That former President Donald Trump did something morally, ethically, and democratically wrong on January 6, 2021, is not really up for debate. In the heat of the moment, even some of his closest allies realized it: House Minority Leader Kevin McCarthy implored him to call off the mob he had incited to attack Congress, Fox News hosts begged White House staffers to get him to intercede, and several of his own Cabinet members and top aides resigned in protest in the hours and days that followed. Even those who supported Trump’s actions don’t really believe he did nothing wrong, per se; they simply think his actions were justified by a higher goal of keeping him in power.
Did Trump commit a crime? The House January 6 committee came one step closer to answering that question on Wednesday night. In a court filing in a lawsuit over Trump legal adviser John Eastman’s refusal to turn over documents, the committee said it was pursuing evidence that Trump had committed three crimes: obstruction of an official proceeding, namely the January 6 counting of electoral votes; conspiracy to defraud the United States; and common law fraud. Eastman was working in some sort of legal capacity for Trump at the time, but the committee argued that the crime-fraud exception to attorney-client privilege applied.
The filing amounts to the first serious effort we’ve seen by the federal government to define Trump’s potential criminal liability for January 6. But the most eye-opening portion of the filing isn’t that part. It’s the disturbing evidence of how far one of his key accomplices was willing to go, found in an exchange between Eastman and Greg Jacob, former Vice President Mike Pence’s lawyer at the time.
Pence and his staff had been weighing the legal arguments that he could effectively overturn the election results while overseeing the Electoral College count on January 6. In earlier memos, Eastman argued that Pence could, in essence, throw out lawful state election results and unilaterally declare Trump reelected—a move that would be indistinguishable from a coup d’état. On the morning of January 6, Jacob sent Eastman a highly technical question about his argument. “Is it unconstitutional for the [Electoral Count Act] to direct that the members would do objections, at least in the first instance?” Jacob asked. “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?”
By then, however, Pence had already informed the White House that he wouldn’t try to overturn the results. Eastman fired back a haughty response. “I’m sorry Greg, but this is small minded,” he wrote. “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 [Secretary] 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.”
The Lincoln example appears to be a reference to Lincoln’s decision to suspend habeas corpus during the Civil War without congressional approval, on which Congress later retroactively signed off. I haven’t found any other sources for the anecdote about George H.W. Bush during the Gulf War. (Bush died in 2018; Manuel Lujan Jr., the secretary at the time, died in 2019.) On its face, it seems strange that a secretary of the interior would be involved in war planning, or that the United States is required by law to conduct an “environmental impact assessment” before bombing anything. If anything, it sounds more like a right-wing fable mocking environmental regulations.
Either way, what’s truly alarming is the underlying point that Eastman was making: that the president (or the vice president, in this instance) can simply ignore federal law like the Electoral Count Act of 1887 when they feel it’s necessary to stay in power. Jacob, replying to Eastman just after noon on January 6, pointedly told him that he didn’t think a single Supreme Court justice, federal judge, or Founding Father would agree with Eastman’s conclusions. He told Eastman that he agreed with his fears about “election integrity” and what Democrats would do in power. “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.” He closed with one final flourish: “And thanks to your bullshit, we are now under siege.”
Eastman’s reply was not a model of legal argumentation. “My ‘bullshit’—seriously?” he wrote back at 2:25 p.m., roughly an hour after rioters had stormed the Capitol. “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 is necessary to allow this to be aired in a public way so the American people can see for themselves what happened.” With that last sentence, Eastman appeared to suggest that the attack on the Capitol was Pence’s fault for not capitulating to his fringe legal theories.
That email came one minute after Eastman’s client fired another broadside at Jacob’s boss. As the committee recounted in its court filing, “Shortly thereafter—with the assault on the United States Capitol already underway—Trump tweeted at 2:24 p.m., ‘Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!’” The filing continues: “The evidence obtained by the Select Committee indicates that President Trump was aware that the violent crowd had breached security and was assaulting the Capitol when Mr. Trump tweeted.” Members of the crowd, the committee said, learned of Trump’s tweet, and it resulted in “further violence” in the Capitol.
Eastman, however, saved his most egregious remarks for last. Late that night, he told Jacob that Congress had itself just violated the ECA by, among other things, debating the Arizona objections “for more than two hours” and by not immediately reconvening after the separate House and Senate votes. All of that happened because a Trump-inspired mob, animated in part by Eastman’s theories, had besieged and violently disrupted the process. Now Eastman wanted to reap some benefits from the havoc that his allies had wrought.
“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 occurred here,” he wrote. The “illegal activity” he referenced wasn’t about the attack on the Capitol—it was about the false claims of voter fraud he wanted to use to overthrow American democracy. Jacob’s reply isn’t included in the committee filing. One can only hope that if one was offered, it was a series of vivid expletives.
It remains to be seen, of course, whether the provocative conclusions that the January 6 committee seems to be circling will result in criminal charges. But the more pressing matter at hand is that Eastman, as I’ve previously written, has not given up on the notion that he might be capable of engineering a future coup on Donald Trump’s behalf, should his Democratic opponent once again prevail in the next presidential election. The next time, however, it won’t necessarily look like a mob attacking the Capitol. Rather, it will come about from a sustained effort to bring the sheen of legality to these corrupt ends. That it won’t look as obviously like a crime doesn’t mean it won’t morally be one.