It gathered little notice when it happened last week, but the House Select Committee investigating the January 6th, 2021 insurrection quietly made public a much-anticipated document that a federal judge has called evidence of “likely” felony crimes by former president Donald Trump and the attorney who was helping him try to reverse the results of the 2020 election, John Eastman.
The document in question, it turns out, was written by neither Eastman nor Trump, but instead is a December 13th, 2020 email from Kenneth Chesebro, a previously minor player on Trump’s legal team, to Rudy Giuliani. Its significance, according to U.S. District Court Judge David Carter — who ruled that it was not subject to attorney-client privilege due to the crime-fraud exception to that concept and therefore should be sent to the select committee — is that it marks perhaps “the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act” — the law that governs the transition of power — into a day-by-day plan of action.”
Ruling that the memo “likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States,” Carter’s decision seemingly reinforced the idea that Donald Trump might be able to be linked directly to illegal attempts to overturn the legitimate results of the election that he so clearly lost.
The plan that Cheseboro devised with input from Eastman was based on a plan for Republican legislators to appoint competing slates of pro-Trump electors in the swing states in which Biden won the popular vote by narrow margins — something that began happening the day after Cheseboro’s memo was sent to Giuliani.
The next step in the seditious plan that the memo outlines was to have then-Vice President Mike Pence “firmly take the position that he, and he alone, is charged with the constitutional responsibility not just to open the votes, but to count them—including making judgments about what to do if there are conflicting votes.”
The email then goes on to outline a timeline of seditious events leading up to the January 6th election certification, including a plan to have Republican Senators hold hearings from January 3rd through the 5th that would reinforce Vice President Pence’s constitutional power to count the votes. While such hearings never actually took place, it is still unknown whether Trump or any member of his administration contacted any senators favorable to their cause to attempt to have such hearings take place.
Of course, this whole plan relied on the cooperation of Mike Pence, who fortunately followed the advice of his own legal advisors and refused to do anything more than count and announce the legitimate slates of electors as determined by the popular vote in each state.
Chesebro’s email, however, even provided for a contingency plan in case Pence refused to play his part in the dastardly scheme. He suggested that Pence recuse himself from the counting by citing a “conflict of interest” — despite the fact that Al Gore, who arguably had an even greater conflict of interest when counting the electoral votes in the 2000 presidential election that was handed to Geroge W. Bush by a controversial Supreme Court intervention, managed to handle the ceremonial role in defeat quite easily.
With Pence’s recusal, the plan postulated that the electoral vote counting would be handed off to Senator Chuck Grassley (R-IA), the President Pro Tempore of the Senate, who would in their scheme then refuse to recognize the votes from contested states and send the consequences back to the GOP-controlled legislatures in those states to presumably change the results to favor Trump.
While the scheme that the email suggests could have been overturned by the Supreme Court in subsequent litigation, Trump has already been shown to believe that his packing of the court with right-wing ideologues could result in an eventual win in any challenge to his maneuvering.
The House Select Committee apparently believes that the memo is evidence of a clear action plan to try to mount an illegal coup that would invalidate the legitimate results of the election and keep Trump in power.
Eastman and his attorneys claim that the email wasn’t addressed directly to him and that the plan was designed not to overturn the election but to merely bring more attention to election irregularities that deserved investigation.
With Judge Carter already indicating that the memo infers evidence of criminal intent, Eastman and Trump may now be facing the consequences of their seditious plan.
You can read the entire court filing that includes Cheseboro’s memo at this link.
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Original reporting by Kyle Cheney at POLITICO.