Thread by @openargs

This will be the formal live-tweeting of the @DrJohnEastman Privilege hearing with replies below. 111 documents at issue. Hearing begins with #Eastman lawyer trying to clean up issues that should be clear (i.e., was there attorney-client relationship with Trump)

#Eastman begins with argument that the 111 docs are all basically work product & the standard for wp waiver is higher than just bare communication - key case here is US v Sanmina, 968 F.3d 1107 scholar.google.com/scholar_case?c…

After wp doctrine, now we're getting into crime/fraud exception, which #Eastman notes is why we're all here

#Eastman makes two arguments: (1) no good-faith basis for crime-fraud review of documents - obstruction, 18 USC 371 & common-law fraud require showing criminal intent on behalf of Trump - we explain exactly how the court can infer this in episode 574 openargs.com/oa574-1-6-comm…

The argument is that Trump got lots of shitty advice that the 2020 election was stolen, so there can't be intent. This is IMPOSSIBLE TO SQUARE WITH #Eastman 's own emails to Greg Jacob ("now that ECA is not so sacrosanct, how about you violate the law a bit more")

#Eastman lawyer concedes Court will review the documents for crime-fraud, argument is that they "absolutely believed" it was legal and necessary for the country. Judge David O. Carter looks BEYOND QUIZZICAL at this insane assertion.

#Eastman lawyer wraps up by reiterating the argument, previously rejected by the court, that the 1/6 subpoenas were unconstitutionally broad - this is a stone cold loser & I'm shocked he wasted oral argument time on it.

Doug Letter begins now - taking a step back to explain why were here. 1/6 Cmte subpoenaed #Eastman, he came in, took 5 to every question, gave them nothing. (This is true; @DrJohnEastman refused to answer anything, including questions that couldn't have incriminated him.)

Letter then notes that Chapman University is perfectly happy to turn over all the documents - thinks that the Chapman U email policy is the "clean" way to get to the release of the documents without needing to get into crime/fraud exception.

We haven't really addressed this argument in depth - because it isn't particularly interesting in the context of 1/6 - but #Eastman hasn't really answered why he would have had an expectation of privacy for using his university email in a way that plainly violates their TOS.

Then Letter reminds court that #Eastman is the plaintiff here - bears the burden of proof - uses unsigned agreement as an example. I find it weird that Letter doesn't point out this could have been cured by a Trump affidavit - this is not merely a technical defect.

Another key point by Letter - attorney work product doctrine does not cover political advice by #Eastman, just legal advice - we explain this in some depth on Episode 574 openargs.com/oa574-1-6-comm…

Letter uses as an example when #Eastman says "we couldn't get a single vote in the Supreme Court for this cockamamie theory" that's not serious legal advice, that's a political conclusion.

Next up, Letter points out that #Eastman's lawyer misstates the law on attorney work-product -- you can't just disclose it to anyone, you have to have an expectation of privacy

Letter points out that the "adversary in litigation" standard makes absolutely no sense in the context of a LEGISLATIVE subpoena (issued by 1/6 Cmte vs. #Eastman) versus a private litigation subpoena.

HERE WE GO - crime-fraud #Eastman

Letter begins with EXACTLY THE POINT we made in Episode 574 - this is about whether #Eastman's *client* (Trump) committed crimes and therefore was not entitled to the benefit of attorney-client privilege

Letter then says apparently we're all in agreement that it's time to review the 111 docs for crime-fraud exception - I can even skip over the arguments I was going to make here

Letter seizes on the "smoking gun" document we discussed in 574 - #Eastman, in exhibit N, encouraged Greg Jacob to commit a "minor" violation of the law in support of an insurrection openargs.com/wp-content/upl…

Letter now reads Ex. N again: "I implore you to consider a 'minor' violation of the Electoral Count Act' - sarcastically notes "oh yeah, that would have been 'minor' - minorly overthrowing a popularly-elected President of the US"

Letter cleaning up some responses now, including the scope of waiver when #Eastman went on the Lessig podcast and other media sources to spread his outright lies about his memos

Letter steaming towards his conclusion - the public interest couldn't be greater in #Eastman's documents

Chapman U's lawyer speaks up to clarify some factual issues: 1) with respect to #Eastman's use of their email server, the IRS rules prohibit using Univ resources from working on a campaign

"That's why the university told #Eastman that he couldn't use their email to represent Trump," and Eastman's efforts to cite prior examples of using Chapman email for political stuff are inapposite.

"Those involved testimony before Congress or some other academically valuable activity, not supporting a partisan campaign." In 90 seconds, Chapman's lawyer - this is #Eastman's EMPLOYER - twisted in the knife

10 min break before we get Judge Carter's questions for the parties

First: Judge Carter notes that he has not reviewed any of the 111 documents yet - and the Court will determine whether to conduct an in camera review at the end of the hearing

OOOOF first substantive question when we get back from the break is on the existence of the attorney-client relationship itself; #Eastman has submitted an unsigned, undated engagement letter with Trump

#Eastman's lawyer is to look at the totality of the evidence - so far no one has asked WHY EASTMAN COULDN'T GET AN AFFIDAVIT FROM TRUMP - Letter correctly notes that the burden is on Eastman - who is the client, how far did it extend?

Letter: "Kinda seems weird that this relationship went on for a long time and they never signed anything, doesn't it?"

Judge points out that 1/6 Committee previously asserted in a Nov. 2021 letter that Eastman represented Trump - isn't that contradictory?

Letter's reply: we just don't know.

Next up, Judge asks #Eastman lawyer about the language in the retainer agreement that says it becomes effective "upon signing" - judge says "are you sure there are no other signed agreements?"

(This is an illustration of how good lawyering almost always depends on getting down in the weeds and actually reading documents and parsing them for very specific language.)

Judge now asking about the SCOPE of the engagement, if any. Again, if you're looking for a top-level takeaway, this is a TERRIBLE development for #Eastman - if the judge is convinced there is no attorney/client relationship at all, or the scope doesn't cover these docs...

...then literally none of the rest of these arguments matter and all of the 111 documents can be released. Letter points out we have no idea what the scope of this alleged engagement is - and the most important thing is that #Eastman bears the burden of proof on this point

OOOF: "Should this Court limit the scope of the attorney-client relationship to the terms of the retainer agreement?" - #Eastman says not necessarily but practically, most of the 111 docs will fall within that limitation

Letter: "There's no evidence of any of this."

Judge: retainer is limited to "federal litigation matters in relation to the 2020 Presidential general election, including matters related to the Electoral college" - would the work with state legislatures be within the scope of "federal litigation matters"?

Burnham's answer here on behalf of #Eastman borders on the incoherent - he's saying we get all Electoral College stuff at the state level, even if it's not federal litigation, even though the agreement specifies federal

Letter reiterates that burden rests with Eastman

OOOF, Judge Carter just WILL NOT LET UP on the engagement letter, now asks about the provision that says "anything outside the scope of this engagement letter will require another engagement letter" - #Eastman lawyer Burnham is kind of shell-shocked here

Judge now asking about lawyers identified as "attorney" or "consultant" in the privilege log. Notes that #Eastman has provided NO agreements evidencing hiring co-counsel - are you sure these are within the scope of the engagement?

#Eastman attorney Burnham now takes a long break to confer with client - comes back and concedes there are no agreements and that such agreements would not be required for work-product

says that the attorneys are election attorneys (Sidney Powell?) or worked for Eastman, "it'll be clear from the review"

Letter says that there are dozens, "approaching hundreds" of supposed co-counsel for whom Eastman has claimed privilege - and that many of these people have titles like "strategic advisor" and remember that it must be *legal*, not political or strategic advice to be protected

Judge: "I want to hear from Chapman whether Eastman had a reasonable expectation of privacy for communications with clients through Chapman email, including those at the Chapman clinic."

Plevin (Chapman lawyer): "We've provided the privacy - the policy does not distinguish between clinic emails and other emails - Eastman was a law school dean & there was a splash screen - so no, no expectation of privacy."

Judge Carter to Chapman lawyer: "Is it still your position that representing Trump was improper and that those emails are effectively 'contraband'?" Chapman lawyer laughs, says I guess that's strong language but YES, this could jeopardize our tax-exempt status

Carter asks tough questions of Chapman now - did #Eastman's rep of George W Bush in 2000 election come through the clinic, did it violate IRS policy, is it unauthorized?

And now another break while Chapman's lawyer confers with the University

And we're back, Judge Carter reiterates questions, and adds a fourth - "You appeared to say that no clinical law professor at Chapman has a reasonable expectation of privacy with respect to client communications - do they have a private server for that?" - Plevin doesn't know

after another brief recess, they're still tracking it down. On the substance of Eastman's 2000 work, Plevin (Chapman U lawyer) says that Univ position is that he did not represent W - that Eastman did post-election work "in support of" candidate Bush & that explicit rep of Bush..

..would have violated Univ policy & IRS guidelines just like repping Trump does now. Leaving aside the 4th question, this is a strong answer.

Judge then notes distribution: 106 docs are work-product, 5 are attorney-client communications. Asks Letter "does Chapman email server issue moot work product as well?" Letter consults colleagues- answer is that Chapman intends to comply with the subpoena

Carter then asks Letter about whether clinical law professors have an expectation of privacy - gives 2 responses a) footnote & article by Sisk that Chapman is unusually strong in its policies - another point we made in Ep 574 openargs.com/oa574-1-6-comm…

...b) second response is the admonishment from the President of the Univ - point of both of these is that #Eastman is not like ordinary clinic work

and now we're on to whether "political" advice counts as legal advice - Burnham dissembles; Letter says (correctly) it's a sliding scale - is it "largely" political/campaign - as a fallback notes that you can redact minor law stuff

Now Judge Carter wants to know where to "draw the line" between political & legal advice. Cannot stress highly enough how bad this is for #Eastman - if they lose on ANY of these threshhold questions we don't even *get* to crime/fraud because there's no privilege

hahahaha #Eastman defines political as anything "completely unrelated" to any existing or threatened litigation like fundraising or debate prep. No citation for this, of course. Letter comes back with "courts use 'primary'" and for an example of something that isn't privileged...

..check out Exhibits M and N - for example, telling someone to violate the law probably isn't legal advice. openargs.com/wp-content/upl… openargs.com/wp-content/upl…

Next up, work product doctrine must be "in anticipation of litigation" - privilege log just says "in contemplation of litigation" or "possible litigation" -- wants to know from #Eastman where the line is when "possible" becomes "anticipation."

Burnham is prepared on this point - so is Letter - refers the court to p.31 of their brief which sets out the test - it's "because of" litigation, document would not have been prepared in substantially the form it was prepared

The cases here on anticipation of litigation are ACLU v DOJ, 880 F.3d 473, 485-86 (9th Cir. 2018) (attached below) and United States v. Richey, 632 F.3d
559, 568 (9th Cir. 2011) - these are not good for #Eastman scholar.google.com/scholar_case?c…

BOOOOM: "Doesn't #Eastman's email saying that Pence should throw out electors 'without asking for permission' so as to avoid the courts show this whole thing wasn't prepared in anticipation of litigation?"

Burnham notes that they are not asserting privilege over the two public Eastman memos (in which that language appears) - good answer - but then suggests those memos were prepared 'in anticipation of litigation' which is a super awful answer

Letter's reply notes that the law requires that the party show the work product would have been produced in SUBSTANTIALLY THE SAME FORM as per the ACLU case I quoted upthread. This seems like the easiest hook for Carter to just toss privilege entirely.

Burnham reiterates a key #Eastman lie here - that the memos were just "presenting different scenarios" or "ways this could go" - that's COMPLETE BULLSHIT; the evidence is that Eastman routinely lobbied Pence for one of two very narrow acts, both of which involved unilateral acts

Another rough question for #Eastman - can you name the *actual* litigation that these docs were prepared in connection therewith? Chapman dissembles.

Letter is actually lost here - makes the (correct) point that Eastman did not represent VP Pence so his "advice" to Pence could not possibly have been in anticipation of litigation

Another swing: "what litigation could possibly have been anticipated after the certifications had been concluded?" #Eastman lawyer says: "litigation challenging whatever decision Pence made, which could have named the President as a defendant"

another devastating question from Judge Carter: "Doesn't the email showing #Eastman lobbying Pence to delay the electoral count show that he'd already decided to take extralegal actions?"

hahahahaha #Eastman WHAM line of the day so far by 1/6 Committee lawyer Doug Letter: "Just do it and let them sue doesn't sound like advice in anticipation of litigation to me... it's not legal advice I've ever given."

Now we're getting into 3rd party waiver - which 1/6 lawyer notes #Eastman has claimed includes "pundits" - we told you that the name of one of these "pundits" is redacted from initial filing (Tucker Carlson?) - see also tomorrow's @aisle45pod with @MuellerSheWrote

@aisle45pod @MuellerSheWrote Three remaining areas after 10 minute break - 1) third parties, 2) crime-fraud, and 3) attorney-client relationship between Eastman and Trump (AGAIN!)

@aisle45pod @MuellerSheWrote First question back: FRCP 26(b)(3) protects documents prepared "in anticipation of litigation" - does that require that 3rd parties have an actual agency relationship with #Eastman? Burnham: No Letter: Yes

"Does the work product privilege require that the 3P consultants know of anticipated litigation?" Burnham: No Letter: Yes

"Does 26(b)(3) protect stuff sent by consultants to the lawyer?" Burnham: "if it reveals attorney-client impressions?" Letter: "they're claiming this over UNSOLICITED materials"

Judge then asks Burnham about unsolicited communications, says that's not work product but could become such if #Eastman developed legal impressions on follow-up

Judge: "Attorney's work was sufficiently related to and in furtherance of that crime. 1/6 alleges obstruction, conspiracy, and common-law fraud. The standard is substantially lower than that required for criminal conviction. How should I determine which docs are in furtherance?"

Burnham: 1) Def hasn't met burden for you to consider it (?!?); 2) standard is a fact-intensive inquiry, the client has to use the advice in connection with the offense; 3) we think burden not satisfied here

Letter clarifies - we assert Trump committed 2 crimes (obstruction 18 USC 1512(c) and conspiracy 18 USC 371) plus common-law fraud for crime-fraud exception - our view is that Eastman's advice became "a key part of the message Trump was putting out to overturn the election"

OOOOOOOOOOOOOH - Court: "#Eastman has asked for exculpatory evidence from 1/6 Committee - why didn't you introduce your own exculpatory evidence?"

Judge: "If an attorney believes that a law is unconstitutional, does that excuse a violation of that law?" - YOU WILL SEE THIS IN CARTER'S OPINION

Letter is basically stunned here - "I cannot believe a scholar of Dr. Eastman's caliber could have possibly thought this position was reasonable."

Judge: "Why didn't #Eastman challenge the Electoral Count Act in the courts?" Burnham: "I don't want to disclose attorney-client privilege... there were practical and strategic reasons." That's not going to go over great.

It's basically conceding that @DrJohnEastman thought they had a better chance of pulling off an insurrection than winning in court.

Now a 5 min break before closing arguments.

Judge takes one more shot at getting an answer from Plevin (Chapman U atty) as to what protections Chapman provides for clinic clients - answer is that a) there's no specific server but b) the U AUTHORIZES clinic clients so there IS an expectation of privacy for that

That answer knocks it out of the park and I think we might see judge rule no attorney/client relationship because no expectation of privacy.

#Eastman close: "Even a flagrant violation of Chapman email policies does not amount to a waiver of attorney-client privilege - we don't accept their distinction - we don't think repping a candidate violates IRS rules - candidates do that all the time" (Not true.)

(The fact that #Eastman's lawyer is spending summation time on this part is confirmation of just how bad today was for him.)

Next up: the beyond bizarre argument that because the 1/6 Committee never engages in litigation, #Eastman can never waive work-product -- this turns the plaintiff's burden on its head

LOL Burnham tries to walk back his concession that the Court will review the docs in camera - I'm guessing #Eastman chewed his ass out during the break over THAT one

Burnham "doesn't want to do a deep dive" on the constitutionality of the Electoral Count Act...

"These sorts of arguments crop up every four years and nothing before Your Honor is unusual at any point in history" - I'm reasonably impressed with Burnham's ability to spew that lie with a straight face.

Burnham's most honest statement on the day: "I argue stuff all the time I expect to lose on."

Burnham ends his closing arguments by ... reiterating their already-denied motion that the Committee produce Brady/Giglio exculpatory evidence? I have NO IDEA what or why or how or in what universe Burnham thinks this is a smart plan and it defies basic common sense

Letter begins by clarifying that this is a legislative, not a litigation subpoena, so Burnham's argument that the 1/6 Committee doesn't engage in litigation is... and this is a direct quote: "Well, duh."

Letter's next argument: can't use privilege as a sword and a shield - discuss all sorts of stuff in public but then retreat behind the privilege when questioned

Letter ends with: "It's @DrJohnEastman's burden to provide this court with sufficient evidence to enjoin a legal subpoena & he hasn't come close to that" - 1) no signed engagement letter, 2) hundreds of 3P disclosures, 3) bare-bones privilege log

hearing ends with no official ruling from Judge Carter - I'm a little surprised, I thought we'd get at least "I'm going to review the documents in camera" but perhaps this is an indication he's going to go with a blanket release