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A lot went down in today’s hearing, but the deposition clips shown to the public paint a scary picture of a cloud of lawyers orbiting the White House that all seemed convinced that John Eastman was crazy.
Including John Eastman.
And yet based on what we’re seeing, no one seemed all that worried about putting John Eastman on stage to explain his theory to a crowd of proto-fascist goons. This judgment turned out to be… poor.
To recap, John Eastman’s Coups 4 Dummies theory proposed that the Electoral Count Act of 1887 vests the Vice President — in the role of President of the Senate — with the sole power to determine whether or not to count slates of electors presented to the Joint Session of Congress for official counting. It’s not quite as crazy as letting the Vice President just make up the result, but Eastman suggested that the Vice President can reject slates of electors based on dubious claims of voter fraud. There are a couple of different flavors of the theory: either just not counting Biden slates or sending Biden slates back to states with GOP state legislatures who could then designate alternative Trump slates regardless of the election outcome.
This is stupid.
And the testimony we’ve seen indicates that almost everyone with a law degree thought this was bonkers. And yet, no one seemed that adamant about stopping it.
White House Counsel Pat Cipollone thought it was wrong according to testimony. Eric Herschmann said he told Eastman that it didn’t make any sense beforehand and, according to Herschmann, Eastman concluded that it probably would be a loser at the Supreme Court. Herschmann even testified that he told Eastman before January 6 that “you’re going to cause riots in the streets.” Certainly that also crossed the mind of other lawyers in the building.
But then all these lawyers just kind of… let it all happen.
It’s not like January 6 was some mystery. Trump senior advisor Jason Miller testified that leading up to the 6th, all the attention was on whether Pence would go along with this theory. Trump was retweeting the theory in late December. All these lawyers who are so confident that it was all stupid, attest that they said so at the time but then just sat around knowing that Eastman was going to go to the rally and tell a mob that Mike Pence could reverse the election.
Or, in some cases, these lawyers went to the rally themselves.
I guess it could be worse. According to Herschmann, F**KING RUDY GIULIANI conceded that Eastman was wrong hours before the January 6 rally where Rudy would go on stage with Eastman and told the crowd that Eastman was right.
However, it’s the folks postured as — to borrow from Trump campaign manager Bill Stepien’s testimony — “team normal” whose testimony fascinates me as someone who used to labor over timelines built off documentary and testimonial evidence. I foregrounded earlier this week that, based only on the first released clips of the Herschmann testimony about his January 7 talk with Eastman, there was notable tension (not just for Herschmann but for all the lawyers testifying that Eastman was out to lunch) between saying “hey, you can’t do this legally” and going to a rally knowing Eastman’s going up there to propound dangerously lawless nonsense.
Did they just not think Eastman would go through with it? Did they decide that laying it out wouldn’t really “cause riots in the streets” after all? Were they just hoping Pence’s legal team would handle it?
Jared Kushner’s testimony focused on vague threats that White House lawyers might resign if this happened. He dismissed that as “whining” and went back to trying to ramrod pardons through the lame duck session. But Kushner is on to something. These lawyers could resign BEFORE the White House put a crackpot on stage to outline this thing they’re all saying they don’t agree with. Bill Barr’s resignation was cowardly as he spoke lovingly of Trump on the way out the door knowing that he would save his actually useful objections for a book deal after the chaos passed, but he got it half right as a lawyer by separating himself.
Obviously there are lengthy segments of testimony that we aren’t seeing, but the White House legal team apparently ascribes to the “Look Out!” school of offensive line play — where the QB’s protection just turns around to give him a heads up that he’s about to get hammered. Just an absolute clown show, which of course is exactly the environment required for someone like Eastman to burrow his way in and get the ear of the president.
I’m laboring to imagine what happens to a Fortune 500 GC who says, “well, this would be fraud,” then shrugs when the CEO decides to go ahead with it, and then still shows up to collect a paycheck the next day!
It’s that… but armed with nuclear weapons.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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Everyone Thought John Eastman Was Crazy And Just Kind Of… Let Him Do It Anyway - Above the Law
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