Eighteen months after they abetted then-President Donald Trump’s crusade to reverse his 2020 election loss, lawyers John Eastman and Jeffrey Clark found themselves manhandled by FBI agents bearing court-authorized search warrants.
Eastman was accosted June 22 as he left a New Mexico restaurant. Agents detained the former law-school dean and snatched his cellphone, chockablock with privileged attorney-client communications. Clark’s family home in Northern Virginia had been raided that morning. Forced to wait outside for hours in his pajamas, the former Justice Department official watched investigators cart away his electronic devices.
There is a noxious exhibitionism at work here. In cases involving serious crime, arrests are typically made at the same time search warrants are executed, since DOJ must show probable cause that a crime has been committed. But Eastman and Clark have not been charged.
The use of search warrants is even more peculiar here. For years, Clark was a DOJ official. He worked white-collar cases, which teach lawyers that there are always duplicates someplace — people who destroy documents get caught and prosecuted. Eastman clerked on the Supreme Court prior to becoming a constitutional law professor. When the Jan. 6 committee subpoenaed his emails, he didn’t destroy them; he went to court, and when the judge ruled against him, he honorably surrendered the emails.
There was no need to treat these guys like mafia button men. So what’s going on here?
For all its posturing as a rule-of-law pillar, the Biden Justice Department, like the Biden administration broadly, is cowed by the Democrats’ hard-left base — the same radicals who snapped their fingers and had Attorney General Merrick Garland ordering the FBI to investigate parents who dared protest against woke-progressivism in America’s schools.
The Democratic base’s most cherished desire is the prosecution of Donald Trump and those who collaborated in his quest to retain power.
Most of the country isn’t watching the slick made-for-TV docudrama being presented by the Jan. 6 committee (whose “hearings” have no cross-examination or perspectives that vary from anti-Trump obsession), but the Democratic base is watching intently. Democrats have swallowed whole the notion that Eastman and Clark were complicit in criminal fraud schemes — the theme of the committee sessions that took place at virtually the same time as execution of the search warrants.
Garland, a distinguished federal appellate judge for more than two decades before becoming AG, must be torn. He knows Eastman and Clark are not criminals. They are attorneys who devised cockamamie legal theories that had no chance of success.
Eastman exploited ambiguities in 19th-century election law to spin a yarn that the vice president might be able to exclude state-certified electoral votes based on speculative vote-fraud suspicions. Clark surmised that even though the Justice Department had found no evidence of widespread vote fraud, the fact that it was still investigating and that Trump’s campaign was claiming other election irregularities (noncompliance with state law) could be used to nudge contested states into auditing their elections — perhaps persuading Republican-controlled state legislatures to substitute their preference (presumably Trump) for the voters’ (Joe Biden).
These theories were frivolous. They also lacked political support in Congress and the relevant states. If there had been no Capitol riot, they’d have been laughed off — much the way we now roll our eyes at baseless efforts by Jan. 6 committee members Bennie Thompson and Jamie Raskin to exclude electoral votes for, respectively, Presidents George W. Bush (in 2004) and Trump (in 2016).
Obviously, the riot was a disgrace. Unfortunately, it has also become DOJ’s prism for evaluating both forcible attacks and nonviolent legal brainstorming. Garland must know the two must be separated.
Anyone who was willfully complicit in the use of force at the Capitol — who intended a lethal riot to happen and abetted it — should be prosecuted. But frivolous legal theories are not crimes. Sure, condemn them for being irresponsibly stupid. They’re not felonies, though — if they were, a lot of lawyers would be doing a lot of jail time.
Alas, the Democratic base wants to criminalize them. So the Justice Department is panicking. Garland knows that prosecuting Trump and such underlings as Eastman and Clark on flimsy grounds would rip the country apart. He’s also worried, however, that Biden’s left flank is poised for mutiny if there is no indictment.
The utterly unnecessary show of force in searching Eastman and Clark was meant as a demonstration to the zealots that DOJ is seriously considering an indictment of Trump et al. The problem for Garland is that such stunts just whet the left’s appetite. A fraud indictment would be a terrible idea . . . but in this disaster of an administration, the left gets to test its terrible ideas.
Andrew C. McCarthy is a former federal prosecutor.