Earlier this week, I wrote about the role of lawyers in the lead-up to the violence on Jan. 6, including the fateful Jan. 3 Oval Office showdown between Department of Justice lawyer Jeffrey Clark and other lawyers from DOJ and the White House. Another key player, it is increasingly becoming clear, is former law professor John Eastman, whose efforts to persuade Vice President Pence to prevent the Jan. 6 joint session of Congress from certifying President Joe Biden’s Electoral College victory were a central focus of Thursday’s hearing.
Someone was deliberately overstating the chances of Supreme Court intervention, and was doing so to galvanize continuing resistance, peaceful or otherwise, to the joint session.
On Wednesday morning, before Thursday’s hearing, The New York Times publicly broke the details of an e-mail Eastman sent on Dec. 24, in which he encouraged Trump campaign officials to file papers in a Wisconsin appeal in an effort to get the Supreme Court to intervene. “The odds are not based on the legal merits but an assessment of the justices’ spines,” Eastman wrote, “and I understand that there is a heated fight underway.”
This e-mail is not the first example of Eastman holding out the possibility of Supreme Court intervention in supporting efforts to block the Jan. 6 joint session. Indeed, on Jan. 6 itself, Eastman’s speech at the rally preceding the violence at the Capitol alluded to ongoing litigation as another reason why Congress should, at the very least, delay the certification (a delay that Eastman privately acknowledged would have been unlawful).
There’s just one problem: Long before Jan. 6 — and certainly by Dec. 24 — it would have been clear to anyone who follows the Supreme Court, Eastman included, that there was precisely zero chance that the justices would intervene. By representing that “there is a heated fight underway,” Eastman was either lying, or was repeating information relayed to him that was itself a lie. Either way, someone was deliberately overstating the chances of Supreme Court intervention, and was doing so to galvanize continuing resistance, peaceful or otherwise, to the joint session.
It’s hard to keep track of all of the litigation seeking to overturn the results of the 2020 presidential election. But from the Supreme Court’s perspective, it’s worth focusing on three different data points. The first came on Dec. 8. On Dec. 3, Republican Pennsylvania Congressman Mike Kelly had asked the justices for emergency relief to block Pennsylvania from certifying Biden’s victory in that state after the Pennsylvania Supreme Court had refused to do so. Justice Samuel Alito, who is assigned to hear emergency applications coming out of Pennsylvania, originally ordered the state to respond by Dec. 9, but then moved the deadline up a day — presumably so the full court could rule by Dec. 8.
That date mattered because Dec. 8 was the so-called “safe harbor” deadline under the Electoral Count Act — the date by which, if a state had duly certified its election results, Congress was bound to follow them. Late in the afternoon on Dec. 8, the Supreme Court summarily denied Kelly’s application, with no public dissents. In so ruling, the court not only cleared the way for Pennsylvania to certify its results, but to do so by the safe harbor deadline.
At the same time as the justices turned away Kelly’s case, they were also considering an even more ambitious suit brought by Texas. Invoking the Supreme Court’s obscure “original” jurisdiction (its power to act first) in disputes between two or more states, Texas sought permission to bring suit directly against Pennsylvania, Michigan, Wisconsin and Georgia, alleging that officials in each state violated their own state’s election laws (and thereby violated the Constitution) in ways that affected the ultimate result of the election. But on Friday, Dec. 11, the court refused to allow Texas to proceed. Justices Clarence Thomas and Alito noted that they thought the court had to hear Texas’s case (because Congress has given the Supreme Court “exclusive” jurisdiction over such disputes), but went out of their way to say nothing about the merits of Texas’ … extraordinary … claims.
Eastman’s representation on Dec. 24 that “there is a heated fight underway” — that the court was still debating whether to get involved — is simply implausible.
The court’s refusal to intervene on Dec. 11 was the second critical moment, for the Electoral College would formally meet in each state capital the following Monday — Dec. 14. Thus everyone knew that, by turning Texas’ case away on Friday, the Supreme Court was clearing the way for the Electoral College to vote, and to vote for President-elect Biden. Even if the justices had wanted to intervene in a way that would allow them to consider the challenges from President Donald Trump and his supporters, Dec. 11 was the last plausible date on which they could have done so. (The whole point of the Supreme Court’s ruling in Bush v. Gore in 2000 was to intervene before the safe-harbor deadline.)
Finally, even as the court refused to intervene in Kelly’s case or in Texas’, the justices continued to simply sit on a number of petitions for review in other suits challenging election results. In at least eight of those cases, the parties had asked the court not only to review lower-court rulings, but to expedite consideration so that such a ruling could come in time to make a difference. And yet, the justices let those motions sit on their docket — neither granting or denying them while events in the real world had the effect of mooting them (the court would formally deny the motions to expedite on Jan. 11). This was the third critical data point. Thus, even if the court’s nonintervention in the Kelly and Texas cases had come only after heated behind-the-scenes battles, Eastman’s representation on Dec. 24 that “there is a heated fight underway” — that the court was still debating whether to get involved — is simply implausible. The court had already passed up numerous opportunities to intervene at a time when such intervention could have made a difference. By Dec. 24, it was clear that the court intended to do whatever it could to sit out the post-election drama, even if some number of justices might have preferred otherwise. None of this proves that Eastman is lying, of course. It’s entirely possible that someone he trusts (and who he had reason to believe could speak to the court’s internal machinations) told him that the justices were still debating whether to get involved as late as Dec. 24. Eastman clerked for Thomas, and we know that he was in regular contact with Ginni Thomas about post-election legal challenges. So there’s at least the possibility that Eastman was relaying what he had been told, versus making this up himself. (Eastman’s first post to his new substack on Thursday carefully denied some, but not all of the allegations in the reporting about his conversations with Ginni Thomas.) The key for present purposes, though, is that someone was almost certainly lying about what the Supreme Court was (and wasn’t) up to — all to mislead Trump’s supporters into believing that there was still a meaningful possibility that further litigation would produce the result they wanted. The Jan. 6 committee has plenty of work to do, but with every new development, getting to the bottom of this particular issue, and determining who was behind the ongoing misrepresentation of the possibility of Supreme Court intervention, seems like an increasingly significant part of the story.
Steve Vladeck
Steve Vladeck is a professor of law at Georgetown Law, whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast). 
