Interrupting the certification of Joe Biden’s election win on 6 January last year as part of the scheme to return Donald Trump to office was known to be unlawful by at least one of the former president’s lawyers, according to an email exchange about the potential conspiracy.
The former Trump lawyer John Eastman – who helped coordinate the scheme from the Trump “war room” at the Willard hotel in Washington – conceded in an email to counsel for then vice-president Mike Pence, Greg Jacob, that the plan was a violation of the Electoral Count Act.
But Eastman then urged Pence to move ahead with the scheme anyway, pressuring the former vice-president’s counsel to consider supporting the effort on the basis that it was only a “minor violation” of the statute that governed the certification procedure.
The admission that the scheme was unlawful undercuts arguments by Eastman and the Willard war room team that they believed there was no wrongdoing in seeking to have Pence delay the certification past 6 January – one of the strategies they sought to return Trump to power.
It additionally raises the prospect that the other members of the Willard war room – including Trump’s former attorney Rudy Giuliani and Trump’s former strategist Steve Bannon – were also aware that the scheme to delay or stop the certification was unlawful from the start.
The request to adjourn the joint session was one of several strategies Eastman had laid out in an infamous memo presented to Trump, Pence and top aides last year that outlined how the former vice-president could attempt to unilaterally overturn the 2020 election results.
The strategy to delay the joint session past 6 January was about buying time for Trump and his team to pressure state legislatures to send Trump slates of electors to Congress on the basis that the Biden slates were illegitimate because of supposed election fraud.
The email exchange – revealed in court filings by the select committee last week – shows Eastman attempted to take advantage of the fact that the Electoral Count Act was not followed exactly in the immediate aftermath of the Capitol attack to try and benefit Trump.
“The Senate and House have both violated the Electoral Count Act this evening – they debated the Arizona objections for more than two hours. Violation of 3 USC 17,” Eastman wrote to Jacob in his 9.44pm email, referring to the statute in the US criminal code.
But in the second part of his email, Eastman claimed that because the statute had already been violated in small ways – delays that amounted to a few hours at best – Pence should have no problem committing “one more minor violation and adjourn for 10 days”.
That admission is significant since it demonstrates Eastman knew the scheme to delay Biden’s certification was unlawful – which the select committee believes bolsters its case that he was involved in a conspiracy to defraud the United States and obstruct Congress.
The House counsel, Douglas Letter, appearing on behalf of the select committee in federal court on Tuesday, referenced the admission as he postulated that Eastman knew what he was advocating violated both the Electoral Count Act statute and the constitution.
Letter also said of Eastman’s request of Pence: “It was so minor it could have changed the entire course of our democracy. It could have meant the popularly elected president could have been thwarted from taking office. That was what Dr Eastman was urging.”
But if Eastman knew the scheme violated the law, it raises the additional possibility that Giuliani also knew it was unlawful when he called the Republican senator Tommy Tuberville and asked him to object to Biden’s wins, after the Capitol attack had taken place.
In a voicemail recorded at about 7pm that evening, and published by the Dispatch, Giuliani implored Tuberville to object to 10 states Biden won once Congress reconvened at 8pm, a process that would have concluded 15 hours later and dragged the joint session into the next day.
“The only strategy we can follow is to object to numerous states and raise issues so that we get ourselves into tomorrow – ideally until the end of tomorrow,” Giuliani said.
The admission from Eastman came as part of a thread of emails with Jacob in filings submitted by the select committee seeking to challenge Eastman’s claim that more than a hundred emails demanded by the panel are protected by attorney-client privilege and should remain secret.
But the select committee said in the filings that it should be allowed to conduct an in camera review of the records to determine whether the crime-fraud exception applied, arguing in part they appeared to show Eastman was engaged in criminal conspiracy and common law fraud.
The judge in the case ruled in the panel’s favor after the hearing on Tuesday, allowing a review of around a hundred emails to determine whether the records were subject to privilege, though he did not comment on whether Eastman might have engaged in criminal activity.
