Clarence Thomas was ‘key’ to a plan to delay certification of 2020 election, Trump lawyers said in emails
A lawyer for former President Donald Trump described Supreme Court Justice Clarence Thomas as “key” to Trump’s plan to delay Congress’ certification of President Joe Biden’s victory through litigation after the 2020 election, according to emails recently turned over to the House select committee investigating January 6.
“We want to frame things so that Thomas could be the one to issue” a temporary order putting Georgia’s results in doubt, Trump attorney Kenneth Chesebro wrote in a December 31, 2020, email, adding that a favorable order from Thomas was their “only chance” to hold up Congress from counting electoral votes for Biden from Georgia.
John Eastman, another attorney for Trump, responded to that email saying he agreed with the plan. In the email exchanges with several other lawyers working on Trump’s legal team, they were discussing filing a lawsuit that they hoped would result in an order that “TENTATIVELY” held that Biden electoral votes from Georgia were not valid because of election fraud.
Having a case pending in front of the Supreme Court, Chesebro wrote, would be enough to prevent the Senate from counting Biden’s electors. Thomas would end up being “the key here,” Chesebro wrote, noting that Thomas is the justice assigned to dealing with emergency matters coming from the southeastern part of the country.
The email referencing Thomas was first reported by Politico. It is part of a tranche of emails the House has obtained from Eastman, under an order from a court, that are still subject of litigation before an appeals court. The emails were available through a link in a court filing submitted by the House committee early Wednesday.
US District Judge David O. Carter previously determined that the emails show evidence of potential criminal activity in Trump’s efforts to reverse his electoral loss, finding the Trump team was using litigation not to obtain court relief but to meddle with the congressional proceedings. Carter, in deciding last month that the emails should be released to the House committee, said that some of them showed evidence of obstruction of an official proceeding.
Chesebro wrote in one of the newly-available emails that that if the legal team could just get a case pending before the Supreme Court by January 5, “ideally with something positive written by a judge or a justice, hopefully Thomas,” that it was their “best shot at holding up the count of a state in Congress.”
In a separate email Chesebro acknowledged their plans were a long shot, putting the odds of success at the Supreme Court before the January 6 congressional certification at “1%.”
But, he wrote, “a lot can happen in the 13 days left,” and having the election results of multiple states under review in the courts and in state legislatures could bolster the push to extend Congress’ debate over certifying the results.
The “public could also come away” believing the election, particularly in Wisconsin, was likely “rigged,” Chesebro wrote.
In an email two days later, Chesebro said that having Georgia “in play” on a Supreme Court filing could be “critical.” Chesebro speculated that if there was a Georgia case pending before the Supreme Court, Vice President Mike Pence could refuse to open proceedings any of the envelopes documenting the state’s electoral votes during the January 6 proceedings.
Such a move by Pence would force the court to act on the petitions, Chesebro said. “Trump and Pence have procedural options available to them starting on January 6 that might create additional delay, and also might put pressure on the Court to act,” Chesebro wrote.
According to the newly available emails, Trump’s lawyers were so concerned about him filing in court a signed statement asserting false election fraud claims that they worried he might be prosecuted for a crime.
Eastman raised the issue in an email on December 31, 2020, as Trump’s lawyers were planning to file in federal court to challenge the election result. Trump had made notarized verifications in the case that the facts presented were true to the best of his knowledge, but both he and his attorneys knew the data they were using in the case was misleading, according to another email.
In a recent decision, Carter said he believed the exchanges were possible evidence of a fraudulent scheme after the 2020 election. Though he described this set of emails in an order last month, the full text of the exchanges is now available.
“Although the President signed a verification for that back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate,” Eastman wrote to two other lawyers on December 31, 2020. “For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate. And I have no doubt that an aggressive DA or US Atty someplace would go after both the President and his lawyers once all the dust settles on this.”
Eastman also wrote that a White House adviser and lawyer, Eric Herschmann, had “concern about the President signing a verification when specific numbers were included” regarding votes cast. He was specifically concerned about numbers that implied that felons, dead people and people who had moved had voted improperly, another Eastman email showed.
At the time that the lawyers were in discussions, Trump was in flight, returning to the White House, and was set to consult with Herschmann about signing the verification, another December 31 email from Eastman said.
“I’m going to work with Eric in advance to get it all cleared,” Eastman wrote.
He and other private attorneys then discussed changing the verification for Trump to sign. But there was no notary around the White House to witness Trump’s signing until after the new year, the emails show. “Presidential trip to a UPS store?” another lawyer, Christopher Gardner wrote.
Elections lawyers Cleta Mitchell and Alex Kaufman then suggested using a notary over zoom – instead of having Trump sign the document with the language “under penalty of perjury,” according to the emails.
This story has been updated with additional details.