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Trump lawyers saw Clarence Thomas as key to stop Biden electoral count, emails show

By Jacqueline Alemany and Spencer S. Hsu
November 2, 2022 at 12:07 p.m. EDT


Lawyers for President Donald Trump saw Supreme Court Justice Clarence Thomas as the key to overturning the results of the 2020 election, according to a set of emails provided to congressional investigators.
Eight emails, ordered released by U.S. District Judge David O. Carter of California, include correspondence between Trump lawyers Kenneth Chesebro, John Eastman and others discussing various legal strategies to convince Republican members of Congress to object to the official certification of electoral votes in a joint session of Congress on Jan. 6, 2021.
In an email from Chesebro to Eastman and several others sent on Dec. 31, 2020, Chesebro argued that Thomas would “end up being key” to asking the high court to overturn then-President-elect Joe Biden’s win in contested states, and that they should “frame things so that Thomas could be the one to issue some sort of stay or other circuit justice opinion saying Georgia is in legitimate doubt.”

Realistically, our only chance to get a favorable judicial opinion by Jan. 6, which might hold up the Georgia count in Congress, is from Thomas — do you agree, Prof. Eastman?”
In an email sent hours later, Chesebro reiterated that he viewed “the best shot at holding up the count of a state in Congress” would be to get a case “pending before the Supreme Court by Jan. 5, ideally with something positive written by a judge or justice, hopefully Thomas.”
Days earlier, Chesebro on Christmas Eve morning sent an email to Eastman, Justin Clark, Bruce Marks, and others and put the odds of the court taking up the question and issuing a decision at no more than 5 percent — and of it doing so in Trump’s favor by Jan. 6 at “only 1 percent.”

But Chesebro said the “relevant analysis … is political” and “feeding the impression that the courts lack the courage to fairly and timely consider these complaints, and justifying a political argument on Jan. 6.”
Politico first reported on the contents of the new emails.
Eastman has argued that the set of disputed emails were protected by attorney-client privilege — a bedrock principle of U.S. legal practice that says a lawyer must keep confidential what they are told by their clients, and work product related to their representation. Carter cited a “crime-fraud exception” — including instances in which communications were part of a crime — ruling that “the emails are sufficiently related to and in furtherance of a conspiracy to defraud the United States.”