Former President Donald Trump and longtime conservative attorney John Eastman were engaged in a criminal conspiracy of obstruction and subversion ultimately angling to overturn the results of the 2020 election, attorneys investigating the U.S. Capitol attack alleged in court Wednesday.
The allegations are significant and have emerged as the panel continues its dogged pursuit of Eastman’s records and emails in civil court. The attorney was revealed last year to be the author of a memo strategizing how then-Vice President Mike Pence could overstep his constitutional authority to stop or delay the certification of Electoral College votes.
For weeks Eastman has tried to keep the panel away from thousands of emails sent and received between himself, the ex-president, and others while he was employed by Chapman University. He has claimed executive privilege and attorney-client privileges to bar review, but now, committee lawyers argue that confidentiality should not apply because communication between an attorney and their client can’t be kept private if the privilege is being used to help that client commit a crime.
Over an extensive 61-page brief laying out their opposition to Eastman’s attempt to hide the records, panel attorneys asked U.S. District Judge David Carter to conduct something known as an “in camera” or private review of evidence that the committee has so far amassed. Upon that assessment, they argue, Carter should be able to determine if Eastman is abusing the attorney-client privilege assertion.
“[The] evidence and information available to the committee establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts, and that Plaintiff’s legal assistance was used in furtherance of those activities,” wrote committee general counsel Douglas Letter.
Neither Trump nor Eastman has been accused of a crime just yet. The committee itself does not have the authority to bring criminal charges. It can make a referral to the Department of Justice if it comes across evidence of a crime, but as far as enforcing criminal laws, that is outside the panel’s wheelhouse.
This lack of authority has been a key talking point for Trump allies fighting scrutiny. They insist that congressional investigators are acting beyond their role as legislators and are effectively conducting a law enforcement investigation.
But the committee has refuted this talking point repeatedly—and judges have agreed.
On Wednesday night, committee chairman Bennie Thompson took pains once again to assert this.
“The Select Committee’s brief refutes on numerous grounds the privilege claims Dr. Eastman has made to try to keep hidden records critical to our investigation. The Select Committee is not conducting a criminal investigation. But, as the judge noted at a previous hearing, Dr. Eastman’s privilege claims raise the question whether the crime-fraud exception to the attorney-client privilege applies in this situation,” Thompson said.
He continued:
”The facts we’ve gathered strongly suggest that Dr. Eastman’s emails may show that he helped Donald Trump advance a corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power,” he said.
Brief in Opposition Jan 6 Eastman by Daily Kos on Scribd
Judge Carter could ultimately side against the committee. It’s important to note that this battle is a civil one, meaning arguing attorney-client privilege is quite different from proving criminal conspiracy.
In laying out its case Wednesday, the committee offered an extended review of what it has unearthed: After Trump’s loss on election night to Joe Biden and then six weeks of failed litigation to challenge election results in seven states, “he and his associates began to plan extra-judicial efforts to overturn the results of the election and prevent the president-elect from assuming office.”
The “aggressive public misinformation campaign,” Trump foisted on the public was a part of that conspiracy. Girding that was his refusal to accept the “pretty blunt terms” of his loss, whether that fact was delivered to him from the courts, his attorney general, the head of the nation’s cybersecurity agency, the nation’s Department of Homeland Security, or his most-trusted aides.
Eastman has provided over 8,000 pages of documents to the committee so far but he is shielding nearly 11,000 pages more.
The committee argues that when Judge Carter sees those emails, he is likely to understand how Eastman gave Trump advice not based on law but politics. Under law, attorney-client privilege is only legitimate, they say, when the client seeks legal advice, not political advice.
This story is developing.
