John Eastman Drops Lawsuit To Block Jan. 6 Committee Seeing Those Phone Records Merrick Garland Just Seized

Seems like the horse is already out of the barn, just trotted into the next county.

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John Eastman has 99 problems, but his lawsuit against the January 6 Select Committee ain’t one. At least not in DC, anyway.

Last night, Trump’s chef de coup lawyer John Eastman tapped out of his lawsuit against Verizon and the committee to prevent disclosure of metadata on his cellphone.

“Plaintiff brought this lawsuit primarily to protect the content of his communications, many of which are privileged,” he wrote in his Stipulation of Voluntary Dismissal. “The Congressional Defendants represented in their motion to dismiss that they were not seeking the content of any of Plaintiff’s communications via the subpoena they had issued to Defendant Verizon.”

Well, yes, they did say they weren’t seeking the content of emails and texts. And they have been saying it since before this dumb case was even filed in December in response to a subpoena to Verizon for Eastman’s metadata. Because that subpoena asks for a whole lot of information, including whom he spoke to, when, and for how long, but exactly none of it is content data.

As Verizon noted in its Answer, “The Subpoena did not compel the production of any call or text message content, or location information.” But the committee issued a preservation letter to Verizon for the content itself, and all the cool kids were suing the committee for being illegal, so Eastman bellied up to the counter with his pals Mark Meadows, Mike Flynn, and Steve Bannon and handed the clerk in DC $402 for his ticket to ride.

So what changed since December?

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Gosh, it’s a mystery!

Could it be US District Judge David Carter finding that Eastman had likely conspired to obstruct Congress with Trump, vitiating privilege under the crime-fraud exception, after the lawyer ponied up another $402 to take the same ride in the Central District of California?

Or maybe it’s the multiple congressional hearings featuring testimony from White House attorneys and state officials saying Eastman was the prime mover of the insane theory that Vice President Pence had the unilateral authority to reject electors.

Or it could be that Eastman figured there was nothing left to hide now that everyone in America had read the email where he urged Pence’s lawyer Greg Jacob to get his boss to refuse to certify the electoral vote, even after the Capitol had been attacked by a mob of violent lunatics and even as Eastman acknowledged that doing so would violate the law.

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The Senate and House have both violated the Electoral Count Act this evening – they debated the Arizona objections for more than two hours. […] So now that the precedent has been set that the Electoral Count Act is not quite so sacrosanct as was previously claimed, I ask for you to consider one more relatively minor violation and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here.

Or perhaps the primary motivation for Eastman’s change of heart is that the FBI seized his phone last week, so the issue of the content of his texts and emails has moved to another, much scarier forum. Because when Merrick Garland comes knocking, he doesn’t show up with a congressional subpoena. He comes with a warrant for the entire device and everything on it.

So now that the committee has managed to make Eastman a star (of sorts), he gets to dance this whole dance again with the DOJ, which he’s suing to get his phone back. So we can all delete (one of) our PACER alerts for Eastman v. Thompson, and add one for Eastman v. US.

When God closes a door, she opens a window!

Eastman v. Thompson [Docket, via Court Listener]


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