The Lawyers Behind 1/6 Are Trying to Rewrite History. We Can't Let Them.

Transcript

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

0:00:00 Clip: You must never, ever give up or give in. You must keep the faith and keep your eyes on the prize. That is your calling. That is you mission. That is moral obligation. That is mandate. Get out there and do it. Get in the way. Change happens because people care. The people have the power to make this life free and beautiful. To make this live a wonderful adventure.

0:00:38 Clip: I still believe with all my heart, America can be a place where no child is left hungry, no community is left behind, and no one gets told they don't belong. Country is always worth it.

0:00:57 Thomas: And welcome to opening arguments This is episode 1108, insurrection special, insurrection anniversary special. I'm Thomas Smith. That over there is real-life attorney, uh, not disbarred unlike some of the folks we might might be discussing today. Matt Cameron, how are you doing, Matt?

0:01:14 Matt: I can honestly say I've never once advised anybody on how to overthrow the government. And so almost sorry to say that. But yeah, this is some important history I want to do today because I feel like this is already getting erased. And in fact, some of the people involved that we're going to talk about today are already trying to erase it and write themselves out of it. So let's put them right back in there. That's what I'm thinking today.

0:01:35 Thomas: It can't be said enough. And hopefully if we get it in people's consciousness, they won't vote for Trump. Oh, sorry. No, I'm in the wrong. Whoops. Wrong part of the calendar. No. It really is. As this comes out, it's January 6th. So can you believe it?

0:01:48 Matt: Had to do it.

0:01:49 Thomas: Four years. Oof. What a different time.

0:01:52 Matt: Thing about January 6th that I've been finding is I try to raise it with people whenever I can, especially people who are new to this country or maybe weren't born here that I work with. And a lot of people think it was just a riot. And I think maybe even some of our listeners might just remember it as a riot and the riot is important. Obviously we know about the riot. We saw it. I think we can all remember where we were that day, but I want to talk about the lawyers and the memos and the emails that got us there for months and months because that's the the part that I think is going to get written out of history.

0:02:20 Thomas: Yes. And also the violence and all that stuff wasn't just a right. There It's was also organization in terms of the quote unquote riot, like it, all parts of it. There were definitely people there who were just, you know, there because they're Trumpers and whatever they're sure. But like there was was also planned violence there was coordination there was uh you know it was it was so much more than they've whitewashed it to be it's really disturbing all

0:02:42 Matt: That's right. I think there's more to come that we're going to learn, but none of those people, those militias, proud boys, everybody that was armed and ready to go that day, they would not have been there if not for the two lawyers we're gonna talk about.

0:02:51 Thomas: I will say Matt had a fantastic idea uh and it timed out perfectly with this which is uh you now how we're really trying to make good on our resolutions this year uh resolution to do lot awful movies each each month, uh, in a timely fashion. And we're, we're getting, this is like January 1st and you know, everybody at the gym or whatever, or the second or whatever. It's like that we're in the lot awful movies gym. We're lifting movies. We're just, we're watching dog shit. Um, and there's a movie that is precisely on topic for today. Why Um. Don't you tell us about it? It's going to be what we're doing for lamb, uh this month.

0:03:11 Matt: That's right, yeah, we haven't seen it yet because it's coming out on January 6th, the day this episode is being released, but it's called The Eastman Dilemma, and

0:03:31 Thomas: But Matt, it's had a special, uh, premiere yesterday at Mar -a -Lago. So I wasn't able to get tickets is the problem.

0:03:34 Matt: At Mar -a -Lago. That'S right, so somebody's seen it. I am assuming based on everything I've read so far and the trailer that it is very bad so uh we will be sure to tell you why and how after we watch it it but is particularly trying to rehabilitate john eastman which he is on a campaign as we're going to talk about to do for himself and which we are in a campaign to stop that's right here we are

0:03:53 Thomas: Not do? Yeah. All right. Well, we're going to get that done and we're gonna get it done. This week is the plan. So, you know what, like I said, we're hitting that, that, uh, new year's resolution. We're early. We're working out. I ate a lettuce. I ate one lettuce today. That's how I'm really serious about this.

0:04:09 Matt: I for as bad as a lot for christmas was it was a sugary dessert compared to I'm sure what this into ordeal will be, but we're doing it for you, the people, once again.

0:04:16 Thomas: Boy. Yeah. At least that one was just horrible nonsense that didn't have like a deeper government undermining purpose. You know, like that's just bad.

0:04:25 Matt: Yeah. Not trying to rewrite history. Just, yeah, didn't understand anything.

0:04:28 Thomas: It did make me question the concept of good art. Like I was like, does that exist anymore? I don't know. But other than that, it was a coup against good taste. Yeah, no, looking I'm forward to that. patreon.com/law and also avoid the break we're about to take on Patreon. So after this little break, we'll talk about the insurrection and the whitewashing that has has happened since. Right, Matt, where do you want to begin today?

0:04:53 Matt: Well, I just want to say, I went looking to see if anybody had done what I want to do today. And I don't think it really has been done to put everything that I'm going to tell you about in one place. And certainly this show and other shows have talked a lot about people like John Eastman and Kenneth Chesebro. But as things have been unfolding, I think it's good to step back on January 6th and look back at the actual history And make sure that we're writing the history because they are trying to write the history. And that's not great because, you been talking a lot of in the last few months about how practicing lawyers can help to enable the transition of democracy into autocracy. And, you Know, we sort of were talking about how fascism really does require smart, competent, educated lawyer type people. So otherwise, if you want to do a bloodless coup, especially, you're not, it's not going to go very well. If you just show up and try to do things differently, you've got to have lawyers that make it look good. And we've got two of those today, two very well -respected lawyers coming from the highest tiers of the elite who were responsible for January 6th morally, legally, I think just literally responsible for what happened that day and for everything leading up to it and for just everything that we call January 6. The January 6th committee called the entire effort that they were putting in a coup in search of a legal theory. And I think that's a great title because that's really what we're talking about here. We're talking About the memos and the emails. I know that's not the most exciting thing to talk about when we all remember the visuals of this thing. But lawyers are trying to write themselves out of this. And I Think they bear a moral responsibility that we cannot let them erase. You know, remember, we've talked about this before, but Kristallnacht was authorized by memo. That was something the Nazi party put out, a two

0:06:23 Matt: -page memo to tell people how to do it and where and how to it. There were eight lawyers at the Wannsee conference, which is where the Third Reich finalized the Holocaust. People were standing by and making sure there was for the final solution.

0:06:31 Thomas: There's a conference about it? Is there like a webinar? Like, all right, so we're here to talk about final solutions. Like, geez.

0:06:37 Matt: I'm almost that bad. Yeah. No, there's a

0:06:40 Thomas: And it really is a theme lately that people do not take administrative violence as seriously as violence violence. Silence and particular reason that's in my mind at all you know no no some semi -recent events um like about that I mean that the people who plan that kind of thing why direct people and you to various degrees are making it happen but they do so using information words and data and papers and memos and whatever and they're not the ones actually doing it I sometimes it Might be worse like if someone coordinates a lot of violence they can accomplish a lot more harm than any one person who went and punched somebody or whatever it is

0:06:40 Matt: Great book about it. That's right. Yeah.

0:07:15 Thomas: Or shot somebody and so I think it's really important that we somehow try to get people understand how that is often just as bad or worse sure

0:07:22 Matt: And Right. Yeah. No, on that lines, I'm going to recommend a number of sources here during all of this, but I've been reading. It's a very long book, but it's a fascinating book. It was

0:07:28 Thomas: I know the one a patron suggested I think yeah if

0:07:33 Matt: Suggested by a patron. Walking to the World of the Dusk Killer, and Gretton. A exciting narrative, not only of the history of some of the worst things that have ever happened to humanity, and how people behind desks are responsible for them, but kind of interweaves his own personal history in a way that I wouldn't have expected in something like this. It keeps it very readable. So of sources, I should say that I'm not just pulling all of this out of my lefty brain. Have been drawing extensively in everything we're about to talk about, I've done a lot of background. We're going to link to a lot of these sources. I'm trying to keep it to primary sources and to some interpretations of those sources so that I can try to draw my own conclusions about some of these things. Obviously the January 6th report is the place to go. It is an incredibly well -researched and thoroughly documented report. The Jack Smith indictment of Donald Trump and others, primary sources attached to the January 7th report, filings from Arizona and Georgia and the criminal cases, which we're certainly familiar with by now, and quite a few others, but trying to keeping it primary, like I said. So I just I just want to make sure people understand, and I'll try to reference these documents as I'm going here, but let's talk about the very basics here, the people and the players and what was going on. Hoping this is an episode that you might want to share with somebody who doesn't understand the full context of January 6th. So I just wanna step back and a maybe a few things. So fundamental weakness that they were attacking here was in Article 2 of the Constitution, in which it says, each state shall appoint in such manner as the legislature thereof may direct a number of electors. So there is this fringe theory, the idea that maybe the state could appoint electors apart from the electors that we are voting for. Now, of course, in our constitutional system, we're not voting for president, as the popular vote, it really count. We're voting for electors, and those electors are going to be appointed by the governor and be certified by a certificate of ascertainment, sent onto the National Archives and entered into the record on January 6th, as required by the Electoral Count Act, now the Electoral Count Reform Act, which we'll talk about. The president of the Senate, also known as the vice president, enters that in after counting them. And that's how it's supposed to work. It's a very simple, straightforward transition, usually before January

0:09:19 Matt: 6th, 2021.

0:09:19 Thomas: That makes no sense it's because it was a system designed not for convenience or logics for sake or democracy it was for racism reasons and so it had to be all weird yeah

0:09:27 Matt: That's right. Weird as possible. And, you Supreme Court has already held in long ago, the Supreme court held that electors have to vote the way the state voted. And that's right.

0:09:36 Thomas: Had a guest recently who was a part of that, Lessig wanted that specifically, he mentioned it on the episode, wanted to, the court to just commit one way or the the other and they did so

0:09:45 Matt: They did. And I mean, it seems like the right result. By that logic, I don't think that you could ever say that a state legislature could, and this was before that case, obviously, but that a State Legislature could somehow throw the electors to somebody else either, if they can't do it themselves. I was looking for some of the first references to this. And Mark Levin, one of the the great towering intellects of the right, publicly suggested in a tweet that state legislatures could appoint electors if they thought there was voter fraud. And this is just wrong, obviously. Chiafalo had been decided by then. So, he had to be decided by the logic. And so, he was decided by that point, so he had that logic was wrong there, but it doesn't matter. And Mark Levin is not a serious thinker, and he's certainly not a so I'll put it that way. Around that same time, I think at the next day, true believer Queda Mitchell asked John Eastman to write a memo. Now, John Eastmin isn't actually the first person who's going to appear, and that's the first lawyer we're going to talk about. But of course, I know we know that John Eastmon is influential on the right. He was a dean of Chapman Law School, law professor for many years, and very significant figure in the Claremont Institute and the the Federalist Society. The Claremont Institute doesn't get as much press as it probably should, but hard right, like harder right than heritage, hard Trump right, hard insurrectionist right ,hard racist right. It's got all the worst stuff in one place. And I'm sure we'll be mentioning again some of the Clarmont issues, but John Eastman is forever tied to the Claremount Institute and should be. And John Eastmen is forever tie to January 6th and should be. So just want to make sure we get that out of the way. But in her email, Cleta Mitchell asked asked Eastman to write the memo because she said, a movement is growing, but it needs constitutional support. And of course, that's where lawyers come in. We have to find, and as the January 6th committee said, the coup in search of a legal theory. And this is

0:11:22 Matt: Kind of when it kicks off.

0:11:22 Thomas: A movement to get rid of the constitution in certain ways is growing, it just needs constitutional support

0:11:27 Matt: Constitutional support, exactly. Yeah. So around this time is Chesbrough, kind of interesting figure in all of this and gets overshadowed by Eastman, but Eastman kind kind of picked up the baton where Chesbrough started. So we're going to start with him. Chesbro's kind of, like I said, he's an enigmatic figure for me because he graduated Harvard Law School the same year as Elena Kagan. Was friendly with Lawrence Tribe and worked with them for years at an office here in Cambridge, not far from me. And not necessarily a hard right manga true believer, but having read a lot of his emails, that is what he turned into. I'll tell you that.

0:11:59 Matt: And he also features pretty prominently in the Jack Smith indictment of Trump. Does a great job. I actually went back and read it after I'd read through these memos, and it does a great job of showing the progression. And this is kind of an interesting theme through everything we're going to talk about, that it starts off with some, well, what if we could maybe think about it this way or do things this way? And then different people get their hands on it, and it snowballs, right? And I'm not sure it necessarily snowballed beyond what anybody involved at the beginning wanted it to be. I think this is where they were all going with it. He's friendly at this point early lawyer for Trump named Jim Troupis. And he offers to help him in an email on November 20th. And by December 3rd, Jim Troupe is calling him the resident expert on federal -slash -state interplay in the electors in an e -mail to someone else. Pretty quickly, he starts to get some authority on the campaign. In his first memo, memo. We're going to talk about a total of five memos, very important memos. I know memos aren't the most exciting thing to talk About, but they really do matter. As the indictment notes, it's never good when we're talking about lawyers, and I have to say, as the inditement notes, November 18th memorandum, his first one, was pretty modest. It was basically just saying that Wisconsin, just Wisconsin, could perhaps meet and have an alternate slate of electors. Now, the idea of an alternate slate of electors is not necessarily illegal. And as Eastman and everybody else love to point out, this happened in 1960 in Hawaii. It was the first time that Hawaii had participated in a presidential election, and it was Kennedy -Nixon.

0:13:25 Thomas: Just really want to make sure they get it right, we've done some backup ones just in case, wait, I don't know, it's our first time here, well

0:13:31 Matt: Much not. I don't know what happened. I'm not familiar with the history. But what I do know is that there was found to be, by a federal court significantly, there was bound to be some tabulation issue. And the certificate that had been previously signed off by the governor for Nixon had to be reversed, and they switched it over to Kennedy. And the Kennedy people in Hawaii decided just to be safe because they had this deadline which is in the Electoral Count Act. They decided they should get together and put together an alternate slate and sign alternate certificates. But what they did is they made it very clear that these were alternates, that they were not supposed to be replacing the ones that had previously been found. And it said specifically on them that these are contingent. And if a court were to find that the original certification were wrong, these will replace them. That's fine. That makes sense. If you have any kind of dispute, if you've got something where you're not sure what the outcome is going to be, things are winding their way through. And we've since changed the law to make it as easy as possible to clear these challenges up as quickly as possible so that we can get to January 6th and have it done. This this thing in Hawaii, which they continue to reference as somehow being significant, has nothing to do with anything we're talking about, because there's no actual cognizable challenge. There's no reason to believe there's any actual problems, no fraud, no tabulation issues. And the governor didn't certify and then have to recertify a different thing. None of that ever happened. I just can't stress enough that it really has nothing to do with that, but it's something you have to contend with when you're talking about the history of January 6th. On December 6th, he a different memo that marked what the Jack Smith indictment calls a sharp departure from the Wisconsin memo. And he decided that instead what they could do is actually extend this logic to six purportedly contested states, even though they weren't really contested in any real way, being Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin, and that they should meet and mimic as best as possible the actions of the legitimate Biden electors. And that on January 6th, the vice president would open and count the fraudulent votes, setting up a fake controversy that would derail the proper certification of Biden as president -elect. So that's pretty bad when

0:15:25 Thomas: Just want to make sure, was "just fake controversy" the indictment's wording or?

0:15:29 Matt: No, that's the indictment. Yeah, it's the indignment we're turning.

0:15:30 Thomas: I wasn't sure at what level of like, yeah, we're going to set up a bullshit thing. I don't know. It could have been.

0:15:35 Matt: There's some pretty funny stuff coming that they do just openly start calling it fake. That does happen, but I don't think we're there yet. But an emailback to some of the conspirators from Arizona, from Jack Wilinchek, who's an important player in Arizona. He said, PPS, quote unquote, alternative voters is probably a better term than quote unquote fake votes. Smiley face emoji. Emoji.

0:15:55 Thomas: Sounds That's not a tell or anything.

0:15:57 Matt: Know it's so good. These These people knew, by the way. I mean, they're all trying to pretend now that they had some kind of cognizable argument. But remember, Bill Barr had told the president and told the public before that, but he told the president openly that he had looked into it, DOJ had looked Into it, and Trump had wanted him to try to find something. And Bill Barr is going to find Something if he can find something." And he said, no, this is bullshit. This is nothing. There's nothing to this election fraud thing. As of December 1st, and one 6th report, of course, is beautifully drafted, it has amazing headings and subheadings. And my favorite subheading is actually The campaign legal team bows out and Giuliani steps in. It's a disaster movie right there.

0:16:37 Thomas: That's like, oh, I was about to get on the flight, but left on 9 -11. But then Giuliani got in. I know that kind of muddies it. But

0:16:43 Matt: Went off the rails. We'll get there. But the Chesbrough Memorandum is, again, just slowly developing over time from November 18th all the way up to December 9th, where he's kind of going off the rails and talking about, hey, we can expand this logic to the entire process. And at this point, it gets official. And the Trump campaign starts to organize all of this, even again, having been told there's no fraud, after starting to have their challenges thrown out one by one. The campaign lawyers are getting less and less excited about this because they see where this is going. Thing that I think maybe people don't appreciate is how much that Chesbrough, Giuliani, and the other attorneys who were involved in all of this, the conspirators, pretty much all of whom at this point are either facing criminal charges and or have been disbarred, were coordinating the national effort and working in seven states on the ground to try to get these things together. Together and doing it in secret and doing it in ways where they knew for sure that what they were doing is wrong and it was not authorized at all. It's really something just to read through these emails and see the way they're going back and forth and even at the point at which for places like Pennsylvania, they're getting calls from concerned electors saying, hey, isn't this illegal? Can we really do this? They lied to them at one point and said the Trump campaign was going to identify them. They'd be protected. Though Chesbrough was describing the Pennsylvania plan at that point as dicey by the 13th of December. It just goes from there. RNC chair at this point, Ronna McDaniel is involved. She's on a call with Trump and Eastman. Is introduced and she says she knows about this plan, that she's ready to help with the contingent electors. Literally goes to the top of the party. This is not some insurgent thing that they can say that they're denying. We know from Cassidy Hutchinson, the White

0:18:19 Matt: House advisor, gave amazing testimony that Mark Meadows was tracking this whole thing, that he was well aware of it. And of course, let's not forget, Mark Meadow's told her not to come in on January 6th, and that she might not want to be around at all, because he knew things were starting to go bad. Meadows at this point was so much of this, knew what was going to happen, and knew that we needed people coordinating the electors. They had a database of every single Republican elector in all of these states. They could try to keep them in line, so they could try to organize these fake alternative sessions. These sessions, again, when they're organizing these alternative or fake electors, they're not doing it because they think that there's some kind of good faith challenge that is going to be accepted. It's very important to understand that.

0:18:19 Thomas: Man, yeah,

0:18:56 Matt: Jesbro, in his final memo, drops the contingency. And we didn't get this memo until pretty much the time that Trump was indicted. He said that ideally, by then, by the time they meet, that Trump will have been awarded one or more of the states, but it wasn't necessary for his plan to move forward on January 6th, that anything actually work out. And then they start talking pretty openly about the fact that all they have to do is bring confusion. And they're filing things that have since been found to be completely frivolous, knowingly frivolrous, just so they can have some cover, so theycan have alternative electors show up and do this vote and try to make it look like they're actually doing anything.

0:19:27 Thomas: Keep trying to think of an analogy for this, because I do think that for some people it sounds a little ticky tacky to be like, well, there's such a thing as alternative electors. And, you know, it's not. But to me, it's like counterfeiting money or something. It's like, look, if you, if you have a 20 and it tears in half and you tape it together, it's like, yeah. OK, well that's probably fine. But if you're like, well, I'm going to make a bunch of, you know, my own money just in case, you know, there's not really any problem, but I'm just going to in case anyone needs it. And then like you're, you're trying to mix it in with the real money. Well, then you're doing crimes. Like there's no, that's just crimes.

0:20:00 Matt: You know those aren't real. That's right. That's a good analogy, actually. These things were super rushed, even just in Georgia alone. There are lots of stories like this from different places. But the Georgia, December 14th, when they were all meeting at the same time on December 14, as they're supposed to do, they had a secret session in the George State House. And they were told to go through security and tell security they're going to have a meeting with the senator, when a journalist tried to show up and watch the proceedings, which are supposed to be open. They were told that it was not what he thought it was, that it Was actually some sort of educational session that was going to be closed. And they were told specifically to keep this secret and to operate in secrecy. So they knew there is no question they knew. And I just want to emphasize as much as I can.

0:20:35 Thomas: Got a question in that Hawaii example, that alternate slate of electors were like, okay, but it's secret. Can't tell any, or were they like, ah, we're doing this because we think maybe it makes sense

0:20:45 Matt: It was it was an open meeting. They knew what they were doing.

0:20:47 Thomas: Again were you like yeah I taped this 20 because it ripped or were you likely maybe I'll try to print another 20 and see if I can get away

0:20:53 Matt: It's more like I'm holding a bill that I think is not counterfeit, but I'm going to let somebody else take a look at it.

0:20:57 Thomas: That's a good one too yeah yeah if you mark

0:20:59 Matt: They knew that the Electoral Count Act required that this thing be completed by the 14th. They knew that their retabulation and the official judicial finding was going to be after, but before January 6th. So they figured just to be safe, let's reserve it. So these certificates, there's some really funny stuff around them that I don't think I really heard talked about before, but one of the most incriminating things is actually one of the funniest from the Chesbrough emails. December 10th, 2020, he sent an email to this Jim Tropas, the campaign lawyer he'd been working with. Attaches the certificates from Wisconsin so they can see what they're supposed to look like with these very, very official electoral certificates. And we'll link to the ones that they did send in. FOIA has gotten all of the fake certificates. You can see them for yourself.

0:21:35 Thomas: Very close to this counterfeit money idea here

0:21:38 Matt: It's so bad though, because the concluding sentence in this email is, it would be nice to get some of those official looking gold seals, exclamation point. Then the next day, Chesbrough writes that it might appear, and he puts this in bold, treasonous for the Arizona electors to vote on Monday if there is no pending court proceeding that might eventually lead to the electors being ratified as legitimate, which is a valid point. It could be seen as perhaps treasonless if they're showing up for no reason to just submit some false statements, right? Because the whole point, as he mentions, the Hawaii think that there was a pending recount that they thought might go their way. That was the reason they did it. But if you're doing it for no other reason than you want to get it in front of the vice president, people might wonder. Kind of

0:21:48 Thomas: My god and yeah yeah

0:22:19 Matt: Some light trees in there.

0:22:20 Thomas: I'm just imagining with these fake, um, elector certificates, it's so close to this that it's actually kind of funny. It's like if you ever worked as a server and one of those assholes left the fake money as a tip that then unfolds and it's a God brochure like a jesus thing that's real that happened to me once and you're like wow Wow. That's, that's awesome. Thank you. So that's like, I directly the opposite of what it should be. It's like yeah, it's like you think you're getting a tip and they it's not even just that they left you a pamphlet. It' s like, no, we're going to trick you into like it's it's but it's kind of like that. I wonder if they did that where like looks the same and then unfolds. It'S like Jesus is a lector or something, you know?

0:22:44 Matt: What you want. Yeah. Thomas, if you told me that was why you became an atheist, I would believe you. That'd be fair game. I think so.

0:23:02 Thomas: It's mostly just because there's no God.

0:23:04 Matt: Oh yeah. Well, there you go. Easy enough. Science. All

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0:24:54 Thomas: I want to make sure I'm understanding this. And I'm realizing now, like, I'm not sure how all this came together in the end. I want, I want it to be a little bit more And I wanna just make sure since we're doing it, since we're putting it all in one place, I wanna make sureI fully understand it. So saying, let's get these alternate electors going, even though we have and they know they have no justification. And it sounds like you're saying maybe at first they thought they were going to because it was like, well, surely some of these like, what was it, like 70 cases or something, 70 challenges that all failed, except the one that said, yes, you must let them stand a little closer while they're watching. That was the only one they ever won so they could give people COVID better. You handed them that one for some reason. Lost all of them. So at first they're like, well, we'll do this because we have these legitimate challenges. Then as they lose every single challenge or at some point or maybe from the beginning, I don't know, it morphs into, well let's just get these going. Let's just give these alternate ones going for the purpose of, now it sounded like it wasn't like they thought they were going to sneak this by and nobody else, as long as the bouncer doesn't like look too close at the, at the certificate, you know, and they, they see it, it doesn't say McLovin on it or whatever. More like, well, it'll sow confusion. Right. And then, but like, what was the purpose of that again? Like what was step three profit or something like, did they have, was it to delay? Like if there's a deadline or something, I didn't fully understand

0:26:08 Thomas: That part.

0:26:08 Matt: So we'll get to that in the Eastman memos a little bit more, but the Chesebro idea here is that originally he's thinking maybe we could actually get an alternate slate. And then he's saying, well, why don't we just put it in as if we had one? And so I want to talk about what happened when it got to Congress, which hasn't really been talked about enough, I think, to answer your question, because they did not contend on having to deal with the Senate parliamentarian, McDonough. Elizabeth Senate parlamentarian sent back one of the best defenses of democracy I've ever seen in one page.

0:26:35 Thomas: Oh, so they, they actually did submit these to the Senate.

0:26:37 Matt: They submitted these fake things. That's why there's criminal charges.

0:26:40 Thomas: Sorry. I always thought it was like, they didn't get that far in the process. I guess I didn't realize. Okay.

0:26:44 Matt: They didn't. They said that none of them were sent through, but they tried to get them to Congress. And that's the... Specifically in Arizona and Georgia, that's just what the charges are, is that they were filing these things knowing they were fake, trying to get the men. The Senate parliamentarian responded when they tried to send these in with an email and attached a spreadsheet in which she detailed exactly what was wrong with every one of them.

0:26:48 Thomas: Okay. That's probably why I can. Yeah. Oh my God. Yes.

0:27:06 Matt: I love it. I Love it so much.

0:27:07 Thomas: Give me some of this, please. Like

0:27:09 Matt: Yes. And we'll link to it.

0:27:09 Thomas: What kinds of things is it? Formatting

0:27:11 Matt: We'll link to Yeah, no, it's mostly But so for example, the New Mexico one, now the New Mexico one I will say, I Mexico, and one of the other I'm actually not sure which one, but they actually did it properly the way that the people and the Kennedy people did in 1960, where they said, this is an alternate and this will be used if the states come out of our way. The other ones didn't do that, which is why I wanted a crime territory. Also, I guess maybe because they couldn't find anybody who was experienced with counterfeiting election certificates. For example, the submitted three. There was one from a sovereign citizens group and one from citizens caucus and one one from the official Arizona Republican Party. None of them were done properly.

0:27:11 Thomas: Things. Then they had the problem of, okay, which fake electors should they even accept?

0:27:49 Matt: Really, it doesn't help your argument when the sovereign citizens are also sending it in.

0:27:51 Thomas: There's like five slates of them. Well, that can't be right. We know four of these are wrong, at least.

0:27:58 Matt: So I'm looking at the spreadsheet she sent back, which we'll link to. And there are seven entries on the spreadsheet. And every one of them, among other things she mentions, there's no seal of the state. There's no evidence that votes were delivered by the executive of the State for signature, which they knew. I mean, they knew they were not following the proper procedure. What they were hoping is that they could somehow get this just enough to be confused. This was a pretty desperate thing by the time it got to this. And actually, we know from the January 6th committee that Ron Johnson, one of the nuttiest of our people in Congress, tried to get this in front of Mike Pence like minutes before. And he's basically like, yeah, this didn't really come in the mail. So if you just want to make sure that Mike has it. And of course, his legislative person was like, do not touch that. Do not get anywhere near this.

0:28:35 Thomas: It's like a handwritten certificate that says this is good for one free elector and a back rub on your birthday. Yeah, it is

0:28:41 Matt: That's right. Trump wins, pretty much. A lot of this, it would be a lot, I mean, you have to laugh because fascism is often very funny.

0:28:48 Thomas: Pretty funny. It is. It

0:28:49 Matt: Yeah, you have to. I especially have to laugh at the parliamentarian. And we've made fun of the parliamentarian in the past, but she has an important job. And one of those jobs is making sure that people actually do follow the law when they're trying to do things like submit electoral certificates.

0:28:50 Thomas: Does. Yeah.

0:29:01 Matt: Know, that really does doesn't matter.

0:29:02 Thomas: Feel like that person has a really unsung and important job like a lot of the time.

0:29:05 Matt: No, to make sure that things are done by the law. She's the first line of defense on that. So that's important to know because I think there's a lot of confusion. It's one of the reasons I wanted to talk about this because I'd been a little confused and I've been following this stuff for years now. Were no alternate electors in front of Mike Pence on January 6th. Nothing had made it through.

0:29:20 Thomas: That's where I'm getting confused. Okay. So she so she was the the was the defense she was like the safety back there swatting them yeah okay I was going football but yeah she was sure she was the goalie yeah

0:29:25 Matt: That's right. Goalie at least. We go. Look at that. I did a sports metaphor. How about me? Of course, was the time it got there. But I just want to point out that Chesbrough was the guy, basically, that got everything coordinated, that was responsible for doing all these things. He's nowhere near as nuts as Eastman. But let's just get some at the record here, because, again, people maybe who want to share this or want to talk about this with people around them might get some pushback. And I thought it was worth playing some of what Kenneth Chesbro actually pled guilty to in Georgia. And we know that because it's on video in front of our favorite Georgia judge.

0:29:58 Thomas: No it's the same guy oh

0:30:00 Matt: That's right. It is. He's got all these cases. So what we're going to hear is the prosecutor reading out the facts.

0:30:05 Clip: Included the following one to recruit certain individuals to falsely hold themselves out as the duly elected and qualified presidential electors from Georgia to to create false electoral college documents, including a false certificate of vote purporting to have been made by the authority of the duly elected and qualified presidential electors from Georgia, three, to falsely state that co-conspirator Donald John Trump had won all of Georgia's electoral college votes, and four, to deliver those false documents to the Georgia secretary of state, the chief judge of the Northern District of Georgia, the archivist of the United States, and the president of the United States Senate, being the vice president, the purpose of creating these and delivering these false documents were to disrupt and delay the joint session of Congress on January the 6th, 2021 by using the false documents from Georgia and other states in an attempt to cause Vice President Michael Pence to violate the Electoral College Act and the United States Constitution. This was part of a multi-state criminal conspiracy to unlawfully overturn the results of the November 3rd, 2020 presidential election in favor of the co-conspirator Donald John Trump, who did not win in that election, specifically

0:31:20 Matt: You go. That's enough for now. I love ending on a did not win. Just good reminder. I think it's really important because in any plea hearing, you have to read out the fact of what you're actually pleading guilty to. And you can, as we've talked about before, you work closely with the prosecution sometimes to make sure that the exact narrowly tailored set of facts that you are actually pleading to, so they don't just get up and read whatever. And so, that is what Kenneth Chesbrough entered a guilty plea to. The other counts against him in that RICO indictment were dismissed in exchange for this guilty plea on conspiracy to file false documents was count 15 of the indictment. And he also agreed to testify against Trump, John Eastman, and other people that were involved. And he also had to pay $5,000 restitution and get five years probation. Also has lost his law license in both Massachusetts and New York. I think he's licensed in other places as well. I'm sure that's underway. So consequences. That is what he actually pled to. Now, I will point out just as a quick footnote on this one that we did talk about back in September that Judge McAfee threw out Count 15 of the indictment. So he's kind of in a strange situation here. Count 15 was this actual conspiracy to file the false documents in federal court because they had to be as part of the process for ascertainment. McAfee, I think reasonably, decided— kind of reading through his logic and the case law he was citing, based on In re Lorie, he found that it can't actually be a state offense to file something in federal court when there's already a federal charge of filing false documents in federal court.

0:32:38 Thomas: Like a double Jeopardy type thing.

0:32:40 Matt: Just about jurisdiction, about which place is the right venue for it. He's saying that there's an interesting reasoning about it. We talked about it at the time, but yeah, mentioned that because count 15 having to do with this conspiracy to file false documents is what he entered the plea to. So you might wonder how that plea can stand if it's been dismissed for other people. And you know who else wonders that is Kenneth Chesbrough. He came back last month and filed a number of things, which were all denied by McAfee.

0:33:02 Thomas: We scares me feel like I've heard of this recently in the Supreme court with an actual criminal case I would care about where it's like, well, hold on. If I'm in, just say someone's in jail for a marijuana crime, that's not a crime now. It, Like, Is it analogous to that in a way?

0:33:16 Matt: He a post -conviction lawyer, I would jump on this immediately, and I have when the law changes or when a judge finds that actually part of this indictment that you're charged with co -conspirators in is actually wrong. He should have every right. And I honestly, I thought it was a little technical, the way that McAfee did it. I don't have time to talk about it right now, but I've read it. Is basically saying he's gonna have to file a habeas claim, which you can do in Georgia when you're not in custody, which is a little strange for me. Promising they're going to do that. I think ultimately it might work out for him, but I hope that he still has to testify against everybody. I think

0:33:42 Thomas: Did they let him plead guilty to that thing? Couldn't they? It's, if it's a deal, couldn't they have— is there a reason it had to be that one? Couldn't have been one of the other charges?

0:33:50 Matt: That's the one that they thought was going to stick of the six of those things he was charged with. I don't know. But dismissal was in September 2024. So it's not like it was necessarily foreseeable. So,

0:34:00 Thomas: It's, it's not that— yeah, it's not that they should have known. You know, I know that it happened after that. But like the odds because there's plenty of charges, right? Like the odds that it's one of of the ones that doesn't hold up that sucks

0:34:12 Matt: It's unfortunate. See what happens. Will certainly be following it. We need to change gears a little bit to talk about the other lawyer because Chesbrough's main role here was really just to set up the idea of the elector scheme. Now, what we bring in heavy hitter John Eastman for is to start the pressure campaign against Mike Pence to get him to this idea that he has the authority somehow to do anything other than what the Constitution says he's supposed to do, which is count and ascertain the votes.

0:34:14 Thomas: Sit there and look pretty that's

0:34:37 Matt: That's right. Which, you know, is better out than most.

0:34:38 Thomas: What he's used to yeah lap

0:34:39 Matt: That's great. John Eastman has been talked about plenty on this show and many other shows. I hope people know who he is. But as I said, big guy and conservative, right-wing intellectual stuff. He had a lot of cachet behind him when he was coming through with this memo, and he was asked to sort of write something supporting the Chesbrough memo. He drafted something on Christmas Eve, on the 24th of December, that was a two-page memo. Now, the two-page memo is kind of like the Bond villain version of this whole thing. Lays the thing out in very stark, straightforward terms about what he thinks can happen. Now Chesbrough has tried to distance himself from that two-page memo. He was very annoyed because this came out in Bob Woodward's book, Peril, which I should mention I also am citing here. Woodward did not really talk about the follow-up six-page full draft that he put in later. Don't really care, to be honest. Do not care that John Eastman says that this did not necessarily represent his views. He is still a lawyer. He's still putting it in writing. He's still telling his client, Donald J. Trump, that this is an option. And you are responsible at that point when you put something in writing and send it to your client and say that it is an action. I

0:35:33 Matt: Understand what I mean, I understand what he's trying to do to get out of it, but I do not accept that somehow he can discharge responsibility for this thing. And even if you do read the six-page memo, though, it's just a fancier version of the two-page memo. And instead of saying, like, here's some things you can do, he calls it wargaming out of the options. The Eastman memo, brutally in one page, lays out the entire plan. And it's literally six bullet points just going down the list of how they think that they can get Pence to reject the entire election. The idea is that when he gets to Arizona, he announces he has multiple slates because this is back when they thought they were actually going to get these through. So he's going to defer a decision on Arizona until he gets either states. And then there's going be the other seven states will also have objections and come up. And his idea would be that because there are disputes, that no electors can be validly appointed in those states. And I guess, magically, somehow, that means that they can just throw out all of those votes. And that would at this point leave 232 votes for Trump and 222 votes for Biden, and then Pence can gavel Trump in as reelected. Is ridiculous. Yeah,

0:35:33 Thomas: Gavel

0:36:35 Matt: Because that's the end of the session. Um, four, he says, howls, of course, from the Democrats who now claim, contrary to Lawrence Tribe's prior position, which doesn't matter when I'm talking about that right now, that 270 is required. No, John Eastman, they're not saying that 270 is required. They're saying that you have to actually look at those certificates. Typical kind of misdirection. Saying in the alternative, if they really make a thing about this, then we kick it over to the 12th Amendment sudden death provision, which I think we've talked about before, people might be familiar, where it goes to the House and each delegation gets one vote.

0:37:02 Thomas: Another really stupid thing wait

0:37:05 Matt: So Eastman has tried to say that, well, of course, I didn't actually mean that because you'd have to deal with Liz Cheney, who would never have done this— hope, we— and Mike Gallagher, who had already said specifically in Wisconsin that he he would not approve any kind of different way of doing this that he thought Joe Biden was the winner.

0:37:17 Thomas: That's two whole people, Matt. That's two old Republicans who they wouldn't do the coup.

0:37:23 Matt: That's out of 50. So that would have been tight. But again, it doesn't matter. You still told Trump to do it. That doesn't mater if you thought it was going to work or not. It doesn't matter if you actually briefed Trump the next day that it wouldn't work. You still put it in writing and said, this is the thing we should try to get done.

0:37:36 Thomas: Would be pretty crazy if the only criminal conspiracies you could punish were the ones that worked. That wouldn't be good, I don't think.

0:37:43 Matt: And he definitely knows better. Point six at the end here, the main thing is that Pence should do this without asking for permission. Fact is that the Constitution assigns this power to the vice president as the ultimate arbiter. We should take all of our actions with that in mind. And again, it does not do that. Also insists that he didn't really mean to say that in both memos, but he said that in both memos. So we can link to both these memos you you can check them out for yourself, but they are not great. I

0:38:06 Thomas: You ever accidentally write a memo that doesn't reflect your views twice? Matt?

0:38:11 Matt: Definitely put things in legal briefs that don't reflect my personal views. That's what lawyers do. But he's trying to say somehow that that matters. I still don't advise my clients on how to commit crimes. I promise I don't do that. That's just not something that I'm supposed to be doing or can do as a a lawyer.

0:38:26 Thomas: I wrote my memo entitled, Our Plan on How to Rob This Bank, I accidentally, I meant not rob the bank, is what I meant.

0:38:30 Matt: It was a thought experiment,

0:38:35 Thomas: Yeah. Just a memo.

0:38:35 Matt: Really. It could do it, right. It's just a piece of paper. That we're going to have to read at some point called The Unpersoning of John Eastman, which is full of that kind of thing of like, can you believe that he got disbarred for writing some pieces of paper, basically.

0:38:47 Thomas: Yeah, that's, job is writing some pieces of paper. What are you talking about? If you couldn't be disbarred for the bad version of writing pieces of paper, that would be weird.

0:38:54 Matt: I Mean, really stress that John Eastman is pretty hard-right radical, because he's trying to set himself up something else. He still gets talked about in conservative circles as some kind of respected lawyer, even though he's no longer really a lawyer in most places, and even though, he's facing now two criminal indictments, one in Arizona, one in Georgia. I thought the best way to really help everybody understand who John Eastman is, is to play the actual speech that he gave on January 6th. So let's listen to that.

0:39:19 Thomas: I've heard I've heard this one before that's that's uh yeah that's pretty crazy sorry

0:39:22 Matt: It's worth a listen. Giuliani introducing him?

0:39:24 Clip: I'll be darned if they're going to take away our free and fair vote. And we're going fight to the very end to make sure that doesn't happen. And let me ask Professor Eastman to explain as

0:39:30 Matt: Super darned.

0:39:28 Thomas: Guess you're darned he's really darned these days got in a stupid hat what

0:39:40 Matt: And Scarf. So bad.

0:39:41 Clip: Easily as we can. I know this is complicated, but what happened last night, how they cheated and how it was exactly the same as what they did on November 3rd. America's mayor. Wonderful. Hello, America. Sorry, I had to say that. Look, we've got petitions pending before the Supreme Court that identify, in chapter and verse, the number of times state election officials ignored or violated state law in order to put Vice President Biden over the finish line. We know there was fraud, traditional fraud, that occurred. We know that dead people voted. But we now know, because we caught it live last time in real time, how the machines contributed contributed to that fraud. And let me as

0:40:05 Matt: Yay. He's so excited.

0:40:32 Thomas: Voting

0:40:32 Clip: Simply as I can explain it. You know the old way was to have a bunch of ballots sitting in a box under the floor and when you needed more, you pulled them out in the dark of night. They put those ballots in a secret folder in the machines, sitting there waiting until they know how many they need.

0:40:32 Thomas: Machines are like the political machine Oh God. A folder.

0:40:50 Clip: And then the machine, after

0:40:51 Matt: Secret

0:40:51 Thomas: Like it's a Windows machine.

0:40:52 Matt: Folders. Might think it's a folder.

0:40:55 Thomas: I think it does.

0:40:56 Clip: The machine, after the close of polls, we now know who's voted and we know who hasn't. And I can now, in that machine, match match those unvoted ballots with an unvote voter and put them together in the machine. And how do we know that happened last night in real time? You saw when it got to 99 % of the vote total and then it stopped. The percentage stopped, but the votes didn't stop. What happened, and you don't see this on Fox or any other stations, but data shows

0:41:09 Thomas: The machine, everyone. Man, because the amount of votes we had blew the estimates out of the water. So like, do you think they have some God's eye view of what the total will end up being? No, it has to always linearly go up the percentage to 100.

0:41:42 Matt: Mike Lindell nonsense. This is the MyPillow guy who's done too much coke, this is not supposed to be what one of the leading conservative scholars in America is saying. This is nonsense. And I actually hadn't heard his January 6th speech. And when I listened to the other day, I realized he doesn't say anything that's particularly persuasive legally. He's just repeating these election fraud things that we already know have been fully debunked. Supreme Court, by the way, I should have mentioned before on, I believe, December 10th, had already dismissed that suit that was brought by the states, all those AGs that were trying to get the other states thrown out was pretty much the point at which the legal team checked out. But that's when John Eastman stepped up. And I think that's an important thing to note.

0:41:51 Thomas: Incredible. I

0:42:16 Clip: Data shows that the denominator, how many ballots remain to be counted? How else do you figure out the percentage that you have? How many remain to counted? That number started moving up.

0:42:26 Matt: Lawyers doing math.

0:42:27 Clip: That means they were unloading the ballots from that secret folder, matching them to the unvoted voter, and voila, we have enough votes to barely get over the finish line. We saw it happen in real time last night, and it happened on November 3rd as well. And

0:42:34 Thomas: My god oh

0:42:37 Matt: Unhinged.

0:42:46 Thomas: Last— he's talking about Georgia, that's— man, that was, if that's confusing to anyone else, that was because— I was like, last night, what day— it's because the special elections, Warnock and, uh, and uh, what's his name— that's what he's talking— I was like, for the life of me I was like, what does that mean. So yeah, that was— it was, I remember it because that was such a good day, it was such a good day. January 5th.

0:43:06 Matt: That's fine.

0:43:07 Thomas: And well, I guess, in the morning of January 6th, it was such a good day to be like, wow, we, specifically pulled it off. We pulled off winning everything with, with the, you know, asterisk of Joe Manchin and, you Sinema later find out it's horrible, but, but anyway, it was such a good day. And then this happened. I— that's what he's talking about. Okay.

0:43:26 Clip: All we are demanding of Vice President Pence is this afternoon at one o'clock he let the legislators of the state look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not.

0:43:44 Matt: Yeah, I think to play that because that is on January 6th, not long before everything breaks out. He's talked about as a behind the scenes kind of guy, right? But there he is right up front, egging people on.

0:43:45 Thomas: That's amazing. In the scenes, those look like the scenes.

0:43:55 Matt: That is the scene. That was one of the major scenes. Following Rudy Giuliani, who's of course one of the other, I was going to say masterminds, but I think ringleader is more appropriate for Giuliani. Eastman was really the brains here and Chesbrough. Just to really, again, I have to emphasize what an extreme radical John Eastman is because from the January 6th report, I just want to mention this because Chesbrough said something very similar actually, but I actually was almost surprised when I read this from Eastman. And Chesbrough had both been on a fight with Pence lawyer, Greg Jacob, and yeah

0:44:22 Thomas: Gosh. I remember. Yeah, this is the emails where it's like Greg Jacob. So surreal. Was this because he was like, oh, well, no, I'm a Q idea. Don't think that's going to work. Hey, next time you're in town, let's grab a bite. Right. I don't think you and I have talked about this, but it was it something really sticks in my mind about that this because it's like it's so human in a weird way where the guy he has to manage like relations. Like he's still a conservative, this lawyer, this Pence lawyer, and he's still like managing those relationships while trying to police like this really crazy, harmful thing. And it's just like it always stick with me like, hey, next time you're in town, let's grab dinner. No, I don't think the coup theory is very good. Not going to work.

0:44:57 Matt: That reminds me of, uh, from, uh, Gavelpod— the, uh, Michael Cohen email to, uh, Alan Weisselberg, the Trump CFO, uh, reminding him that, you know, we're like, where's my fake check, I don't have the thing that you're supposed to give me. And also you didn't stop in for your bro hug. Same kind of contrast.

0:45:18 Thomas: A Exactly. Yeah.

0:45:20 Matt: Eastman and Jacob were in an email exchange on January 6th, and the January 6th committee got these emails and included them in the report. I think it's very important to read that Greg Jacob, not feeling so friendly, I don't know if they ended up going for a drink after this, he hurriedly sent in his email, but not before adding the following. Thanks to your bullshit, we are now under siege. Eastman quickly replied to Jacob's email and incredibly blamed Vice President Pence and Jacob for the the attack. The siege, quote unquote, is because you in caps and your boss did not do what was necessary to allow this to be aired in a public way so the American people could see for themselves what happened. As violence is breaking out, this is what he's taking the time to write. That's who John Eastman is. And there Eastman was trying to keep a lot of this secret and not have it be released to the public from a federal judge named David Carter. And I just want to read from what he thought about Eastman. He said that even though I'm basically looking at a dispute over a handful of emails to see whether this should be released or not, and this is not a criminal prosecution, I have to say this. He says, at most, this case is a warning about the dangers of quote unquote, legal theory has gone wrong. The powerful abusing public platforms and desperation to win at all costs. If Dr. Eastman and President Trump's plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution. Think that's a really important thing to remember, that that was the ultimate goal of all of this, because John Eastman has been on this campaign for years now. There's an interesting conversation that he had with last week's guest, Lawrence Lessig, on his podcast. It's very long. We'll link to it. It was worth listening to just hear him explaining

0:46:45 Matt: Himself a little.

0:46:45 Thomas: Eastman was on Lessig's podcast or Lessig went on Eastman's podcast.

0:46:49 Matt: No, Eastman came on to Lessig's. And, uh, I'm always interested in these kinds of things. And obviously, you know, if I had a chance to talk to John Eastman at this point, I'd be happy to ask him about some of this. I don't, I think at this point, it's not even really platforming him. I think that he's facing consequences for all these things, which is exactly why he won't come and talk about them. Lessig caught him at the time before he was indicted and before the bar complaints had been filed, I think. They spend an hour and 45 minutes going through and they just destroy him. Him and Matt Seligman just completely destroy him.

0:47:12 Thomas: I got to listen to this. Oh,

0:47:13 Matt: It's pretty good. Even after the interview, talks about exactly where he thinks he's gone wrong, and make sure that you understand by the end of it exactly what's wrong with what he's saying. But it's almost a little too civil for me. But at the same time, I think it's important just lawyer to lawyer to show that you got nothing here. And I can guarantee you, when he's out there making these cases, he is not making the people as smart as Lawrence Lessig. Very few people are.

0:47:32 Thomas: Well, if you're talking about the ethics of that, that is an interesting question. I think that the platforming thing is not the issue. For me, it's like if someone is going to sit there and take the appropriate like they should get, then, OK, that's fine. But also what happens, as you say, is a little too civil. And I think that's where you run a risk as well, because if one side that's like, well, how much civilly you dismantle his arguments— shouldn't we have learned by now that most people aren't, um, detail-following all the ins and outs of the very very specific legal arguments they hear two people calmly talking about something they're like well these two lawyers disagree so it's lawyers disagree a lot, like a lot of the cases are like five-four, so, like, you know, it's pretty— two reasonable things and I just agree with this guy— and it's like he also needs to be, like, making incredibly clear how bad and harmful and wrong this is. Yeah.

0:48:21 Matt: Yes. And always the problem with these things is if you engage them on good faith or they're bad faith arguments. If you engage them in good faith, you are giving them the credit of good faith. And I don't think that John Eastman believed that there was any substantial election fraud. That's the thing he's still writing on because it's the only way out of this for him is to pretend that he believed any of this. But even if he did believe it, the arguments that he was bringing were so out there and maybe were within sort of the permissible range at first. But from those emails, you know, he's saying no court is ever going to uphold this. No Supreme Court justice is ever gonna go for anything we're saying here. He says that pretty openly. He knows. Basic ethical obligation as lawyers is not to bring something that is completely frivolrous. You can always ask for a change in the law. You Can Always Argue Against the Existing Law. But

0:48:28 Thomas: Didn't wow

0:48:59 Matt: He was bringing things, and really the Lessig interview really exposes how he didn't really have much of a foundation at all for any of this. Other than that, he has written defending himself. The Claremont Institute has come out swinging for him, writing a number of things, including this piece that I'd really like to go through with you. And he's tried to say that he was just an attorney providing services to a client and that he's being unpersoned now, that the regime has come for him. And I have to say that if I did those things that he did, I would fully expect to be charged with a crime. I would fully expect to be disbarred. Should have been prepared for those things himself. He could have known. Don't care if he should have known or not. This is what happens when lawyers do these things. And I think that lawyers need to be held just as accountable as the kinds of people who actually carry out atrocities. Because if really, truly, it was Chesbrough and Eastman that got this into Trump's head, that got us into the RNC's head. They got this into the zeitgeist and got this idea out there. Now, of course, by the time it got to January 6th, everyone knew there was no actual alternate slate of electors, and they were just trying to get Mike Pence to stop the steal, worse, obviously, because he has even less authority to do that than he would have to accept those electors. The fact is that the snowball that got there started and just kind of kept rolling from there with these legal memos and with the backing of people who looked very respectable, who had good connections, people who had clerked for Clarence Thomas, people who had worked in the highest levels of the law, Harvard law graduates, right? These are not the Sidney Powell's and Rudy Giuliani's that were necessarily actually driving the show. And, you know, it's bad enough that Sidney Powell and Rudy Giuliani were involved. But I think that we have a responsibility as a profession, as attorneys, and certainly as a society, to come down hard on people that do things like this. And I have no problem with John Eastman not being able to practice law ever again. I have No problem with him being held criminally responsible for

0:50:45 Matt: Providing this kind of advice.

0:50:45 Thomas: He should be in prison yeah

0:50:47 Matt: Yeah, well, we're working on it. We'll see. We're working. Now I'll never come on.

0:50:51 Thomas: If he wants to come on and hear about how he should be in prison, okay, sure.

0:50:54 Matt: Yeah, we'll talk some more about it, yeah.

0:50:57 Thomas: Then, by the time we got to January 6th, you're saying Chesbrough was not quite out there like rallying, you— because I forgot— I'd seen this speech, but I'd forgotten about it. The Eastman was actually there that day, which is another level of thing. Chesbro was like, nah, bro.

0:51:13 Matt: Yeah, he was always a behind -the -scenes guy. He wasn't a get -out -in -front -of -him kind of guy.

0:51:17 Thomas: Guess, final question to try to understand how this these two things sort of went together. It OK? The steel didn't work. The bullshit didn't works. So let's go be really mad and do whatever. Or was part of getting the, angry you hordes of people, they're still part of like a plan about was it still part part of the like weird legal plan like if they delay proceedings or if they you know or was it just we're angry that this didn't work wow

0:51:44 Matt: Clear exactly what the plan was by the time it got to January 6th, obviously one possibility is that they could delay it enough that it goes back to the state legislators and they can still somehow get through this fake alternate thing and do it lawfully in some way that looks lawful. They could still be challenged and have it actually come up from the states and be in front of Mike Pence. That was, I think, and Eastman has actually said that he believes he is the white knight in this situation because he was pushing that one rather than the outright rejection one. So I guess, I mean, incredible.

0:52:10 Matt: He literally says he should be called the hero of the story for trying to talk to Trump out of that. By the time it got to January 6th, really the focus was on Mike Pence just rejecting the electoral votes. And you had a whole crowd, a mob out there who'd been convinced by people like Eastman saying things like what you heard him say, that this was illegitimate. And I guess this is a good place to close the story in Bob Woodward's Peril. And of course, you know how Bob Woodword does things, right?

0:52:31 Thomas: I was gonna say it's not like the greatest source, but

0:52:34 Matt: I actually believe that this is either coming directly from Pence or from somebody that was close to Pence. But Trump had like a little conversation with Pence in the Oval Office that kind of reminds me of, you know, that thing where the devil takes Jesus up to the mountaintop and tempts him with, yeah, it's kind of like that, but like the dumbest possible version of that. Pence had called Dan Quayle at one point, fellow Indiana Republican, fellow former vice president. And he literally said to Dan Quayle, you don't know the position I'm in. And Dan Quayle's like, yeah, no, I literally know the position you're in. I did it myself. Like I had to certify my opponent taking power, right? That's, you have to do it. Because Pence, to his very minor credit, he understood from the beginning he could not do this. And his lesser credit, trying to find a way that he might be able to.

0:52:48 Thomas: I mean Wow.

0:53:13 Matt: And he'd already decided by the time that he had this conversation with Trump that there was no way that he could lawfully do this, that it would be an enormous stain on his legacy and it'd be completely illegal, which all true. So Trump is really giving him the hard sell and he's saying, I don't want to be your friend anymore if you don't do this. I made you, you're nothing. Your career is over if you Don't Do This.

0:53:29 Matt: And then he turns and he looks out to to The the Crowd. Crowd. Of course, you've got tens of thousands of people gathered outside for the Stop the Steal rally. And Trump asks Mike Pence, what if these people say you have the power?

0:53:28 Thomas: That's fair, true.

0:53:39 Matt: Is scary. It's funny, but it's scary.

0:53:39 Thomas: Wow, that, yeah, that is, geez,

0:53:43 Matt: If the mob allowed you to do it? Had you considered that? And then he says the thing that I could just imagine the devil saying to Jesus in the cool teen Bible. He says, and wouldn't it be cool if you did? I've been thinking about that for days. Is, wouldn't it be cool if you...

0:53:58 Thomas: That's so true. Wouldn't it be cool? Yeah. And

0:54:02 Matt: You could just do it.

0:54:03 Thomas: Then, yeah, and it's like later he gave the, like almost in Gladiator, he gave the thumbs down on Mike Pence after he didn't do it. You know, it's, like, that same kind of, wow, crazy imagery.

0:54:12 Matt: And when he finds out that people are trying to kill Ponce, he's like, yeah, that'll happen.

0:54:15 Thomas: Exactly. That's what I mean by the thumb down, yeah.

0:54:17 Matt: Right. Exactly. Yeah, man.

0:54:18 Thomas: Wow, that is quite, that's quite an image.

0:54:20 Matt: Wouldn't it be cool?

0:54:21 Thomas: Yeah, I do.

0:54:21 Matt: I believe that one, Bob Woodward.

0:54:23 Thomas: I absolutely do believe that as well.

0:54:23 Matt: That sounds right. Would not be cool, in fact, if the vice president could reject lawful certification of votes.

0:54:29 Thomas: Plus I know, uh, Dan Quayle, historically dumb, I don't think he meant the position he was in was just vice president having to certify an election. I think the position meant was between a rock and a hard place of, I'm gonna be killed if I don't, you know, or at least at that time, maybe just the pressure from maga and Trump, it's like what no, you haven't been there, Dan Quayle, that's not— there wasn't what are you talking about, dude, yeah

0:54:47 Matt: That's true. It's true, yeah. Still a funny retort, but yeah, did want to, we don't have time to talk about it now, but I will say that the Electoral Count Reform Act in 2022, which was passed to directly plug up some of these loopholes because the Electoral Account Act itself was from 1888, it has pretty well ensured that at least this line of argument can't work again.

0:55:06 Matt: It plugged the things that would keep this from happening. So January 6th, as it happened before, could not happen again. That's not to say that there could not be some other attempt to take power and keep it. You can at least know on January 6th, as you're listening to this, that the events of January 6, legally, the things that pushed people to do those things, those memos would no longer be permissible under...

0:55:06 Thomas: Take Comfort in the fact that Donald Trump will safely be sworn in as our 47th president. I agree with you, man. What a what a comforting fact

0:55:33 Matt: The system works. Yeah, but and again, I don't want to be naive and say that they're always going to try to follow the law or whatever. But again, as we've been talking about, we are still in the stage of proto-fascism in which they have to actually present something that looks like a legal argument with legal justification. Now, it can be as stupid as the text that we talked about on Friday, where you just cite a 1915 Supreme Court case for no reason, weird text from Jim Jordan.

0:55:57 Thomas: Yeah, right, yeah, to come on this, uh, that'll be more fun, which is, uh, I think we're gonna, for one, we're doing that Godawful Movies— it is, can't wait, uh, I can't wait to, uh, illegally download on that somehow. You know, actually, the GAM fellows, the Godawful Movies folks, do have a good method for watching things that are behind a paywall that doesn't necessarily benefit the person who made it. So we'll be doing that as much as we can. Um, we might get a chance to go through this, uh, trying to whitewash Eastman's reputation. So lots more January 6th themed fun to come.

0:56:31 Matt: Have to hear this to believe it. It's incredible. It's kind of in the reading series of that National Review piece that we read about why we should drop all of Trump's charges because he was elected. It is worse than that, actually. Substantially worse. So, profiles and fascism. Yeah.

0:56:44 Thomas: Well So much for the breakdown, Matt, and thanks for listening, everyone. We'll see you next time.

0:56:50 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:57:08 Matt: That's, again, sorry, getting worked up. Where the devil takes Jesus up to the mountaintop and tempts him with, yeah, it's kind of like that, but like the dumbest possible version of that.

0:57:15 Thomas: I mean The Jesus version is pretty dumb, to be honest with you, but yeah, I'll give this one credit for being more dumb I'm gonna try to tempt the son of the creator of the universe, who's also apparently the creator of the university— what, hmm, what earthly pleasures can I tempt the creator of the universe with? Stupid.

0:57:21 Matt: That's true. Right. You ever thought about just being evil? Pretty much.

0:57:36 Thomas: You know, evil, the thing you created. You ever thought about that? Hey, hi, I'm me, the things you created that also somehow talking to you, that you're the creator everything. Can I tempt you?

0:57:47 Matt: And of course, there's millions of people gathering out there for the Stop the Steal rally.

0:57:50 Thomas: Millions, but yeah.

0:57:51 Matt: Yeah, let me say it again. He