Thread by @meghanncuniff

It’s almost 9 am here in California, which means it’s almost time for John Eastman’s hearing over the Jan. 6 Committee’s subpoenas to Chapman University. I’ll be sharing updates on this thread so stay tuned. ⚖️🧵⚖️

John Eastman and his lawyer Charles Burnham and House Counsel Doug Letter are appearing via video. Eastman has a portrait of Ronald Reagan visible.

Letter is in a big conference room, and when the court clerk asked him to test his audio, he said, “This is Doug Letter. I’m really, really happy to be here. Maybe I’m talking loud enough. Maybe I’m not. My granddaughter took her first steps a week ago."

The clerk confirms the audio is working well but says, “More cute stories about your granddaughter are much appreciated.” So Letter brings up his grandson, who’s 3. But then stops and everyone quiets down as we await Judge Carter.

Letter says he has people with him who he'll introduce, but he'll be the only one talking in the hearing. Now he's asking Burnham about a trial he has coming up in superior court. Burnham says it's an misdemeanor unlawful entry case involving a political protest

Here's our latest @lawdotcom story on where things stand with this case, and what the hearing is about. It's all about Eastman's attorney-client privilege claims to his Chapman University emails that have been subpoenaed by the Jan. 6 Committee. bit.ly/3CpPGZO

Also joining the hearing via Zoom is Chapman lawyer Fred Plevin, who unsuccessfully tried to get Judge Carter to cut him loose from the case back in January. (Chapman was complying with Jan. 6 subpoenas when Carter issued the TRO.)

Still no Carter. He didn't have anything on his calendar before this, but his life is usually pretty hectic, and he's moving chambers right now so apparently it's a bit, uh, chaotic back there. He was in court all day yesterday for a pre-trial hearing in a maritime murder case.

OK the clerk just said, "We'll be starting shortly" but they're having technical issues, and "it looks like it really has to do with the amount of people that are logging in." She said they may have to restart the hearing and we all log back in.

A masked Judge Carter just appeared on screen. "Well first of all, good morning. we're on the record in the matter of Eastman v. Thompson." So no need to log off and log back on. Attorneys making appearances now. Carter calls Eastman "Mr. Eastman" then corrects to "Dr. Eastman"

Doug Letter just introduced the people in his room. A lot of people from his office and the @January6thCmte. I didn't get the names but the @politico guys are really knowledgeable on this stuff. @kyledcheney could have them.

Carter warns people about referring to people by specific names in argument, given the high-profile public nature of this hearing but the redactions in the pleadings. Eastman's lawyer Charles Burnham is arguing first.

Burnham says there is much evidence of Eastman's attorney-client relationship with Trump "so we hope there's no issues there" but he'll respond to questions fro the court. Then he turns to Jan. 6 Committee's argument that if there is a privilege, Eastman waived it.

Burnham says just because Eastman talked to the media about some things, "it doens't mean all of the emails are up for grabs."

Regarding the claim that Chapman doesn't allow for Eastman to claim privilege.
"The defendants are effectively asking the court to mediate what amounts to an HR dispute involving internal Chapman" policies. (I saw Letter straighten up in his seat at that one.)

Burnham tells Judge Carter, "The law does not require your honor to mediate that dispute."

Regarding Eastman sending work product to third parties, Burnham says "the review of the materials should make clear to the court that none of the third parties" was an adversary or a conduit to an adversary, which relevant to the 9th Circuit case law.

Burnham says the committee argues that if privilege does apply it should be overridden by the substantial need the Jan. 6 Committee has for the material. But Burnham says they're not trying to get the material for a legislative purpose, which isn't sufficient.

Burnham moves to the crime-fraud exception argument, which he calls a "novel argument" and "probably why we have 200 some people in the hearing today." He says this puts them in an "extraordinarily difficult position" of defending Trump "against groundbreaking" allegations.

Burnham says there's evidence Trump was being advised there *was* fraud in the election. He said the committee hasn't shown actual criminal intent regarding this belief.

"We think that's easy for the court to conclude, and that resolves the crime-fraud issue."

Burnham says he's comfortable with Carter reviewing the mails, which was always going to happen because he was going to decide the privilege objections even without the crime-fraud claim. He tells Carter to take any suspense out of it...

..."There's not going to be an email where anybody involved in the campaign effort says we've gotta have some ruffians rush the capital if the vice president doesn't make the decision we want," Burnham tells Judge Carter.

Burnham says Carter won't find an email saying we know we lost, "but we've gotta come up with something." He said Trump and Eastman's beliefs were "well rounded in fact" and believed every bit as strongly as the opposing side believed their views.

Burnham: "That's the issue that we all confront today that's bigger than this courtroom."
"There's a certain lack of a shared reality lack of a shared reality," Burnham said. And "it's simply not going to be resolved by the two sides calling each other criminals."

Letter goes over the background of this, and reminds us all that Jan. 6 Committee first subpoenaed Eastman, but Eastman pled the 5th. Letter says he's not commenting on whether that's a good or bad thing. But the committee then subpoenaed Chapman, and Chapman was complying.

Letter, describing Burnham as "my friend," says Chapman was complying with "one of the most important investigations very undertaken by the Congress of the United States...an attack on the very heart of our democracy.

This all leads up to what I suspected was Letter's big takeaway from Burnham's argument: the HR dispute thing.
Letter says he's "very puzzled by my friend's comment that this is like an HR dispute." Then he launches into how Chapman told Eastman he has no privacy on its servers.

Letter said if "Mr. Eastman misused the system" and then made a bigger mistake for his clients by doing their business on an unprotected system, that's his problem.

Letter says @TheJusticeDept let him use work email for personal reasons like basketball practice logistics, but there's no expectation of privacy.
"So why is it different here? Chapman made clear that Dr. Eastman" had no expectation of privacy.

"Dr Eastman apparently made a very serious mistake," Letter tells Judge Carter. "After being warned about a month ago from the president of the university not to do this."

"Let's not forget that that's why we are here," Letter says.

Letter also says Eastman's @ChapmanU emails show campaign advice that doesn't qualify as legal advice.
"Attorney-client privilege requires that there be some legal advice," Letter said.

Letter says Eastman's SCOTUS talk was hardly legal strategizing, it "is hare-brained advice. No one would buy this. This was no 'let's get this to the Supreme Court.'"
"Let's not get carried away and say, 'Oh yeah, there's a lot of legal advice here,'" Letter said.

Letter says regarding crime-fraud exception, *of course* the committee's focus is on Trump, because he's the client. Crime-fraud exception is about the client. Privilege belongs to the client, not the attorney. Question is was client misusing it?

"This isn't just something that we made up and applied to this case. Not surprisingly, your honor asked us about it," Letter tells Judge Carter regarding the crime-fraud exception argument.

Letter says Burnham has already said he's fine with Carter reviewing, so that solves a lot of the issue right there.
"The whole idea is for you to do the in-camera review for this material now. For all we know your honor has already done that," Letter says. (Doubtful, actually.)

Letter says if Carter reviews material and applies the law as described in Napster (caselaw.findlaw.com/us-9th-circuit…). Napster makes very clear "that if your honor concludes crime-fraud exception applies, then the material is not covered by attorney-client privilege."

Regarding Burnham saying there are no emails directing ruffians to storm the Capitol, Letter says, "Yeah, we frankly didn't expect there would be emails like that."
"First of all, remember it's the crime-fraud exception. There's a slash there."

Letter said regarding common law fraud, “it doesn’t have to be criminal.” He reads some of Eastman’s emails with Pence’s counsel Greg Jacob, as my colleague @AndrewGoudsward reported here bit.ly/3CohNsD and focuses the “relatively minor violation” line.

“I have to admit, your honor, it’s unclear to me how something in any of this could be a minor violation of the law when we’re talking about an insurrection that, sadly, came very close to succeeding to overturn a presidential election,” Letter tells Judge Carter.

“It would have been so minor it could have changed the entire course of our democracy. That’s how minor it was,” Letter says. “It could have meant that the popularly elected president of the United States would have been thwarted in taking office."

"That’s quite a minor violation of the law that Dr. Eastman was strenuously” advocating, Letter says.

Letter also says, "President Trump was ignoring all of the very clear evidence because he wanted something different. He wanted the vice president to do something that was plainly against the Constitution.”

Judge Carter took a 10-minute break after hearing from Chapman's lawyer, who explained why Eastman's first brief about his Chapman activities doesn't differentiate between allowable activities and representing a political candidate. (article here bit.ly/3hbXV23)

Before the break, Letter also gave a final plug for the importance of the @January6thCmte's investigation, saying everyone should want the committee "to get the material that it needs to produce a report suggesting legislation, telling the American people what happened."

"The interest here is immense. It’s way beyond whatever interests Dr. Eastman has in maintaining the privilege over work product, especially given the totality of the circumstances," Letter said.

Regarding Plevin, the Chapman lawyer, he started by saying Chapman has no legal issues, but then he launched into the Chapman's argument that Eastman was misusing the university's resources when representing Trump.

OK an unmasked Judge Carter just took the bench again. (Shows how intense things are in chambers. Mask to no mask in minutes. 😷)
He starts by saying what I figured: He hasn't read any of the emails submitted to the court so far.

Carter starts with attorney-client relationship between Eastman and Trump. He asks about the unsigned agreement submitted by Eastman. Should he rely on it? Burnham says yes, and there's other evidence. "The law is clear that a signed agreement" is not required.

Burnham says in rush of the moment, no one ever got around to signing the attorney-client agreement between Eastman and Trump. But that doesn't negate the agreement.
Letter says that can be true, but the burden is on Eastman, and he hasn't shown a very broad client relationship.

"We don't know the extent of the relationship and with whom. And that's on Dr. Eastman," Letter says.
Carter asks Burnham, are you aware of any signed agreement. No, he's not.
Carter observes that the agreement submitted says it's effective upon signature.

Carter is focused on the agreement. (Please people, stop texting an IMing me right now.) He asks Burnham about a line that says the agreement includes "federal litigation." Dees work with state legislators qualify?

Carter asked about other engagement letters that could cover state legislative work and work not mentioned in agreement.
"No, there were not other engagement letters."
Carter asks Letter is he has comment
"No, I think what Mr. Burnham just said speaks very loudly," Letter says.

Burnham tells Carter no, they don't have agreements to document the relationship between the various attorneys and consultants listed with Trump in the materials.

Letter tells Judge Carter, "We are happy to have you consider any and all evidence. The questions of whether that is sufficient to establish an attorney-client relationship is somewhat doubtful."

Carter asks Plevin to again explain Chapman's position on whether Eastman reasonably expected privacy in his Chapman communications, "and the Chapman clinic." (Here's a @lawdotcom story that explains Eastman's argument bit.ly/3hbXV23)

Plevin says there's no distinguishing between "clinic matters" and other Chapman emails, and again says Eastman had no expectation to privacy when emailing on Chapman's servers.

Carter asks him about a quote from an earlier Chapman filing, that "any legal work done by Eastman using Chapman’s resources that supported a political campaign or candidate for elective office was unauthorized and contrary to Chapman’s policies.”

Plevin says it was oft-quoted, and he stands by it.

Carter asked Plevin about Eastman's work with President Bush in the 2000 election, and if it was unauthorized. Plevin isn't sure, Carter tells him to find out now. Plevin is "going to consult with my client" aka call someone at @ChapmanU.

So the hearing is on a five-minute break while Plevin does that. This is vintage Judge Carter. This is how hearings with him end up going on alllll daaaaay looooong.

A good rule of thumb for reporters covering Judge Carter is to always bring a sack lunch. So being able to watch on Zoom from home is a nice luxury.

They're back. Carter re-reads his questions for Plevin about Eastman's prior representation of President George W. Bush and his privacy expectations there. He also asks if Chapman had all clinical work by all professors moved to private email servers. Plevin is finding out.

Just thinking about that time back in January when Plevin tried to get out of the case, telling Carter there was no need for Chapman to be involved anymore.

Plevin just got back on screen and told Carter he hasn't found out yet re: segregation of clinic emails. He's trying someone at the law school. Carter is stoned-faced unamused. Says nothing as Plevin continues.

Plevin says Chapman isn't aware that Eastman actually represented Bush in 2000. He references Eastman's declaration, says he also talked to law school dean at the time, and the dean doesn't know of Eastman actually representing Bush as a client.

Here's the declaration from Eastman they're referencing.

https://twitter.com/meghanncuniff/status/1496494717009338373

Carter asks Letter if his position is that using the Chapman servers destroys attorney-client privilege. Letter says he "very briefly" wants to consult with his colleagues. He's muted now, and you can see him turning and look at people around the table.

Letter tries to dance. Says his understanding is Chapman was complying with the subpoenas. "It certainly contemplated that the Chapman policy happening what exactly is happening." (that's a little jumbled but it's what I heard.)

Letter says something about a "sliding scale" for privilege applications to attorney-client material. Proper inquiry is "is it something that is largely...political or campaign" with some legal aspects to it, either whole document "or significant chunks" would be produced.

Then Judge Carter asks a question that goes right smack to what this is all about, succinctly and to the point.
"What is the line between legal and political advice?"
"I want you two to think very carefully about that," the judge says.

Everyone mutes for a minute. Letter points to specific emails and says his view is they are largely politically, it's Eastman advocating something illegal.
"It's hard to see that that's legal advice, telling someone to violate the law," Letter says.

"When does litigation cross the line from possible to anticipated?" And what litigation was Eastman anticipating when he sent emails. Burnham said many relate to court challenges.

Carter asks if advising state legislators should be considered as being done in anticipation of litigation.
Burnham says yes.
Letter says they don't dispute that some documents could be advice to legislators that qualifies as work product, and they're fine with Carter reviewing.

"Since we have not seen these materials it's very difficult for us to give you helpful advice," Letter tells Judge Carter, in what could be considered kind of a dig.

Letter says, "What Dr. Eastman was proposing was 'do this and damn the consequences.'"
Letter says that's not advice on anticipated litigation, "that's, 'Do this and let's see if we can avoid litigation.'"

Burnham: "If the vice president had followed any, several of the various courses...the near certain result would have been a lawsuit, naming the vice president as a defendant, making arguments about why his actions were improper, which very likely would have gone to" SCOTUS

So basically Burnham just said that Eastman advocating Pence do something illegal would have gotten Pence sued if Pence actually followed through, thus anything Eastman said about it was said in regards to anticipated litigation.

Letter: "Just do it and let them sue. I think that's a quote. 'Just do it and let them sue' certainly doesn't sound like the advice was in anticipation of litigation."

"The vice president should violate the law. He said he urging, violate the law and let them sue...Boy, that's not legal advice that I've ever given in anticipation of litigation," House General Counsel Doug Letter tells Judge Carter.

Carter takes a 10-minute break.
“I promise you I don’t have many more questions.”
“I’d like you to be prepared for your summation in a relatively short period of time,” the judge says. (He talks to his law clerks during these breaks, who are listening to hearing in chambers.)

Amazing. #lawtwitter and #appellatetwitter is such a great resource.

https://twitter.com/mitchellepner/status/1501279838178586632

Before the break, Burnham said Eastman thought Pence could delay the count to resolve "the various issues" and then resume the count, which "was always acknowledged could result in a Trump victory or a Biden victory."

OK they are back. Carter asks if work-product protection requires a formal agent relationship.
"No, your honor," Burnham says.
Letter begins, "Our position is yes." There needs to be a client agreement.

Carter asks if a lawyer sends Eastman a document, is that work product? If it's unsolicited? Burnham says not unsolicited, and they've produced that. But if it prompted discussion that revealed strategy and mental impressions, then it's work product.

Regarding the crime-fraud exception, Judge Carter goes over the three charges mentioned in Letter's brief - conspiracy, obstruction, common law fraud - and says, "How should the court determine if any documents or emails are in furtherance of these alleged crimes?"

Burnham says Jan. 6 Committee has not met its burden for establishing crime-fraud exception.
Letter goes over narrative, says the advice provided by Dr. Eastman certainly seemed to become a key part of the message Trump was putting out "in an attempt to overthrow the election."

Judge Carter asks Burnham why Eastman didn't put forth his own evidence. Burnham mentions those 5th Amendment pleas, also says Letter's evidence is insufficient and they don't need to put forth their own evidence to show that.

"We don't think there's any way that a legal scholar of Dr. Eastman's abilities could possibly think it was consistent with the constitution for the vice president to overturn the electoral count sent in. Certified by governor and sent in. All 50 of them," Letter says.

Letter said it's "so far off that not a single Supreme Court justice would take it seriously."
"You can't read the 12th Amendment and think that the vice president" can delay the count and send it back to the states.

Letter: "It would just be astonishing if Dr. Eastman really thought that could be consistent with the Constitution."

Letter also reminds us "the House cannot engage in criminal proceedings and bring prosecutions - criminal prosecutions - and so it's just not a criminal investigative body. So talking about things like the Brady standard or exculpatory material, they just don't enter in here."

He mentions the Napster case again, which he says establishes "we don't have to produce something like that" but the court can consider Eastman's own submissions (which in this case he didn't submit anything as Carter already asked about.)

Then Judge Carter asks why Eastman and Trump never formally challenged the electoral count. Burnham says he has no info and "would just be proffering" and could intrude on Eastman's client relationship with Trump.

But, Burnham says, "As a matter of common sense there's practical and strategic reasons that would obviously come to bear on those types of decisions."

Carter took a five-minute break and will be back very soon to hear summary arguments, though it seems like everyone has said everything they need to say. This should be over pretty soon.

As someone who's covered Judge Carter for a long time, I'd like to say nothing could be further from the truth, but he has been taking a lot of breaks. Thing is, it's not like he's just sipping coffee back there. He's talking about the case with clerks.

https://twitter.com/onlyianfollows/status/1501288224093880321?s=20&t=5PWLMIOF329dq-PJ8BhloA

OK they're back.
Plevin has no summation for Chapman. "I've said all I need to say unless there's a question for me."
Burnham says "fundamental position" remains that a violation of Chapman email policies, "even a flagrant violation, by no means equates to a waiver of" privilege

Burnham says they disagree there was any Chapman policy violation, and he points to Eastman's discussions with the law school dean about removing Chapman's name but keeping its address on the briefs. Chapman can't say they didn't know Eastman was working for Trump.

Regarding Letter saying Burnham has said he's fine with a crime-fraud review, Burnham said what he meant is he and Eastman "have no fear whatsoever of a crime-fraud review of these materials. That's not something that fills us with dread." But one is not warranted here.

Burnham says let's assume there's absolutely overwhelming evidence of fraud in all 50 states. Video evidence. Does that mean the vice president can then take action? He says that's the kind of legal issue Eastman was grappling with.

Burnham: "We are not contending that Brady v. Maryland applies as a matter of law to a civil case. No question about that. Our request was based specifically on not one but two statements" from committee offering to provide to court any info that could be helpful in this case.

The standard for crime-fraud is preponderance, "and we don't even have all the evidence," Burnham says.
Now Letter is up. Tells Judge Carter, "I'll try to be as brief as possible. I have to say that I continue to be amazingly impressed with your patience."

Letter on civil procedure and subpoenas: "Sorry my reaction is well duh because the federal rules of civil procedure have nothing to do with legislative subpoenas." That's an important distinction he's been making. These subpoenas were NOT filed in a civil case.

"This litigation is about should this court be stepping in to stop Chapman University from complying with a legislative subpoena that is essential to the preservation of democracy in the United States against the attacks on it that went on," Letter tells Judge Carter.

Letter says he's never been in private practice, but "I think all of the controversy here is part of the reason why lawyers have retainer agreements. Because they recognize this is not the appropriate way to do business..."

"...especially if you have to establish that the attorney relationship governs," Letter says. It's Eastman's burden to establish evidence for Carter to enjoin Chapman from complying w/ #J6 subpoenas. He's claimed privilege over "hundreds of people without providing any evidence."

Carter gives Letter a chance to consult with his team to make sure he's covered everything. Letter does so briefly and says, "I've got a satisfied group here, your honor." Judge gives Burnham another chance to speak, but Burnham has nothing more to add. Then Carter just ends it.

After 3 1/2 hours (!) of argument and a few breaks, Carter says, "I thank all of you for your courtesy. I wish all of you the best of health. These proceedings are concluded."
Zero indication of when he might actually make a decision here. Letter looked a little frustrated.

I'm working on a @lawdotcom article now. Meanwhile, you can find today's entire thread in one spot here. bit.ly/3KwZ5lr

I'll be on @KPCC's All Things Considered with Nick Roman about 4:45 p.m. today to discuss the John Eastman-@January6thCmte hearing.
You can listen online. tunein.com/radio/KPCC-893…

Eastman's lawyers just filed with Judge Carter the opinion out of D.C. yesterday in which a judge dismissed an obstruction charge against accused Capitol rioter Garret Miller.

Here's the full opinion. Obstruction "requires that the
defendant have taken some action with respect to a document, record, or other object in order to
corruptly obstruct, impede or influence an official proceeding." bit.ly/3KrT3SX

Here’s my @lawdotcom article on what happened today in the John Eastman Jan. 6 Committee hearing. bit.ly/35IfYuD