Highlights of Opinion and Order, by Honorable Linda V. Parker, Timothy King, et al. vs. Gretchen Whitmer, et al., Civil Case No. 20-13134, August 25, 2021
1. At the July 12 hearing, Wood maintained that the Court lacks jurisdiction to sanction him because he played no role in drafting the Complaint, did not read any of the documents with respect to the Complaint, was not aware of the affidavits attached to it, and did not give permission for his name to be specifically included in this action. When the Court asked Wood if he gave permission to have his name included on the pleadings or briefs, Wood answered: I do not specifically recall being asked about the Michigan complaint, but I had generally indicated to Sidney Powell that if she needed a, quote/unquote, trial lawyer that I would certainly be willing and available to help her.
2. Wood then denied being served with the motion for sanctions and stated that he was present only at the hearing because the Court required him to be there. According to Wood, he only discovered that he had been included as counsel for Plaintiffs in this matter when he saw a newspaper article about the sanctions motion…Wood is not credible…. Notably, while Wood stated at the July 12 hearing that he only learned about the motions seeking sanctions against him when he read about it in a newspaper article, Wood suggests in his supplemental brief that he in fact learned of his purported involvement in the lawsuit when he received a call from one of the attorneys in this matter in mid- to late-June 2021, alerting him to the Court’s order requiring him to appear at the hearing on the sanctions motions.… He claims that he was never served with the City’s motion for sanctions; however, counsel for the City represents that the motion was sent to Wood via e-mail and regular mail…. Wood asserts in his supplemental brief that he “and his legal assistant have performed a diligent search of all email correspondence as well as U.S. mail at Mr. Wood’s Atlanta office and elsewhere. They have turned up no evidence to indicate they were provided with any Rule 11 notice prior to the filing of the motion.” Yet no affidavit is offered from Wood or his legal assistant to attest to these assertions. And notably, the address listed for Wood on the filings in this matter (and thus where the City’s attorneys mailed items to him) is a post office box, not his firm’s address.… Wood’s social media postings undermine his current assertions, as do his statements in other court proceedings. As discussed during the July 12 hearing, on the day the City e-mailed copies of the Safe Harbor Letter and Safe Harbor Motion to Plaintiffs’ counsel, Wood tweeted a link to an article containing a copy of the motion, stating “[w]hen you get falsely accused by the likes of David Fink and Mark Elias . . . in a propaganda rag like Law & Crime, you smile because you know you are over the target and the enemy is runningscared [sic]!”… On January 5, 2021, the day the City filed the motion, Wood tweeted a link to an article with the motion, stating that it was “unfair” for the City to seek sanctions against him…prior to the July 12 hearing, Wood took credit for filing this lawsuit….Notably, Rohl stated under oath that Wood, along with Powell, “spearheaded” this lawsuit. Though the Court hesitates to rely too much on the assertions of any of Plaintiffs’ attorneys because their positions—as counsel for the City aptly describes—have been like “[s]hifting [s]ands[,]” the Court notes that Rohl’s sworn affidavit was attached to a supplemental brief filed by Plaintiffs’ counsel in response to the City’s motion for sanctions. No member of Plaintiffs’ legal team objected to any part of Rohl’s affidavit….With each new brief filed and opportunity to argue before the Court, Plaintiffs’ attorneys raise a new argument for why they were not adequately served with the City’s Safe Harbor Letter and Safe Harbor Motion. First, in their original response to the motion, Plaintiffs’ counsel argued only that the notice served upon them was deficient because it was not accompanied by the City’s more detailed brief. Then, at the July 12 motion hearing, Wood and Newman suddenly claimed that they had not been served at all with the City’s safe harbor materials. In the supplemental brief filed by Campbell on behalf of Plaintiffs’ counsel Hagerstrom, Haller, Johnson, Kleinhendler, Powell, and Rohl, counsel insinuates that the Rule 11 motion was not properly served pursuant to Rule 5 of the Federal Rules of Civil Procedure, as required under Rule 11(c)(2). (“It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”) In his next filing on behalf of Hagerstrom, Haller, Johnson, Kleinhendler, Powell, and Rohl, Campbell raises two new arguments: (i) the City did not mail a copy of the safe harbor materials to the correct address for Johnson, and (ii) in a footnote of the safe harbor motion, concurrence was only sought from Powell. Newman picked up the same refrain about her address in her supplemental brief. Wood said nothing in his supplemental brief to challenge the address where he was served; however, in his response to the City’s supplemental brief, he claimed for the first time that the zip code used by the City when mailing the safe harbor materials to him was incorrect. However, the addresses used by the City for each of these attorneys, including Wood’s zip code, were the exact addresses provided by Plaintiffs in their filings. The belated argument regarding footnote 1 of the City’s Safe Harbor Motion is frivolous as the Safe Harbor Letter was addressed to all counsel.
3. When the Court turned to Powell and asked whether she told Wood his name was being placed on the pleading, Powell first answered: My view, your honor, is that I did specifically ask Mr. Wood for his permission. I can’t imagine that I would have put his name on any pleading without understanding that he had given me permission to do that. Powell then suggested that perhaps there was “a misunderstanding” between her and Wood….The existence of a misunderstanding seems improbable given that several similar lawsuits seeking to overturn the presidential election results were filed in Georgia, Wisconsin, and Arizona, each bearing the same “Of Counsel” listing for Wood as appears here.
4. Plaintiffs expressly acknowledged in their petition for writ of certiorari to the Supreme Court that “[o]nce the electoral votes are cast, subsequent relief would be pointless,” and “the petition would be moot.”… “Yet, that date came and went with no acknowledgement by Plaintiffs and their counsel to Defendants or this Court,”… on December 14, “three [] [] Plaintiffs were, in their opinion, properly elected as electors” and, Campbell further explained, “[t]hat changed things…Plaintiffs’ attorneys maintain that this lawsuit was no longer moot after December 14 because three Plaintiffs subjectively believed that they had become electors. The attorneys cite no authority supporting the notion that an individual’s “[personal] opinion” that he or she is an elector is sufficient to support the legal position that the individual is in fact an elector. Of course, such a belief is contrary to how electors are appointed in Michigan ….Plaintiffs’ attorneys fail to provide a rational explanation for why this event breathed life into this action…They did not tell this Court that the case would no longer be moot after December 8, despite telling this Court the exact opposite when filing this lawsuit on November 25. And they did not tell the Supreme Court that the case would no longer be moot after December 14, despite telling that Court the exact opposite on December 11. The fact that it was never shared suggests that counsel’s argument as to why the case had to be pursued after December 14 is contrived….Plaintiffs conceded that their claims were moot after December 14. Yet, in the month that followed, Plaintiffs refused to voluntarily dismiss their claims…Notably when the State Defendants sought concurrence in their Motion to Dismiss on December 22, Plaintiffs’ counsel responded that they were “not in a position to respond to [the State Defendants’] request until [the] appeals [before the Sixth Circuit and United States Supreme Court] are decided,” and noted that “[they] do not believe the district court has jurisdiction to consider [the State Defendants’] motion while the case is on appeal.” (Id.) Of course, because neither this Court, the Sixth Circuit, nor the United States Supreme Court had entered a stay—and Plaintiff had not moved for one in any court—this Court retained its jurisdiction to consider the Motion to Dismiss. (“[A]n appeal from an order granting or denying a preliminary injunction does not divest the district court of jurisdiction to proceed with the action on the merits.”) And for some reason, Plaintiffs eventually voluntarily dismissed this lawsuit while it remained on appeal in the Sixth Circuit and Supreme Court, even though they previously refused to concur as to Defendants’ motions to dismiss because it was on appeal in those courts.
5. At the July 12 hearing, Plaintiffs’ counsel pointed for the first time to the Supreme Court’s decision in United States v. Throckmorton, 98 U.S. 61 (1878), as supporting this Court’s authority to take—it seems the attorneys are suggesting—any equitable action in connection with the 2020 presidential election. Apparently Throckmorton’s quotation of the maxim “fraud vitiates everything” is a refrain that has been oft-repeated on social media by those who question the results of the 2020 presidential election and believe Former President Trump should be declared the winner…. (listing Twitter posts that state, among other things, that (i) “[A]ny fraud located . . . constitutes nullification of the presidential contest. This means, Trump wins by default because of the vote switching by Dominion Machines. Look up Throckmorton 1878.”; (ii) “[F]raud will DISQUALIFY Biden completely and mean that Trump will be the winner of all 50 states . . . . There can be no other outcome. ‘Fraud vitiates everything’ US v. Throckmorton . . . .”; (iii) “[F]raud vitities everything. Meaning one state commits voter fraud they all go down! So DJTrump wins the 2020 election.”; and (iv) “Fraud vitiates everything it touches. [THROCKMORTON] . . . . Thus the Biden/Harris ‘swearing in’ is negated, quashed annulled, invalidated, revoked and abrogated.”).) … the case relates to a nineteenth-century land grant and has nothing to do with election law… Of course, the Supreme Court did not hold in Throckmorton that “fraud vitiates everything”; rather, it merely quoted this phrase from a treatise and then held that, in fact, fraud did not justify overturning a federal district court’s 20-year-old decree.
6. To support the allegation that Defendants violated Michigan election laws by accepting “unsecured ballots . . . without any chain of custody,” the Amended Complaint states that Whitney Meyers “observed passengers in cars dropping off more ballots than there were people in the car.” But when the Court asked Plaintiffs’ counsel whether individuals other than the voter can drop off a ballot in Michigan, Campbell answered in the affirmative…. Plaintiffs’ counsel knew or should have known that this conduct did not violate existing state law.
7. The Amended Complaint further claims that Michigan election laws were violated because ballots that lacked postmarks were counted. … When one searches through the unindexed affidavits attached as Exhibit 3 to Plaintiffs’ pleading and eventually locates these affidavits, however, one finds that none of the affiants state that ballots without postmarks were counted. … But when the Court asked Plaintiffs’ attorneys whether Michigan absentee ballots must be received through U.S. mail—and therefore postmarked—to be counted, counsel went on about not being able to “rely on the Secretary of State’s guidance.”… when the City’s counsel stated that ballots are not required to be mailed or postmarked in Michigan—as they “are often handed in by hand”; “[via] boxes in front of clerk’s offices by hand”; and sometimes “right across the desk in the clerk’s office” (id. at Pg ID 5470)—Plaintiffs’ counsel did not object to or refute this recitation of the law.
8. To support the allegation that Defendants “count[ed] ineligible ballots—and in many cases—multiple times,” in violation of Michigan election law, the Amended Complaint cites to several affidavits in which the affiants state that batches of ballots were repeatedly run through the vote tabulation machines. When the Court asked whether Plaintiffs’ counsel inquired as to why a stack of ballots might be run through tabulation machines more than once, Plaintiffs’ counsel did not answer the Court’s question and instead proclaimed that “ballots are not supposed to be put through more than once. Absolutely not. That would violate Michigan law.” But bafflingly, Plaintiffs’ counsel did not offer a cite to the law violated, and counsel did not identify such a law in the Amended Complaint either. However, the affidavit of Christopher Thomas, Senior Advisor to the Detroit City Clerk, filed in Costantino (“Thomas Affidavit”), explained that “ballots are often fed through the high-speed reader more than once” “as a routine part of the tabulation process.” And he detailed a myriad of reasons why this may be necessary, including “if there is a jam in the reader” or “if there is a problem ballot (e.g., stains, tears, stray markings, . . . etc.) in a stack.”41 … Thomas goes on to explain: “To an untrained observer[,] it may appear that the ballot is being counted twice, however, the election worker will have cancelled the appropriate count on the computer screen. Any human error in the process would be identified during the canvass. If not, the number of voters at the absent voter counting board would be dramatically different than the number of counted votes.”
9. Kleinhendler told the Court that it was “completely irrelevant” whether the conduct Plaintiffs claimed was violative of Michigan law was actually unlawful. This is because, counsel argued, the conduct “raise[d] a suspicion” and what was significant was the mere chance for misfeasance to occur. But litigants and attorneys cannot come to federal court asserting that certain acts violate the law based only upon an opportunity for—or counsel and the litigant’s suspicions of—a violation.
10. In light of Plaintiffs’ allegation that Defendants violated the Michigan Election Code by permitting ballots to arrive at the TCF Center “not in sealed ballot boxes,” “without any chain of custody,” and “without envelopes” and because the Amended Complaint does not identify a provision in the Michigan Election Code prohibiting the actions about which Plaintiffs complain, the Court asked Plaintiffs’ attorneys at the July 12 hearing about their understanding regarding Michigan’s ballot-bin requirements. Counsel’s response: “[W]e do not purport to be experts in Michigan’s process,” and, they argued, the affidavit that supported this allegation—that of Daniel Gustafson (“Gustafson Affidavit”)—was copied and pasted from Costantino. These evasive and non-responsive answers to the Court’s direct questions amount to an admission that Plaintiffs’ counsel did not bother to find out what the Michigan Election Code requires, and whether the acts alleged to constitute violations of the Michigan Election Code were actually prohibited….In Costantino—which was decided approximately two weeks before Plaintiffs filed the instant lawsuit—Wayne County Circuit Court Judge Timothy M. Kenny credited the Thomas Affidavit —thereby informing Plaintiffs’ counsel that what Gustafson observed did not in fact violate Michigan Election Code, or at a minimum putting counsel on notice that there was a duty to inquire further. And even if Plaintiffs’ counsel lacked expertise as to the Michigan Election Code, they undoubtedly were required to be familiar enough with its provisions to confirm that the conduct they asserted violated that code in fact did.
11. Second, Plaintiffs’ counsel argued that permitting ballots to be handled and transported in the manner described in the Gustafson Affidavit “raises a suspicion” and “[w]hether [such acts are] required under Michigan law or not[] [is] completely irrelevant.” But the Amended Complaint repeatedly asserts that Defendants violated the Michigan Election Code and Plaintiffs’ state law, Equal Protection, Due Process, and Electors and Elections Clauses claims are based on these alleged violations. And, again, a mere “suspicion” is not enough—this is especially so when neither the litigant nor his or her counsel has bothered to figure out exactly what the law is or what it permits.
12. Plaintiffs’ attorneys argue that they genuinely believed the factual allegations in this lawsuit, and otherwise filed this suit and the accompanying documents in good faith….Of course, an “empty-head” but “pure-heart” does not justify lodging patently unsupported factual assertions…no reasonable attorney would accept the assertions in those reports and affidavits as fact or as support for factual allegations in a pleading when based on such speculation and conjecture. And no reasonable attorney would repeat them as fact or as support for a factual allegation without conducting the due diligence inquiry required under Rule 11(b)…. Plaintiffs’ attorneys further contend that they did more than was required by attaching this “evidence” to their pleadings. True, Plaintiffs were not required to attach evidence to support their factual allegations; but, they did. Therefore, they had an obligation to scrutinize the contents and doing so would have revealed that key factual assertions made in their pleading lacked evidentiary support.
13. Plaintiffs’ attorneys complain that the Court focused on only a limited number of affidavits at the July 12 motion hearing, when more were laced throughout their 960-page Amended Complaint….all of the affidavits the Court references in this Opinion & Order’s Rule 11(b)(3) analysis were in fact the only pieces of evidence offered to support the relevant factual allegation.
14. Plaintiffs’ counsel failed to present any evidence to support their allegation of “illegal double voting.” To support this factual assertion, Plaintiffs pointed to a single piece of “evidence”: the affidavit of Jessy Jacob (“Jacob Affidavit”). That affidavit states in part: “I observed a large number of people who came to the satellite location to vote in-person, but they had already applied for an absentee ballot.”… Jacob does claim that people came to vote in person at the satellite location where she worked who had already applied for an absentee ballot, and that those individuals voted without returning the mailed absentee ballot or signing an affidavit that the ballot had been lost. Michigan law makes it a felony to vote both in person and absentee. Of course, Jacob does not state that these individuals voted in person and absentee. As such, her affidavit in fact does not plausibly support “illegal double voting.” … “An absent voter may vote in person within his or her precinct at an election, notwithstanding that he or she applies for an absent voter ballot and the ballot is mailed or otherwise delivered to the absent voter by the clerk” if, “[b]efore voting in person,” “the absent voter [] return[s] the absent voter ballot.”… Inferences must be reasonable and come from facts proven, not speculation or conjecture.
15. To support the allegation that “unsecured ballots arrived at the TCF Center loading garage, not in sealed ballot boxes, without any chain of custody, and without envelopes, after the 8:00 PM Election Day deadline,” Plaintiffs quote the affidavit of Matt Ciantar (“Ciantar Affidavit”), which is a masterclass on making conjectural leaps and bounds:... What I witnessed and considered that what could be in those bags could be ballots going to the TCF center or coming from the TCF center . . . . When the Court asked Plaintiffs’ attorneys how any of them, as officers of the court, could present this affidavit as factual support of anything alleged in their pleadings and Motion for Injunctive Relief, counsel emphatically argued that “[t]he witness is setting forth exactly what he observed and [the] information that he bases it on. . . . He saw these plastic bags . . . . It is a true affidavit.” The Court accepts that the affidavit is true in that Ciantar memorialized what he saw at the time. But the Court cannot find it reasonable to assert, as Plaintiffs’ attorneys do, that this “shows fraud.”… Absolutely nothing about this affidavit supports the allegation that ballots were delivered to the TCF Center after the Election Day deadline…a document containing the lengthy musings of one dog-walker after encountering a “smiling, laughing” couple delivering bags of unidentified items in no way serves as evidence that state laws were violated or that fraud occurred….Plaintiffs also reference the Gustafson and Meyers Affidavits to support this allegation. For the reasons discussed above, these two affidavits are of little to no evidentiary value.
16. Plaintiffs’ counsel further asserted that “we don’t typically rewrite what an affiant says.” That is good. But, pursuant to their duties as officers of the court, attorneys typically do not offer factual allegations that have no hope of passing as evidentiary support at any stage of the litigation.
17. To support the allegation that Defendants “fraudulently add[ed] tens of thousands of new ballots . . . to the [Qualified Voter File] . . . on November 4, 2020, all or nearly all of which were votes for Joe Biden,” Plaintiffs quote the affidavit of Melissa Carone (“Carone Affidavit”), which describes “facts” that demonstrate no misconduct or malfeasance, and amount to no more than strained and disjointed innuendo of something sinister:… There was [sic] two vans that pulled into the garage of the counting room, one on day shift and one on night shift. These vans were apparently bringing food into the building . . . . I never saw any food coming out of these vans, coincidently it was announced on the news that Michigan had discovered over 100,000 more ballots—not even two hours after the last van left…The Amended Complaint calls this an “illegal vote dump.”… But nothing described by Carone connects the vans to any ballots; nothing connects the illusory ballots to President Biden; and nothing connects the illusory votes for President Biden to the 100,000 ballots “coincidently” announced on the news as “discovered” in Michigan. …And nothing in the affidavit enlightens its reader as to what is meant by “discovered.” …Yet not a single member of Plaintiffs’ legal team spoke with Carone to fill in these speculation-filled gaps before using her affidavit to support the allegation that tens of thousands of votes for President Biden were fraudulently added…. Without engaging in such an inquiry—much less a reasonable one—counsel’s affirmative decision to label the 100,000 ballots discussed on the news—or the illusory ballots theoretically removed from two vans—an “illegal vote dump” serves as a quintessential example of guesswork laced with bad faith.… Kleinhendler emphasized during the hearing that Carone “publicly testified . . . in Michigan about her findings.” It is nonsensical to suggest that supporting a key factual allegation with nothing more than speculation is justified because that speculation was repeated publicly.… Plaintiffs also reference the affidavit of Andrew Sitto (“Sitto Affidavit”) and Robert Cushman (“Cushman Affidavit”) to support this allegation. But as Judge Kenny concluded in Costantino, Sitto’s affidavit is “rife with speculation and guess-work about sinister motives” and he “knew little about the process of the absentee voter counting board activity.” Indeed, the evidentiary value of the Sitto Affidavit is questionable at best. And while the Court does not discuss the Cushman Affidavit in this Opinion and Order, the Court notes that Plaintiffs describe the Carone Affidavit as “the most probative evidence” of the factual allegation at bar.
18. when the Court asked Plaintiffs’ counsel whether an affiant’s observation of a self-described “coincidence” serves as evidentiary support for the allegation that an “illegal vote dump” occurred, Plaintiffs’ counsel appeared to say that it was okay in this case because Ramsland “relied on [the Carone Affidavit] for . . . his statistical analysis” and “an expert can rely on hearsay.” But the problem with the Carone Affidavit does not concern hearsay—it concerns conjecture. And surely Plaintiffs’ attorneys cannot fail to reasonably inquire into an affiant’s speculative statements and thereafter escape their duty to “stop-and-think” before making factual allegations based on the statements, simply because their expert did the same.
19. To support the allegation that Defendants permitted “election workers [to] change votes for Trump and other Republican candidates,” Plaintiffs point to one thing—namely, Articia Bomer’s affidavit (“Bomer Affidavit”): I observed a station where election workers were working on scanned ballots that had issues that needed to be manually corrected. I believe some of these workers were changing votes that had been cast for Donald Trump and other Republican candidates….When the Court asked whether an affiant’s belief that something occurred constitutes evidentiary support for that occurrence, Plaintiffs’ counsel stated: “[I]f you see it, that would certainly help you to form a belief.” The Court then asked: “[D]id anyone inquire as to whether or not [] Bomer actually saw someone change a vote?” The Court was met with silence.… an affiant’s subjective belief that an event occurred does not constitute evidence that the event in fact occurred.
20. When the Court asked whether Plaintiffs’ counsel inquired as to the affidavits copied and pasted from the other cases, Plaintiffs’ counsel dipped and dodged the question and did not disclaim the City’s counsel’s assertions that they did not….“[O]ther lawyers saw it” and “[t]hey believed it to be appropriate for submission to the Court in that circumstance,” Plaintiffs’ attorneys argued. …“[Y]ou’ve got to be able to trust when something has been submitted by counsel because of the oath that we take” knowing that “everybody else within the profession” therefore believes that the attorney’s submission “should have tremendous value.”… This is not okay….“Substituting another lawyer’s judgment for one’s own does not constitute reasonable inquiry.”
21. Powell argued that, even if the plaintiffs “attempt[] to impugn the various declarations as unreliable[] [or] attack the veracity or reliability of the various declarants,” “[l]awyers involved in fast-moving litigation concerning matters of transcendent public importance, who rely on sworn declarations, are entitled to no less protection” than “[j]ournalists [who] usually repeat statements from sources (usually unsworn, often anonymous) on whom they rely for their stories, and sometimes those statements turn out not to be true.” “Journalists”—like attorneys, Powell argued—“must be free to rely on sources they deem to be credible, without being second-guessed by irate public figures who believe that the journalists should have been more skeptical.”… Attorneys are not journalists. It therefore comes as no surprise that Plaintiffs’ attorneys fail to cite a single case suggesting that the two professions share comparable duties and responsibilities.
22. Plaintiffs’ counsel attached Ramsland’s affidavit to their pleadings to support the assertion that hundreds of thousands of illegal votes were injected into Michigan’s election for President. In his affidavit, Ramsland refers to several statistical “red flag[s],” including: (i) reports of 6,000 votes in Antrim County being switched from Former President Trump to President Biden and (ii) 643 precincts in Michigan with voter turn-out exceeding 80% (e.g., 460.51% in Zeeland Charter Township, 215.21% in Grout Township, Gladwin County, and 139.29% in Detroit). However, the State issued a bulletin well before this lawsuit was filed explaining the user error that led to the miscount in Antrim County’s unofficial results, which had been “quickly identified and corrected.” And official election results for Michigan—reporting voter turnout rates vastly lower than the numbers in Ramsland’s affidavit—were published and readily available shortly after the election and well-before his report was filed here. A reasonable attorney, seeing Ramsland’s striking original figures, would inquire into their accuracy or at least question their source. Even the most basic internet inquiry would have alerted Plaintiffs’ counsel to the wildly inaccurate assertions in Ramsland’s affidavit….Ramsland represented data as being from Michigan when, in fact, the townships listed were in Minnesota. Moreover, it was widely publicized before Plaintiffs’ counsel offered Ramsland’s affidavit here that even for the Minnesota locations, Ramsland’s conclusions about over-votes was not supported by official data from the State.
23. Evidence of improper purpose can also be found in their decision to label as “eyewitness testimony” an affidavit that does not state that the affiant saw election workers manually changing votes, especially when opting not to even ask the affiant if she saw such a thing. And still, evidence of bad faith abounds.
24.There is a basis to conclude that Plaintiffs’ legal team asserted the allegations in their pleadings as opinion rather than fact, with the purpose of furthering counsel’s political positions rather than pursuing any attainable legal relief….Powell characterizes her statements and allegations as “vituperative, abusive and inexact” “political speech,” as well as “inherently prone to exaggeration and hyperbole.”… It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact and which were “inexact,” “exaggerate[ed],” and “hyperbole.” Nor is it acceptable to use the federal judiciary as a political forum to satisfy one’s political agenda. Such behavior by an attorney in a court of law has consequences. Although the First Amendment may allow Plaintiffs’ counsel to say what they desire on social media, in press conferences, or on television, federal courts are reserved for hearing genuine legal disputes which are well-grounded in fact and law.
25. The Court pauses to briefly discuss Plaintiffs’ attorneys’ attempt to cloak their conduct in this litigation under First Amendment protection….An attorney’s right to free speech while litigating an action “is extremely circumscribed.”… Attorneys “voluntarily agree[] to relinquish [their] rights to free expression in [] judicial proceeding[s]” and “voluntarily accept[] almost unconditional restraints on [their] personal speech rights” when before a court…. The Court drew Plaintiffs’ counsel’s attention to Mezibov at the motion hearing in response to their repeated refrain that the First Amendment protects them from any sanctions for their conduct in this litigation. Despite doing so and urging counsel to review the Sixth Circuit’s decision, Junttila continued to argue First Amendment protection in her supplemental brief—albeit in a more illogical and incoherent fashion.
26. Plaintiffs’ attorneys attempt to excuse their failure to objectively evaluate their “evidence” because “[they] are not the only individuals who viewed the[] affidavits [attached to their pleadings] as evidence of serious fraud.” They say Former President Trump “susp[ected]” it too, and “millions of [] Americans . . . believed that their president would not intentionally mislead them”. As officers of the court, Plaintiffs’ counsel had an obligation to do more than repeat opinions and beliefs, even if shared by millions. Something does not become plausible simply because it is repeated many times by many people. [This is a lesson that some of the darkest periods of history have taught us.]… Plaintiffs’ counsel did everything in their power to ensure that their bias—that the election was fraudulent, as proclaimed by Former President Trump—was confirmed….this lawsuit was not about vindicating rights in the wake of alleged election fraud. Instead, it was about ensuring that a preferred political candidate remained in the presidential seat despite the decision of the nation’s voters to unseat him.
27. Before the 2020 general election, Powell appears to have been certain that those who did not support Former President Trump already engaged in fraudulent illegal activity. On Election Day, Powell gave an interview during which she described “the many multifaceted efforts the democrats are making to steal the vote,” including “develop[ing] a computer system to alter votes electronically,” spreading the “COVID . . . apocalypse hoax,” and ensuring that “people . . . have not gotten their absentee ballots” even though “they’ve . . . request[ed] them three different times[] and been told they were cancelled.”… Plaintiffs’ attorneys waited until after votes were tallied to file this lawsuit, even though the record suggests that—well in advance of Election Day—they knew or should have known about the things of which they complained….This game of wait-and-see shows that counsel planned to challenge the legitimacy of the election if and only if Former President Trump lost. And if that happened, they would help foster a predetermined narrative making election fraud the culprit. These things—separately, but especially collectively—evince bad faith and improper purpose in bringing this suit.
28. Joshua Merritt is someone whose identity counsel redacted, referring to him only as “Spyder” or “Spider,” and who counsel identified in their pleadings and briefs as “a former electronic intelligence analyst with 305th Military Intelligence” and a “US Military Intelligence expert.” Yet, even after learning that Merritt never completed any intelligence analyst training program with the 305th Military Intelligence Battalion, Plaintiffs’ counsel remained silent as to this fact….Kleinhendler argued during the hearing that Merritt’s “expertise” is based on “his years and years of experience in cyber security as a confidential informant working for the United States Government” —not Merritt’s purported military intelligence training. Clearly this is dishonest. This was not the experience on which Plaintiffs’ attorneys premised Merritt’s expertise in their pleadings and Motion for Injunctive Relief, and Merritt never claims in his declaration that he has “years and years of experience in cyber security as a confidential informant working for the United States Government." … To the extent that Plaintiffs’ attorneys claim that an “affidavit” attached to their reply to the motion to seal includes this assertion, it does not. That “affidavit” is not signed by or associated with anyone, much less someone named Spyder, Spider, or Joshua Merritt. Instead, it was precisely Merritt’s experience as “an electronic intelligence analyst under 305th Military Intelligence” that Plaintiffs’ attorneys presented to convince the Court and the world that he is a reliable expert. Kleinhendler argued during the hearing, however, that he first learned about this inconsistency after the case was dismissed on January 14. “I had no reason to doubt,” Kleinhendler explained. This also is dishonest. First, the City attached an article from the Washington Post to its January 5 motion for sanctions, which at least put Plaintiffs’ counsel on notice that Merritt lacked the expertise they claimed. Yet curiously, during the hearing, when the Court asked if “anyone ask[ed] [Plaintiffs’ counsel] if, or suggest[ed] to [them] that, [Merritt] was not a military intelligence expert,” Kleinhendler, Haller, and Powell said “no” and all other counsel agreed by remaining silent….Kleinhendler further argued that Plaintiffs’ counsel’s assertion that Merritt was a U.S. military intelligence expert was “not technically false” or “technically [] wrong” because “[h]e did spend, from [Kleinhendler’s] understanding, seven months training with the 305th.” The Court is unconvinced by this effort to mischaracterize. Kleinhendler himself admitted that labeling Merritt as a U.S. military intelligence expert is “not [] the full story.”… he nonetheless admits that “[h]ad [he] known in advance [of the January 14 dismissal] that [Merritt] had transferred out, [he] would have made [it] clear.” But this is yet another misrepresentation. As detailed above, by January 5, Kleinhendler knew Merritt never completed the training that formed the basis of his purported expertise. Yet, Kleinhendler did not “make it clear.” Co-counsel for Plaintiffs also had reason to question Merritt’s expertise by no later than January 5. Yet, they remained silent too. Ultimately, Plaintiffs’ counsel’s decision to not make clear “the full story” about Merritt not completing military intelligence training was for the improper purpose of bolstering their star witness’ expertise and misleading the Court, opposing counsel, and the world into believing that Merritt was something that he was not.
29. Plaintiffs’ counsel and their counsel have suggested that this Court’s handling of these proceedings and any resultant decision can be expected based on the President who appointed the undersigned. This is part of a continuing narrative fostered by Plaintiffs’ counsel to undermine the institutions that uphold our democracy. It represents the same bad faith that is at the base of this litigation. To be clear, all federal judges, regardless of which President appoints them, take oaths affirming that they will “faithfully and impartially discharge” their duties, 28 U.S.C. § 453, and uphold and protect the Constitution of the United States, 5 U.S.C. § 3331.
30. None of the allegations in the Amended Complaint contain “specific[ ]” reference to the need for additional factual support from investigation or discovery. And Plaintiffs plead on “information and belief” in only three of the Amended Complaint’s 233-paragraphs. One of those paragraphs does not contain a fact asserted upon information and belief but seems to be concluding that facts asserted elsewhere reflect, upon information and belief, Defendants’ failure to follow proper election protocol; another of those paragraphs relate to when a co-inventor of certain Dominion-related patents joined Dominion’s predecessor; and the other relates to Plaintiffs’ allegation that Defendants failed to post certain absentee ballot information before certain times on Election Day. Plaintiffs have not availed themselves of Rule 11’s allowance for claims that “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery,” except for arguably in the latter two instances.
31. Plaintiffs maintain that the City’s Rule 11 motion is procedurally defective because it seeks “both Rule 11 sanctions and . . . disbarment of attorneys and their referral to state bar associations for disciplinary action.” Plaintiffs note that Rule 11 motions “must be made separately from any other motion[.]” Plaintiffs’ argument is frivolous. The separate-motion requirement is designed only “to prevent [the sanctions request] from being tacked onto or buried in motions on the merits, such as motions to dismiss or for summary judgment.” The City’s request for referral and disbarment are merely the sanctions sought for Plaintiffs’ alleged Rule 11 violations. As indicated above, a “variety of possible sanctions” may be imposed for a Rule 11 violation, including those requested by the City.
32. And for these reasons, this lawsuit is not akin to Brown v. Board of Education, 347 U.S. 483 (1954), as Plaintiffs’ counsel, Powell, baselessly suggested during the July 12 hearing. Yes, attorneys may and should raise difficult and even unpopular issues to urge change in the law where change is needed. But unlike Plaintiffs’ attorneys here, then-attorney Thurgood Marshall had the requisite legal footing on which his clients’ claims were grounded in Brown, and the facts were not based on speculation and conjecture. Brown arose from an undeniable history during which Black Americans were treated as second-class citizens through legalized segregation in the schools of our country. In stark comparison, the present matter is built on fantastical claims and conspiracy theories.
Trump lashes out at Gov. Doug Ducey following certification
Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Fri Sep 03, 2021 5:10 am
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Mon Sep 13, 2021 10:10 am
Hear the calls Trump made as he tried to steal the election
by CNN
Sep 12, 2021
Former President Trump and his inner circle were using all the powers of the presidential office to wage a high-pressure campaign, CNN's Drew Griffin reports -- not to stop the steal but to start it.
by CNN
Sep 12, 2021
Former President Trump and his inner circle were using all the powers of the presidential office to wage a high-pressure campaign, CNN's Drew Griffin reports -- not to stop the steal but to start it.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Fri Sep 17, 2021 8:34 pm
Pence Had to Ask Dan Quayle If American Democracy Should Continue: The former vice president did the right thing, but it’s terrifying how close we came to autocracy
by Peter Wade
Rolling Stone
September 14, 2021 4:37PM ET
The fate of a healthy Democracy does not come down to a phone call with Dan Quayle. But, well, here we are.
According to an upcoming book by Bob Woodward and Robert Costa, in the final days of Trump’s presidency, then-Vice President Mike Pence was struggling to decide whether to honor the votes of the American people or to refuse to certify Joe Biden’s victory over Donald Trump and set off an unprecedented constitutional crisis.
The authors write that Pence sought advice from Dan Quayle, the only living Republican vice president who had been in the position of certifying an election where his ticket was the losing one. And it was Quayle — the same man who has been something of a national punchline for a decade — who talked Pence off the ledge and into doing the right thing.
Trump at the time was frantically trying to find a way to cling to power. He was spreading lies that rampant election fraud took place, pushing election officials in Georgia to undermine their state’s results and pushing the Justice Department to “just say the election was corrupt and leave the rest to me and the [Republican] congressmen.” And he was privately and publicly pressuring Pence.
During their conversation, Quayle said Pence had no wiggle room and told him to certify the election results. “Mike, you have no flexibility on this. None. Zero. Forget it. Put it away,” Quayle told him.
“I know, that’s what I’ve been trying to tell Trump,” Pence responded. “But he really thinks he can. And there are other guys in there saying I’ve got this power.”
Pence then brought up Trump’s allegations of voter fraud and the lawsuits filed by Trump supporters in Arizona attempting to decertify Biden as the winner in the state. “Well, there’s some stuff out in Arizona,” Pence said to Quayle, who immediately shot him down.
“Mike, I live in Arizona,” Quayle said. “There’s nothing out here.”
The book also reveals that Trump ally and former White House senior strategist Steve Bannon was fueling the president’s delusions. According to the authors, Bannon told Trump on December 30th that he and Pence needed to return to D.C. immediately to prepare to “bury Biden” during “the moment for reckoning” on January 6th.
“You’ve got to return to Washington and make a dramatic return today. You’ve got to call Pence off the fucking ski slopes and get him back here today. This is a crisis,” Bannon told the president. “People are going to go, ‘What the fuck is going on here?'” Bannon added. “We’re going to bury Biden on January 6th, fucking bury him.”
After Pence’s call to Quayle, he spoke with Trump in the Oval Office on January 5th — the day before the election certification and Capitol attack — and refused Trump’s orders to stop the certification process. Already, the president’s supporters were gathered in front of the White House. Referring to the protesters, Trump asked Pence: “If these people say you had the power, wouldn’t you want to?”
“I wouldn’t want any one person to have that authority,” Pence said.
To this, Trump replied, “But wouldn’t it be almost cool to have that power?”
“No,” Pence said, according to the book. “I’ve done everything I could and then some to find a way around this. It’s simply not possible.”
It was then, the authors say, Trump began to shout. “No, no, no! You don’t understand, Mike. You can do this. I don’t want to be your friend anymore if you don’t do this,” said Trump, who, by chronology, is an adult.
Trump’s anger continued into the next morning when he called Pence to again apply pressure. “If you don’t do it, I picked the wrong man four years ago,” Trump said, then added, angrily and defeatedly, “You’re going to wimp out.”
According to the book, Pence wasn’t the only person in the White House who was desperately trying to contain Trump as he became increasingly unhinged after the election. Gen. Mark A. Milley, Chairman of the Joint Chiefs, was also scrambling trying to prevent a nuclear war because he was worried the president would “go rogue” and launch nuclear weapons at China unprovoked.
On some level, Pence deserves credit for ultimately doing the right thing, even if it meant not getting to be Trump’s BFF4eva. On another level, it’s rough that he had to chew it over with anyone. Pence’s early career had an awful lot of talk about being a “constitutional conservative,” and we’re pretty sure there’s nothing in the Constitution that says the losing candidate gets to stay in office if he really, really wants to.
*****************************
Mike Pence Sought Way To Hand Election To Trump Claims Book
Sep 14, 2021
by Peter Wade
Rolling Stone
September 14, 2021 4:37PM ET
The fate of a healthy Democracy does not come down to a phone call with Dan Quayle. But, well, here we are.
According to an upcoming book by Bob Woodward and Robert Costa, in the final days of Trump’s presidency, then-Vice President Mike Pence was struggling to decide whether to honor the votes of the American people or to refuse to certify Joe Biden’s victory over Donald Trump and set off an unprecedented constitutional crisis.
The authors write that Pence sought advice from Dan Quayle, the only living Republican vice president who had been in the position of certifying an election where his ticket was the losing one. And it was Quayle — the same man who has been something of a national punchline for a decade — who talked Pence off the ledge and into doing the right thing.
Trump at the time was frantically trying to find a way to cling to power. He was spreading lies that rampant election fraud took place, pushing election officials in Georgia to undermine their state’s results and pushing the Justice Department to “just say the election was corrupt and leave the rest to me and the [Republican] congressmen.” And he was privately and publicly pressuring Pence.
During their conversation, Quayle said Pence had no wiggle room and told him to certify the election results. “Mike, you have no flexibility on this. None. Zero. Forget it. Put it away,” Quayle told him.
“I know, that’s what I’ve been trying to tell Trump,” Pence responded. “But he really thinks he can. And there are other guys in there saying I’ve got this power.”
Pence then brought up Trump’s allegations of voter fraud and the lawsuits filed by Trump supporters in Arizona attempting to decertify Biden as the winner in the state. “Well, there’s some stuff out in Arizona,” Pence said to Quayle, who immediately shot him down.
“Mike, I live in Arizona,” Quayle said. “There’s nothing out here.”
The book also reveals that Trump ally and former White House senior strategist Steve Bannon was fueling the president’s delusions. According to the authors, Bannon told Trump on December 30th that he and Pence needed to return to D.C. immediately to prepare to “bury Biden” during “the moment for reckoning” on January 6th.
“You’ve got to return to Washington and make a dramatic return today. You’ve got to call Pence off the fucking ski slopes and get him back here today. This is a crisis,” Bannon told the president. “People are going to go, ‘What the fuck is going on here?'” Bannon added. “We’re going to bury Biden on January 6th, fucking bury him.”
After Pence’s call to Quayle, he spoke with Trump in the Oval Office on January 5th — the day before the election certification and Capitol attack — and refused Trump’s orders to stop the certification process. Already, the president’s supporters were gathered in front of the White House. Referring to the protesters, Trump asked Pence: “If these people say you had the power, wouldn’t you want to?”
“I wouldn’t want any one person to have that authority,” Pence said.
To this, Trump replied, “But wouldn’t it be almost cool to have that power?”
“No,” Pence said, according to the book. “I’ve done everything I could and then some to find a way around this. It’s simply not possible.”
It was then, the authors say, Trump began to shout. “No, no, no! You don’t understand, Mike. You can do this. I don’t want to be your friend anymore if you don’t do this,” said Trump, who, by chronology, is an adult.
Trump’s anger continued into the next morning when he called Pence to again apply pressure. “If you don’t do it, I picked the wrong man four years ago,” Trump said, then added, angrily and defeatedly, “You’re going to wimp out.”
According to the book, Pence wasn’t the only person in the White House who was desperately trying to contain Trump as he became increasingly unhinged after the election. Gen. Mark A. Milley, Chairman of the Joint Chiefs, was also scrambling trying to prevent a nuclear war because he was worried the president would “go rogue” and launch nuclear weapons at China unprovoked.
On some level, Pence deserves credit for ultimately doing the right thing, even if it meant not getting to be Trump’s BFF4eva. On another level, it’s rough that he had to chew it over with anyone. Pence’s early career had an awful lot of talk about being a “constitutional conservative,” and we’re pretty sure there’s nothing in the Constitution that says the losing candidate gets to stay in office if he really, really wants to.
*****************************
Mike Pence Sought Way To Hand Election To Trump Claims Book
Sep 14, 2021
Excerpt from "Peril"
by Bob Woodard and Robert Costa
In late December, Pence phoned former vice president Dan Quayle. At 74, the once boyish looking Quayle was living the private, golf-playing life he loved in Arizona. The two men shared a unique profile: Indiana Republicans who had become vice president.
Pence wanted advice. Despite the Electoral College casting its ballots for Biden on December 14, Trump was convinced that Pence could throw the election to Trump on January 6, when Congress certified the final count.
Pence explained to his fellow Indianan that Trump was pressuring him to intervene to ensure Biden would not secure the needed 270 votes during the certification and push the election to a vote in the House of Representatives.
If thrown to the House, there was a twist. And Trump was fixated on the twist, Pence said. It was the provision that could keep Trump in power. While the Democrats held the current House majority, the 12th Amendment of the Constitution stated the voting on a contested election would not be done by a simple majority vote.
Instead, the amendment states that the election vote would be counted in blocs of state delegations, with one vote per state ...
Republicans now controlled more delegations in the House of Representatives, meaning Trump would likely win if the chamber ended up deciding the victor. Quayle thought Trump's suggestion was preposterous and dangerous ....
Trump's effort to cajole Pence was a dark, Rube Goldberg-like fantasy, Quayle believed, and could precipitate a constitutional crisis. "Mike, you have no flexibility on this. None. Zero. Forget it. Put it away," Quayle said.
"I know, that's what I've been trying to tell Trump," Pence said. "But he really thinks he can. And there are other guys in there saying I've got this power. I've --"
Quayle interrupted him.
"You don't, just stop it," he said.
Pence pressed again. It was easy for Quayle to make a blanket statement from political winter. He wanted to know, veep to veep, whether there was even a glimmer of light, legally and constitutionally, to perhaps put a pause on the certification if there were ongoing court cases and legal challenges.
"Forget it," Quayle repeated.
Pence finally agreed acting to overturn the election would be antithetical to his traditional view of conservatism. One man could not effectively throw the election to the House of Representatives.
Quayle told Pence to let it go.
"Mike, don't even talk about it," he said.
Pence paused.
"You don't know the position I'm in," he said.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Wed Sep 22, 2021 11:45 pm
More Evidence of Trump Crimes Revealed: John Eastman 6-Point-Plan to Overturn Election Results
by Glenn Kirschner
Sep 21, 2021
Multiple stories broke over the past 24 hours providing yet more evidence of Trump's criminal attempt to overturn the election results.
First, CNN reported that a Trump lawyer named John Eastman drafted a 6-point-plan to unconstitutionally overture the election results. Trump pressed Vice President Mike Pence to "listen to John" and refuse to certify Joe Biden the winner.
Second, the New York Times reported that an internal Trump campaign memo had concluded that the election fraud claims later made in fraudulent court cases filed by Sydney Powell and Rudy Giuliani were "untrue." Yet, even knowing the claims were baseless, the Trump lawyers went on the push the election lies.
Here is what the Department of Justice should do with this ADDITIONAL evidence of the election crimes committed by Trump and his co-conspirators.
*******************
Six-point-plan to unconstitutionally overture the election results ("Eastman Memo"
by John Eastman
January 6 scenario
7 states have transmitted dual slates of electors to the President of the Senate.
The 12th Amendment merely provides that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” There is very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes (as Adams and Jefferson did while Vice President, regarding their own election as President), and all the Members of Congress can do is watch.
The Electoral Count Act, which is likely unconstitutional, provides:
This is the piece that we believe is unconstitutional. It allows the two houses, “acting separately,” to decide the question, whereas the 12th Amendment provides only for a joint session. And if there is disagreement, under the Act the slate certified by the “executive” of the state is to be counted, regardless of the evidence that exists regarding the election, and regardless of whether there was ever fair review of what happened in the election, by judges and/or state legislatures.
So here’s the scenario we propose:
1. VP Pence, presiding over the joint session (or Senate Pro Tempore Grassley, if Pence recuses himself), begins to open and count the ballots, starting with Alabama (without conceding that the procedure, specified by the Electoral Count Act, of going through the States alphabetically is required).
2. When he gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States. This would be the first break with the procedure set out in the Act.
3. At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment -- is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.
4. Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the “the votes shall be taken by states, the representation from each state having one vote . . . .” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.
5. One last piece. Assuming the Electoral Count Act process is followed and, upon getting the objections to the Arizona slates, the two houses break into their separate chambers, we should not allow the Electoral Count Act constraint on debate to control. That would mean that a prior legislature was determining the rules of the present one — a constitutional no-no (as Tribe has forcefully argued). So someone – Ted Cruz, Rand Paul, etc. – should demand normal rules (which includes the filibuster). That creates a stalemate that would give the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.
6. The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session or from the Court. Let the other side challenge his actions in court, where Tribe (who in 2001 conceded the President of the Senate might be in charge of counting the votes) and others who would press a lawsuit would have their past position -- that these are non-justiciable political questions – thrown back at them, to get the lawsuit dismissed. The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.
**************************
Memo shows Trump lawyer's six-step plan for Pence to overturn the election
by Jamie Gangel and Jeremy Herb
CNN
Updated 5:39 PM ET, Tue September 21, 2021
Washington (CNN) A conservative lawyer working with then-President Donald Trump's legal team tried to convince then-Vice President Mike Pence that he could overturn the election results on January 6 when Congress counted the Electoral College votes by throwing out electors from seven states, according to the new book "Peril" from Washington Post journalists Bob Woodward and Robert Costa.
The scheme put forward by controversial lawyer John Eastman was outlined in a two-page memo obtained by the authors for "Peril," and which was subsequently obtained by CNN. The memo, which has not previously been made public, provides new detail showing how Trump and his team tried to persuade Pence to subvert the Constitution and throw out the election results on January 6.
The effort to sway Pence was just one of several behind-the-scenes attempts that Trump's team undertook ahead of January 6 in a desperate bid to overturn the 2020 election loss, after dozens of lawsuits were thrown out of the courts. "Peril," which will be released Tuesday, details how Eastman's memo was sent to GOP Sen. Mike Lee of Utah and how Trump attorney Rudy Giuliani tried to convince fellow Republican Sen. Lindsey Graham of South Carolina of election fraud. But both Lee and Graham scoffed at the arguments and found they had no merit.
"You might as well make your case to Queen Elizabeth II. Congress can't do this. You're wasting your time," Lee said to Trump's lawyers trying to overturn the results in Georgia, according to the book.
The Eastman memo laid out a six-step plan for Pence to overturn the election for Trump, which included throwing out the results in seven states because they allegedly had competing electors. In fact, no state had actually put forward an alternate slate of electors -- there were merely Trump allies claiming without any authority to be electors.
Under Eastman's scheme, Pence would have declared Trump the winner with more Electoral College votes after the seven states were thrown out, at 232 votes to 222. Anticipating "howls" from Democrats protesting the overturning of the election, the memo proposes, Pence would instead say that no candidate had reached 270 votes in the Electoral College. That would throw the election to the House of Representatives, where each state would get one vote. Since Republicans controlled 26 state delegations, a majority could vote for Trump to win the election.
The plan was first proposed to Pence when Eastman was with Trump in the Oval Office on January 4, during one of Trump's attempts to convince Pence that he had the authority to stop the certification of the election.
"You really need to listen to John. He's a respected constitutional scholar. Hear him out," Trump said to Pence at that meeting, Woodward and Costa write in "Peril."
In the memo, Eastman went so far as to suggest Pence should take action without warning.
"The main thing here is that Pence should do this without asking for permission -- either from a vote of the joint session or from the Court," Eastman wrote. "The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind."
In the end, Pence didn't go along with Eastman's scheme, concluding that the Constitution did not give him any power beyond counting the Electoral College votes. He did his own consultations before January 6, according to the book, reaching out to former Vice President Dan Quayle and the Senate parliamentarian, who were both clear in telling him he had no authority beyond counting the votes.
When Pence refused to intervene, Trump turned on his vice president, attacking him on Twitter even as the insurrection at the Capitol was unfolding on January 6.
The memo could be of interest to the House select committee now investigating the January 6 attack on the Capitol, which recently requested documents from the National Archives that specifically included communications involving Eastman.
"It shows intent, a sophisticated plan, a blueprint to illegally and unconstitutionally overturn and steal the election" by Trump and his team based on false and misleading information and legal arguments, a source familiar with the investigation told CNN.
'Lee's head was spinning'
Eastman spoke at the January 6 rally that preceded the attack on the Capitol. He retired from his position as a professor at Chapman University a week after January 6, which occurred amid protests from faculty at the Southern California university over his participation in Trump's efforts to overturn the election.
Eastman told the Washington Post that his memo merely "explored all options that had been proposed." In an interview on Tuesday, Eastman told CNN that the two-page memo had been only a preliminary draft. He provided CNN with a longer six-page memo laying out numerous other scenarios for Pence to follow on January 6. Eastman told CNN that during the January 4 meeting he'd had in the Oval Office with Trump and Pence, he had told Pence he should only delay certifying votes in the seven states, not try to throw the election to Trump.
The reality, however, is that a delay was simply another avenue to stop Biden from taking office.
Eastman said he had told Pence it was an open question whether he had the authority to unilaterally set aside slates of electors, but that it would be "foolish" to exercise that power because state legislatures had not certified the alternate slates put forward by Trump allies.
As part of the efforts of Trump's team to convince Congress not to certify the election, the initial two-page Eastman memo was given to Lee, one of the Senate's top Republican constitutional authorities. At the same time, Giuliani sent multiple memos to Graham trying to convince him that the claims of election fraud coming from Trump's team were legitimate.
The memos show how even some of Trump's closest allies balked at the measures Trump's team was taking behind the scenes to try to overturn his loss to Biden. But while Lee and Graham heard out the cases from Trump's lawyers, they soundly rejected their claims, Woodward and Costa write.
Lee was shocked by the claims the memo was making, since no state had considered, let alone put forward, any alternate slates of electors. "Lee's head was spinning," the authors write. "No such procedure existed in the Constitution, any law or past practice. Eastman had apparently drawn it out of thin air."
Lee also dismissed the Trump team's arguments that it had a case to overturn the election results in Georgia, saying they had to be made in court.
'Third grade'
Woodward and Costa also obtained several memos Giuliani sent to Graham to try to convince him of election fraud in Georgia and other states. CNN has also obtained those memos.
The authors write that on January 2, Giuliani briefed Graham at the White House. Giuliani presented a statistical analysis arguing Biden's win was impossible, but Graham dismissed Giuliani's evidence as too abstract. "Give me some names. You need to put it in writing. You need to show me the evidence," Graham said, according to the book.
Giuliani then sent Graham several memos and affidavits claiming fraud. But when Graham's chief Judiciary Committee counsel Lee Holmes went over the claims, he found they were sloppy, overbearing and "added up to nothing," Woodward and Costa write. "Holmes reported to Graham that the data in the memos were a concoction, with a bullying tone and eighth grade writing."
"Third grade," Graham responded, according to the book. "I can get an affidavit tomorrow saying the world is flat."
Giuliani did not respond to a request for comment.
Trump has continued to push baseless claims that the election was stolen from him. Last week, he sent a new letter to Georgia Secretary of State Brad Raffensperger claiming he should start the process of decertifying the 2020 election.
Criminal investigators in the state have been investigating Trump's efforts to overturn Georgia's 2020 election results, including an infamous call Trump made to Raffensperger in which Trump urged the secretary of state to "find" more than 11,000 votes that Trump needed to win.
Graham also made a phone call to Raffensperger, which is part of the Fulton County district attorney's probe. Graham has said his call was to understand the process of verifying signatures on mail-in ballots.
This story has been updated with a full version of the memo from Eastman.
by Glenn Kirschner
Sep 21, 2021
Multiple stories broke over the past 24 hours providing yet more evidence of Trump's criminal attempt to overturn the election results.
First, CNN reported that a Trump lawyer named John Eastman drafted a 6-point-plan to unconstitutionally overture the election results. Trump pressed Vice President Mike Pence to "listen to John" and refuse to certify Joe Biden the winner.
Second, the New York Times reported that an internal Trump campaign memo had concluded that the election fraud claims later made in fraudulent court cases filed by Sydney Powell and Rudy Giuliani were "untrue." Yet, even knowing the claims were baseless, the Trump lawyers went on the push the election lies.
Here is what the Department of Justice should do with this ADDITIONAL evidence of the election crimes committed by Trump and his co-conspirators.
*******************
Six-point-plan to unconstitutionally overture the election results ("Eastman Memo"
by John Eastman
January 6 scenario
7 states have transmitted dual slates of electors to the President of the Senate.
The 12th Amendment merely provides that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” There is very solid legal authority, and historical precedent, for the view that the President of the Senate does the counting, including the resolution of disputed electoral votes (as Adams and Jefferson did while Vice President, regarding their own election as President), and all the Members of Congress can do is watch.
The Electoral Count Act, which is likely unconstitutional, provides:
If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.
This is the piece that we believe is unconstitutional. It allows the two houses, “acting separately,” to decide the question, whereas the 12th Amendment provides only for a joint session. And if there is disagreement, under the Act the slate certified by the “executive” of the state is to be counted, regardless of the evidence that exists regarding the election, and regardless of whether there was ever fair review of what happened in the election, by judges and/or state legislatures.
So here’s the scenario we propose:
1. VP Pence, presiding over the joint session (or Senate Pro Tempore Grassley, if Pence recuses himself), begins to open and count the ballots, starting with Alabama (without conceding that the procedure, specified by the Electoral Count Act, of going through the States alphabetically is required).
2. When he gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other States. This would be the first break with the procedure set out in the Act.
3. At the end, he announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States. That means the total number of “electors appointed” – the language of the 12th Amendment -- is 454. This reading of the 12th Amendment has also been advanced by Harvard Law Professor Laurence Tribe (here). A “majority of the electors appointed” would therefore be 228. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as re-elected.
4. Howls, of course, from the Democrats, who now claim, contrary to Tribe’s prior position, that 270 is required. So Pence says, fine. Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the “the votes shall be taken by states, the representation from each state having one vote . . . .” Republicans currently control 26 of the state delegations, the bare majority needed to win that vote. President Trump is re-elected there as well.
5. One last piece. Assuming the Electoral Count Act process is followed and, upon getting the objections to the Arizona slates, the two houses break into their separate chambers, we should not allow the Electoral Count Act constraint on debate to control. That would mean that a prior legislature was determining the rules of the present one — a constitutional no-no (as Tribe has forcefully argued). So someone – Ted Cruz, Rand Paul, etc. – should demand normal rules (which includes the filibuster). That creates a stalemate that would give the state legislatures more time to weigh in to formally support the alternate slate of electors, if they had not already done so.
6. The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session or from the Court. Let the other side challenge his actions in court, where Tribe (who in 2001 conceded the President of the Senate might be in charge of counting the votes) and others who would press a lawsuit would have their past position -- that these are non-justiciable political questions – thrown back at them, to get the lawsuit dismissed. The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.
**************************
Memo shows Trump lawyer's six-step plan for Pence to overturn the election
by Jamie Gangel and Jeremy Herb
CNN
Updated 5:39 PM ET, Tue September 21, 2021
Washington (CNN) A conservative lawyer working with then-President Donald Trump's legal team tried to convince then-Vice President Mike Pence that he could overturn the election results on January 6 when Congress counted the Electoral College votes by throwing out electors from seven states, according to the new book "Peril" from Washington Post journalists Bob Woodward and Robert Costa.
The scheme put forward by controversial lawyer John Eastman was outlined in a two-page memo obtained by the authors for "Peril," and which was subsequently obtained by CNN. The memo, which has not previously been made public, provides new detail showing how Trump and his team tried to persuade Pence to subvert the Constitution and throw out the election results on January 6.
The effort to sway Pence was just one of several behind-the-scenes attempts that Trump's team undertook ahead of January 6 in a desperate bid to overturn the 2020 election loss, after dozens of lawsuits were thrown out of the courts. "Peril," which will be released Tuesday, details how Eastman's memo was sent to GOP Sen. Mike Lee of Utah and how Trump attorney Rudy Giuliani tried to convince fellow Republican Sen. Lindsey Graham of South Carolina of election fraud. But both Lee and Graham scoffed at the arguments and found they had no merit.
"You might as well make your case to Queen Elizabeth II. Congress can't do this. You're wasting your time," Lee said to Trump's lawyers trying to overturn the results in Georgia, according to the book.
The Eastman memo laid out a six-step plan for Pence to overturn the election for Trump, which included throwing out the results in seven states because they allegedly had competing electors. In fact, no state had actually put forward an alternate slate of electors -- there were merely Trump allies claiming without any authority to be electors.
Under Eastman's scheme, Pence would have declared Trump the winner with more Electoral College votes after the seven states were thrown out, at 232 votes to 222. Anticipating "howls" from Democrats protesting the overturning of the election, the memo proposes, Pence would instead say that no candidate had reached 270 votes in the Electoral College. That would throw the election to the House of Representatives, where each state would get one vote. Since Republicans controlled 26 state delegations, a majority could vote for Trump to win the election.
The plan was first proposed to Pence when Eastman was with Trump in the Oval Office on January 4, during one of Trump's attempts to convince Pence that he had the authority to stop the certification of the election.
"You really need to listen to John. He's a respected constitutional scholar. Hear him out," Trump said to Pence at that meeting, Woodward and Costa write in "Peril."
In the memo, Eastman went so far as to suggest Pence should take action without warning.
"The main thing here is that Pence should do this without asking for permission -- either from a vote of the joint session or from the Court," Eastman wrote. "The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind."
In the end, Pence didn't go along with Eastman's scheme, concluding that the Constitution did not give him any power beyond counting the Electoral College votes. He did his own consultations before January 6, according to the book, reaching out to former Vice President Dan Quayle and the Senate parliamentarian, who were both clear in telling him he had no authority beyond counting the votes.
When Pence refused to intervene, Trump turned on his vice president, attacking him on Twitter even as the insurrection at the Capitol was unfolding on January 6.
The memo could be of interest to the House select committee now investigating the January 6 attack on the Capitol, which recently requested documents from the National Archives that specifically included communications involving Eastman.
"It shows intent, a sophisticated plan, a blueprint to illegally and unconstitutionally overturn and steal the election" by Trump and his team based on false and misleading information and legal arguments, a source familiar with the investigation told CNN.
'Lee's head was spinning'
Eastman spoke at the January 6 rally that preceded the attack on the Capitol. He retired from his position as a professor at Chapman University a week after January 6, which occurred amid protests from faculty at the Southern California university over his participation in Trump's efforts to overturn the election.
Eastman told the Washington Post that his memo merely "explored all options that had been proposed." In an interview on Tuesday, Eastman told CNN that the two-page memo had been only a preliminary draft. He provided CNN with a longer six-page memo laying out numerous other scenarios for Pence to follow on January 6. Eastman told CNN that during the January 4 meeting he'd had in the Oval Office with Trump and Pence, he had told Pence he should only delay certifying votes in the seven states, not try to throw the election to Trump.
The reality, however, is that a delay was simply another avenue to stop Biden from taking office.
Eastman said he had told Pence it was an open question whether he had the authority to unilaterally set aside slates of electors, but that it would be "foolish" to exercise that power because state legislatures had not certified the alternate slates put forward by Trump allies.
As part of the efforts of Trump's team to convince Congress not to certify the election, the initial two-page Eastman memo was given to Lee, one of the Senate's top Republican constitutional authorities. At the same time, Giuliani sent multiple memos to Graham trying to convince him that the claims of election fraud coming from Trump's team were legitimate.
The memos show how even some of Trump's closest allies balked at the measures Trump's team was taking behind the scenes to try to overturn his loss to Biden. But while Lee and Graham heard out the cases from Trump's lawyers, they soundly rejected their claims, Woodward and Costa write.
Lee was shocked by the claims the memo was making, since no state had considered, let alone put forward, any alternate slates of electors. "Lee's head was spinning," the authors write. "No such procedure existed in the Constitution, any law or past practice. Eastman had apparently drawn it out of thin air."
Lee also dismissed the Trump team's arguments that it had a case to overturn the election results in Georgia, saying they had to be made in court.
'Third grade'
Woodward and Costa also obtained several memos Giuliani sent to Graham to try to convince him of election fraud in Georgia and other states. CNN has also obtained those memos.
The authors write that on January 2, Giuliani briefed Graham at the White House. Giuliani presented a statistical analysis arguing Biden's win was impossible, but Graham dismissed Giuliani's evidence as too abstract. "Give me some names. You need to put it in writing. You need to show me the evidence," Graham said, according to the book.
Giuliani then sent Graham several memos and affidavits claiming fraud. But when Graham's chief Judiciary Committee counsel Lee Holmes went over the claims, he found they were sloppy, overbearing and "added up to nothing," Woodward and Costa write. "Holmes reported to Graham that the data in the memos were a concoction, with a bullying tone and eighth grade writing."
"Third grade," Graham responded, according to the book. "I can get an affidavit tomorrow saying the world is flat."
Giuliani did not respond to a request for comment.
Trump has continued to push baseless claims that the election was stolen from him. Last week, he sent a new letter to Georgia Secretary of State Brad Raffensperger claiming he should start the process of decertifying the 2020 election.
Criminal investigators in the state have been investigating Trump's efforts to overturn Georgia's 2020 election results, including an infamous call Trump made to Raffensperger in which Trump urged the secretary of state to "find" more than 11,000 votes that Trump needed to win.
Graham also made a phone call to Raffensperger, which is part of the Fulton County district attorney's probe. Graham has said his call was to understand the process of verifying signatures on mail-in ballots.
This story has been updated with a full version of the memo from Eastman.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Wed Sep 22, 2021 11:55 pm
Decertify the ‘Illegitimate’ Election, Says Man Under Investigation for Election Interference: Donald Trump, who lies a lot, tells Georgia officials that “the truth must be allowed to come out”
by Peter Wade
Rolling Stone
September 17, 2021 4:40PM ET
Donald Trump just can’t quit trying to interfere in the 2020 election.
As a criminal investigation moves forward in Georgia into his attempts to overturn the state’s 2020 election results, the former president sent a letter Friday to Secretary of State Brad Raffensperger that calls the election “illegitimate” and asks him to “start the process of decertifying the election… and announce the true winner.”
In the letter, Trump claims — as usual without evidence — that some 43,000 absentee ballot votes from DeKalb County “violated chain of custody rules, making them invalid.” The Washington Post’s Phillip Bump points out, this bogus chain of custody story originated on a pro-Trump, misinformation-spreading website called The Georgia Star News, which Bump says is “part of a group of sites established to mimic local news coverage but which largely promotes stories friendly to the right.”
Trump continued his missive, writing, “People do not understand why you and Governor Brian Kemp adamantly refuse to acknowledge the now proven facts, and fight so hard that the election truth not be told.”
Trump’s letter comes at the same time Fulton County District Attorney Fani Willis’s investigation into his election interference is progressing. According to a Daily Beast report, Willis and her investigators have interviewed at least four staff members from the Georgia Secretary of State’s office and obtained documents. But the investigation is still in its beginning stages, and key witnesses, including Kemp and Raffensperger, have not yet been interviewed.
“What I can tell you is that the Trump investigation is ongoing,” Willis told reporters this week, according to CNN. “As a district attorney, I do not have the right to look the other way on any crime that may have happened in my jurisdiction. We have a team of lawyers that is dedicated to that, but my number one priority is to make sure that we keep violent offenders off the street.”
The Fulton County DA is not just looking into the former president’s actions. She is investigating Trump allies Sen. Lindsay Graham (R-S.C.), who placed a call to Raffensperger asking him to use his power to throw out mail-in ballots, and Rudy Giuliani, who like the president, is also under investigation for lying a lot about the election.
by Peter Wade
Rolling Stone
September 17, 2021 4:40PM ET
Donald Trump just can’t quit trying to interfere in the 2020 election.
As a criminal investigation moves forward in Georgia into his attempts to overturn the state’s 2020 election results, the former president sent a letter Friday to Secretary of State Brad Raffensperger that calls the election “illegitimate” and asks him to “start the process of decertifying the election… and announce the true winner.”
In the letter, Trump claims — as usual without evidence — that some 43,000 absentee ballot votes from DeKalb County “violated chain of custody rules, making them invalid.” The Washington Post’s Phillip Bump points out, this bogus chain of custody story originated on a pro-Trump, misinformation-spreading website called The Georgia Star News, which Bump says is “part of a group of sites established to mimic local news coverage but which largely promotes stories friendly to the right.”
Liz Harrington
@realLizUSA
NEW!
President Donald J. Trump's letter to Georgia Secretary of State Brad RaffenspergerSAVE
AMERICA
PRESIDENT DONALD J. TRUMP
September 17, 2021
Letter to Georgia Secretary of State Brad Raffensperger
DONALD J. TRUMP
September 17, 2021
The Honorable Bradford Raffensperger
Secretary of State
Atlanta, Georgia
Dear Secretary Raffensperger,
Large scale Voter Fraud continues to be reported in Georgia. Enclosed is a report of 43,000 Absentee Ballot Votes Counted in DeKalb County that violated the Chain of Custody rules, making them invalid. I would respectfully request that your department check this and, if true, along with many other claims of voter fraud and voter irregularities, start the process of decertifying the Election, or whatever the correct legal remedy is, and announce the true winner. As stated to you previously, the number of false and/or irregular votes is far greater than needed to change the Georgia election result. People do not understand why you and Governor Brian Kemp adamantly refuse to acknowledge the now proven facts, and fight so hard that the election truth not be told. You and Governor Kemp are doing a tremendous disservice to the Great State of Georgia, and to our Nation -- which is systematically being destroyed by an illegitimate president and his administration. The truth must be allowed to come out.
Thank you for your attention to this matter.
Sincerely,
Donald J. Trump
8:22 AM - Sep 17, 2021
Trump continued his missive, writing, “People do not understand why you and Governor Brian Kemp adamantly refuse to acknowledge the now proven facts, and fight so hard that the election truth not be told.”
Trump’s letter comes at the same time Fulton County District Attorney Fani Willis’s investigation into his election interference is progressing. According to a Daily Beast report, Willis and her investigators have interviewed at least four staff members from the Georgia Secretary of State’s office and obtained documents. But the investigation is still in its beginning stages, and key witnesses, including Kemp and Raffensperger, have not yet been interviewed.
“What I can tell you is that the Trump investigation is ongoing,” Willis told reporters this week, according to CNN. “As a district attorney, I do not have the right to look the other way on any crime that may have happened in my jurisdiction. We have a team of lawyers that is dedicated to that, but my number one priority is to make sure that we keep violent offenders off the street.”
The Fulton County DA is not just looking into the former president’s actions. She is investigating Trump allies Sen. Lindsay Graham (R-S.C.), who placed a call to Raffensperger asking him to use his power to throw out mail-in ballots, and Rudy Giuliani, who like the president, is also under investigation for lying a lot about the election.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Mon Sep 27, 2021 10:28 pm
Legal Luminary Reveals He Advised Pence To Ignore ‘How To Coup’ Memo: This memo was trash, and a former federal judge laid it all out for Pence.
by Joe Patrice
Above The Law
September 22, 2021 at 1:13 PM
John Eastman’s six-page primer on word-twisting the Electoral Count Act to suggest that the law vests the Vice President with the power to unilaterally decide who wins presidential elections is getting a lot of attention this week — despite Trump’s efforts to change the topic. That’s understandable considering a prominent Federalist Society figure, Justice Thomas clerk, and law school dean composed a document laying out a hypothetical legal path to subverting the democratic process. Without the benefit of a Florida recount process this time!
But last night, we learned that there was a committed textualist out there who didn’t buy this reading and dutifully advised Mike Pence that John Eastman was wrong — and it was Eastman’s former boss.
Judge J. Michael Luttig doesn’t Tweet very often, but last night he took to the app to lay out his conversations with t
I was honored to advise Vice President Pence that he had no choice on January 6, 2021, but to accept and count the Electoral College votes as they had been cast and properly certified by the states.
— @judgeluttig (@judgeluttig) September 22, 2021
It’s a thorough repudiation of a former clerk’s work, which is no doubt hard for a judge to put out there. But “country over clerkships,” as they say. Well, they don’t because it’s never really come up before, but they can say it now. Thankfully, Judge Luttig had retired from the bench, affording Pence the opportunity to get insights from Eastman’s mentor on the quality of the memo he’d been handed.
But it also raises some fairly frightening questions about just how close the country came to a full-on crisis. We already knew that Pence, who is A LAWYER, turned to former Vice President Dan Quayle — also a lawyer — to discuss the memo. Quayle reportedly told Pence that the theory was nonsense and Pence continued to push back until Quayle had to say, “I do know the position you’re in. I also know what the law is.”
The revelation that Pence — again, a lawyer — consulted with another lawyer who told him the memo was garbage and then still felt the need to talk to a former federal judge about it underscores just how worryingly unsettled Pence’s resolve was. He could tell the strategy was dubious enough to seek out advice, yet seemed willing to keep searching to find anyone willing to give him the answer Trump wanted to hear.
Mercifully, the lawyers he relied upon who actually read these statutes were never going to give him that answer.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
by Joe Patrice
Above The Law
September 22, 2021 at 1:13 PM
John Eastman’s six-page primer on word-twisting the Electoral Count Act to suggest that the law vests the Vice President with the power to unilaterally decide who wins presidential elections is getting a lot of attention this week — despite Trump’s efforts to change the topic. That’s understandable considering a prominent Federalist Society figure, Justice Thomas clerk, and law school dean composed a document laying out a hypothetical legal path to subverting the democratic process. Without the benefit of a Florida recount process this time!
But last night, we learned that there was a committed textualist out there who didn’t buy this reading and dutifully advised Mike Pence that John Eastman was wrong — and it was Eastman’s former boss.
Judge J. Michael Luttig doesn’t Tweet very often, but last night he took to the app to lay out his conversations with t
I was honored to advise Vice President Pence that he had no choice on January 6, 2021, but to accept and count the Electoral College votes as they had been cast and properly certified by the states.
— @judgeluttig (@judgeluttig) September 22, 2021
@judgeluttig
I believe(d) that Professor Eastman was incorrect at every turn of the analysis in his January 2 memorandum, beginning with his claim that there were legitimate, competing slates of electors presented from seven states; continuing to his conclusion that the VP could unilaterally decide not to count the votes from the seven states from which competing slates were allegedly presented; to his determination that the VP himself could decide that the Electoral Count Act of 1887 is unconstitutional and accordingly submit the 2020 Presidential Election for decision only to the House of Representatives, instead of to both Houses of Congress, as provided in the Electoral Count Act; to his recommendation that the VP not consult with the Joint Session of Congress as to whether the election should be submitted to both Houses or only to one; to his urging that the VP not seek decision from the federal courts, including from the Supreme Court; and finally, to his belief that the federal courts and the Supreme Court would decline to decide every one of these fundamental constitutional questions on the grounds that they were non-justiciable political questions; I believ(d) the Supreme Court would have decided each of these issues had they been presented to the Court, which they undoubtedly would have been had the VP proceeded as outlined in the January 2 memorandum.
11:50 PM Sep 21, 2021 Twitter Web App
It’s a thorough repudiation of a former clerk’s work, which is no doubt hard for a judge to put out there. But “country over clerkships,” as they say. Well, they don’t because it’s never really come up before, but they can say it now. Thankfully, Judge Luttig had retired from the bench, affording Pence the opportunity to get insights from Eastman’s mentor on the quality of the memo he’d been handed.
But it also raises some fairly frightening questions about just how close the country came to a full-on crisis. We already knew that Pence, who is A LAWYER, turned to former Vice President Dan Quayle — also a lawyer — to discuss the memo. Quayle reportedly told Pence that the theory was nonsense and Pence continued to push back until Quayle had to say, “I do know the position you’re in. I also know what the law is.”
The revelation that Pence — again, a lawyer — consulted with another lawyer who told him the memo was garbage and then still felt the need to talk to a former federal judge about it underscores just how worryingly unsettled Pence’s resolve was. He could tell the strategy was dubious enough to seek out advice, yet seemed willing to keep searching to find anyone willing to give him the answer Trump wanted to hear.
Mercifully, the lawyers he relied upon who actually read these statutes were never going to give him that answer.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Thu Oct 21, 2021 10:46 am
Claire McCaskill: Contempt Vote Will Test Whether Congress Has Any Power
by Nicolle Wallace
MSNBC
Oct 20, 2021
Former Senator Claire McCaskill and national political reporter for the Washington Post Robert Costa discuss the January 6th committee sending the vote to hold Steve Bannon in contempt to the full House....
by Nicolle Wallace
MSNBC
Oct 20, 2021
Maybe I learned something I didn’t know about one of the privileges of being White: I could literally smash up the United States Capitol! What else? The White House? What else could I do, and nothing would happen to me? Man! I mean, that’s a high bar. Nothing. No terrorism charges. Trespassing, illegal entry, stealing Nancy Pelosi’s mail, stealing Jim Clkyburn’s tablet, his Ipad is gone. That’s a felony.
And then the footage later that night of some of these same protesters – they had a shot of them back at the Willard Hotel smoking cigars and having a good laugh. First of all, if you’re not familiar with the Willard Hotel, it’s maybe the most expensive hotel to stay in in D.C. It’s right across from the White House. Right across from Lafayette Park. It’s right there on the corner on 16th street where it dead ends at Lafayette Park, and there’s the White House right there. And they are sitting there in the – I don’t know if they have a cigar bar or a lounge, or whatever, and they’re smoking cigars, and having a great laugh! Wow!
Willard Intercontinental Hotel
Willard Intercontinental Hotel
-- The Terrorist Attack Is NOT Over, by Michael Moore, Rumble podcast
Former Senator Claire McCaskill and national political reporter for the Washington Post Robert Costa discuss the January 6th committee sending the vote to hold Steve Bannon in contempt to the full House....
[Nicolle Wallace] Is Steve Scaline for or against congressional subpoenas holding water, as a reporter asked him there?
[Robert Costa, The Washington Post, National Political Reporter] Let's step back for a second. With all these partisan shots happening, coming across the bow, from the Republicans and others, what really matters with this Bannon subpoena is not only the power of Congress potentially being diminished if Bannon doesn't end up testifying under oath, but we're not going to have the full story. The Willard Hotel is mentioned by Representative Cheney in her remarks yesterday. January 5th is the day that Trump and his allies push democracy to the brink, coordinating from, just steps from the White House, in a hotel suite, Rudy Giuliani, Jason Miller, Steve Bannon, talking by phone with the President who is pressuring Pence over at the White House, talking to lawmakers, coordinating the message with Conservative allies, this was the day, the eve of the insurrection, to try to make it all happen, to put it in motion. And Bannon, in our reporting, is in that room. And what this Committee clearly wants to figure out under oath is what was being said specifically by Trump to this war room at the Willard, what was being done when they issued a statement in Pence's name late at night saying Pence agreed with the move to push the election to the House, even though Pence did not. There are so many looming questions about why what happens on the 6th gets put into motion. And if you want to answer that, you have to really know what exactly was said by the people at the Willard Hotel and to the President of the United States sitting across the street.
[Nicolle Wallace] It's one of the more vivid scenes that you depict in a book full of vivid scenes, Robert Costa. So let me just follow up and add another name to the mix. I think you for the first time reported this that Bannon talks to Trump about killing the Biden presidency in its crib. You also, I believe, are the first to report on the Eastman memo, which is what was written on paper, the white paper if you will for the coup plot. Talk a little bit more about the premeditated nature, and how January 5 makes clear that January 6 was exactly what they'd planned?
[Robert Costa, The Washington Post, National Political Reporter] When does Bannon talk to Trump? December 30, 2020. That's after they have failed in the courts, and the Electoral College has already said Biden's the winner. The only thing left is certification on the 6th. So disrupting certification on the 6th becomes key. But you can't just disrupt it with some kind of conflict at the Capitol. You need a legal cover, a legal rationale. And so John Eastman enters the scene as someone who says there's a legal rationale for Pence to push it to the House. And he comes up with this idea of alternate electors. And so Bannon, Trump, so many others within the White House say, "That's the play. Let's use this memo as the legal rationale," and give it to Pence and say, "Mike, this is all you have to do. We're giving you a Conservative lawyer's argument for tilting it toward the House." And they needed to create momentum. That's why it's given to Senator Mike Lee of Utah. It's given to others, because they want Conservative buy-in. And it all culminates on the night of the 5th. Total buy-in is necessary so events unfold on the 6th to delay the certification, and eventually push it to the House.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Wed Oct 27, 2021 9:47 pm
Senate Report Reveals More Trump Election Crimes; What Congress Should Do About Witness in Contempt
by Glenn Kirschner
Oct 7, 2021
***********************
Following 8 Month Investigation, Senate Judiciary Committee Releases Report on Donald Trump's Scheme to Pressure DOJ & Overturn the 2020 Election
Durbin: America was only a half-step away from a full-blown constitutional crisis
by Senate Judiciary Committee
October 07, 2021
WASHINGTON – Following an eight-month investigation, the Senate Judiciary Committee today released new testimony and a staff report, “Subverting Justice: How the Former President and his Allies Pressured DOJ to Overturn the 2020 Election.” The report and testimony reveal that we were only a half-step away from a full blown constitutional crisis as President Donald Trump and his loyalists threatened a wholesale takeover of the Department of Justice (DOJ). They also reveal how former Acting Civil Division Assistant Attorney General Jeffrey Clark became Trump’s Big Lie Lawyer, pressuring his colleagues in DOJ to force an overturn of the 2020 election.
The report sheds new light on Trump’s relentless efforts to coopt DOJ into overturning the 2020 election and Clark’s efforts to aid Trump. The Committee’s interim report is the first comprehensive accounting of those efforts, which were even more expansive and troubling than previously reported.
Based on findings from the investigation so far, the Committee has asked the D.C. Bar to open an investigation into Jeffrey Clark’s compliance with applicable rules of professional conduct. These rules include Rule 1.2, which prohibits attorneys from assisting or counseling clients in criminal or fraudulent conduct, and Rule 8.4, which among other things prohibits conduct that seriously interferes with the administration of justice. The Committee is withholding potential findings and recommendations about criminal culpability until the investigation is complete.
U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, released the following statement on today’s report release:
Key takeaways from the Committee’s investigation include:
• Previously-unreleased transcripts of the Committee’s closed-door interviews with three key former senior DOJ officials: former Acting Attorney General Jeff Rosen, former Acting Deputy Attorney General Richard Donoghue, and former U.S. Attorney BJay Pak. These witnesses cooperated with the Committee, and although their testimony was not under oath, they were obligated by 18 U.S.C. § 1001 to tell the truth.
• New details of Donald Trump’s relentless, direct pressure on DOJ’s leadership. This includes at least nine calls and meetings with Rosen and/or Donoghue starting the day former Attorney General Bill Barr announced his resignation and continuing almost until the January 6 insurrection—including near-daily outreach once Barr left DOJ on December 23.
• New details of then-Acting Assistant Attorney General of the Civil Division Jeffrey Clark’s misconduct, including his attempt to induce Rosen into helping Trump’s election subversion scheme by telling Rosen he would decline Trump’s offer to install him in Rosen’s place if Rosen agreed to aid that scheme.
• New details around Trump forcing the resignation of U.S. Attorney Pak because he believed Pak was not doing enough to support his false claims of election fraud in Georgia—and then went outside the line of succession to appoint Bobby Christine as Acting U.S. Attorney because he believed Christine would “do something” about his election fraud claims.
• New details of how, at Barr’s direction, DOJ deviated from decades-long practice meant to avoid inserting DOJ itself as an issue in the election—and instead aggressively pursued false claims of election fraud before votes were certified.
• Confirmation that Mark Meadows asked Rosen to initiate election fraud investigations on multiple occasions, violating longstanding restrictions on White House intervention in DOJ law enforcement matters—and new details about these requests, including that Meadows asked Rosen to meet with Trump’s outside lawyer Rudy Giuliani.
Based on these findings, the interim report makes the following recommendations:
• Congress should strengthen longstanding DOJ and White House policies restricting the circumstances under which DOJ and White House officials can communicate with one another about specific law enforcement matters.
• DOJ should strengthen its longstanding election non-interference policy, which is meant to avoid inserting DOJ as an issue into a pending election.
• The D.C. Bar should scrutinize Clark’s compliance with applicable bar rules.
• The Committee is withholding potential recommendations about criminal culpability and criminal referrals until the investigation is complete.
In January 2021, following a report from The New York Times that detailed a plot between Trump and Clark to use DOJ to further Trump’s efforts to subvert the results of the 2020 presidential election, Durbin led the Democratic members of the Senate Judiciary Committee in a letter to then-Acting Attorney General Monty Wilkinson calling on him to preserve and produce all relevant materials in the DOJ’s possession, custody, or control related to this plot. This kicked off the Committee’s eight-month investigation. The Committee continues to seek records requested from the National Archives and Records Administration, which have not yet been supplied, and continues to pursue interviews with relevant individuals as part of this ongoing investigation.
A link to today’s report is available here.
A link to the transcripts of the Committee’s closed-door interviews with former Acting Attorney General Jeff Rosen, former Acting Deputy Attorney General Richard Donoghue, and former U.S. Attorney BJay Pak is available here.
by Glenn Kirschner
Oct 7, 2021
***********************
Following 8 Month Investigation, Senate Judiciary Committee Releases Report on Donald Trump's Scheme to Pressure DOJ & Overturn the 2020 Election
Durbin: America was only a half-step away from a full-blown constitutional crisis
by Senate Judiciary Committee
October 07, 2021
WASHINGTON – Following an eight-month investigation, the Senate Judiciary Committee today released new testimony and a staff report, “Subverting Justice: How the Former President and his Allies Pressured DOJ to Overturn the 2020 Election.” The report and testimony reveal that we were only a half-step away from a full blown constitutional crisis as President Donald Trump and his loyalists threatened a wholesale takeover of the Department of Justice (DOJ). They also reveal how former Acting Civil Division Assistant Attorney General Jeffrey Clark became Trump’s Big Lie Lawyer, pressuring his colleagues in DOJ to force an overturn of the 2020 election.
The report sheds new light on Trump’s relentless efforts to coopt DOJ into overturning the 2020 election and Clark’s efforts to aid Trump. The Committee’s interim report is the first comprehensive accounting of those efforts, which were even more expansive and troubling than previously reported.
Based on findings from the investigation so far, the Committee has asked the D.C. Bar to open an investigation into Jeffrey Clark’s compliance with applicable rules of professional conduct. These rules include Rule 1.2, which prohibits attorneys from assisting or counseling clients in criminal or fraudulent conduct, and Rule 8.4, which among other things prohibits conduct that seriously interferes with the administration of justice. The Committee is withholding potential findings and recommendations about criminal culpability until the investigation is complete.
U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, released the following statement on today’s report release:
“Today’s report shows the American people just how close we came to a constitutional crisis. Thanks to a number of upstanding Americans in the Department of Justice, Donald Trump was unable to bend the Department to his will. But it was not due to a lack of effort. Donald Trump would have shredded the Constitution to stay in power. We must never allow this unprecedented abuse of power to happen again.”
Key takeaways from the Committee’s investigation include:
• Previously-unreleased transcripts of the Committee’s closed-door interviews with three key former senior DOJ officials: former Acting Attorney General Jeff Rosen, former Acting Deputy Attorney General Richard Donoghue, and former U.S. Attorney BJay Pak. These witnesses cooperated with the Committee, and although their testimony was not under oath, they were obligated by 18 U.S.C. § 1001 to tell the truth.
• New details of Donald Trump’s relentless, direct pressure on DOJ’s leadership. This includes at least nine calls and meetings with Rosen and/or Donoghue starting the day former Attorney General Bill Barr announced his resignation and continuing almost until the January 6 insurrection—including near-daily outreach once Barr left DOJ on December 23.
• New details of then-Acting Assistant Attorney General of the Civil Division Jeffrey Clark’s misconduct, including his attempt to induce Rosen into helping Trump’s election subversion scheme by telling Rosen he would decline Trump’s offer to install him in Rosen’s place if Rosen agreed to aid that scheme.
• New details around Trump forcing the resignation of U.S. Attorney Pak because he believed Pak was not doing enough to support his false claims of election fraud in Georgia—and then went outside the line of succession to appoint Bobby Christine as Acting U.S. Attorney because he believed Christine would “do something” about his election fraud claims.
• New details of how, at Barr’s direction, DOJ deviated from decades-long practice meant to avoid inserting DOJ itself as an issue in the election—and instead aggressively pursued false claims of election fraud before votes were certified.
• Confirmation that Mark Meadows asked Rosen to initiate election fraud investigations on multiple occasions, violating longstanding restrictions on White House intervention in DOJ law enforcement matters—and new details about these requests, including that Meadows asked Rosen to meet with Trump’s outside lawyer Rudy Giuliani.
Based on these findings, the interim report makes the following recommendations:
• Congress should strengthen longstanding DOJ and White House policies restricting the circumstances under which DOJ and White House officials can communicate with one another about specific law enforcement matters.
• DOJ should strengthen its longstanding election non-interference policy, which is meant to avoid inserting DOJ as an issue into a pending election.
• The D.C. Bar should scrutinize Clark’s compliance with applicable bar rules.
• The Committee is withholding potential recommendations about criminal culpability and criminal referrals until the investigation is complete.
In January 2021, following a report from The New York Times that detailed a plot between Trump and Clark to use DOJ to further Trump’s efforts to subvert the results of the 2020 presidential election, Durbin led the Democratic members of the Senate Judiciary Committee in a letter to then-Acting Attorney General Monty Wilkinson calling on him to preserve and produce all relevant materials in the DOJ’s possession, custody, or control related to this plot. This kicked off the Committee’s eight-month investigation. The Committee continues to seek records requested from the National Archives and Records Administration, which have not yet been supplied, and continues to pursue interviews with relevant individuals as part of this ongoing investigation.
A link to today’s report is available here.
A link to the transcripts of the Committee’s closed-door interviews with former Acting Attorney General Jeff Rosen, former Acting Deputy Attorney General Richard Donoghue, and former U.S. Attorney BJay Pak is available here.
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Sat Oct 30, 2021 9:20 am
Chief federal judge in D.C. assails ‘almost schizophrenic’ Jan. 6 prosecutions: ‘The rioters were not mere protesters’
by Rachel Weiner
Washington Post
October 28, 2021 at 5:55 p.m. EDT
CORRECTION: An earlier version of this article misstated the name of a prosecutor who spoke at the hearing. It was Assistant U.S. Attorney Jamie Carter, not Assistant U.S. Attorney Mitra Jafary-Hariri. The article has been corrected.
The chief judge presiding over the federal court in Washington on Thursday unleashed a blistering critique of the Justice Department’s prosecution of Capitol rioters, saying fiery rhetoric about the event’s horror did not match plea offers involving minor charges.
“No wonder parts of the public in the U.S. are confused about whether what happened on January 6 at the Capitol was simply a petty offense of trespassing with some disorderliness, or shocking criminal conduct that represented a grave threat to our democratic norms,” Judge Beryl A. Howell said in court Thursday. “Let me make my view clear: The rioters were not mere protesters.”
While she and other judges have expressed similar concerns before, this was Howell’s first time sentencing a rioter and her first chance to fully air her views and demand answers from prosecutors. She took the opportunity, spending over an hour interrogating prosecutors on the decision to let Tennessee video game developer Jack Jesse Griffith plead guilty to the misdemeanor of parading inside the Capitol.
Howell, who was appointed by President Barack Obama in 2010, also oversaw portions of the investigation into Russian interference in the 2016 election. Before taking the bench, she served as a prosecutor and worked on cybersecurity law in the public and private sector.
Why, she asked, when prosecutors called the riot an “attack on democracy . . . unparalleled in American history,” were Griffith and other participants facing the same charge as nonviolent protesters who routinely disrupt congressional hearings?
“It seems like a bit of a disconnect,” Howell said — “muddled” and “almost schizophrenic.”
The parading charge carries a sentence of at most six months, with no supervised release.
“Is it the government’s view that the members of the mob that engaged in the Capitol attack on January 6 were simply trespassers?” Howell asked incredulously. “Is general deterrence going to be served by letting rioters who broke into the Capitol, overran the police . . . broke into the building through windows and doors . . . resolve their criminal liability through petty offense pleas?”
After asking for probationary sentences in several cases, the government sought a three-month jail sentence for Griffith. Howell questioned what distinguished those cases from this one. Assistant U.S. Attorney Jamie Carter said prosecutors gave some defendants credit for early acceptance of responsibility. Griffith, she added, displayed a lack of remorse after the attack and continued to spread false election claims.
“Probation should not be the norm,” Howell said, but added that Griffith should not be punished more than others who engaged in similar conduct. Instead, she put him on probation for 36 months.
Other federal judges in D.C. have ignored probationary recommendations from prosecutors and imposed jail time in riot cases.
On Thursday, Griffith told the judge his behavior was “truly disgraceful.”
“I am ashamed of the way I acted,” he said. At the time of the break-in, he said, he thought it was a “minor inconvenience” for police, but he now understood they were “crippled by fear and wildly outnumbered.”
Prosecutors also agreed that Griffith, like other misdemeanor defendants, would pay only $500 in restitution. Howell calculated that if everyone charged paid that fine, it would amount to $300,000, while taxpayers are paying $500 million to improve Capitol security in the wake of the attack.
Assistant U.S. Attorney James Pearce said the government was in “somewhat uncharted territory.” The $500 number, he said, came from dividing the cost of repairs to the Capitol — $1.5 million — by the number of people believed to have entered the building — 2,000 to 2,500. Those charged with felonies are asked to pay more, and those charged with misdemeanors less.
The goal, he said, is “to make the victims whole.” Howell shot back that “it doesn’t even come close.”
She said it was also unusual that prosecutors were not asking for defendants to be under court supervision until they paid their fines. “This is the first time I’ve ever had the government ask for a restitution payment and not ask for a term of probation,” she said. “Is it because the government thinks these defendants are more trustworthy?”
It is unclear legally whether a judge can impose a sentence of jail time followed by probation for a petty offense such as parading. Prosecutors argued Howell could, while Griffith’s attorney maintained she had to choose one or the other.
The law is clear that a person can serve a mix of probation and intermittent jail time, prosecutors said. But Howell said it did not seem wise to have defendants going in and out of the prison system during an ongoing pandemic.
“My hands are tied,” Howell said in frustration. “In all my years on the bench, I’ve never been in this position before, and it’s all due to the government, despite calling this the crime of the century, resolving it with a . . . petty offense.”
by Rachel Weiner
Washington Post
October 28, 2021 at 5:55 p.m. EDT
CORRECTION: An earlier version of this article misstated the name of a prosecutor who spoke at the hearing. It was Assistant U.S. Attorney Jamie Carter, not Assistant U.S. Attorney Mitra Jafary-Hariri. The article has been corrected.
The chief judge presiding over the federal court in Washington on Thursday unleashed a blistering critique of the Justice Department’s prosecution of Capitol rioters, saying fiery rhetoric about the event’s horror did not match plea offers involving minor charges.
“No wonder parts of the public in the U.S. are confused about whether what happened on January 6 at the Capitol was simply a petty offense of trespassing with some disorderliness, or shocking criminal conduct that represented a grave threat to our democratic norms,” Judge Beryl A. Howell said in court Thursday. “Let me make my view clear: The rioters were not mere protesters.”
While she and other judges have expressed similar concerns before, this was Howell’s first time sentencing a rioter and her first chance to fully air her views and demand answers from prosecutors. She took the opportunity, spending over an hour interrogating prosecutors on the decision to let Tennessee video game developer Jack Jesse Griffith plead guilty to the misdemeanor of parading inside the Capitol.
Howell, who was appointed by President Barack Obama in 2010, also oversaw portions of the investigation into Russian interference in the 2016 election. Before taking the bench, she served as a prosecutor and worked on cybersecurity law in the public and private sector.
Why, she asked, when prosecutors called the riot an “attack on democracy . . . unparalleled in American history,” were Griffith and other participants facing the same charge as nonviolent protesters who routinely disrupt congressional hearings?
“It seems like a bit of a disconnect,” Howell said — “muddled” and “almost schizophrenic.”
The parading charge carries a sentence of at most six months, with no supervised release.
“Is it the government’s view that the members of the mob that engaged in the Capitol attack on January 6 were simply trespassers?” Howell asked incredulously. “Is general deterrence going to be served by letting rioters who broke into the Capitol, overran the police . . . broke into the building through windows and doors . . . resolve their criminal liability through petty offense pleas?”
After asking for probationary sentences in several cases, the government sought a three-month jail sentence for Griffith. Howell questioned what distinguished those cases from this one. Assistant U.S. Attorney Jamie Carter said prosecutors gave some defendants credit for early acceptance of responsibility. Griffith, she added, displayed a lack of remorse after the attack and continued to spread false election claims.
“Probation should not be the norm,” Howell said, but added that Griffith should not be punished more than others who engaged in similar conduct. Instead, she put him on probation for 36 months.
Other federal judges in D.C. have ignored probationary recommendations from prosecutors and imposed jail time in riot cases.
On Thursday, Griffith told the judge his behavior was “truly disgraceful.”
“I am ashamed of the way I acted,” he said. At the time of the break-in, he said, he thought it was a “minor inconvenience” for police, but he now understood they were “crippled by fear and wildly outnumbered.”
Prosecutors also agreed that Griffith, like other misdemeanor defendants, would pay only $500 in restitution. Howell calculated that if everyone charged paid that fine, it would amount to $300,000, while taxpayers are paying $500 million to improve Capitol security in the wake of the attack.
Assistant U.S. Attorney James Pearce said the government was in “somewhat uncharted territory.” The $500 number, he said, came from dividing the cost of repairs to the Capitol — $1.5 million — by the number of people believed to have entered the building — 2,000 to 2,500. Those charged with felonies are asked to pay more, and those charged with misdemeanors less.
The goal, he said, is “to make the victims whole.” Howell shot back that “it doesn’t even come close.”
She said it was also unusual that prosecutors were not asking for defendants to be under court supervision until they paid their fines. “This is the first time I’ve ever had the government ask for a restitution payment and not ask for a term of probation,” she said. “Is it because the government thinks these defendants are more trustworthy?”
It is unclear legally whether a judge can impose a sentence of jail time followed by probation for a petty offense such as parading. Prosecutors argued Howell could, while Griffith’s attorney maintained she had to choose one or the other.
The law is clear that a person can serve a mix of probation and intermittent jail time, prosecutors said. But Howell said it did not seem wise to have defendants going in and out of the prison system during an ongoing pandemic.
“My hands are tied,” Howell said in frustration. “In all my years on the bench, I’ve never been in this position before, and it’s all due to the government, despite calling this the crime of the century, resolving it with a . . . petty offense.”
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Re: Trump lashes out at Gov. Doug Ducey following certificat
by admin » Mon Nov 01, 2021 2:56 am
Email From Trump Team Lawyer John Eastman Further Proves Conspiracy to Overturn Election Results
by Glenn Kirschner
Oct 31, 2021
John Eastman is the Trump team lawyer who authored and attempted to implement a 6-point plan to deprive Joe Biden of his election win. New reporting shows that Eastman sent an email to an aide to Vice President Mike Pence on January 6 WHILE THE CAPITOL WAS BEING ATTACKED BY TRUMPS' SUPPORTERS, blaming Pence for the attack because he did not block Joe Biden's win. This email directly contradicts Eastman's own attempts to explain away his memo.
The disclosure of this email shows how valuable the documents, call records, visitor logs, etc., that are maintained by the National Archives will become to the House select committees investigation AND to the Department of Justice.
***************************
During Jan. 6 riot, Trump attorney told Pence team the vice president’s inaction caused attack on Capitol
by Josh Dawsey, Jacqueline Alemany, Jon Swaine and Emma Brown
The Washington Post
October 29, 2021 at 10:26 p.m. EDT
Attorney John Eastman, left, with President Donald Trump’s personal attorney Rudolph W. Giuliani, speaks at a rally on the Ellipse in Washington on Jan. 6. (Jim Bourg/Reuters)
As Vice President Mike Pence hid from a marauding mob during the Jan. 6 invasion of the Capitol, an attorney for President Donald Trump emailed a top Pence aide to say that Pence had caused the violence by refusing to block certification of Trump’s election loss.
The attorney, John C. Eastman, also continued to press for Pence to act even after Trump’s supporters had trampled through the Capitol — an attack the Pence aide, Greg Jacob, had described as a “siege” in their email exchange.
“The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so that the American people can see for themselves what happened,” Eastman wrote to Jacob, referring to Trump’s claims of voter fraud.
Eastman sent the email as Pence, who had been presiding in the Senate, was under guard with Jacob and other advisers in a secure area. Rioters were tearing through the Capitol complex, some of them calling for Pence to be executed.
Jacob, Pence’s chief counsel, included Eastman’s emailed remarks in a draft opinion article about Trump’s outside legal team that he wrote later in January but ultimately chose not to publish. The Washington Post obtained a copy of the draft. Jacob wrote that by sending the email at that moment, Eastman “displayed a shocking lack of awareness of how those practical implications were playing out in real time.”
Jacob’s draft article, Eastman’s emails and accounts of other previously undisclosed actions by Eastman offer new insight into the mind-sets of figures at the center of an episode that pushed American democracy to the brink. They show that Eastman’s efforts to persuade Pence to block Trump’s defeat were more extensive than has been reported previously, and that the Pence team was subjected to what Jacob at the time called “a barrage of bankrupt legal theories.”
Eastman confirmed the emails in interviews with The Post but denied that he was blaming Pence for the violence. He defended his actions, saying that Trump’s team was right to exhaust “every legal means” to challenge a result that it argued was plagued by widespread fraud and irregularities.
“Are you supposed to not do anything about that?” Eastman said.
He stood by legal advice he gave Pence to halt Congress’s certification on Jan. 6 to allow Republican state lawmakers to investigate the unfounded fraud claims, which multiple legal scholars have said Pence was not authorized to do.
Vice President Mike Pence exits the House chamber en route to the Senate after objections to the Arizona electoral votes were lodged during a joint session of Congress on Jan. 6. (Amanda Voisard/for The Washington Post)
Eastman said the email saying Pence’s inaction led to the violence was a response to an email in which Jacob told him that his “bull----” legal advice was why Pence’s team was “under siege,” and that Jacob had later apologized.
A person familiar with the emails said Jacob apologized for using profanity but still maintained that Eastman’s advice was “snake oil.” That person, like several others interviewed for this story, spoke on the condition of anonymity to discuss private conversations.
A Trump spokesman did not respond to a request for comment for this article.
The House select committee investigating the Jan. 6 attack has said that it plans to subpoena Eastman as it investigates his role in Trump’s efforts, which included two legal memos in which Eastman outlined how Republicans could deny Joe Biden the White House.
In the days before the attack, Eastman was working to salvage Trump’s presidency out of a “command center” in rooms at the Willard hotel near the White House, alongside such top Trump allies as Rudolph W. Giuliani.
Jacob wrote in his draft article that Eastman and Giuliani were part of a “cadre of outside lawyers” who had “spun a web of lies and disinformation” in an attempt to pressure Pence to betray his oath of office and the Constitution.
Jacob wrote that legal authorities should consider taking action against the attorneys.
“Now that the moment of immediate crisis has passed, the legal profession should dispassionately examine whether the attorneys involved should be disciplined for using their credentials to sell a stream of snake oil to the most powerful office in the world, wrapped in the guise of a lawyer’s advice,” he wrote in the draft.
Robert Costello, a lawyer for Giuliani, said Jacob had a right to his opinion. “This is an opinion piece, and not surprisingly, he agrees with his own opinion,” Costello said.
A bipartisan group of former government officials and legal figures, including two former federal judges, has asked the California bar association to investigate Eastman’s conduct.
Eastman’s memos gave several options for Pence to use the vice president’s ceremonial role of counting electoral college votes to halt Trump’s defeat. Eastman has argued that the 1887 Electoral Count Act is unconstitutional, and that the vice president has power under the 12th Amendment to decide whether electoral votes are valid.
Under the most drastic of the options outlined in the memos, Pence would have rejected electoral votes for Biden from states where Republicans were claiming fraud, making Trump the winner — a proposal that Eastman has more recently tried to disown as a “crazy” suggestion he did not endorse.
Eastman made the case for Pence to act during a meeting in the Oval Office with Trump, Pence, Jacob and Pence’s chief of staff, Marc Short, on the afternoon of Jan. 4, according to two people familiar with the discussions. The meeting was reported in the media soon after. Pence advisers said they had never heard of Eastman before January.
The meeting was called, the people said, because Trump was frustrated that Pence was not acceding to his demands, and wanted the vice president to hear arguments from Eastman, whom he viewed as having more credibility in legal circles than some of Trump’s other legal advisers.
Eastman argued that Pence should at least try the maneuver of not certifying electors on Jan. 6, because it had never been done before, and so had not been ruled on by the courts, one of the people familiar with the discussions said. Eastman told The Post he did not recall making “any such statement.”
Eastman said that, in response to a question from Pence, he said in the meeting that it was an “open question” whether Pence had the ability to unilaterally decide which electoral votes to count.
During a little-noticed radio interview that evening, Eastman said that although it would be politically impossible for a vice president to certify his “favorite slate of electors” without any evidence of fraud, the “level of corruption” in the 2020 vote could not be allowed to stand.
“I think that makes the exercise of the vice president’s power here very compelling,” Eastman said.
In a meeting the following day with Short and Jacob at the Eisenhower Executive Office Building, Eastman began by arguing that Pence should reject Biden electors, according to the two people. He did not share his memos outlining how to stop Biden’s victory with Pence’s team at either the Jan. 4 or the Jan. 5 meetings, according to the people familiar with the discussions. Eastman’s memos were first reported in the book “Peril” by Washington Post reporters Bob Woodward and Robert Costa.
Jacob wrote in his draft article that a Trump lawyer conceded to him in a Jan. 5 meeting that “not a single member of the Supreme Court would support his position,” that“230 years of historical practice were firmly against it,” and that “no reasonable person would create a rule that invested a single individual with unilateral authority to determine the validity of disputed electoral votes for President of the United States.”
The two people familiar with the matter said Eastman was the only lawyer in the Jan. 5 meeting.
By the end of the two-hour meeting, the people said, Eastman had conceded that having Pence reject Biden electors was not a good plan.
Eastman denied to The Post that he made concessions and said he never advocated for Pence to reject the electors outright. “That is false,” he said. “And distorting the conversation, which depends heavily on what scenario was being discussed.”
In telephone calls later on Jan. 5, Eastman proposed to Pence advisers that he take a less drastic option outlined in the memos of “sending it back to the states” for the unfounded fraud claims to be examined. Eastman also suggested on several occasions, according to the people with knowledge of the meetings, that Pence could intervene because the courts would invoke “the political question doctrine” and not intervene.
“But if the courts stayed out of a standoff between the Vice President and Congress over the fate of the presidency, then where would the issue be decided? In the streets?” Jacob wrote in his draft op-ed.
Eastman told The Post: “I did not push for electors to be thrown out, but for the disputes to be referred to state legislatures, as had been requested by key legislators in several states, for assessment of the impact of the acknowledged illegality in the conduct of the election.”
Around 1 p.m. on Jan. 6, as Trump addressed supporters at a rally near the White House, Pence’s office released a letter to Congress stating that he would not block the certification. Thousands of Trump supporters marched to the Capitol and rioted.
“What the lawyers did not tell the crowd — and to the best of my knowledge, never told the president — is that they were pushing an abstract legal theory that had overwhelming drawbacks and limitations,” Jacob wrote in the op ed.
Jacob wrote that Pence never considered a different course of action.
After the unrest began on Jan. 6, Jacob sent an email to memorialize his conversation with Eastman from the day before, according to the two people with knowledge.
After Pence was escorted out of the Senate, Jacob emailed Eastman to criticize the legal advice he had pushed to Pence on stopping certification.
“Thanks to your bull----, we are now under siege,” Jacob wrote, according to Eastman. Eastman, while willing to discuss the email, declined to provide a copy to The Post. One of the other people with knowledge of the matter confirmed the content of Jacob’s email.
That led to Eastman sending the email stating that Pence’s decision led to the “siege.”
The two exchanged further messages in which Jacob apologized for his expletive, but not his critiques, and Eastman said that he had wanted Pence to postpone the count to allow states to investigate, according to Eastman and the two people familiar with the exchange.
That evening, Eastman told Jacob in another email that Pence should still not certify the results, according to Eastman and one of the people familiar with the emails. That email from Eastman came after the rioters had been cleared from the Capitol and Pence had returned to the chair to preside over the proceedings and vowed to continue.
Vice President Mike Pence passes the document certifying Arizona's election to a staffer after it has been challenged by Republicans during the joint session of Congress on Jan. 6. (Bill O'Leary/The Washington Post)
Pence allowed other lawmakers to speak before they returned to counting the votes, and said he wasn’t counting the time from his speech or the other lawmakers against the time allotted in the Electoral Count Act.
Eastman said that this prompted him to email Jacob to say that Pence should not certify the election because he had already violated the Electoral College Act, which Pence had cited as a reason that he could not send the electors back to the states.
“My point was they had already violated the electoral count act by allowing debate to extend past the allotted two hours, and by not reconvening ‘immediately’ in joint session after the vote in the objection,” Eastman told The Post. “It seemed that had already set the precedent that it was not an impediment.”
Eastman, 61, is a veteran conservative legal activist who clerked for Supreme Court Justice Clarence Thomas. A longtime member of the Federalist Society, he has spent much of his legal career fighting same-sex marriage.
He is a senior fellow at the Claremont Institute, a conservative think tank based in Upland, Calif., whose leaders stridently defended Eastman from criticism over his role in Trump’s attempt to overturn the election and attacked the media’s coverage of it.
Eastman was sharply criticized by Democrats in August last year for writing an article for Newsweek that questioned then-Sen. Kamala D. Harris’s eligibility to be vice president on the grounds that her parents were not U.S. citizens when she was born. He said his understanding was that Trump first noticed him arguing against birthright citizenship on Fox News.
Eastman has said that he first made contact with lawyers working on Trump’s election challenges during the weekend after the election in Philadelphia, where he happened to be attending an academic conference. The law firm Jones Day had just withdrawn from representing Trump and, Eastman said in a podcast interview in June, “somebody had heard I was in town and brought me over to the headquarters.”
Eastman’s visit to Trump’s team was brief, but “long enough to catch covid,” he said on the podcast hosted by David Clements, a former New Mexico State University professor who is well known in election-denial circles.
Eastman testified via video about purported fraud to Georgia state senators at a Dec. 3 hearing where Giuliani also spoke. Giuliani said state legislators were given copies of a paper by Eastman that argued they could reject election results and directly appoint electors.
Eastman’s seven-page paper featured theories about voter fraud published by the right-wing blog the Gateway Pundit and an anonymous Twitter user named “DuckDiver19,” according to a copy Eastman shared with The Post.
Eastman has said that Trump asked him to draft a brief calling for the Supreme Court to allow Trump to intervene in a case filed by Texas Attorney General Ken Paxton (R), which sought to block the electoral college votes from four states. Eastman submitted his brief on Dec. 9 and the high court rejected the case two days later.
Eastman was previously a professor of law at Chapman University in Orange, Calif. A week after the Jan. 6 attacks, Chapman President Daniele Struppa announced that Eastman had agreed to retire from the school after what Struppa called a “challenging chapter for Chapman.”
At the time of the Capitol attack, Eastman was on leave from Chapman and serving as a visiting professor at the University of Colorado, which subsequently stripped him of some of his duties there.
by Glenn Kirschner
Oct 31, 2021
John Eastman is the Trump team lawyer who authored and attempted to implement a 6-point plan to deprive Joe Biden of his election win. New reporting shows that Eastman sent an email to an aide to Vice President Mike Pence on January 6 WHILE THE CAPITOL WAS BEING ATTACKED BY TRUMPS' SUPPORTERS, blaming Pence for the attack because he did not block Joe Biden's win. This email directly contradicts Eastman's own attempts to explain away his memo.
The disclosure of this email shows how valuable the documents, call records, visitor logs, etc., that are maintained by the National Archives will become to the House select committees investigation AND to the Department of Justice.
***************************
During Jan. 6 riot, Trump attorney told Pence team the vice president’s inaction caused attack on Capitol
by Josh Dawsey, Jacqueline Alemany, Jon Swaine and Emma Brown
The Washington Post
October 29, 2021 at 10:26 p.m. EDT
Attorney John Eastman, left, with President Donald Trump’s personal attorney Rudolph W. Giuliani, speaks at a rally on the Ellipse in Washington on Jan. 6. (Jim Bourg/Reuters)
As Vice President Mike Pence hid from a marauding mob during the Jan. 6 invasion of the Capitol, an attorney for President Donald Trump emailed a top Pence aide to say that Pence had caused the violence by refusing to block certification of Trump’s election loss.
The attorney, John C. Eastman, also continued to press for Pence to act even after Trump’s supporters had trampled through the Capitol — an attack the Pence aide, Greg Jacob, had described as a “siege” in their email exchange.
“The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so that the American people can see for themselves what happened,” Eastman wrote to Jacob, referring to Trump’s claims of voter fraud.
Eastman sent the email as Pence, who had been presiding in the Senate, was under guard with Jacob and other advisers in a secure area. Rioters were tearing through the Capitol complex, some of them calling for Pence to be executed.
Jacob, Pence’s chief counsel, included Eastman’s emailed remarks in a draft opinion article about Trump’s outside legal team that he wrote later in January but ultimately chose not to publish. The Washington Post obtained a copy of the draft. Jacob wrote that by sending the email at that moment, Eastman “displayed a shocking lack of awareness of how those practical implications were playing out in real time.”
Jacob’s draft article, Eastman’s emails and accounts of other previously undisclosed actions by Eastman offer new insight into the mind-sets of figures at the center of an episode that pushed American democracy to the brink. They show that Eastman’s efforts to persuade Pence to block Trump’s defeat were more extensive than has been reported previously, and that the Pence team was subjected to what Jacob at the time called “a barrage of bankrupt legal theories.”
Eastman confirmed the emails in interviews with The Post but denied that he was blaming Pence for the violence. He defended his actions, saying that Trump’s team was right to exhaust “every legal means” to challenge a result that it argued was plagued by widespread fraud and irregularities.
“Are you supposed to not do anything about that?” Eastman said.
He stood by legal advice he gave Pence to halt Congress’s certification on Jan. 6 to allow Republican state lawmakers to investigate the unfounded fraud claims, which multiple legal scholars have said Pence was not authorized to do.
Vice President Mike Pence exits the House chamber en route to the Senate after objections to the Arizona electoral votes were lodged during a joint session of Congress on Jan. 6. (Amanda Voisard/for The Washington Post)
Eastman said the email saying Pence’s inaction led to the violence was a response to an email in which Jacob told him that his “bull----” legal advice was why Pence’s team was “under siege,” and that Jacob had later apologized.
A person familiar with the emails said Jacob apologized for using profanity but still maintained that Eastman’s advice was “snake oil.” That person, like several others interviewed for this story, spoke on the condition of anonymity to discuss private conversations.
A Trump spokesman did not respond to a request for comment for this article.
The House select committee investigating the Jan. 6 attack has said that it plans to subpoena Eastman as it investigates his role in Trump’s efforts, which included two legal memos in which Eastman outlined how Republicans could deny Joe Biden the White House.
In the days before the attack, Eastman was working to salvage Trump’s presidency out of a “command center” in rooms at the Willard hotel near the White House, alongside such top Trump allies as Rudolph W. Giuliani.
Jacob wrote in his draft article that Eastman and Giuliani were part of a “cadre of outside lawyers” who had “spun a web of lies and disinformation” in an attempt to pressure Pence to betray his oath of office and the Constitution.
Jacob wrote that legal authorities should consider taking action against the attorneys.
“Now that the moment of immediate crisis has passed, the legal profession should dispassionately examine whether the attorneys involved should be disciplined for using their credentials to sell a stream of snake oil to the most powerful office in the world, wrapped in the guise of a lawyer’s advice,” he wrote in the draft.
Robert Costello, a lawyer for Giuliani, said Jacob had a right to his opinion. “This is an opinion piece, and not surprisingly, he agrees with his own opinion,” Costello said.
A bipartisan group of former government officials and legal figures, including two former federal judges, has asked the California bar association to investigate Eastman’s conduct.
Eastman’s memos gave several options for Pence to use the vice president’s ceremonial role of counting electoral college votes to halt Trump’s defeat. Eastman has argued that the 1887 Electoral Count Act is unconstitutional, and that the vice president has power under the 12th Amendment to decide whether electoral votes are valid.
Under the most drastic of the options outlined in the memos, Pence would have rejected electoral votes for Biden from states where Republicans were claiming fraud, making Trump the winner — a proposal that Eastman has more recently tried to disown as a “crazy” suggestion he did not endorse.
Eastman made the case for Pence to act during a meeting in the Oval Office with Trump, Pence, Jacob and Pence’s chief of staff, Marc Short, on the afternoon of Jan. 4, according to two people familiar with the discussions. The meeting was reported in the media soon after. Pence advisers said they had never heard of Eastman before January.
The meeting was called, the people said, because Trump was frustrated that Pence was not acceding to his demands, and wanted the vice president to hear arguments from Eastman, whom he viewed as having more credibility in legal circles than some of Trump’s other legal advisers.
Eastman argued that Pence should at least try the maneuver of not certifying electors on Jan. 6, because it had never been done before, and so had not been ruled on by the courts, one of the people familiar with the discussions said. Eastman told The Post he did not recall making “any such statement.”
Eastman said that, in response to a question from Pence, he said in the meeting that it was an “open question” whether Pence had the ability to unilaterally decide which electoral votes to count.
During a little-noticed radio interview that evening, Eastman said that although it would be politically impossible for a vice president to certify his “favorite slate of electors” without any evidence of fraud, the “level of corruption” in the 2020 vote could not be allowed to stand.
“I think that makes the exercise of the vice president’s power here very compelling,” Eastman said.
In a meeting the following day with Short and Jacob at the Eisenhower Executive Office Building, Eastman began by arguing that Pence should reject Biden electors, according to the two people. He did not share his memos outlining how to stop Biden’s victory with Pence’s team at either the Jan. 4 or the Jan. 5 meetings, according to the people familiar with the discussions. Eastman’s memos were first reported in the book “Peril” by Washington Post reporters Bob Woodward and Robert Costa.
Jacob wrote in his draft article that a Trump lawyer conceded to him in a Jan. 5 meeting that “not a single member of the Supreme Court would support his position,” that“230 years of historical practice were firmly against it,” and that “no reasonable person would create a rule that invested a single individual with unilateral authority to determine the validity of disputed electoral votes for President of the United States.”
The two people familiar with the matter said Eastman was the only lawyer in the Jan. 5 meeting.
By the end of the two-hour meeting, the people said, Eastman had conceded that having Pence reject Biden electors was not a good plan.
Eastman denied to The Post that he made concessions and said he never advocated for Pence to reject the electors outright. “That is false,” he said. “And distorting the conversation, which depends heavily on what scenario was being discussed.”
In telephone calls later on Jan. 5, Eastman proposed to Pence advisers that he take a less drastic option outlined in the memos of “sending it back to the states” for the unfounded fraud claims to be examined. Eastman also suggested on several occasions, according to the people with knowledge of the meetings, that Pence could intervene because the courts would invoke “the political question doctrine” and not intervene.
“But if the courts stayed out of a standoff between the Vice President and Congress over the fate of the presidency, then where would the issue be decided? In the streets?” Jacob wrote in his draft op-ed.
Eastman told The Post: “I did not push for electors to be thrown out, but for the disputes to be referred to state legislatures, as had been requested by key legislators in several states, for assessment of the impact of the acknowledged illegality in the conduct of the election.”
Around 1 p.m. on Jan. 6, as Trump addressed supporters at a rally near the White House, Pence’s office released a letter to Congress stating that he would not block the certification. Thousands of Trump supporters marched to the Capitol and rioted.
“What the lawyers did not tell the crowd — and to the best of my knowledge, never told the president — is that they were pushing an abstract legal theory that had overwhelming drawbacks and limitations,” Jacob wrote in the op ed.
Jacob wrote that Pence never considered a different course of action.
After the unrest began on Jan. 6, Jacob sent an email to memorialize his conversation with Eastman from the day before, according to the two people with knowledge.
After Pence was escorted out of the Senate, Jacob emailed Eastman to criticize the legal advice he had pushed to Pence on stopping certification.
“Thanks to your bull----, we are now under siege,” Jacob wrote, according to Eastman. Eastman, while willing to discuss the email, declined to provide a copy to The Post. One of the other people with knowledge of the matter confirmed the content of Jacob’s email.
That led to Eastman sending the email stating that Pence’s decision led to the “siege.”
The two exchanged further messages in which Jacob apologized for his expletive, but not his critiques, and Eastman said that he had wanted Pence to postpone the count to allow states to investigate, according to Eastman and the two people familiar with the exchange.
That evening, Eastman told Jacob in another email that Pence should still not certify the results, according to Eastman and one of the people familiar with the emails. That email from Eastman came after the rioters had been cleared from the Capitol and Pence had returned to the chair to preside over the proceedings and vowed to continue.
Vice President Mike Pence passes the document certifying Arizona's election to a staffer after it has been challenged by Republicans during the joint session of Congress on Jan. 6. (Bill O'Leary/The Washington Post)
Pence allowed other lawmakers to speak before they returned to counting the votes, and said he wasn’t counting the time from his speech or the other lawmakers against the time allotted in the Electoral Count Act.
Eastman said that this prompted him to email Jacob to say that Pence should not certify the election because he had already violated the Electoral College Act, which Pence had cited as a reason that he could not send the electors back to the states.
“My point was they had already violated the electoral count act by allowing debate to extend past the allotted two hours, and by not reconvening ‘immediately’ in joint session after the vote in the objection,” Eastman told The Post. “It seemed that had already set the precedent that it was not an impediment.”
Eastman, 61, is a veteran conservative legal activist who clerked for Supreme Court Justice Clarence Thomas. A longtime member of the Federalist Society, he has spent much of his legal career fighting same-sex marriage.
He is a senior fellow at the Claremont Institute, a conservative think tank based in Upland, Calif., whose leaders stridently defended Eastman from criticism over his role in Trump’s attempt to overturn the election and attacked the media’s coverage of it.
Eastman was sharply criticized by Democrats in August last year for writing an article for Newsweek that questioned then-Sen. Kamala D. Harris’s eligibility to be vice president on the grounds that her parents were not U.S. citizens when she was born. He said his understanding was that Trump first noticed him arguing against birthright citizenship on Fox News.
Eastman has said that he first made contact with lawyers working on Trump’s election challenges during the weekend after the election in Philadelphia, where he happened to be attending an academic conference. The law firm Jones Day had just withdrawn from representing Trump and, Eastman said in a podcast interview in June, “somebody had heard I was in town and brought me over to the headquarters.”
Eastman’s visit to Trump’s team was brief, but “long enough to catch covid,” he said on the podcast hosted by David Clements, a former New Mexico State University professor who is well known in election-denial circles.
Eastman testified via video about purported fraud to Georgia state senators at a Dec. 3 hearing where Giuliani also spoke. Giuliani said state legislators were given copies of a paper by Eastman that argued they could reject election results and directly appoint electors.
Eastman’s seven-page paper featured theories about voter fraud published by the right-wing blog the Gateway Pundit and an anonymous Twitter user named “DuckDiver19,” according to a copy Eastman shared with The Post.
Eastman has said that Trump asked him to draft a brief calling for the Supreme Court to allow Trump to intervene in a case filed by Texas Attorney General Ken Paxton (R), which sought to block the electoral college votes from four states. Eastman submitted his brief on Dec. 9 and the high court rejected the case two days later.
Eastman was previously a professor of law at Chapman University in Orange, Calif. A week after the Jan. 6 attacks, Chapman President Daniele Struppa announced that Eastman had agreed to retire from the school after what Struppa called a “challenging chapter for Chapman.”
At the time of the Capitol attack, Eastman was on leave from Chapman and serving as a visiting professor at the University of Colorado, which subsequently stripped him of some of his duties there.
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