Every PACER alert for a case involving Trump’s coup-curious lawyer John Eastman sparks a frisson of excitement. Will it be a boilerplate request for extension of time, or a portal to another dimension where the laws of space, time, and civil procedure do not apply?
Last night’s offering falls squarely into the latter category, taking the reader on a hallucinatory journey where up is down, left is right, and Donald Trump won the 2020 election.
“One might even say that the assertion of a ‘big lie’ is itself the actual big lie,” begins the brown acid trip cum brief in support of Eastman’s claim of privilege over his efforts to overturn the 2020 election conducted through his Chapman University work email.
US District Judge David Carter has already called Eastman’s memos explaining how Vice President Pence could unilaterally reject electors “a coup in search of a legal theory.” He even ruled that the crime-fraud exception to privilege applies to some of Eastman’s communications, since the lawyer and his client were likely engaged in an effort to criminally obstruct congress.
Nevertheless, Eastman continues to insist that Biden only won thanks to massive fraud. “There was ample evidence of that at the time, and the evidence on that score has only grown since,” he argues, before regurgitating a litany of gobbledygook about “statistical anomalies” and discredited affidavits and “Antrim County” — all of which have been soundly debunked and rejected by every court. He even references Dinesh D’Souza’s hilariously nonsensical movie, which is so crazy that Fox’s shouting heads won’t touch it.
But let’s just say that it weren’t complete bullshit. Taken in that light, wouldn’t John Eastman be the real hero here?
For if, as seemed clear to Dr. Eastman and his client at the time, there was illegality and fraud in the election of sufficient magnitude to have altered the outcome of the election, then far from “undermining” Democracy, Dr. Eastman’s actions and advice must be seen for what they were—a legitimate attempt to prevent a stolen election. Perhaps Dr. Eastman was wrong about that.
Yes, perhaps he was wrong about that. And maybe Donald Trump was also wrong, but can you blame him, argues Eastman? Sure Bill Barr investigated the allegations of fraud, particularly in Georgia, and said there was “no evidence of widespread voter fraud that could change the outcome of the 2020 election.” And, yes, the Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (CISA) put out a joint statement calling the election “the most secure in American history.” But Sidney Powell and the MyPillow guy said it was #RIGGED, so it was totally rational for Trump and Eastman to take their word for it.
The Select Committee’s evidence on that score is simply that news accounts and some government officials (including a few high-ranking ones) had belittled the substantial fraud and illegality evidence as false. But given the false claims, outright lies, and even documented efforts by many of those same sources to spy on and otherwise thwart the former President from fulfilling his constitutional duties for the entire four years of his term as President, one should hardly be surprised that President Trump did not take such claims at face value and preferred instead to rely on trusted advisors outside of the normal channels.
The whole thing is just a crazy funhouse of undead legal theories waiting to jump out at the unsuspecting reader.
After having reviewed Eastman’s last batch of emails, Judge Carter rejected his claims almost entirely, referring to “the lack of evidence of election tampering.” Nevertheless, Eastman confidently asserts that “this Court should know from its own in camera review, there is ample evidence in those communications of illegality, fraud, and statistical anomalies in the election results that lend significant support to the statements made by Dr. Eastman and his client.”
And he indignantly insists that “at every turn, Dr. Eastman’s efforts were designed to protect Democracy by ensuring that illegality and fraud did not alter the results of the election.” Which is bloody rich coming from a guy who told a Pennsylvania legislator in December of 2020 that “I did not watch the hearings that were held, but I suspect they contained ample evidence of sufficient anomalies and illegal votes to have turned the election from Trump to Biden,” and then went on to advise him on how to shave off enough Biden ballots to hand the state’s 20 electoral votes to Trump by legislative fiat.
But the nuttiest part of this magnum opus of batshittery is the defense of Eastman’s work product claims over the majority of the 601 remaining disputed emails. Judge Carter already ruled that Eastman’s advice on how to thwart congress’s certification of the electoral college votes is definitionally not work product because it was not prepared in anticipation of litigation. But what if congress itself is acting as judge and jury, and thus the electoral certification itself counts as “litigation.”
Oh, yes, he did.
In its Order Re Privilege of Documents Dated January 4-7, 2021 [Docket No. 260] (the “Order”), this Court rejected many of Dr. Eastman’s claims of work product privilege because the documents were not made in anticipation of litigation, but only in anticipation of various legislative proceedings – specifically, state electoral certification and the congressional electoral count. Order at 22, 23.66 The documents at issue do not pertain to ordinary legislative proceedings, however, but to proceedings in which Congress is acting in an adjudicative capacity. They are therefore the direct subject of the legislative equivalent of litigation.
But wait, there’s more! Because if you
are higher than Rick James on a bender and you accept the argument that members of congress are acting as judges when they watch Mike Pence open envelopes, then state legislators are also “litigation.”
Additionally, if the terms of the Electoral Count Act are followed, state legislatures likewise serve as adjudicatory bodies with respect to their own electors. This is explicit in 3 U.S.C. § 2, which confers adjudicative power to state legislatures in the event of a failed election in that state.
It just makes too much sense!
Everything is litigation, so all conversations are made in anticipation of litigation, and thus it would violate work product privilege to force Eastman to disclose his conversations with state legislators and members of congress about overturning the election.
Oh, and by the way, everything is covered by attorney client privilege, and John Eastman can prove it by citing to all the times he got in front of a microphone and flapped his yap about it.
FN 14: See, e.g., Another Way: Discussing the John Eastman Memo with Eastman, Equal Citizens (Sept. 27, 2021), https://equalcitizens.us/discussing-the-john-eastman-memo-with-john-eastman/; M. Schmidt, The Lawyer Behind the Memo on How Trump Could Stay in Office, N.Y. Times (Oct. 2, 2021), https://perma.cc/9BQQ-5Y39; John C. Eastman, John Eastman: Here’s the Advice I Actually Gave Vice President Pence on the 2020 Election, Sacramento Bee (Oct. 7, 2021), https://www.sacbee.com/opinion/op-ed/article2548l2552.html; Peter Boyles Show: Peter Boyles May 5 8am, 710KNUS News/Talk (May 5, 2021), https://perma.cc/Q6YE-KD5F. 15 https://cdn.donaldjtrump.com/public-files/press_assets/2020-11-09-complaint-as-filed.pdf.
Well … the sun’s over the yard arm somewhere. And that somewhere is John Eastman’s back yard. Allegedly!
Eastman v. Thompson [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.
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