1/6 Committee entitled to Eastman docs - crime-fraud exception - Judge Carter

John Eastman v. Bennie G. Thompson and January 6 Commtttee - order compelling disclosure of documents

Plaintiff Dr. John Eastman (“Dr. Eastman”), a former law school dean at Chapman University (“Chapman”), is a “political conservative who supported former President [Donald] Trump” and a self-described “activist law professor.”1 While he was a professor at Chapman, Dr. Eastman worked with President Trump and his campaign on legal and political strategy regarding the November 3, 2020 election. This case concerns the House of Representatives Select Committee to Investigate the January 6 Attack on the US Capitol’s (“Select Committee”) attempt to obtain Dr. Eastman’s emails from his Chapman email account between November 3, 2020 and January 20, 2021. The parties disagree on whether those documents are privileged and thus protected from disclosure. 

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1. Emails related to and in furtherance of delaying or disrupting the January 6 congressional proceedings 

The Court’s prior orders addressed several email threads related to ongoing or prospective litigation in key battleground states. In the current review, the Court finds 18 similar documents that present a close call. Some emails discuss legitimate litigation strategy: how the electoral votes affect the Campaign’s “legal options”; how the litigation (if successful) might overturn the election results; and how to frame cases for the Supreme Court. Others discuss how the litigation served other goals, like providing support to state electors trying to decertify electoral votes or persuading the public to question the integrity of the election. Although these emails are “sufficiently related” to disrupting the January 6 vote, on balance, the Court cannot conclusively determine that these emails furthered the obstruction of the January 6 proceedings. 

Accordingly, the crime-fraud exception does not apply. There are four documents, however, in which Dr. Eastman and other attorneys suggest that—irrespective of the merits—the primary goal of filing is to delay or otherwise disrupt the January 6 vote. In one email, for example, President Trump’s attorneys state that “[m]erely 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 January 6 congressional proceedings through the courts. The Court finds that these four documents are sufficiently related to and in furtherance of the obstruction crime. Accordingly, the crime-fraud exception applies, and the Court ORDERS Dr. Eastman to disclose the four documents.

2. Emails related to and in furtherance of the conspiracy to defraud 

Four emails demonstrate an effort by President Trump and his attorneys to press false claims in federal court for the purpose of delaying the January 6 vote. The evidence confirms that this effort was undertaken in at least one lawsuit filed in Georgia. On December 4, 2020, 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 December 30, 2020, Dr. Eastman relayed “concerns” from President 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.”  As Dr. Eastman explained the next day: 

Although the President signed a verification for [the state court filing] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.

President Trump and his attorneys ultimately filed the complaint with the same inaccurate numbers without rectifying, clarifying, or otherwise changing them. 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. 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. Accordingly, the Court ORDERS Dr. Eastman to disclose these four communications to the Select Committee.