Supreme Court denies Eastman petition, with rare recusal from Thomas

The Supreme Court on Monday denied an effort by lawyer John Eastman to appeal a ruling that found he may have acted criminally with the legal advice he gave former President Trump. It spurred a rare recusal from Justice Clarence Thomas, whose wife corresponded with the California attorney in the weeks ahead of Jan. 6.

A federal judge in California found Eastman as well as Trump “more likely than not” engaged in criminal conduct in hatching a plan for the former president to stay in power after losing the 2020 election, including in a memo that urged then-Vice President Mike Pence to buck his ceremonial duties to certify the election results Jan. 6, 2021.

Thomas’s recusal comes after reporting that his wife, Ginni Thomas, emailed Eastman — as well as Trump chief of staff Mark Meadows and Arizona lawmakers wrestling with pressure from the Trump campaign — to look for ways to reverse the election.

The episode resulted in Ginni Thomas being called to speak with the House committee investigating the attack, and also triggered a renewed look at Thomas’s failure to recuse himself from other matters relating to Jan. 6. The justice’s actions have further come under the microscope following reporting he accepted a series of lavish gifts from a Republican megadonor.

The order says that Thomas “took no part in the consideration” of Eastman’s petition.

The decision is the end of the road for Eastman, who has been fighting a ruling ordering him to release his communications surrounding Jan. 6 to the now-dissolved committee investigating the attack.

The ruling from U.S. District Judge David Carter greenlighted release of his records, allowing for the piercing of materials normally covered by attorney-client privilege — something that can be granted only when a judge determined legal advice was given in furtherance of a crime or to carry out fraud.   

“The illegality of the plan was obvious,” wrote Carter, who was appointed by former President Clinton. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election.”

Eastman has since been charged by authorities in Georgia as part of a broader racketeering case, along with several charges relating to making false statements.

He’s also listed as a co-conspirator in the Justice Department’s election interference case, but he and five others have yet to face any charges in the matter.

Carter reviewed Eastman’s communications as part of his review of the matter, repeatedly ordering batches of emails released to the panel, determining that neither executive privilege nor attorney-client privilege did not protect them.

“This may have been the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action,” Carter wrote. “The draft memo pushed a strategy that knowingly violated the Electoral Count Act, and Dr. Eastman’s later memos closely track its analysis and proposal.”

Many of Eastman’s emails became a central focus in the committee’s hearings, including exchanges with Pence attorney Greg Jacob showing their concern over his calls for the vice president to intervene.

That included information about an exchange in which Eastman conceded he was not sure the Supreme Court would back his legal theory about Pence’s role.

Updated at 11:51 a.m. ET