The document was labeled a Brief in Opposition to Plaintiff's Privilege Assertions and it landed on US District Judge David Carter's docket thanks to Coups 4 Dummies lawyer John Eastman's use of his work email to plot the overthrow of democracy. Eastman, who was a law professor at Chapman University in Orange, California, until his electoral shenanigans became public, refused to turn over his emails in response to a committee subpoena. When the committee went to Chapman University directly, Eastman sued in California to block the disclosure. And unlike in DC, where the bulk of the committee's legal battles are moving at a glacial pace as the court — which is never speedy at the best of times — slogs through hundreds of Capitol Riot defendants, Eastman's getting his ass kicked in the Central District of California in record time.
Judge Carter ordered Eastman to start processing 1,500 pages per day and filing daily status reports with the court, including a privilege log to be filed under seal documenting everything that he claims a right to withhold because of attorney-client privilege. Eastman has taken a rather expansive approach to privilege, seeking to shield virtually everything related to his election work for Trump.
Which brings us to yesterday, when the committee filed a document contesting Eastman's privilege claims on multiple grounds, most notably that he and his client were engaged in a criminal conspiracy, and thus the crime fraud exception to attorney-client privilege applies. They want Judge Carter to review everything that Eastman has labeled privileged and make an individualized determination as to whether he has to hand it over.
The committee makes several other arguments against Eastman's claim of privilege, including that he wasn't really ever retained by the Trump campaign and that the privilege was anyway waived because Trump dispatched him to run his mouth about their discussions in public, a dispensation that babbling fool has taken full advantage of. “Call me the white-knight hero here, talking [Trump] down from the more aggressive position,” he told the National Review in a spectacularly ill-advised interview in which he attempted to defend his infamous election-stealing memos.
“I would normally not talk about a private conversation I have with a client, but I have express authorization from my client, the president of the United States at the time, to describe what occurred — to truthfully describe what occurred in that conversation,” he told another podcaster on May 5, 2021.
But it's the whole crime thing that takes up the most real estate here, and the committee didn't put together a 61-page pleading plus 140 pages of exhibits, including testimonial excerpts and emails, for Judge Carter's eyes alone. They are putting this out there to increase pressure on the DOJ to prosecute Trump for a criminal conspiracy, including multiple witnesses testifying that Trump was informed over and over again that he had lost the election fair and square, that there was no evidence of widespread fraud, and that what Eastman was proposing was patently illegal.
One email string entered as an exhibit has Eastman arguing with Mike Pence's counsel Greg Jacob on the very day of the Capitol Riot.
"I'm sorry, Greg, but this is small minded," Eastman wrote on the morning of January 6. "You're sticking with minor procedural statutes while the Constitution is being shredded."
"John, very respectfully, I just don’t in the end believe that there is a single Justice on the United States Supreme Court, or a single judge on any of our Courts of Appeals, who is as 'broad minded' as you when it comes to the relevance of statutes enacted by the United States Congress, and followed without exception for more than 130 years," Jacob responded, noting that the Electoral Count Act had been the law of the land for more than a century. "And thanks to your bullshit, we are now under siege," he added at 12:14 p.m.
"The 'siege' is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened," Eastman shot back at 2:25 p.m. when the Capitol had already been overrun with Pence and Jacob in it.
After the insurrectionists had finally been evicted from the Capitol, Jacob apologized for his "unbecoming" language, noting that it was upsetting for his family to watch the violence knowing that he was trapped in the building. "I am not for a moment suggesting that you intended this result," he said, adding a moment later, "Respectfully, it was gravely, gravely irresponsible for you to entice the president with an academic theory that had no legal viability, and that you will know we would lose before any judge who heard and decided the case."
But even the specter of a bloody riot didn't put Eastman off his goal.
"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."
A lawyer urging someone to commit what he frankly admits is a violation of the law is, as they say, not a good look. In fact, none of this is a good look. And yet, pleasepleaseplease do not hold your breath waiting for the Justice Department to do something about it. We can debate whether it's because Merrick Garland sucks or because some bad things aren't illegal — or aren't illegal yet because it never occurred to lawmakers that anyone might do them. Nor is it rational to assume that the the DOJ isn't investigating this. We just don't have visibility on any of that.
So, TL, DR? This is a big deal, but we're going to have to wait for the next episode to drop to see what happens next.
[Eastman v. Thompson, Docket via Court Listener]
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