(Photo by Alex Wong/Getty Images)

Another day, another ritual spanking in court for Trump’s coup-curious lawyer John Eastman, who faced another set of embarrassing disclosures by the January 6 Select Committee last night.

The former law professor is waging a losing battle to block Chapman University from handing his emails over to the January 6 Select Committee. Because naturally this peerless genius used his work email to plot a coup.

Last week Eastman advanced several, umm, interesting arguments to keep his comms under wraps. Most of these were retreads of claims US District Judge Carter previously rejected in the last round of disputed documents, but Eastman did have spiffy new one in defense of his work product claim over the plot to have Vice President Pence unilaterally reject swing state electoral votes. The court already said the plot was hatched in furtherance of crime — i.e. obstruction of an official proceeding — not litigation, and refused to entertain the privilege. But, Eastman argues, what if Congress is actually adjudicating the electoral votes, and thus the proceeding is basically litigation.

Yes, he actually made this argument with a straight face.

In its Order Re Privilege of Documents Dated January 4-7, 2021 [Docket No. 260] (the “Order”), this Court rejected many of Dr. Eastman’s claims of work product privilege because the documents were not made in anticipation of litigation, but only in anticipation of various legislative proceedings – specifically, state electoral certification and the congressional electoral count. Order at 22, 23.66 The documents at issue do not pertain to ordinary legislative proceedings, however, but to proceedings in which Congress is acting in an adjudicative capacity. They are therefore the direct subject of the legislative equivalent of litigation.

The Committee has a response to that, though, and it is DUDE, ARE YOU F*CKING HIGH?

Okay, not really. But close!

First, Dr. Eastman cites no authority for his “legislative equivalent of litigation” theory that Congress transforms into an adjudicative body when it weighs alternate slates of electors. Br. at 25.

Second (and most fatal to his argument), Dr. Eastman’s theory depends on events that never occurred: states actually submitting alternate slates of electors. Not a single state submitted certificates or papers purporting to be certificates of the electoral votes in connection with the 2020 Presidential election, so Congress’s power to weigh alternate slates of electors—whether or not that is an adjudicative process—was never triggered.

Third, Dr. Eastman’s actions were not an effort to participate in an adjudicative process (such that they might be eligible for work product privilege protection); they were instead criminal acts subject to the crime-fraud exception and, thus, not protected by a privilege.

“Even if Congress acts in some adjudicative capacity when it weighs alternate slates of electors, a lawyer’s efforts to corrupt that process do not become attorney work product entitled to protection,” the Committee’s brief argues.

And then the Committee went into significant detail on the “lawyer’s efforts to corrupt that process.” Because while Eastman has thrown himself on the floor and pitched a six-month tantrum to avoid cooperating with the investigation, most of his correspondents simply handed over the documents and testified when called. Which means that the Committee already got many of the communications Eastman is now trying to claim are privileged.

This is occasionally hilarious, as in the case of one email with a party whom Eastman characterized as a “potential client.”

Reached by the Committee, counsel for the correspondent wrote that his client “never retained nor considered retaining Dr John Eastman. He contacted Dr Eastman merely to correct Eastman’s incorrect publicly stated position on the PA Constitution. He never had any attorney-client privileged communications.”

But most of the 22 email chains entered as exhibits last night show Eastman’s evolving theory of law as the preconditions for his plot to keep Trump in office failed to materialize.

On November 5, before the election was even called, former Foley & Lardner partner Cleta Mitchell asked Eastman to draft a memo urging legislators to “reclaim that constitutional duty” and designate electors for Trump “rather than delegating to the governors,” and irrespective of the will the voters. By November 28, he had a working draft urging legislatures to “exercise their prerogative to legislatively designate a slate of electors.”

In a December 19 email, Eastman acknowledged that “unless these Electors get a certification from their State Legislators, they will be dead on arrival in Congress.” Eastman even postulated that the Constitution conferred plenary authority on legislatures to convene themselves without authority of the governor in an effort to claw back electors.

But no swing state legislature took Eastman up on his recommendation, possibly because it was totally nuts. Which forced Eastman to move the goal posts — and not for the last time.

On December 4, Eastman wrote to a Pennsylvania legislator that it would require “an objection, signed in writing by at least 1 member of the House and 1 member of the Senate” and sustained by both Houses of Congress to reject any state’s slate of electors. This was in the same email where Eastman said he didn’t have any particular evidence of fraud, but went on to explain how the legislature could flip the state to Trump by simply giving the absentee ballot total a haircut across the board.

In the event, with no certified “alternate” electors for Trump, no claims of fraud sustained by a court, and no possibility that congress would sustain objections to the swing state Biden electors, Eastman jettisoned all his prior legal reasoning and alighted on the Trump campaign’s final theory of the case: Mike Pence could either reject the swing state electors outright and declare Trump the winner, or he could say that the outcome was in question and allow the states to vote by House delegation, an outcome which was likely to produce a Trump victory.

All of which is a very bad look for the president’s lawyer. Not just because the parties he claims to be protecting have already handed the disputed correspondence over to the Committee, making it look like Eastman is trying to hide his own culpability behind a spurious claim of privilege. But more because his shifting rationales were so clearly “a coup in search of a legal theory,” as Judge Carter described them in April.

This wasn’t privileged, and it sure as hell wasn’t legal advice. It was a plot to keep Trump in office by hook or by crook, and it’s all coming out now.

Eastman v. Thompson [Docket via Court Listener]


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





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