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By PAUL ANDERSON
A former Chapman University law school dean is considering an appeal to the U.S. Supreme Court challenging a federal judge’s ruling that he likely ran afoul of the law when representing ex-President Donald Trump in attempts to reverse the 2020 presidential election results, the professor’s attorney said Tuesday.
A panel of the 9th U.S. Circuit Court of Appeals on Monday denied John Eastman’s appeal of a ruling handed down by U.S. District Judge David O. Carter ordering him to turn over eight emails the professor considered privileged to the congressional committee investigating the Jan. 6, 2021, Capitol insurrection. Carter, as he has in the past, ruled again that a crime- fraud exception allows the committee access to otherwise privileged information.
“We respectfully disagree with the court’s decision,” Eastman’s attorney, Anthony T. Caso, said. “The order is extremely brief and does not explain the three-judge panel’s reasoning on a technical but critical legal point. We are considering all options, including rehearing by the full 9th Circuit or even appeal to the Supreme Court.”
Eastman had asked the appellate justices to block the Jan. 6 committee from accessing the emails in question, but the panel had already retrieved them from a dropbox link it was provided. Eastman withdrew his emergency request for injunctive relief, and the 9th Circuit’s ruling indicated the issue was moot and dismissed Eastman’s appeal, although Eastman wanted to continue pursuing an appeal of Carter’s ruling on the crime-fraud exception.
Eastman had asked the congressional committee to not access the eight emails in question until the 9th Circuit could rule on the appeal, but the committee’s attorney notified Eastman later in the day Oct. 28 that the emails had already been downloaded.
“If, on appeal, this court holds that the district court’s crime-fraud ruling was erroneous, those privileged documents should not have been ordered produced to, and examined by, the Select Committee,” Caso wrote in an Oct. 30 motion.
Eastman’s attorneys sought an order to destroy the documents and prohibit their use.
The committee’s attorney, Douglas N. Letter, had written to one of Eastman’s lawyers that the documents were accessed before an appeal notice was filed, but Eastman’s attorneys dispute that.
Eastman last month asked Carter to reconsider his ruling that the documents, which ordinarily would be kept secret due to attorney-client privilege, should be released to the congressional committee due to the judge’s finding of a crime-fraud exception. Carter made that finding earlier this year, and reiterated it again last week when he ruled that Trump knowingly signed a court document in Georgia even though he knew the facts alleged in it were wrong.
“Dr. Eastman respectfully submits that the relevant context shows that this ruling was clearly erroneous,” Eastman’s attorneys wrote in the filing.
“Dr. Eastman submits that the full email record clearly shows that the president’s lawyers took great care to ensure all court filings were accurate,” according to Eastman’s motion.
Eastman’s motion includes an affidavit, which was filed under seal, that he claims shows that “no false information was knowingly submitted by the president or his attorneys, and that the complaint (filed in Georgia challenging the election results) was not filed for an improper purpose.”
Carter had earlier ruled the lawsuits were part of a scheme to delay or disrupt the certification of the election on Jan. 6, 2021.
Carter rejected Eastman’s motion for a reconsideration of the ruling because, “Dr. Eastman presents no evidence warranting reconsideration under” the law. Carter also denied Eastman’s bid for an extension of time to comply with the judge’s order while he pursued relief before the 9th Circuit Court of Appeals.
Eastman has been battling the congressional committee to keep some emails from his time at Chapman University private under laws allowing confidentiality in communications with a client and documents used to prepare for legal strategy. But there is a key exception that can be applied when there is enough evidence to show a possible case of criminal fraud, and that is the exemption Carter ruled on earlier this year when ordering many documents turned over to the committee.
The conflict came to a head again in recent weeks, prompting the committee to ask Carter to review hundreds of disputed documents in private so he could determine which ones would be covered under the special privileges of confidentiality afforded attorneys.
Carter zeroed in on several documents in litigation in Fulton County, Georgia, which was a critical state President Joe Biden won in the 2020 election.
Eastman had pushed a legal theory that Vice President Mike Pence, as head of the U.S. Senate, could delay or halt the Senate’s confirmation of the electoral college vote that vaulted Biden into the White House. Trump has pushed claims of voter fraud that were rejected as baseless by his U.S. Attorney, Homeland Security and others in his own administration. Despite this, Eastman has continued to espouse various conspiracy theories about election fraud in the case before Carter.
“Four emails demonstrate an effort by President Trump and his attorneys to press false claims in federal court for the purpose of delaying the Jan. 6 vote,” Carter wrote. “The evidence confirms that this effort was undertaken in at least one lawsuit filed in Georgia.”
Carter said that in a Dec. 4, 2020, filing, “President Trump and his attorneys alleged in a Georgia state court action that Fulton County improperly counted a number of votes, including 10,315 deceased people, 2,560 felons, and 2,423 unregistered voters. President Trump and his attorneys then decided to contest the state court proceeding in federal court and discussed incorporating by reference the voter fraud numbers alleged in the state petition. On Dec. 30, 2020, Dr. Eastman relayed concerns from President’s Trump’s team about including specific numbers in the paragraph dealing with felons, deceased, moved, etc.’ The attorneys continued to discuss the president’s resistance to signing when specific numbers were included.”‘
Eastman “explained the next day” that Trump was made aware after Dec. 1 that some of the allegations were “inaccurate,” Carter wrote.
“President Trump and his attorneys ultimately filed the complaint with the same inaccurate numbers without rectifying, clarifying, or otherwise changing them,” Carter wrote. “President Trump, moreover, signed a verification swearing under oath that the incorporated, inaccurate numbers are true and correct’ or believed to be true and correct’ to the best of his knowledge and belief.”
Carter added, “The emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public. The court finds that these emails are sufficiently related to and in furtherance of a conspiracy to defraud the United States.”
Carter ordered the four “communications” in question turned over to the committee. He said the four documents “in which Dr. Eastman and other attorneys suggest that — irrespective of the merits — the primary goal of filing (lawsuits) is to delay or otherwise disrupt the Jan. 6 vote. In one email, for example, President Trump’s attorneys state that `merely having this case pending in the Supreme Court, not ruled on, might be enough to delay consideration of Georgia.’ This email, read in context with other documents in this review, make clear that President Trump filed certain lawsuits not to obtain legal relief, but to disrupt or delay the Jan. 6 congressional proceedings through the courts.”
As for Eastman’s continued protestations there was widespread election fraud, Carter wrote, “President Trump’s own U.S. Attorney General said that his investigators found no evidence of fraud on a scale that would have changed the outcome of the election, but President Trump and his attorneys continued to file dozens of lawsuits in states he lost, seeking to overturn the results.”
By early January, about 60 of those cases were thrown out “for lack of evidence or lack of standing,” Carter wrote.
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