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Judge Rejects John Eastman’s Effort to Hide Files from the Jan. 6th Committee

And spells out a plan for his compliance with the committee’s subpoena.
January 31, 2022
Judge Rejects John Eastman’s Effort to Hide Files from the Jan. 6th Committee
John Eastman outside of CU Boulder on Thursday, April 29, 2021. (Photo by Andy Cross/MediaNews Group/The Denver Post via Getty Images)

John Eastman, who spearheaded the fake legal justifications for tossing the certification of the 2020 Electoral College votes in hopes of overturning Joe Biden’s election and returning Donald Trump to the White House, continues to make news. The House Jan. 6th Committee wants to know what he knows. Chapman University, where Eastman was a law professor until his forced retirement on Jan. 13., 2021, has said that it will comply with a subpoena from the committee as to some 19,000 Eastman-related emails and memoranda still in the university’s possession. In response, Eastman has sued both the committee and the university, citing yet another slew of shaky legal theories.

David O. Carter, U.S. district judge for the Central District of California, is having none of it.

Eastman penned the infamous two-page memo (which he later called “a preliminary, incomplete draft”) and a subsequent six-page memo outlining a legally bogus plan to snatch the presidential election from the voters. The scheme had Vice President Mike Pence duly counting Electoral College votes on Jan. 6, 2021 but “when he gets to Arizona” announcing “that he has multiple slates of electors.” The plan entailed filing with the National Archives and submitting to Congress illegitimate slates of electors from seven states that Trump lost, a ruse designed ultimately to give Pence cover—in Eastman’s words—to “gavel[] President Trump as re-elected.”

On Jan. 4, 2021, Eastman met with Trump and Pence in the Oval Office to discuss these plans. Two days later, standing next to Rudy Giuliani at the White House rally on Jan. 6th, Eastman shouted: “All we are demanding of Vice President Pence is this afternoon at one o’clock he let the legislatures of the states look into this so we get to the bottom of it and the American people know whether we have control of the direction of our government or not!” The crowd then moved toward the Capitol to see that his demand was carried out.

By refusing to follow Eastman’s instructions, Pence undoubtedly saved the United States from constitutional catastrophe. And he did so while risking his own life: The images of Pence being escorted from the Senate chamber, of the gallows erected to hang him as a traitor, of rioters chanting “hang Mike Pence,” will be lasting reminders of that day’s disturbing events.

The fake electors scheme is rife with criminal red flags, including possible forgery, conspiracy, and election fraud. Deputy Attorney General Lisa Monaco stated last week that prosecutors “are looking at” the fake electoral ballots submitted by Republicans from seven states that Biden won. Meanwhile, Eastman’s memos have landed him in trouble with the California Bar for possible violations of legal ethics rules, including counseling his client to violate the law, misstating the facts and the law to his client and to a tribunal, filing a meritless claim, and failing to uphold the Constitution. And in response to the Jan. 6th Committee’s subpoena, Eastman said that he would avail himself of his Fifth Amendment right against self-incrimination—which he reportedly did 146 times during an interview with the committee.

It is worth noting that Eastman’s Jan. 6th memos weren’t his only attempt to overturn the Electoral College results. He filed on Trump’s behalf a motion in support of an illegitimate lawsuit brought by Texas Attorney General Ken Paxton seeking to cancel the Electoral College votes of Georgia, Michigan, Pennsylvania, and Wisconsin. (The Supreme Court tossed it out on Dec. 11, 2020.) And Eastman pushed the envelope earlier in 2020 as well: He wrote an August 2020 op-ed in Newsweek claiming that Kamala Harris is ineligible to be vice president because she supposedly fails to meet the constitutional requirement of being a “natural born Citizen”—a notion so explosive (not to mention wrong) that the magazine’s editors felt compelled to append an awkward apology atop the article.

Let’s turn back now to Eastman’s clash with the Jan. 6th Committee. Last week, Judge Carter denied Eastman’s emergency motion to enjoin the committee’s requests for information, slicing through his arguments like a hot knife through butter. A sampling:

  • Carter rejected Eastman’s claim that the committee was acting “without a legitimate legislative purpose.” Not only are there “numerous legislative measures that could relate to Dr. Eastman’s communications,” but “Dr. Eastman’s actions clearly fall within the bounds of an investigation into ‘the influencing factors that fomented . . . an attack on American representative democracy,’” as set forth in the committee’s charter.
  • Carter rebuffed Eastman’s claim that the committee was infringing on his First Amendment rights to free speech: “The public interest here is weighty and urgent,” and the Constitution does “not afford a witness the right to resist inquiry in all circumstances.”
  • Eastman claimed the subpoena violates his Fourth Amendment rights because it is too broad. Carter shot back: “The documents and communications sought are directly within the scope of the Select Committee’s legislative purpose of investigating the January 6 attack on the Capitol.”
  • Eastman’s claim that documents in Chapman University’s possession are protected by the attorney-client privilege because “he accepted pro bono and privately retained clients in addition to his academic work” also fell short, Judge Carter determined, since Eastman hadn’t bothered to identify any specific communications that would conceivably fall within the privilege in the first place.

Carter also issued an unusual order last week outlining step-by-step deadlines and procedures for responding to the Jan. 6th Committee’s subpoena—an obvious effort to make it hard for Eastman’s team to run out the clock through cute maneuverings and delays. (Eastman had told the court that he was “not willing to agree to particular deadlines or requirements beyond those contained in the subpoena itself and the Court’s orders.”)

Carter directed Eastman to “use an electronic discovery program” to sort through the documents (something that lawyers do as a matter of course these days); to number the pages by January 28 (ditto); to review and process “1500 pages per business day” and “notify the Court of any issues he faces in maintaining that pace” (this one borders on patronizing); to “each business day” produce responsive documents and log any he considers privileged (also too basic to mention); and to file any disputed documents under seal with the court for resolution.

These basics are the stuff of first year law school. The fact that a federal judge felt it necessary to go to such lengths with a lawyer with Eastman’s credentials is sad—not just for the Jan. 6th Committee and its important work, but for the legal profession itself.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.