John Eastman also suggested in a newly disclosed batch of emails that getting the case in front of Justice Clarence Thomas would be the most likely route to delaying certification of the 2020 results in Georgia.
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John Eastman appeared onscreen in June during a hearing by the House committee investigating the Jan. 6 attack on the Capitol.
WASHINGTON — A conservative lawyer who was an architect of a plan to keep former President Donald J. Trump in office warned in late December 2020 that if Mr. Trump falsely swore to the courts that he had specific evidence of voter fraud in Georgia, both the president and his lawyers could face prosecution.
“I have no doubt that an aggressive DA or US Atty someplace will go after both the president and his lawyers once all the dust settles on this,” the lawyer, John Eastman, wrote on Dec. 31, 2020, to fellow members of the Trump legal team.
The warning came at a time when some members of Mr. Trump’s legal team were pushing for him to sign a verification document swearing under oath that information in a Georgia lawsuit he filed challenging the results of the 2020 election was true, even though his lawyers were aware the specific allegations were false.
But Mr. Trump ultimately did sign a new verification, which a federal judge in California has said could be evidence of a crime.
He did so only after his lawyers added a caveat to the suit, telling the court that the voter fraud figures they used were to be relied upon “only to the extent” that “such information has been provided” to Mr. Trump’s legal team. The suit also stated that such data was subject to “amendment” or “adjustment.”
Mr. Eastman’s warning about the risks of potential prosecution was contained among eight emails a federal judge in California recently ordered released to the House committee investigating the Jan. 6 attack on the Capitol. Mr. Eastman included a link to a cache of the documents in an appeal of that decision.
(The emails contained in the filing dropped lowercase i’s and l’s, which The New York Times has included for readability.)
The emails in question depict internal discussions among the Trump legal team as the lawyers planned out a strategy for how to proceed with their attempts to overturn the results of the 2020 election.
In them, the lawyers focused on adopting a strategy to get their arguments in front of Justice Clarence Thomas. They were aware that, because of how the Supreme Court divides up which justices initially take up emergency appeals from lower courts in various parts of the country, any emergency appeal from Georgia would have been handled by Justice Thomas.
The justice who receives the appeal can issue a short-term stay of the matter until the full court has a chance to consider it.
“We want to frame things so that Thomas could be the one to issue some sort of stay or other circuit justice opinion saying Georgia is in legitimate doubt,” another lawyer working on Mr. Trump’s behalf, Kenneth Chesebro, wrote in a Dec. 31 email to Mr. Eastman.
Mr. Chesebro wrote that persuading Justice Thomas might be “our only chance to get a favorable judicial opinion by Jan. 6, which might hold up the Georgia count in Congress.”
“I think I agree with this,” Mr. Eastman replied.
The latest batch of emails was reported earlier by Politico.
Ultimately, Mr. Trump’s lawyers gained no traction before the Supreme Court, but the emails build on the public record about how they viewed Justice Thomas as most likely the friendliest to their line of argument.
Mr. Eastman conceded during a conversation with Vice President Mike Pence’s top lawyer, Greg Jacob, that his arguments about overturning the election would fail before the Supreme Court, according to Mr. Jacob’s testimony before the Jan. 6 committee.
“If this case got to the Supreme Court, we’d lose 9-0, wouldn’t we?” Mr. Jacob recalled telling Mr. Eastman, according to his interview with the committee. “And he started out at 7 to 2. And I said, ‘Who are the two?’ And he said, ‘Well, I think maybe Clarence Thomas.’ And I said: ‘Really? Clarence Thomas?’ And so we went through a few Thomas opinions and, finally, he acknowledged, ‘Yeah, all right, it would be 9-0.’”
Mr. Eastman was formerly a clerk for Justice Thomas and was in contact with his wife, Virginia Thomas, the conservative activist who pushed lawmakers in several states to try to overturn the election.
Emails previously reviewed by The Times show similar discussions.
In a Dec. 24, 2020, email, Mr. Eastman told other Trump lawyers he was aware of a “heated fight” underway at the Supreme Court, and the chances of the Trump legal team’s success would rely on the “justices’ spines.” (Mr. Eastman has since said he was basing that knowledge on an article he had read.)
Mr. Chesebro replied that the “odds of action before Jan. 6 will become more favorable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.”
The new batch of emails also shows an intense effort to get Mr. Trump to sign the verification statement, spearheaded by Cleta Mitchell, a Trump lawyer, and a scramble after a notary could not be located.
The latest emails were turned over to the House Jan. 6 committee after Judge David O. Carter of the Federal District Court for the Central District of California determined that they contained possible evidence of criminal behavior. Judge Carter has presided over a civil case in which Mr. Eastman has sought to block the committee from getting access to his emails.
“The emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public,” Judge Carter wrote last month.
The committee has fought for months to get access to hundreds of Mr. Eastman’s emails, viewing him as the intellectual architect of plans to subvert the 2020 election, including Mr. Trump’s effort to pressure Mr. Pence to block or delay congressional certification of the Electoral College results on Jan. 6, 2021. The panel has argued that a “crime-fraud exception” pierces the typical attorney-client privilege that often protects communications between lawyers and clients.
The emails in question, which were dated between Nov. 3, 2020, and Jan. 20, 2021, came from Mr. Eastman’s account at Chapman University, where he once served as a law school dean.
In a previous ruling, issued in March, Judge Carter offered a sweeping analysis of how Mr. Trump and Mr. Eastman most likely committed felonies, including obstructing the work of Congress on Jan. 6 and conspiring to defraud the United States.
In June, federal agents seized Mr. Eastman’s phone as part of what appears to be a broad grand jury inquiry into Mr. Trump’s role in intersecting schemes to stay in power, including a plan to create fake slates of pro-Trump electors in states that were won by Joseph R. Biden Jr. A flurry of subpoenas issued by the grand jury, sitting in Washington, named Mr. Eastman and several other lawyers close to Mr. Trump as subjects of interest.
Alan Feuer contributed reporting.