CT Blue

Much to my surprise I have gotten through the second transcript recently released by the January 6th committee.

This is an easy one. It was the deposition of John Eastman, the lawyer who came up with the bullshit theory that the Vice President could throw out the electoral votes of any state he chose in favor of electors not certified by the various states.

Eastman basically pled the 5th in answer to every question, including questions in which it was clearly inapplicable.

Stepping back a second, it might be a good idea to replicate the text of the fifth amendment which is at issue. The amendment provides that no person shall “be compelled in any criminal proceeding to be a witness against himself” (Emphasis added).

So, going purely by the text, in a non-criminal proceeding such as the committee’s hearings, the fifth amendment does not even apply, though for reasons that are fairly obvious, the courts have ruled that one can seek it’s protections in a civil proceeding since any testimony from such a proceeding could be introduced in a criminal proceeding. However, it is also the case that an “adverse inference” arises in any civil proceeding if a party or witness takes the fifth. In other words, a civil jury can assume that someone who relies on the fifth to refuse to say whether he rammed his car into the plaintiff probably did, in fact, ram his car into the plaintiff. So, it quite follows, at least in my opinion, that Eastman did in fact attempt to overthrow the government of the United States, given the nature of the questions he refused to answer.

What I found amusing was his lawyer’s implied argument that one should not apply such an adverse inference, because an innocent person could take advantage of the fifth as well as a guilty person. Theoretically true, but….

He and Eastman also appeared to argue that he did not have to say that an answer to any given question might incriminate him, because the constitution provides merely that he can not be compelled to be a witness against himself. That sort of misses the point, because by taking the fifth he is necessarily stating that by answering the question he would be a witness against himself.

He also said that he was taking the fifth in order to protect himself in disbarment proceedings in California. Again, disbarment proceedings are not criminal matters, and my guess is that a refusal to answer gives rise to an adverse inference.

It was also the case that he took the fifth in response to questions to which it clearly would not apply in a court of law. For instance, he refused to say whether a Vice President “has ever exercised unilateral authority to reject electoral college votes coming from a particular State before in American history”.

He also claimed that he could take the fifth to avoid saying why he was taking the fifth.

It seems to me that he’s ripe for picking by the Justice Department. He’s one of the folks the committee referred for prosecution. My guess is that once he’s indicted the fifth will no longer be an impediment to his testifying, so long as he can cut a good deal to testify against the genius.