Tag Archives: Electoral Count Act

Trump’s Documents – Trump’s Crimes

By now you are likely aware that Trump’s attempts to prevent the disclosure of emails and other documents related to his attempted coup on January 6 are failing across the board. This is clearly the correct outcome. The observations of one judge, in particular, have attracted some news attention but, as usual, have disappeared into the fog of astonishing disclosures about Republican obstruction and corruption in Congress and elsewhere.

I am therefore using this forum to share with you a few quotations from the March 28 opinion in Eastman v Thomson, the federal District Court opinion that heard Trump attorney John Eastman’s claims of attorney-client and work product privilege for a tranche of 111 emails demanded by the January 6 Select Committee. These messages related to Eastman’s role, and Trump’s actions, in Trump’s legal and political strategy regarding the results of the 2020 election. [NB: footnotes and citations, the bane of effective communication, have been omitted; my helpful headings are underscored & italicized; opinion points of emphasis bolded by me] [NB2: the opinion is 44 pages long; you can read the whole thing here, https://bit.ly/3tZ0tax , but the gist is set out below. I read it so you don’t have to.]

There Was No Election Fraud in 2020

In the months following the election, numerous credible sources–from the President’s inner circle to agency leadership to statisticians–informed President Trump and Dr. Eastman that there was no evidence of election fraud.

… after “dozens of investigations, hundreds of interviews,” the Department of Justice had concluded that “the major allegations [of election fraud] are not supported by the evidence developed.”

By early January, more than sixty court cases alleging fraud had been dismissed for lack of evidence or lack of standing.

Eastman’s Plan to Overturn the Election

Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice, would likely be unanimously rejected by the Supreme Court,38 and violated the Electoral Count Act on four separate grounds.

Knowing that his legal theories were invalid, Eastman addressed the mob that assembled on January 6 at Trump’s invitation:

We no longer live in a self-governing republic if we can’t get the answer to this question. This is bigger than President Trump. It is a very essence of our republican form of government, and it has to be done. And anybody that is not willing to stand up to do it, does not deserve to be in the office.

But,

Before the Joint Session of Congress began, Vice President Pence publicly rejected President Trump and Dr. Eastman’s plan.

Then, and then, they threw themselves on the railroad tracks …  [NB3: paraphrase of 1969 song, Along Came Jones]

Even as the rioters continued to break into the Capitol, President Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

As the attack progressed, Dr. Eastman continued to urge Vice President Pence to reconsider his decision not to delay the count.

The rampage on January 6 “left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol.”

As the House of Representatives later wrote, January 6, 2021 was “one of the darkest days of our democracy.”

 Refusal to Produce Documents to January 6 Select Committee

 Dr. Eastman declined to produce any documents or communications to the Select Committee and asserted his Fifth Amendment privilege against production.67 During his deposition, Dr. Eastman asserted his Fifth Amendment privilege 146 times.

 NB4: You know, the Fifth Amendment that says you don’t have to testify to facts that might incriminate you. The government must find someone else to incriminate you. Or some documents ….

 The plan proposed by Dr. Eastman’s memo involve actions by the Vice President without recourse to the courts.

Litigation was never Dr. Eastman’s motivation for planning the events of January 6, perhaps because, as he conceded, his legal theories would be rejected “9-0” by the Supreme Court.

The true animating force behind these emails was advancing a political strategy: to persuade Vice President Pence to take unilateral action on January 6.

Trump Committed Crimes

The crime-fraud exception applies when (1) a “client consults an attorney for advice that will serve [them] in the commission of a fraud or crime,” and (2) the communications are “sufficiently related to” and were made “in furtherance of” the crime. It is irrelevant whether the attorney was aware of the illegal purpose or whether the scheme was ultimately successful. The exception extinguishes both the attorney-client privilege and the work product doctrine.

The Select Committee alleges that President Trump violated 18 U.S.C. § 1512(c)(2), which criminalizes obstruction or attempted obstruction of an official proceeding.

President Trump attempted to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6.

Together, these actions [meetings at White House, statements to the January 6 mob] more likely than not constitute attempts to obstruct an official proceeding.

Dr. Eastman does not dispute that the Joint Session is an “official proceeding.”

A person violates § 1512(c) when they obstruct an official proceeding with a corrupt mindset. The Ninth Circuit has not defined “corruptly” for purposes of this statute. However, the court has made clear that the threshold for acting “corruptly” is lower than “consciousness of wrongdoing,” meaning a person does not need to know their actions are wrong to break the law. Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly” under § 1512(c).

President Trump and Dr. Eastman justified the plan with allegations of election fraud—but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful.

President Trump’s repeated pleas for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election.

President Trump likely knew the electoral count plan had no factual justification.

The plan not only lacked factual basis but also legal justification.

Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states.

Dr. Eastman argues that the plan was legally justified as it “was grounded on a good faith interpretation of the Constitution.”  But “ignorance of the law is no excuse,” and believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it. Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump knew how to pursue election claims in court—after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.

The illegality of the plan was obvious.

… Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.

… the evidence shows that an agreement to enact the electoral count plan likely existed between President Trump and Dr. Eastman.

President Trump likely knew that the electoral count plan was illegal.

President Trump continuing to push that plan despite being aware of its illegality constituted obstruction by “dishonest” means under § 371.

Dr. Eastman himself repeatedly recognized that his plan had no legal support.

Dr. Eastman admitted more than once that “his proposal violate[d] several provisions of statutory law….”

Dr. Eastman’s views on the Electoral Count Act are not, as he argues, a “good faith interpretation” of the law; they are a partisan distortion of the democratic process. His plan was driven not by preserving the Constitution, but by winning the 2020 election.

The evidence shows that Dr. Eastman was aware that his plan violated the Electoral Count Act. Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.

President Trump’s acts to strong-arm Vice President Pence into following the plan included meeting with and calling the Vice President and berating him in a speech to thousands outside the Capitol.

Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.

Finally,

Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower—it was a coup in search of a legal theory.

At most, this case is a warning about the dangers of “legal theories” gone wrong, the powerful abusing public platforms, and desperation to win at all costs. If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution. If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.

Past the Point of No Return

The New York Times just published a “guest opinion” piece by J. Michael Luttig, a former judge on the U.S. Court of Appeals for the Fourth Circuit and an advisor to Republican senators. https://nyti.ms/3HS9cjT

The article is entitled, The Conservative Case for Avoiding a Repeat of Jan. 6. That language suggested to me that the argument would be that we should just accept the Big Lie that the last election was stolen, accept massive voter suppression legislation around the country in red states and, as a democracy, roll over and not only play dead but be dead. My second reaction was, over my dead body.

Turns out, I was overreacting. My first impression of the topic was wrong. Moral: always read the story before falling for the headline. So, I did.

Luttig, to be sure, is a learned man, shaped in the higher echelons of Republican politics and the judiciary during the halcyon days of the Reagan and G.W. Bush administrations. I say “halcyon” because this was the time when the Republican Party still purported, at least, to stand for something. Luttig eventually resigned from the Court of Appeals to become Boeing’s General Counsel with a reported pay raise of more than $2.5 million. https://bit.ly/3Jvs88e Pretty good for a boy from Tyler, Texas.

I mention all that because, as is often true, challenging someone of his standing and accomplishment can be … challenging. But what are they going to do? I don’t practice law anymore and I do love a challenge. So, let’s look at Luttig’s latest thoughts on the all-important subject of avoiding another violent attack on the government and the Constitution.

To his credit, Luttig recognizes that Trump and his Republican devotees represent a “clear and present danger” to our democracy. Noting issues with the language of the 1887 (yes, over 120 years ago) Electoral Count Act, he further acknowledges that the efforts of Senators Hawley and Cruz to overturn the election were based on “little more than a wish” and notes that Trump has confessed to his perfidy, both past and looking forward.

Trump’s continued promotion of the Big Lie has never been an issue. As president he stated he could do “whatever I want” and he still thinks that. Here’s where things get sticky for Judge Luttig.

Referring to the mythical remnants of the Republican Party after deducting Trump fantasists, Luttig says they are “mystifyingly stymied by Mr. Trump” and while they allegedly reject his lies about 2020,

they are confused as to exactly how to move on from the 2020 election when their putative leader remains bewilderingly intent on driving the wedge between the believers in his lies and the disbelievers.

This political fissure in the Republican Party was bound to intensify sooner or later, and now it has, presenting an existential threat to the party in 2024. If these festering divisions cost the Republicans in the midterm elections and jeopardize their chances of reclaiming the presidency in 2024, which they well could, the believers and disbelievers alike will suffer.

In moving with such facility from “clear and present danger to democracy” to concern about the “existential threat to the {Republican] party,” the Judge reveals his true goal is to right the listing Republican ship and enhance its political fortunes, notwithstanding its hypnotic devotion to Trump. If so, his argument has little or nothing to do with protecting the country from the collapse of democracy.

Luttig’s argument is another variation of “can’t we all just get along?”

the right course is for both parties to set aside their partisan interests and reform the Electoral Count Act, which ought not be a partisan undertaking.

“Ought not,” indeed. My, oh my, what a wonderful world it could be.

Luttig completes the fantasy analysis by assigning mutually reinforcing goals to the two parties. This is a standard tenet of books and courses on negotiating for “mutual gain.” Democrats, Luttig imagines should want to reform the Electoral Count Act to protect democracy which he admits is failing.  This, he speculates, would “prevent another attack like the one at the Capitol on Jan. 6, 2021.” The logic of that premise-conclusion escapes me. As Peter Navarro has insisted, the aim of the January 6 mob was to force the election into the hands of the states, where the Republican majority would install Trump. They didn’t really care what the law said or what power Vice President Pence actually had under the law.

The mutual gain in Luttig’s conception is that “Republicans should want to reform the law for these same reasons, and more.”  Uh huh. He asserts that, while Trump and Trumpers won’t join, “there are consequential reasons of constitutional and political principle for the large remainder of Republicans to favor reform in spite of the former president’s opposition.”

“Consequential reasons of constitutional and political principle” —  got it. I am rolling on the floor LMAO. Except it’s not funny. Luttig’s thesis, right out of the old and long-ago discarded Book of Republican Orthodoxy, is that,

Republicans are proponents of limited federal government. They oppose aggregation of power in Washington and want it dispersed to the states. It should be anathema to them that Congress has the power to overturn the will of the American people in an election that, by constitutional prescription, is administered by the states, not Washington. If the Democrats are willing to divest themselves of the power to decide the presidency that the 49th Congress wrongly assumed 135 years ago, then it would be the height of political hypocrisy for the Republicans to refuse to divest theirs.

Well, now, isn’t that wonderful. Republicans favor limited federal government. Unless, of course, their state gets hit by a big hurricane or flood. Then they are more than happy to line up for federal money and manpower. Actually, I had understood that Republican orthodoxy was opposed to big government everywhere, but that idea was trashed in Texas recently. Republicans are perfectly fine with big government telling people what to do and not do, as long as it aligns with their religious or so-called freedom and family values.

Putting aside Luttig’s phantasmagorical search for coherence in Republican political doctrine (it being the party that advanced no platform in 2020), he next argues that Republicans should want reform of the Electoral Count Act because it is blatantly unconstitutional.”

Trump acolytes like Mr. Cruz and Mr. Hawley should appreciate the need to reform this unconstitutional law.

… no Republican should want to be an accessory to any successful attempt to overturn the next election — including an effort by Democrats to exploit the law.

Did you catch that unsubtle attempt to both-sides the question? He goes on to suggest that it’s the Democrats that may abuse the ECA in 2024 and thus Republicans should support a statutory redo to prevent that heinous outcome.

Someone please make him stop. Cruz and Hawley caring about the constitution? Seriously?

Luttig argues that reform should include giving federal, yes, federal, courts the power to resolve disputes over state electors and to ensure compliance. Right. Remember Gore and Bush?  And recall that the courts do not have command of the means to enforce anything. That power largely, if not entirely in practice, resides in the Executive Branch.

There are other details to Luttig’s proposals, but, frankly, madam, I don’t give a damn. The Republicans are so dug in on resisting any and every action supported by Democrats that the debate over electoral count reform could last decades. All the while Trump would be whining that he was cheated and his lunatic fringe supporters would continue attacking state capitols and Congress … unless and until the leaders of these fascist efforts are indicted, arrested, tried, and imprisoned.

Recall that the Republican Party has, among other things, embraced many of the conspiracy theories of QAnon, failed to discipline members like Lauren Boebert and Marjorie Taylor Greene, supported a president who lied and dissembled about a deadly virus that has now killed more than 915,000 Americans and maimed countless more, and twice refused to convict on impeachment in the face of overwhelming evidence of guilt. These people are not going to do anything to help the country resist the fascism they regularly promote.

If Luttig is right that “the future of our democracy depends on reform of the Electoral Count Act” that was enacted in 1887, we are in more trouble than rewriting an obscure statute can fix. It’s fine to say that “Republicans and Democrats need to put aside their partisan differences long enough to fix this law.” Fine indeed, but such proposals will have no credibility as long as the planners/leaders/major perpetrators of January 6 walk free. Senators Manchin and Sinema have put the last nail in the myth of bipartisanship.

And that’s the one point that Luttig got right:

the only members in Congress who might not want to reform this menacing law are those planning its imminent exploitation to overturn the next presidential election.

If you remain in doubt as to who they are, their names may be found here, https://bit.ly/3gPVNwM, in the updated Congressional Hall of Dishonor

In closing, let me repeat: no statutory language changes are going to protect our democracy from elected and unelected officials who have no respect for law or oaths of office. The Republican Party has made clear beyond reasonable doubt that it is committed to obtaining and keeping power permanently by whatever means are necessary. If it were otherwise, it would have formally repudiated the lying traitor Donald Trump. Instead, it has embraced him as its leader. Just ask Lindsey Graham.

People who believe in the American democracy, however flawed it may be, had better remain alert to the danger and act/vote accordingly. Don’t be distracted by appeals to bipartisanship and unity, however (or not) well-intended. We’re well past the point of no return.