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The falsehoods you’re allowed to tell on Fox News

John Eastman is an attorney, but he is not a criminal defense attorney. If he were, he probably would have advised himself not to go on Fox News and offer comments about his efforts to help Donald Trump retain power after the 2020 election — comments that he could have reminded himself could be used against him by prosecutors in Fulton County, Ga., where he’s been indicted on charges stemming from those efforts.

On the plus side, of course, Eastman could be confident that Fox News host Laura Ingraham would not offer a particularly grueling cross-examination of his claims. And she did not. The conversation, which aired in two parts on Tuesday and Wednesday nights, was predictably genial, with Ingraham allowing Eastman to make dubious claims without significant pushback.

The interview was revealing, though. Not necessarily in how it indicts Eastman, though we shall see on that score. Instead, it was revealing as an indictment of Fox News.

You will recall that the network reached a settlement with Dominion Voting Systems this year in which it agreed to pay more than three-quarters of a billion dollars for amplifying false claims about election fraud after the 2020 election. The suit focused on claims made about Dominion’s vote-tallying machines, but in the months since, it has been clear that Fox News is shying away from fraud claims in general.

So it was with Eastman.

The attorney who tried his best to help Trump find a legal loophole to escape eviction from the White House has repeatedly endorsed debunked and nonsensical assertions about fraud in the 2020 election. You know, like the thing about boxes of ballots being under a table in Georgia or the laughable assertions of Dinesh D’Souza’s film “2000 Mules.” Stuff that good-faith observers of the election should have set aside long ago.

In his conversation with Ingraham, Eastman started marching down the path toward reiterating similar claims.

“You know, one of the other things they said, well, Bill Barr said there wasn’t any evidence of fraud,” he said, referring to the former attorney general. “But I have lots of evidence of fraud —”

He was cut off mid-sentence. The Fox News broadcast then jumped to Ingraham saying: “I haven’t seen that evidence. I’d love to see that evidence.” And I too would love to know what evidence Eastman said he had, and that Ingraham said she wanted to see, because I strongly suspect it is “evidence” that has been seen repeatedly and justifiably dismissed.

Notice, though, that even this isn’t really pushback. It’s Ingraham suggesting that there is such evidence, just stuff she herself hasn’t seen. There was no acknowledgment that Eastman was interrupted, mind you, just this awkward jump from him in mid-sentence to Ingraham saying, sure, let me see that at some point and then changing the subject.

This is not trivial. Everything Eastman did in the wake of the election was, he argues, downstream from his belief that the election was improperly determined. If he’s wrong about fraud — which he is — that taints all of his subsequent decision-making. But Ingraham stipulates it.

The second part of the interview was teased by the Fox News host as revealing what Eastman actually wanted to have happen on Jan. 6, 2021. And, on Wednesday night, that’s where the conversation began.

The Capitol riot was “terrible,” he said.

“Anybody who thinks that we had any hand or I had any hand in coordinating it, doesn’t know how much it was contrary to what we were trying to do, which is … get the illegality and fraud allegations aired in a public way,” Eastman said. “That went out the window the second that Capitol was breached. So it was … as much against our interest as anybody for that thing to have happened.”

He noted that there was a peaceful rally at the Ellipse outside the White House — at which he spoke — and “another rally that was properly permitted to occur on the northeast corner of the Capitol” that represented the right of people to petition the government. But then, he lamented, the riot happened.

There are a few claims here that deserve pushback. A relatively minor one is that the rally intended to take place outside the Capitol was “properly permitted” only after the organizers of the rally misrepresented who they were to Capitol Police. A more significant one is that Trump and his allies used the delay triggered by the riot to continue to cajole legislators to block the electors from states won by Joe Biden. Trump himself called Sen. Mike Lee (R-Utah) to make his pitch … though he’d actually been trying to reach Sen. Tommy Tuberville (R-Ala.).

In fact, as Politico’s Kyle Cheney noted, Eastman even sent an email on the evening of Jan. 6 arguing that, because the debate over counting electors from Arizona had extended beyond the two hours allowed under the Electoral Count Act, Vice President Mike Pence should similarly stretch the bounds of that law to introduce a pause in the finalization of the count. The debate extended beyond two hours because it was interrupted by the riot.

“Some people had urged that Vice President Pence simply had power to reject electors whose certification was still pending,” Eastman said later in the Fox News interview, prompting Ingraham to say that she didn’t agree with that argument.

“I don’t either,” Eastman replied, “and I explicitly told Vice President Pence in the Oval Office on January 4th that, even though it was an open issue under the circumstances we had, I thought it was the weaker argument and it would be foolish to exercise such power even if you had it.”

So let’s rewind a bit and go back to Mike Lee. In their book “Peril,” reporters Bob Woodward and Robert Costa describe an interaction the senator had with Eastman a few days before Jan. 6.

“There’s a memo about to be developed,” Eastman told Lee. “I’ll get it to you as soon as I can.”

“Lee received a two-page memo from the White House on Saturday, January 2, authored by legal scholar John Eastman,” Woodward and Costa write later. The memo “turned the standard counting process on its head. Lee was surprised it came from Eastman, a law school professor who had clerked for Supreme Court Justice Clarence Thomas.”

That memo has been made public. In step three of six, it posits that Pence could simply reject electors from states where competing slates of electors had been submitted. In other words, foremost among those who were arguing that Pence had the power to do this thing that Eastman said he didn’t agree Pence had the power to do was … John Eastman.

Ingraham didn’t challenge this. She let Eastman make these arguments without making obvious their flaws. She did question whether a week was enough to fully adjudicate the questions Eastman claims needed to be resolved, but that was about as far as she went. (For his part, Eastman noted that it probably wouldn’t have been enough time, given that the arguments were still being debated two years later. But that’s only because he and his allies refuse to acknowledge that they are meritless.)

What we learned from the Eastman interview, then, wasn’t a lot about Eastman. Instead, it was that Fox News, even now, will allow dishonest claims to be presented to its audience without pushback — unless similar claims have already resulted in nine-figure legal settlements.

This post appeared first on The Washington Post
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