Thread by @AkivaMCohen

OK, litigation disaster tourists, time to look at John Eastman's lawsuit to stop Verizon from turning his communications metadata over to the January 6 Committee

Full complaint here storage.courtlistener.com/recap/gov.usco…

We'll roll through his arguments, but here's the tl;dr:

This complaint is the legal equivalent of flop sweat - dude is *terrified*, and I look forward to the country finding out exactly why.

Eastman is suing both the January 6 Committee (which issued the subpoena) for a declaration that the subpoena is invalid, and Verizon (to whom the subpoena was issued) for an injunction to stop it from complying

Some people have asked whether this is proper: Yes. He needs the court to have jurisdiction over Verizon so it can order Verizon not to comply with the subpoena.

Verizon, btw, isn't going to spend any money litigating this; they don't care at all whether the subpoena is valid. They just want to know what they have to do. This is between Eastman & the Committee, and Verizon's lawyers advice will be simple

So let's take a look at the subpoena itself, because I'm gonna have to break to get Littler Girl to her school soon, and this should be self-contained

First thing to note, this is ONLY a subpoena for documents. This will become relevant, I promise

Second thing to note: This wasn't an "Eastman" subpoena. This was a "we have these phone numbers we're interested in, we want info on them" subpoena - Eastman's number was one of em

Last thing to note: the only thing this subpoena asks for is connection records.

No actual voicemails. No actual messages. "Just tell us who communicated with these phone numbers - whether by call, voicemail, text, or otherwise - and when and for how long"

This, too, will be important later.

Back after my morning intermission.

And we're back. May have an interruption or two for client calls, but let's get moving

Oh, come the fuck on, John

Look at the amazingly subtle use of the passive voice here.

People "came to believe" the election was stolen. How? It's a mystery. (Note: In that podcast, Eastman talks about the "alternate electors" casting votes)

Also, can you believe the amazing coincidence that somehow, at the same time as the "Save America" rally, there also happened to be a riot at the Capitol, two miles away? So unfortunate, completely unintended and unpredictable

Oh, and one last thing (I'm impressed, Eastman's lawyers managed to pack a whole lot of wrong into their first three paragraphs):

No. No, my dude, ALL of the "protestors" who entered the Capitol that day committed criminal acts, by definition. Aside from insurrection and obstruction of Congress, the US Capitol was a "Restricted Building or Grounds" because the VP was present that day & it was cordoned off

Every single treasonous shitweasel who set foot in the Capitol that day committed a federal crime.

Every last one of them.

Is John Eastman actually making this argument? Yes. Yes, of course he is.

Oh. Oh, John. Come on now.

Like, let's count the problems with this argument. First, "consultation" doesn't mean "agreement" or "approval". It just means the House Resolution required Pelosi to discuss it with McCarthy.

Which she did

Second, even if the rule required "meaningful" consultation, and even if this was some normal contract, it would be unenforceable because there's no standard for defining what "meaningful" is

Third, no court is touching this argument with a ten foot pole. This is a classic non-justiciable "political question"

The courts are not going to intervene in the operations of a co-equal branch of Congress to determine the precise level of "consultation" required by a House resolution. They just aren't. That's a political question to be determined by the House itself.

Also - and he's up to strike 4, which is par for the course for these insurrectionist shitbirds - what fucking rule says "a member of the minority party doesn't really count unless they are planning to obstruct the committee's work"?

So, a few comments here.

1) Re the first highlight, in a just world, that would change pretty damn quick. Fomenting an insurrection is not a wonderful testament to your fitness to practice law.

2) No kidding they didn't give you prior notice. They had no obligation to, that's not how subpoenas work. Verizon (and other telecoms) notify their customers where information is sought by subpoena.

3) Also no kidding the subpoena didn't have a specific provision for protecting privilege. Again,

When I serve document requests or subpoenas in a litigation, my demands don't say "but I'm not asking for privileged documents, please don't produce them."

Privilege is an affirmative objection the producing party has to raise. And it can be waived. So ...

If for some unknown reason the producing party wants to send me their communications with counsel in response to a document demand, I'm damn sure going to take them.

Instead, what happens is I'll get back responses that say some version of "OK, but we're not giving you privileged documents." My standard lingo, when I'm responding on behalf of a client (and subject to other objections) is "we will produce non-privileged responsive documents"

And then I review the docs, withhold the privileged ones and - and this is important - produce a "Privilege Log"

Why awkward? Well, what's a "privilege log"? It's a document that tells my opponents "here's some basic information about the documents I'm claiming privilege in, so you can be sure they're actually privileged and challenge the claim if you think I'm wrong"

It can look like this

Basically, we provide the following information:

Some type of document identifier (that's the "Bates" columns)
When the communication was sent
Who sent it
Who received it
Why it's privileged
General description of subject matter.

See the problem?

The subpoena asks Verizon to identify who Eastman communicated with and when.

If Eastman wanted to withhold information as privileged, he'd have to provide the Committee with a log of who he had privileged communications with and when.

Also, the *reason* parties have to provide this information is "who you communicated with and when" is not generally privileged. Privilege protects the *substance* of lawyers' communications with our clients. Not *that* we communicated

Now look, can I imagine a case where the time/fact of a communication is privileged, because it inherently reveals substance? Sure. If I'm accused of having killed someone at 4:00pm on a day in March, and I happen to have called my criminal defense attorney at 4:05pm that day...

I can probably make a viable argument that just disclosing the date and time of the communication discloses the relevant subject matter. But the more likely result is that I'd be forced to reveal the date and time and the prosecution would be barred from using that as evidence

But that's not this case, as far as I can tell. And the general rule for privilege objections is you can't just waive your hands and yell "privilege" - you have to make, *and support*, specific case by case objections.

Best of luck, John

OK, now we get to the meat of the argument (or at least the part of the intro that describes it) and color me deeply unimpressed

We'll get to why as we roll through each argument in detail, but my general reaction is

Gonna skip right by the parties/jurisdiction/venue section and get to the legal argument, which this complaint has for some reason

Reminder: Complaints are not legal briefs. They're meant to be "short and plain statements of the facts" on which the plaintiff seeks relief, so that the opposing party knows why they're being sued. Legal argument is made in briefing on motions

For an application like this, I'd have expected separate documents - a complaint, and then a motion for injunctive relief supported by briefing laying out the legal argument.

Eastman filed a complaint, but he hasn't actually filed either a motion to quash or a motion for a TRO

What that means is pretty simple: The court has not yet been asked to stop the subpoena. That's ... well, pretty important, since Verizon's response to the subpoena is due today.

Eastman's basically counting on Verizon stopping production on mere notice that he filed (but hasn't served) a complaint on the last possible day - which means that this is primarily a play for delay. I bet Eastman takes his time serving the Committee members, too

After all, if Verizon is going to stop production on receipt of the complaint, Eastman has absolutely zero incentive to seek a quick court decision on his claims, especially since he has to know they're garbage

Fact check: true

But here's where it all goes bad for Eastman.

And to be clear, this is true as far as it goes. BUT

The "legislative purpose" thing? Dead in the water. The DC Circuit just addressed this in detail in Trump's executive privilege case. cadc.uscourts.gov/internet/opini…

Here's what they had to say - btw, @questauthority, I bet this is why they didn't provide the Court with the text of the authorizing resolution:

Look, I get why they left this argument in; Trump v. Thompson was just decided last week, and they have to preserve the argument in case it gets reversed. But the chances that SCOTUS will find no legislative purpose here are slim and none, and slim is on its deathbed

Regardless of the current composition of the Supreme Court, there are just way too many downstream implications of a ruling that Congress can't conduct a factual investigation relevant to legislation for that to be the ground for reversal; if the conservative majority rescues TFG

it'll be on some other ground.

But that's not the only problem for Eastman.

Let's take a look at the Yellin case he cites for "the Committee has to follow House rules"

This, btw, is the answer to today's trivia question

https://twitter.com/AkivaMCohen/status/1471093757693108224

Yellin makes crystal clear that Eastman has an outcome determinative standing issue on the "the committee isn't following House rules" argument.

In Yellin, the rules not being followed were for the benefit of the witness, so the witness had a right to demand their enforcement. Eastman's argument (as we'll see) is that rules about how the parties are balanced on committees weren't followed.

Whether or not he's right about that (we'll get there), it's just not a claim he can push forward; he's got no rights that are being harmed.

The next few paragraphs spend time unpacking the "legislative purpose" argument; I'm not going to waste any time on that, because the DC Circuit already yeeted it into the sun last week

1) Why are you talking about other subpoenas? Have they been quashed? No? Then it's not because you think it's relevant precedent. Are you thinking some DC District judge is going to get all outraged on behalf of these unnamed subpoena recipients and help you out b/c of that?

Seriously. I don't remotely get the thought process here.

2) More fundamentally, work-product? Are you shitting me?

As I mentioned above, this isn't even privileged. But it's not in the same expanded-fucking-universe as work product.

Work product is a privilege that covers an attorneys mental impressions and thought processes. How the unearthly fuck could revealing phone metadata impact THAT?

And to argue that the subpoena calls for work product information "on its face" and "clearly" ... wow.

The only possibility I can imagine is that Eastman and his attorneys don't actually understand that the subpoena isn't seeking the content of text messages or voicemails

Which ... ok, garden variety misreading under time-pressure rather than pan-galactic incompetence.

hahahaha no.gif

"You can't explore my communications with the Gambino family, it infringes on my freedom of association!" is not a winning argument

I'm not a criminal lawyer so I'll defer to folks like @artemis_nieves on the 4th amendment issues, but I also don't see any way that "turn over this specific information that we're seeking" would fall into the "general warrant" category

A "general warrant" is basically "go search this person's property and take anything you think might evidence a crime"

Again, WHY are you talking to me about other subpoenas? When those are in this complaint at all?

And again, I'm just going to skip this whole section given the DC Circuit's decision, but I'm amazed that they don't bother addressing that decision at all - just act like it never happened

Eastman is correct that the resolution required Pelosi to appoint 13 members, 5 after consultation with McCarthy.

She did that, appointing Nehls, Armstrong, Davis, Kinzinger and Cheney after consulting McCarthy; Nehls, Armstrong and Davis refused to serve

But again, Eastman doesn't have a right to enforce that portion of the House resolution, and whether the Committee is sufficiently authorized as constituted (with 9 members) is a political question.

The House as a whole is exactly as bound by the House GOP's internal rules as me and my wife are. They've got fuck-all to say about whether it's my turn to do the dishes and the same fuck-all to say about whether a committee is duly constituted

1) Nothing in the Eastman subpoena is about depositions

2) This is Eastman arguing this means that the Committee is not duly constituted and so has no authority.

As a practical matter, he's asking a court to decide that if the House minority refuses to seat committee members...

the committee - any committee - is in violation of House rules and therefore has no authority to act.

1) Again with the notion that Kinzinger and Cheney don't count as republicans

2) Paragraph 55 is the only potentially viable argument in the entire complaint, & not by much, IMO; Pelosi did appoint members (who refused to serve) and anyway Eastman has no right to enforce here

As @questauthority noted in last night's stream, Eastman conspicuously fails to provide the court with the text he's referring to. Let's help him out.

Clearly - I say, CLEARLY - this limits the Committee's scope of investigation to things that happened on 1/6 and people who actually entered into the Capitol.

How could anyone even think otherwise?

1) They don't need evidence you spoke to one of the trespassers, you dingus

2) Where do you think they got your phone number?

Oh. Oh, no.

Who wants to read this section of the US Code that Eastman argues bars disclosure in response to a subpoena?

But then, you knew that, right?

Let's count the problems.

1) Disclosure in response to a lawful subpoena is "permitted by applicable law"; if the law says "you must turn this over or be held in contempt of court/congress" then it permits you to turn it over.

2) What part of "in response to a Congressional subpoena" do you think qualifies as "interstate commerce," John?

Like, "interstate commerce" is INCREDIBLY broad. It covers way more than most people think it does. But it has to be "commerce" to qualify, and a response to a Congressional subpoena is not that. At all.

"Your Honor, here's a thing that might happen, even though the subpoena doesn't actually ask for cell-site data" is not a good way to convince the court that there's a live case or controversy on this issue; courts don't issue general guidance on hypotheticals

Had a feeling but didn't know this for certain

https://twitter.com/mwadswor/status/1471180430082772993

Again (it's like talking to a goddamn wall) they're not asking for contents, and this obviously doesn't cover responses to subpoenas or warrants

This is actually a clever argument - that Congress statutorily excluded these types of records from its subpoena power because 2703 doesn't provide an exception to the prohibition in 2702(a)(3)

SLIIIIIGHT problem though

You know your argument that Congress isn't a "government entity" for purposes of 2703?

That ... um ... I don't know how to tell you guys this but ... well ...

The prohibition in 2702 only applies to disclosure to a "government entity". You've just conceded that provision has no application to this subpoena by Congress at all.

Then you should, um, probably file a motion for interim relief, then. Don't you think?

And that brings us to the actual counts of the complaint, and the near end of this way-too-long thread.

We've discussed all this, and they should probably read Yellin before oral argument

This is not how privilege objections work, even a little bit, and not a grounds for quashing a subpoena.

OK, the first amendment count is longer, we haven't touched on it yet, and I just got asked to go to lunch, so I'll be back in an hour or so to wrap this up

Great meal at chimichurricharcoalchicken.com, and back to work

This is just getting lazy. For one thing, why are you repeating your dead-as-my-Jets legislative purpose and privilege arguments? For another, "I use my phone for speech therefore my phone data isn't discoverable" is a stupid goddamn argument

I mean the Supreme Court has already held that police don't even need a warrant to get this type of information from phone companies; there's not suddenly going to be a first amendment issue with it.

oyez.org/cases/1978/78-…

And "if you investigate who I talked to as I encouraged an insurrection and the obstruction of Congress my speech might be chilled" is not going to be a winning argument, John.

Then we come to the 4th Amendment, where Eastman waves a magic wand and says "well, they didn't ask for cell cite data but if they had that would be a 4th Amendment issue, so it's a 4th Amendment issue" and also tries to pretend Carpenter applies to more than location data (nope)

The complaint then goes back to the "it's not for a lawful purpose" nonsense and really, enough, John.

Then we have the request for relief, which is basically just "declare the subpoena invalid, please"

And we're done.

Bottom line: Eastman's going to lose, and he's scared shitless of what's going to be found in these records

/fin