well as anyone else and will probably take it very seriously before making any decision about charging.

The committee’s position is that Eastman did not actually consider his arguments to be credible, and this, in turn, gave rise to a variation on a recurring theme in assessing the evidence at the hearing: whether Eastman was deliberately lying or instead misleading, perhaps just involved in some activity? very motivated reasoning?

The most compelling evidence on this point is probably Jacob’s testimony, first presented in the committee’s March report. litigation but Jacob reiterated in his public testimony that Eastman admitted at one point during an internal debate that he would lose 9-0 if the Supreme Court directly addressed his theory of Pence’s authority. However, Jacob pointed out that this exchange came after Eastman stated that the court would never get to the point because they would invoke a discretionary principle known as “political question doctrine”, according to which the court sometimes refuses to hear cases in which issues arise that are so politically motivated that they are (presumably) better decided by the executive and legislative branches of government. It wasn’t a very good argument, but it’s at least logically coherent, which makes it harder to try to figure out what was really going on in Eastman’s head and how much he was trying to be deceitful.

Until he went silent at the end of last year, Eastman was also speak openly with people about the basis of his legal position – a behavior not quite consistent with the actions of a lawyer who knew that what he was doing was wrong. Last September, for example, Eastman spoke for a long time in a podcast with Lawrence Lessig, who taught Eastman at law school and recalled him as a “prominent student” whose subsequent career he once “admired” as well as an suffrage expert who, along with Lessig, systematically refuted Eastman’s claims for nearly two hours, from time correcting him on basic but important points of fact relating to the relevant history of law. It’s fascinating to listen to because Eastman sounds both funny and sincere.

However, it would be premature for the Justice Department to make any decision to indict Eastman based on this record alone. If federal prosecutors don’t already doing itthey must themselves investigate Eastman’s conduct and consider the full context and underlying circumstances, including evidence, both exculpatory and incriminatory, that the committee may not have or may not have presented.

As for Trump, the Justice Department had ample grounds to file a criminal case even before the House committee was convened. But recently some observers they appear to be treating Eastman’s revelations as if they were equally about Trump’s possible guilt and legal revelations. This is a misunderstanding that may have been aided by the opinion of the judge in the Eastman trial, who at times seemed to equate the behavior of the two men in his analysis. But there are significant differences between the two cases.

Eastman, of course, was Trump’s lawyer and, therefore, better versed in the relevant issues. To the extent that we’re talking about a potential case based on the second of the above two arguments – that the legal positions Eastman and Trump took were unfounded and that they knew it – Trump would have a colorful defense. based on Eastman’s advice. It is not clear whether he truly believed that Eastman had a good faith basis for his allegations, and this must be decided by diligent investigators using the well-established legal tools and principles at the department’s disposal.

Not surprisingly, there are now reports that directly reflect what was obviously within a few months: that Trump has deliberately kept his distance from Eastman in public lately, and that Trump and his allies believe the lawyer possible “fall guy”. This defense would lead us to believe that Trump might just be the world’s unluckiest rich guy, constantly surrounded by corrupt advisers and terrible lawyers whose misconduct somehow always aligns exactly with Trump’s preconceived political and financial interests.

By the same token, some members belonging legal comment already have it is customary to speculate this Eastman can cooperate against Trump and finally overthrow him. There is also an inevitable sense of déjà vu. In the end, the list of dishonest Trump insiders who once hoped would successfully turn against him – people like Paul Manafort, Roger Stone, Allen Weisselberg, Michael Flynn, Steve Bannon, Tom Barrack and even Michael Cohenwho was not a helpful employee – long.

Maybe this time it will be different, but don’t hold your breath.

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