These questions included, where is the line between legal advice and political strategizing? What litigation was Eastman advising Trump about when he sent the emails? And wasn’t Eastman trying to circumvent the courts by pressuring then-Vice President Mike Pence to take unilateral action on January 6, 2021.
The House’s top lawyer, Doug Letter, emphasized the House committee’s language from an explosive court filing last week, which said the panel believed Trump and Eastman were part of a “criminal conspiracy,” and therefore, Eastman couldn’t shield his emails with attorney-client privilege.
“Trump was ignoring all of the very clear evidence because he wanted something different. He wanted the vice president to do something that was plainly against the Constitution,” Letter said, describing Trump as the primary actor.
Letter was referring to the hope, shared by Trump and Eastman, that Pence would throw the election to Trump while presiding over the Electoral College proceedings on January 6 last year. Letter cited an email where Eastman said Pence should commit a “minor” violation of the Electoral Count Act, which governs the transition of power and how Congress counts the electoral votes.
“It’s unclear to me how any of this could be a ‘minor’ violation of the law, when we’re talking about an insurrection that sadly came very close to succeeding,” Letter said. “…It would’ve been so ‘minor’ that it could’ve changed the entire course of our democracy. It could’ve meant that the popularly elected President of the United States would’ve been thwarted in taking office.”
Neither Trump nor Eastman has been charged with any crimes. Despite the House’s filings, lawmakers aren’t prosecutors and can’t bring charges. And there is no public indication that the Justice Department is seriously investigating their attempt to subvert the 2020 election.
Eastman’s attorney Charles Burnham argued that the House failed to show any “criminal intent” and that its claims about alleged crimes were so weak that the judge should easily reject them outright. The House’s claims of alleged crimes are secondary to the main legal arguments about Eastman’s emails, and it’s possible that the judge sidesteps that issue in his eventual ruling.