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(Photo by Alex Wong/Getty Images)

After briefly granting John Eastman’s request for a temporary restraining order last week, US District Judge David O. Carter made short work of the coup curious attorney’s efforts to defy a congressional subpoena for his emails.

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“As mentioned during the hearing, 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,” the judge wrote in a minute order which appeared immediately after a contentious hearing yesterday.

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The emails are in the custody of Chapman University, from which Eastman, a professor and former law school dean, “retired” immediately after his infamous election stealing memos came out. Because of course this guy used his work email for planning to overthrow the government.

Last Tuesday the January 6 Select Committee subpoenaed the school for Eastman’s emails pertaining to the election and its aftermath. The lawyer filed a complaint on Thursday in the Central District of California repeating the same claims about the Committee’s illegitimacy that he made in the District Court for DC: that the Committee lacks a legitimate legislative purpose, is improperly constituted, is engaged in prohibited law enforcement activity, that it seeks attorney-client privileged materials, and that it is punishing him for the exercise of his First Amendment rights.

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“Dr. Eastman’s 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,” he argued. “Dr. Eastman had privileged communications and created privileged work product incidentially [sic] using his law school email.”

But Chapman had a slightly different take. In a motion filed Friday, the university declared that, while it has no dog in this fight, its status as a 501(c)3 tax exempt not-for-profit institution of higher education means that it is illegal to use university resources for political activity.

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“Based on the IRS rules and Chapman’s policies, any work done by Eastman for clients that directly or indirectly supported any political campaign on behalf of (or in opposition to) any candidate for elective public office was an unauthorized and an improper use of Chapman’s resources (e.g., its computer network),” the school wrote, adding that Eastman was explicitly reminded of this on the “splash page” every time he logged in to the network.

And it appears that Eastman’s use of university resources for his political work wasn’t so “incidential” after all, since the school found almost 19,000 documents on its servers which are potentially responsive to the Committee’s subpoena.

All of which is to say that Eastman went into yesterday’s hearing in a difficult position, particularly since the Supreme Court tacitly blessed the Committee’s legitimate legislative purpose last week when it refused to block the National Archives from releasing Trump’s presidential records.

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But what really seems to have pissed off Judge Carter was the months of stonewalling the Committee before racing to the court to bail him out. House Counsel Doug Letter introduced emails from November documenting Eastman’s steadfast refusal to even produce even a privilege log, forcing the Committee to go directly to Chapman. And the university confirms that it “offered (unsuccessfully) to comply with the Select Committee’s request for the Documents by producing them to Eastman, so he could identify privileged Documents and provide the Select Committee with a privilege log.”

“We tried over an extended period to get this material, but Professor Eastman refused to engage with us,” Letter told the court, as reported by Law.com.

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It should be noted that most of the plaintiffs who sued the Committee are engaged in just this kind of jockeying, which is treated like par for the beltway course in DC. We’ve all just come to expect this kind of dilatory, bad faith litigation as plaintiffs attempt to drag these cases out past the midterms in hopes that Republicans take back the House and disband the Committee.

But the Central District of California is not DC. Judge Carter not only ruled from the bench just four days after the case was filed, but he ordered the parties to get started on producing those documents by noon today, with two status conferences scheduled this week for lawyers to give him updates on their progress hashing out the privilege claims. And to top it all off, he ordered the government to pay to expedite a transcript of the hearing.

Because the real “rocket docket” isn’t in the Eastern District of Virginia — it’s in the Ronald Reagan Federal Building in Santa Ana, California.

After TRO Hearing, John Eastman’s Lawyers Will Work With Jan. 6 Committee Regarding Privilege Claim [Law.com]
Eastman v. Thompson [Docket via Court Listener]

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

Topics

Capitol riot, Chapman University School of Law, Crime, Government, John Eastman