The filing is part of an attempt to convince a judge to allow the panel access to emails from lawyer John Eastman, who is claiming attorney-client privilege. The committee said he helped to orchestrate the plot.
The filing is the most extensive release to date from the House’s January 6 investigators as they try to obtain Eastman’s emails — and comes well before the House select committee releases its final report on its findings on Trump. House members have also signaled they may make a criminal referral to the Justice Department about Trump, depending on their findings, and the House’s arguments Wednesday could be seen as a preview of a case that could be made by federal prosecutors.
In the 61-page court filing on Wednesday, lawyers for the House wrote: “Evidence and information available to the Committee establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts, and that Plaintiff’s legal assistance was used in furtherance of those activities.”
Eastman and Trump have not been accused of any crime by federal or state prosecutors, and no top advisers around Trump have been charged for January 6-related crimes.
The House has no ability to bring criminal charges. A judge overseeing the civil lawsuit will review the emails himself and decide whether they should stay protected.
To make its case, the House pointed to Trump’s actions to overturn the election, arguing he was criminally attempting to obstruct Congress from certifying his loss of the presidency.
“The President called and met with state officials, met numerous times with officials in the Department of Justice, tweeted and spoke about these issues publicly, and engaged in a personal campaign to persuade the public that the election had been tainted by widespread fraud,” lawyers for the House wrote.
“The evidence supports an inference that President Trump and members of his campaign knew he had not won enough legitimate state electoral votes to be declared the winner of the 2020 Presidential election during the January 6 Joint Session of Congress, but the President nevertheless sought to use the Vice President to manipulate the results in his favor.”
They also cited an interview with a top adviser in the Trump administration, Keith Kellogg, who overheard Trump pressuring then-Vice President Mike Pence on the morning of January 6, 2021, to block Congress’ vote.
“Words—and I don’t remember exactly either, but something like that, yeah. Like you’re not tough enough to make the call,” they quoted Kellogg as saying, citing his congressional testimony, which has not previously been released.
Laying out their conspiracy argument in the filing, the House committee focused on pressure on Pence.
“The conspirators also obstructed a lawful governmental function by pressuring the Vice President to violate his duty to count the electoral certificates presented from certain States. As an alternative, they urged the Vice President to delay the count to allow state legislatures to convene and select alternate electors,” they wrote.
“The apparent objective of these efforts was to overturn the results of the 2020 presidential election and declare Donald Trump the winner. In this way, the conspiracy aimed to obstruct and interfere with the proper functioning of the United States government,” the House added.
The House’s filing on Wednesday revealed in great detail how officials in the Trump administration were pushing back on the then-President’s insistence that the federal government block the election result.
Leadership at the Justice Department told the committee, according to transcripts the House submitted to the court, that Trump personally pressured them to investigate election fraud and that they wouldn’t hold a news conference he wanted.
Richard Donoghue, a former deputy attorney general under Trump, testified that the then-President specifically pushed the Justice Department to label the entire election “corrupt.”
“He wanted us to say that it was corrupt. And this was consistent with some things he said at other points about. The Department should publicly say that the election is corrupt or suspect or not reliable. At one point, he mentioned the possibility of having a press conference. We told him we were not going to do that,” Donoghue testified, according to the House’s filing.
And Greg Jacob, a top lawyer in the vice president’s office, told Eastman in an email on January 6 that he “very respectfully” didn’t believe any Supreme Court justice would approve of Eastman’s legal theories. “And thanks to your bullshit, we are now under siege,” Jacob signed off on the email, at 12:14 p.m. on January 6.
The filing also revealed that Jason Miller, a former senior adviser to Trump, told the committee Trump had been advised after the election “in pretty blunt terms” that he was going to lose.
Around that January 6, Eastman, a conservative lawyer working with then-President Trump’s legal team, was a key voice pushing a theory that Pence could stand in the way of Joe Biden’s electoral win. Prominent conservative attorneys as well as Pence and his advisers have largely condemned Eastman’s theory as nonsensical and not something that was possible.
One way the House can try to overcome that confidentiality claim is by showing in court the communications were about ongoing or future crimes, or fraudulent activity. Currently at issue in court are more than 100 emails that Eastman says are part of his Trump representation from January 4 through January 7, 2021, and more than 10,000 total that Eastman is trying to keep from the committee.
The Justice Department has charged more than 750 participants, including some it says engaged in conspiracies, in the pro-Trump riot at the US Capitol, which interrupted Congress from its session certifying the election.
The House’s argument on Wednesday accuses Trump of conspiring to commit the same types of crimes of which many of his supporters who breached the Capitol grounds have been found guilty.
This story has been updated with additional details Wednesday.
Trump and right-wing lawyer were part of ‘criminal conspiracy’ to overturn 2020 election, January 6 committee alleges