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Andrea Austria / Media Matters for America 

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Right-wing media claim Trump was just questioning the election, but John Eastman admits that Biden’s 2020 victory justified an attempt to “abolish” the government

Attorney and Claremont Institute senior fellow John Eastman, who advised former President Donald Trump’s team on how to overturn results of the 2020 election, referred to easily debunked conspiracy theories and fringe legal doctrines to claim that election law “abuses” justify efforts to “abolish the existing government” in a recent interview series with Claremont’s Tom Klingenstein. Yet right-wing media continue to downplay the substance of the latest charges against Trump for plotting to stay in office using slates of fake electors — a scheme supported by Eastman, who is now most likely one of the unnamed co-conspirators in the former president’s new indictment.

  • Eastman appears to be a key co-conspirator in Trump’s latest indictment

    • Eastman played a pivotal role in Trump’s attempts to overturn the 2020 election. The lawyer wrote a memo claiming that Vice President Mike Pence had the authority to delay or potentially overturn the election and promoted false claims of voter fraud or election interference. 
    • According to the new indictment, Eastman is described as an attorney who “devised and attempted to implement a strategy to leverage the Vice President’s ceremonial role overseeing the certification proceeding to obstruct the certification of the presidential election.” Eastman is currently using the indictment and the possibility of facing new federal charges to attempt to delay his disbarment proceedings. 
    • The Washington Post reported that Eastman’s “ongoing embrace of explicitly false claims led him to embrace what he himself described as the potential need to ‘alter or abolish the existing government.’” Writing about the recent interview series with Klingenstein, the Post’s Philip Bump noted that Eastman is essentially arguing that “a minority that can’t win electoral support should have the right to ‘push back’ against the majority.”
  • Eastman justified attempts to overturn the 2020 election results in the interview series

    • In his answer to Klingenstein, Eastman used the debunked independent state legislature theory to claim that the 2020 election was “void,” citing “fraud” and changes to state election laws. He said judges and secretaries of state “have no authority to do that under the federal constitution, which assigns the exclusive power to the state legislature to direct the manner of choosing presidential electors.” In Part 2, Eastman claimed that “the election was void initially, as a result” of state officials violating Article 2 of the Constitution.
    • Eastman also claimed the election results were fraudulent because “200,000 ballots were dumped into the system that were never voted by any voter, and we’ve got circumstantial evidence that things like that occurred.” He then cited debunked claims from a truck driver for a Postal Service contractor who said that thousands of ballots went missing from his trailer overnight. (The driver was previously an amateur ghost hunter who claimed his family has been stalked by spirits.) 
    • Eastman told Klingenstein that right-wing conspiracy theorist and Trump pardon recipient Dinesh D’Souza’s discredited documentary 2000 Mules is “more than credible — I think it’s very accurate.” The film’s claims have been repeatedly debunked by experts.
    • When asked about precedent for trying to alter election results, Eastman answered that the situation following the 2020 election was “exactly what happened in Hawaii in 1960.” Despite right-wing media’s insistence that the two cases are the same, this argument clearly lacks merit. John F. Kennedy’s slate of electors after the certification deadline was justified by an ongoing recount in a race separated by just over 100 votes, which he ultimately won, while Trump’s alternate slates were appointed in multiple states that he had clearly lost
    • Toward the end of the series, Eastman claimed that the Declaration of Independence gives people the “duty to alter or abolish the existing government” in cases of “intolerable” abuse. He added, “So that’s the question. Have the abuses and the threat of abuses become so intolerable that we have to be willing to push back?”
  • Right-wing media are ignoring the actual conspiracy and claiming that Trump and co-conspirators merely discussed “novel” legal theories

    • On his radio show, Fox News host Mark Levin claimed that “they’ve criminalized what is a purely constitutional/political process.” In speaking about Trump’s attempts to force Pence to delay the election, Levin stated, “President Trump didn't commit a crime pressing his case with you. There's no criminal statute that covers that. These charges – they're charges by implication, by opinion.” [Westwood One, The Mark Levin Show, 8/4/23]
    • Before speaking to Eastman’s attorney for the case, Fox News host Laura Ingraham claimed on her show that “it's not a criminal act to have a novel legal theory about something, even if it’s about something like the electors and the Constitution.” She also argued that “the media can mock John Eastman's criminal theory all they want, but is it evidence of criminality? Eastman made an argument that I wouldn't have made but one I disagreed with at the time and disagree with now, but it's not a criminal act to have a novel legal theory about something, even if it's about something like the electors and the Constitution. Advice given from an attorney used to be sacrosanct and it usually falls under the attorney-client privilege. But this is just another norm that the left will sacrifice on the altar of getting Trump.” [Fox News, The Ingraham Angle, 8/2/23]
    • Levin mischaracterized the indictment on his radio show, claiming that “lawyers who gave advice to President Trump that the prosecutors disagree with, they've been indicted for giving what the prosecutors believe is wrong advice.” Levin continued, “They've indicted four lawyers who gave advice that they don't agree with, including John Eastman has said, ‘Yes. They've indicted me.’ I can only imagine who the others are.” [Westwood One, The Mark Levin Show, 8/1/23]
    • Fox News host Greg Gutfeld claimed on his show that “you have every right to think an election might be rigged or fixed.” “They're feelings masquerading as facts,” Gutfeld said of the indictment. “It's criminalizing thoughts and it's criminalizing speech.” [Fox News, Gutfeld!, 8/1/23]
    • Trump lawyer Rudy Giuliani, who is seemingly referenced in the indictment as one of Eastman’s co-conspirators, appeared on Newsmax and asked, “When the hell does the government get to tell you you can’t object to an election? Hillary Clinton said most of this stuff.” He also stated, “I would seriously consider indicting them [prosecutors] for 18 U.S.C. Section 241, for indicting a man for exercising his right of free speech. That's a conspiracy against rights.” [Newsmax, Eric Bolling The Balance, 8/1/23]
    • On Trump’s Truth Social platform, Turning Point USA founder Charlie Kirk claimed that “this case is literally claiming it’s a crime that Trump chose to believe one person over someone else.” He also referred to special counsel Jack Smith as a “rat.” [Truth Social, 8/1/23]
    • State Freedom Caucus communications director Greg Price posted, “Jack Smith's indictment is nothing but a criminalization of political speech.” Price claimed, “In the 3rd paragraph, he says President Trump ‘had a right like every American to speak publicly about the election and even to claim falsely that he had won.’ But apparently he's indicting him for it anyway. In addition to ’obstructing the J6 congressional proceeding’ I guess by giving a speech at the Elipse???” [Twitter/X, 8/1/23]
    • Newsmax host Rob Schmitt argued on his show that “they're basically criminalizing free speech.” Schmitt also claimed that the indictment is “criminalizing Trump's frustration after the 2020 election, which as we all know was an election that was tampered with by the Department of Justice.” [Newsmax, Rob Schmitt Tonight, 8/1/23]
    • Trump attorney John Lauro told Newsmax host Greg Kelly that Trump “was simply petitioning the government, the same way we have those rights, with his complaints and redresses and objections to the election cycle.” He continued to claim that Trump is “entitled to do that. If we criminalize that speech, I fear what’s going to happen in the next election.” [Newsmax, Greg Kelly Reports, 8/3/23]