In an email from Chesebro to Eastman and several others sent on Dec. 31, 2020, Chesebro argued that Thomas would “end up being key” to asking the high court to overturn then-President-elect Joe Biden’s win in contested states, and that they should “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.”
Thomas is the justice who oversees emergency petitions from the circuit court that includes Georgia.
“Realistically, our only chance to get a favorable judicial opinion by Jan. 6, which might hold up the Georgia count in Congress, is from Thomas — do you agree, Prof. Eastman?”
In an email sent hours later, Chesebro reiterated that he viewed “the best shot at holding up the count of a state in Congress” would be to get a case “pending before the Supreme Court by Jan. 5, ideally with something positive written by a judge or justice, hopefully Thomas.”
Days earlier, Chesebro on Christmas Eve morning sent an email to Eastman, Justin Clark, Bruce Marks, and others and put the odds of the court taking up the question and issuing a decision at no more than 5 percent — and of it doing so in Trump’s favor by Jan. 6 at “only 1 percent.”
But Chesebro said the “relevant analysis … is political” and “feeding the impression that the courts lack the courage to fairly and timely consider these complaints, and justifying a political argument on Jan. 6.”
Politico first reported on the contents of the new emails.
Eastman has argued that the set of disputed emails were protected by attorney-client privilege — a bedrock principle of U.S. legal practice that says a lawyer must keep confidential what they are told by their clients, and work product related to their representation. Carter cited a “crime-fraud exception” — including instances in which communications were part of a crime — ruling that “the emails are sufficiently related to and in furtherance of a conspiracy to defraud the United States.”
Eastman clerked for Thomas and has remained in touch with his wife, Virginia “Ginni” Thomas, according to email correspondence obtained by the House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol. At least one of the emails showed Ginni Thomas inviting Eastman to speak on Dec. 8, 2020, to a group of conservative activists to provide an update about election litigation.
Ginni Thomas lobbied state legislators in Arizona and Wisconsin via email, urging them to help overturn Biden’s victory, The Washington Post has previously reported. Neither Ginni nor Clarence Thomas appear to be included on any of the newly released email correspondence and there is no indication in the emails that any of the lawyers directly appealed to Clarence Thomas regarding election litigation.