Oh Sh*t, Trump Lawyer John Eastman, Sorry About Your Nards!
Trump's coup curious lawyer John Eastman got spanked in court yesterday, and not in a sexy way. Unless you think that a federal judge laying waste to every argument put forward by the dipshits defying the House January 6 Select Committee is sexy, in which case RAWRRRR!
It's a little procedurally complicated, but hang with me here. See, Eastman and the rest of the defiant witnesses have sued the Select Committee in federal court in DC. Meadows, Gorka, Alex Jones, Ali Alexander, Dan Scavino — the gang's all here. Well, except for Mike Lindell, who filed in Minnesota, and Mike Flynn, who filed in Florida, because they're weirdos.
Anyway! They've all insisted that the Committee is UNLEGAL, using the exact same arguments, sometimes cutting and pasting from each other's briefs to hilarious effect. They claim that the committee has no legitimate legislative purpose; that it's engaged in law enforcement, not legislation; that it lacks subpoena power; that it has no ranking member because Reps. Liz Cheney and Adam Kinzinger weren't appointed by House Minority Leader Kevin McCarthy, blah blah blah etcetera.
And while the District and Circuit courts rejected those arguments in Trump's National Archives case — a rejection which was tacitly blessed by the Supreme Court when it refused to block the disclosure of his presidential records — none of the challenges to a witness subpoena had been decided. (The Archives case involves a request pursuant to the Presidential Records Act, not a subpoena.)
Meanwhile, the Committee has attempted to negotiate for months to get Eastman's coup plottin' comms. And because he's John Eastman, he used his work email to plan this electoral college coup. Truly, a brain genius for the ages!
In January of 2021, Eastman was a law professor at Chapman University in Orange County, California, and so all those emails live on the university's server. In an amazing coincidence, he “retired” immediately after his How to Steal an Election memos became public. AHEM.
Eastman claims privilege over the emails generally, says he doesn't have access to them any more, and refused the school's offer to hand them over to him so that he could weed through them himself. Last week the committee subpoenaed Chapman directly, at which point Eastman sued the school and the committee, making the same stupid claims about PRIVILEGE and COMMITTEE UNLEGAL he put forward in DC, while demanding that the court issue an emergency restraining order to block the school from handing over his communications.
And he got his way, but only briefly. Last Thursday, US District Judge David O. Carter told the parties to put their positions in writing post haste and show up this Monday for a hearing.
The school took no position on the committee's legitimacy, but pointed out that it was not only inappropriate and stupid for Eastman to use his work email for political activity, it was also illegal. In fact every time he logged onto the system, he got a big notification that, as a 501(c)3, the school's resources cannot be used for political purposes. Which kind of put a dent in Eastman's claim that "pro bono and private client work related to his scholarship was encouraged by Chapman University, counting towards ‘scholarly’ and ‘service’ activities on which promotions and annual merit pay assessments were based."
But even more fatal to his case was months of stonewalling by Eastman, during which he refused to produce a privilege log or intermediate between Chapman and the committee. Brass tacks, judges don't like it when plaintiffs sit on their hands for months and then race to the court to bail them out because OMG its a 'mergency. And they really don't like it when lawyers act like assholes.
Judge Carter announced from the bench that he was lifting the restraining order and immediately docketed a minute order saying that "the Court intends to rule against Dr. Eastman on the issues of the House Select Committee’s authority to issue this subpoena, Dr. Eastman’s First Amendment arguments, and Dr. Eastman’s Fourth Amendment arguments by tomorrow, January 25, 2022."
And true to his word, he delivered. Big time.
Does the Select Committee have a legitimate legislative purpose? Yes, and Eastman's comms are totally relevant to that inquiry.
The Court finds that not only are the issues surrounding the 2020 election and the January 6th attacks clearly “subjects on which legislation could be had,” there are numerous legislative measures that could relate to Dr. Eastman’s communications.
Dr. Eastman’s actions clearly fall within the bounds of an investigation into “the influencing factors that fomented such an attack on American representative democracy.”
Is the Select Committee illegally constituted because it doesn't have any Gippers appointed by Kevin McCarthy? No, Pelosi "consulted" with McCarthy, and he refused to participate.
The Speaker of the House “spoke” with the Minority Leader regarding appointments to the Select Committee. In particular, the Speaker consulted the Minority Leader about his recommended five minority party Members to serve on the Select Committee. When the Speaker announced her intention to appoint only three of those five Members, the Minority Leader withdrew all of his recommendations. The Speaker subsequently appointed two other minority party Members to the Select Committee. The appointment process unquestionably included “consultation” with the Minority Leader in line with the plain language of the organizing Resolution.
Is the Select Committee doing illegal law enforcement activity? No, just because they might find out someone committed a crime, doesn't mean they're playing dress up as cops.
Despite Dr. Eastman’s allegations, the Supreme Court has held that it is not “a valid objection to the investigation that it might possibly disclose crime or wrongdoing.” As the Congressional Defendants note, Congress has previously conducted similar investigations into attacks on our country, such as those of September 11, 2001 and the War of 1812. In these circumstances, it is reasonable that investigations might reveal evidence of criminal acts or other wrongdoing. Moreover, the subjective “motives of committee members . . . alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly’s legislative purpose is being served.”
What about Eastman's claims of attorney-client privilege? You have to do more than simply shout PRIVILEGE and wave your hands around, plus acting like a dick doesn't help your case.
Here, neither Dr. Eastman’s Complaint nor his Application mention any specific communications or explain why the communications are privileged. Dr. Eastman’s sweeping statement that the “information sought, . . . if it exists, would on its face be protected by attorney-client” privilege is precisely the sort of “blanket assertion of privilege” that the Ninth Circuit has repeatedly instructed courts to reject.
Dr. Eastman previously argued that he was unable to assert specific privilege claims because he had not been provided the documents for review. However, the parties clarified at argument that Dr. Eastman was previously given the opportunity to produce a privilege log and refused based on the Fifth Amendment.
In short, it's a humiliating loss for Eastman, and a terrible precedent for the rest of those treason weasels who are making these same dumb arguments and hoping that DC federal court will move so sluggishly that they can get past the midterms in time for Kevin McCarthy to take back the gavel and burn the Select Committee to the ground.
You love to see it!
[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.