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Trump’s attorney cited ‘tough fight’ between justices over election prosecution

WASHINGTON — A lawyer advising President Donald J. Trump claimed in an email after Election Day 2020 to preview a “heated tussle” between Supreme Court justices over whether to hear arguments on the president’s efforts to overturn his defeat at the polls, two people briefed on the email said.

The attorney, John Eastman, made the statement during a Dec. 24, 2020, exchange with a Wisconsin attorney and Trump campaign officials about whether to file legal documents they hoped could prompt four judges to agree to hear a Wisconsin election case.

“So the odds are not based on legal merits but on an assessment of the judges’ spines, and I understand there is a heated fight going on,” Mr. Eastman wrote, according to people briefed on the contents of the email. Referring to the process by which at least four judges are needed to take on a case, he added: “For those who are willing to do their duty, we should help them by giving them a Wisconsin cert petition to add to the mixed.”

Wisconsin attorney Kenneth Chesebro responded that “the odds for action before Jan. 6 will become more favorable if the judges begin to fear there will be ‘wild’ chaos on Jan. 6 unless they rule by then, anyway”.

Their exchange came five days after Mr Trump appealed to his supporters to attend a ‘protest’ at the Ellipse near the White House on January 6, 2021, the day Congress would certify the electoral vote tally confirming Joseph R. Biden Jr. Victory. “Be there. Will be wild!” Mr. Trump wrote on Twitter.

The previously unreported exchange is part of a group of emails obtained by the House Select Committee investigating the Jan. 6 riot on Capitol Hill by a mob of Mr. Trump supporters.

Mr. Chesebro’s comment that judges were more open to hearing a case if they feared chaos was striking for its connection to the potential for the kind of mob scene that materialized in the Capitol weeks later. .

And Mr Eastman’s email, if taken at face value, raised the question of how he would have been aware of the internal tensions between the judges over the handling of election cases. Mr Eastman had been clerk to Judge Clarence Thomas.

The committee is also reviewing emails between Mr. Eastman and Virginia Thomas, Judge Thomas’ wife. Ms. Thomas was a staunch supporter of Mr. Trump and, in the run-up to Election Day, sent a barrage of text messages to the Trump White House urging efforts to reverse the result and backed a variety of efforts to keep Mr. Trump in power.

It was not immediately clear when the communications took place between Ms. Thomas and Mr. Eastman or what they discussed. The existence of the emails between Mr. Eastman and Ms. Thomas was reported earlier by the Washington Post.

A federal judge recently ordered Mr. Eastman to turn over to the panel documents from the period after the November 2020 election, when he was meeting with conservative groups to discuss the fight against the election results.

After debating internally whether to seek an interview with Ms Thomas, committee members have said in recent weeks that they do not see her actions as central to plans to overturn the election.

Representative Elaine Luria, a Virginia Democrat and member of the committee, told NBC News last weekend that Ms. Thomas was “not the focus of this investigation.”

But his contact with Mr. Eastman could add a new dimension to the investigation.

A federal judge has already found in a civil case that Mr. Trump and Mr. Eastman “more likely than not” committed two crimes, including a conspiracy to defraud the American people, in their attempts to void the election.

Mr. Chesebro and attorneys for Mr. Eastman and Ms. Thomas did not respond to requests for comment.

News of the exchanges between Mr. Eastman, Mr. Chesebro and campaign lawyers emerged as the House committee prepared for a public hearing on Thursday to present new details about the intense lobbying campaign that Mr. Trump and Mr. Eastman led against Vice President Mike Pence. , which the panel says directly contributed to the violent siege of Congress.

The public hearing, the panel’s third this month, as it outlines the steps Mr Trump has taken to try to overturn the 2020 election, is scheduled for 1 p.m. The committee plans to release documents detailing the threats of violence against Mr Pence, and how the vice president’s security team scrambled to try to shield him from the mob.

The email exchange involving Mr. Eastman and Mr. Chesebro included a request, which appears to have been denied, that the Trump campaign pay for the effort to bring another case to the Supreme Court. In the emails, Mr Chesebro made it clear he did not see the chances of success as good, but he insisted on trying, explaining why he claimed the election was invalid.

Mr Eastman said he and Mr Chesebro ‘have similar minds’ and the legal arguments ‘are strong’, before outlining what he said were the divisions between the judges and the benefits of giving them another chance to deal with an electoral file.

In previous weeks, the court had dismissed two other efforts to review election-related lawsuits brought by Trump allies.

Mr Chesebro then responded, according to people briefed on the exchange: ‘I don’t have the personal insight that John has on which four justices are likely to be most upset about what’s going on in the various states, who might want to jump in, so I have to make it clear that I’m not underestimating John’s estimate.

He went on to say that he agreed that “recording this gives more ammunition to the judges fighting to get the court to intervene.”

“I think the odds of action before January 6 will become more favorable if the judges start to fear there will be ‘wild’ chaos on January 6 unless they rule by then anyway. “, did he declare. “Although this factor could go against us on the merits. The easiest way to quell the chaos would be to reign against us – our side would accept that outcome as legitimate.

Mr. Chesebro concluded: “You miss 100% of the shots you don’t take. A campaign that thinks it has truly won the election would file a petition as long as it is plausible and the resource constraints are not too great.

In the weeks after the election, Mr. Chesebro penned a series of memos supporting a plan to send so-called surrogate voters to Congress for certification. Just over two weeks after Election Day, Mr. Chesebro sent a memo to James Troupis, another Trump campaign lawyer in Wisconsin, outlining a plan to nominate pro-Trump voters in the state, which was won by Mr. Biden. .

Mr. Chesebro also sent an email on Dec. 13, 2020, to Rudolph W. Giuliani, Mr. Trump’s personal attorney who was then leading the legal effort to overturn the election results. In it, he encouraged Mr. Pence to “firmly take the position that he, and he alone, is charged with the constitutional responsibility of not just opening votes, but counting them – including making judgments about what to do in case of conflict.

That idea took root with Mr. Trump, who embarked on a long effort to convince Mr. Pence that he could block or delay congressional certification of Mr. Biden’s Jan. 6 victory.

Thursday’s House committee hearing is expected to feature testimony from J. Michael Luttig, a former conservative judge who told Mr. Pence that Mr. Trump’s pressure for the vice president to unilaterally invalidate the results of the elections was unconstitutional, and that he should not follow the plan.

Also scheduled to appear is Greg Jacob, Mr Pence’s top White House lawyer, who provided the committee with crucial evidence about the role played by Mr Eastman, who conceded in an email exchange with Mr Jacob that his plan to void the election was in “violation” of federal law.

The committee is also expected to release a video of an interview it recorded with Mr Pence’s chief of staff, Marc Short. A day before the mob violence, Mr. Short became so concerned about Mr. Trump’s actions that he presented a warning to a Secret Service agent: the president was going to publicly turn on the vice president, and there could be a security risk to Mr. Pence because of this.

The committee is not expected to post any new emails it received regarding Ms Thomas on Thursday, according to two people familiar with the presentation.

Ms Thomas, known as Ginni, is a conservative political activist who became a close ally of Mr Trump during his presidency. After losing the election, she sent a series of messages to Mr. Trump’s last chief of staff, Mark Meadows, Arizona lawmakers and others pushing for the election to be overturned.

The Jan. 6 panel presented the television hearings as a series of feature-length chapters exposing the various ways Mr. Trump has tried to cling to power. After an initial prime-time hearing that drew more than 20 million viewers, during which the panel sought to establish that the former president was at the center of the conspiracy, investigators focused their second hearing on how which Mr. Trump spread the lie of a theft. election.

The committee is expected to detail some of its findings on the conspiracy involving pro-Trump voters on Thursday. The panel will present evidence that the White House attorney also concluded the vice president had no legal authority to reject legitimate electoral votes for the bogus voters proposed by Mr. Trump’s team.

Investigators will show how Mr. Trump was told his plans were illegal but pursued them anyway, committee aides said.


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