Did we have a Supreme Court leak not just in May of this year, but also just before the January 6, 2021 riot? New e-mails released by the House select committee show John Eastman claiming to have inside knowledge of a “heated fight” inside the court over Donald Trump’s election challenges. New York Times reporters Luke Broadwater and Maggie Haberman put that together with Eastman’s status as a former clerk for Clarence Thomas and contacts with Thomas’ wife Ginni, and speculate that they have found a leak:
The lawyer, John Eastman, made the statement in a Dec. 24, 2020, exchange with a pro-Trump lawyer and Trump campaign officials over whether to file legal papers that they hoped might prompt four justices to agree to hear an election case from Wisconsin.
“So the odds are not based on the legal merits but an assessment of the justices’ spines, and I understand that there is a heated fight underway,” Mr. Eastman wrote, according to the people briefed on the contents of the email. Referring to the process by which at least four justices are needed to take up a case, he added, “For those willing to do their duty, we should help them by giving them a Wisconsin cert petition to add into the mix.”
The pro-Trump lawyer, Kenneth Chesebro, replied that the “odds of action before Jan. 6 will become more favorable if the justices start to fear that there will be ‘wild’ chaos on Jan. 6 unless they rule by then, either way.” …
And Mr. Eastman’s email, if taken at face value, raised the question of how he would have known about internal tension among the justices about dealing with election cases. Mr. Eastman had been a clerk for Justice Clarence Thomas.
The committee is also reviewing emails between Mr. Eastman and Virginia Thomas, the wife of Justice Thomas. Ms. Thomas was an outspoken supporter of Mr. Trump and in the period after Election Day sent a barrage of text messages to the Trump White House urging efforts to reverse the outcome and supported a variety of efforts to keep Mr. Trump in office.
It was not immediately clear when the communications took place between Ms. Thomas and Mr. Eastman or what they discussed.
If one takes this at face value, it does seem somewhat compelling. Eastman and the Thomases are colleagues and friends, so Eastman might have figured he could craft a solution to Trump’s election woes through the Supreme Court. The January 6 committee has been sniffing around Ginni Thomas for a while, so this plays right into that narrative, too.
Here’s what doesn’t play into that narrative: the calendar. By December 24th, the Supreme Court had already washed its hands of Trump’s election challenges, and made clear their disinterest in intervening. Steve Vladeck, who’s hardly a fan of Trump or Eastman, thinks Eastman was engaging in braggadocio, trying to claim more influence than he actually had:
The story dates the email to 12/24. But #SCOTUS had denied Rep. Kelly’s application for emergency relief in a PA case — over no public dissents — on 12/8. It rejected Texas’s crazy suit on 12/11. And it was just sitting on applications to expedite cert. petitions in other cases. pic.twitter.com/D2Jt2Weprr
— Steve Vladeck (@steve_vladeck) June 16, 2022
But we already know Eastman was publicly misrepresenting the state of pending cases — including in his remarks at the 1/6 rally. So what’s more likely? That he was being fed inside information about a fight inside #SCOTUS for which there’s no evidence, or that he was lying again?
— Steve Vladeck (@steve_vladeck) June 16, 2022
Allahpundit reminds me that this wasn’t the only nonsensical conspiracy theorizing involving SCOTUS at that moment, either. A fortnight or so before Eastman’s e-mail, a Texas legislator claimed to have insider knowledge that Chief Justice John Roberts berated his colleagues into rejecting the Trump appeals because of the riots that might ensue if they intervened. (That’s more than a little ironic, eh?) That also turned out to be sheer speculation of the “I heard it on the Internet” variety. An amendment later deleted language from the Texas Electoral College resolution that accused the court of “moral cowardice” for rejecting the appeals, and that was a full ten days before Eastman’s reference to a “heated fight” that he supposedly knew about between the justices.
In other words, there were a lot of people bloviating about supposed inside knowledge of SCOTUS deliberations at the time. All of it — including Eastman’s — turned out to be either deliberate lies or wishcasting fantasies. You didn’t need to rub elbows with the Thomases to make these claims, and in fact it might have been easier to run with these claims if you didn’t. After all, Ginni Thomas was pursuing legislative remedies at the time rather than legal challenges through the courts, which means she might have had a pretty clear-eyed look at the direction that the Supreme Court actually was taking at the time.
There’s plenty to criticize about Eastman’s contributions to the debacle that turned into the Capitol riot. But there’s plenty of conspiracy theorizing going on in the other direction these days too, and it’s just as embarrassing.