John Eastman agreed Clarence Thomas wouldn’t back theory to block Biden win, Pence aide says

By Tierney Sneed, CNN

(CNN) — An ex-adviser to former Vice President Mike Pence claimed Wednesday that he convinced Donald Trump attorney John Eastman that not even conservative Supreme Court Justice Clarence Thomas would embrace the controversial legal theory that Pence could block Joe Biden’s 2020 victory.

The ex-Pence adviser, Greg Jacob, is testifying in the attorney ethics proceedings for Eastman, whom the California Bar is seeking disbarred because of the role Eastman played in Trump’s bid to overturn the 2020 results.

Jacob recounted how he countered Eastman’s belief, during a January 5, 2021, meeting, that Thomas might vote in favor of the idea that Pence, as vice president, had the authority to disrupt Congress’ certification of Biden’s electors.

Jacob said he pointed to a specific decision – regarding congressional term limits – where Thomas’ dissent showed that the justice took strict view the Constitution’s enumerated powers and how the position Eastman was advocating for lacked a historical record that would be needed to attract Thomas’ support.

“So, in light of all of that, he then conceded, ‘Okay, you’re right. I don’t think Clarence Thomas would vote that way,’” Jacob testified, adding that Eastman, however, continued to put forward the possibility that the Supreme Court would refuse to even hear the case because it involved a supposed “political” question.

Jacob previously testified to the House committee investigating the January 6, 2021, US Capitol attack in both a private deposition and at a public hearing, and much of his account Wednesday of his dealings with Eastman followed the broad strokes he had outlined for lawmakers.

But during Wednesday’s disciplinary proceedings, the line of questioning from California Bar attorney Duncan Carling had Jacob go into granularities of the legal debates he and Eastman were having about the vice president’s role in the January 6 electoral count.

The California Bar is arguing that Eastman had no good basis for promoting the fringe legal theories about Pence’s authority to disrupt the January 6 ceremony. The Bar has brought 11 charges of ethics violations against Eastman, and the proceedings are now unfolding in a courtroom in Los Angeles before State Bar Court Judge Yvette Roland.

The California Supreme Court will have the final say over whether Eastman violated the attorney ethics rules and what punishment he will face.

Eastman and his lawyers argue that the relevant law and Constitutional provisions about the vice president’s powers were ambiguous and subject to debate.

“It was just advocacy,” Eastman attorney Randy Miller said in an opening statement on Tuesday. “Two smart people talking about the scope of constitutional authority – which was, by far, not clear. An honest debate held in good faith that lawyers do.”

During his testimony Wednesday, Jacob ran through historical examples of past congressional Electoral Count ceremonies – including a 1797 episode involving then Vice President John Adams, and how then-Vice President Richard Nixon approached disputed electors from Hawaii after the 1960 election – that Eastman thought helped his case. Jacob laid out the details of those episodes and why they cut against the arguments Eastman was making about the vice president’s powers.

“After we discussed those incidents, Dr. Eastman agreed that they did not represent vice presidential rejection of electors, vice presidents asserting or expressing that they had any kind of authority, or vice presidents even making any kind of affirmative decision,” Jacob said, though he added that Eastman did not concede that the examples didn’t support his arguments.

When Eastman’s lawyer had the opportunity to cross-examine Jacob, he had Jacob pick apart a December 8, 2020, memo in which Jacob acknowledged a scholarly debate over the role the vice president can play during the congressional count of the presidential electors. Jacob testified to the legal debates around some provisions of the Electoral Count Act, which governs the proceedings of Congress’ certification ceremony, but said that by the time of the memo, Pence’s team had concluded he would be operating under the procedures laid out in the law.

In addition to the congressional probe, Jacob has also testified repeatedly last fall to a grand jury investigating the Trump-aligned 2020 election subversion plots – with one of those appearances coming after Trump lost a court bid to prevent Jacob from answering certain questions. Eastman, meanwhile, had his phone seized by federal investigators last summer.

In the disbarment proceedings Eastman is currently facing, the California Bar is arguing that Eastman did real harm to the nation and to the legal profession by pushing frivolous legal arguments and debunked election fraud claims.

“The people who marched on the Capitol believed – most of them at least believed – that the vice president had the authority to determine the validity of those certificates or at minimum that he had the authority to suspend the proceedings and send it back to the state legislatures,” Jacob said Wednesday.

During his cross-examination, Eastman attorney Miller pressed Jacob on how he knew the Capitol rioters were motivated by the belief that Pence could disrupt the certification of Biden’s win.

“I have read dozens of tweets that were issued by various people who were in that crowd and who were rioters. I’ve seen evidence presented in trials and proceedings of those individuals. I’ve seen the video footage of them shouting, ‘Hang Mike Pence,’” Jacob testified. “And all of those things and their statements lead me to conclude that they all believed that the vice president had authorities to decide the election in favor of President Trump, or at minimum, to head things in that direction by sending it back to the states.”

Eastman defends debunked fraud claims

The proceedings have already featured several hours of the Bar attorney questioning Eastman himself, with lines of inquiry that scrutinize why he held on to debunked claims about election fraud in the 2020 election, even after the assertions had been refuted by election officials.

Eastman testified Tuesday that the information put out by Georgia state officials, including several Republicans, did not persuade him. At one point, Eastman said he did not see a Georgia secretary of state release on the ballot rejection rates because he was suffering from Covid-19 during the back half of November.

“I was a little bit under the weather with a 104 degree temperature,” Eastman said.

During Tuesday’s proceedings, Eastman also stood by assertions he made to the Wisconsin legislature in 2021 – a full year after the election – that state legislatures may have the power to decertify 2020 electors for Biden.

“If the election had been conducted illegally, and they determined that in fact it affected the outcome of the election, that they there’s certainly an argument to be made that they have authority to try and remedy that constitutional violation,” Eastman said.

The proceedings are slated to last several days and operate in a trial-like fashion.

An attempt Tuesday by the California Bar attorney to question Eastman about his conversations regarding the plot to put forward rival Trump electors in battleground states that Biden won devolved into a debate over whether such conversations were shielded by attorney-client privilege.

Republican National Committee Chairwoman Ronna McDaniel previously told House committee investigators that, during a December 2020 phone conversation with her and Trump, Eastman called on the RNC to help with the effort of organizing an alternate slate of Trump electors.

Eastman testified Tuesday that he didn’t have any reason to doubt how McDaniel remembered the call, but that he doesn’t have any memory of it himself. He declined to discuss any other conversation he was having about the alternate electors’ scheme – but the judge has not yet made a ruling on whether attorney-client privilege precludes him from answering those questions.

This story has been updated with additional details.

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