A federal judge’s extraordinary assertion last week that former President Trump likely committed felonies connected to the Jan. 6 Capitol insurrection marked a milestone for the House committee investigating the attack.
It also underscored the perilous stakes for Trump’s former lawyer, California attorney John Eastman, who has emerged as one of the key figures in the congressional probe.
Eastman was the architect of the legal theory at the root of Trump’s attempt to overturn the presidential election, a plan that U.S. District Judge David O. Carter denounced as obviously illegal.
Carter reached his conclusion relying on evidence in a federal lawsuit Eastman brought to prevent Congress from obtaining his emails and documents. The judge found that Trump and Eastman “more likely than not” conspired to obstruct Congress on Jan. 6.
Such a statement doesn’t mean charges will be filed but puts pressure on the Justice Department to act.
Carter, whose California court district includes Los Angeles, rejected Eastman’s claim that the materials were privileged between attorney and client, ruling Eastman must turn over more than 100 emails to the House committee.
Though the order applies to just a small portion of the emails being sought, it hints at the broader legal exposure that Eastman may face as more is unearthed about his work with Trump.
Already, Eastman has faced substantial fallout from his increasingly public role as Trump’s attorney, including an abrupt resignation from his position at an Orange County law school and an ethics investigation by the California State Bar.
“Judge Carter looked at the evidence that’s available and concluded this was an attempted coup in search of a legal investigation,” said Erwin Chemerinsky, dean of UC Berkeley Law School. “No judge comes to such a conclusion lightly. But everything that we know about what happened supports what Judge Carter said.”
The spotlight grows
Beyond Trump, Eastman has become perhaps the most significant figure in the committee’s investigation, with House General Counsel Douglas Letter calling Eastman the “central player in the development of a legal strategy to justify a coup.” The spotlight on his role is only expanding.
Eastman did not respond to an interview request made through his attorney.
Less broadly known than others on Trump’s legal team like Rudolph W. Giuliani and Sidney Powell, Eastman has long been a prominent voice in conservative circles.
The constitutional scholar clerked for Supreme Court Justice Clarence Thomas before joining the faculty at Chapman University’s law school, where he taught for 21 years and served a three-year tenure as dean. He also is a longtime leader at the Claremont Institute, a right-wing think tank based in Upland, and he founded the affiliated law firm, Center for Constitutional Jurisprudence, which represents conservative clients.
Eastman and Trump found common cause in their opposition to birthright citizenship, in which any child born in the country is automatically bestowed with citizenship. Eastman had argued for years against the constitutionality of that principle — a theory largely rejected by legal scholars — and wrote a widely publicized opinion piece in 2020 questioning whether Kamala Harris, as the American-born child of immigrants, qualified to be president. He emerged as an influential legal advisor to Trump during that campaign and right after.
The weekend after the election, Trump aides invited Eastman to help them put together a legal brief to challenge the election results in Pennsylvania. In December, Eastman filed two briefs on behalf of Trump asking the Supreme Court to overturn the election results. The effort quickly failed.
Eastman was part of a Jan. 2 call, reportedly including Trump, in which he briefed 300 GOP lawmakers from several states in a strategy session on decertifying 2020 presidential election results. He testified before the Georgia Legislature Jan. 3, and was reportedly in the Trump legal team’s war room at the Willard InterContinental hotel in the days leading up to Jan. 6.
But the committee is focused on the two legal memos Eastman wrote. They advised Vice President Mike Pence that when Congress met Jan. 6 to certify the electoral college count, he could declare the results in several states in dispute and those electoral votes would go uncounted. Doing so would have turned Trump from the loser to the winner.
Or if Pence wouldn’t take such an extreme step, Eastman provided an alternative. Though the Constitution states Congress must certify the electoral college results on Jan. 6, Eastman proposed Pence delay the certification to give state lawmakers time to select new slates of electors who would vote for Trump.
Trump and Eastman repeatedly pressed Pence and his staff to follow Eastman’s advice in the run-up to Jan. 6. But Pence understood correctly that the Constitution limits the vice president’s role. The vice president presides in Congress on the day when the electoral votes are counted, but has no responsibility beyond opening the envelopes and announcing the state-by-state results.
Pence announced Jan. 6 he would follow the law, not the advice from Eastman.
Yet Eastman continued the pressure even during the riot, while Pence and lawmakers huddled in safe rooms as hundreds of people battled with police and broke windows to enter and ransack the building.
“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 that the American people can see for themselves what happened,” Eastman stated in an email to Pence’s lawyer, submitted as evidence by the House committee in Eastman’s lawsuit.
After the riot ended, Eastman again emailed Pence lawyer Greg Jacob to say that the vice president still should send the election back to the states rather than certifying it, based on what he called a “relatively minor violation” of the procedural law.
The House Select Committee’s focus quickly turned to Eastman. Following a subpoena, Eastman appeared before the committee in December but answered only biographical questions before invoking the 5th Amendment 146 times and refused to provide any documents.
When the committee subpoenaed his former employer Chapman University in January for the documents and emails Eastman sent from his university email address, the school agreed to comply, and Eastman sued,
Eastman told a group of conservative activists in Orange County last month that the university let him copy the documents and emails after he resigned in January 2021 following an uproar over his speech at a Jan. 6 rally before the riot. Eastman said he thought the university would delete the documents and emails.
Chapman’s lawyers told the court that as a former dean, Eastman should have been aware of the university policy that it owned any information kept on its server. The university president explicitly said in a December 2020 public statement that Eastman was told not to use his university account to work on Trump legal issues.
An unexpected result
Eastman might not have anticipated that the judge would go so far in his statements about potential criminal activity.
The committee has used the lawsuit to release some key evidence it had gathered so far, including excerpts from multiple depositions where witnesses said Trump was repeatedly informed he had lost the election and that his fraud claims were unfounded, but that Trump rejected the facts and continued to mislead his supporters and demand a strategy for overturning the results.
And it was in a filing in Eastman’s case that the committee announced last month it has “good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States.”
Criminal charges for the unelected officials or outside aides who help perpetrate a crime could be more palatable for the Justice Department than pursuing what could be seen as politically motivated charges against a president of the party no longer in power. For example, President Nixon never faced criminal charges related to the Watergate burglary and cover-up, but several of his top aides and campaign lawyers served prison time for conspiracy and obstruction of justice.
Meanwhile, Eastman faces a state bar investigation alleging “Eastman may have assisted former President Donald Trump in criminal conduct in connection with the 2020 election and January 6th,” the State Bar’s chief trial counsel, George Cardona, told the committee in December.
Fulfilling a duty
Eastman and his supporters have said he was simply fulfilling his duty by seeking all legal options for his client. He’s raised more than $179,000 for his own legal defense through a Christian fundraising site similar to GoFundMe.
In his order, Judge Carter implied Eastman’s actions went beyond that of an attorney, a view echoed by Chemerinsky.
“[T]here are things lawyers can’t do even in the name of zealous representation,” Chemerinsky said, adding that among those are participating in crimes or “attempting coups to overthrow the government.”
Jeremy B. Rosen, a prominent Los Angeles appellate lawyer and member of the conservative legal network, the Federalist Society, said Carter’s ruling confirmed his belief that Eastman and Trump had sought to subvert the law.
But Rosen, who used to be a friend of Eastman, was wary of the growing chorus of those calling for punishment for Eastman.
“Those pushing the loudest for criminal charges and disbarment seem to be doing so for express partisan political purposes designed to help Democrats win the 2022 elections,” he said. “This too troubles me as such decisions should be made by neutral and fair-minded prosecutors free from political interference.”
The House committee clearly isn’t done with Eastman. Revelations in the last month about information the committee possesses have raised new questions about Eastman’s relationships with conservative figureheads such as Ginni Thomas, the wife of his former boss Justice Clarence Thomas, and Sen. Ted Cruz (R-Texas), a longtime friend and one of the senators who agreed to challenge the electoral votes of certain key states, and how Eastman may have attempted to leverage those relationships for Trump’s benefit.
Carter’s order to produce documents applies to just the 111 emails sent between Jan. 4 and Jan. 7 that the committee asked him to prioritize. It is unclear how many of the more than 19,000 emails and documents Chapman identified as falling under the committee’s subpoena might be handed over. Eastman is still reviewing 1,000 to 1,500 documents a day to determine which ones he will try to assert attorney-client privilege over. His attorney predicted that Eastman could finish around April 21. Then, the court will have to decide what to release.
Because Eastman pleaded the 5th Amendment at his committee deposition, rather than refusing to show up at all, a contempt of Congress charge is unlikely, but not impossible. In that deposition, Eastman was asked about whether he has a Gmail account.
It is unclear if the committee will pursue those emails as well.