Government

John Eastman Shocked To Find That His Failure To Plan Is Not The Federal Judiciary's Emergency

Asking really nicely is the same as a court order, right?

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John Eastman and his lawyers are doing a bit, right? This is all some jackass prank gone totally awry, and any moment now Trump’s erstwhile coup lawyer is going to take off the fright wig and turn out to be Andy Kaufman. There is no other possible explanation for the shitshow dumpster fire that took place over the past three days in the Central District of California and the Ninth Circuit.

This latest chapter of the absent-minded (former) law professor who used his work email to plot a coup and then wound up suing Congress to stop them finding out about it came to a head on Thursday October 27, when Eastman filed a motion requesting that US District Judge David Carter reconsider his order to disclose 8 emails to the January 6 Select Committee. On October 19, the court held — again! — that attorney-client privilege was abrogated because Donald Trump and John Eastman were likely involved in a plot to criminally obstruct Congress, and it ordered Eastman to hand over the 8 relevant messages by October 28 at 2pm.

Why did Eastman’s lawyers wait over a week to take action to halt the disclosure of the emails to the committee?

We acknowledge that the motion was not filed for a week after the district court’s order, but lead counsel for Plaintiff-Appellant had a number substantive hearings during that time frame, and co-counsel was traveling abroad without ready access to email and did not return to the United States until October 27. The subject materials themselves had to be re-reviewed in light of the district court’s ruling.

That footnote came in a motion to stay disclosure pending appeal which Eastman filed to the Ninth Circuit at 11:48pm on Friday, October 28, i.e. two hours and twelve minutes before the deadline to hand ’em over. In it, Eastman argued that “Disclosure of privileged information is itself an irreparable injury. Once privileged communications are disclosed, that disclosure is permanent.” (Wait for it …)

Oddly enough, the Ninth Circuit failed to leap into action to solve Eastman’s problem, so instead he filed two more motions at the District Court trying to get Judge Carter to reconsider his ruling — both of which were immediately denied, as he reported in a supplement filed yesterday.

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Having received no ruling on either the Motion for Reconsideration or Stay filed in the district court or the Emergency Motion for Stay filed with the Ninth Circuit Judge, at 1:29 pm PDT, counsel for Dr. Eastman filed in the district court a motion for extension of time to produce the eight contested documents and a notice of appeal.

At 1:48 pm PDT, the district court denied Dr. Eastman’s motion for reconsideration or, in the alternative, stay pending appeal. At 1:50 pm PDT, the district court denied Dr. Eastman’s motion for extension of time to produce the eight privileged documents while the Motion to Stay remained pending in the Ninth Circuit.

So at 1:53 Eastman dutifully handed over the 25 documents he wasn’t too worried about. But the eight emails which implicated the crime-fraud exception he placed in a Dropbox, with a request to prettyplease pretend that there was some legal barrier to the Committee reading them: “In the email transmitting that link, counsel for Dr. Eastman requested that the documents not be accessed until the Ninth Circuit had had a chance to rule on the Motion for Stay pending appeal.”

The motion for stay didn’t actually hit the docket until 6:08pm, but let’s not quibble about linear time when we’re already imagining some gentleman’s agreement to allow Eastman to make dilatory filings forever.

Naturally, the Committee downloaded the documents almost immediately, as it had every right to do. This would appear to moot the issue, because, as Eastman himself admitted, “Once privileged communications are disclosed, that disclosure is permanent.”

Unless! Perhaps the Ninth Circuit would like to order the House to destroy the documents and forget they ever saw them? Maybe the Committee counsel should be forced set fire to their computers? Or gouge out their eyes?

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Accordingly, Dr. Eastman hereby amends his pending Motion to Stay to request destruction or return of the disputed documents and a protective order barring their use by the Select Committee until the matter is resolved on appeal.

The Ninth Circuit has set an expedited briefing schedule for Tuesday and Wednesday. Good luck, little buddy — you’re gonna need it.

Eastman v. Thompson [Docket via Court Listener]

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

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