OA574: 1/6 Committee Brief Says Trump Guilty of Crimes!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 574. I'm Thomas, that's Andrew, and holy moly, Andrew, how you doing?

0:01:28 Andrew: I am incredibly excited to be here today, Thomas. I want to talk. I'm to just spoil everything right off the bat. I think this is potentially the most important story we've ever done on the show.

0:01:41 Thomas: Whoa, Nelly. Now, why don't you ask me how I'm doing? I'm fantastic! I'm taking the fantastic today, because whenever Andrew sends a message, like the one he sent late last night, That's basically a holy ass, you know, like several expletives, all this kind of stuff. That has meant we've done an incredibly solid and important episode of the show the next day, usually, when that happens. So I am super duper excited to find out what this is all about. I think it looks like we've cleared our docket here, and this is main story.

0:01:44 Andrew: How are you doing, Thomas? There we go. All right.

0:02:18 Andrew: We Have. Yeah, let me just give, because I'm gonna ask everybody, our regular listeners, share out this episode far and wide. I really think this is something folks need to know about. We've done a lot of very in-depth research, which you are going to hear, and I think the question of sort of how we influence the mainstream narrative, we know we have an effect on that. So share out this episode if you're new, if you have had this episode shared out to you.

0:02:46 Thomas: Welcome.

0:02:47 Andrew: Yeah, welcome to the the show. And let me explain. This is not an alarmist podcast. The last time I said we had a really big story, we had a really huge story. It

0:02:58 Thomas: Yes. That's important to note because there are other shows and podcasts where that's every day for them. They try to sell the day's news as though it's like, you know, our Stormy Daniels is a legal genius level, you know, like breaking news. That is not us. When Andrew gets this excited, this has happened, what, like three, four times in the podcast history, probably. So, big deal.

0:03:19 Andrew: Yeah. Yeah, when we covered. Yeah so let me revisit Stormy Danieels for a minute. We were the first outlet to tell you that this was legally significant, right? That Stormy daniels represented a legal pathway way for then President Trump to face the consequences of his illegal actions? The answer to that question was yes. He committed crimes that we uncovered and explained on the air. Now, Trump surrounded himself with toadies, unitary executive folks, a corrupt attorney general, and so debased our institutions that that wound up not mattering.

0:03:54 Thomas: Right. That That's the part we can't control.

0:03:56 Andrew: We can't control that. Obviously, that that was a terrible result. Today's story goes is one step beyond Stormy Daniels. It's right, not just a story of how holding Trump accountable, legally accountable is is plausible, but the very real signs that it is underway. It is about a shared belief at the highest levels of the Department of Justice that Donald Trump committed crimes, including 18 USC 371, which is conspiracy to defraud the United States on January 6th in connection with the insurrection so

0:04:31 Thomas: Wow. And one further reminder, this comes literally the week after, I think, you and I discussed the really bad news out of New York that made us feel like, oh, well, I guess we're not getting any justice. And then, bam. So this must be very significant news for us to make that complete 180.

0:04:31 Andrew: Yep.

0:04:46 Andrew: It It Absolutely is and and let me add, right, that I share a disappointment that is likely to be correct, okay, and let me articulate what that is. That is that if you have listened to our episode on the nine very clear crimes that are outlined in volume two of the Mueller report that Donald Trump committed in connection with Ukraine, there is no indication. And right now, I would say there is no likelihood that the Department of Justice ever intends to bring charges in connection with those nine crimes that are laid out that are plain as day. If you want a charitable view of that, it might be that, you know, Merrick Garland has other stuff on his mind, right, that he said in a public address to the American people on the anniversary of the one six insurrection that investigating one six was the DOJ's top priority.

0:05:39 Andrew: You want a pessimistic view, you know where that is. I want to focus in on, let's assume that Attorney General Merrick Garland was telling the truth, that uncovering the bottom of the 1-6 conspiracy to with and potentially overthrow the duly elected president of the United States, that that is the top priority of the Justice Department. I now believe that that has the potential to implicate the former president of the United States in a way that I did not think was possible 24 hours ago. So let me walk you through it. Now, this is going to take looking at some legal documents. They're all going to be linked in the show notes. They are published on our Web site. And it's going to take understanding our main villain, John Eastman.

0:06:25 Andrew: OK, we've talked about John Eastman on the show a lot. He is the architect of one six, the lawyer who had Trump's ear in December and January and fed him nonsense and stoked the fires of insurrection. He wrote the series of memos that we have talked about that with which our listeners are undoubtedly familiar, that provided the pathway for the one six insurrection. Right. That said, hey, so all Pence has to do is, you know, not count these votes. And then, you Know, Donald Trump is miraculously reelected again. Up until now, I always thought that Eastman and certainly Trump had an escape hatch. And I think that hatch has been nailed shut. And that's what this show is going to prove. So first, you need to know what an unapologetic racist John Eastman is.

0:07:13 Andrew: So not only did he push birtherism, lack of 14th Amendment citizenship regarding Barack Obama, not that I know of, but I'm sure he'd like to know. No. Yeah. Yeah, on August 12th, 2020, John Eastman published an article in Newsweek. We criticized it the second it came out that made those birther arguments about Kamala Harris, who was born in Oakland, California. Those arguments were not only transparently stupid, but obviously racist. And if you're wondering, am I just inferring that because of Obama and Harris? You might also be interested in knowing that John Eastman wrote an article entitled Senator Ted Cruz is eligible to be president, despite the fact that, know, Ted Cruz was literally born in Canada. Canada. So. So I'm not just poisoning the well,

0:07:13 Thomas: Okay, sure. Did he ask for Brown Jackson's LSAT score? Oh, no, different races. Sorry. Sorry, different racist. I get my racist confused sometimes.

0:08:05 Thomas: I mean, you're not poisoning the well. There's a lot of racists in this country and not all of them did insurrections. So it doesn't necessarily, being a racist doesn't convict you of being an insurrectionist.

0:08:14 Andrew: True. It, the relevance is that bit of public racism may have been an audition, right? We know where Donald Trump gets his news from, right? It is right wing garbage sources. And the day after Eastman wrote that article for for Newsweek that went viral, you know, both pro and con, donald Donald Trump said this, was quoted widely. I've got a link that we can put in show notes from the Denver Channel. Right. "That said, I heard it today that she doesn't meet the requirements." Right, that is Kamala Harris does not meet the requirements to be vice president. "And by the way, the lawyer that wrote that piece is a very qualified, very talented lawyer," Trump said, that is referring to John Eastman.

0:08:57 Thomas: He wasn't.

0:08:57 Andrew: Yeah.

0:08:57 Thomas: Sorry.

0:08:58 Andrew: Get a get him Right, uh, so, may have been how Donald Trump came to notice, uh, John Eastman. John Eastman would become the person to whom Trump would turn when, increasingly, his allies were defecting from him. In December of 2020, in January of 2021. That's a second way in which the story is unlike the Stormy Daniels development. Because, right, heroes of this story are people about which we fervently disagree, right. People

0:08:59 Thomas: Narrator voice. Well, And

0:09:32 Andrew: Who have spent their lifetime in service to true believing, right wing, evangelical, Christian, Republican conservatives. Right. So one of our heroes is Gregory F. Jacob. OK, you're going to talk a lot about the deposition he gave to the One Six Committee, uh, portions of which were released as part of a filing that kept, uh, me up all night last night. Uh, Greg Jacob is a, is a member of the Federalist Society. He was chief legal counsel to Vice President Pence. He was a deputy assistant to the president advising the White House Coronavirus Task Force. So, you know, um, oh, oh, by the way, in, in private practice, he's a labor and employment lawyer who represents big corporations accused of violations by the Department of Labor. Right. So both his personal politics and his legal career are the kind of things that we oppose.

0:10:19 Thomas: This is our hero in this case, you're saying.

0:10:20 Andrew: This is our hero. And I'm going to further, you know, make him an unlikely hero. Here's what Jacob wrote to John Eastman the afternoon, after the Capitol had been breached. Okay. He wrote in a letter that was otherwise critical, and we'll give the full context. But but he wrote an email that contained within it. I respect your heart here, John Eastman. I share your concerns about what Democrats will do once in power. I want election integrity fixed. Okay.

0:10:22 Thomas: I'm sorry. It's just, the darkest, funniest thing. Mid-insurrection for the other Republican to be like, hey, champ, I love your energy. I love you.

0:10:58 Andrew: Got real, real big overthrow the government vibes coming.

0:11:00 Thomas: Yeah, you got moxie. Let's, let's, you know, I agree with you 70%. Let's not do an insurrection, though. Let's you know just that last part. Maybe don't do that. But like, honestly, that's kind of what mainstream Republicans needed to do.

0:11:02 Andrew: Yeah. Yeah, that's right, is.

0:11:14 Thomas: Like, that'S where we are in this country.

0:11:16 Andrew: And finish out just in fairness now to Jacob, since I said he's going to be one of our heroes. He concludes that email with, but I have run down every legal trail placed before me to its conclusion. And I respectfully conclude that as a legal framework, it is a results oriented position you would never support if attempted by the opposition and essentially made up. And thanks to your bullshit, we are now under Siege. So yeah,

0:11:35 Thomas: Yeah. Wow. Wow. Yeah. He and Justin Amash, they're in their own party now. And Liz

0:11:44 Andrew: Um, Yeah, Well, I, and we're going to list a couple of hand-picked Trump loyalists who show up here. Steve Engel, Richard Donahue, Jeffrey Rosen, um, they're now cooperating with the one six Committee, and they're going be the reason why Trump goes to prison. All right, where did all these documents come from? What am I talking about here? Last week on Episode 572, we talked about the litigation ongoing in California in which John Eastman in federal court is trying to get that court to block a subpoena from the 1-6 Committee, requesting that he turn over his documents. He's been stonewalling the committee forever. And we told you back a week ago this was going to be good, but I did not realize how good it was

0:11:49 Thomas: Cheney. Yeah, sure.

0:12:34 Andrew: Going to be. So we said Eastman's argument is attorney-client privilege. Ordinarily, that's a pretty good argument for a lawyer to not have to do do stuff. Um, one six Committee has now replied, uh, has now filed their opposition, and their opposition brief is so much better than I could have possibly imagined. Again, I will link it in the show notes. Uh, but basically the argument is you don't get to assert attorney-client privilege here, and I'm going to go through six arguments here, they're, they're seven, right? The first six, I'm just going to single line, could, I could spend an entire episode on each of these. We're going to put them aside because it's the seventh one that we're most interested in.

0:13:14 Thomas: Wow, talk about belt and suspenders, belt suspenders. I'm trying to think of like five other ways of keeping your pants up.

0:13:16 Andrew: Uh-huh. Cumberbund. All right. If you're reading along with us, this starts on page 19, going to page 20. First argument. We don't know that you have attorney-client privilege here. You haven't shown us a signed engagement letter. And they don't say this in in the brief but it's also very clear that like they haven't produced an affidavit from Trump that Eastman represented him right the fact that he can't get one, you know, put a pin in that, but, but, right, like if I had to litigate the question of do you represent X client and the only thing I have is the only things that he produced Well, he produced an unsigned copy of the retainer agreement right If all I had was an unsign to him, yeah it just you just need MS Word Right. Right. I might call up my client and go, yeah, OK, looks like neither of us have this signed agreement. Can you fill out an affidavit? I'll write it. But I just need you to sign

0:13:21 Thomas: Yeah Yeah.

0:13:53 Thomas: Me saying it. Yeah. Oh, okay. So something you just need a printer for like that. Yeah.

0:14:13 Thomas: Yeah,

0:14:13 Andrew: This affidave That says, yes, I hired the law offices of P. Andrew Torrez in connection with X. That doesn't, that's not here. OK, so that's argument one. Put that aside. We're not, that we're not, we're not there yet. Argument two. Even if you do have a client, you've disclosed your stuff to third parties, this isn't an attorney-client relationship, they don't have a legal interest in what you want, just a political strategic one, we've talked about that a lot, there's no attorney-client privilege that attaches when a lawyer works with a client in a non-legal advice giving capacity, right, I work with the puzzle in a thunderstorm guys all the time, the stuff that we do, uh, that's business related, that is, you know, where do we plan our live shows, the right, none of that is legally privileged, right?

0:14:14 Thomas: Right. Oh sweet. I'm going to subpoena you for that. I think I said subpoenia, subpoENIA because I remember the subpoENA coladas, but

0:14:58 Andrew: Oh, You should You should Subpoena Coladas. If you, argument number three, um, also, by the way, all of these communications that you're withholding as privilege came from your college email server, an email address, and you happen to work for one of of like the seven universities in the country, uh, extreme minority that has an absolute no privacy clause attached to Their email, yep. Uh, so he's at Chapman University and the policy is users should not expect privacy in the contents of university-owned computers or email messages. It expressly bans personal use on its network and computer systems and says all university computing and network systems and services are your university-owned resource and business tool to be used by authorized persons for educational purposes or to carry out the legitimate businesses of the university. End of real quote.

0:15:03 Thomas: Yeah. Wow.

0:15:51 Thomas: Okay. I don't want to bog you down because we have so much, but that's very interesting. I know we were trying to one line these. I'm two questions. First off, these all seem like knockdown, but you're saying like, we don't even need belt and suspenders. We're just full of belts, entire nine belts that we got.

0:15:56 Andrew: Yep. Okay. Yeah. Think that's right.

0:16:06 Thomas: We've gorilla Glued our pants to our waist. They're not going anywhere. And yet we still have a seventh pair of suspenders later is what you're saying, okay? That is very weird that that university has that policy. Just quickly, imagine you're p Andrew Torrez and you're doing legitimate law stuff, but you just like didn't know they had that policy or whatever and you know innocently you made a mistake. Are, are your clients screwed, are you have no privilege because you engaged with them and exchanged you know whatever information on a email server that has that policy? Sure.

0:16:14 Andrew: Correct.

0:16:38 Andrew: It's a really great question. And let me tackle it really quickly. The question is expectation of privacy on behalf of the legal communication. Right. So in other words, if I were to let's imagine that ridiculous path, hires me explicitly as their lawyer. And I decide that the best way to communicate with them is via skywriting? So I hire the skywriter to write out, you know, dear Bob, you're definitely going to jail unless we plead love, Andrew, right. I would have no, even though that is I'm providing legal advice to a client who has legitimately engaged me, I have no reasonable expectation that that communication is going to be kept private. I've no reasonable expectation of privacy because I hired a skywriter to do it.

0:17:26 Andrew: And the argument here is, dude, you started the law department at Chapman University. You've been working there forever. You know, the policies, you know, by the way, that they they differ from a lot of other universities. I think that's why I've emphasized the minority aspect. And and you knew or should have known that you had no reasonable expectations of privacy.

0:17:33 Thomas: Right. Yeah. Gotcha. Yeah.

0:17:46 Andrew: That's how, how that would weigh out. Again, that's why I'm saying I don't know that it's a knockdown, right? Like, you could, you Could certainly Make the counter Argument You Made, right? Yeah.

0:17:51 Thomas: Plead Incompetence Or Something Yeah. Yeah.

0:17:53 Andrew: But I just, it's an email, I'm 105 years old, I just thought it was a magic box, you know, whatever, who knows, right? Um, three more arguments. Number four, by the way, your client, Donald Trump, multiply waived the privilege, including to Bob Woodward in an interview. He gave In a repeated, did a series of interviews he gave at the White House. Put a pin in that one. Number five, it's not a work product privilege, the memos that you wrote and the stuff leading up to it, because you did not prepare them in anticipation of litigation. You prepared them for a political purpose. And in fact, your privilege log, which is, we haven't gotten into the inadequacy of that. It's kind of bare bones or whatever. But one of the items on there, and this is redacted, so I have to infer this a little bit, shows that you sent draft copies of the memoranda to a journalist.

0:18:08 Thomas: Wow. What?

0:18:40 Thomas: Wow.

0:18:40 Andrew: By the way, I would love to know who that is. I'm guessing, you know, Tucker Carlson, you knows, someone in that range. But but in any event, you sent a draft to a journalist who's redacted out and the filing notes who could well have published the exchange, which is true. I Right. Don't send legally privileged documents to journalists who interview me for precisely that reason. Okay, so that's argument number five. Argument number six is, and by the way, there is a residual fairness exception. If there's no other source for a document, you can invade attorney-client confidentiality. Compelling cases where fairness and equity require the production of that document, at least to a judge for an in-camera inspection. Inspection inspection. So those are the six arguments we're not going to touch on. They're all they range from, you know, the fairness is probably the weakest one, but they range from, well, you know, pretty strong to very strong, right?

0:18:41 Thomas: Yeah. Yeah. Right.

0:19:33 Thomas: Airtight. To like a few bubbles coming up in the water. Yeah.

0:19:37 Andrew: Right. What's really good is argument number seven, which begins again, if you're reading along with us on page 38 of the brief, it's entitled the court should review the documents in camera under the crime fraud exception. And this is the 1-6 committee saying in print, we think, John Eastman, you did not have attorney-client privilege with your client, Donald Trump, because you and Donald Trump were conspiring to commit crimes. That, by the way, very, very clear application of the law, right?

0:20:11 Andrew: Communications in which a client consults an attorney for advice that will serve him in the the commission of a fraud or crime, are not privileged. This exception to the attorney-client privilege applies where one, the client was engaged or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme. And two, attorney- client communications for which production is sought are sufficiently related to and were made in furtherance of the intended or present continuing illegality. It bears emphasizing that this is true even if the attorney is unaware that his advice may further an illegal purpose. And it is likewise true where the crime or fraud is ultimately unsuccessful. So put all of that together. I want to emphasize this because I cannot state, I've got it in bold caps in my notes, for this to fit under the crime fraud exception,

0:20:10 Thomas: Even I know. That, oh.

0:20:58 Andrew: Under argument number seven, the client has to be the one who is committing the crime with the lawyer's help, not the other way around, right?

0:21:06 Thomas: Good Point. Mm-hmm.

0:21:07 Andrew: Yeah. So think about it this way, right, if I hire Saul Goodman in good faith and I ask him to do something legal for me and he does something criminal instead, I shouldn't lose my attorney-client privilege, I right. Didn't hire Him as a criminal lawyer, right? Like I thought I was hiring a real lawyer, the lawyer goes out, commits the crime, client doesn't lose the privilege. The crime fraud exception only applies when the client was engaged in the scheme. So the rest of the brief and all of the supporting documents, which I have now read and fly spec'd every page, are devoted to establishing for the court, in connection with an argument that the court should read these documents, uh that Donald Trump committed the crime and used John Eastman to help him, not the other way around. And that is a pleading signed off on on behalf of the January 6th committee. That is a position attributable to that committee of Congress.

0:21:18 Thomas: Yeah.

0:22:04 Andrew: Here's what they say on page 39. That standard, the crime fraud exception standard, has plainly been met here. Information available to the committee establishes a good faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts and that plaintiff's legal assistance was used in the furtherance of those activities. Accordingly, we ask this court to conduct an in-camera, that is, by itself with no one else present, review of all of the documents that John Eastman has ever generated to determine whether the crime fraud exception applies. We've talked about this before. This ask is such an easy ask that I cannot imagine, right? The court's going to be like, yeah, turn all the documents over to me and we'll figure it out.

0:22:45 Thomas: Right. Because the, the stakes of that, it's not like a big harm to turn something over in camera, that means, you know, only the judge sees it, right? So yeah.

0:22:57 Andrew: Yep. 100 percent confidential won't be disclosed. I am dying to know what the reply brief filed by Eastman will say, but it will be nonsense. Right. I don't know what I would do. And again, I told you I have been in this case before on on both sides. I mean, not with a criminal client, but I have litigated the question of, other side. In one case, it was my client refused to turn over documents that we legitimately thought were privileged and and the other side wanted to see. And then twice I've been on the other Side of that. Right.

The other side is holding back documents that look like they're really good stuff. And, you know, I want the court to take a look at it and determine if the privilege is real or not. And in all three of those cases, right, the answer was go to the court, brief it, tell them why it's important and say, look, judge, just you take the documents, look at it, tell us what happens. And in All three cases, that's what happened. So brief then lays out two charges against the president. These are knockdown charges that have been filed against other one six insurrectionists. It does not include, for example, the seditious conspiracy charge

0:22:58 Thomas: Hmm. Yeah.

0:23:46 Thomas: Take A Peek Yeah.

0:24:03 Andrew: That was filed against Stuart Rhodes, the leader of the Oath Keepers, you know, eyepatch dude, because that's less of a knockdown in

0:24:12 Thomas: So In The case like this This doesn't necessarily mean these are all the crimes he would ever possibly be charged with. It's just they're going to pick the Most Knocked down arguments.

0:24:20 Andrew: Yeah, that's Right. We have really good faith reason to believe that he's at least committed these, right? And you don't gild the lily because you don't need to, right? So those two charges are 18 USC section 1512 c2. We have seen that before. That is obstruction of an official proceeding. And c2 says whoever corruptly otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both. That's count one. Count two, 18 U.S.C. 371, that is conspiracy to defraud the United States. If two or more persons conspire to commit any offense against the United States, or to defraud the United States or any agency thereof in any manner for any purpose, and one or more of such persons do any act to affect the object of the conspiracy, each shall be fined under this title and in prison not more than five years, or both.

0:24:28 Thomas: Okay.

0:25:18 Andrew: You put those two together, and I think you've immediately ascertained the problem in bringing these charges, right? The reason that I would have been skeptical 24 hours ago that either of these charges would be filed against the former president of the United States, and that's this. For the 1512C, for example, there's no argument that Congress meeting to count the electoral votes was an, you know, was not an official proceeding. Right. There's still argument that the conduct of spreading the big lie at least attempted to Obstruct and influence that proceeding. So the right big question is going to be what counts as corruptly doing so, right?

Same thing for the 371 charge, an individual defrauds the government under 371 if, if they interfere with or obstruct one of its lawful governmental functions by deceit, craft, trickery, or at least means that are dishonest, and obviously I'm quoting from an opinion there. So that together, the The real problem, we've talked about this since way back, episode 16, when we went through Hillary Clinton's emails. Were the means that President Trump used to obstruct an official proceeding corrupt, dishonest, or deceitful? If you can prove that, you probably got him on both of these. And you know why it would be really, really hard to prove that.

0:25:50 Thomas: Yeah.

0:26:38 Andrew: Right? Let's steal Donald Trump's side right here. That is, well, what are you talking about? Donald Trump sincerely believes that he won 100 million votes. That Hugo Chavez hacked Dominion and sent votes to Venezuela. And that, you know, only a guy who sells discount pillows could have figured it out. It's stupid, but it's not corrupt. Right, he honestly believes that He won. Is that fair that that's that's probably been the fallback position that that we're worried about Trump taking? It's part of why I've been enthusiastic about Fulton County D.A. Fannie Willis's potential charges in connection with the Georgia election, because you don't have to prove that Donald Trump knew the precise number. Number, right? You just have to prove that the number he wanted Brad Raffensperger to enter was an incorrect number.

0:27:26 Andrew: And the call, in my view, very, very plainly proves that. So, right, you don't get the, right, but I wasn't intending to commit fraud in that you were because you knew the number was wrong. You just wanted one more than what you needed to win. So if that's how Trump is getting out of this, then I want you to listen to the rest of this episode and think about, can we prove that John Eastman and or Donald Trump knew the positions they were taking were dishonest, deceitful, or corrupt? And I think the answer to that now is yes. That's what makes this so significant. So let's talk about Eastman's public lie. Eastman, as we alluded to in the outset, wrote two memos that led to us calling him the architect of the insurrection.

0:28:11 Andrew: They, they surfaced again thanks to Bob Woodward, Woodward's book came out in September, it made reference to the fact that Eastman was circulating these memos. So the first one that came out was a two-pager, um, and it says that the Electoral Count Act, that's three USC 15, is likely unconstitutional. And then it says, so here's what we propose, and then it lays out the six-step process for Mike Pence to declare seven states to have electors invalid, invalid, to just unilaterally throw them out, count up Trump as the winner among the remaining states, and then concludes with paragraph six, which says, the main thing here is that Pence should do this without asking for permission, either from a vote of the joint session or from the court. Let the other side challenge the actions in court. We should take all of our actions with that in mind. We covered that on the show. Immediately after that memo came, that kind of looks like seditious conspiracy to overthrow the United States.

0:29:02 Andrew: In full damage control, John Eastman released a longer six page memo that he said provided the full context. I'll give that link in the show notes as well. That memo begins with a longer recitation of just nonsense about supposed election fraud, including the outright false claim that seven states submitted alternate slates of electors. They did not. We've talked about that on this show.

0:29:26 Thomas: Yeah.

0:29:26 Andrew: Right, the insurrectionists

0:29:27 Thomas: Some people at an Applebee's or got together and submitted some, but that doesn't count.

0:29:27 Andrew: Yeah And Faked Certificates that does not count, right? That's exactly right. Then it repeats the Electoral Count Act is unconstitutional argument, and then, and this is what he's hanging his defense on, in, in, in place of the, so here's what we propose, it has three pages entitled "War Gaming the the Alternatives," right, and there's a bunch of different paragraphs that conclude with either a Trump wins or a Biden wins scenario, and John Eastman went out, uh, to the media, uh, to National Review, uh, on our buddy Lawrence Lessig's Another Way podcast, uh, and and mounted a full frontal offensive that said, "Look, what I did, this was a memorandum, legal a memo from me to my client, Donald Trump, the president. And I wanted to set out all the different options, right?"

0:30:16 Andrew: So it included the two pager, right, that just declare them, right. It also includes a maybe we send it to the House of Representatives. Maybe we just delay for a little while and see what the states do. My job as a lawyer is to work through everything. And by the way, if you put this in proper context, um, I was just running through all the possibilities, and ultimately I told the president, I told, I told Mike Pence, obviously you shouldn't do the ones that require you to, you know, unilaterally declare certain electoral votes valid or invalid, that would be foolish, right?

0:30:40 Thomas: So so like he prepared a list of options that included a bunch of crimes, but then was like, well, don't do those ones though. Is that, do I have that right?

0:30:53 Andrew: Uncharitably. But yes you do, and and I don't need to be all that charitable.

0:30:59 Thomas: The ones marked crime, don't do. And then he taps his nose you oh

0:31:03 Andrew: So let's cue this up. We've got two clips. This is John Eastman's voice. The first is at four minutes and fifty seven seconds in onto Lawrence Lessig's podcast. And you will hear him definitively waive attorney client privilege. So here we go.

0:31:18 Thomas: Wow okay

0:31:20 Clip: Did have a client in this. The former President of the United States has authorized me to talk about these things. I want to make that clear up front.

0:31:27 Andrew: That's it. All right. So that's real bad for your waiver argument, right?

0:31:28 Thomas: Yeah. Now.

0:31:32 Andrew: I had a client. My client said, sure, go talk to a podcast about the contents of legal advice that you gave me. That's the knockdown right there.

0:31:42 Thomas: Like, but, you can you constrain it, be like, well, that was referring to specific things but not, such you and such things. Hmm.

0:31:47 Andrew: Like you can't selectively plead the fifth, you can't selectively waive and use offensively attorney-client privilege, right. Right. Then what you would do is right in every memoranda, I would write that, here's this here's the other side. And then when you get caught, you would say, all right, well, I'm going to selectively release these three sentences from the memorandum that will exonerate my client and not, you know, the rest of it that would incriminate. No, you got to, you got a pick. Either all of it's fair game in public or none of it is fair game, in public.

0:32:10 Thomas: Huh. Oh. I just would have thought you'd be able to, with your attorney, be like, "All right, for public relations purposes, I guess I authorize you, Andrew, to talk about this component of, you know, of what we're doing." You can.

0:32:29 Andrew: It's discreet, if it is a discreet matter, right, for example, I authorize, uh, waiving the privilege to the extent of showing that you represented, you know, my son as well, or what, you know, what I mean, like, you could, you can do that, but but you can't selectively, within a subject matter, waive the privilege but retain the rest of it, so that sounds pretty blanket to me, um, something that'd real bad for John Eastman would be if, uh, Donald Trump were to come out and and say, "I never said that," um, that would, be way worse for John Eastman, way better for Donald Trump.

Now I want you to queue up, because this is the summary of the John Eastmen lie, and I want to hear it coming out of his mouth, okay, this is one hour 15 minutes and 20 seconds into the interview, into an hour and a half long interview, and this is basically Eastman summarizing the position, right, the aggressive one that he calls here, you will hear him call it foolish, is the one that allowed Mike Pence to just determine whether electoral votes were valid or not. So one, 15, 20.

0:32:32 Thomas: OK. Hmm. OK, yep. Yeah.

0:33:34 Clip: To do that. Premise your thing under my view of the law. This is one of the alternatives or scenarios I posit in this memo. And at the end of the day, when the Vice President asked me directly, do you think I have that authority, I said it's an open question, which I believe it is, I think it's the weaker of the argument, um, but even if you had that authority, it would be foolish to exercise it in the absence of the legislatures of those states having certified the alternate slate of electors, and I think that's perfectly consistent with saying that I don't think Gordon had that, that authority, either.

0:34:09 Andrew: Now you've heard the words coming out of John Eastman's mouth, right, and you hear Professor Lessig defend him, that that's a perfectly reasonable thing for a lawyer to do, right, to say, "Yep, I laid out all the alternatives, I said it's, you not completely settled, this one argument is kind of way out there on the extremes, and you'd be an idiot if you tried to exercise that power," and that's why, before yesterday, I thought this can't be how Trump gets arrested, I, right?

Thought 1-6 would be damning, that we would get evidence about the Oath Keepers and the Three Percenters, and it would look bad for him politically, and it would be useful for us in stopping the movement, but I didn't think it was going to lead to a criminal conviction. But what if you could prove that John Eastman was lying right there?

What if he was stupid enough to put in writing that nobody believed any of this nonsense, and not only did he never call his advice foolish, but that he kept pressuring Vice President Pence to knowingly break the law even after the insurrection, even after, right, the Oath Keepers and the Three Percenters have broken into and stormed the Senate.

0:35:13 Thomas: That's an oddly specific hypothetical so uh what if you could prove that andrew

0:35:17 Andrew: Yeah, here's where we enter our hero, Mike Pence's chief of counsel, Greg Jacob, the guy who was in the room when John Eastman was sharing this view with the vice president. By the way, Lawrence Lessig is going to come back on the show. I emailed him late last night. He got back to me this morning. So next week, I think we're going to we're going to have him on to to see what else we can't tease out of this.

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0:37:49 Andrew: So as it turns out, has testified and been formally deposed by the one six committee The deposition is not otherwise publicly available as a document. The testimony Right. But not not the deposition, but they're not sealed either. So portions were attached to this pleading. I downloaded those and have read them all. So this is exhibit F to the opposition. Again, I've got it upload. I've all of these. They're attached to the Wood Declaration are are on our website. On page 90 of that deposition. He is asked about John Eastman's lie. OK. So the The attorney representing the one six committee says, all right, this is entitled Wargaming the Alternatives. Can you, Mr. Jacob, tell us whether Dr. Eastman went through these alternatives right on the meeting with the president and vice president on the 4th of January?

0:38:39 Andrew: And Jacob says, yeah, I don't think he said so. Then the follow-up question is, okay, can you tell us whether he went through some of these alternatives in meeting with the president? And Jacobs says, not at length, right. So the idea that, oh yeah, no, I'm going through all the alternatives, Jacobi's like, that's not exactly what happened. Then they play a radio interview with Peter Boils in which Eastman gives the same canned answer that you just heard him give to Lawrence Lessig. We know it's the same canned answer because of the way the follow-up questions develop, including the same word, foolish. So he says to Boyles, oh, I was just laying out the alternatives. It would be foolish to reject the electors. And then Jacob is asked, do you think that's an accurate description of the advice that John Eastman actually gave to the president and vice president?

0:39:26 Andrew: Jacob's answer, not all of it. And I want to read you verbatim what Jacob says, says, because again, this was a different radio show that he's being asked about, but it shows you how rehearsed Eastman's lie was. And so Jacob says, well, it's the part where he, up to the point where he says, open question, right? You heard him say that. That sounds, he might've used those words. I don't recall whether he used them specifically, right. But I do not recognize the statements he makes thereafter when he says it would be foolish to reject the slates. I don't recall him using that word, and I would be shocked if he had. I don't recall any of that sequence that sort of goes from that point forward. Follow-up question. And when he describes there as being a foolish move, meaning the vice president unilaterally rejecting electors, is that exactly what he urged the vice President to do when he met with you on the 5th?

0:40:16 Andrew: Answer. When he met on the 5th, and I have contemporaneous notes of the meeting that reflect this, he came in and said, I'm here asking you to reject the electors. That's how he opened at the meeting.

0:40:22 Thomas: Yeah. And then he mumbled, even though it'd be foolish. And then like that, that somehow gets him out of it. And because

0:40:35 Andrew: Sidebar, those notes were not attached to the motion, by the way. So everything we have here is actually, way, right, like what the one six committee has is even worse than what I'm about to go through here, and I'm a bet to show you how bad it is for Eastman and Trump just now. Okay, so, so Jacob's testimony, this is page 96, crystal clear answer.

So on the 5th, this was the day before the insurrection, we have the meeting that starts late morning because he, Eastman, was delayed for the Georgia proceedings, and there he makes it clear, reject. When he comes back to the procedural theory later that day, at that point, he's very clear. Now he's quoting Eastman talking to him. I know you are not going to just reject. Would you consider this, this, and this? Is Okay, instead of just rejecting, just delay it for a little while and let's see if the states will certify alternate slates or whatever, and this has called in Jacob's testimony the pivot.

Okay, and so the idea is prior to January 5th, on January 4th, that was, that was the first and any of these guys had ever heard of John Eastman. John, right, Easton's position was the position set out in the two-page email, right. Here's what we do, just bring in Mike Pence. And he, Electoral Count Act is unconstitutional. So he gets to declare whoever's the real electors. And he's just going to throw out all the seven states that we've identified. And that means that Donald Trump will win 232 to 220.

0:41:56 Thomas: Not, is he asking Pence directly to do this or?

0:41:58 Andrew: There's at least one instance in which we know he's asking Pence directly. Correctly, much of this is he's trying to lie because it's clear because Pence is like, well, I don't know. And, and it's clear that he's tying to lobby Pence's lawyer, Jacob. And, right, we have lots of evidence of that, which I'm about to get to at some point. So that, that continues on the, on the fourth.

That is the position at the beginning of the day on January 5th, one day before, and then at some point Eastman regroups and we infer talks to Donald Trump, talks to what he said, what he calls they, that's a fun moment we'll get to in a second, and it's like, all right, I guess you guys aren't going for the just unilaterally reject, maybe what you can do is just the whole thing instead, right, just, just delay it, let the states kind of figure it out.

And, uh, and Jacob tells him the, the problem with your argument is that it still means not certifying the electors pursuant to the Electoral Count Act, right. So it's the same argument. I get that it feels less extreme, right, but it's premised on the same, you don't know what the hell you're talking about. And to be clear, right, the ECA, that's 3 USC 15, says, right, the president of the Senate, the vice president, shall make a list of the votes as they shall appear from the said certificates, and the votes having been ascertained and counted according to the rules in this subchapter provided.

That means you resolve all the objections, which comes next and are kind of confusing. The result of the same shall be delivered to the president of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected president and vice president of the United States.

0:42:03 Thomas: Okay. Yeah. Yeah, yeah.

0:43:38 Andrew: States and

0:43:38 Thomas: As an avid OA listener I know that shall means shall.

0:43:40 Andrew: Yeah, it means you have to do this, and they in fact did this, right. So after the insurrection, right, the Senate in the House, they reconvened, they ascertained the votes, they went back to Pence, he announced the results, 3:42 in the morning. So right, the Eastman pivot is from, okay, just have Mike Pence declare Donald Trump the winner because magic, to, okay, just, just have Mike Pence also violate the law and, you send this back to the states for whatever so that they can resolve these fraud issues.

Now, right, you might be asking, the argument's super dumb, but as long as Eastman and Trump believe it, isn't that a defense? Defense, it's not corrupt, it's not dishonest, it's not deceitful. Except we now have two things, have Jacob's continuing testimony about this argument. Now I'm not gonna read all of it, you can, starts at page 107, but, but Jacob says that, so, so they meet on the fourth, and then after that, Jacob is skeptical, and he says, so from my perspective, Johnny's been objective was to persuade me. I sort of viewed it as my challenge to use Socratic questioning during the course of the thing to see if I could persuade him that there's just no way. This is, by the way, the greatest Freudian typo in the history

0:43:45 Thomas: Yeah. Yeah,

0:44:56 Andrew: Of depositions, for Freudian slip. There's just no way that a small mind, I'm sorry, a small government conservative would ever adopt the position that he was taking. So that was my basic reaction. So then there's four pages describing the back and forth and questions about this and that, and then finally Jacob says, but he, Eastman, acknowledged by the end that first of all, no reasonable person would actually want that clause read that way, because if indeed it did mean that the vice president had such authority, you could never have a party switch thereafter, you would just have the same party win continuously.

If indeed a vice president has the authority to just declare the winner of every state, he acknowledged that he didn't think Kamala Harris should have that authority in 2024, he didn't think Al Gore should have had it in 2000. And he acknowledged that no small government conservative would think that that was the case. And then I said, if this case got to the Supreme Court, we'd lose 9-0, wouldn't we, if we actually took your position, and it got up there? And Eastman started out at 7-2. And I said well who were the two? And he said well I think maybe Clarence Thomas.

0:45:59 Andrew: And so we went through a few Thomas opinions and finally he acknowledged, quote, "Yeah, all right, it's it would be 9-0." Question, "Did he say who the other one was?" Answer, "I don't recall. I don't recall." But he ultimately acknowledged that none of them would actually back this position when you took into account the fact that what you have is a mildly ambiguous phrase, a nonsensical result that has all kinds of terrible policy implications, and uniform historical practice against it. It just didn't work. So I kind of wound up, "Can't we just acknowledge that this is a really bad idea?" You. And he didn't quite say yes, but he did say, "Well, all right, I get everything you're saying. They're going to be really disappointed." Jacob says, "I don't know who 'they' is." You can. I know what your follow-up question is

0:45:49 Thomas: Well, yeah. Yeah well Alito obviously yeah. Wow.

0:46:44 Thomas: Yeah.

0:46:44 Andrew: Going to Be. He said, they're going To be really disappointed. Question. My follow- up question is, who's the they? And then in the transcript, it says laughter. I don't know. I don't know. He Said, They're Going To Be Really Disappointed That I Wasn't Able To Persuade You. And Then He Left. All right.

0:46:51 Thomas: Wow. I also want to note that these Republicans and and one insurrectionist seem to have a more optimistic view of the court from my perspective than I do. Uh, I feel like you'd get a guaranteed two.

0:47:07 Andrew: Noted.

0:47:07 Thomas: Votes out of this, but a side side note. Mm-hmm.

0:47:11 Andrew: But let's continue to steelman about the other side. This isn't this still he said he said like an Eastman, except because Jacob is cooperating with the one six committee. We have four separate exhibits that are Eastman emails pestering Jacob to change his mind. Those are exhibits K, L, M, and N. They are in increasing severity. The last two are proverbial smoking guns. So maybe we're going to build our way up to It.

0:47:18 Thomas: Jeez.

0:47:37 Thomas: What a. Build.

0:47:37 Andrew: Right. Exhibit K was sent at 9:29 p.m. Eastern time on Tuesday, January 5th. Okay, so think about this. On the timeline, this is the night before the insurrection. This is after a day of the pivot. It, of trying to persuade Greg Jacob in person, hey, just, you know, have your boss, you know, just throw out votes. And it attaches a letter from the Pennsylvania Republicans, you might recall this was a public letter at the time, saying, "We ask for more time, given that the U.S. Supreme Court is about to hear Trump versus Bukvar, and we ask you to delay certification of the Electoral College to allow due process as we pursue election integrity in our Commonwealth." You might recall that the Supreme Court did hear Trump vs. Bukbar. They threw it out. It was nonsense. They've ruled against the Trump position 61 times out of 62. The only time they ruled in favor and was the Pennsylvania Supreme Court, saying, "Yes, you can sneeze on people." Um, but right.

0:47:37 Thomas: Yeah.

0:48:28 Andrew: As bad as that was, right, like that's a super, that's terrifying, insurrectiony letter from the Pennsylvania, uh, Republicans. Um, Eastman has to lie about it to Jake. He attaches it and says, "Greg, good talk earlier tonight." Again, remember tonight is the fifth, it's the night before the insurrection, right? "Major new development attached. This is huge. As it now looks like Pennsylvania legislature will vote to recertify its electors if Vice President Pence" - that's the key part - "implements the plan we discussed." End of quote. Now, that's, that's his words, implements the plan we discussed. All, maybe you're not convinced yet.

0:48:43 Thomas: Now.

0:49:05 Thomas: I'm convinced, but yeah, yeah, no, I'm not convinced, just so you'll do more episode. Oh.

0:49:09 Andrew: How, how about we, we go to exhibit L? Okay, this is a lengthy email chain of responses to that email that was sent out the night of, uh, January 5th. Uh, Greg Jacob, apparently, you know, was in bed early, sleeper, uh, because he doesn't respond until the morning. Now, this is 10:44 a.m. We're an hour away from Trump's speech on the Ellipse, two hours away from the gaveling into session of Congress, of the joint session of Congress, by Nancy Pelosi, when Pence will convene and count the electoral votes. So this one requires a little bit of parsing because it's a very lawyerly reply. Right. So, right, night before, John Eastman says, "Hey, you know, if you, you, if you slow things up, then who knows, Pennsylvania might, blah, blah, blah." Jacob says, "Thanks, John, we'll call."

0:49:58 Andrew: "Is it unconstitutional for the Electoral Count Act to direct that the members should do objections at least in the first instance? Would the constitutional imperative you argue for not kick in only after that statutorily required mechanism has been applied and failed to uphold the Constitution?" Question mark, end of email. Now, if you're looking at that, you're like, all right, I don't, that doesn't seem that provocative. Right. Like that. He's asking a couple law questions about the constitutional imperative and big words and stuff like that.

It provokes the response of, "I'm sorry, Greg, but this is small minded," and an angry response from John Eastman. So I want to explain, I'm going to read that full response to you, but I want to explain why that made John, John Eastman angry, because John Eastmen, again, smart guy, recognizes that this reply says, "We, we are not going to begin by having Mike Pence come out and announce that we're going to delay the count." Right. That's not on the table. If there are objections, we will handle objections as they come up, but we're not doing your option of just, sorry, uh, there's too much uncertainty, we're going to withhold counting votes for the time being. And what that means is that this was the first part of their plan. This provides a key aspect in the timing. If there were communications from Eastman to Trump, we do not know of these yet, that say, "Yeah, Pence is gonna screw us, sorry, like, uh, we gotta find some other way to slow this down,"

0:51:31 Andrew: If that advice exists, obviously would be a smokier smoking gun, I believe, from the way that John Eastman writes and how careless he is, that something like that likely exists. I don't want to tell you that it does. I will tell you what does does exist is damning, is okay, is is criminally damning. Uh, but, this little bit here, and the fact that Eastman gets so angry, uh, about it, provides the motive for wanting to interrupt the process. It really helps connect up something that, um, would explain the shift in, in, in Donald Trump's tone, uh, throughout the course of, of one six. So right up until that morning, Trump and Eastman were still holding out hope that, you know, Pence might cancel or postpone or hold open or whatever. So we know that this is the case because here's Eastman's reply. "I'm sorry, Greg, but this is small minded. You're sticking with minor procedural statutes while the Constitution is being shredded."

0:51:37 Thomas: And

0:52:22 Andrew: "I gave you the Lincoln example yesterday. Here's another. In the situation room at the White House during the first Iraq War, the Secretary of Interior said that the law required an environmental impact assessment before the president could order the bombing of Iraqi oil fields. Technically true, but nonsense. Luckily, Bush got statesmanship advice and ignored that statutory requirement." That's the reply. Let's parse that out. We all know what the Lincoln example is here, right? That is Abraham Lincoln suspending the writ of habeas corpus during the Civil War, and there is no way to read that reply as other than, yeah, "Who, you're sticking with minor laws while, you know, Rome is burning."

Right. So there, there comes a time when, a to lead, to to be a statesman you have to say, "I'm going to break the law, I'm gonna suspend the writ of habeas corpus, I'm doing to suspend the, the law," that was technically true, that required an environmental impact assessment in order to start bombing the Iraqi oil fields anyway. This is John Eastman encouraging you, break the law. The response back to this is the response that I read at the beginning of the episode.

It, right, begins with, "John, very respectfully, I just don't, in the, the end, believe that there is a single justice on the U.S. Supreme Court or a single judge in any of our courts of appeals who is as broad-minded as you when it comes to the irrelevance of statutes enacted by the u s Congress and followed without exception for more than 130 years. They cannot be set aside except when in direct conflict with the Constitution that our revered framers handed us. And, very respectfully, I don't"

0:53:59 Andrew: Think that a single one of those framers would agree with your position either. Certainly, Judge Ludig has made it clear that he does not. And And there was no reasonable argument that the Constitution directs or empowers the vice president to set a procedure followed for 130 years before it has even been resorted to. Lincoln suspended the writ when the body entrusted with that authority was out of session and then submitted it to them as soon as it returned. I understand your argument that several state legislatures were out of section, but the role of state legislators for our entire history ended at the time that the electoral certificates are submitted to Congress. Congress has debated submissions, including some competing submissions. It has never once referred them out to state legislatures to decide. I respect your heart here. I share your concerns about what Democrats will do in power. I have run down every legal trail you have placed before me to its conclusion. And I respectfully conclude that as a legal framework, it is a results oriented position that you would never support if attempted by the opposition and essentially entirely made up.

0:54:50 Andrew: And thanks to your bullshit, we are now under siege. This was sent at, I believe, I think either 2:14 or 3:14 p.m. We're-

0:54:58 Thomas: He says, "We're now under-" so, like- Mid-

0:55:00 Andrew: Now. Under. -seats. This is as the Capital is being breached. He's saying, "Good lord, what are you doing?" Here Eastman replies at 2 25 so it must have been 2:14, because Eastman replies 12 25 p.m. Mountain Standard Time. "My bullshit? Seriously, you think you can't adjourn the session because the Electoral Count Act says no adjournment while the compelling evidence is that the election was stolen continues to build and is already overwhelming? The siege is because you and your boss did not do what was necessary to allow this to be aired in a public way, so-" "-that the American people can see for themselves what happened."

0:55:00 Thomas: Oh. Wow. That's a bad-

0:55:36 Andrew: That's- -a bad document. "We're not at the worst yet." That's- That's- -l. Now- We move to Exhibit M.

0:55:36 Thomas: -document. Oh. Ah. Ah. Vince- McMahon.

0:55:43 Andrew: Yeah.

0:55:43 Thomas: Meme.

0:55:44 Andrew: One you might miss. Okay, the first thing that happens in response to that is Jacob tries to cool down the rhetoric. Now, this is occurring at a time in which this is, uh, between, between 6 and 8 p.m., in which the insurrectionists are being cleared out of the Capitol. Pipe bombs have been sent to the DNC and the RNC. Everybody is being dispersed, and they're trying to get some semblance of order to reconvene the session. And says, says, "I do apologize for that particular language, which was unbecoming of me and reflective of-" "-a man whose wife and three young children are currently glued to news reports as I am moved about to locations where we will be safe from people, mostly peaceful as CNN might say, who believed with all their hearts the theory that they were sold about the powers that could legitimately be exercised at the Capitol on this day. Please forgive me for that.

But the advice provided, it has, whether intended to or not, functioned as a serpent in the ear of the president of the United States, the most powerful office in the entire world. And here we are. For the record, we were in the middle of an open, widely televised debate that was airing every single point that you gave members of Congress to make. Interesting note.

When all of this went down and we had to suspend-" I say interesting note because this is, as far as I've seen, the first piece of evidence that there was direct coordination between-

0:56:20 Thomas: Um. Yeah.

0:57:07 Andrew: Donald -Trump's lawyer, John Eastman, and the insurrectionist members of Congress like Ted Cruz and Josh Hawley, who went in and advanced this. Ted Cruz advanced the, "I'm just asking for this to go back to the states and, you know, let us have some time to assure Americans who think the election is fraud." Seemed weird that it would be coincidental.

We, we have direct evidence here saying, "Yeah, not a coincidence, directly briefed." He continues, "I'm not for a moment suggesting that you intended this, but we were in fact giving you precisely the transparent debate that you suggest we were not. It was then up to you and the legal team to arm members with a case at least sufficient to convince the Senate that our own party controls.

I'm not hearing that case at the moment, which I was anticipating with great interest, having previously reviewed many of the underlying filed materials, because the Senate floor has been abandoned-" "-respectfully, it was gravely, gravely irresponsible of you to entice the president with an academic theory that had no legal viability and that you well know we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets.

The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are. I do not begrudge academics debating the most far-flung theories.

I love Dona myself, and I view the ferment of ideas as a good and helpful thing, but advising the president of the United States in an incredibly constitutionally fraught moment requires a seriousness of purpose, an understanding of the difference between abstract theory and legal reality, and appreciation of the power of both the office and the bully pulpit that was entirely absent here."

0:57:08 Thomas: Hmm.

0:58:48 Andrew: I'll say no more, and perhaps at some future Federalist Society convention we can more fully engage in the academic debate. God bless. -less Eastman's reply. Um, uh, "I appreciate tamping down the rhetoric. I will respond in kind. With all due respect, the VP statement today claimed the most aggressive position that had been discussed and rejected." Some believe that, as vice president- now he's quoting from Pence- "I should be able to accept or reject electoral votes unilaterally, but we had given a much more limited option, merely to adjourn to allow state legislatures to continue their work." That's the pivot.

"I remain of the view that not only would that have been the most prudent course, as it would have allowed for the opportunity for this thing to be heard out, but also had a fair chance of being approved, or at least not enjoined, by the courts." Alas, John gets this response. And again, this is while the Senate is adjourned because the Senate floor has been breached by insurrectionists. "John, did you advise the president that, in your professional judgment-" "-the vice president does not have the power to decide things unilaterally? Because that was what was pushed publicly repeatedly by the president and his surrogates earlier this week and without apparent legal correction. I acknowledge that the final proposal- to actual actions to be taken by the vice president in violation of the ECA that was retreated to last night- was more modest." That sentence is doing a lot of work, but-

0:58:55 Thomas: Yeah. Oh.

1:00:06 Andrew: -the legal theory is not, and it does not appear that the president ever got the memo. And here is John Eastman's reply, and this is what leads me to, to believe that if the One sex committee has this, I cannot wait to see what they're going to get from the treasure trove of Eastman documents that this- -court will be reviewing. Eastman replies, "He's been so advised," meaning the president, "as you know, because you were on the phone when I did it." OK, now this means, by the way, that testimony of Greg Jacob as to what the president was told is now directly relevant. Eastman, right, has confirmed the time that he spoke to the president regarding these actions was when Greg Jacob was present. So none of this like, "Well, you know, that in context, he told me privately, blah, blah." Nope. He said, "You were on-" the phone when I did Go it

1:00:24 Thomas: Well.

1:00:53 Thomas: Plus. Plus. Well. I don't know if this matters, but, would- that still- that can't be privileged then, right, if another person was- -on- -the- -phone- Well- Wasn't this Pence's- -counsel?

1:00:55 Andrew: Um, If- They're- All- -representing- -the president, president- is Pence's counsel. You could argue that executive privilege would cover the vice president as well. I wouldn't call this the same as a third party of like, you know, sending -the draft to Tucker Carlson. "So you were on the phone when I did it." "I should not discuss other conversations that I may or may not have had privately on that score with someone who is a client, but, you know him. Once he gets something in his head, it is hard to get him to change course. When this is over, we should have a good bottle of wine over a nice dinner someplace."

1:01:10 Thomas: Okay. Gotcha.

1:01:36 Andrew: So that is, uh, yeah, the president was advised that this was a cockamamie bullshit theory, but you know him, once he get something in his head, it's hard to get him to change course. Now, could John Eastman throw, throw himself under the bus, uh, to defend Donald Trump, we're

1:01:44 Thomas: Yeah. That was going to be my question. Uh, it sounded Like from, some from of the, uh you know, the emails and stuff you're going through. It sounded like a case could be made that Eastman and again, just, just putting the argument and forth that Eastman was the one who put this terrible idea into Trump's head. Let's say hypothetically that Eastmen put the idea into, Trump said, Trump's not a lawyer. You know, his lawyer tells him, yeah, you know, this is totally legal. This is a great case. What you can do is the following interventions here. That's totally legal would that be a defense for Trump to be like, well, I don't, he's the lawyer. I thought, you Know, he told me that this was legal. This was good.

1:01:53 Andrew: Yeah You have to prove that at some point Eastman conveyed the illegality of the action to Donald Trump. What we have right now is, "This represents what I have said and I am speaking on behalf of my client," now, right? John Eastman could say, "Actually, I never communicated any of this to Donald Trump and I was out, you know, kind of off alone in the wilderness," and you know, if, uh, what he wants to do is 20 years in prison with very little hope that uh, he's going to get pardoned for that, but there's... there's one more piece of evidence that think is the smokiest of all the guns. And that is this

1:02:44 Thomas: Mm hmm. Uh, wow. Can't even see the gun at this point, it's all, it's just smoke, yeah.

1:03:10 Andrew: Is sent at 9:44 p.m. Mountain Standard Time, 11:44 p.m. Eastern Time. This is 10 minutes after Mike Pence has reconvened the Senate, now continuing deliberations on the objections are underway. Way. And Eastman writes to Greg Jacob, remember that Pence will not certify the election until three forty two in the morning. Eastman rights. "The Senate and the House have both violated the Electoral Count Act this evening. They debated the Arizona objections for more than two hours." Take a slight minute to appreciate the unmitigated gall that it's. Yeah.

You know, if you start the clock running before the insurrection begins and then keep it running, you know, while the Senate is being evacuated to a safe Right, so, okay, they violated the Electoral Count Act, that's a violation of 3 USC 17, and the vice president allowed further debate or statements by the leadership after the question had been voted upon. Yeah, technically true. Mitch, right, McConnell, uh, took to the floor of the Senate to decry what has happened. Uh, Lindsey Graham said, "This is enough, is enough," and, uh, we've got to move forward with this. So, so, so, yeah. And they had that debate upon motion approved by the VP in violation of the requirement in 3 U.S.C. 15 that after the vote in the separate houses, quote, "They shall immediately again meet," end of quote.

1:03:54 Thomas: Is This him trying to be like, "Oh, I guess that Electoral Count Act, not so set in stone after all if you didn't perfectly follow it," when the capital was seized, you

1:04:39 Andrew: Hilariously, the way you put it is less stupid than the way that John Eastman actually put it. I'm going to read this word for you. And I love the fact that you have not read this document.

1:04:42 Thomas: I'm really good at not

1:04:49 Andrew: So now that the precedent has been set that the Electoral Count Act is not quite so sacrosanct As was previously claimed, this is the part to pay attention if you've been napping for the previous 70 minutes. "I implore you to consider one more relatively minor violation and adjourn for 10 days to allow the legislatures to finish their investigations, as well as allow a full forensic audience audit of the massive amount of illegal activity that has occurred here. If none of that moves the needle, at least a good portion of the 75 million people who supported President Trump will have seen a process that allowed the illegality to be aired." We often, you make reference to the, you Beavis and Butt-Head standard of, "I would like, like to exchange good goods and services for sexual favors." It is hard to imagine a person putting in writing something more damning than, eh,

1:04:49 Thomas: Having red documents. Oh, my gosh, wow.

1:05:08 Thomas: Yeah the

1:05:40 Andrew: So the law doesn't really seem to matter too much, so why not break it again? And combined with the previous exhortations, with the Lincoln example, with the Iraq example, I think it's not hard at all. I think it is a slam dunk to prove, prove that John Eastman 100% knew that the course that he was embarking on was absolutely illegal. So the only question is, right, yep, can he say, uh, I, never shared that view, yeah, I did it on my own, and the answer to that is, uh, yeah, I mean, there's nothing thing to stop John Eastman from lying, um, but, that would be confessing to the crime? That would be confessed to the top line offense, right?

Remember we, we talked about two separate crimes, uh, that are applicable, uh, to Donald Trump that are set out in this, uh, in this memorandum. Um, the second was the 18 USC 371, right? That is the agreement, uh, not seditious conspiracy, but conspiracy to defraud the United States. But the first one is obstruction of an official proceeding. And I want to go back and reread. This is 18 USC 1512 C2. "Whoever corruptly obstructs, influences, or impedes any official proceeding or attempts to do so shall be fined under this title or imprisoned not more than 20 years, or both." Well, corrupt, meaning dishonest or deceitful, uh, you have his confession right there in writing. I

1:06:07 Thomas: Question I asked before, right? Did it, on my own, yeah, okay, yeah yeah

1:07:07 Andrew: Knew this argument was nonsense, I know the Electoral Count Act doesn't allow you to suspend the, uh, the cap, but I want you to do it anyway. Would have to have no other documents, right, between him and Trump. I don't know, he'd have to say he was lying in those emails and on Lessing show and everywhere, and he'd have to want to do 20 years for somebody who very likely will not be president again to pardon him.

I think the question is, could a grand jury indict, and could a reasonable, pedigree, could a jury of his beers find, on the basis of that evidence, that Donald Trump authorized Eastman to engage in conduct that was corrupt, dishonest, or deceitful for purposes of 18 U.S.C. 371? I think the evidence is enough from what we have. And there's more. There's more to come.

I want to end, since we went through the documents, and quickly with two pieces of really good news that help kind of put it together. And that is we know of two more depositions that took place in connection with the one six Committee that involved members of the Department of Justice, and therefore were attended by current members ofthe DOJ, by Kira Antel from the Office of Legislative Affairs and by Deputy Attorney General Brad Weinsheimer. OK, so the DOJ sat through these depositions of former acting Attorney General Jeff Rosen and former acting Deputy Assistant Attorney General Richard Donahue. We do not have their full, just like we don't have everything else. But what we do have is pretty illustrative of something that has gone a long way towards restoring some of the pre-Yodel Mountain faith that I had.

1:07:13 Thomas: Wow yeah

1:08:52 Andrew: OK. And I hope that it's encouraging and optimistic for you, too. This begins at page 123 of Exhibit B. And it discusses I don't know if you remember this, around but in late December, a DOJ lawyer, a DoJ civil lawyer started circulating. His name was Jeffrey Clark, and he circulated memos about encouraging the state legislatures to seat alternative slates of electors. And there was a proposal made internally at the DOJ, this got leaked, that Trump was going to fire his existing acting attorney general, Jeff Rosen, and replace him with Jeffrey Clark. And I'm going to just read to you from from the testimony here. At one point early on, the president said something to the effect of what do I have to lose?

1:09:39 Andrew: If I do this, what do we have to lose? And I, and again, I is Richard Donahue. This is a an assistant attorney general specifically appointed by Donald Trump. Right. Right. Not a, not a hanger on, not a leftover. And I said, "Mr. President, you have a great deal to lose. Is this really how you want your administration to end? You're going to hurt the country. You're gonna hurt the department. You can hurt yourself. And with people grasping at straws on these desperate theories about election fraud, is this in anyone's best interest?" And then I said something to the effect of, "You're gonna have a huge personnel blowout within hours because you're have all kinds of problems with resignations and other issues. And that's not going to be in anyone's interest." And so the president said, "Well, suppose I do this?" By boy, reading this depo, this rings as true as any hearsay ever has, right?

1:10:24 Andrew: So the president said, well, suppose I do this. I was sitting directly in front of the president. Jeff Rosen was to my right. Jeff Clark was to My left. The president says, suppose I do this, suppose I replace him, Jeff Rosen, with him, jeff Clark. What do you do? And I said, sir, I would resign immediately. There's no way there's no Way I'm serving one minute under this guy. And then the president turned to steve engel and he said, Steve, you wouldn't resign, would you? And Steve said, absolutely, I would, Mr. President. You'd leave me no choice. And I said, and we're not the only ones. You should understand that your entire department leadership will resign. Every assistant attorney general will resign." I didn't tell him about the call or anything. And by the way, that's not present in this. I would love to know what that call was.

The 1-6 Committee knows what it is because they've had the whole deposition. But I didn'T tell him about the caller or anything, but I made it clear that I knew what they were were going to do. And I said, Mr. President, these aren't bureaucratic leftovers from another administration. You picked them. This is your leadership team. You sent every one of them to the Senate. You got them confirmed. What's that going to say about you when we all walk out at the same time?

1:10:42 Thomas: These

1:11:29 Andrew: And I don't even know what that's going to do to the U.S. attorney community. You could have mass resignations among your U. S. attorneys and it will trickle down from there. You could have resignations across the department. And what happens if within 48 hours we have hundreds of resignations from your Justice Department because of your actions. What does that say about your leadership? Steve Engel, I remember, made the point that Jeff Clark would be leading what he called a graveyard. There would be no one left. I made thepoint that Jeff Clarke is not competent to serve as attorney general. He's never been a criminal attorney. He's ever conducted a criminal investigation in his life. He'snever been in front of a grand jury, much less a trial jury. And he kind of retorted by saying, well, I've done a lot of complicated appeals and civil litigation, environmental litigation, and things like that. And I said, that's right. You're an environmental lawyer. How about you go back to your office and we'll call you when there's an oil spill?

1:12:20 Andrew: And then in perhaps the most understated line of the deposition, it says, and so it got very confrontational at points. We've gone on at length. I would also encourage reading Jeffrey Rosen's account. Um, but I wanted to end with that optimistic note that again, these are not, you know, I, we have lionized the ethical behavior, uh, of folks, in you this episode, these are not liberals. These are not people that we, they, they are, they are, these are people that have devoted their lives, uh, in service to far right-wing causes. But the position that I postulated early on, that sort of Sunday Night Massacre scenario, it's clear that this was a potential example. And there was still, even up to the very end, some ability for people with whom we share very little to say, uh, we don't want to lose all semblance of rule of law, there are some lines that can't be crossed. Now I wish these people were on board for a lot more of those, right? Like, let's not, you

1:12:44 Thomas: People still suck, yeah, yeah.

1:13:20 Andrew: Know, yeah, let's, let's not build a statute of Greg Jacob just yet. Um, but I'm, uh, very encouraged by the fact that these are the kinds of people who are cooperating with the One six committee, committee. Um, and all of that leads me to believe, um, that this, uh, has got an awful lot of life left in it. Yeah.

1:13:36 Thomas: That Is huge, what's the next thing we're waiting for, Andrew, in this? What's the first thing we are going to see, I guess, a reply brief from Eastman? Or something.

1:13:43 Andrew: Yeah. We will see a reply brief in support of his, uh, motion for, uh, injunctive relief just to block, uh, the release of, of, uh, these documents to the 1-6 committee. And then the court will rule. As I said, they will almost certainly engage in an in-camera inspection. And I cannot imagine that that court is not going to hold that these are documents not protected by attorney-client privilege. The, and moment that they're not protectedby attorney- client privilege, the court could release that as an appendix to its opinion, right? Like, it is, they're no longer protected at all, they can be public documents. And, uh, believe, believe you me, you know, I love me some documents. So, uh, yeah, this is gonna, this is developing very, very quickly, and it is really, really important that we, you know, not ease up on the pressure, and that we, um, talk to our elected officials and say, uh, let's, let's ask the question as to whether there have been formal referrals out of the one six committee to the DOJ.

1:13:44 Thomas: Ok.

1:14:41 Andrew: Let's ask about what the role is, because, again, I'm inferring a lot here. I'm incurring that when members of the Department of Justice sat in on that deposition, those depositions of ex-DOJ employees, that they didn't just come back and go like, "Wow, that was," they go have a beer and go, "Yeah, that was that's a pretty big, big testimony," that they, that they went back and talked to the Attorney General and said, "Look, they've got a really good case against the President here on obstruction of an official proceeding and on conspiracy." I'm, I'm inferring that, I to, I want you to know, able to. And one of the things that we can do as citizens is make that known to our elected officials. So, yeah, let's, let's keep the pressure on.

1:15:19 Thomas: Andrew, this is huge, this is an absolutely immense smoking gun, the smockingest of smocking guns. Wow, thank you for the breakdown and a little spring, bringing my step today after that one. That is, whew, that is big. Share this out, everybody. Get the word out. This is huge news. So huge, we're going to skip my normal Thomas Takes the Ethics Exam. I have to, as a reminder, I have turned these episodes over in one day. So let's skip that and let's go straight to thanking our new patrons.

1:15:49 Clip: And thank you, Let's go!

1:15:51 Thomas: I will start us off, thank you so much to Cheryl, Chris Kavanagh, Donald J Orf, Valerie Drew, Brett Kern, kerry budding, Aaron of MapReston.com, or Kat Pielemeier, and EricaT. Go ahead, that's

1:16:08 Andrew: And thank you to Austin Sabel, Erik Farrar. I think that's a returning patron. Welcome back, Eric. James Douglas, Conrad Michaels's Law Review. Yeah, we will. We'll sponsor that. Sargon's smug fucking face. That's a deep cut shout out for you. Yeah. Yeah, but hey, well, Melanie Clark, my wife's so accrual, she doesn't depreciate me anymore. Gotta love a good accounting joke.

1:16:23 Thomas: An old one yeah yeah

1:16:32 Andrew: Maybe future Pharmer Lawyer, and that's pharma with a P-H-A, Jo-ey Par, and Heather Greer Klein. Thank you all so much for supporting the show. If you want to do that, just head on over to patreon.com/law, and you can sign up for as little as a buck an episode.

1:16:31 Thomas: Yeah ad free shows all the goodies Law'd Awful Movies each month Q&A questions that just happened and the Q&H Q&I audio you get in the feed and also you should see a post in the next couple days for the new intro quotes that's coming up and patrons get the opportunity to suggest those so So plenty of good reasons to join at patreon.com/law. Thanks so much, new patrons. And that's our show. Once again, share the F out of this, please. This is good news that we needed. We all needed this good news. So please share this. Great work, Andrew. We'll see you next time.

1:16:48 Andrew: Ooh, I forgot about that.

1:17:24 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:17:57 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.