WASHINGTON — Conservative lawyer John Eastman must give 159 more emails to the House Select Committee investigating the Jan. 6, 2021, attack on the Capitol, including one a judge says is evidence of a likely crime related to the effort to overturn the 2020 presidential election.
U.S. District Judge David O. Carter, who is based in Santa Ana, California, ordered Eastman late Tuesday to provide the emails to the committee, which begins a series of hearings Thursday laying out the results of its more than 10-month investigation. Carter modified his order Wednesday to require Eastman to finish releasing the documents by June 13.
Included is a Dec. 22, 2020, email that pertains to a potential crime and must be disclosed, Carter wrote in his order Tuesday. The committee has argued in court that attorney-client privilege between Eastman and Trump would not apply to evidence demonstrating crime or fraud.
The email considers whether to ask the courts to rule on the proper interpretation of the Electoral Count Act and risk a court finding that the act prevents Vice President Mike Pence from rejecting electors.
"Because the attorney concluded that a negative court ruling would 'tank the January 6 strategy,' he encouraged the legal team to avoid the courts. This email cemented the direction of the January 6 plan," Carter wrote in his order. "The Trump legal team chose not to seek recourse in court — instead, they forged ahead with a political campaign to disrupt the electoral count. Lawyers are free not to bring cases; they are not free to evade judicial review to overturn a democratic election."
After refusing to provide documents to the committee and pleading the Fifth Amendment at his deposition, Eastman sued to block the release of emails housed on the server of his former employer, Chapman University in Orange, California. In a March order that Eastman must turn over 111 other emails, Carter said that Trump "more likely than not" attempted to illegally obstruct Congress when he tried to overturn Joe Biden's victory in the 2020 election.
Eastman's lawyer Charles Burnham responded to the order in a statement Wednesday, saying: "The Court ordered a single document produced pursuant to the so-called crime-fraud exception. The Court had previously ordered one other document produced pursuant to the crime-fraud exception in a March 28 order. Neither document was authored by Dr. Eastman or addressed to Dr. Eastman's client, former President Donald Trump.
"As was the case with the Court's March 28 order, the Court's crime-fraud findings were not subject to the presumption of innocence, proof beyond a reasonable doubt, or any of the other constitutional protections normally applicable to criminal proceedings."
Eastman is the architect of the legal theory at the root of Trump's attempt to overturn the presidential election: that Pence could declare the results in several states in dispute, and those electoral votes would go uncounted. Doing so would have turned Trump from the loser to the winner.
In his Tuesday order, Carter took a close look at five emails that might be exempt from attorney-client privilege because they demonstrate fraud or other crime, but found that only one did.
The other emails Eastman must release include discussions about Eastman's proposal for Pence to reject or delay counting electoral votes on Jan. 6, 2021, and actions alternate state electors could take in the days leading up to Jan. 6. Others involve conversations with state lawmakers and members of Congress.
Ten emails relate to meetings that Eastman joined in early December with a group led by a "high-profile" leader, strategizing ways to overturn the election.
"Five documents include the agenda for a meeting on December 9, 2020," Carter wrote. "The agenda included a section entitled 'GROUND GAME following Nov 4 Election Results,' during which a sitting Member of Congress discussed a '(p)lan to challenge the electors in the House of Representatives.'"
Carter also ordered Eastman to release three direct communications from Trump, which Carter said were not protected by his attorney-client relationship with the president. One was a handwritten note from Trump about the size of his rallies; the other two were relayed by Trump's executive assistant and sought advice for reframing Trump's public statements about a plan to send alternate slates of electors to Congress — an element of the effort to overturn the election.
Carter ruled that more than 400 emails related to representing Trump or his campaign, and sent by or for White House and Trump campaign staff, attorneys of record in court cases (including Eastman), and those attorneys' staff are protected work products and don't have to be released. Carter wrote that none are "pivotal" to the select committee's investigation.
