Conservative attorney John Eastman appeared in court virtually on Tuesday morning local time in an effort to shield some of his emails from being obtained by the Jan. 6th Committee.
During the hearing, U.S. District Judge David O. Carter from the Central District of California indicated that he would consider the relevant documents by inspecting them privately, in what is known as an in camera review.
Eastman’s attorney Charles Burnham argued that the emails at issue were covered by the attorney-client privilege and, in some instances, by the work-product doctrine.
U.S. House of Representatives general counsel Douglas Letter, who appeared on behalf of the Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol, was intent on piercing through the claimed privilege in order to obtain Eastman’s emails.
House Democrats want those documents in light of the so-called “coup memos,” the name informally given to two of Eastman’s memos advising then-vice president Mike Pence to disregard slates of electors from six state that voted for President Joe Biden during the 2020 presidential election. In those states, then-president Donald Trump and his allies mounted dozens of ultimately unsuccessful legal challenges mounting false claims of election fraud.
Burnham likened those memos to various other legal disputes surrounding post-presidential elections from years past–including faithless electors during the 2016 election and the theory that, during the 2000 election, Al Gore could have done something similar to what Pence was asked to do in the waning days of the Trump administration. Unlike Trump, Gore conceded only one day after his projected defeat by George W. Bush.
Letter argued that “neither the Constitution nor the Electoral Count act provides any authority” for Eastman’s legal theory, which he repeatedly rubbished as, not really legal advice, but, rather, an entreaty for the former vice president to break the law. The committee’s recent memo detailed what statutes lawmakers believe Trump and Eastman may have violated.
“We Don’t Know What the Scope Is”
Most of the hearing dealt with the scope of the attorney-client privilege in light of an unsigned and undated engagement letter Eastman sent to Trump that contemplated handling “federal litigation matters in relation to the 2020 presidential general election, including matters related to the electoral college.”
Eastman offered that engagement letter to protect the 111 documents at stake in that case. The select committee served a subpoena on Chapman University, Eastman’s former employer, with which the school was willing to comply. Eastman intervened to have those documents withheld as variously privileged.
“Part of the controversy here is why attorneys have retainer agreements,” Letter said at one point, stressing the burden should be on Eastman here. “This is not the proper way to do business.”
Burnham argued that “evidence of the scope” of Eastman’s representation of Trump was clear by consulting the express terms of the agreement itself and his client’s post-election conduct.
“We don’t know what the scope is,” Letter said in response. “We know that during the key time period, Mr. Eastman appeared in court for Mr. Trump in Georgia. We don’t know when the relationship began. We don’t know what it covered. We don’t know the capacity. We don’t know [who] the client was. We know none of that.”
“I don’t know how Mr. Burnham can say that,” the House attorney continued. “Can say to you and to us that the agreement covers certain issues and matters and times,” citing the apparent lack of direct physical evidence. “We just don’t know how your honor could accept a claim of anything beyond that.”
Burnham reiterated throughout the discussion that an attorney-client relationship doesn’t need a signed agreement.
“Would work with state legislators be outside the scope of federal litigation matters?” Judge Carter asked, attempting to suss out the potential application of the agreement in relation to the facts of Trump’s combined efforts to overturn the results of the 2020 presidential election.
“No, it should be understood broadly to include both the electoral college itself and the state certification process,” Eastman’s attorney answered.
Letter had a less direct response.
“If there were state matters and state legislators who were involved in federal litigation, it is possible that this could cover that,” he said. “But again, it’s very unclear. And the burden is with Dr. Eastman to say what that would cover. It’s totally unclear. That ambiguity has to be decided against Dr. Eastman.”
“Damn the Consequences”
Prodded by the judge, Chapman University’s attorney Fred Plevin said that Eastman shouldn’t have had a reasonable expectation of privacy using his work email address for such work. The school’s attorney reiterated a former public statement that Eastman was “absolutely unauthorized” to use university resources to advise a presidential campaign as it would jeopardize the school’s non-profit status.
In response, and in the form of a question, Carter noted that Chapman previously praised Eastman’s representation of George W. Bush during the 2000 election and used it as a positive factor in awarding him tenure. The judge went on to ask if that 2000 representation was done via a Chapman law clinic, whether it, too, endangered their IRS status, and whether it was also unauthorized. This line of questioning appeared to catch the attorney flat-footed and a recess was called for him to call his client.
“The university is not aware” that such representation occurred for Bush, as a candidate, Plevin replied after the court reconvened, though none of the answers were particularly definitive. The school’s attorney went on to say that their law school dean said he had no knowledge of such representation and that such activity would not be authorized due to the IRS status issue.
“The university’s understanding of what Dr. Eastman was doing was very different,” Plevin concluded.
Another major source of discussion during the hearing concerned the application of the crime-fraud exception to the attorney-client privilege.
“What Dr. Eastman was proposing was: ‘Do this, and basically damn the consequences,'” Letter said at one point, emphasizing his point that Eastman’s memos shouldn’t really qualify as legal advice so much as a hope that Pence should have taken a chance in breaking the law.
Burnham argued that the committee simply hadn’t met its burden in establishing the crime-fraud exception because Eastman and Trump clearly believed they were on firm legal ground.
Carter, for his part, gave no indication of his eventual determination aside from the behind-closed-doors review of the Eastman emails in the case.
“It’s hard for us to give you helpful advice,” Letter said at one point, conceding that since the panel had not seen the emails yet, the committee was largely at a loss in how to move forward.
[image via screengrab/GiveSendGo]
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