In previous posts, I have written about how judges have frustrated the attempts by John Eastman and the Claremont Institute to overturn the Constitution in support of Trump. In many cases, these judges were even appointed by Trump. This vindicates the constitutional principle of rule of law in checking the ambition of potential dictators. Recently, we have seen two more examples of this coming from retired federal appellate judge J. Michael Luttig and federal district court judge David Carter.
The House of Representatives Select Committee to Investigate the January 6 Attack on the U.S. Capitol has sought to obtain emails sent or received by John Eastman on his Chapman University email account between November 3, 2020 and January 20, 2021. Eastman filed a suit with the U.S. District Court in California arguing that many of these emails were protected by the attorney-client privilege, because he was acting as an attorney advising Trump as his client. David Carter is the judge in this case.
Judge Carter began by examining 111 documents dated January 4-7, 2021, that were under dispute. In a decision on March 28, Judge Carter ruled that while 10 documents were privileged, 101 were not; and Eastman was ordered to turn these over to the Committee.
The attorney-client privilege is subject to a "crime-fraud exception," which applies when "(1) a client consults an attorney for advice that will serve [them] in the commission of a fraud or crime, and (2) the communications are sufficiently related to and were made in furtherance of the crime" (p. 31 of Carter's decision). Carter ruled that the Select Committee was correct in claiming that the crime-fraud exception applied in this case, because Eastman and Trump were acting illegally in attempting to obstruct Congress's proceeding to count the electoral votes on January 6, and in attempting to defraud the United States by interfering with the election certification process.
Carter surveyed the evidence for concluding that the "illegality of the plan was obvious" to both Eastman and Trump (36), and that "it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021" (40).
In a decision a few days ago, October 19, Judge Carter ruled on the claim of privilege over the documents from November 3, 2020, to January 20, 2021. Once again, Carter ruled that "more likely than not" Eastman and Trump committed obstruction of an official proceeding and a conspiracy to defraud the United States (3). His most shocking conclusion was that in some of these emails, Eastman said that in one of their lawsuits claiming voter fraud in Georgia, where they had counted fraudulent votes by "10,315 deceased people, 2,560 felons, and 2,423 unregistered voters," they had found that "some of the allegations (and evidence proffered by the experts) has been inaccurate," and yet Trump had signed a verification swearing under oath that these numbers were correct" (16-17). Thus, Eastman and Trump knew that they were lying under oath about their evidence for voter fraud. This is a stunning piece of evidence for the guilt of Eastman and Trump.
Since Carter was appointed to the federal bench in 1998 by President Bill Clinton, Eastman and Trump can say that this just shows the political bias of a liberal Democrat judge. But they can't say that about the Trump-appointed judges that have ruled against Eastman and Trump. Moreover, they can't say this about J. Michael Luttig, who has long been known as one of the most conservative Republican judges in the country, and who has become one of the leading critics of the Eastman plot for overturning the Constitution in favor of Trump.
Luttig is one of the most prominent conservative jurists in America. He worked with John Roberts as young lawyers in the Reagan Administration. He was appointed by George H. W. Bush to lead Clarence Thomas through his Supreme Court confirmation hearings in 1991. He was then appointed by Bush to the U.S. Court of Appeals for the Fourth Circuit in 1991, serving until 2006, when he resigned to become general counsel for Boeing, until his retirement in 2019.
In the days before the January 6th certification of Biden's Electoral College victory, Eastman and Trump were pressuring Vice President Pence to accept Eastman's legal theory for overturning the election by having the Vice President refuse to certify the electoral votes in some of the states won by Biden, or having the Vice President ask the Republican-controlled legislatures in those states to consider selecting Trump electors and thus overturn the popular election of Biden. Pence's legal team advised him that this was unconstitutional, because the Vice-President's role in certifying the Electoral College vote was only ceremonial, and that he did not have the constitutional power to overturn a presidential election. On the evening of January 4th, Pence's legal team contacted Luttig to ask him to act as an outside legal expert, and he was emphatic in saying that there was not constitutional basis for Eastman's theory. This was particularly remarkable because Eastman had been one of Luttig's former law clerks.
On the morning of January 5th, Pence's legal team contacted Luttig again and said that Pence needed help to support his resistance to Eastman's plot. Luttig responded by writing a Twitter thread arguing that there was no constitutional support for Eastman's legal theory. On January 6th, Pence quoted this in his public letter explaining why he was refusing to accept Eastman's proposal for overturning the election. On January 7th, Pence personally called Luttig to thank him for his help.
Eastman's legal theory was based partly on what has been called the "independent-state-legislature" theory (ISL). Luttig has said that "there is literally no support at all in the Constitution" for this theory, because it is "antithetical to the Framers' intent, the text, and the Constitution's fundamental design and architecture."
ISL is based on an unusual interpretation of two clauses in the Constitution. Article I, Section 4, clause 1 reads: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." Article II, Section 1, clause 2 reads: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."
Proponents of ISL say that these provisions give the "Legislature" of each State absolute power over Federal elections to Congress and the Presidency, a power that is so absolute that it cannot be limited by anything in state law or even in the state constitution. Consequently, Republican-controlled state legislatures in 2020 had the power to overturn Biden's popular vote win in their States by appointing Trump electors to the Electoral College.
Another consequence of the independent state legislature theory is that a state legislature has absolute power to engage in partisan gerrymandering in redistricting its congressional districts free from any limits by state constitutional law. So, for example, in North Carolina, the Republican-controlled legislature drafted new congressional district maps in 2021 that gave an advantage to the Republican Party in ten seats and to the Democrats in four. Multiple lawsuits were filed against the Republican leaders of the North Carolina legislature claiming that the maps were so partisan gerrymandered as to be unconstitutional. The North Carolina Supreme Court has held that the maps are unconstitutional. A special master team of outside experts were assigned to create new maps, which were accepted by the courts.
The Republican leaders of the legislature have appealed the case to the U.S. Supreme Court, arguing that under the independent state legislature theory, the North Carolina legislature has absolute power over congressional districting that cannot be constrained by the state constitution. The U.S. Supreme Court has granted review, and oral arguments are scheduled for December 7, 2022 in the case of Moore v. Harper. Many observers of the Court are expecting that the conservative Republican majority on the Court (Roberts, Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett) will rule in favor of the independent state legislature theory in this case.
Luttig has joined this case as a co-counsel with Neal Katyal as the counsel of record arguing the case against the North Carolina legislative leaders. Luttig has said that Moore v. Harper is "without question the most significant case in the history of our nation for American democracy." He has also said that this is part of the Republican move towards the independent state legislature theory as part of a plot for overturning the elections in 2024.
Predictably, Eastman and the Claremont Institute have filed an amicus curiae brief in Moore v. Harper supporting the independent state legislature theory. They attempt to answer the criticisms of the ISL theory coming from various constitutional scholars, such as Vikram David Amar and Akhil Reed Amar.
The Claremont Institute's brief states its core idea bluntly: "when performing federal functions [such as drawing congressional district maps], the legislatures of the several states are not operating pursuant to state authority, but rather pursuant to federal authority, and cannot be constrained by anything in state law or even a state constitution to the contrary" (2).
On the face of it, this makes no sense. How does federal authority establish the identity of a state legislature? Surely, what counts as a state legislature is defined by a state constitution and thus subject to the limits set down in that constitution.
If you read the brief, you will see that it nowhere cites any evidence for this theory in the American Founding. On the contrary, as Amar and Amar point out, throughout the Founding period, it was assumed that the establishment and legitimacy of a state legislature depended on a state constitution as an expression of popular consent to government; and thus every state legislature was subject to constitutional limits.
You will also see that the Claremont brief would require the Supreme Court to overrule all of the previous decisions of the Court that deny the ISL theory. If you compare the Claremont brief and the paper by Amar and Amar, you will notice that never in the history of the U.S. Supreme Court has a majority of the justices endorsed the ISL theory. In Bush v. Gore (2000), three justices (Rehnquist, Scalia, and Thomas) did seem to endorse ISL in their concurrence with the majority.
You should also notice that the Claremont brief is totally silent about a previous Supreme Court decision about partisan gerrymandering in North Carolina--Russo v. Common Cause (2019). As Amar and Amar point out, the majority opinion in this case written by Chief Justice Roberts rejected the independent state legislature theory by arguing that voters in the states can approve constitutional amendments that prohibit partisan gerrymandering, and these constitutional limits can then be enforced by the State Supreme Court (see Amar and Amar, 35). Remarkably, all five of the conservative Republican justices in 2019 signed onto this opinion! The Claremont brief is careful to hide this.
I will be interested to see what happens at the oral arguments for Moore v. Harper on December 7th, and whether we see any hints that the Eastman/Claremont Institute position is going to win out.