Government

John Eastman And Rally Organizers File LOLsuits To Block Cell Subpoenas

They're mad as hell and they're putting down $402 to shout about it on the federal docket.

By  
on

iPhone 5s smartphone cellphoneLast week, Trump White House chief of staff Mark Meadows sued Nancy Pelosi and the members of the January 6 Select Committee, seeking to quash the subpoenas for his testimony and on Verizon for his phone records. This week several of his fellow travelers filed similar claims seeking to block Verizon from releasing their cellphone data to congressional investigators.

“Coups 4 Dummies” lawyer John Eastman, late of Chapman University and his sanity, filed suit in DC last night against the Select Committee, its Chair Bennie Thompson, two Committee staff lawyers, and Verizon.

In a perfect homage to his hero, Eastman opens his lawsuit with a laughable claim about crowd size.

On January 6, 2021, approximately ½ million people gathered for a “Save America” rally outside the White House to exercise their First Amendment freedoms of speech and assembly and the right to petition their government for redress of grievances.

Unconnected to that holy assemblage of patriots, which Eastman may or may not have plied with lies about a “stolen” election and the Vice President’s ability to overturn the result, some people did some stuff.

Unfortunately, two miles away at the United States Capitol, several hundred protestors entered the Capitol building. Some of the individuals who entered the Capitol committed criminal acts, including assault and property damage.

So far, so crazy.

Sponsored

On Monday January 6, rally organizers Justin Caporale, Tim Unes, Megan Powers and Maggie Mulvaney, all of whom testified before the Committee, sued Verizon in a federal court in New Jersey to block a subpoena for their cell data. Having “answered every single question about what happened at the event, who spoke, who the Plaintiffs spoke with, and when,” they are incensed that Chair Thompson “rewarded Plaintiffs for their cooperation” by dropping a subpoena on their cell carrier. (H/t to Politico, which originally flagged the filing.)

Clearly the MAGA brain trust huddled up and decided that they were going with the argument that the Committee has no legitimate legislative purpose and is engaged in prohibited law enforcement activity. Trump himself tried that one before Judge Chutkan in his attempt to block disclosure of his presidential records to the Committee. She didn’t buy it, and neither did the DC Circuit when he appealed. But Team Trump is going to keep up the carnal relations with that chicken until the Supreme Court tells them to knock it off — and probably after that, too, since these geniuses are all citing Trump v. Mazars, which applies only to subpoenas of a sitting president’s personal records, as if it meaningfully circumscribes congressional subpoena power.

They also cite Eastland v. US Servicemen’s Fund, a 1975 case in which the Supreme Court greenlit a wildly intrusive congressional subpoena, as if it helps the MAGA cause.

Echoing Steve Bannon and Mark Meadows, Eastman and the rally organizers argue that the Committee is illegally constituted because it contains no Republican members appointed by the House GOP. Meadows and the rally plaintiffs falsely claim that Pelosi refused to seat Republicans. In fact she rejected Reps. Jim Jordan and Jim Banks, after which Minority Leader Kevin McCarthy refused to allow any of his members to sit on the Committee.

Eastman, who is for the time being still a member of the bar, did not repeat that lie. He did, however, say that Vice Chair Liz Cheney and Committee Member Adam Kinzinger don’t count as Republicans because they dislike being attacked by a deranged mob at their place of employment.

Sponsored

The two minority members are well known to be aligned with the majority party on issues relevant to the J6 Committee’s work.

(Yes, he did call it “the J6 Committee” throughout the filing.)

Like Meadows, all these plaintiffs rest their claim in part on the Stored Communications Act, which governs disclosure of communications data held by private companies. It’s pretty clear that congress can get “non-content information” via subpoena, and that appears to be exactly what the Committee is asking for. So these plaintiffs have resorted to a wee little fudge to make it seem like the subpoena covers their texts and emails, not just the contact information.

“Upon information and belief, the Select Committee previously asked Defendant Verizon to preserve a copy of the content of each Plaintiff’s communications until further notice,” the rally organizers argue. “On information and belief, the Select Committee would not have made this request that content be copied and preserved if it did not intend to subpoena content.”

And here’s Eastman seeking an injunction based on a totally hypothetical future harm:

The subpoenas demand “data-connection detail” records and “call…records.” That ambiguous wording could be interpreted to include cell site location information, which law enforcement officers must get a warrant to obtain under the Supreme Court’s 2018 decision in Carpenter v. United States, 138 S. Ct. 2206 (2018). Whether or not Verizon chooses to interpret it as such, the J6 Committee could advance such an interpretation in any effort to enforce the subpoena if it deems Verizon’s response insufficient.

But although they are similar, each Trumpland LOLsuit is crazy in its own special way.

In addition to arguing that the subpoena violates attorney-client privilege, Eastman argues that he “used his personal phone to engage in protected advocacy and other speech, including privileged speech with clients and spouses.” [Emphasis added.] Presumably the conservative opponent of gay marriage did not intend to out himself as a bigamist, but we will not judge his lifestyle here.

As for the rally plaintiffs’ claim that the Committee is constructing some sort of extra-legal heat map of the conservative movement writ large, well, yes, we are judging that one. Hard.

By analyzing data patterns in phone numbers, length of calls, texts, and geolocation data, investigators can build a permanent nationwide model of intimate political associations and networks within the conservative movement that has relevance far beyond “legislating” to deal with Capitol security, election integrity, or the processes for certifying electoral votes. The billions of data points yielded can recreate not just intimate relationships, but also locations and movements, creating a virtual CAT-scan of the Select Committee’s political opposition, likely including even their own colleagues in the House of Representatives.

This massive opposition research project dwarfs anything ever attempted or conceived in the history of the Congress. It bears more similarity to a foreign intelligence operation or a domestic criminal investigation than to a good-faith effort to secure the facts needed to draft legislation or oversee an executive agency. The Select Committee has lost its bearings.

NEEDZ MOAR TIN FOIL HAT.

Eastman has asked that his case be designated related to Meadows’s and assigned to Judge Carl Nichols. The rally plaintiffs wound up assigned to Judge Zahid Quraishi, a recently confirmed Biden appointee.

Caporale v. Cellco Partnership [Docket via Court Listener]
Eastman v. Verizon [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

Topics

, , , ,