Jurisprudence

After Thursday’s Hearing John Eastman Really Should Get a Good Criminal Defense Lawyer

Eastman wears a ridiculous hat, Rudy wears a suit.
A video of John Eastman and Rudy Giuliani is projected as the US House Select Committee to Investigate the January 6 Attack on the US Capitol holds its third public hearing, on Capitol Hill in Washington, DC, on June 16, 2022. Mandel Ngan/Getty Images

During the third in a set of summer hearings held by the House Select Committee to investigate the Jan. 6 attack on Thursday, committee members closely scrutinized former President Donald Trump’s numerous attempts to coerce Vice President Mike Pence into unilaterally declaring they had won the 2020 election.

The main upshot of the day was not only that “team normal” knew the plan had no constitutional, legal, or historical basis, but also that the main architects of the Jan. 6 plot—specifically Trump attorneys John Eastman and Rudy Giuliani— knew that their plan would be rejected by any sane judge. Eastman, Giuliani, and Trump pushed the plan anyway. As a result, the committee made clear, Capitol rioters focused their anger on the vice president who narrowly escaped a brush with a mob that came within 40 feet of him as he moved to a secure location. On top of these revelations, we also learned that Eastman sought to shield himself from potential criminal liability following the insurrection and his failed attempts at stopping the peaceful transition of power.

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Given what the Jan. 6 committee uncovered, it’s a wonder that Eastman has yet to be indicted on charges of conspiracy to defraud the United States. U.S. District Judge David O. Carter has already written as part of separate litigation that Eastman and Trump likely committed this offense. Jan 6. was “a coup in search of a legal theory,” the judge wrote. And the committee laid out the development of that unsubstantiated legal framework in excruciating detail on Thursday, placing the culpability directly on Eastman, Giuliani, and ultimately Trump.

Pence attorney Greg Jacob was Thursday’s star witness, offering up detailed testimony that bolstered the committee’s case. Jacob advised the vice president throughout the final weeks of the administration to follow his initial instinct, despite inordinate amounts of pressure from Trump, to decline to overturn the election on Jan. 6. “Our review of text history and frankly just common sense all confirmed the vice president’s first instinct on that point,” Jacob testified. “There is no justifiable basis to conclude that the vice president has that kind of authority.”

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This “first instinct” was widely shared in Trump’s own White House, the committee learned. Trump advisor Jason Miller testified that White House Counsel “Pat Cipollone thought the idea was nutty and had at one point confronted Eastman basically with the same sentiment.” Meanwhile, Pence’s Chief of Staff, Marc Short, testified that White House Chief of Staff Mark Meadows told him prior to Jan. 6 that he also believed the vice president had no authority to do what Trump was asking. (Short also testified that “Mark had told so many people so many different things that it was not something that I would necessarily accept, as ‘ok, well that means that’s resolved.’”)

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White House lawyer Eric Herschmann testified that he told Eastman directly that his plan was “completely crazy,” that he was “out of [his] effin’ mind,” and that he was “going to cause riots in the streets.” This warning didn’t seem to trouble Eastman. According to Herschmann’s videotaped deposition, in advance of Jan. 6, Eastman said that he’d be OK with violence. “[Eastman] said words to the effect of ‘there’s been violence in the history of our country in order to protect the democracy or protect the republic,’” Herschmann testified in one of the more damning moments in a hearing full of damning moments.

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Jacob also testified that he too warned Eastman of the violence and chaos his path would likely bring upon the nation. “You would have had just an unprecedented constitutional jump ball situation with that standoff, and as I expressed to him that issue might then well have to be decided in the streets,” Jacob testified he told the lawyer.

Again, John Eastman was fine with this outcome.

Indeed, a steady buildup of public pressure targeting Pence that was initially instigated by Trump culminated in the days just prior to Jan. 6, with Eastman leading the charge. On Jan. 4, Jacob attended an Oval Office meeting with Pence, Trump, Short, and Eastman. According to Short, Eastman pressed the vice president to overturn the election, offering Pence two paths: Reject Biden electors he personally disagreed with outright and declare their administration the victor, or on Jan. 6 he could call a recess of the joint session of Congress and send the “disputed” electors back to state legislatures to be re-certified in favor of Trump.

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Ultimately, at this initial meeting Eastman rejected the former theory, which he himself later described as “crazy,” and sought to push the “return it to the states” plan. But at a meeting with Jacob the very next day, Eastman made an about face. “His first words after introduction and as we sat down were, ‘I’m here to request that you reject the electors in the disputed states,’” Jacob said on Thursday. According to Jacob, Eastman also acknowledged during the meeting that his argument would lose “9-0” at the Supreme Court.

Jacob was categorical that Pence would not be unilaterally overturning the election. The former Pence attorney was so shocked by Eastman that he wrote down in contemporaneous notes that were presented before the committee “Requesting VP reject.”

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Perplexingly, at that Jan. 5 meeting, Eastman acknowledged there was no legal or historical standing for the vice president to unilaterally decide the election, despite continuing to advocate for it. “He acknowledged by the end that there was no historical practice whatsoever that supported his position,” Jacob testified, noting that he explicitly rejected a poor historical parallel involving Thomas Jefferson and the 1800 election. (The next day during a speech at Trump’s rally in front of the crowd that would become the mob chanting “hang Mike Pence,” Eastman reversed himself again and cited the Jefferson precedent)

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After all of Eastman’s back and forth with Pence’s attorney, Trump called Pence to the Oval Office for a meeting to try to persuade him directly to overturn the election. The New York Times reported on that meeting, making clear that Pence had told Trump he did not have that power. According to Miller, Trump then dictated a statement lying about the report:

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The New York Times report regarding comments Vice President Pence supposedly made to me today is fake news. He never said that. The Vice President and I are in total agreement that the Vice President has the power to act.

“We were shocked and disappointed, because whoever had written and put that statement out it was categorically untrue,” Jacob testified of the vice president’s staff’s response to Trump’s lie about the meeting.

The committee also presented further evidence that Eastman knew that his plan was illegal. In a draft memo to the president, he wrote:

The 12th Amendment only says that the President of the Senate opens the ballots in the joint session and then, in the passive voice, that the votes shall then be counted. … 12 says merely that he is the presiding officer. … Nowhere does it suggest that the President of the Senate gets to make the determination on his own.

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And Eastman wasn’t the only one of Trump’s legal henchman who knew the plan wasn’t legally viable. Trump lawyer Herschmann testified that on the morning of Jan. 6 he received a call from Giuliani:

On the morning of Jan. 6, he called me out of the blue and I was like getting dressed and we had an intellectual discussion about … the VP’s role. … When we finished, he said that ‘I believe that you’re probably right.’ I think he thought when we were done that it’d be something that he’d have to consider if he were sitting on the bench, but he’d probably come down on that you couldn’t interpret it or sustain the argument long term.

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So, Eastman and Giuliani, according to sworn testimony, accepted that their plot to overturn an American election had no basis. Nevertheless, they—along with Trump—persisted. And during speeches on Jan. 6, they each individually focused the ire of the assembled rally-goers directly on Pence.

Even after the attack on the Capitol, Eastman continued to email Jacob attempting to convince Pence to overturn the election. When Pence was told of this days later, he told Jacob, “that’s rubber room stuff,” according to Jacob’s testimony. And on Jan. 7, Eastman was still at it. As Herschmann testified, he called that day asking for legal work “preserving something potentially for appeal” in the contested state of Georgia.

Herschmann said he told Eastman that he was “out of your effin’ mind.” He added: “Now I’m going to give you the best free legal advice you’re getting in your life: Get a great effing criminal defense lawyer. You’re going to need it.”

Soon after, Eastman penned an email to Giuliani, writing: “I’ve decided that I should be on the pardon list, if that is still in the works.”

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