Last week, the Republican members of the Senate Judiciary Committee published their report on new revelations into Donald Trump’s efforts to discard the election results and remain in power. The important takeaway, Republicans conclude, is that Trump’s interest in using the Justice Department to secure an unelected second term was based on “legitimate complaints and reports of crimes.” And anyway, he decided not to go through with the full Saturday Night Massacre coup plan that Justice Department lawyer Jeffrey Clark had urged upon him.
Conservative pundits have embraced this happy-ending interpretation. “The story of Trump and the Justice Department, then, is not one of the president’s relentless pressure campaign on the nation’s top lawyers. It is, rather, a story of the president taking those lawyers’ advice — and then, tragically, turning elsewhere,” argues Byron York. “Trump decided against it,” insists Brit Hume. “It is not to his credit that he even considered it, but his rejection should be part of any story on it.”
That Trump decided against Clark’s plan is certainly part of the story. But is it the important part of the story? That depends on his reasons for rejecting the plan. It would be one thing if Trump rejected the proposal on moral grounds — but not even a Byron York could manage to type the words “Donald Trump” and “moral” in the same sentence. Instead, he simply judged the plan unlikely to succeed, much like a bank robber deciding not to crack a vault because its security system is too tough.
The important issue going forward is what Republicans will decide about the idea of overturning Democratic election victories. Here, the evidence is overwhelmingly negative. The Republican impulse is to rehabilitate all the participants in Trump’s attempted coup.
An instructive episode is the protective cordon forming around John Eastman, the lawyer whose memo gave Trump his step-by-step playbook for using Mike Pence to discard the election results on January 6. Eastman’s plan hinged on an extremely tenuous constitutional argument that the vice-president has unilateral power to discard any election result he decides is wrong, and throw the election to the House, which would decide the result on the basis of which party controlled the most state delegations. Even if Eastman’s argument was valid — and hardly any scholars take it seriously — it would mean he had discovered a loophole that would allow the president’s party to retain power forever.
Eastman’s effort to end American democracy has resulted in some professional blowback. If conservatives wanted to prove that the real takeaway from Trump’s coup is that he decided against it, they would cut Eastman loose. Instead, they are rallying to his defense.
The Claremont Institute, a formerly highbrow cog in the conservative movement, defended Eastman against what it called “a recent combined disinformation, de-platforming, and ostracism campaign.” Claremont’s defense is aggressively misleading:
Contrary to almost universally false news accounts, which have done great damage, John did not ask the Vice President, who was presiding over the Joint Session of Congress where electoral votes were to be counted on January 6, to “overturn” the election or to decide the validity of electoral votes. John advised the Vice President to accede to requests from state legislators to pause the proceedings of the Joint Session of Congress for 7 to 10 days, to give time to the state legislatures to assess whether the acknowledged illegal conduct by their state election officials had affected the results of the election.
Translated into English, Claremont is insisting that Eastman didn’t ask Mike Pence to overturn the election — he asked Mike Pence to refuse to certify the result and then throw the question over to the House, which would overturn the election. It’s a bit like getting furious when people say Stalin executed millions of people, when the real story is that he ordered other people to do the executions but never fired a shot with his own hands.
Joining Eastman’s pro bono defense team is J. Christian Adams. In a new column, Adams argues that Eastman did nothing wrong and is the victim of an “oppressive orthodoxy.”
Adams argues that Eastman merely fulfilled the highest ideals of the legal profession by representing a client in need of counsel. Calling Eastman a “victim in the campaign to cancel attorneys who committed the sin of representing former president Trump,” Adams reasons that Eastman was merely representing a client in need. “Back in the old days of representing GITMO detainees, we called that the sacred right to legal counsel. In olden days, lawyers representing terrorists were allowed to fill their terrorist-clients’ heads full of reasons they weren’t guilty of trying to kill Americans,” he pleads.
This would be a good argument if Trump were a criminal defendant. Actually, Trump is a criminal defendant. He’s facing charges in Manhattan and New York State for a lengthy list of alleged financial crimes. And, in fact, nobody is proposing to sanction the lawyers representing Trump in these cases, a fact that disproves Adams’s claim that Eastman is merely being bullied for his unpopular client.
The finer points of legal ethics obviously do not interest Adams. He is closing ranks with Eastman out of a broader desire to rehabilitate the legal insurrection. And Adams is hardly some insignificant nut. He is a nut, all right, but one who possesses impeccable conservative-movement credentials. He worked in George W. Bush’s Justice Department, served on the U.S. Commission on Civil Rights, writes op-eds in the Washington Examiner, is invited by Republicans to testify in Congress as a credentialed expert, and is one of his party’s leading voices on election security.
When J. Christian Adams shouts that Eastman is the victim of cancel culture, it signals what the Republican legal Establishment thinks about Trump’s coup. Whatever regrets they have are dwarfed by their anger at the liberals for exposing the plot. They are going to try again.