The Jan. 6 committee got a boost from a ruling on a confidential memo. What's next?
U.S. District Judge David Carter ordered Trump lawyer John Eastman to provide the confidential memo and 100 other emails to the House committee investigating the Jan. 6 Capitol attack.
- Federal courts have rejected Trump’s executive privilege claim to keep documents confidential.
- The 101 documents being released include nine that Eastman argued fall under attorney-client privilege.
- Documents include a memo from Eastman to Pence about throwing the race to the House for a Trump win.
WASHINGTON – A federal judge’s scathing ruling last Monday marked the first time in the House Jan. 6 investigation that a nonpartisan official reviewed confidential documents among the former presidents’ insiders and said they likely committed a crime.
It was a win for the committee, which has been facing stiff pushback from former President Donald Trump's allies, many of whom ignore subpoenas and sue to avoid turning over records – and a ticking reminder to finish working before the panel expires at the end of the year.
U.S. District Judge David Carter provided the tantalizing revelation in his ruling this week: A memo that Trump lawyer John Eastman sent to Rudy Giuliani would have been confidential if not for its “obvious” illegality.
In ordering Eastman to provide the memo and 100 other emails to the House committee investigating the riot, Carter said the document "may have been the first time" the former president's legal team mapped “a day-by-day plan of action” to overturn the 2020 election.
Attorney-client privilege does not apply when materials cover potential crimes.
Legal experts said it was "highly unusual" to reveal attorney-client messages because they could outline legal strategy and weaknesses.
"It seems like with this they will potentially have more evidence to suggest a criminal prosecution of Trump," said Melanie Sloan, a senior adviser for the nonprofit American Oversight. "That’s a pretty big thing to do though, to recommend a former president of the United States for criminal prosecution. But again, we’re in uncharted water altogether."
A prosecution memo?
Carter was alarmed enough by the confidential documents he reviewed to rule Trump and Eastman “more likely than not” acted illegally in conspiring before the attack. But Trump spokesperson Taylor Budowich dismissed the finding as partisan. Eastman's lawyer said Eastman and Trump aren’t necessarily guilty of a crime because Carter's ruling was based on "cherry picked" evidence from the committee.
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The ruling gives the House committee more documentation of legal maneuvering that led to the deadly Jan. 6 attack and a minute-by-minute account of what happened that day.
Trump allies have pursued a number of avenues to block the committee, but Carter's ruling is just the latest court victory for the House panel.
Carter’s incendiary decision also highlighted the legal jeopardy facing Trump if the Justice Department decides to prosecute him. Neal Katyal, a former acting solicitor general, said the ruling basically explained why the prosecution of Trump is necessary.
“Their campaign was not confined to the ivory tower – it was a coup in search of a legal theory,” Carter wrote. “The plan spurred violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process.”
The clock is ticking because the committee is only authorized to complete its work this year. Lawmakers plan public hearings "in the coming months," but legal wrangling has delayed the probe.
Committee members already have urged the DOJ to act more aggressively while awaiting a decision on whether former White House Chief of Staff Mark Meadows will be charged with contempt for defying a committee subpoena. Attorney General Merrick Garland said at the anniversary of the attack that the department would pursue charges wherever the facts lead.
“The Department of Justice must act swiftly,” committee member Rep. Elaine Luria, D-Va., said at a separate panel meeting last Monday. “Attorney General Garland, do your job so that we can do ours.”
How do Eastman records fit in?
The Eastman decision came as the committee continues to assemble testimony, administration records and other documents into a narrative about the Jan. 6 attack. The committee has interviewed more than 700 people and gathered thousands of pages of documents.
Rep. Liz Cheney, R-Wyo., said testimony from a dozen Trump White House staffers and from Trump appointees at the Justice Department described how the former president and his team were warned repeatedly about how their efforts to overturn the election would violate the law and Constitution and could turn violent.
But nearly two dozen federal lawsuits are still pending against the committee to block the release of phone records, financial documents and Republican Party fundraising records.
The litigants include former Trump staffers such as Meadows, Stephen Miller and Sebastian Gorka, and defendants charged with crimes from Jan. 6 such as Kelly Meggs, who is charged with seditious conspiracy.
"Our committee will continue to litigate, to obtain the testimony we need," Cheney said. "We have already defeated President Trump's effort to hide certain White House records behind a shield of executive privilege."
Documents show Eastman emailing Pence staffer on Jan. 6
About 140 police officers were injured and Congress temporarily halted the count of Electoral College votes on Jan. 6 as a mob of Trump supporters ransacked the building.
The documents in question include Eastman's memo outlining how Vice President Mike Pence could engineer a Trump victory, the memo (written by someone else) that Eastman sent to Giuliani about how the strategy could play out and Eastman's emails during the attack Jan. 6.
The Eastman memo said Pence, in his role as Senate president, could reject Electoral College votes from contested states and throw the race to the House of Representatives. The majority of state delegations are controlled by Republicans, so they could have reelected Trump, according to the memo.
“It’s just a very, very bizarre and exotic kind of idea that it’s hard to believe that they took it seriously,” said Ross Baker, a political science professor at Rutgers University. “I think they were grasping at straws, they were desperate.”
Lawmakers are eager to learn more about the memo. Baker noted that Eastman had clerked for respected former federal Circuit Judge Michael Luttig and risen through respectable legal channels. Luttig has publicly stated Eastman’s analysis was “incorrect at every turn,” according to Carter.
“Here’s a guy who’s really lost the track,” Baker said of Eastman.
Carter recited a series of emails Eastman sent Jan. 6 to Pence’s counsel, Greg Jacob, blaming the vice president for the riot and repeatedly urging a delay in certifying Biden’s election. But during an Oval Office meeting Jan. 4, Pence had said consistently he didn't have the authority to carry out Eastman's proposal, Carter wrote.
At 2:25 p.m. on Jan. 6, Eastman wrote: “The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.”
At 6:09 p.m., Eastman emailed that adjourning Congress to allow state legislatures to continue their work was the “most prudent course.”
At 11:44 p.m., Eastman sent a final email to persuade Jacob to change his mind: “I implore you to consider one more relatively minor violation and adjourn for 10 days.”
But Jacob spent hours refuting each part of Eastman’s plan. At 2:14 p.m. Jan. 6, Jacob's email said he ran down every legal trail and concluded the legal framework was "essentially entirely made up.”
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'Highly unusual' to release messages between attorneys and clients
The release of attorney-client messages is rare, according to legal experts.
“If you get communications between an attorney and a client, it gives you crystal clear insight not only into the arguments that are being made, but into the larger strategy development that’s going on between the attorney and the client," said John Anderson, a former U.S. attorney in New Mexico who is now a partner at Holland & Hart.
Eastman worked for Trump on several challenges to the 2020 election. Eastman represented Trump in December in a Supreme Court case between Texas and Pennsylvania over election results, and he appeared on Trump's behalf in a Georgia election lawsuit Jan. 5.
Ex-president in the crosshairs: Jan. 6 committee puts Trump on notice as US marks riot anniversary
Carter found Eastman and Trump “clearly” had an attorney-client relationship. Jason Batts, a Kentucky county prosecutor who has published articles on attorney-client privilege in national legal journals, said the long-standing purpose of attorney-client privilege is to make clients feel comfortable speaking openly with their lawyers.
"I think it is a big deal to receive any communications between a client and his or her attorney," Batts said. "And that’s why the standard to overcome the protections that are afforded by attorney-client privilege are so kind of objectively set high."
At the Justice Department, the review of such requests can go all the way to the attorney general, Anderson said.
“It’s highly unusual for an investigator, certainly the Department of Justice, to try to pry into an attorney’s communications with a client," Anderson said.
Engaging in criminal activity forfeits attorney-client privilege
Carter ruled 101 of the 111 contested documents could be released to the committee. For the 10 kept confidential, Carter said nine discussed arguments or future litigation. The tenth was an email on Jan. 6 at 6:03 p.m. responding to a request to work with Eastman on Trump’s behalf, which Carter said wasn’t “itself in furtherance” of the plan.
Carter released the rest because many of the emails were sent to third parties in addition to Trump, they weren’t prepared in anticipation of litigation, they simply sought academic articles, they were messages to state lawmakers or they had only logos or blank pages.
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Another reason emails between a lawyer and client could be released is if they involved criminal activity.
“You’re not privileged to conspire with your client to commit or to further a criminal offense," Anderson said.
Batts said the underlying theme in Carter's decision was that attorney-client privilege does not apply to criminal wrongdoing.
“If you hired me and said, ‘I’m gonna ask you some legal questions,’ and said ‘I’d like to know how best to commit this crime,’ or ‘I’m committing this crime. I think I may be being investigated. What do you advise?’ My advice would be, ‘You need to hire another attorney because I have to tell everyone what you just told me.’"
Budowich, the Trump spokesperson, called Carter's decision “absurd” and “baseless” from a judge appointed by Democratic President Bill Clinton.
Charles Burnham, a lawyer representing Eastman, said only one document was released to the committee based on potential criminal discussions. But he said Carter's decision was based on "cherry picked" evidence from the committee and didn't necessarily meet the burden of proof beyond a reasonable doubt for a criminal conviction.
"Dr. Eastman has an unblemished record as an attorney and respectfully disagrees with the judge’s findings," Burnham said.
What's next for the committee?
The committee's action will eventually become public after planning hearings early this year. The committee hasn't scheduled its next public meeting, but continues to meet privately with witnesses and gather evidence for an anticipated report.
Thorny decisions remain. The committee must still decide whether to subpoena witnesses such as fellow House members House Minority Leader Kevin McCarthy, R-Calif., and Rep. Jim Jordan, R-Ohio, who spoke to Trump on Jan. 6 but have refused to testify voluntarily. The committee could also potentially subpoena Trump and Pence.
Cheney said the committee would convene a series of hearings about its findings "in the coming months."
"The American people will hear from our fellow citizens who demonstrated fidelity to our Constitution and the rule of law, and who refused to bow to President Trump's pressure," she said.