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Federal judge finds Trump likely committed felonies with Jan. 6 plan
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Federal judge finds Trump likely committed felonies with Jan. 6 plan

Federal judge called plan to stop Congress from counting electoral votes 'a coup in search of a legal theory'

  • Tyler Merbler/CC BY 2.0

A law professor with whom then-President Donald Trump concocted a plan to overturn the will of the people following the 2020 presidential election must turn over most of his emailed communications with Trump and the president’s advisers to the Select Committee investigating the Jan. 6 insurrection at the Capitol, a federal judge ruled Monday.

But he didn’t stop there. U.S. District Judge David Carter, a Bill Clinton appointee, said the reason Chapman University professor John Eastman must hand over 101 documents — emails and attachments — to the committee is because he and Trump likely broke the law in trying to stop Congress from counting electoral votes on Jan. 6, 2021.

“The illegality of the plan was obvious. Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections,” Carter wrote in a 44-page order. “Ignoring this history, President Trump vigorously campaigned for the vice president to single-handedly determine the results of the 2020 election. As Vice President Pence stated, ‘no vice president in American history has ever asserted such authority.’ Every American — and certainly the president of the United States — knows that in a democracy, leaders are elected, not installed.

“With a plan this ‘BOLD,’ President Trump knowingly tried to subvert this fundamental principle,” Carter wrote, using the word Eastman used for Trump’s plan in a memo he drafted on Jan. 3.

In a written statement, Eastman’s lawyer, Charles Burnham wrote: “As an attorney, Dr. John Eastman has the responsibility to protect the confidences of his clients to the fullest extent of the law,” adding, “He intends to comply with the court’s order.”

House General Counsel Douglas Letter declined to comment, referring the request to House Speaker Nancy Pelosi’s office which did not respond by press time.

Eastman, a longtime Chapman University professor and former dean of its law school, had sought to block his former employer from turning over his emails sent and received from his school account, which had been subpoenaed by the House of Representatives’ Select Committee to Investigate the January 6 Attack on the United States Capitol. Eastman argued he was acting as Trump’s lawyer, and that the emails fell under attorney-client privilege.

Judge Carter ordered Eastman to go through each of the emails and explain why each one should be protected, and to start with emails sent and received between Jan. 4 and 7, 2021. Eastman requested that 111 emails and attachments from that period be kept private.

Douglas Letter, the Select Committee’s lawyer, argued the emails were should not be covered under attorney-client privilege, in part because Eastman’s advice was primarily campaign advice and not related to any particular litigation. He also argued that some of the emails fell under the “crime-fraud exception” which exempts certain communication from attorney-client privilege if the client is in the midst of committing a crime or a fraud.

The Jan. 6 Committee has portrayed Eastman as the architect of a plan to prevent Joe Biden from being certified as president. Along with Trump, Eastman lobbied state legislators to question the results of their states’ vote tallies, and urged them to exercise what he said was their constitutional authority to directly choose their states’ presidential electors. He later wrote a two-page memo arguing that Vice President Mike Pence should throw out the votes of certain states, under the justification that those elections were disputed. Pence refused to follow that strategy.

After reviewing the 111 documents, Judge Carter decided to allow Eastman to keep five emails and four attachments private due to attorney-client privilege.

“None of these documents includes Dr. Eastman’s client, President Trump, as a sender or recipient of the email,” Carter wrote. “Instead, all emails are sent from a third party to Dr. Eastman, and two of the emails blind copy (bcc) a close adviser to President Trump.”

Eastman had also argued all of the 111 documents were protected “work product,” a variation of attorney-client privilege which protects “tangible things prepared by a party or his representative in anticipation of litigation” per a Ninth Circuit ruling in 1989.

Carter ruled that 100 of the documents did not fall under “work product,” for a variety of reasons, while 10 of them did. None of the 10 “are “pivotal to the Select Committee’s investigation,” Carter found.

As for the final document, the Judge ruled that it was exempted from protection — that is, it should be disclosed — because of the crime-fraud exception. Carter described that document as an email chain forwarded to Eastman by Trump attorney Rudy Giuliani, which included a draft memo recommending that Vice President Pence reject electors from contested states on Jan. 6.

“This may have been the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action,” Carter wrote. “The draft memo pushed a strategy that knowingly violated the Electoral Count Act, and Dr. Eastman’s later memos closely track its analysis and proposal. The memo is both intimately related to and clearly advanced the plan to obstruct the joint session of Congress on Jan. 6, 2021. Because the memo likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States, it is subject to the crime-fraud exception and the court orders it to be disclosed.”

Carter also wrote: “President Trump and Dr. Eastman justified the plan with allegations of election fraud — but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful,” and added, “Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower—it was a coup in search of a legal theory.”

In his written statement, Eastman attorney Charles Burnham said that Judge Carter’s ruling does not make his client guilt of anything.

“The district court has ordered precisely one document (which Dr. Eastman did not author) produced pursuant to the so-called crime/fraud exception,” Burnham wrote. “The court’s crime/fraud findings were not subject to the presumption of innocence, proof beyond a reasonable doubt, or any of the constitutional protections normally applicable to criminal proceedings. As the district judge put it ‘this is not a criminal prosecution; this is not even a civil liability suit.'”

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