Earlier this week, on January 24, a federal court in Santa Ana, California, put John Eastman, former Trump lawyer and Chapman University Law School professor, more squarely in the crosshairs of the bipartisan House Select Committee investigating the January 6 attacks. And with Trump’s lawyer’s messages in their sights, the Committee shortens its range to the former President.
Rejecting Eastman’s categorical claims to hide thousands of his Chapman emails subpoenaed by the committee, Judge David Carter ordered Chapman to make them immediately available to determine which can be disclosed. Eastman used his Chapman account for communicating with the White House in 2020.
It was an ingenious investigative move by the Committee to seek the emails from Chapman when Eastman refused to provide them. The committee had powerful reasons to want Eastman’s evidence. After the 2020 election, he became Trump’s “legal quarterback.” Eastman wrote memos describing a scheme for keeping Trump in power. The linchpin was the existence of alternate Republican electoral slates in seven states.
Eastman’s memos made a legally “nonsensical” argument. He wrote that Vice President Pence could decide, while officiating at Congress’ January 6 election certification session, to delay Congress’ official confirmation of President Biden’s election so that battleground states’ legislatures could re-decide who won. Pence rightly decided that the Constitution gave him no such power.
But if Pence had gone along, the resulting chaos would surely have allowed Trump to overturn the election. When Pence refused to assert the power that Eastman ascribed, the only option for Trump to retain the presidency was violence—the murderous January 6 attack on the Capitol.
This month, long after Eastman’s memos emerged in September, we learned that Rudy Giuliani, Trump’s other personal lawyer at the time, coordinated a stealth campaign to provide the bogus electoral slate certificates that were at the centerpiece of Eastman’s blueprint. They falsely named Trump as the winner in seven states. Some certificates were forged.
On Tuesday of this week, the Justice Department said it was investigating that scheme for crimes.
Thus, the committee has more than sufficient reason to believe that Eastman was central to a criminal conspiracy to end America’s 235-year tradition of transferring power under the rule of law. Adding to the evidence was Eastman’s presence in the notorious January 6 “war room” at DC’s Willard Hotel with Giuliani and Steve Bannon.
At the hearing in Santa Ana, Judge Carter pinned down the fact that Eastman was acting as Trump’s lawyer. That was because Eastman’s attempt to squelch the subpoena rested on the Chapman emails being subject to the attorney-client privilege. Eastman’s lawyer affirmed in court that Eastman was representing Trump at the Willard and at a January 3, 2021, White House meeting where Trump apparently pressured Pence to block Congress’s upcoming election certification.
That Eastman was representing Trump hardly means that the court will sustain Eastman’s claim of privilege. Significantly, its application is subject to doubt in matters involving a congressional subpoena. Further, Trump expressly waived the privilege according to Eastman in a September 27 podcast. Finally, “There is no privilege . . . if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.”
Imagine for a moment the potential revelations in the emails. In October, Eastman made some provocative admissions when he thought he was speaking among friends. A videographer posing as a pro-Trump ally interviewed Eastman at a gala for the Claremont Institute’s Center for Constitutional Jurisprudence, a right-wing nonprofit that he chairs. Eastman said, among other things, that the extremist Proud Boys and the militant Oath Keepers were “our guys” at the January 6 insurrection.
Two weeks ago, on January 13, the Justice Department indicted 11 of his “guys” for “seditious conspiracy” to overthrow the government. Notably, select committee member Adam Kinzinger (R-IL) has said that Eastman’s memos “outline[d] a coup,” and there is sure to be plenty of email evidence about those memos.
If the court were to find the attorney-client privilege waived or inapplicable, Eastman will likely fall back on his Fifth Amendment right not to incriminate himself. When he appeared before the select committee on December 9, Eastman invoked his Fifth Amendment right 146 times.
But Eastman may also have substantially waived that right in the September 27 podcast and in his multiple public statements attempting to defend himself since January 6, 2021.
Eastman plainly occupied a pivotal spot in Trump’s plot to end American democracy. Disclosure of his emails would advance the select committee’s search for truth, and with it, strengthened hope for preventing another insurrection.