A federal judge will review 111 emails that attorney John Eastman, a key ally in then-President Donald Trump’s attempt to overturn the 2020 election, has sought to shield from congressional investigators.
U.S. District Court Judge David Carter determined on Wednesday that the Jan. 6 select committee had raised enough legitimate questions about Eastman’s basis for blocking the documents that he would conduct a page-by-page review and determine whether to disclose them to lawmakers. Eastman has claimed the emails in question — all sent between Jan. 4 and Jan. 7, 2021 — should be protected by attorney-client privilege and attorney work-product privilege.
“After reading the emails, the Court will determine for each document whether any privilege existed, whether that privilege was waived, and whether any exceptions apply,” Carter, who sits in the Central District of California, indicated in a four-page order.
Carter made no comment on the select committee’s claim that Eastman might have engaged in a criminal conspiracy with Trump to obstruct Congress. Rather, he said he would defer more detailed comment until after he reviews the emails and determines whether to provide them to the select committee.
The select committee, in an explosive court filing last week, indicated that Eastman’s privilege claims should be thrown out because he might have engaged in a criminal conspiracy with Trump to obstruct Congress’ counting of electoral votes on Jan. 6, 2021. That, House Counsel Doug Letter argued, should trigger the “crime-fraud” exception to attorney-client privilege.
But Eastman replied that his efforts on Trump’s behalf were part of a “good-faith” belief that they were legitimate legal efforts to permit then-Vice President Mike Pence to single-handedly reject dozens of Joe Biden’s electoral votes.
Carter has repeatedly ruled in the committee’s favor in recent weeks, ordering Eastman to review 90,000 pages of emails subpoenaed by the committee from Eastman’s former employer Chapman University. And he has sided with the committee’s multiple requests to expedite the effort and focus on the Jan. 4 to Jan. 7 time frame.
Carter said his decision was based on the fact that the committee had shown many of Eastman’s contacts are likely to be “third parties” who have no privileged relationship with Eastman. He also said that the committee raised sufficient doubts about whether Eastman’s efforts were “in anticipation of litigation,” a key requirement to invoke attorney-client privilege.
“The Select Committee points to Dr. Eastman’s January 3, 2021 memorandum to President Trump, which states, ‘[t]he main thing here is that Pence should do this without asking for permission — either from a vote of the joint session or from the Court,’” Carter noted.
“The Select Committee also suggests that these emails could relate to Dr. Eastman’s non-litigation activities on behalf of President Trump, such as meeting with state legislators about certifying electors,” he added. “Dr. Eastman’s privilege logs do not indicate what litigation was anticipated; the log entries simply state that emails were made considering ‘possible litigation’ or ‘contemplating litigation.’ This evidence sufficiently supports a reasonable belief that the emails may reveal that they were not created in anticipation of litigation.”
Carter emphasized that just because he would be reading the emails did not mean he would disclose them all to the committee.
“Ultimately, the Court will issue a written decision including its full analysis and its final determination of which, if any, documents must be disclosed to the Select Committee,” he said.
Carter provided no time frame for issuing his final determination.
