Trump Lawyer John Eastman Referred for Prosecution by Jan. 6 Committee

• The House committee investigating the Jan. 6, 2021 attack recommended that the Justice Department investigate and potentially prosecute Trump's election law attorney John Eastman on two counts.
• Eastman's referral was for his alleged violation of the statute that makes it a criminal offense to impede an official proceeding of the United States government, and secondly, the law that prohibits conspiring to defraud the United States.
• The committee also referred four Republican members of Congress to the bipartisan House Ethics Committee for defying subpoenas issued earlier this year. 

WASHINGTON — The House committee investigating the Jan. 6, 2021 attack on the Capitol recommended Monday that the Justice Department investigate and potentially prosecute former President Donald Trump's election law attorney John Eastman on two counts, stemming from his role in advancing a plan to overturn the 2020 presidential election results.

Eastman's referral was for his alleged violation of the statute that makes it a criminal offense to impede an official proceeding of the United States government, and secondly, the law that prohibits conspiring to defraud the United States.

Eastman is the author of a memo that outlined several scenarios under which then-Vice President Mike Pence could refuse to certify the presidential electoral count on Jan. 6, and effectively prevent Biden from being formally declared the winner of the presidential election.

"The evidence shows that Eastman knew in advance of the 2020 election that Vice President Pence could not refuse to count electoral votes on January 6th," the committee wrote in an executive report issued Monday.

"In the days before January 6th, Eastman was warned repeatedly that his plan was illegal and 'completely crazy,' and would 'cause riots in the streets.' Nonetheless, Eastman continued to assist President Trump's pressure campaign in public and in private, including in meetings with the Vice President and in his own speech at the Ellipse on January 6th," the report stated.

In response to news of the referrals, Eastman told a group of reporters Monday that he genuinely believed the Electoral Count Act was unconstitutional, which is why he suggested Pence would be justified in violating it.

Eastman also said that in his face-to-face meeting with Pence on Jan. 4, 2021, he had never suggested that Pence should unilaterally declare Trump the winner, although this was one of several scenarios Eastman had laid out in his memo.

Instead, Eastman said, he had recommended that the vice president merely delay certifying the electoral count.

The committee report released Monday argued that it was immaterial which path Eastman ultimately recommended, because he knew that both of them were illegal and amounted to violations of the Electoral Count Act.

Eastman's plan centered on Pence refusing to certify the results of the presidential election in seven states because, Pence would claim, those states had "competing" slates of electors.

In reality, there were no competing electors, there were merely Trump allies who were going to falsely claim that they were electors. This strategy became known as the "Fake Electors" scheme.

Eastman and Trump repeatedly attempted to convince Pence to comply with the scheme, but he ultimately refused.

An aide to Pence later told the committee during a taped interview that Eastman knew the plan he was proposing was illegal, because it would violate the federal Electoral Count Act.

"But he thought that we could do so, because in his view, the Electoral Count Act was unconstitutional," the aide, Greg Jacob said.

Eastman was subpoenaed by the committee in late 2021. But when the time came for his deposition, Eastman asserted his Fifth Amendment right against self-incrimination over 100 times, and failed to answer any of the committee's substantive questions.

Eastman's attorneys said Monday this decision was part of a legal strategy to deny the committee, which they claimed was biased against Eastman, any information that could be used against their client.

Ethics Committee referrals

The committee also referred four Republican members of Congress to the bipartisan House Ethics Committee for defying subpoenas issued earlier this year. 

In its executive report, the committee said that House Minority Leader Kevin McCarthy, Calif., Rep. Andy Biggs of Arizona, Scott Perry of Pennsylvania and Jim Jordan of Ohio should all be sanctioned.

"Willful noncompliance [with congressional subpoenas] violates multiple standards of conduct and subjects them to discipline," the committee report stated.

The committee also said the four Republicans should "be questioned in a public forum about their advance knowledge of and role in President Trump's plan to prevent the peaceful transition of power." 

Perry, Biggs and Jordan were among a small group of Trump loyalists who both publicly and privately encouraged Trump to continue denying the election results, even after his myriad lawsuits challenging the vote tallies in various states had failed.

The three men also attended a now-infamous meeting at the White House on Dec. 21, 2020, in which they and other staunch Trump allies discussed the fake electors scheme, which at the time was being promoted at the time by members of Trump's outside legal team.

In a statement Monday, Biggs called the ethics committee referral "a political stunt," and accused the committee of using the ethics panel inappropriately. A spokesman for Jordan also called the referral a "stunt." A spokesman for Perry called the Jan. 6 committee "illegitimate."

The ethics committee is always evenly divided between Republicans and Democrats, a makeup that is intended to insulate it from partisan politics and changes in the majority.

Nonetheless, the panel will have Republican chair in the next Congress, making it unlikely that the committee will vigorously pursue the Jan. 6 panel's referrals.