The select committee has evidence that when a top Pence aide challenged Eastman’s plan on Jan. 4, 2021, Eastman initially told him he believed two Supreme Court justices would back him up. One of them was Ginni Thomas’ husband, Justice Clarence Thomas.
Eastman’s assertion, described by Pence’s counsel Greg Jacob to the select committee earlier this year, appeared to be a guess based on analysis of Thomas’ long legal career. Eastman had reason to know Thomas’ views well: He clerked for the George H.W. Bush appointee in the 1990s before becoming a mainstay in deeply conservative legal circles.
But the revelation that Thomas’ wife kept in contact with Trump’s chief of staff Mark Meadows in the weeks after Trump’s defeat — pressing him to keep trying to overturn the election — adds a new wrinkle to the timeline. Rep. Jamie Raskin (D-Md.) told POLITICO that the new details raise important questions about whether Eastman had a specific reason to believe Justice Thomas would support his radical gambit, or if he was simply voicing a hunch.
Eastman’s attorney Charles Burnham did not respond to questions about whether Eastman maintained ties to the Thomases or communicated with either of them in the aftermath of Trump’s 2020 defeat. There’s no known evidence that Eastman was directly in touch with either of the Thomases during his campaign to pressure Pence to subvert the results.
But the conservative legal scholar has taken pains to avoid revealing his interactions in that timeframe.
Eastman has sued the Jan. 6 select committee to prevent them from enforcing a subpoena for his records and testimony. He’s also sued his former employer, Chapman University, to prevent the school from turning over thousands of pages of his emails to the select committee. And when Eastman appeared before the committee last year, he embraced a blanket strategy to resist their questions: pleading the Fifth.
During that deposition, investigators specifically asked Eastman to articulate whether he believed the Supreme Court would have supported his gambit. He replied with a single word: “Fifth.”
Other than Trump, Eastman has proven to be the most significant figure in the select committee’s investigation, one the panel’s top lawyer — House General Counsel Douglas Letter — called the “central player in the development of a legal strategy to justify a coup.”
The panel is engaged in extensive, hard-fought litigation to obtain Eastman’s Chapman University emails, and it is awaiting a federal judge’s decision about whether Eastman can continue to shield them behind claims of attorney-client privilege. While the panel says it has put some of its legal fights on the back burner, Letter has remained fixed on winning the battle against Eastman. And the select committee used the fight to publicly unload some of its key evidence, including excerpts of interview transcripts with Eastman and Jacob, Pence’s counsel.
The committee says Eastman has failed to show he had a legitimate attorney-client relationship with Trump, and that even if he did, the House’s need for the documents requires waiving the privilege. House lawyers argued in court papers that Eastman may have conspired with Trump to commit multiple crimes — including felony obstruction of Congress — in the aftermath of the election.
Eastman’s theory centered on Pence, who was required by the Constitution to preside over a joint session of Congress to count the votes cast by the Electoral College. Though it’s typically a ceremonial event, Eastman developed a theory — and convinced Trump to back him — that Pence could simply refuse to count the votes of several key states Biden won. The most extreme version of his plan called for Pence to simply declare Trump the winner on the spot. The version Eastman suggested would have buy-in from Thomas, according to Jacob, would have had Pence postpone the count and ask GOP state legislatures in Biden-won states to consider replacing Democratic electors with Trump loyalists.
Jacob told the select committee that when Eastman pushed this idea, he replied, “If this case got to the Supreme Court, we’d lose 9-0, wouldn’t we, if we actually took your position and it got up there?”
Eastman said he actually believed the court would vote 7-2, Jacob recalled.
“And I said, ‘Who are the two?’ And he said, ‘Well, I think maybe Clarence Thomas.’ And I said, ‘Really? Clarence Thomas?’ And so we went through a few Thomas opinions and, finally, he acknowledged, ‘yeah, all right, it would be 9-0.’”
Jacob told the committee he couldn’t remember the other justice Eastman had mentioned as a potential vote in Trump’s favor.
However, in a Dec. 11 ruling, Justice Samuel Alito joined Thomas, splitting from the rest of the court, to say they would have docketed a challenge some conservative states brought against election procedures in more liberal ones. Both justices indicated, though, that they wouldn’t have stepped in to grant the emergency relief the red states sought.
Thomas’ more recent vote against the select committee’s effort to obtain Trump-related records through the National Archives — he was the lone dissent — has sparked renewed controversy in light of the emergence of his wife’s messages with Meadows. Though it’s not clear any of her correspondence were, or should have been, included in the Archives files, it has sparked questions about whether Thomas should have recused from the matter.
When Eastman appeared before the committee to plead the Fifth, committee counsel John Wood asked him about Jacob’s view that not a single Supreme Court justice would have supported Eastman’s plan.
“Dr. Eastman, did you, in fact, agree with Mr. Jacob that not a single member of the Supreme Court would support your position?” Wood asked.
“Fifth,” Eastman replied
“And, Dr. Eastman, which position was that that Mr. Jacobs said not a single member of the Supreme Court would support?” Wood asked.
“Fifth,” Eastman said again.
On Jan. 6, as rioters bore down on the Capitol, Eastman and Jacob engaged in a tense email exchange, in which Jacob accused Eastman of being a “serpent in the ear” of the president and encouraging him to embrace unsupportable legal theories. He reiterated his belief that no justice of the Supreme Court or appeals court judge would have agreed with Eastman’s strategy.
Eastman replied that he disagreed, arguing that if Pence had postponed the session and called on the state legislatures to act, the courts may have demurred.
“I remain of the view not only would that have been the most prudent course … but also had a fair chance of being approved (or at least not enjoined) by the courts,” Eastman wrote.
After another brief disagreement, Eastman closed his email exchange with Jacob: “When this is over, we should have a good bottle of wine over a nice dinner someplace.”
Josh Gerstein contributed to this report.