Thread by @Teri_Kanefield

The Eastman v. Jan. 6 committee saga continues.

We have another ruling: politico.com/f/?id=0000017f…

(Spoiler: It isn't good for Eastman.)

Brief recap:

🔹The J6 committee wants Eastman's emails.
🔹Eastman tried to withhold some claiming attorney-client privilege . . .

1/

(Basically, this means that Eastman is claiming that the committee can’t have these particular emails because they are privileged communication between him and his client, Donald Trump.)

He also claims work-product (privileged because written in anticipation of litigation)

2/

The committee responded by invoking the crime-fraud exception, which says there is no attorney-client privilege over legal advice was given in furtherance of illegal or fraudulent activity.

They also said no, these were not in anticipation of litigation. . .

3/

. . .Eastman was trying to get Pence to behave illegally.

The procedure goes like this: If the committee makes a showing that the materials may reveal evidence that information in the materials is not privileged, the court decides whether to review the email privately.

3/

In deciding whether to review the emails to see if they are in fact privileged (or the crime-fraud exception applies) the court applies these factors ⤵️

Conclusion: The committee met its burden (The evidence supports the claim that the emails are not privileged.)

4/

Next the court decided that it SHOULD review the emails privately (in camera) to determine whether they are in fact privileged.

Conclusion: The court will review the emails.

5/

The Court will determine for each document whether any privilege exists, whether that privilege was waived, and whether any exceptions apply.

The Court will then issue analysis and its final determination of which, if any, documents must be disclosed to the Select Committee.

6/

I just realized I have two #3s on this thread 😆.

Possible outcomes:
🔹Yes, they are privileged. They don't go to the committee.
(I wouldn't bet on this one).
🔹No, they are not privileged. Depending on what the court has to say, this could be devastating for Eastman. . .

7/

. . . if the court says that the crime-fraud exception applies, given that essentially this would be saying that Eastman was helping his client engage in illegal or fraudulent activity.

If you forgot why Eastman is important, I wrote about him here: washingtonpost.com/outlook/2021/0…

8/

Sounds like this judge ("the court") will do it. Unlike, say, Rudy Guiliani's phone, there won't be gazillions of them. The search is targeted and it's not like he's trying to withhold hundreds.

https://twitter.com/Matthew_Shadle/status/1501724485258518532

9/

I'd say weeks.

Someone asked about appeals. Don't worry about that for several reasons. For one, appellate courts review whether the correct law has been applied. There's nothing here to appeal. And Eastman would need a stay or injunction. . .

https://twitter.com/dcdeejay/status/1501725216149442562

. . . and that's just not going to happen.

I wouldn't want to be John Eastman right now.

Also, yes, there are only 111 challenged emails, so this won't take long. (h/t @darinp2)

Is law and procedure fun?

Actually, Civil Procedure was Ruth Bader Ginsburg's favorite course in law school because fair procedures are what makes rule of law work.

Procedures have to be carefully neutral because they apply to people we like and people we don't like.

No, I don't. The two investigations have different goals and are proceeding differently. The committee wants the "story." What happened . . . and lay it out in a way that Americans can understand it.

The DOJ is working its way up the chain. . .

https://twitter.com/catvideos6/status/1501724829958901764

If you picture the perpetrators of the insurrection (including the fundraisers and planners) as a ladder like this:
Lowest rung: people caught up in the moment, who got swept along and committed vandalism.
Top rung: The people who planned it as a deliberate strategy. . .

. . . and set it in motion with criminal intent.

Recently the DOJ has gone a few rungs up the ladder by:
🔹charging seditious conspiracy
🔹going after people who planned the insurrection but were not actually there

Each rung takes time because the idea . . .

. . . is to get people to flip on those higher on the ladder.

Ideally, the prosecutors want guilty pleas from the middle of the rung.

Merrick Garland explained it all here: justice.gov/opa/speech/att…
Key excerpts:

Suggesting that Garland "waiting" for something is to basically call him a liar.

The plain evidence, given the recent indictments, is that the DOJ is doing exactly this⤵️

But it's boring! Nobody wants boring news! People want to be enraged!

So you gotta make stuff up.

Oops. I uploaded the same except twice. Oops.

Garland also said this:

Trials are risky. You never know what a jury will do. Guilty pleas are safer for the prosecutor. But they take time because you gotta pressure people.

They just got an important guilty plea.

Okay, maybe "make stuff up" was harsh.
But nobody except DOJ insiders know what's going on.

Better words: Speculate. Hypothesize. Say things like: like "If Merrick Garland was investigating Trump we would know because . . . "

It's less boring.

My position is to take Merrick Garland at his word because I have no reason not to.

Time will tell.

I looked through the comments, and I saw much cynicism.

I have a few things to say about the dangers of cynicism.
If you're interested, see: terikanefield.com/cynicism-and-t…
(My thoughts on cynicism build on earlier ideas, also referenced.)