The Smoking Gun in these Jan. 6 Hearings

We need a pardon...

Hi,

My new essay is below. It’s about some key evidence… if you “read one thing” about these insurrection hearings.

This is me emailing you my regular newsletter, and it looks like a bunch of new people recently subscribed, so welcome! You can also click here to subscribe for the full newsletter, to get all the entries, my other writing about culture and music, and to be able to join our annual Zoom call, which was fun! - Ari

Pardons are for Criminals

Tens of millions of people have now watched some of these January 6 hearings. There has been a great deal of evidence, vital testimony, and personal and emotional moments that may resonate across history.

We are reporting on all the hearings, and aiming to present the holistic facts and whole picture as it comes into view.

Today, I’d like to focus on one remarkable fact from the investigation.

The leader of Trump’s coup plot, John Eastman, worried that he and Trump were guilty. That they committed a federal crime. That he, Eastman, would need a pardon to stay out of prison.

That is a huge deal.

Eastman operates at the center of both the law and the plot — he was Trump’s most extreme, coup-backing lawyer, and thus he was a potential co-conspirator. He knows what he did. He knows what he and Trump did together.

This is not something that was known before this probe, or before these hearings began. It’s a revelation that came as a product of this work.

It was exposed because Eastman put his guilty request in writing:

“I’ve decided I should be on the pardon list”

That is what he secretly wrote to Rudy Giuliani, while Trump was still in office.

For many reasons, Eastman likely expected that request would never become public.

Eastman literally asked Trump to pardon him for their joint conduct. If it’s a crime for Eastman — the lawyer and aide — then it’s almost certainly a crime for the boss, and the leader and beneficiary of the thwarted coup, Donald Trump.

This is not “rhetoric.” It’s not “public posturing.”

It’s a secret request by Eastman because he viewed his later indictment for this activity as a very real prospect.

Pardons impute Guilt

That is all a pretty straightforward.

There is current law, set by the Supreme Court.

The Supreme Court has ruled that “a pardon carries an imputation of guilt.”

In other words, a pardon is the executive (a President or Governor) pardoning a crime that occurred. The Court ruled that accepting a pardon can operate as a legal confession. (Burdick v. United States). Lawyers know this. Eastman knows this.

Knowing that, he still sought the pardon. He also invoked his right against self-incrimination over 100 times in testimony.

Other loyalists who have represented Trump still draw the line at what Eastman has been doing.

Never do that

Robert Ray, who replaced Ken Starr and defended Trump at his first impeachment trial, just told me this when I asked about Eastman:

As a lawyer, you try to navigate along the lines of never doing anything that would get you disbarred, never have to take the Fifth Amendment, and… never do anything for which you would have to seek a pardon.

That is where Eastman is at, however, for his conduct and plotting with Trump.

Here’s one more way to think about it, drawing on the last administration that faced legal problems for election cheating:

• Richard Nixon sought a pardon in his term's "final days" because he knew what they did - and knew he had criminal exposure.

• John Eastman sought a pardon in Trump's "final days" because he knew what they did - and he knew he had criminal exposure.

These historical comparisons can be overdone — we cite Watergate a lot in the media — but the link here is quite direct. And telling.

Ok, Why Didn’t Trump Grant This Pardon?

This all sounds pretty straightforward.

It is incriminating because it draws on what Eastman and Trump thought and did, rather than accusations against them.

But then there is the contrast with the Nixon example, where Pres. Ford did grant a pardon, shutting down potential prosecution.

Trump issued many controversial pardons of his convicted aides, from Roger Stone to Steve Bannon.

Why not include Eastman? He would seem to fit the “loyal, shady” category of those other aides, and using that power before leaving office would keep Eastman loyal and quiet. So it would be in Trump’s self-interest.

Or would it?

There is not much direct evidence for why Trump spurned Eastman’s request.

But there is some interesting circumstantial and legal evidence.

Former prosecutor John Flannery, one of our legal experts, emphasizes that in order to pardon Eastman, the White House would have to describe Eastman’s crimes. What was he being pardoned for? That would both detail and admit the election crime, and implicate Eastman’s boss and the beneficiary of any coup, Donald Trump.

Flannery suggests that sooner or later, a lawyer involved in even considering the pardon request would flag that major problem.

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Next

Now there are signs, and some reporting, that Trump may be eyeing Eastman as a “fall guy” for election crimes and the coup. Trump reportedly asks aides if Eastman is destined for prison, and publicly lies to minimize their working relationship.

The decision here is up to prosecutors and, if there are charges, then a jury.

The evidence suggests Eastman thought he had major criminal exposure, that he might be guilty or convicted, and that he did not act alone.

Do you think Eastman knew he crossed the line or broke the law? Tell me in the comments and I will respond to some of you, per usual…

And here is a newsletter piece I wrote about the elector fraud plot, which is now the subject of one of the Jan. 6 hearings:

Voter Fraud Hits Trumpworld