U.S. District Judge David O. Carter ruled that more of Trump lawyer John Eastman’s documents and emails must be turned over to the committee because they pertain to the probable crime and thus are not privileged.
And in doing so, Carter offered a notable account of the plot. He said the “plan to disrupt the Joint Session” of Congress on Jan. 6 — the crime that he says probably was committed — “was fully formed and actionable as early as December 7, 2020.”
The progression of the alleged plot remains somewhat shrouded, given that we don’t know all of what is contained in Eastman’s documents and that the revelation of the details has been piecemeal in media reports and in legal rulings such as Carter’s. But the alleged plot being “fully formed” as early as Dec. 7 would be significant.
The most detail we have comes from Eastman’s memos laying out ways on Jan. 6 to overturn the election. But the first of those memos reportedly was produced in late December. A Dec. 7 date would place the effort beginning significantly earlier. Indeed, it would have begun almost immediately after Eastman formally joined Trump’s legal team on Dec. 6. Formalizing that relationship carried benefits when it came to keeping certain communications and strategizing privileged.
It would also suggest the plot might have predated efforts to create alternative slates of so-called “fake electors” for Trump on Dec. 14 that could be used to replace the official ones appointed for the electoral college and overturn the election. Carter also ordered Eastman to turn over documents related to efforts to meet with a group focused on what state legislatures could do to further the effort.
And, also important, as Politico’s Kyle Cheney noted, Vice President Mike Pence on Dec. 7 asked for a briefing from his legal counsel about his options when it came to certifying electoral college votes. Carter’s ruling would suggest that this requested briefing might have been a response to a “fully formed” plot emerging well before Jan. 6.
Carter doesn’t dwell upon precisely why he says the plot was “fully formed and actionable as early as December 7, 2020.” And that could be interpreted a number of ways. The evidence he cites is Eastman’s forwarding a memo that day that called Jan. 6 a “Hard Deadline” that was “critical to the result of this election.” He also refers to a Dec. 22 email in which a member of Trump’s legal team cites “the January 6 strategy,” which Carter interprets as meaning the eight recipients would have understood what that was.
But that doesn’t say precisely how much the strategy for Jan. 6 was fleshed out at that early date. It’s certainly something the Jan. 6 committee will be probing and providing detail on in the coming days and weeks.
The other key piece of Carter’s ruling that’s worth highlighting is an email on that same date — Dec. 22 — which is one of the emails he ruled Eastman must turn over. The judge says an unnamed lawyer actually argued against taking the Jan. 6 strategy to court, fearing an adverse ruling:
In the fifth email, dated December 22, 2020, an attorney goes beyond strategizing litigation outcomes. This email considers whether to bring a case that would decide the interpretation of the Electoral Count Act and potentially risk a court finding that the Act binds Vice President Pence. Because the attorney concluded that a negative court ruling would “tank the January 6 strategy,” he encouraged the legal team to avoid the courts. This email cemented the direction of the January 6 plan. The Trump legal team chose not to seek recourse in court — instead, they forged ahead with a political campaign to disrupt the electoral count.
This could be crucial. Certainly, the Trump campaign will have viewed the particular courts involved as being unfriendly to them. But, like previous evidence, including Eastman’s discussions of disregarding the Electoral Count Act, such an email could be read to show that the Trump campaign knew what it was doing might be illegal — or at least could be ruled as such by a court.
As Carter summarized: “Lawyers are free not to bring cases; they are not free to evade judicial review to overturn a democratic election.”
Expect all of this to be chewed over plenty in the coming days and weeks.