On Monday, a federal court in California ordered attorney John Eastman to turn over 101 emails that he claims were covered by attorney-client privilege to the House select committee investigating Jan. 6, 2021.
The court ruled that Eastman, the lawyer who authored two memos that were the legal blueprint for Trump’s bloodless coup, likely violated the law, meaning his emails would be discoverable under the crime-fraud exception to attorney-client privilege. Notably, the court also found that Eastman’s client, Trump, likely committed federal crimes in his effort to overturn the 2020 election.
Judge David O. Carter’s 44-page opinion concludes that Trump and Eastman “more likely than not … corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021,” and with deceitful intent conspired to defraud the United States.
Those are the two crimes, 18 USC §§1512(c)(2) and 371, most commonly mentioned as a basis for indicting Trump over his soft coup attempt.
Of course, prosecutors carry a heavier burden than proving it “more likely than not” that a crime was committed. But that conclusion coming from a federal court should be viewed as rocket fuel to launch an aggressive investigation of the former president, the signs of which have continued to be lacking from Attorney General Merrick Garland. The court’s conclusions will fortify those inside the Justice Department arguing for a change of the current apparent course.
As Carter noted, it seems quite apparent that Trump and Eastman knew that what they were trying to make happen was wrong. As Carter writes:
President Trump’s repeated pleas for Georgia Secretary of State [Brad] Raffensperger 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.
Eastman likely had a similar “corrupt intent,” the judge concluded, citing the testimony of former Vice President Mike Pence’s attorney Greg Jacob. “[Dr. Eastman] acknowledged that he didn’t think Kamala Harris should have that authority in 2024; he didn’t think Al Gore should have had it in 2000; and he acknowledged that no small government conservative should think that that was the case,” Jacob testified.
Carter further wrote that Jacob testified that Eastman acknowledged just how corrupt his plan would be, as “[y]ou would just have the same party win continuously if [the] Vice President had the authority to just declare the winner of every State.” As the judge concluded, Eastman’s “plan was driven not by preserving the Constitution, but by winning the 2020 election.” Again, this all just further builds the case for criminal prosecutions.
Indeed, earlier this month, a D.C. jury convicted insurrectionist Guy Reffitt of violating §1512(c)(2), the same statute Carter cites. That verdict followed the guilty pleas to the same offense or conspiracy to commit it by two other far-right militants who participated in the insurrection: Proud Boy Matthew Greene on Dec. 8 and Oath Keeper Joshua James on March 2.
While both men were direct participants in the violence, Garland previously pledged to “follow the facts wherever they lead” and to hold “all Jan. 6th perpetrators, at any level, accountable under law—whether they were present that day or were otherwise criminally responsible for the assault on our democracy.”
As positive a development as Monday’s federal court ruling is, no one should hold their breath in anticipation of seeing Eastman’s emails anytime soon. Eastman will seek a stay in the U.S. Court of Appeals for the 9th Circuit pending his appeal of the order, and if unsuccessful there, he will go to the Supreme Court.
If that happens, watch for whether Justice Clarence Thomas recuses himself. It was just last week that we learned that the select committee already has 29 text messages between his wife, right-wing operative Ginni Thomas, and Mark Meadows, Trump’s former chief of staff, in which she encourages Meadows to help overturn the election.
During these exchanges, Ginni Thomas referred cryptically to being boosted by a “conversation with my best friend just now.” Whether or not Thomas is that best friend, Ginni Thomas is clearly implicated by all of these emails and by her attendance at the Jan. 6 rally, and the justice clearly has a duty to recuse himself from the Eastman litigation and any other Jan. 6 lawsuits that might implicate his wife.
Notably, Eastman was once a law clerk for Thomas. On Jan. 4, two days before the insurrection, Eastman told Jacob that he believed Thomas and one other justice would support his plan if Pence decided to delay the certification and send the issue of certification back to the states. (Eastman backed off that assertion when Jacob challenged him.)
Monday’s decision is significant for its flashing-red-light conclusion:
this case is a warning about the dangers of ‘legal theories’ gone wrong, the powerful abusing public platforms, and desperation to win at all costs. If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution.
Carter captures the whole misadventure in one elegant line: Trump’s and Eastman’s unprecedented campaign to overturn the election was “a coup in search of a legal theory.”