Cambridge-based criminal defense attorney Harvey Silverglate is representing an alleged co-conspirator described in Donald Trump's latest indictment, in which the former president is accused of attempting to undo the results of the 2020 presidential election in the run-up to the Jan. 6 Capitol riot.
Silverglate maintains the innocence of attorney John Eastman, whom he said is the person identified in the indictment only as co-conspirator #2. That alleged co-conspirator is accused of pushing then-Vice President Mike Pence to falsely declare that Trump defeated President Joe Biden as well as a plan to use fake electors to challenge the election results.
None of the six unindicted co-conspirators named in the Trump indictment have been charged as of Thursday, when Trump was due to appear in federal court in Washington on the new charges; he's pleaded not guilty to charges previously brought in federal and New York State courts.
In an interview with NBC10 Boston Wednesday, Silverglate explained why Eastman should not be indicted, what went into his decision to get involved in the lawsuit despite the fact that he "wouldn't vote for Trump if I was being tortured," and why he considers the timing of the indictment to be "candidate suppression."
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Read a transcript of the full interview below.
More on the Trump indictment
The special counsel is accusing the former president of conspiring to overturn an election he had lost, an alleged scheme that the prosecutor says led to the Jan. 6 attack at the Capitol.
How did you get involved in the lawsuit?
Silverglate: His chief counsel, Charles Burnham, had read a book that I wrote a few years ago called, "Three Felonies A Day: How the Feds Target the Innocent." And he thought that I could come up with interesting legal theories as to why Burnham was innocent. And I looked into all the documentation available and I concluded he was innocent. I would have represented him even if he wasn't but it happens that this is one of the fields I specialize in. The field is involved with federal prosecutions based upon incredibly broad and vague statutes -- statutes that allows the feds, as the saying goes, "to indict a ham sandwich." And indicting John, and threatening John Eastman with indictment, they are threatening a ham sandwich who has done nothing wrong and if indicted will go to trial, if convicted, will appeal.
What do you know about the judge?
Silverglate: I don't know much about the judge. But it doesn't matter because if we get an unfair -- if he's indicted, I expect that it'll end up in the appellate court anyway. So the trial judge won't make that much difference. But can I tell you one other thing: we are about two or three days away from completing a memorandum -- a comprehensive Memorandum of Law, in fact -- that we are going to send to the Department of Justice arguing why Eastman should not be indicted. And if indicted, why he's going to win the case ultimately. So this is a case that we're taking a very open position. We have not turned down a single media request. We are letting the world know we're going to trial. If indicted, we're hoping to avert an indictment, because it's an expensive, time-consuming event, even if we win in the end, which we do expect to.
And do you have any indication on the charges that could be forthcoming?
Silverglate: Well, I think it's pretty obvious from reading the newspapers. We have not had the courtesy of any contact from the Department of Justice. But they have this theory that Eastman participated in a conspiracy to figure out unlawful ways for Trump to win the election. And if you look carefully at what Eastman did, what he suggested -- the legal work that he did -- you will see that his theories were edgy, they push the wall all as far as one could, but everything he did was perfectly lawful, within the duties of an attorney advising the client in a criminal matter, or a potential criminal matter or potential civil matter -- the election.
Would you advise him to cooperate?
Silverglate: Well, if somebody -- I don't know what you mean by cooperate. If somebody subpoenas him as a witness, he will testify. He's not going to take the Fifth Amendment. If it is a defendant who subpoenas him, he'll testify. If it's the prosecutor who subpoenas, he'll testify. He's cooperating with the entire system. If you asked him if he's going to cooperate with the Department of Justice, usually what that means is that people have asked me that a lot in the criminal cases. If the question is, "Is he going to lie to the prosecutors in order to get out of trouble?" The answer is N. O. If they want him to testify, he'll testify for the truth. Any prosecutor who hears what he has to say, is not going to subpoena him as a witness.
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You said earlier that even if you didn't think he was innocent, you still would have represented him. Can you talk a little bit about that, the decision you made to represent him and how that may or may not conflict with your own personal views?
Silverglate: First of all, I have to tell you that my law practice is divided up more or less 50/50 criminal defense work and I also do a lot of civil liberties work and academic freedom work. So in the criminal side, I have never, ever turned down a client for ideological reasons. That would be a violation of my oath. If I were a physician, and I'm walking along the street and somebody is walking near me, suddenly collapses and I see signs of a heart attack, and I recognize that this person is a mafia hitman, it would be my duty as a physician -- and if I violate the duty I would lose my license -- my duty to apply cardiopulmonary resuscitation techniques to that person. Now, as a lawyer, I have a similar duty to defend people in a case where I'm able to and they're able to. If it's a paying case, where they can pay me, if it's a free case, I don't have to -- about half of my cases of free. I don't have to even worry about money. The only difference between me and the physician is the Constitution has a provision that everybody is entitled to the effective representation of counsel. Not everybody is entitled to have a doctor, but everybody's entitled to have a lawyer. So my duty is stronger than the cardiologist in the analogy that I just gave.
And your thoughts on whether TV should be allowed inside when Trump is in court?
Silverglate: Absolutely. The public has an interest in seeing the actual proceedings because, if not, they're stuck with listening to news reports. And I have to tell you, that with respect to Trump matters, 80% of the stuff I've read is garbage nonsense, inaccurate. The press has a thing about everything Trump and everything is slanted and I am appalled. You know, I was a journalist before I was a lawyer, and I still write columns for newspapers, including major national papers and local papers. And I am appalled at the quality of reporting in everything related to Trump. Ten years from now, the news media is going to do a gigantic mea culpa. And mind you, I am no Trump supporter. I wouldn't vote for Trump if I was being tortured. I am no Trump supporter.
Anything else important for me to know that I didn't ask?
Silverglate: Well, I think I told you that we are sending a memo to the Department of Justice. And I am hoping that they read it and they take it seriously and that they do not indict Eastman. It's not that we're afraid of losing. We do not anticipate losing in the end. But being indicted is a draining -- both in terms of one's spirit, one's energy and one's funds -- a draining experience and if it's unnecessary, we don't want Eastman to go through this. That will be up to the Department of Justice.
And can I say one more thing? I am appalled that the Department of Justice -- under a Democratic administration -- appalled that they have done this to the leading Republican candidate for the presidency prior to the Republican National Convention. There is a statute of limitations that is quite lengthy and they could have waited. Common decency, common sense and propriety would have had them wait until after the nomination because if Trump got the nomination, then they should wait until after the election. I consider that what the Department of Justice is doing here to be candidate suppression. That's not their job. So the timing is appallingly bad judgment and I believe done in bad faith to keep him from being the Republican nominee for president. They realize Biden is a very weak candidate. If Biden had any common sense, he would have just said he was not running for a second term. That would have opened up the field to some excellent Democratic -- younger Democratic candidates. So on top of everything else, this is an attempt to kind of fix the election for Biden. It is appalling in every single way.
