U.S. District Court Judge David Carter said in March that former President Donald Trump "more likely than not" tried to obstruct Congress as part of an ongoing criminal conspiracy to overthrow the 2020 election.
“Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021,” Carter wrote in a ruling that approved the public release of more than 100 emails that Trump's legal adviser, John Eastman, sent to craft a legal argument for stopping the certification of the election.
Eastman's emails, combined with a memo from Trump attorney Kenneth Chesebro, crafted a plan for Vice President Mike Pence to block the election from being certified. The memo was sent to Rudy Giuliani and has now been published publicly by the House Select Committee investigating the Jan. 6 attack and the efforts that led to the election overthrow, Politico reports.
On Jan. 2, 2021, Eastman wrote: "Ken, Did you do a memo on the Jan 6 authority that includes the competing scholarship on the topics? If so, can you send it to me? I might have it in my inbox, but I can't find it at the moment."
Chesebro then responded: "Oh, I did a very rough e-mail on Dec. 13, which [redacted] requested on behalf of the Mayor. A lot of it is irrelevant at this point. The end discusses the originalist view of the 12th Amendment."
He then included his memo. According to the Dec. 2020 email, Chesebro had been writing the memo on a hotel computer.
"I have not delved into the historical record (Vice President Pence's counsel has, and seems totally up on this and I'm sure there are many other lawyers who can add great detail, [Redacted] in particular), and am writing this with reference 3 law 104 N.C. L. Rev. 1732 (2004); and Foley, 51 Loyola U. Chi. L.J. 309 (2019)," the memo begins.
"The bottom line is I think having the President of the Senate firmly take the position that he, and he alone, is charged with the constitutional responsibility not just to open the votes, but to count them — including making judgments about what to do if there are conflicting votes — represents the best way to ensure: (1) that the mass media and social media platforms, and therefore the public, will focus intently on the evidence of abuses in the election and canvassing; and (2) that there will be additional scrutiny in the courts and/or state legislatures, with an eye toward determining which electoral slates are the valid ones."
He then suggested that top aides to Pence and Trump do this to keep the two leaders "above the fray."
He then outlined a "chronology of how things could play out," with Pence refusing to count the votes. The Senate would then hold hearings to talk about "widespread violations of law," despite the fact that dozens of lawsuits alleging fraud filed by the Trump campaign had been tossed out of court.
He said that the Senate Judiciary Committee would then explore "the constitutional question of how the votes must be counted, with at least two highly qualified legal scholars concluding that the President of the Senate is solely responsible for counting the votes, and that the Electoral Count Act is unconstitutional in dictating limits on debate and dictating who wins electoral votes when there are 2 competing slates and the House and Senate disagree."
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