As the House select committee investigating the January 6 insurrection focuses on Trump lawyer John Eastman and his efforts to convince Mike Pence to overturn Joe Biden’s election victory, evidence is slowly emerging that Eastman had other schemes in mind as fallback options if the main ploy failed. The New York Times is reporting that Eastman was plotting with another campaign attorney to find ways to encourage the U.S. Supreme Court to intervene, presumably to call into question the validity of Biden electors and/or to make it possible for Republican state legislators to send Trump electors to Congress at the last minute.
In an email on the possibility of ginning up a new case of alleged fraud to send to the Supreme Court, Eastman made a startling reference to an alleged struggle within the Court over whether to get involved (it had already rejected two petitions to do so by this point). Per the Times:
“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,” Mr. Eastman wrote [on December 24, 2020], according to the people briefed on the contents of the email. Referring to the process by which at least four justices are needed to take up a case, he added, “For those willing to do their duty, we should help them by giving them a Wisconsin cert petition to add into the mix.”
Team Trump placed great stock in the constitutional theory known as the “independent state legislatures doctrine,” which holds that state legislatures are the ultimate authority on regulating federal elections. Thus, election-related decisions by the executive or judicial branches in key states won by Biden could be overturned by (Republican-controlled) legislatures. The Supreme Court dismissed a challenge to a Pennsylvania court decision a few weeks before the 2020 election on a 4-4 vote, and with Justice Amy Coney Barrett having subsequently joined the Court, Eastman and other Trump lawyers clearly hoped they could get a second look at its constitutional claims, even in late December.
But the question leaps off the page when you read Eastman’s communications: How the hell could he have known there was “a heated fight underway” in the Supreme Court on this most sensitive of topics? Well, yesterday the Washington Post reported that Ginni Thomas, the wife of Justice Clarence Thomas and a well-known right-wing political activist, was extensively in touch with Eastman via email as part of her own relentless cheerleading for an overturned election:
The House committee investigating the Jan. 6, 2021, attack on the Capitol has obtained email correspondence between Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas, and lawyer John Eastman …
Thomas also sent messages to President Donald Trump’s White House chief of staff, Mark Meadows, and to Arizona lawmakers, pressing them to help overturn the election, The Post has previously reported.
The revelation that Eastman seemed to claim inside information on the Supreme Court’s deliberations on election cases seems to have convinced the House select committee to call Ginni Thomas in for questioning. Committee chair Bennie Thompson told reporters today, “We think it’s time that we, at some point, invite her to come talk to the committee.”
Now it’s entirely possible Eastman was just blowing smoke when he spoke confidently of a “heated fight” among justices. And it’s even possible he had intelligence sources other than Ginni Thomas; Eastman is, himself, a former Clarence Thomas clerk. But it does seem fishy that he was corresponding with Thomas’s wife on the very subject he was so interested in getting before the Supreme Court.
Eastman, however, insisted there was nothing untoward about his communications with Thomas. The lawyer said via Substack that he was merely discussing her invitation to have him “give an update about election litigation to a group she met with periodically.” He accused the media of being played by “false innuendo” from the January 6 committee, and said his reference to a “heated fight” was based on media reports that the justices hadn’t decided whether to take up the election-related cases.
“Whether or not those news accounts were true, I can categorically confirm that at no time did I discuss with Mrs. Thomas or Justice Thomas any matters pending or likely to come before the Court,” Eastman wrote. “We have never engaged in such discussions, would not engage in such discussions, and did not do so in December 2020 or anytime else.”
Whatever subsequent evidence shows about Ginni or Clarence Thomas’s involvement (or innocence) in the plot to overturn the 2020 election, it is now very plain that there was no federal or state government entity that Trump and his hirelings left unsullied. They tried to involve the vice-president, Congress, various state legislatures, secretaries of State, and yes, even the U.S. Supreme Court in the plot to keep the 45th president in office in defiance of a democratic election. The sinister inventiveness of John Eastman and the fanatical encouragement of Ginni Thomas were both employed in service to the unlimited and lawless ambitions of the man who may well try to seize the White House again.
This post has been updated to include Eastman’s response.
More on January 6
- The Idea of Presidential Immunity Is Not As Ridiculous As You’ve Heard
- January 6 Romanticism Has Become Trump’s ‘Lost Cause’
- The Paramilitary Candidate
