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Politics Mar 08, 2022
John Eastman, a former Chapman University law professor and adviser to former President Donald Trump. | Photo courtesy of ISCOTUS/Wikimedia Commons (CC BY 3.0)
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By PAUL ANDERSON
A federal judge heard arguments Tuesday between former Chapman University law professor John Eastman and the congressional committee investigating the Jan. 6 insurrection at the U.S. Capitol, to determine whether several of Eastman’s emails will remain private.
Last week, the committee filed a motion arguing that it needed to receive the emails because it was investigating the possibility that former President Donald Trump — with Eastman’s help — was leading a criminal conspiracy to overturn the election of President Joe Biden.
The most controversial way the committee is seeking the 111 emails from Jan. 4-7, 2021, is through what is known as a “crime fraud exemption.”
That’s when an authority seeking to prove criminal fraud needs sought-after material that would otherwise be considered private due to laws governing attorney-client privilege, or what is known as “work product,” which is legal advice used to prepare lawsuits.
Both sides agreed to U.S. District Judge David O. Carter doing what is known as an “in camera” review in private of the emails, to determine what can be turned over to the committee and which ones would be kept concealed under claims of attorney-client or work product privileges.
Eastman’s attorney, Charles Burnham, argued that the emails in question won’t show any evidence of an intent to commit criminal fraud in seeking to overturn the 2020 presidential election result. Burnham argued that the government would have to prove some sort of criminal intent, and there is no evidence of that.
But attorney Douglas Letter, who represents the select committee, said intent would not have to be proven under the committee’s “common fraud” allegation.
He pointed to an email exchange Eastman had with an attorney for former Vice President Mike Pence, saying one law governing the certification of the election was violated, so Pence might as well commit another “minor” violation by delaying the certification for another 10 days so investigations of alleged election fraud could continue.
“I fail to see how anything is minor in an insurrection that came close to succeeding in overturning the election,” Letter said.
Delaying the certification of the election of Biden “would have changed the entire course of our democracy — that’s how minor it was,” Letter said.
Letter said he finds it difficult to believe that the former dean of Chapman’s law school could not see that holding up certification of the electoral college vote was constitutional.
“You can’t read the 12th Amendment and think up a way to say we’re going to delay the certification of the election and send it back to the states,” Letter said. “It would be really astonishing that Dr. Eastman could think that was constitutional.”
But Letter said the “easiest” path to clear the way for releasing the emails would be to find that Eastman violated Chapman University policy by working for a political candidate, and that he had no expectation of privacy due to the university’s unusual policies regarding its email servers.
Also, Letter argued, Eastman “waived” privilege at Trump’s urging to discuss the former president’s oft-rebuked allegations of widespread election fraud.
Burnham also asked Carter to not make a finding on the criminal fraud exemption, arguing it would generate a great deal of unnecessary controversy. And he argued that any sort of indictment based on the committee’s reasoning would lead to “groundbreaking criminal” law.
“There were issues with the 2020 election,” Burnham argued. “The defendants haven’t come up with evidence … of actual criminal intent. They haven’t met the burden.”
Burnham added, “There’s not going to be an email where anyone says, ‘We have to have some ruffians rush the Capitol if we don’t get what we want.”
Burnham said all of those involved in the debate about the election had a “righteousness about what they were doing” and were acting “in the best interests of the country. … They believe it as much as the others who do not agree (there was election fraud). … The country is divided on that basis, and that won’t be solved by calling each other criminals.”
Carter asked Chapman attorney Fred Plevin why Eastman was “praised” and even won tenure for his work on the 2000 election on former President George W. Bush’s behalf, but was found to have violated the university’s prohibition of doing work to benefit a candidate in the 2020 election.
Plevin said university officials were unaware in 2000 that Eastman was working on behalf of Bush while involved in the recount efforts. Plevin said that it would have been considered a violation of the university’s policies at that time as well because Chapman officials believe it would jeopardize its nonprofit status.
Chapman officials warned Eastman against using university resources such as its email system for Trump’s re-election campaign, Plevin said. The university has a “splash page” on its email system warning users they have no right to privacy.
Letter argued that Chapman is willing to turn over the emails on its servers, and the committee turned to Chapman when Eastman did not comply with its subpoena or in testimony before the committee in December, when he repeatedly invoked his Fifth Amendment rights against self-incrimination.
The attorneys also had an in-depth legal conversation about what materials would be considered covered under a work-product or attorney-client privilege.
Carter also questioned whether Eastman ever got any sort of an agreement with Trump other than an unsigned, undated letter from the ex-president. Burnham said he did not, but that California laws do not require that to establish attorney-client privilege. Burnham noted that his client also appeared for Trump during court hearings.
But Letter said the issue is that the letter doesn’t even spell out the scope of the legal relationship with Trump — and that Eastman has been “too broad” in invoking the privilege.
Letter also argued that Eastman shouldn’t be allowed to invoke the privilege for “political advice.” Letter said the committee would be fine with Carter redacting any documents that contain legal advice or putting them aside altogether because the committee suspects much of what is on the emails is political advice about the election battle.
Eastman on Monday accused the committee of playing politics in court papers.
“If there had previously been any question about whether the select committee views its purpose primarily as an unconstitutional exercise of law enforcement powers that belong to the executive branch rather than a legitimate legislative function, its opposition brief removes any doubt,” the Eastman memo argued.
“The select committee has used that brief, which was supposed to address privilege claims over four days of emails, as an opportunity to provide what is effectively a 60-page criminal indictment against the former president, bringing within its dragnet anyone who, like Dr. Eastman, provided legal advice or who otherwise fell within the former president’s orbit,” it continued. “It is based on lies, distortions, drawn from select snippets of behind-closed-door testimony, and innuendo.”
Eastman’s attorneys further argued, “the distortions cannot hide the fact that Dr. Eastman provided legal advice to a client in connection with numerous post-election legal challenges and a joint session of Congress from which litigation was certainly anticipated as a possibility, giving rise to attorney-client and work-product protections of his communications.”
In the committee’s March 2 brief, it is noted that Pence attorney Gregory Jacob had an email exchange with Eastman during the Capitol riots that got rather sharp at times.
Jacob wrote at one point, “I respect your heart here. I share your concerns about what Democrats will do once in power.” But, he added, “I have run down every legal trail placed before me to its conclusion, and I respectfully conclude that as a legal framework, it is a results oriented position that you would never support if attempted by the opposition, and essentially entirely made up. And thanks to your bull—- we are now under siege.”
Eastman fired back, “My ‘bull—-‘ — seriously?” and adds there is “compelling evidence that the election was stolen” that “continues to build and is already overwhelming.
“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.”
The state bar has launched an ethics investigation of Eastman regarding his work on the 2020 election for Trump. Eastman was forced out of Chapman when some faculty and students objected to his attendance at the rally that preceded the insurrection and for his work on behalf of Trump.
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