On June 22, federal agents raided former DOJ assistant attorney general Jeff Clark’s house in Northern Virginia in the early hours of the morning and reportedly forced Clark to wait outside in his pajamas while federal agents seized his electronic devices. On Monday, we learned that on the same day, federal agents also seized the devices of Trump attorney John Eastman as he was leaving a restaurant in New Mexico.
Coming on the heels of weeks of damning testimony before the Jan. 6 committee that these two men were integral to Donald Trump’s scheme to try to overturn the 2020 election, what can we discern?
It’s important to consider how both of these searches were conducted. First, why didn’t the federal agents simply ask Clark and Eastman to turn over their devices? Or simply provide either of them with a subpoena compelling them to turn the devices over?
The agents who were the affiants on the affidavits for both searches would have had to explain in detail to a federal magistrate or judge just why neither of the above options could be pursued before a raid on Clark’s premises and search of Eastman’s person could be approved.
The judiciary would have needed to hear a good reason for the use of what is considered an “extreme” investigative technique in pursuit of evidence in a criminal investigation.
That’s right, criminal investigation. The feds cannot execute a search warrant in a civil investigation. Raiding a residence in early morning hours can only be done via a criminal investigation. Investigating Clark—who Trump attempted to elevate to attorney general in the waning days of his presidency because Clark, according to testimony, promised to meddle in the election on his behalf— in particular would likely require the convening of a grand jury which would in this case also likely require the approval of Attorney General Merrick Garland.
We don’t yet know what is in the affidavit for the search warrant for Clark’s residence. But we can surmise that there was enough factual information to persuade a federal magistrate that there was “probable cause” to believe that evidence of a crime or crimes would be found in Clark’s residence. And that no other investigative technique would likely yield that same evidence. The agent in the Eastman search had to know that he carried on his person at all times the electronic device that was the subject of the search and would have so testified before the New Mexico Magistrate who approved the search.
Before the federal agents/affiants submitted the affidavits to a magistrate it is extremely likely that Garland, or other top DOJ officials, were convinced that appropriate probable cause was included in the affidavits.
What might have led to all of the above?
Would the fact that Clark pled the Fifth more than 100 times when testifying before the House Select Committee to investigate the Jan. 6 attack on the Capitol in February enter into it? Probably not. Everyone has the right to assert their constitutional protection against self-incrimination and taking the Fifth is not evidence of a crime. (Ironically, Trump has made his position on this issue crystal clear in the past. “The mob takes the Fifth,” Trump told a campaign crowd during the 2016 campaign. “If you’re innocent, why are you taking the Fifth Amendment?”)
Then what explains the search? Probable cause usually emanates from a third party that is closely associated with the subject of the search warrant. Someone has to possess specific knowledge with regard to the likelihood that there would be evidence contained on devices subject to the search. Not only would someone need some knowledge that there was likely damning evidence contained on the electronic devices, but that there existed reasonable certainty that those devices were in fact located inside the Clark residence or on Eastman’s person. (No other searches were known to have occurred with regard to Clark or Eastman.)
We can only surmise that the digital evidence of interest would be communications of interest: email, text messages, encrypted communications, voicemail, photos, video, and/or documents pertaining to the events surrounding the allegations of Clark’s and Eastman’s involvement in Trump’s scheme to overturn the election.
Since Clark would claim to be just “doing his job” as an attorney employed by the DOJ and at the direction of the commander-in-chief, though, would he not be afforded attorney-client privilege? And couldn’t the same privilege be expected by Eastman?
Attorney-client privilege contains a crime/fraud exception, so if Clark and Eastman were violating the law while representing their clients, they could not claim privilege. (Trump wasn’t Clark’s client, the U.S. government was.) The Jan. 6 committee has presented extensive testimony that Clark was warned what he was doing was illegal and potentially criminal by his superiors at the Department of Justice and White House lawyers. Meanwhile, a federal judge as part of his rulings in a separate civil suit has already accused Eastman of likely engaging in a crime related to his work on the election.)
What possible crimes could have justified such a search, though?
We can only speculate here, but the Jan. 6 committee has clearly honed in on two types of potential criminal conspiracies that Trump and his allies may have committed as part of the plot to obstruct the electoral count on Jan. 6:
1. Klein Conspiracy—wherein multiple people would have conspired to corruptly obstruct, impair, and impede lawful functions of government, in this case, certification by Congress of the presidential election results.
2. Seditious Conspiracy—same as above but including the use of force to attain the desired results.
Conspiracy requires evidence of an agreement by two or more people to commit a crime. Evidence of conspiratorial agreements can be demonstrated by emails, text messages, encrypted messages, Signal communications, voicemails, and a multitude of other digital evidence of communications between conspirators.
It’s possible federal agents already had one side of a communications chain (which would have provided probable cause for the search) between Clark or Eastman and other potential co-conspirators. They now may very well be in possession of another side.
As already noted, on Monday we learned that Eastman also had his phone seized by federal agents later in the same day as the morning raid at Clark’s house in Virginia. Could that have just been a coincidence? Maybe not. The Jan. 6 committee in its hearing last week made significant effort to suggest that Clark’s proposed letter that would have instructed the Georgia state legislature to reconsider its electoral college vote due to fraud and award its electors to Trump was similar to the legal work product Eastman was producing for Trump.
This possibility raises other potent questions—are there other potential search warrant targets that we haven’t learned about yet? Is there a source of information cooperating with federal agents and DOJ with regard to any of the above potential conspiracies?
And what would such a source, or sources, possibly gain in return for hypothetical cooperation?
It’s possible we may learn more at Tuesday’s surprise hearing of the Jan. 6 committee. Even if not, it’s only a matter of time until we learn the results of this DOJ probe.