Trump Coup Lawyer John Eastman Loses Another Round In Court

This guy is definitely not getting tired of all the winning.

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Donald Trump’s coup curious lawyer John Eastman is having another bad week.

On Tuesday, it emerged that this galaxy brain had used not one, but two work emails to plot the overthrow of democracy. And his communications using the University of Colorado email system are subject to the state’s open records law, so he’s not able to keep them under wraps with a private lawsuit, as he’s doing now with Chapman University, from which he “retired” after his role in the events leading up to the Capitol Riot came out.

Then last night he got more bad news from US District Judge David O. Carter, who is presiding over the lawsuit Eastman filed to stop the January 6 Select Committee from getting the Chapman communications.

In an earlier ruling, Judge Carter held 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 attorney-client privilege was waived under the crime-fraud exception for at least one of Eastman’s emails. Since then, the former law school dean has been trying to get the court to grant him discovery on the theory that the Committee is withholding evidence that would vitiate this finding.

If, as Plaintiff has good reason to believe, the Select Committee is in possession of evidence that directly contradicts its assertion of the crime-fraud exception, it cannot meet the “preponderance of the Case evidence” standard by cherry-picking the evidence that it presents to this Court. The key issue is whether former President Trump acted with “corrupt intent” in reciting claims of illegality and fraud in the conduct of the election. That some people had advised the former President that there was no such evidence cannot meet the “preponderance” standard if there is more evidence that there was illegality or fraud. Or, to put it in the terms used by the Supreme Court in Zolin, the Select Committee’s assertion of the crime-fraud exception would not be in “good faith” if it was sitting on evidence that contradicted it.

As the Committee pointed out last week, aside from the whole Speech or Debate problem with deposing congress members about their internal deliberations, “Plaintiff, not the Select Committee, is in the best position to present evidence to rebut the assertion that his legal counsel was used to further a crime or fraud.” And yesterday Judge Carter agreed, holding that Eastman can file any motion he wants contesting the crime-fraud holding — he doesn’t need to depose Rep. Bennie Thompson to find out about his own client’s mental state.

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“Dr. Eastman is the architect of his own pleadings and may present any evidence in his possession to defend his privilege claims,” the court held in a minute order issued Wednesday.

Then yesterday Judge Carter announced that he would begin an in camera privilege review of the 601 documents over which the Committee is contesting Eastman’s claim of privilege. In the prior privilege review, the court only sustained the privilege for ten of the 111 disputed documents. Presumably this go round Eastman didn’t try to claim privilege over “logos attached to email signatures, including Facebook, LinkedIn, and Twitter,” “blank pages,” and “blank emails,” since the court told him in no uncertain terms to cut that sh*t out, so maybe he’ll be able to improve his batting average.

Eastman took the position that there was no exigency here because “The committee has not identified any prospective legislation delayed due to want of Dr. Eastman’s emails. Presenting ‘conclusions’ in ‘public hearings’ is not a valid legislative purpose.” But the court was unpersuaded by Eastman’s scare quotes.

“Given the urgency of the Select Committee’s investigation, the Court adopts an expedited briefing schedule,” Judge Carter wrote yesterday, ordering Eastman to get his opening brief filed by Thursday, May 19, along with any evidence he’s got of an attorney-client relationship pertinent to the emails under review. Response and reply briefs should be wrapped up by the end of the month.

It’s not as bad as, say, telling a Pennsylvania legislator that the Constitution allows him to adjust vote tallies on a pro rata basis as a pretext for recasting the state’s electors for Donald Trump. But, still, not a great day for John Eastman.

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Eastman v. Thompson [Docket via Court Listener]


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