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(Photo by Alex Wong/Getty Images)
Last night, US District Judge David O. Carter ordered Trump’s cuckoo coup lawyer John Eastman to hand over an additional 159 emails to the January 6 Select Committee. The ruling was a partial victory for the former Chapman University law professor, since the court upheld his privilege claims for 440 of the contested documents. But it’s never a good day when the court reiterates that your scheme to block Congress from certifying the election was inherently criminal and thus the crime-fraud exception vitiates your claim of attorney-client privilege.
In January, Eastman sued the January 6 Select Committee to block a subpoena for emails on the Chapman University server — because naturally this brain genius used his work email to plan a coup. Judge Carter first described Eastman’s plot to have Vice President Pence reject swing state electors as criminal back in March, when he characterized it as a “coup in search of a legal theory.”
“The previously disclosed documents indicate that Dr. Eastman and President Trump’s plan to disrupt the Joint Session was fully formed and actionable as early as December 7, 2020,” the court wrote in last night’s order, indicating that the criminal scheme encompassed plotting back in December. “On that day, Dr. Eastman forwarded a memo explaining why January 6 was the ‘Hard Deadline’ that was ‘critical to the result of this election’ for the Trump Campaign.”
Judge Carter highlights the fact that Eastman’s “legal” strategy was to avoid the courts at all costs because he knew that his legal theories had “a near-zero chance of success” and an adverse ruling would “tank the January 6 strategy” by making it clear that what they were proposing was blatantly illegal.
Eastman has argued that he and Trump couldn’t possibly have been engaged in crimes, since they legitimately believed the election had been stolen. But the emails make clear that, while he was confident in his ability to sell his plan for Pence to unilaterally reject electors to sympathetic Republicans, he knew full well that every court in the land was going to dropkick it for being wildly unconstitutional.
“The Trump legal team chose not to seek recourse in court—instead, they forged ahead with a political campaign to disrupt the electoral count,” Judge Carter wrote. “Lawyers are free not to bring cases; they are not free to evade judicial review to overturn a democratic election. Accordingly, this portion of the email is subject to the crime-fraud exception and must be disclosed.”
John Eastman being, well, John Eastman, some of the privilege claims were downright comical. Judge Carter refused to block release of “a communication from President Trump about a state campaign rally;” “President Trump’s potential press releases on state electors;” emails from “people reaching out to Dr. Eastman to offer suggestions or praise;” seven “news articles or Twitter posts;” and a message from Trump bragging about the crowd size at his rallies, which Eastman had tried to pass off as a “handwritten note re issues for anticipated litigation.”
The court was similarly unimpressed with Eastman’s nutty argument that Congress and/or Mike Pence were acting in a judicial capacity when they agreed to accept or reject electoral ballots. He’d tried to convince the court that this transformed the electoral certification into “litigation,” and thus the plot to ratf*ck it was attorney work product.
“Although he argues that adjudication of electors is analogous to litigation, his only support for this novel claim is a district court case that did not address the issue,” Judge Carter noted dryly.
Perhaps most ominously for Eastman, though, are the references to the slates of “alternative” Trump electors that Eastman, Rudy Giuliani, and the campaign corralled, hoping to convince swing state legislatures to convene and claw back the Biden electors chosen by the voters. The scheme to have these unelected electors submit fraudulent certificates to the National Archives is under investigation, not just by the January 6 Select Committee, but also by a state grand jury in Georgia and a federal grand jury in DC. And Judge Carter’s ruling puts Eastman smack in the middle of this plot:
Dr. Eastman’s actions in these few weeks indicate that his and President Trump’s pressure campaign to stop the electoral count did not end with Vice President Pence— it targeted every tier of federal and state elected officials. Convincing state legislatures to certify competing electors was essential to stop the count and ensure President Trump’s reelection.
Nor was the court persuaded by Eastman’s effort to block release of emails with a group of “civic minded citizens of a conservative viewpoint who meet semi-regularly to socialize and discuss issues of public concern.”
Eastman gave a talk to the group on December 8, 2020 entitled “State legislative actions that can reverse the media-called election for Joe Biden.” On December 9, a sitting Member of Congress discussed a “[p]lan to challenge the electors in the House of Representatives.” And on December 16, a Trump elector (the order does not specify if this person was of the legitimate or cosplay variety) discussed “The Constitutional implications of the Electoral College Meeting and What Comes Next.”
“The Select Committee has a substantial interest in these three meetings because the presentations furthered a critical objective of the January 6 plan: to have contested states certify alternate slates of electors for President Trump,” the court wrote, brushing off Eastman’s argument that it would be unfair to subject attendees to future process because “the risk of third parties receiving future subpoenas cannot be sufficient to justify noncompliance with an existing subpoena.”
At the end of the day, while the majority of Eastman’s privilege claims were upheld, he’s being forced to disclose the very documents that will put him in the most legal jeopardy. And at the end of the day, i.e. by 5pm ET, he’ll have to turn those documents over to the Select Committee, which begins the first of its public hearings tomorrow night.
Eastman v. Thompson [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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