The Attorney-Client Privilege Doesn't Apply To Committing Crimes

Today, federal judge David Carter ruled that John Eastman’s emails, which he has been fighting to protect from the January 6 committee’s subpoena since January of this year, must be turned over. Eastman argued that he was Trump’s attorney, and the communications were protected by the attorney-client privilege. Judge Carter disagreed and found that the privilege didn’t apply because of the crime-fraud exception. You can read his full order here.

This is not a criminal judgment against the former president. This is a civil case and the issue before Judge Carter is whether to enforce the subpoena the J6C sent to Eastman. We should not overread it. It doesn’t mean an indictment of Trump will automatically follow. But it is still highly significant. Judge Carter’s 18-page opinion is careful and deliberate. He’s not taking any leaps of faith to stretch to his conclusions that some of these emails were about committing crimes, namely obstruction of Congress and a conspiracy to defraud the government. It’s the measured approach Judge Carter takes that’s so compelling here. He could have gone further, but he didn’t. And the emails that Congress will now have access to are deeply damaging to the former president.

Who is John Eastman? This is how he’s described in the court’s order: Plaintiff Dr. John Eastman (“Dr. Eastman”), a former law school dean at Chapman University (“Chapman”), is a “political conservative who supported former President [Donald] Trump” and a self-described “activist law professor.” While he was a professor at Chapman, Dr. Eastman worked with President Trump and his campaign on legal and political strategy regarding the November 3, 2020 election.

More than 500 disputed emails, each of which the Judge reviewed, are involved in this order. After his review, he reached this conclusion: the crime-fraud exception applies to a number of emails related to President Trump and Dr. Eastman’s (1) court efforts to delay or disrupt the January 6 vote; and (2) their knowing misrepresentation of voter fraud numbers in Georgia when seeking to overturn the election results in federal court.

The attorney-client privilege protects confidential communications between attorney and clients, so long as they are made for the purpose of facilitating the provision of professional legal advice. To be confidential, communications must be limited to attorney and client, or in some cases their representatives. They must be for the purpose of seeking legal advice. If communications are used to commit or are in furtherance of crimes, they lose the protection the privilege normally provides.

That’s what happened here. The procedure is a little bit complicated. First, the Judge decided that 536 of the communications he reviewed were protected by either the attorney-client privilege or because they were attorney work product (to which the crime-fraud exception also applies). Second, he had to consider whether any of those documents should be disclosed to the committee, nonetheless, because they went afoul of the crime-fraud exception.

There’s a two-part legal test used to decide when the crime-fraud exception applies. The client must have consulted an attorney “for advice that will serve [them] in the commission of a fraud or crime,” and the communications must be both “sufficiently related to” and made “in furtherance of” the crime. It doesn’t matter whether the defendant successfully pulled off the crime or not, it’s the abuse of the confidential relationship between lawyer and client that shuts off the protection these communications would normally receive.

Judge Carter found in earlier proceedings that Trump had, more likely than not been involved in:

·      A plan to obstruct Congress’s official proceedings to confirm the electoral college vote on January 6, 2021, and

·      A conspiracy to defraud the United States

when he consulted Eastman. So, his consideration here involved whether the communications were sufficiently related to and in furtherance of those two crimes. He concluded there were eight documents where the crime-fraud exception applied.

That may be sound like a small percentage of the total number of communications, but it’s an astonishing conclusion to reach regarding a then-sitting president of the United States. Eight communications indicates an ongoing course of conduct instead of an inquiry that was quickly abandoned. And there were still more documents that the Judge considered to be “close calls” —for instance, some were related to disrupting the January 6 vote, but that the Court couldn’t “conclusively determine” furthered the obstruction—and didn’t order disclosed. But there was no question in Judge Carter’s mind about the eight.

There are four communications in which Eastman and other attorneys suggest that the primary goal of filing lawsuits “is to delay or otherwise disrupt the January 6 vote.” In one of the emails, Trump’s attorneys advise that “merely” having a case pending in the Supreme Court may delay consideration of Georgia’s election results. Judge Carter concludes Trump filed suits, not to get legal relief he was entitled to, but to disrupt the certification of the election. He finds that the communications Eastman tried to withhold from the committee were in furtherance of the obstruction. In other words, they were all involved in committing that crime together.

Judge Carter ruled that four additional emails involved the effort by Trump and his attorneys to make false claims in federal court to delay the January 6 vote. He says there is evidence of this in at least one Georgia lawsuit. In my experience with Alabama elections, Republicans spend a lot of time on claims Democrats engage in voter fraud. A lot of their complaints center on unfounded allegations of dead people, people with prior felony convictions, and unregistered people voting. That’s what Trump argued in Georgia. He attached specific numbers to each of the claims: 10,315 deceased people, 2,560 felons, and 2.423 unregistered people. He did it first in a lawsuit filed in state court in Georgia in early December and then again, in a lawsuit filed in federal court in Georgia to challenge the election.

Before the federal case was filed, Eastman relayed what the Court calls “concerns” about the specific numbers and Trump’s “resistance” to signing when the specific numbers were included. Eastman explained in one of the communications he tried to withhold from the committee that after signing the Georgia state complaint, Trump had “since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate.”

Nonetheless, Trump attached a signed verification to the federal lawsuit when it was filed, attesting that the information in it was correct, or at least believed to be to the best of the his knowledge, as he had previously done with the state lawsuit. And that’s a serious problem because before the federal case was filed, Eastman communicated that the numbers were made up junk. Those numbers were still incorporated into the federal complaint and attested to by Trump, without any effort to correct or delete them. Judge Carter concludes, “The emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public. The Court finds that these emails are sufficiently related to and in furtherance of a conspiracy to defraud the United States” and orders Eastman to disclose these four, along with the earlier four communications to the committee.

Eastman managed to delay the committee’s work for nine months at a critical juncture in the nation’s history. That delay is likely not over—he could still appeal. But this ruling should be all that both the Justice Department and Fani Willis, the Fulton County DA, need to get to work on these materials if they weren’t already on it. The devil is always in the details, but it sounds as though these documents go a long way towards establishing Trump’s intent to obstruct the January 6 election certification and specifically, the count of the Georgia votes. It’s more proof, and from the mouth of his own attorney, that he knew the Big Lie was a Big Lie. The wheels of justice may move slowly, but they do move. They moved a lot today.

We’re in this together,

Joyce