The attorney-client privilege is a vital cornerstone of American law. It is founded on the notion that attorney-client communications must be and remain confidential in almost all circumstances, so as to encourage the client to be truthful and transparent to the attorney so that the client might get the best legal advice. One limited exception, however, is where the apparent purpose of the attorney-client communications is to plan or commit a crime; this is known as the crime-fraud exception to the attorney-client privilege. In a thorough, well-reasoned opinion, a federal district judge has ruled that the crime-fraud exception applied to at least some of the attorney-client communications between former President Donald Trump and John Eastman, an attorney and law professor engaged in what even Eastman admitted was a scheme thoroughly unsupported by any valid legal argument or position to obstruct the electoral certification that Joe Biden won the 2020 presidential election. The case is John Eastman v. Bennie G. Thompson, Select Committee to Investigate the January 6 Attack on the U.S. Capitol.
John Eastman is a law professor at Chapman University in California and somehow or another became engaged with former Trump and his efforts to overturn the results of the 2020 presidential election. The suit was an effort by Eastman to block the House of Representatives Select Committee investigating the January 6, 2021, attack on the US Capitol from obtaining emails sent or received by Eastman on his University email account. This particular ruling concerned only 111 documents, all of which were apparently generated between January 4 – 7, 2021.
The court’s opinion includes significant discussion of factual history. It portrays former President Donald Trump as attempting unsuccessfully to first bully the Department of Justice into taking some kind of action to overturn the election results. The court’s opinion describes one of those efforts on January 3, 2021, the day after Trump had telephoned Georgia Secretary of State Brad Raffensberger and urged him “to find 11,780 votes” as follows:
The next day, President Trump attempted to elevate Jeffrey Clark to Acting Attorney General, based on Mr. Clark statements that he would write a letter to contested states saying that the election may have been stolen and urging them to decertify electors. The White House Counsel described Mr. Clark’s proposed letter as a “murder-suicide pact” that would “damage everyone who touches it” and commented “we should have nothing to do with that letter.” President Trump eventually did not promote Mr. Clark after multiple high-ranking members of the Department of Justice threatened mass resignations that would leave the department a “graveyard.”
This comes from sworn deposition testimony by Jeffrey Rosen, the actual Acting Attorney General, and Richard Donoghue, the Acting Deputy Attorney General.
The same day, January 3, 2021, that Trump abandoned his plan to elevate Jeffrey Clark, Eastman released and later disclosed to the media a purported legal memorandum that the court described as follows:
On January 3, 2021, Dr. Eastman drafted a six-page memo expanding on his plan and analysis, which he later disclosed to the media. This memo “war gam[ed]” for potential scenarios for January 6, only some of which would lead to President Trump winning reelection. Claiming that “[t]he stakes could not be higher,” Dr. Eastman concludes his memo stating that his plan is “BOLD, Certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.”
The next day, January 4, 2021, having abandoned the plan to elevate Jeffrey Clark and Eastman having generated his “war memo,” although it is doubtful that Trump had read it or ever read it, Trump called Vice President Mike Pence to a meeting and tried to bully him to obstruct certification of the electoral count scheduled for January 6. The court describes as follows:
On January 4, President Trump and Dr. Eastman invited Vice President Pence, the Vice President’s counsel Greg Jacob, and the Vice President’s Chief of Staff Mark Short to the Oval Office to discuss Dr. Eastman’s memo. Dr. Eastman presented only two courses of action for the Vice President on January 6: to reject electors or delay the count. During that meeting, Vice President Pence consistently held that he did not possess the authority to carry out Dr. Eastman’s proposal.
The source of this information is the sworn deposition testimony of Greg Jacob, the Vice President’s lawyer.
Another meeting occurred the following day, January 5, 2021, this one attended by Eastman, Jacob and Short. The court recites as follows:
The Vice President’s counsel and Chief of Staff were then directed to meet separately with Dr. Eastman the next day to review materials in support of his plan. Dr. Eastman opened the meeting on January 5 bluntly: “I’m here asking you to reject the electors.” Vice President’s counsel Greg Jacob and Dr. Eastman spent the majority of the meeting in a Socratic debate on the merits of the memo’s legal arguments. Over the course of their discussion, Dr. Eastman’s focus pivoted from requesting Vice President Pence reject the electors to asking him to delay the count, which he presented as more “palatable.” Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice, would likely be unanimously rejected by the Supreme Court, and violated the Electoral Count Act on four separate grounds.
This description comes from sworn deposition testimony of the Vice President’s counsel, Greg Jacob. It sounds very much like a concession by Eastman that his plan had no legal validity or merit and that, therefore, perhaps the most “palatable” course for the Vice President to take so as to not outright violate the law would be to delay.
Apparently seeing that the efforts had not brought Pence around, Trump resorted to public bullying and attempted coercion the next day, January 6, 2021. The court recites:
Despite receiving pushback, President Trump and Dr. Eastman continued to urge Vice President Pence to carry out the plan. At 1:00 a.m. on January 6, President Trump tweeted, “If Vice President @ Mike Pence comes through for us, we will win the Presidency … Mike can send it back!” At 8:17 a.m., the President tweeted again, “States want to correct their votes … All Mike Pence has to do is send them back to the states, AND WE WIN. Do it Mike, this is a time for extreme courage!”
Following his tweets, President Trump placed two calls to Vice President Pence directly. After not being able to connect with the Vice President around 9:00 a.m., they spoke at approximately 11:20 a.m. Vice President Pence’s National Security Advisor General Keith Kellogg, Jr. was present and described President Trump as berating the Vice President for “not [being] tough enough to make the call” to delay or reject electoral votes.
Not long after this, both Eastman and Trump spoke to the crowd assembled around the White House. Both told the crowd that Pence had the legal authority to reject the electors and President Trump incited and urged the crowd to go down to the Capitol building and do something to make Pence come around. The court quotes Trump as follows:
Now, it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you, were going to walk down, were going to walk down … [W]e’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We're going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.
Trump, as we know, was successful in inciting crowd to storm the Capitol building and watched it unfolding on television with the rest of the nation. He was unabashed, as the court noted:
Even as the rioters continued to break into the Capitol, President Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth.”
During the riot, Greg Jacob, the Vice President’s counsel, finding himself and the other public officials endangered by the attacking mob emailed Eastman as follows:
“… thanks to your bullshit, we are now under siege.”
The court noted that Eastman had asserted his Fifth Amendment privilege against self-incrimination against producing any documents requested by the Select Committee and had asserted his Fifth Amendment privilege 146 times during his deposition.
As to application of the crime-fraud exception, the court considered whether President Trump and lawyer Eastman appeared to have committed three offenses: (1 obstruction of an official proceeding – Congress’ certification of the electoral votes on January 6, 2021 – in violation of 18 U.S.C. § 1512(c)(2); (2) a conspiracy to defraud the United States by interfering with the election certification process in violation of 18 USC § 371; and, (3) common law fraud in connection with the efforts of the president and his campaign to overturn the 2020 election results. The first two are the most convincing of these and the most important, since they are federal criminal statutes.
The key to the court’s analysis of the apparent 1512 violation is the analysis of “corrupt intent.” 1512 isn’t a strict liability offense; in other words, President Trump had to likely know “that the plan to disrupt the electoral Count was wrongful [.]” The court concluded this evidence was present based on the absence of any legal or factual justification or basis for the plan stating as follows:
President Trump and Dr. Eastman justified the plan with allegations of election fraud – but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful. Although Dr. Eastman argues that President Trump was advised several state elections were fraudulent, the Select Committee points to numerous executive branch officials who publicly stated and privately stressed to President Trump that there was no evidence of fraud. By early January, more than 60 courts dismissed cases alleging fraud due to lack of standing or lack of evidence, noting that they made “strained legal arguments without merit and speculated of accusations” and that “there is no evidence to support accusations of voter fraud.” President Trump’s repeated pleas for Georgia Secretary of State Raffensberger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.” Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.
The plan not only lacked factual basis but also legal justification. Dr. Eastman’s memo noted that the plan was “BOLD, Certainly.” The memo declared Dr. Eastman’s intent to step outside the bounds of normal legal practice: “we’re no longer playing by Queensbury Rules.” In addition, Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states. In the meeting in the Oval Office two days before January 6, Vice President Pence stress his “immediate instinct [] that there is no way that one person could be entrusted by the Framers to exercise that authority.”
The court also pointedly rejected the argument that any good faith belief regarding the merits or validity of Eastman’s legal theory or belief in the unconstitutionality of the Electoral Count Act excused the obstruction:
Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump new how to pursue election claims in court – after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.
On much the same grounds, the court concluded there was an apparent violation of 18 U.S.C. § 371.
Additional coverage found here: Federal Judge Finds Trump Most Likely Committed Crimes Over 2020 Election; Trump "Likely" Committed Crimes Trying to Stay in Power, Judge Says in Record Dispute.
Robert L. Abell
www.RobertAbellLaw.com
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