Government

CA Judge Rules Crime Fraud Exception Applies To Trump-Eastman Emails

Ho. Lee. Shit.

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While the January 6 Select Committee litigation in DC is moving along at half a snail’s pace, the coup curious Trump lawyer John Eastman’s California case is racing along like a house on fire. And that just burned Trump’s strategy of delaying disclosure until after the midterms to the ground.

This morning, US District Judge David O. Carter ruled that it was more likely than not that Eastman and Trump had “attempted to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6,” and thus the attorney-client privilege attached to at least one of the emails contested by the Committee and Eastman is waived under the crime-fraud exception.

The court wholly rejected Eastman’s argument that Trump legitimately believed claims of election fraud, noting that the Justice Department, the Cybersecurity and Infrastructure Security Agency, multiple state officials including Georgia Secretary of State Brad Raffensperger, and even his own campaign told Trump repeatedly that the election was clean.

“President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful,” Judge Carter wrote.

The court was similarly unimpressed with Eastman’s insistence that he had no corrupt intent and was simply advocating for an extra-legal remedy based on a belief that the Electoral Count Act is illegal, so Vice President Pence could simply have rejected the electors at will:

Dr. Eastman argues that the plan was legally justified as it “was grounded on a good faith interpretation of the Constitution.” But “ignorance of the law is no excuse,” and believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it. Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process.  And President Trump knew how to pursue election claims in court—after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means. The illegality of the plan was obvious. Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election.

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And the court was not having it with Eastman’s claim that he was only spitballing, just gaming out the possibilities.

“Their campaign was not confined to the ivory tower—it was a coup in search of a legal theory,” the court wrote. “The plan spurred violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process.”

Eastman claimed attorney-client and/or work product privilege over 111 documents so far. The Committee argued as a threshold matter that Eastman’s improper use of his work email at Chapman University for his coup plotting activities constituted a waiver of any privilege, but the court disagreed with that logic, as it did with the Committee’s theory that no attorney-client relationship was formed between Eastman and the Trump Campaign because there was no signed retainer.

But the work product claims rested on ostensible future litigation which patently did not exist and was not anticipated by the parties.

The plan proposed by Dr. Eastman’s memo involve actions by the Vice President without recourse to the courts. The memo states explicitly: “[t]he main thing here is that Pence should do this without asking for permission—either from a vote of the joint session or from the Court.” Dr. Eastman only acknowledged the potential for litigation dismissively, mocking the idea of opponents challenging him in court. Litigation was never Dr. Eastman’s motivation for planning the events of January 6, perhaps because, as he conceded, his legal theories would be rejected “9-0” by the Supreme Court. The Court’s review of the twenty-two documents shows they are consistent with the memo’s plan to proceed without judicial involvement.

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“The true animating force behind these emails was advancing a political strategy: to persuade Vice President Pence to take unilateral action on January 6,” Judge Carter added later. He also snuck in a revelation that Eastman’s memos weren’t even his original work, since they appear to be based on “a draft memo written for President Trump’s attorney Rudy Giuliani” and forwarded to Eastman in an email chain.

What’s that sound? Perhaps it’s the clanging irony of losing your reputation, your job, and maybe even your license to practice law by passing off some other idiot’s terrible legal theory as your own genius invention!

Eastman seems to have taken an almost comically broad interpretation of privilege, one that encompassed both communications with members of Congress, emails from people trying to get in touch with Trump, messages of congratulation for his brilliant pre-riot speech on the Ellipse, and even “logos attached to email signatures, including Facebook, LinkedIn, and Twitter,” one “blank page,” and two “blank emails.” Maybe he really does need to slow down that privilege review, after all, since the challenge seems to be overwhelming him and his lawyers.

The court accepted exactly none of those claims. In fact, of the 111 documents Eastman sought to shield, only ten which relate to state-level litigation, passed muster with the court.

Instead he — and everyone in Trumpland — got a federal judge to opine that they’d more likely than not committed crimes together and participated in a “partisan distortion of the democratic process … driven not by preserving the Constitution, but by winning the 2020 election.”

All Eastman had to do six months ago was produce a privilege log and not poke the bear. Everyone who had a lick of sense made some feint toward compliance, and walked away clean from the January 6 inquiry. Even Roger Stone and Mike Flynn weren’t stupid enough to park a lawsuit in California challenging the Committee.

But now Eastman has gotten a precedent on the record for everyone else that says they were all engaged in criminal conspiracy to obstruct an official proceeding of Congress and thus privilege is vitiated under the crime-fraud exception. And PS, he still wound up having to show up and take the Fifth just like everyone else!

On the Ellipse on January 6, Rudy Giuliani introduced John Eastman as “one of the preeminent constitutional scholars in the United States” and “one of the most brilliant lawyers in the country.” Betcha he wouldn’t put it like that today.

Eastman v. Thompson [Docket via Court Listener]

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

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