Is It Good When A Judge Says A Lawyer And His Client The President Did Crimes? Asking For John Eastman.
Today a federal judge ruled that Donald Trump more likely than not attempted to criminally obstruct Congress when he sought to block the lawful certification of President Joe Biden's Electoral College win. And because his lawyers actively participated in this criminal scheme, at least some of his communications with them are no longer shielded from review by the January 6 Select Committee, thanks to the crime-fraud exception to attorney-client privilege. How you livin', Rudy Giuliani!
John Eastman, the famous Coups 4 Dummies lawyer who cooked up those memos saying it was very cool and very legal for Mike Pence to unilaterally reject electors and throw the election to Trump, made a whole bunch of unforced errors that got us to this point. The first was to use his work account at Chapman University in California for his coup plotting, which meant those emails lived on the school's server. The second was to sue the January 6 Select Committee in California when Chapman agreed to hand the messages over.
Because the DC trial court moves slower than molasses on the best of days — and there have been no "best" days since January 6, thanks to the gazillion criminal defendants with speedy trial rights whose cases have to be adjudicated — this decision would still be months away if he'd been smart enough to let it get bogged down in DC federal court with the rest of the Select Committee lawsuits. But instead Eastman opted for the Central District of California, where his case wound up on the docket of Judge David O. Carter, who has moved it along at a bracing clip.
After swiftly dropkicking the claims made by Eastman and every other Trump dead-ender about the Committee being illegitimate because Liz Cheney isn't a real Republican and thus the subpoenas were null and void, Judge Carter ordered Eastman to start reviewing his emails and either turn them over, or produce a privilege log explaining why he wasn't doing it.
At a contentious hearing on March 8, the court entertained arguments from both sides regarding 111 disputed emails of those processed thus far. Eastman argued the documents at issue were covered by attorney-client and/or attorney work product privilege. The Committee countered that privilege was waived by using the school's server; that Eastman never had a real attorney-client relationship with the Trump campaign; that work product privilege only applies when the documents are prepared in anticipation of litigation, which these were not; and that Trump and Eastman were engaged in criminal activity, so the crime-fraud exception vitiates the privilege.
The court found against the Committee in the first two instances, but agreed with it on the second two.
"President Trump attempted to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6," Judge Carter wrote, laying out Trump's extensive efforts with Eastman to convince Pence to either reject the electors outright or to send them back to the Republican-controlled swing state legislatures to recast them for Trump due to non-existent fraud.
And indeed the court found that at least one of the contested emails implicates the crime-fraud exception:
The eleventh document is a chain forwarding to Dr. Eastman a draft memo written for President Trump’s attorney Rudy Giuliani. The memo recommended that Vice President Pence reject electors from contested states on January 6. This may have been the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action. The draft memo pushed a strategy that knowingly violated the Electoral Count Act, and Dr. Eastman’s later memos closely track its analysis and proposal. The memo is both intimately related to and clearly advanced the plan to obstruct the Joint Session of Congress on January 6, 2021. Because the memo likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States, it is subject to the crime-fraud exception and the Court ORDERS it to be disclosed.
This may be the first time a federal court has explicitly ruled that a sitting president likely committed crimes. And in case you missed it while Judge Carter was calling out President Crimetime, it looks like Eastman didn't even come up with that cockamamie coup plot his own self. Doh!
Eastman is still going through his correspondence and dutifully marking "blank emails" as privileged. He's like, so good at this, you guys!
But of the messages he's claimed as privileged, the court just told him to hand over 101 of 110 documents. And 100 of those are coming out not because of the crime-fraud exception, but because Eastman's claims of attorney-client and work product privilege are ridiculous on their face. You can only claim work product for documents prepared in anticipation of litigation, but Eastman was keen to keep the issue out federal court, where he knew they'd lose, culminating in a "9-0" defeat at the Supreme Court. “The 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," he wrote.
Eastman made similarly generalized claims of attorney-client privilege, seeking to protect conversations with lawyers he designated as "co-counsel," despite their having no discernible relationship with the campaign, and even randos who reached out to him trying to get in touch with the president.
And now, thanks to his obstinate dumbfuckery, Eastman, Trump, Rudy, and the rest of the dipshits in Trumpland are stuck with a ruling that explicitly calls their scheme a crime and removes it from the realm of privileged communications.
It's also got some really unpleasant dicta for Team Trump.
Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower—it was a coup in search of a legal theory. The plan spurred violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process.
Congratulations, Doctor Eastman, you played yourself. And your client, too.
[Eastman v. Thompson, Docket via Court Listener]
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.