The Eastman Memo, the coup memo

[Fenixgoon]

Ok, this is getting good. Real good.

January 2nd and Trump is *directly* implicated, on record.
Lordy there be tapes.

https://twitter.com/x/status/1453546625088040963

Counterpoint:
"I could shoot someone in the middle of 5th avenue..."

Unless someone holds him accountable, it doesn't matter

 

[cytg111]

Counterpoint:
"I could shoot someone in the middle of 5th avenue..."

Unless someone holds him accountable, it doesn't matter

People keep telling me that Garland is an action-man, so I have faith that once the referrals begin flowing it will be quick and swift.

/SARCASM.

 

[Fenixgoon]

People keep telling me that Garland is an action-man, so I have faith that once the referrals begin flowing it will be quick and swift.

/SARCASM.

Yeah, I thought garland as AG would be poetic justice. Turns out, nope. He's being way too moderate and too deferential to the politics of his office IMO.

 

[fskimospy]

Yeah, I thought garland as AG would be poetic justice. Turns out, nope. He's being way too moderate and too deferential to the politics of his office IMO.

Based on that Twitter thread who should garland be arresting and why?

 

[fskimospy]

It’s like all the people saying Eastman should be arrested - for what?

 

[K1052]

Yeah, I thought garland as AG would be poetic justice. Turns out, nope. He's being way too moderate and too deferential to the politics of his office IMO.

Garland is not some fire breathing radical which is why Obama nominated him in the first place mistakenly thinking the Republicans would be reasonable and confirm him.

 

[HomerJS]

It’s like all the people saying Eastman should be arrested - for what?

If you designed a new kind of explosive device for someone who used it to rob a bank methinks you would be arrested as an accessory.

 

[fskimospy]

If you designed a new kind of explosive device for someone who used it to rob a bank methinks you would be arrested as an accessory.

So you're saying a lawyer should be arrested for giving legal advice? That...seems like a very bad idea.

I can see disbarring him for it, but arresting him? Absolutely not.

 

[HomerJS]

thinking the Republicans would be reasonable

 

[cytg111]

Based on that Twitter thread who should garland be arresting and why?

Lets read that out-loud.

Based on that TWITTER THREAD
- Who should Garland be arresting.

Eh no-one? Hopefully?
But, assuming that twitter threads holds up and The committee do criminal referrals on x, y, z AND Trump.

In that specific case I am predicting nothing will come of it.
Nothing at all.

 

[fskimospy]

Lets read that out-loud.

Based on that TWITTER THREAD
- Who should Garland be arresting.

Eh no-one? Hopefully?
But, assuming that twitter threads holds up and The committee do criminal referrals on x, y, z AND Trump.

In that specific case I am predicting nothing will come of it.
Nothing at all.

What would be the crime, specifically?

 

[Dave_5k]

So you're saying a lawyer should be arrested for giving legal advice? That...seems like a very bad idea.

I can see disbarring him for it, but arresting him? Absolutely not.

I would argue that the memo is not so much legal advice (which should be protected) but is instead advice about how to maximize chances of success in committing criminal activities.

Proposals about how to execute a crime are not covered by legal privilege in any jurisdiction I am aware of.

Which then just boils down to a simple question for the DoJ to pursue: were any of the proposed actions individually or collectively, which were clearly intended to circumvent the Constitution and overthrow a presidential election, in any way illegal?

And if plotting to overthrow democratic presidential elections isn't currently illegal in the U.S., that's a rather major problem that needs addressing.

 

[fskimospy]

I would argue that the memo is not so much legal advice (which should be protected) but is instead advice about how to maximize chances of success in committing criminal activities.

Proposals about how to execute a crime are not covered by legal privilege in any jurisdiction I am aware of.

Which then just boils down to a simple question for the DoJ to pursue: were any of the proposed actions individually or collectively, which were clearly intended to circumvent the Constitution and overthrow a presidential election, in any way illegal?

And if plotting to overthrow democratic presidential elections isn't currently illegal in the U.S., that's a rather major problem that needs addressing.

Well legal precedent is clear that arguing for the overthrow of the US government is first amendment protected speech. In the past conservatives tried to prosecute communists for advocating for this.

As far as this goes though I'm not aware of any crime that would cover it or any part of Eastman's memo that is advising anyone to violate any criminal statute. I think he is offering extremely bad legal advice and is advocating for people to do things that are unconstitutional but that's not a crime. That's why I think he should be disbarred, but I can't think of anything we could prosecute him on and I think prosecuting attorneys for giving shitty legal advice is a very bad idea.

 

[HomerJS]

So you're saying a lawyer should be arrested for giving legal advice? That...seems like a very bad idea.

I can see disbarring him for it, but arresting him? Absolutely not.

Giving advice on how to overthrow the government might be legal advice but it also is aiding and abetting sedition.
Sedition - Wikipedia

 

[fskimospy]

Giving advice on how to overthrow the government might be legal advice but it also is aiding and abetting sedition.
Sedition - Wikipedia

There is simply no way that advocating in a legal memo that the Vice President use his powers in that way is going to be prosecuted as a seditious conspiracy and it shouldn't be.

Eastman should be disbarred and be rendered unemployable, he should not be imprisoned.

 

[Dave_5k]

Well legal precedent is clear that arguing for the overthrow of the US government is first amendment protected speech. In the past conservatives tried to prosecute communists for advocating for this.

Thanks for the historical reference point out.

On searching on the communists, 11 were actually convicted in 1948 under the Smith Act which makes it illegal to conspire to overthrow the government (which is still on the books, USC 2385) with the conviction upheld under 1st Amendment by applying the additional "clear and present danger" test.

Although this apparently has been further weakened to an "imminent lawlessness" standard now for when speech is not protected (which is a tough hurdle to meet, and likely protects Eastman's memo):

Dennis v. United States (1951)

Dennis v. United States (1951) applied the First Amendment clear and present danger test to uphold the convictions of U.S.-based communists for their political teachings.

www.mtsu.edu

 

[HomerJS]

There is simply no way that advocating in a legal memo that the Vice President use his powers in that way is going to be prosecuted as a seditious conspiracy and it shouldn't be.

Eastman should be disbarred and be rendered unemployable, he should not be imprisoned.

The advice he have Pence was not the totality of the memo. He also outlined on how to get Trump to change the electors in key states to throw the election into the House where Republicans have the most state votes and would have given the election to Trump.

Sounds like sedition to me

 

[cytg111]

What would be the crime, specifically?

IANAL but actively planning an insurrection to give the players in the field the time needed to un certify and subvert the election …. Sedition? At least?

 

[Dave_5k]

IANAL but actively planning an insurrection to give the players in the field the time needed to un certify and subvert the election …. Sedition? At least?

IANAL also, but First Amendment precedents apparently now protect this type of speech after doing my own research (which as you know is quite dangerous and should not be presumed to be accurate...).

While advocating overthrow of the government is explicitly a federal crime under USC 2385:

18 U.S. Code § 2385 - Advocating overthrow of Government

www.law.cornell.edu

However, separately, the federal courts have ruled that similar speech proposing criminal activity is now protected under the First Amendment, with the exception being incitement of "imminent lawless action" as the current standard set by the Supreme Court, which is still a bit confusing as to what it exactly means:

Brandenburg v. Ohio (1969)

In Brandenburg v. Ohio (1969), the Court ruled that speech advocating illegal conduct is protected by the First Amendment unless it is likely to incite “imminent lawless action.”

mtsu.edu

Rights under the Constitution, as interpreted by the Supreme Court, takes precedent over USC 2385.

 

[[DHT]Osiris]

IANAL also, but First Amendment precedents apparently now protect this type of speech after doing my own research (which as you know is quite dangerous and should not be presumed to be accurate...).

While advocating overthrow of the government is explicitly a federal crime under USC 2385:

18 U.S. Code § 2385 - Advocating overthrow of Government

www.law.cornell.edu

However, separately, the federal courts have ruled that similar speech proposing criminal activity is now protected under the First Amendment, with the exception being incitement of "imminent lawless action" as the current standard set by the Supreme Court, which is still a bit confusing as to what it exactly means:

Brandenburg v. Ohio (1969)

In Brandenburg v. Ohio (1969), the Court ruled that speech advocating illegal conduct is protected by the First Amendment unless it is likely to incite “imminent lawless action.”

mtsu.edu

Rights under the Constitution, as interpreted by the Supreme Court, takes precedent over USC 2385.

I wonder if inciting someone to commit a crime, such as sedition, would still be covered. Not all 'lawless action' has to be a mob riot.

 

[woolfe9998]

Well legal precedent is clear that arguing for the overthrow of the US government is first amendment protected speech. In the past conservatives tried to prosecute communists for advocating for this.

As far as this goes though I'm not aware of any crime that would cover it or any part of Eastman's memo that is advising anyone to violate any criminal statute. I think he is offering extremely bad legal advice and is advocating for people to do things that are unconstitutional but that's not a crime. That's why I think he should be disbarred, but I can't think of anything we could prosecute him on and I think prosecuting attorneys for giving shitty legal advice is a very bad idea.

Was mentioned a few posts up, but I'll cite it for you.

18 U.S. Code § 2385 - Advocating overthrow of Government

www.law.cornell.edu

Advocating the violent overthrow of the government is a federal crime.

That said, nothing in the Eastmen memo qualifies under that statute.

I'm more interested in the content of that 1/2 call, and who may have said what.

If you read the statute, it says that "organizing" any group who advocates for such a violent overthrow does qualify.

I do disagree with characterizing Eastman's memo as "bad" or "shitty" legal advice. Eastman wasn't incompetent. Although not criminally actionable in and of itself, this was far worse than bad legal advice.

 

[hal2kilo]

Well legal precedent is clear that arguing for the overthrow of the US government is first amendment protected speech. In the past conservatives tried to prosecute communists for advocating for this.

As far as this goes though I'm not aware of any crime that would cover it or any part of Eastman's memo that is advising anyone to violate any criminal statute. I think he is offering extremely bad legal advice and is advocating for people to do things that are unconstitutional but that's not a crime. That's why I think he should be disbarred, but I can't think of anything we could prosecute him on and I think prosecuting attorneys for giving shitty legal advice is a very bad idea.

Try obtaining a US government clearance. That's one of the main questions. Have you advocated for the overthrow of the federal government?

 

[fskimospy]

Try obtaining a US government clearance. That's one of the main questions. Have you advocated for the overthrow of the federal government?

I've previously held a TS clearance so I'm very aware of the process. You don't have a first amendment right to a security clearance though so your speech can definitely be used against you.

 

[blackangst1]

Think this deserves its own thread as it is a story in its own right and it lines up exactly what we saw Trump doing up till and on January 6th.
Eastman, a “lawyer” on team Trump wrote this up on how to overturn the election.

Take note of point number 6. This is where Pence decided to call Dan Quayle to get advice instead of “just doing it”.

One phone call guys, and whatever motivated Pence more that day.

https://twitter.com/x/status/1440062663967461387

point 6: (if twitter wont show the whole gif)
“The main thing here is that Pence should do this without asking for permission – either from a vote of the joint session or from the Court. Let the other side challenge his actions in court, where Tribe (who in 2001 conceded the President of the Senate might be in charge of counting the votes) and others who would press a lawsuit would have their past position -- that these are non-justiciable political questions – thrown back at them, to get the lawsuit dismissed. The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter. We should take all of our actions with that in mind.”

Scary effen stuff… Yea, we already knew, but now we *know*.

Why are people not screaming over this memo? McConnell should have a comment given his stand off with the O.

Because I think its clear now the whole plan was not legal, and couldnt be done anyway. The article I posted also said as much.

The memo, reportedly authored and distributed in advance of the January 6 electoral vote count, suggests a scenario under which Vice President Pence excludes the electoral votes of seven states -- on the false pretense that competing slates of electors had been submitted by those states -- so as to give Trump a majority of the electoral votes cast. This false claim is apparently one reason why GOP Senators did not endorse the strategy.

Lee knew dueling electors were merely Trump loyalists putting themselves forward in certain states, in a move the authors describe as "a social media campaign — an amateur push with no legal standing."

Like the shorter memo, the longer memo relies on the false claim that there were "dual slates of electors" transmitted to the Senate, adopts an expansive (and unjustified) interpretation of the Vice President's authority under the Twelfth Amendment, and urged Vice President Pence to unilaterally disregard the Electoral Count Act and reject slates of electors certified and transmitted by seven states on the grounds that such a move would avert a "constitutional crisis."

 

[hal2kilo]

LOL he writes a memo saying that the VP can unliterally overturn the official vote counts of several states, even after several recounts have been done, and hand the presidency over to the sitting president. And he thinks the criticism is because of liberal bias in academia? If he did this for Obama, he says, they'd throw him a "ticker tape parade." Guess what. It would never have happened under Obama in the first place. Which is exactly the point.

I'd call him a clown, but I think that description under-estimates just how dishonest he is being. He's no idiot, which makes this far, far worse.

Yes this whole thing was far worse than anyone can imagine. They wanted to have fighting in the streets!

Trump wanted a different insurrection: Jan. 6 hearing reveals violent intent behind Pence plot | Salon.com

Over the many months of revelations about Donald Trump's attempted coup, one lingering question has rarely been asked: What would have come next if Vice President Mike Pence had done what they asked?