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Email from Trump lawyers shows plan to avoid litigating 2020 election certification as it could ‘tank the January 6 strategy’

Donald Trump arriving to speak at a rally in Washington, DC, on Jan. 6, 2021

Jacquelyn Martin/AP

  • A judge ruled that the January 6 committee can see 159 new emails from one of Trump’s lawyers. 
  • They show how lawyers feared losing a legitimate legal challenge to certifying the 2020 election.
  • “Instead, they forged ahead with a political campaign to disrupt the electoral count,” a judge said.

An email from one of Trump’s lawyers says they decided against going to court with a challenge to the 2020 election certification process to court, fearing the consequences of losing.

Failure would “tank” their plan to disrupt the count politically, new court documents describing the email said.

US District Court Judge David Carter discussed the email in a ruling that said one of Trump’s post-election lawyers, Dr John Eastman, must disclose a cache of 159 messages.

One of these could be evidence of a crime, Carter wrote.

In the aftermath of the election, Eastman helped craft Trump’s election-denial efforts, ultimately writing an infamous memo urging then-Vice President Mike Pence to refuse to accept election certifications on January 6, as Insider’s C. Ryan Barber reported. 

In March 2022, Carter, the judge, concluded that Trump and Eastman “more likely than not” attempted to illegally obstruct Congress in a criminal conspiracy, as Politico reported. 

Eastman has since claimed various forms of privilege in attempts to avoid releasing tens of thousands of related documents to the January 6 committee in the US House of Representatives.

In a Tuesday ruling seen by Insider, Carter discussed the 159 emails and why they should be disclosed.

This gave an insight to how Eastman’s group strategized — and how, Carter said, they felt they had “a near-zero chance of success in the D.C. courts” with “certain election lawsuits.”

This was in a set of four emails that referred to January 6 only as a deadline for filing suits, which Carter said allows them to remain hidden from the public. 

But a further email dated December 22, 2020, tied these deliberations to what an unnamed attorney called “the January 6 strategy.” As it relates to a potential crime, it could be released, Carter wrote. 

“This email considers whether to bring a case that would decide the interpretation of the Electoral Count Act and potentially risk a court finding that the Act binds Vice President Pence,” Carter wrote.

By “binds”, Carter meant that a court could say unequivocally that Pence was not able to reject states’ election results at the January 6 hearing, which is exactly what Trump and his allies hoped Pence would be able to do.

“Because the attorney concluded that a negative court ruling would ‘tank the January 6 strategy,’ Carter wrote, Eastman encouraged the legal team to avoid the courts.

“This email cemented the direction of the January 6 plan. The Trump legal team chose not to seek recourse in court—instead, they forged ahead with a political campaign to disrupt the electoral count.

“Lawyers are free not to bring cases; they are not free to evade judicial review to overturn a democratic election.”

The email trove considered by Carter also reveals the depth of Eastman’s efforts to persuade state to put forward alternate electors, which went well beyond pressuring Pence and “targeted every tier of federal and state elected officials,” Carter wrote. 

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