It’s obviously a problem that Team Trump prepared and disseminated anti-election memos in the wake of the 2020 presidential election. But compounding the problem is the sheer volume of the documents.
Right off the bat, there’s John Eastman, one of Trump’s controversial attorneys, who wrote an outrageous memo, which was effectively a blueprint Republican officials could follow to reject the results of the election and keep the losing candidate in power. Jeffrey Clark, a former Justice Department official, also used his office to sketch out a map for Republican legislators to follow in which they could try to overturn the will of voters.
But there’s no reason to stop there. Less than a week before the Jan. 6 attack, John McEntee, a White House aide, prepared his own anti-election memo, complete with unfortunate historical inaccuracies. And as we discussed a month ago, Jenna Ellis, one of Donald Trump’s campaign lawyers, also drafted a memo that outlined a multi-step strategy to overturn the election.
As it turns out, however, the list of anti-election memos doesn’t stop there. Politico reported late last week that Ellis actually prepared more than one of these documents.
A Donald Trump campaign lawyer wrote two legal memos in the week before the Jan. 6 Capitol attack that claimed then-Vice President Mike Pence had the authority to refuse to count presidential electors from states that delivered Joe Biden the White House. The memos from then-Trump lawyer Jenna Ellis, which contain widely disputed legal theories about Pence’s ability to stop a Biden presidency, underscore Ellis’ promotion of extreme arguments that she promulgated amid Trump’s effort to reverse the election results.
We were already aware of one of the two memos prepared by Ellis: Then-White House Chief of Staff Mark Meadows reportedly liked her Dec. 31 document enough to email it to then-Vice President Mike Pence’s top aide on New Year’s Eve.
The previously undisclosed memo was dated Jan. 5 and was delivered to Jay Sekulow, one of Trump’s outside lawyers and the head of a controversial legal group created by televangelist Pat Robertson. In this document, Ellis outlined a strategy in which Pence would halt the certification process, claiming that Arizona failed to meet the legal standard for certifying its own electors and “require the final ascertainment of electors to be completed before continuing.” Politico characterized the plan as “far-fetched.”
It’s not altogether clear why this was sent to Sekulow, though he was publicly skeptical about Pence-related schemes, and Politico speculated that the document may have been intended to change his mind.
For her part, Ellis published a tweet on Friday, suggesting it was irresponsible and unethical to report on “attorney-client privileged documents.” In fact, the Republican lawyer made a point to emphasize that the memos “both have the banner ‘ATTORNEY-CLIENT PRIVILEGED.’”
It’s true that the materials say that, but it’s also true that the banner is irrelevant as it relates to journalism and the free press. At issue are “privileged” documents between Team Trump and its attorneys. News organizations are neither the client nor the lawyer in a situation like this one, so there’s nothing irresponsible or unethical about reporting on the materials. In fact, Ellis’ pushback is quite odd. Imagine how much easier it’d be for those willing to engage in political abuses if they simply put, “No one is supposed to know about this” at the top of their memoranda — and media professionals were expected to comply. As for the bigger picture, I continue to believe we’ve arrived at a bizarre point in American history: When the political debate turns to Team Trump’s anti-election memo, we now have to ask, “Which one?”
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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