Trump lawyer John Eastman relies on the same bad voter fraud evidence as everyone else

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If certain things had fallen into place, John Eastman would probably be a senior adviser to the President of the United States today. He would still be embroiled in controversy: that president would be Donald Trump, retaining his post thanks to the anti-democratic efforts of Eastman and others. But the contours of the fight he currently finds himself in — trying to shield his conversations with Trump from the scrutiny of House investigators — would certainly be different.

On Thursday evening, Eastman’s legal team filed a case as part of this effort. It includes new revelations about what is in the cache of documents that Eastman says are protected by attorney-client privilege, such as “former President Trump’s handwritten notes on information that, in his opinion, could be useful for the intended litigation”. But in an attempt to derail the House Select Committee’s argument that such communications should not be privileged, given that they may have involved an effort to commit or cover up a crime (aka the crime-fraud exception), the record argues that a challenge to the election results was warranted due to strong evidence that fraud took place.

And to prove that point, the Eastman team relies on extremely dubious assertions.

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As you probably know, the lawyer was a central player in Trump’s efforts to steal a second term. Eastman wrote a memo arguing that Vice President Mike Pence could simply reject electoral votes submitted by various states. The longer version of the memo (apparently written after a shorter, more aggressive iteration received a cool response) included an effort to articulate similar claims about fraud. The fact that the first didn’t spend much time on this is telling: the first action plan was centered around seizing power, and the rationale was then fulfilled.

The new court filing claims that the issue Eastman was discussing with Trump was “not whether there was illegality and fraud in the election — there was ample evidence of that at the time, and the evidence for it has only grown since – but if it was of sufficient significance to have altered the outcome of the election, warranting its annulment, or at least calling it into question, [warranting] a new election. Aside from the fact that the example of a re-triggered election was the fraud uncovered during a 2018 congressional race – an incident in which the repercussions were far less and the evidence far greater – it is worth pointing out. the lie in the middle of the sentence. There was no “sufficient evidence” of fraud on January 6, 2021, and the idea that there was has only diminished since.

“Countless examples of electoral illegality and fraud, and expert opinions indicating a high likelihood of fraud, were available to President Trump and Dr. Eastman at the time,” the filing claims. It points to a petition filed by the Trump campaign against election administrators in Georgia, documenting “dozens of violations of Georgian election law” that allegedly affected the election.

Notice what Eastman is doing here. He confuses the law changes with fraud, in an effort to bolster the idea that the election was stolen via efforts to expand voter access that he and Trump say worked against the incumbent. It’s like claiming someone committed arson and citing as evidence that the gas station near their home was selling gasoline without charging the required taxes.

The Supreme Court of Georgia dismissed the lawsuit in December 2020. Eastman’s filing elevates the claims of this lawsuit anyway and loops into new claims, including an incident in which a Georgia Tech student alleges someone voted with her ballot by mail. That claim was at the heart of a lawsuit against the 2020 results filed by former Senator David Perdue that was ignominiously dismissed by the court this month.

“This evidence was known to Dr. Eastman and his client at the time,” the filing reads, referring to Georgia’s claims, “but has recently been supported by revelations contained in a new documentary film by Dinesh D’Souza, 2000 Mules, backed by an exhaustive analysis of cellphone geospatial data and drop box CCTV footage of a massive and illegal ballot collection system.

In reality, “2000 Mules” offers no solid proof of anything. Not of the scheme alleged in the film and, therefore, not of the validity of Eastman’s claims. Of course, as the filing admits, this concocted allegation did not exist at the time Eastman was advising Trump, making his inclusion here a particularly odd choice that mostly serves to expose how weakly supported the overall argument is.

The filing then points to other examples of prosecutions focusing on legality rather than fraud, but quickly returns to the idea that he and Trump were justified in assuming there was robust fraud.

“Statistical evidence, contained in Dr. Eastman’s privileged email exchanges…but also that which was publicly available at the time, strongly indicated ‘the intense improbability of the accuracy of Biden’s present lead,'” we read. The source for that? A purported analysis of the statistical improbability of Biden’s victory that focuses on things such as Joe Biden receiving more votes in many places than Barack Obama in 2008 – which is both easily explained by population growth and fervent opposition to Trump.

The author of this analysis, by the way, was Steve Cortes, a Trump campaign adviser.

One of the most ridiculous arguments in the new dossier centers on the commonly repeated refrain that the election was “the safest in American history,” a claim made by Trump administration officials shortly after the end of the vote. That statement also said there was “no evidence that any voting system has removed or lost votes, altered votes, or been compromised in any way.” It was an effort to refute baseless claims about electronic voting machines made by people such as Trump’s attorney Sidney Powell.

But the Eastman dossier dismisses this assertion using an example.

“The forensic audit carried out in County Antrim proved this statement to be false,” it reads, “as even the state’s own expert acknowledged that the votes had been reversed in the machine due improper software upgrade”.

It’s nothing short of embarrassing. First, it aims to refute a broad claim about the reliability of electronic voting machines nationwide based on results in a Michigan county where 16,000 votes were cast. Second, it aims to refute this claim based on an incident that was easily and quickly explained as an error in the setup of vote-counting machines by county officials. Third, even if the incorrect results had stood, Trump would have easily lost Michigan. Fourth, this is not in the least bit an example of lost, altered or compromised votes, just an error in how they were first counted. Fifth and most important, no bona fide assessment of the election should take the Antrim gaffe as evidence of creeping uncertainty about the outcome.

In fact, a Republican-led election survey found last year that “all the compelling theories that have arisen from the rumors surrounding County Antrim are so diminished that it would be a complete waste of time to examine them further”. Yet here is Trump’s former lawyer considering them further.

All of this is largely debatable anyway. In emails to a Pennsylvania lawmaker in December 2020, Eastman explicitly put the cart before the horse, suggesting how the vote count could be reviewed to argue that another list of voters could be named. They include tips on how to ‘proportion’ vote totals based on specious allegations of fraud or legal changes to Trump’s advantage – meaning you could fill out evidence of fraud to streamline the game of desired power.

This is the model shown in its pre-January. 6 memos. This is the model shown in this new repository.

Jon J. Epps