Lawyers for former President Donald Trump saw Supreme Court Justice Clarence Thomas as their “only chance” at overturning Joe Biden’s victory in the 2020 election, according to emails turned over to congressional investigators and first obtained by Politico.
“We want to 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,” Kenneth Chesebro, one of the then-president’s lawyers, wrote to other members of Trump’s legal team on Dec. 31, 2020.
Thomas was seen as key to the strategy of contesting the election results because he is the justice assigned to adjudicate emergency appeals and potentially issue a stay in matters in Georgia, where Trump and his lawyers claimed without evidence that voter fraud had cost them a victory. A stay issued by Thomas, Trump’s lawyers believed, might convince others that the fraud claims had merit.
One of the people on the email chain was lawyer John Eastman, a central architect of the Trump strategy to overturn the election who had clerked with Thomas and was in contact with the justice's wife, Ginni Thomas, regarding efforts to block the Electoral College certification of Biden's victory.
“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?”
“I think I agree with this,” Eastman replied in one of the emails given to the select committee last week, adding that a stay issued by Thomas would “kick the Georgia legislature into gear.”
In another email sent on Dec. 31, Chesebro laid out the urgent timeline of the Trump team’s election Hail Mary.
“[I]f we can just get this case pending before the Supreme Court by Jan. 5, ideally with something positive written by a judge or justice, hopefully Thomas, I think it’s our best shot at holding up the count of a state in Congress,” Chesebro wrote.
The Supreme Court did not intervene in the matter, however, and then-Vice President Mike Pence refused to go along with a plan hatched by Eastman to simply send the Electoral College votes back to the states. Instead, Trump's supporters waged a violent attempt to disrupt the certification of Biden's win, ransacking the Capitol on Jan. 6, 2021.
White House lawyer Eric Herschmann testified to the Jan. 6 selection committee that the day after the insurrection, he was contacted by Eastman.
"He started to ask me about something dealing with Georgia and preserving something potentially for appeal and I said to him, ‘Are you out of your effing mind?’ I said, ‘I only want to hear two words coming out of your mouth from now on: orderly transition.’”
After Eastman repeated those words, Herschmann continued. "Good, John, now I’m going to give you the best free legal advice you’re ever getting in your life: Get a great effing criminal defense lawyer. You’re going to need it.”
Trump's effort to overturn Georgia’s election results is the subject of an ongoing Fulton County grand jury investigation. In that matter, Justice Thomas did issue a stay that initially blocked a lower court order compelling Sen. Lindsay Graham, R-S.C., from testifying.
On Tuesday, however, the full court declined to block the subpoena issued to Graham, clearing the way for him to testify before the grand jury about his efforts on behalf of Trump in Georgia.
In late August, Eastman invoked his Fifth Amendment right against self-incrimination and cited attorney-client privilege Wednesday when he was brought before the Fulton County grand jury.