Trump Lawyer John Eastman Flapped His Yap About Trump Electoral Strategy, Now Wants To Claim Privilege

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(Photo by Alex Wong/Getty Images)

Having used his Chapman University email to plot to overturn the election, Trump lawyer John “Coup Memo” Eastman belatedly realized that he had no means to stop his former employer from handing them over when the January 6 Select Committee came knocking. So in January, he sued the Committee in the Central District of California to block its subpoena, alleging that the communications are covered by attorney-client and work product privilege.

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Last week, the Committee argued that Eastman’s claim of attorney-client privilege failed under the crime-fraud exception, and Eastman made a short-lived attempt to shake loose exculpatory Brady and Giglio disclosures, reasoning that he had been functionally conscripted as the president’s criminal defense attorney. After the court dropkicked that motion, Eastman inexplicably filed 87 pages of evidentiary objections just hours before a hearing on his disputed privilege claims.

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What this had to do with today’s hearing regarding approximately 115 disputed emails is unclear. But Eastman’s lawyer Charles Burnham likened the defendants to the House Unamerican Activities Committee, accusing it of modern day McCarthyism, so the morning  got off to an exciting start anyway.

“Lack of shared reality will not be resolved by the two sides calling each other criminals,” he tut-tutted, conveniently omitting to mention that his client worked very hard to promote a version of “reality” that was very much unreal.

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Judge David Carter drilled down on the attorney-client relationship: when and whether it was formed, who was the client, and what was the scope. The only engagement letter for “federal litigation matters in relation to the 2020 presidential general election, including election matters related to the Electoral College” is unsigned, and the very first paragraph says it will only become effective “upon the proper signatures by all parties hereto.”

Eastman did enter his appearance in at least one election case on behalf of the campaign, and has argued for an expansive interpretation of the privilege, encompassing more or less everyone he talked to about the election at all. But Trump, the putative holder of the privilege, has neither intervened nor tried to assert it.

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As for the work product privilege, which Eastman asserted with regard to the majority of the disputed emails, Judge David Carter questioned his counsel sharply as to what potential litigation might be anticipated for Eastman’s advice regarding the electoral college, particularly his instruction to have Pence engage in a “relatively minor violation” of the Electoral Count Act. Burnham argued that someone would definitely have sued if Mike Pence had taken Eastman’s advice and rejected the swing state electoral votes, insisting that such a lawsuit was very definitely typed up and ready to go “somewhere.”

Chapman University faced a grilling as well. The school takes the position that Eastman’s use of its email system was “contraband,” since political activity conflicts with IRS rules, and thus he had no reasonable expectation of privacy in messages on their server. Indeed, the dean admonished Eastman at the time that what he was doing was improper. The Committee argues that this amounts to a publication to a third party, waiving any privilege claims to the disputed emails.

But Judge Carter demanded to know whether the school segregated emails for its law school clinic to preserve privilege, and why the school didn’t chastise him for his work on behalf of George W. Bush in 2020.

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For the Committee’s part, attorney Doug Letter argued repeatedly that it is Eastman’s obligation to prove the existence and scope of privilege, and he can’t do it by treating every communication about the election as if it constituted legal advice.

At the end of a three-hour hearing, there seemed to be multiple grounds on which Judge Carter might reject most or all of Eastman’s privilege claims. If the court doesn’t take the maximalist stance that Trump was trying to obstruct an official congressional act and perpetrate a fraud and thus the crime-fraud exception applies, it might find that disclosure to Chapman via its servers vitiated the privilege. If it decides that an attorney-client relationship was formed, it might find that the disputed emails contain political, non-legal advice. If the court finds that Eastman flapping his yap to anyone who would listen about what he’d told Trump didn’t waive the privilege, it might conclude that the advice was not in preparation for future litigation, and thus work product privilege does not apply.

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Or maybe not. But at the end of this very boring hearing, you’d sure rather be the Committee than John Eastman.

Eastman v. Thompson [Docket via Court Listener]

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

Topics

Courts, Donald Trump, Government, John Eastman, Legal Ethics, liz dye