Here we go again. Ideally, second verse, same as the first.

Trump attorney John Eastman, the man who was propelled by sheer desperation to come up with the idea of bringing alternate electors to the December 15th count and then argued that Pence had the power to throw out Electoral College votes, is back claiming attorney-client privilege protects him from the House Select Committee’s investigation.

Yes, you have heard a version of this story before but the difference will be explained below.

Eastman’s global claim of attorney-client privilege has already been shot down by California Fed. District Court Judge David Carter, who famously noted that it was more likely than not that Eastman and Trump committed a crime. The privilege doesn’t protect an attorney and client conspiring to rob a bank or execute a coup. Now Eastman is asserting that all of his 37,000 emails involving work for Trump – not just those focused on January 6th,  are subject to attorney-client privilege and attorney work product.

As summarized by Politico:

The Jan. 6 select committee has objected to “every claim” over those pages, which now sends the gargantuan dispute to U.S. District Court Judge David Carter for a case-by-case review.

If Carter finds legitimate legal advice, the documents are protected. One can safely presume that the vast majority of the emails will be irrelevant anyway, and only a few dozen will be critical. It is a massive task. Evidently, the process has been ongoing.

Admittedly, both Politico’s reporting and the case structure are vague and some of it seems inconsistent:

Eastman revealed the scope of the dispute in a status report to Carter, concluding a three-month review that Carter demanded he undertake. Since January, Eastman has been reviewing 1,000 to 1,500 pages per day.

It is difficult to understand why Eastman would have made the assertion yesterday if Judge Carter began parsing the emails in January. But Politico attempts an explanation:

The emails are all drawn from Chapman University, where Eastman was employed until shortly after Jan. 6. The committee subpoenaed Chapman to obtain the emails, but Eastman sued the school and the select committee to slow the process. Carter then ordered the review that Eastman undertook.

The select committee urged Carter to prioritize documents sent from Jan. 4 to Jan. 7, 2021, the key period of the panel’s review. That narrower review resulted in Carter’s bombshell ruling about likely criminality by Trump. But now Carter must turn to the broader review of Eastman’s emails stretching back to Nov. 3, 2020, the date of the presidential election.

That makes the situation somewhat clearer, though Eastman was clearly trying to buy time because given the Committee subpoenaed his records from the University, it would have made far more sense for Eastman to sue the Committee directly. Eastman is already on shaky ground, having his attorney-client emails stored on a University computer system. But given the reporting, the issue must not have come up.

Regardless, we know that Judge Carter does not have a lot of sympathy for Eastman’s claims regarding “legal advice” and one might suspect a very similar ruling regarding the more expansive review as the focused request.

Depending upon what Carter decides, there’s a good chance that he can use large parts of his first ruling in the upcoming, more expansive review, second verse, same as the first. We hope.

 

 



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