There were just days to go until January 6, and time was tight.
The man spearheading much of Trump’s legal effort to overturn the election result, John Eastman, had learned something: a lawsuit filed by Trump’s lawyers in the key state of Georgia had used bad data.
The suit in question was among the team’s failed attempts to convince a state judge to toss Biden’s win in a swing state. Now, with court cases being struck down left and right and state officials resisting pressure to throw out Biden electoral votes, Eastman was set to bring another lawsuit — also with the bad data — to federal court, where the penalties for misconduct — including lying to judges — are far more serious.
This set the stage for Trump’s legal team to send four emails that, U.S. District Judge David Carter said last week, fall within the crime-fraud exception for attorney-client privilege, allowing them to be turned over to the Jan. 6 Committee.
At issue was a set of figures — including 10,315 votes supposedly cast by dead people in Georgia — that was repeated often by Trump’s allies as they pushed to subvert the election.
The numbers were bogus. And by late December, Carter found, Trump’s legal team knew it.
Nonetheless, Trump signed a court document swearing to their accuracy.
In early December 2020, the Trump legal team had filed a lawsuit in Fulton County, Georgia — Trump v. Raffensperger — that sought to overturn the election result in the state, and brought forth specific claims to do it: the numbers of dead voters, the numbers of felon voters, the numbers of unregistered voters.
While the court was considering the case, two things happened: the Trump campaign decided to bring the state lawsuit to federal court, and Eastman realized that the claims about specific vote totals were at least partly incorrect, according to Carter.
“Although the President signed a verification for [the state court filing] 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 in a Dec. 31, 2020 email cited by Carter. “For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.”
That same day, Eastman filed a federal complaint which incorporated by reference the state lawsuit claims. Trump signed a verification swearing under oath that the numbers “are true and correct” or “believed to be true and correct,” Carter wrote.
“The emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public,” Carter continued. “The Court finds that these emails are sufficiently related to and in furtherance of a conspiracy to defraud the United States.”
How Does This Happen?
If this all strikes you as a stunningly confusing set of events, including a potentially brazenly incriminating act for the former dean of a law school, you’re not alone. TPM spoke with multiple experts in legal ethics who expressed shock.
“Why does Eastman write something on December 31 that says, if my client, Trump, does this, it would not be accurate, not be truthful?” Clark Cunningham, a professor of law and ethics at Georgia State University College of Law, wondered to TPM. “And then turn around that same day and sign a federal lawsuit on behalf of Trump that appears to do exactly that?”
“Eastman is an enigma,” Stephen Gillers, a professor at NYU Law who focuses on legal ethics, told TPM. “But Trump chews up lawyers and spits them out.”
Trump, represented by Eastman and a local attorney named Kurt Hilbert, filed the federal lawsuit — Trump v. Kemp — in the Northern District of Georgia on Dec. 31, 2020.
The complaint, as Carter noted, was based in part on claims that had been made in the state lawsuit, including that Fulton County, Georgia had improperly counted votes cast by 10,315 deceased people, 2,560 felons, and 2,423 unregistered voters.
Eastman, per the email cited by Carter, appears to have realized that the information here was inaccurate.
The federal lawsuit drops the itemized breakdown of numbers, and instead claims that unspecified numbers of dead voters, felon voters, and unregistered voters “resulted in more than 11,779 ‘illegal’ votes” — the number by which Trump lost — “to be counted in the State of Georgia which is sufficient to change the outcome of the election or place the outcome in doubt.”
Hilbert and Eastman did not return TPM’s requests for on-the-record comment.
Axios reported on Friday that Eric Herschmann, a White House attorney, sent an email recommending that the complaint include fewer specific numbers because the breakdown “may not be sustainable upon detailed scrutiny.”
Despite that, Trump attached the state lawsuit — with the numbers that his attorneys knew to be faulty — to the lawsuit.
“Eastman and Trump’s other lawyers don’t put specific numbers in the federal lawsuit,” Cunningham said. “But it appears they want to piggyback on the state lawsuit that does have specific numbers — so they apparently want the benefit of the specific allegations in the state lawsuit, but don’t want to be responsible for making those allegations in the federal case.”
That created an obligation to inform the court that the information was incorrect, legal experts told TPM.
“In his December 31 email, Eastman says that both he and Trump are aware that some of the information in the earlier state court petition is inaccurate, but there’s no effort to warn the federal court that the state court petition attached to the federal lawsuit has inaccurate information,” Cunningham said.
There are some features of the lawsuit that struck experts as odd, in ways that may limit Trump’s culpability.
There’s a lengthy footnote attached to the phrasing about illegal votes, which states both of these two phrases:
- “The facts and figures set forth in the state court action’s Verified Petition was presented to Plaintiff through the affidavits and expert opinions/reports attached to the Verified Petition and such information was presented to that lower court in affidavit form based on information publicly available to said experts.”
- “Plaintiff has not sworn to any facts under oath for which he does not have personal knowledge or belief.”
The footnote seems to suggest that the problematic portion both relies on outside experts, and also remains beyond the scope of potential perjury.
Trump’s verification itself takes this further.
By signing the verification, Cunningham said, Trump was attempting to place as sworn evidence before the judge the assertion that there were more than 11,799 illegal votes, to provide a legal basis for the federal judge to quickly decertify Biden’s win in Georgia.
It says that Trump only swears to facts that “are true and correct where derived from his own knowledge and are believed to be true and correct where derived from the knowledge of others.
Again: Trump is only liable for what others told him.
“It gives Trump wiggle room,” Gillers, the legal ethics expert, said.
“It has to be true that others told him that what he is alleging is true because he is swearing that those facts are based on information from others,” Gillers said.
Carter concluded that Trump understood the data was faulty, but did not describe how he reached that conclusion. It’s not clear what happens if it’s established that Trump was told the facts were inaccurate.
It’s not clear where things go from here for Eastman. A lawyer or an outside group or a civilian could file an ethics complaint based on Carter’s ruling. Experts don’t think a criminal prosecution is likely. The range of possible outcomes in bar complaint from nothing, to an ethics investigation, to disbarment.
Gillers suggested to TPM that a complaint filed in the Northern District of Georgia alleging that Eastman violated its local rule against presenting false evidence would be the most likely route. That would take time, and could result in Eastman being disbarred in the state in which he holds a law license.