John Eastman claims attorney-client privilege over thousands of pages sought by Jan. 6 investigators

[brooklynite]

Source: Politico

Attorney John Eastman, a close ally of Donald Trump amid his effort to subvert the 2020 election, has attempted to shield more than 10,000 pages of emails and counting from congressional investigators, citing attorney client or attorney work-product privileges.

The staggering total comes amid a court-ordered review by Eastman of more than 94,000 pages of emails the Jan. 6 select committee has subpoenaed from Eastman’s former employer, Chapman University. Eastman sued to block the subpoena but a federal judge last month denied that effort and ordered him to begin reviewing the emails and itemizing his privilege claims.

In a court filing early Monday, Eastman said he has reviewed about 46,000 pages — nearly half the total — and provided about 8,000 to the committee. About 27,000 were automatically withheld because they were considered boilerplate mass emails, like campaign solicitations or newsletters. Eastman has attempted to shield the remaining 11,000 from the select committee by citing one of the attorney related privileges. With half of the review remaining, it’s likely that total will climb.

Last month, the judge in the case, U.S. District Court Judge James Carter, ordered Eastman to review 1,500 pages per day and determine whether any privileges apply. Carter, who has emphasized the urgency of the Jan. 6 investigation, required Eastman to produce a daily log of documents he is withholding to give committee investigators a chance to object to his privilege claims. Carter has said he intends to review any disputed documents as Eastman nears completion of his full review.

Read more: https://www.politico.com/news/2022/02/14/john-eastman-jan-6-investigation-00008560

[gab13by13]

1. I'm sorry, I can't help it,

I become dismayed when I learn that the select committee is investigating instead of DOJ.

[Ocelot II]

2. How do you know the DoJ isn't investigating?

Criminal investigations usually aren't revealed to the public until they go to a grand jury, and maybe not even then.

[agingdem]

7. thank you...that's what I've been saying for months

this isn't like the Mueller/Russia investigation...it leaked tantalizing little tidbits (it's Mueller time)...and then nothing..Rosenstein narrowed the scope, Mueller was afraid to color outside of the lines, Barr co-opted the report and that was the end of that...Garland's DOJ is shrouded in secrecy, no leaks, no daylight...good

[brooklynite]

3. And you know the DOJ is NOT investigating, because....why?

[emulatorloo]

21. Because their broken crystal ball told then so

[KPN]

12. Likewise ... though I'm certainly glad they are. I'm also hopeful that Garland is actually doing

more than I think he is, but must say I am worried he is not and can't help but wonder whether Joe is monitoring and putting any pressure on him to do so if not. Time's awaisting!

[emulatorloo]

22. DOJ is supposed to be independent of the President. Barr's and Trump's perversion of that was not

right

[KPN]

25. I understand and orinarily I would fully agree. But these are not ordinary times.

While in ordinary times I would expect nothing less, this stuff is existentially important and needs to be treated as such in my view. I'd give Joe a pass and actually my support on this particular one.

[melm00se]

4. The Courts have been quite clear

on attorney-client privilege

Upjohn Co. v. United States

The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. 8 J. Wigmore, Evidence § 2290 (McNaughton rev.1961). Its purpose is to encourage full and frank communication between attorneys and their clients, and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client. As we stated last Term in Trammel v. United States, 445 U. S. 40, 445 U. S. 51 (1980)...

there is more at the link but the core of this is that the attorney-client privilege is and should be extremely difficult to pierce.

[csziggy]

17. Isn't that negated when there are future crimines involved?

Tips for Addressing Crime-Fraud Exception to the Attorney-Client Privilege in Civil Cases
It is important to understand the reasoning behind this exception to the privilege, using federal law as a guide.
By Fritz Riesmeyer and Emily Crane

Trial counsel is increasingly called upon to address an exception to the attorney-client privilege known as the crime-fraud exception. Under this exception, a request is made for communications between a client and its attorney, based upon allegations that the legal advice was used in furtherance of an illegal or fraudulent activity. Such a request can be made before, during, or after trial, and can effectively derail discovery or trial.

It is important to understand the reasoning behind this exception to the privilege, using federal law as a guide. The Supreme Court set forth its reasoning in a 1989 decision, as follows:

The attorney-client privilege is not without its costs. Since the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose. The attorney-client privilege must necessarily protect the confidences of wrongdoers, but the reason for that protection–the centrality of open client and attorney communication to the proper functioning of our adversary system of justice–ceases to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing. It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the “seal of secrecy” between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.

U.S. v. Zolin, 491 U.S. 554, 562-63 (1989).

More: https://www.americanbar.org/groups/litigation/committees/business-torts-unfair-competition/practice/2018/tips-for-addressing-crime-fraud-exception-to-attorney-client-privilege-in-civil-cases/

Emphasis added.

[melm00se]

23. yes but the bar for this is pretty darn high

It is up to the party seeking to pierce this veil with show that such a situation exists.

They cannot compel disclosure of the documents to prove their case. That creates a 5th Amendment issue.

[KPN]

26. Wouldn't it be fairly east to show that the situation did exist at the time it occurred. There is

plenty of publicly revealed evidence to this effect already I would think. That's my hope at least. If my hope is misplaced, then we are totally screwed in my opinion; democracy will be a lost cause -[- at least for decades.

[rsdsharp]

27. Try telling the authorities they can't execute a search warrant

because it raises a Fifth Amendment issue.

[melm00se]

28. There is not much you can do while it is being executed

but if it shouldn't have been executed or signed, all the evidence would be booted on appeal.

[rsdsharp]

29. And if the warrant is not defective, and it rarely is,

the government has “compel[led] disclosure of the documents to prove their case,” without raising Fifth Amendment issues.

[L. Coyote]

5. But his e-mails.

Link to tweet

[Ocelot II]

6. A lawyer can't use attorney-client privilege to cover up a crime if he was involved in it.

Also, I'm willing to bet that people other than the "client" (and who is the actual client?) were cc'd on some of those emails, and if so the privilege doesn't apply even if it would otherwise. The work product privilege is even narrower; it applies only to materials produced in anticipation of litigation, but these documents were prepared in anticipation of insurrection, not litigation.

[oldsoftie]

10. Good point. His plan to overturn the election should be viewed as an illegal act

[PatSeg]

11. Excellent points

Of course it isn't surprising that Eastman tried to use it. These people are running out of options.

[PortTack]

14. Exactly! Eastman is involved in the cover up no doubt

[LastLiberal in PalmSprings]

8. Isn't there a way for a neutral party to examine each dcument an determine

whether it falls within the attorney-client privilege? After all, it's a privilege, not a right.

Documents involved in committing a crime are surely an exception to this "privilege" argument, otherwise a defendant could claim that an email he sent to his lawyer describing in great detail a crime he was going to commit or had committed was protected by attorney-client privilege.

A witness who wants to assert his Fifth Amendment right can't do it by simply saying, "All my testimony is protected by the Fifth Amendment." He has to do it question-by-question, which one of TFG's henchmen did while testifying to the select committee. He did it 500 times, if I recall.

There's always a way to get documentary evidence.

[Ocelot II]

20. The judge would do that.

[bucolic_frolic]

9. Why isn't the review being handled by a special master?

Someone without so much vested interest.

[csziggy]

18. Good question! nt

[C_U_L8R]

13. Has he offered documentation that Trump was actually his client?

They sound more like co-conspirators.

[Historic NY]

15. They are running the damn clock out...

if Democrats lose the house, the committee will be under Jordan and the shredders will work overtime for the win. That is the God Damn ballgame . Someone ought to have that conversation with Biden and Garland.

[ancianita]

16. The judge-approved "review" sounds like an opportunity to destroy evidence.

From what District and state is this judge? I can't find him.

[ancianita]

19. U.S. District Court Judge James Carter: looked up all the circuit & district judges, can't find him.

I don't think Google can, either.

[DallasNE]

24. Don't Understand The 27,000 Being Withheld

Because they are "boilerplate mass emails, like campaign solicitations or newsletters." If the money from the solicitations was part of the expenses then that is J6 related, as I see it. Same with the newsletters if they mentioned a rally in DC on or around January 6th. The issue of relevance is not Eastman's to make.

[Grins]

30. Trump was the client? Show me the retainer check.

Eastman is traitor, like hundreds (thousands?) of other Republicans.