The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

Mark Levin

Politico reported Friday that John Eastman, the disgraced ex-law professor who formulated many of former President Donald Trump’s efforts to overturn the 2020 election results, was also apparently in communication with Fox News host Mark Levin. The story gets even more interesting from there, revealing the shell game that right-wing media personalities engage in while doubling as political operatives.

A legal filing by Eastman’s attorneys reveals that, among the messages Eastman is still attempting to conceal from the House January 6 committee are 12 pieces of correspondence with an individual matching Levin’s description as “a radio talk show host, is also an attorney, former long-time President (and current board chairman) of a public interest law firm, and also a former fellow at The Claremont Institute.” Other details, including a sloppy attempt to redact an email address, also connect to Levin, who did not respond to Politico’s requests for comment.

Eastman’s contention, however, is that he was not communicating with Mark Levin the media personality, which would forfeit attorney-client privilege on those communications. Instead, he was speaking with Mark Levin the attorney, and formulating legal strategies regarding the election.

The “Dual Role”

In their legal filing, Eastman’s attorneys argue that he should not have to turn over certain communications with right-wing media figures, even as other communications with those same people have been submitted. This question turns on a body of case law involving lawyers who serve in a “dual role.”

This area of law normally involves people who both are attorneys and have personal business interests, in which case a court must determine in which capacity they were acting and whether those communications or actions in question retain the legal privileges of secrecy.

The brief acknowledges that Eastman could find no previous instance in law having to do with media figures who were also attorneys, but it argues to extend this doctrine accordingly.

“Many members of the modern ‘media’ have multiple roles,” the filing argues, contending that some of Eastman’s communications with Levin in fact “involved work product communications with attorneys who also wear media ‘hats.’”

Eastman’s Legal And Media “Hats” Clash

In the case of Eastman, however, his work as an attorney in conservative causes and his public media presence have been so closely intertwined as to demonstrate that any such ethical separations quite simply do not exist in the right-wing media and political ecosystem.

Most notably, Eastman first came to Trump’s attention via an appearance on Levin’s Fox show back in May 2019, in which Eastman argued that Trump had the power as president to fire people who were investigating him. “The notion that the president can’t determine the course of an investigation is the most basic violation of separation of powers,” Eastman argued — even including an investigation involving the president himself.

The New York Times reported last year that Trump had never met Eastman before watching this episode. “Within two months, Mr. Eastman was sitting in the Oval Office for an hourlong meeting,” the Times reported.

In addition, Eastman’s new filing notes that he has had different sets of communications with an “opinion editor at Newsweek,” who is also affiliated with different conservative legal organizations. That description matches Newsweek editor Josh Hammer, who published Eastman’s disastrous op-ed in 2020 asserting that then-vice presidential candidate Kamala Harris was not a U.S. citizen and thus ineligible to run for office, even though she was in fact born in California. In this instance, clearly, the Venn diagram of the conservative legal and media worlds was simply a perfect circle.

And while Eastman was advising Trump on his theories of reversing the election results, he also advanced those ideas on former Trump adviser Steve Bannon’s show.

Levin Pushes Far-Right Legal Theories

While apparently acting under the privileges of an attorney corresponding with Eastman on their efforts to overturn the election, Levin also used his media platform with Fox News to publicly advocate for the same pseudo-legalistic theories. For example, he and Fox News contributor Ken Starr advocated the weekend after the election for state legislatures to overturn their election results and instead appoint pro-Trump slates to the Electoral College.

During an appearance on the December 10, 2020, edition of Hannity, Levin also advocated for the bizarre lawsuit in which Texas Attorney General Ken Paxton asked the U.S. Supreme Court to overturn the election results in four swing states.

Advertising

Start your day with National Memo Newsletter

Know first.

The opinions that matter. Delivered to your inbox every morning

Former President Donald Trump, left, and former White House counsel Pat Cipollone

On Wednesday evening the House Select Committee investigating the Trump coup plot issued a subpoena to former White House counsel Pat Cipollone, following blockbuster testimony from former White House aide Cassidy Hutchinson, who said the lawyer had warned of potential criminal activity by former President Donald Trump and his aides.

The committee summons to Cipollone followed long negotiations over his possible appearance and increasing pressure on him to come forward as Hutchinson did. Committee members expect the former counsel’s testimony to advance their investigation, owing to his knowledge of the former president's actions before, during and after the January 6, 2021 attack on the U.S. Capitol.

Keep reading... Show less

Mark Meadows

Donald Trump’s White House Chief of Staff Mark Meadows wanted a presidential pardon. He had facilitated key stages of Trump’s attempted 2020 coup, linking the insurrectionists to the highest reaches of the White House and Congress.

But ultimately, Meadows failed to deliver what Trump most wanted, which was convincing others in government to overturn the 2020 election. And then his subordinates, White House security staff, thwarted Trump’s plan to march with a mob into the Capitol.

Meadows’ role has become clearer with each January 6 hearing. Earlier hearings traced how his attempted Justice Department takeover failed. The fake Electoral College slates that Meadows had pushed were not accepted by Congress. The calls by Trump to state officials that he had orchestrated to “find votes” did not work. Nor could Meadows convince Vice-President Mike Pence to ignore the official Electoral College results and count pro-Trump forgeries.

And as January 6 approached and the insurrection began, new and riveting details emerged about Meadow’s pivotal role at the eye of this storm, according to testimony on Tuesday by his top White House aide, Cassidy Hutchinson.

Meadows had been repeatedly told that threats of violence were real. Yet he repeatedly ignored calls from the Secret Service, Capitol police, White House lawyers and military chiefs to protect the Capitol, Hutchinson told the committee under oath. And then Meadows, or, at least White House staff under him, failed Trump a final time – although in a surprising way.

After Trump told supporters at a January 6 rally that he would walk with them to the Capitol, Meadows’ staff, which oversaw Trump’s transportation, refused to drive him there. Trump was furious. He grabbed at the limousine’s steering wheel. He assaulted the Secret Service deputy, who was in the car, and had told Trump that it was not safe to go, Hutchinson testified.

“He said, ‘I’m the f-ing president. Take me up to the Capitol now,’” she said, describing what was told to her a short while later by those in the limousine. And Trump blamed Meadows.

“Later in the day, it had been relayed to me via Mark that the president wasn’t happy that Bobby [Engel, the driver] didn’t pull it off for him, and that Mark didn’t work hard enough to get the movement on the books [Trump’s schedule].”

Hutchinson’s testimony was the latest revelations to emerge from hearings that have traced in great detail how Trump and his allies plotted and intended to overturn the election. Her eye-witness account provided an unprecedented view of a raging president.

Hutchinson’s testimony was compared to John Dean, the star witness of the Watergate hearings a half-century ago that led to the resignation of President Richard Nixon for his aides’ efforts to spy on and smear Democrats during the 1972 presidential campaign.

“She IS the John Dean of the hearings,” tweeted the Brooking Institution’s Norman Eisen, who has written legal analyses on prosecuting Trump. “Trump fighting with his security, throwing plates at the wall, but above all the WH knowing that violence was coming on 1/6. The plates & the fighting are not crimes, but they will color the prosecution devastatingly.”

Meadows’ presence has hovered over the coup plot and insurrection. Though he has refused to testify before the January 6 committee, his pivotal role increasingly has come into view.

Under oath, Hutchinson described links between Meadows and communication channels to the armed mob that had assembled. She was backstage at the Trump’s midday January 6 rally and described Trump’s anger that the crowd was not big enough. The Secret Service told him that many people were armed and did not want to go through security and give up their weapons.

Trump, she recounted, said “something to the effect of, ‘I don’t f-ing care that they have weapons. They’re not here to hurt me. Take the mags [metal detectors] away. Let the people in. They can march to the Capitol from here.

As the day progressed and the Capitol was breached, Hutchison described the scene at the White House from her cubicle outside the Oval Office. She repeatedly went into Meadows’ office, where he had isolated himself. When Secret Service officials urged her to get Meadows to urge Trump to tell his supporters to stand down and leave, he sat listless.

“He [Meadows] needs to snap out of it,” she said that she told others who pressed her to get Meadows to act. Later, she heard Meadows repeatedly tell other White House officials that Trump “doesn’t think they [insurrectionists] are doing anything wrong.” Trump said Pence deserved to be hung as a traitor, she said.

Immediately after January 6, Hutchinson said that Trump’s cabinet discussed invoking the 25th Amendment to remove a sitting president but did not do so. She also said that Meadows sought a pardon for his January 6-related actions.

Today, Meadows is championing many of the same election falsehoods that he pushed for Trump as a senior partner at the Conservative Partnership Institute (CPI), a right-wing think tank whose 2021 annual report boasts of “changing the way conservatives fight.”

His colleagues include Cleta Mitchell, a lawyer who pushed for Trump to use every means to overturn the election and leads CPI’s “election integrity network,” and other Republicans who have been attacking elections as illegitimate where their candidates lose.

Hutchinson’s testimony may impede Meadows’ future political role, as it exposes him to possible criminal prosecution. But the election-denying movement that he nurtured has not gone away. CPI said it is targeting elections in national battleground states for 2022’s midterms, including Arizona, Georgia, Florida, Michigan, and Pennsylvania.

Trump did not give Meadows a pardon. But in July 2021, Trump’s “Save America” PAC gave CPI $1 million.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

{{ post.roar_specific_data.api_data.analytics }}