In advance of today’s January 6 Committee hearing, which will focus on the effort to pressure Pence into nullifying Biden’s Electoral College victory, the N.Y. Times has a disturbing new report–based on additional Eastman emails that the Committee has received–that Eastman purported to know about the internal deliberations of the U.S. Supreme Court justices on whether to grant review in a case involving the 2020 presidential election before the January 6 joint session of Congress for counting the Electoral College votes.
Even more disturbing, in my judgment, is the story’s account of Eastman’s correspondence with another attorney, Kenneth Chesebro, in which Chesebro asserts that the Court’s involvement is likely to increase the more perception there is among the Justices of civil unrest affecting the January 6 joint session.
According to the Times report, Eastman and Chesebro exchanged emails on December 24. They were discussing whether to seek Supreme Court review of a case involving Wisconsin’s presidential vote and assessing the chances that the Court would agree to hear the case. Eastman wrote: “So the odds are not based on the legal merits but an assessment of the justices’ spines, and I understand that there is a heated fight underway.” The Times goes on to speculate whether Eastman’s claim to have knowledge of the Court’s internal deliberations is connected to Eastman’s recently reported correspondence with Ginni Thomas.
As troubling as it is that Eastman might have been receiving access to the Court’s private conversations concerning its potential role in adjudicating any claims raised in connection with the presidential election, especially alarming I think is the apparent contemplation of pressuring the Court itself by invoking the risk of civil unrest on January 6, which President Trump had called for in his infamous “Be there. Will be wild!” tweet. In response to Eastman’s email, according to the Times report, Chesebro wrote: “odds of action before Jan. 6 will become more favorable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.” Chesebro here is quoting Trump’s “wild” tweet from five days earlier, December 19.
To be clear, nothing in the Times account shows a coordinated plan to provoke “‘wild’ chaos” in order to intimidate the Court. Still, Chesebro’s linking the risk of violence and disorder–“chaos” is his own word–to the SCOTUS litigation strategy he and Eastman were discussing indicates a willingness, even desire, to have the Court exercise its judicial role not based solely “on the legal merits” (as Eastman himself put it) but based on tactics aimed at exploiting judicial “fear” in response to mob thuggery. Chesebro apparently didn’t think this approach was likely to be successful. Indeed, his email to Eastman included this assessment: “Though that factor [meaning the “‘wild’ chaos”] could go against us on the merits. Easiest way to quell chaos would be to rule against us — our side would accept that result as legitimate.” But even contemplation of exploiting civil disorder in an attempt to manipulate the Supreme Court, especially in the context of the overall effort to negate the Electoral College outcome, adds another ugly new dimension to the Trump-led plot to derail democracy.
Another point: as indicated above, the Times account refers to litigation specifically over only Wisconsin’s electoral votes. A win for the Trump campaign in Wisconsin, while significant, would not have altered the overall Electoral College outcome. Trump needed to change the result in at least three states. A key component of what makes the entire effort to undo the election so “detached from reality” is that, not only were legal arguments insufficient to negate Biden’s victory in any single state, but it was inconceivable that they could have combined to wipe away Biden’s nationwide Electoral College majority. As Ben Ginsberg testified on Monday, 2020 was not analogous to 2000, which involved a razor-thin result in a single state. Each state in which Trump was fighting in 2020 involved margins of victory that were orders of magnitude larger than Florida in 2000, but even more important is the fact that no single state was pivotal. The idea that Eastman and Chesebro would consider how the risk of violence might help achieve a different judicial outcome for just Wisconsin–something that itself did not happen, but ultimately would not have made a difference even if it had–signifies just how deranged the entire Trump-Eastman enterprise had become.
Finally, without seeing the full texts of all these emails and having a better understanding of the context in which they occurred, any assessment of them is necessarily preliminary. Perhaps today’s hearing will shed additional light on this aspect of entire sordid saga.