Former President Donald Trump’s post-2020 election legal strategy was always known to be a Hail Mary pass. However, new emails from Trump’s legal team that a judge ordered turned over to the House Jan. 6 committee were obtained by Politico. CNN and The Associated Press reported that they had verified them. NBC News has not independently verified the emails, which, if they are confirmed, show that Trump’s legal team was hoping its desperate attempt to stall certification of the 2020 election would somehow connect with Supreme Court Justice Clarence Thomas. Fortunately for our democracy, it did not.
Obviously, it is not fair to blame Thomas for what Trump’s band of conspirators wrongly hoped they could persuade him to do.
It’s more than fair to blame Trump and his legal team for abusing the court system to peddle a false narrative that the 2020 election was stolen and that Joe Biden did not win. Obviously, it is not fair to blame Thomas for what Trump’s band of conspirators wrongly hoped they could persuade him to do.
There are perhaps two ways to view Trump’s view of Thomas as “key” to the plan. Under one view, Trump’s team, which included an attorney who had served as his law clerk and knows the justice and his wife well, saw some willingness in the justice to go outside the law and help throw the election to Trump. But the second, more compelling view is that Trump’s legal team was so fundamentally divorced from reality that it nursed the fever dream that the most conservative justice on the court would aid and assist their illegal plan.
Let’s explore the first view. According to the email messages, Trump team attorney John Eastman expressed support for the idea that challenging the election result in Georgia and then appealing the inevitable defeat to Thomas could succeed in stalling or halting the certification of the election results. Each Supreme Court justice handles emergency appeals from one or more of 13 federal appellate courts, and Thomas receives emergency appeals that arise from the 11th Judicial Circuit, which includes Georgia.
According to testimony former Vice President Mike Pence’s counsel Greg Jacobs gave to the Jan. 6 committee, Eastman also pressured Pence to violate his constitutional duties and refuse to certify the Electoral College results on Jan. 6, 2021. The vice president has a purely ministerial role in which he essentially does no more than acknowledge that the votes have been tabulated, and, as we all know, Pence refused to participate in the scheme. Eastman, however, apparently thought Thomas would support efforts to illegally throw the presidential election.
You may remember Eastman. A federal judge in California concluded in March that Trump and Eastman “launched a campaign to overturn a democratic election, an action unprecedented in American history.” A few months later, the same judge found that communications between Trump and Eastman were made in furtherance of illegal conduct.
Eastman pressured Mike Pence to violate his constitutional duties and refuse to certify the Electoral College results.
Here are two more interesting tidbits about Eastman. He served as a law clerk for Thomas in the 1990s and communicated with Thomas’ wife, conservative activist Ginni Thomas, shortly before Jan. 6, 2021. Ginni Thomas was herself involved in efforts to overturn the 2020 election results and have Trump declared the winner.
Eastman, well acquainted with both Thomases, may have thought he had some insight into how the justice would rule on an appeal out of Georgia. Kenneth Chesebro, another member of Trump’s legal team, thought such an appeal to Thomas could be “our only chance to get a favorable judicial opinion by Jan. 6, which might hold up the Georgia count in Congress,” according to the emails.
Eastman concurred. But perhaps this view gives Eastman and his brethren too much credit and Thomas too little. The more plausible view is that Trump’s legal team was operating in a sort of “Alice in Wonderland” alternative reality in which Thomas would assist in anointing their client as the leader of the free world. We know that did not happen. None of the members of the Supreme Court stepped in to take the bait for Trump’s many baseless legal challenges to the 2020 election results. Trump’s legal strategy was a resounding failure. But the next person who uses Trump’s playbook to try to overturn election results may be better at calling the plays than Trump and his team were. The judiciary, including Thomas, held this time, but we might not be so lucky if there is a next time.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
