Lawyer aiding Trump in late 2020 emailed Kobach, others about Pence, Jan. 6 report says

Kansas Attorney General-elect Kris Kobach was among a group of eight attorneys in December 2020 who received an email from pro-Trump lawyer John Eastman that discussed potential intervention by the vice president on Jan. 6, 2021, according to the final report of the U.S. House committee investigating the attack on the Capitol that day.

The day after the Dec. 22 email, Eastman drafted a two-page memo outlining ways of ensuring Trump stayed in office, the report says, including that former Vice President Mike Pence could reject electoral college votes when Congress met to formally count the votes.

Pence, who echoed constitutional experts in saying he had no authority to intervene, refused to act to stop the count on Jan. 6, despite public and private pressure from Trump. When a violent pro-Trump mob stormed the Capitol, they searched for Pence, with some shouting to hang the vice president as a gallows was erected outside.

Kobach, a Republican who will take office in January, was an early Trump supporter and is well-known for supporting voting restrictions in the name of fighting voter fraud – co-chairing Trump’s presidential commission on the topic, which turned up no evidence of fraud. In the wake of the 2020 election, Kobach also represented an election official in Wayne County, Mich., who wanted to rescind her certification of election results for President Joe Biden.

The House report shows that Kobach, who was a private citizen at the time, received messages from lawyers advising Trump during the crucial post-election period in which arguments that Pence could intervene during the certification were gaining steam among the president’s diehard allies.

“Kris Kobach responded to emails and stated that he thought the phrasing of the Constitution did not give the Vice President authority to determine which electoral voters to count. Kobach also stated that such a claim would likely lose in court,” Danedri Herbert, a spokesperson for Kobach, said in a statement.

The House committee voted Monday to refer Eastman, in addition to Trump, to the Department of Justice for prosecution.

On Dec. 22, Kobach and the other attorneys also received an email from William Olson, an attorney who was floating extreme ideas to subvert the election, including firing the acting U.S. attorney general. Less than a week later, Olson wrote a memo that acknowledged his ideas would be called “martial law” by the media if implemented, according to a copy published by The New York Times.

Both the Eastman and Olson emails appear to have been part of a thread, each bearing the subject line, “Re: Draft Complaint.” The House report references the emails, but doesn’t include them in full.

In addition to Eastman, Olson and Kobach, the other attorneys who received the emails were Larry Joseph, who had been part of a legal effort block release of Trump’s tax returns; Mark Martin, a former North Carolina Supreme Court justice; and the pro-Trump lawyers Kurt Olsen, Phillip Jauregui, Pat McSweeney and Don Brown, who represented an Army officer convicted of war crimes who was later pardoned by Trump.

Kobach was part of a team of lawyers, along with Joseph and Martin, that had begun planning a lawsuit in November 2020. That effort culminated in Texas Attorney General Ken Paxton, with the help of Joseph, in early December of that year asking the U.S. Supreme Court to nullify elections in states that had been won by Biden.

The Supreme Court rejected the request on Dec. 11. The Electoral College met on Dec. 14, finalizing Biden’s victory.

But the House report makes clear that a week later, Kobach was still hearing from lawyers who hadn’t given up, even after Biden’s electoral college victory. The report indicates the Dec. 22 emails included discussion of Pence’s role on Jan. 6 – and an impending lawsuit that risked a judge’s ruling that the vice president couldn’t intervene.

Less than a week after Eastman and Olson’s emails, U.S. Rep. Louie Gohmert, a hard-right Texas congressman, sued Pence in federal court in Texas. He was joined in the suit by fake pro-Trump electors from Arizona, alleging that competing slates of electors existed and that Pence should decide which ones counted. A judge tossed the lawsuit.

The report, citing Eastman’s Dec. 22 email, says the lawyer wasn’t in favor of suing Pence.

“Eastman argued that filing a suit against the Vice President had ‘close[ ] to zero’ chance of succeeding, and there was a ‘very high’ risk that the court would issue an opinion stating that ‘Pence has no authority to reject the Biden certified ballots,’” the report says, appearing to quote from the email.

According to the report, Olson “stated that getting a judicial determination ‘that Pence is constrained by [the Electoral Count Act]’ could ‘completely tank the January 6 strategy.’” The report cites Olson’s Dec. 22 email.

The Electoral Count Act is an 1887 law that governs how Congress formally counts the electoral college vote following presidential elections. On Thursday, the Senate passed changes to the act to make clear the vice president’s role in the process is only a formality. Retiring Missouri Republican Sen. Roy Blunt helped craft the measure and voted in its favor in his last vote in Congress.

The House is expected to pass the legislation Friday as part of an annual spending bill, sending it to Biden, who is expected to sign it.

Former Kansas AG Kline produced no fraud evidence

After former Kansas Attorney General Phill Kline, a Republican, was subpoenaed by the House January 6 Committee this March, the final report says Kline was among a host of witnesses who were unable to produce evidence of widespread fraud in the 2020 election.

The committee had previously said Kline helped convene a meeting between Trump and more than 300 state legislators in an attempt “to disseminate purported evidence of election fraud” and encouraged the legislators to sign a letter urging Pence to delay the electoral certification.

Kline was Kansas attorney general from 2003 until 2007 and is now a law professor at Liberty University in Virginia. He has been indefinitely suspended from practicing law in Kansas since 2013, stemming from his investigation into Kansas abortion providers as attorney general.