Judge orders Trump attorney to turn over documents to Jan. 6 panel

A federal judge ordered former President Trump’s legal adviser, John Eastman, to turn over another batch of 159 documents subpoenaed by the House Jan. 6 select committee, including a single email he found to likely be part of a criminal effort to overturn the 2020 election. 

The late Tuesday ruling adds to a decision earlier this year finding that Eastman, who crafted two memos outlining the Trump campaign strategy to block the Jan. 6, 2021, Electoral College certification, cannot shield some of his work from the committee by claiming attorney-client privilege because he participated in a project to undermine the election that was likely criminal.

Judge David Carter, a California-based federal judge who has been reviewing Eastman’s correspondence, found that Trump and his team may have engaged in criminal activity in early December 2020, writing that his emails “confirm that the plan was established well before January 6, 2021.”

“Dr. Eastman and President Trump’s plan to stop the count was not only established by early December, it was the ultimate goal that the legal team was working to protect from that point forward,” Carter wrote.

The judge gave Eastman until 5 p.m. Wednesday to turn over the latest batch of records.

Eastman detailed two strategies for the Trump campaign: one encouraging former Vice President Mike Pence’s availability to buck his ceremonial duty to certify the election results on Jan. 6, 2021, and the other advising sending “alternate electors” from states that Trump had lost.

In a March ruling, Carter wrote that “the illegality of the plan was obvious” and deemed it “a coup in search of a legal theory.”

Eastman’s actions, Carter found Tuesday, implicates the crime-fraud exception, a loophole in the otherwise broad attorney-client privilege that forfeits the protection from disclosure if an attorney “more likely than not” aided in a criminal or fraudulent enterprise.

Carter wrote that five of Eastman’s documents detail a discussion among Trump’s broader legal team about whether to bring a case that would raise questions about Pence’s availability on Jan. 6, 2021, to reject the election results.

According to the ruling, an attorney involved in the effort wrote in a Dec. 22, 2020, email that a negative ruling would “tank the January 6 strategy.” Carter wrote that the concern over “near-zero chance of success” in court appeared to drive them to pursue a political strategy.

“This email cemented the direction of the January 6 plan,” Carter wrote. 

“The Trump legal team chose not to seek recourse in court—instead, they forged ahead with a political campaign to disrupt the electoral count. Lawyers are free not to bring cases; they are not free to evade judicial review to overturn a democratic election,” he determined.

The ruling also rejects certain documents Eastman was hoping to shield through First Amendment claims, including emails related to meetings on Dec. 9 and 16, 2020, to discuss the campaign’s “ground game.”

Some of those emails include correspondence with a “high-profile leader” to discuss “state legislative actions that can reverse the media-called election for Joe Biden.” 

Both meetings were with what Eastman described as “civic minded citizens of a conservative viewpoint.” The Dec. 9 meeting included comments from an unidentified sitting lawmaker to discuss a “plan to challenge the electors in the House of Representatives,” while the Dec. 16 meeting included “an elector for President Trump” who would discuss the Electoral College.

Carter determined that withholding these documents from the panel “incorrectly limits the Select Committee’s mandate.”

“Dr. Eastman admitted that his January 6 plan hinged on ‘electors get[ting] a certification from their State Legislators’—without it, the dueling slates would be ‘dead on arrival in Congress,’” Carter wrote.

“Dr. Eastman’s actions in these few weeks indicate that his and President Trump’s pressure campaign to stop the electoral count did not end with Vice President Pence—it targeted every tier of federal and state elected officials. Convincing state legislatures to certify competing electors was essential to stop the count and ensure President Trump’s reelection.” 

The decision is the second ordering Eastman to turn over documents to the committee after he tried to shield some 37,000 documents from the panel. Carter previously ordered the attorney to review at least 1,000 of his emails every day.

Carter’s March ruling was widely quoted in a business meeting by the panel that month as it sought to censure two former advisers to Trump that refused to comply with their subpoenas.

The latest ruling comes ahead of the select committee’s primetime public hearing on Thursday evening. Carter’s findings that Trump’s effort was likely criminal has no direct impact on whether he or Eastman will face prosecution, but the rulings have provided momentum for lawmakers eager to lay out their case to the public.