Trump lawyers saw Justice Thomas as 'only chance' to stop 2020 election certification

Last updated on November 2, 2022

Donald Trump’s attorneys saw a direct appeal to Supreme Court Justice Clarence Thomas as their best hope of derailing Joe Biden’s win in the 2020 presidential election, email messages newly disclosed to congressional investigators show.

“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,” Trump attorney Kenneth Chesebro wrote in a Dec. 31, 2020 email to Trump’s legal team. “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,” Trump attorney John Eastman replied later that morning, suggesting that a favorable move by Thomas or other justices would “kick the Georgia legislature into gear” to help overturn the election results.

“I’ve been getting a lot of calls from them indicating to me they’re leaning that way,” Eastman said, according to copies of the emails obtained by POLITICO.

Thomas is the justice assigned to handle emergency matters arising out of Georgia and would have been the one to receive any urgent appeal of Trump’s lawsuit to the Supreme Court — a fact that seemed to be part of the Trump legal team’s calculus.

Rulings from so-called circuit justices are typically stopgap measures aimed at preserving the status quo until the full Supreme Court weighs in, but the Trump lawyers hoped a favorable order from Thomas would embolden state GOP-controlled legislatures to block final certifications of Joe Biden’s victory.

The emails were part of a batch that Eastman had sought to withhold from the Jan. 6 select committee but that a federal judge ordered turned over anyway, describing them as evidence of likely crimes committed by Eastman and Trump.

The emails also shed new light on an effort to get Trump to sign documents connected to a Dec. 31, 2020 federal lawsuit challenging the election results in Georgia, including acute concerns Trump’s lawyers voiced during that chaotic period that Trump might put himself in legal jeopardy if he attested to the voter fraud data contained in it.

“I have no doubt that an aggressive DA or US Atty someplace will go after both the President and his lawyers once all the dust settles on this,” Eastman wrote in an email to two other private attorneys working on Trump election challenges, Alex Kaufman and Kurt Hilbert.

After some exchanges, including with Trump White House lawyer Eric Herschmann, the lawyers agreed they would remove some of the specific figures before Trump swore to the accuracy of the lawsuit.

But they also debated whether the federal complaint should “incorporate by reference” the voter fraud data included in an earlier state-level lawsuit. Eastman warned that since the state lawsuit was filed, evidence had disproven some of the voter fraud data contained in it — and having Trump point to the earlier data would be erroneous.

“I know it is late in the day, but do we need to incorporate that complaint by reference?” Eastman wondered.

It’s unclear how the other attorney responded to Eastman. But in a separate email chain with additional lawyers, an intensive effort was underway to get the court filings in front of Trump so they could be signed and notarized in time to file the lawsuit that evening.

Trump, they were informed, was on a plane back to D.C. and they needed him to sign and notarize the document. Trump attorney Cleta Mitchell said Trump’s personal assistant had informed her they had no access to a notary until Monday.

“So, now what?” she wondered. “Can we figure out a way to file this without a verification?

“There’s no one they can call to come to the White House that’s a notary?” Chris Gardner, a Virginia attorney and former GOP House aide assisting the president’s legal team, asked in an email sent just before 4 P.M. on New Year’s Eve. “I don’t know how we file without it. Presidential trip to a UPS store?”

Mitchell later said she was exploring the possibility of getting a notary to certify Trump’s signature via a Zoom call.

Court records show Trump’s signature was ultimately attested to by William McCathran, an assistant executive clerk working for the White House.

Trump’s signature was key to U.S. District Judge David Carter’s Oct. 19 ruling that the emails must be disclosed to the House Jan. 6 committee. Carter said Trump signed the verification to a federal court complaint under penalty of perjury despite evidence that he’d been told many of the fraud claims in the lawsuit were inaccurate.

The messages “show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public,” wrote Carter, an appointee of President Bill Clinton.