Wednesday, August 02, 2023

The Claremont Institute's John Eastman in Jack Smith's New Indictment of Trump: A Criminal Conspiracy to Overturn the Rule of Law

Yesterday, Special Counsel Jack Smith filed a new indictment of Donald Trump charging him with a criminal conspiracy against the United States: "The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government by which those results are collected, counted, and certified" (par. 7).

Smith identifies, but does not name or charge, six "co-conspirators."  He might be giving them a chance to cooperate before he charges them.

Although he does not name them, it is easy to identify them (par. 8).  Co-Conspirator 1 is Rudolph Giuliani.  Co-Conspirator 2 is John Eastman.  These two are clearly the main leaders of the conspiracy.  These are the two people that Trump selected to speak at his "Save America Rally" on January 6, 2021, which provoked the mob attack on the Capitol.

Co-Conspirator 3 is Sidney Powell.  Number 4 is Jeffrey Clark.  Number 5 is Kenneth Chesebro.  I am not sure about Number 6, who is identified as "a political consultant who helped implement a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding."

I am most interested in the role of Eastman because he was the one who provided the fraudulent constitutional theory to justify Trump's attempt to overturn the election.  Eastman is the Director of the Claremont Institute's Center for Constitutional Jurisprudence, which claims to promote a return to the principles of the American constitutional founding.  Eastman's work for Trump's conspiracy was thus part of the Claremont Institute's efforts to provide intellectual support for Trump.  I have written about that in a series of posts.

Count One of the indictment is "conspiracy to defraud the United States," for which the punishment is up to 5 years in prison.  After reading this indictment, Eastman's lawyers should advise him to take a plea deal with Smith in exchange for testifying against Trump.  If he doesn't do that, he's a fool.

Smith has to show that Trump and his co-conspirators "deliberately disregarded the truth" about whether the election was fraudulent, and that they "made knowingly false claims" (par. 11). In other words, he was not delusional.  To prove this, Smith shows that every time that Trump made some charge of fraudulent voting, his most trusted advisors and Republican party leaders told him there was no evidence for this; but Trump would then keep repeating the charge.  Smith also notes that all of the lawsuits filed by Trump in the state and federal courts alleging vote fraud were rejected by the courts, thus "providing the Defendant real-time notice that his allegations were meritless" (par. 11).  I have written about these court cases--here and here.  In many cases, the judges in these cases had been appointed by Trump himself.  Here we see the vindication of the rule of law in exposing the falsehood in Trump's charges.

Smith also cites evidence that Trump admitted to his own advisors that some of the charges brought by Sidney Powell were unsupported and even "crazy" (par. 20).  Smith also quotes Giuliani as saying: "We don't have the evidence, but we have lots of theories" (par. 16).  Smith also notes that Eastman admitted that some of the charges were "inaccurate" (par. 30).

Giuliani and Eastman put pressure on Arizona House Speaker Rusty Bowers to use the Republican majority of the state legislature to decertify the state's legitimate electors.  Bowers said that he had not found any evidence of fraudulent voting in Arizona.  When he asked them for such evidence, they admitted they had none, but they still insisted that he should overturn the election.

On December 4, Bowers issued a public statement that included this passage:

"No election is perfect, and if there were evidence of illegal votes or an improper count, then Arizona law provides a process to contest the election: a lawsuit under state law.  But the law does not authorize the Legislature to reverse the results of an election."

"As a conservative Republican, I don't like the results of the presidential election.  I voted for President Trump and worked hard to reelect him.  But I cannot and will not entertain a suggestion that we violate current law to change the outcome of a certified election."

"I and my fellow legislators swore an oath to support the U.S. Constitution and the constitution and laws of the state of Arizona.  It would violate that oath, the basic principles of republican government, and the rule of law if we attempted to nullify the people's vote based on unsupported theories of fraud.  Under the laws that we wrote and voted upon, Arizona voters choose who wins, and our system requires that their choice be respected" (par. 17).

This ended Bowers' political career.  He was censured by the Arizona Republican Party for not overturning the election and refusing to violate his oath of office.  He then lost a primary election for the State Senate.

It is strange that Eastman and the Claremont Institute, who profess to support the U.S. Constitution and rule of law, have refused to recognize the moral courage of Bowers and others who refused to violate their oaths to support the principles of republican government.

It is also strange that Eastman was willing to invent a constitutional theory that could be used to overturn the election even though he knew that his theory was so preposterous that no court would support it.  Consider these two paragraphs from the indictment:

"94.  Also on January 4, when Co-Conspirator 2 [Eastman] acknowledged to the Defendant's Senior Adviser that no court would support his proposal, the Senior Adviser told Co-Conspirator 2, 'You're going to cause riots in the streets.'  Co-Conspirator 2 responded that there had previously been points in the nation's history where violence was necessary to protect the republic.  After that conversation, the Senior Advisor notified the Defendant that Co-Conspirator 2 had conceded that his plan was 'not going to work.'"

"95.  On the morning of January 5, at the Defendant's direction, the Vice President's Chief of Staff and the Vice President's Counsel met again with Co-Conspirator 2.  Co-Conspirator 2 now advocated that the Vice President do what the Defendant had said he preferred the day before: unilaterally reject electors from the targeted states.  During this meeting, Co-Conspirator 2 privately acknowledged to the Vice President's Counsel that he hoped to prevent judicial review of his proposal because he understood that it would be unanimously rejected by the Supreme Court.  The Vice President's Counsel expressed to Co-Conspirator 2 that following through with the proposal would result in a 'disastrous situation' where the election might 'have to be decided in the streets.'"

The next day--January 6--Eastman spoke to the crowd outside the White House purporting to give them a legal theory to justify overturning the election.  Trump followed him by endorsing this and identifying Eastman as "the number one, or certainly one of the top, Constitutional lawyers in our country" (par. 104).

The crowd then began marching to the Capitol building, and when they heard that the Vice President had refused to overturn the election, they began chanting "Hang Mike Pence."



Roger Sweeny said...

"It is also strange that Eastman was willing to invent a constitutional theory that could be used to overturn the election even though he knew that his theory was so preposterous that no court would support it."

Through much of the country's history, a legal theory that said racial discrimination violated the Constitution "was so preposterous that no court would support it." There are any number of theories that have gone from preposterous to settled law. This occurs because cases are brought and theories asserted over and over until the legal (and extra-legal) climate changes. This often involves deliberately violating the established law.

It seems to me dangerous and illiberal to hold someone criminally liable for asserting the novel theory of a minority of his advisors rather the theory of the more respectable majority.

Larry Arnhart said...

Smith's indictment does not hold Trump "criminally liable for asserting the novel theory of a minority of his advisors." The indictment begins by acknowledging Trump's right to freedom of speech in advocating Eastman's theory. The indictment holds Trump criminally liable for illegally engaging in fraudulent activity designed to overturn the election--for example, having Trump electors fraudulently certify themselves as the true electors in seven states where the Biden electors had been certified by state authorities who officially recognized that Biden had won the election in their states.

Roger Sweeny said...

Thanks for the correction.