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Trump Coup Lawyer John Eastman's Privilege Claims Face Judicial Side Eye

Who could possibly think this guy isn't on the up and up?

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US District Judge David O. Carter does not play. On Tuesday morning, he held a three-hour hearing regarding coup fetishist John Eastman’s privilege claims, and by close of business Wednesday, his ruling was on the docket. Spoiler alert: Womp womp.

Eastman, the Trumpland lawyer who authored the infamous memos claiming that Mike Pence had the unilateral right to reject electors, used his Chapman University work email to plot an electoral coup. As one does.

When the January 6 Select Committee subpoenaed the school, Eastman sued the Committee in the Central District of California, which is how he wound up in front of Judge Carter, whose case management makes the federal court in DC look like dial-up internet. Carter immediately ordered Eastman to start reviewing 1,500 pages per day and filing a privilege log with the court.

What Eastman’s privilege claims lack in specificity they appear to have made up for in expansiveness, as he designated more or less everyone he spoke to about the election as an “attorney” or “consultant” without bothering to fully explain how they were in a privileged relationship with his client, Donald Trump. He also designated the bulk of the 111 contested emails as “work product” in preparation for some unspecified future lawsuit.

Before and during Tuesday’s hearing, the Committee made several arguments against those claims, most notably that Trump was engaged in an effort to obstruct an official congressional proceeding and was perpetrating a fraud, and thus the crime-fraud exception applies. It also argued that there was no attorney-client relationship formed, or at least not with the broad scope Eastman claimed; that the privilege was waived because Trump allowed Eastman to flap his yap about their conversations with every MAGA podcaster in the country; that use of Chapman’s servers was unauthorized and effectively published the documents, piercing the privilege; and that Eastman’s advice was inherently political because there was no actual litigation anticipated, and thus the work-product privilege does not apply.

Confusingly, Eastman’s lawyer John Burnham conceded at the outset that his client would have no problem allowing the court to conduct a privilege review in camera. This would seem to have mooted the entire proceeding, but that did not stop House Counsel Doug Letter from droning on for another three hours. As he does.

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In any event, the court did not reach the incendiary crime-fraud allegations, judging that the Committee had met its burden “to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence that information in the materials is not privileged.”

“At the hearing, the Select Committee noted that Dr. Eastman provided no retainer agreements or declarations to support these co-counsel or agent relationships,” Judge Carter wrote. “There is enough evidence to reasonably believe that the emails might reveal that the third parties had no privileged relationship with Dr. Eastman or President Trump.”

As for the work product claims, the court notes that Eastman’s primary goal appears to have been to convince Mike Pence that he could reject swing state electors. Moreover, Eastman’s own words —  “[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.” — suggest that he wasn’t planning for a court battle.

Dr. Eastman’s privilege logs do not indicate what litigation was anticipated; the log entries simply state that emails were made considering “possible litigation” or “contemplating litigation.” This evidence sufficiently supports a reasonable belief that the emails may reveal that they were not created in anticipation of litigation

So Judge Carter will conduct an in camera review to “determine for each document whether any privilege existed, whether that privilege was waived, and whether any exceptions apply.”

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Expect that review to be completed with a 27-page opinion to appear by close of business Friday. Haha, just kidding, but also … not.

Eastman v. Thompson [Docket via Court Listener]

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

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