After the Jan. 6 Committee urged the court to invoke the crime-fraud exception to overcome privilege claims, a federal judge agreed on Wednesday to privately inspect the emails of the Donald Trump attorney who wrote what became known as the “coup memo.”
“Since the Select Committee has met its burden, the Court decides whether to review the emails,” U.S. District Judge David O. Carter wrote in a four-page order. “The circumstances of this case favor review.”
Claremont Institute senior fellow and former law professor John Eastman wrote the six-page document titled “January 6 scenario,” widely dubbed a “coup memo” for its multi-pronged effort to overturn the 2020 election, including by advising then-Vice President Mike Pence to stop or delay its certification.
A Bill Clinton appointee from the Central District of California, Judge Carter plans to scrutinize 111 challenged emails and attachments from Eastman’s Chapman University account, dated between Jan. 4 and 7, 2021.
“As the Court has previously noted, the evidence suggests that communications from those days are essential to the Select Committee’s pressing investigation,” the ruling states. “As Dr. Eastman expressed in his briefing and at the hearing, whether the documents are privileged ‘will be manifest during this Court’s review.'”
Known as an in camera review, the judge’s inspection of the documents will help determine whether they represent Eastman’s legal advice to a client—or, as the committee’s attorney Douglas Letter alleges, little more than exhorting Pence to break the law.
“What Dr. Eastman was proposing was: ‘Do this, and basically damn the consequences,’” Letter said during a hearing on Tuesday.
At least one email exchange between Eastman and Pence’s then-counsel Gregory Jacob is now public.
Fired off in the hours before, during and after the attack on the U.S. Capitol on Jan. 6, the messages show an angry Jacob telling Eastman: “[T]hanks to your bullshit, we’re now under siege.”
That email was time-stamped 12:14 p.m., when Trump’s rally was underway.
Protesters would not overcome police until more than an hour later at 1:30 p.m., and Secret Service would whisk Pence away from the floor of the joint session shortly after 2 p.m.
Eastman replied to the missive at 2:25 p.m., incredulously.
“My ‘bullshit’ — seriously?” he wrote. “You think you can’t adjourn session because the [Electoral Count Act] says no adjournment, while the compelling evidence that the election was stolen continues to build and is already overwhelming.”
The House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol cited this exchange as evidence that Eastman knew that he was goading Pence to violate the law but did it anyway. In the same filing showing this exchange, the committee mapped out three possible crimes that Trump and Eastman may have committed, which its lawyers said should overcome any claim of privilege.
“After reading the emails, the Court will determine for each document whether any privilege existed, whether that privilege was waived, and whether any exceptions apply,” Carter wrote. “Ultimately, the Court will issue a written decision including its full analysis and its final determination of which, if any, documents must be disclosed to the Select Committee.”
Eastman’s attorney did not immediately respond to Law&Crime’s email requesting comment.
Colin Kalmbacher contributed to this report.
Read the judge’s order, below:
(Images via YouTube screengrab/Chip Somodevilla/Getty Images.]
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