Eastman ultimately argued that Pence could cite uncertified voters to declare the election contested. He could then either send the election to the House of Representatives or delay certifying Joe Biden’s victory long enough to convince state lawmakers to act.
The select committee used Thursday’s 57-page filing to urge a federal judge to grant the panel access to an additional 600 emails that Eastman is shielding from investigators. Eastman claims the documents the committee wants are protected by attorney-client or attorney-work-product privileges, but the select committee argued Thursday that Eastman had not substantiated that claim.
In the filing, written by House Counsel Doug Letter, the select committee pointed to emails between Eastman and prominent figures in Trump’s orbit — Rudy Giuliani, Steve Bannon, Boris Epshteyn and others — as they strategized to keep Trump in power.
The committee argues that Eastman’s effort to portray his work as merely a good-faith attempt to apply constitutional principles crumbles upon closer scrutiny. Eastman, they noted, worked exclusively with Republican-controlled state legislatures in states where Biden won the popular vote.
“[T]this was a results-driven campaign to overturn the outcome of a democratic election,” the panel argued.
According to the select committee filing, Eastman exchanged emails with Giuliani and other pro-Trump lawyers about the Pence plan as early as Dec. 7, 2020. But Eastman’s Jan. 6 theory seemed to hit Trump’s radar again. earlier than that. The select committee showed that Jenna Ellis, a Trump campaign lawyer, forwarded an article written by Eastman – outlining the power of state legislatures to appoint presidential voters – to Trump aide Molly Michael on November 28 2020.
At the heart of Eastman’s effort was a plan to cast pro-Trump activists as “surrogate voters” in states Trump had lost but continued to contest with bogus claims of fraud.
These bogus voters would meet on December 14, 2020 — the day bona fide members of the Electoral College were to gather in state capitols across the country — and vote in a “duel.” Then, under Eastman’s plan, when Congress convened on Jan. 6, 2021, to count the electoral votes — in a Pence-led session — the vice president would pick voters “in a duel” and declare Trump the winner. or postpone the count.
In a Dec. 19 email cited by the select committee, however, Eastman told a colleague that alternates “will be dead when they get to Congress” … “unless those voters get certification from their lawmakers to ‘State”. On Dec. 23, however, Eastman began circulating a version of his now famous memo, claiming that seven states had nominated voters “in a duel.”
“[T]he fact that we have several lists of voters demonstrates the uncertainty of one or the other. That should be enough,” Eastman said in an email that day with Epshteyn, a Trump campaign official.
The select committee also used his record to single out Eastman’s allegation of fraud in the 2020 election, which they note he continues to do to this day. The committee pointed to a Jan. 2, 2021, email with Trump ally and conservative attorney Cleta Mitchell in which she asks Eastman for evidence of fraud she could share with “congressmen and senators, who are now claiming illegal facts and data suffrages.
“What is missing is similar information in other states of the type we have gathered in GA. That’s what we’re asking. Does it exist elsewhere? Mitchell asked.
“No idea. I didn’t even get a chance to check the website link I sent, but I was told it was all assembled there. Isn’t it?” Eastman replied
In another exchange, the select committee cites an email to Giuliani, Bannon and others from an attorney who advised them that a claim that deceased people were voting in Georgia was likely erroneous. On the contrary, the data indicated that only 134 people died before their ballots were received, and more than half of them died within three days of their votes being counted.
“I think that justifies unfortunate timing – many sent in their ballots ahead of time – rather than nefarious activity,” the lawyer said. “I’m bringing this up just so everyone is aware of what the data is really saying.”
The select committee bases much of its case for access to Eastman’s emails on a claim that the attorney failed to establish an attorney-client relationship with nearly everyone involved in the effort, including Trump. Although the judge handling the case, U.S. District Court Judge David Carter, asked Eastman for evidence of any formal legal relationships with the figures he exchanged emails with, Eastman provided no documentation. or contemporaneous evidence, the select committee argued.
That alone, they said, should invalidate his claims of privilege.
Carter indicated that he strongly favored the urgency of the committee’s investigation. He has been reviewing Eastman’s emails over the past few weeks to prepare to decide whether Eastman’s privilege claims are legitimate. But he said he would likely rule on the matter fairly quickly, a pace that fits with the select committee’s plan to begin holding public hearings in early June.