The House Jan. 6 committee filed a blockbuster brief in federal court on Thursday alleging a criminal conspiracy involving former President Donald Trump. Ironically, the actual legal issues raised in the filing are lackluster, run-of-the-mill stuff. And Congress has no judicial power to indict, prosecute, try, secure a conviction and recommend prison sentences for anyone, ever. Its job is confined to gathering information for purposes of assisting its legislative efforts and other tasks set forth within the scope Article I of the Constitution. The brief is nonetheless substantially noteworthy.
The technical question raised in this litigation is whether John Eastman, adviser to Trump in and around the November 2020 election and Jan. 6 insurrection, must respond to the select committee’s subpoena for information. Eastman already testified, invoking his Fifth Amendment right against self-incrimination in response to 146 questions asked by the committee. The current spat involves requests for documents dated Jan. 4-7, 2021, which are in the possession of Eastman’s former employer, Chapman University. Eastman was a law professor at Chapman until he resigned on Jan. 13, 2021 — seven days after the Capitol insurrection. Eastman initiated this action in order to stop Chapman from responding to the subpoena request.
Eastman is claiming the documents are protected by attorney-client privilege and the work product doctrine, which are routine objections raised in routine litigation in lawsuits across the country. But this is no ordinary proceeding, and that’s precisely why House committee lawyers went so far in their brief to tell the court — and the world — that “[t]he Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States.”
Some legal basics: In general, information is freely and broadly shared in the U.S. legal system and in congressional investigations, on the theory that getting to the full facts produces the best outcomes. A party that receives a request for information by subpoena usually must respond unless it’s irrelevant to the proceeding (very hard to show), overburdensome (also hard to show in the digital age when data searches are commonplace), privileged (a standard that requires an attorney-client relationship and a confidential communication entailing actual legal advice) or attorney work product (a legal concept that essentially protects against attorneys freeloading on opposing attorneys’ work, especially when it comes to strategy).
Eastman is claiming the last two — attorney client privilege and work product —to dodge the Jan. 6 committee’s request. The trouble is that these documents aren’t his — they belong to Chapman because Eastman used his work email to communicate with the Trump team. Moreover, the committee asserts that Eastman hasn’t turned over a signed engagement letter or other evidence demonstrably showing that he and Trump were actually in an attorney-client relationship. (Just because you chat with your friend who happens to be an attorney over lunch doesn’t make that relationship — or your conversation — privileged.)
The committee also notes that a number of the communications “were received by various third parties.” If they weren’t confidential, they aren’t privileged, because the point of the privilege is to encourage folks to work with attorneys, knowing that they can be candid without the bean-spilling coming back later to haunt them. Finally, the law requires that privilege be asserted document-by-document. Even if you engage a lawyer, your discussion about whether to order still or sparkling water at lunch has nothing to do with legal advice, so it’s not protected from disclosure. Here, the committee contends, Eastman has claimed a blanket privilege without “establishing the advice as legal (as opposed to political or strategic)” on a record-by-record basis.
So, the ABCs of privilege law arguably don’t apply.
The same goes for the work product doctrine, which only gets triggered for documents prepared “in anticipation of litigation.” The notion is that attorney-advocates need to do their own spadework before trial. If a document concerns attorney advice regarding a routine internal audit, for example, it’s not protected by work product. It may be privileged, but it’s not work product. The committee notes that “many (if not the vast majority) of the communications at issue involved efforts to interfere with the counting of the electoral votes on January 6 in violation of the Electoral Count Act” — not concerns that Trump would later be sued.
Assuming for the sake of argument that Eastman overcomes these rudimentary hurdles, the committee argues that the so-called “crime fraud exception” to attorney client privilege applies here. A client cannot ask an attorney where to “bury the body” and then hide behind the privilege, for example. That information isn’t covered because attorneys shouldn’t be given a pass on their involvement in crimes.
On the crime-fraud exception, the committee is unrelenting. Here are the key takeaways:
- “The evidence detailed above provides, at minimum, a good-faith basis for concluding that President Trump has violated section 18 U.S.C. § 1512(c)(2),” obstruction of an official proceeding.
- “The evidence supports an inference that President Trump and members of his campaign knew he had not won enough legitimate state electoral votes to be declared the winner of the 2020 Presidential election during the January 6 Joint Session of Congress, but the President nevertheless sought to use the Vice President to manipulate the results in his favor.”
- “The evidence is also more than sufficient to establish a good faith belief that [Eastman]’s advice was used to further these ends. [He] was the architect of the strategies proposed to the Vice President both directly and through his staff.”
- “The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States.”
- “The evidence supports an inference that President Trump, Plaintiff, and several others entered into an agreement to defraud the United States by interfering with the election certification process, disseminating false information about election fraud, and pressuring state officials to alter state election results and federal officials to assist in that effort.”
The reason these statements are significant is that the team of lawyers heading this investigation includes former federal prosecutors. These folks know what they are doing. They would not put these allegations in a federal filing if they did not believe they already have the evidence to back them up. It’s not hard to imagine, therefore, a hand-off of a report to the Department of Justice (DOJ) that that is so strong in its factual, legal and analytical heft that DOJ’s current prosecutors need only add what amounts to finishing touches through a grand jury to take it to the next level — i.e., indictments of higher-ups, not just the rebels on the ground that day.
So, for those who are hand-wringing that Attorney General Merrick Garland isn’t doing enough, fast enough: Fear not. Accountability, in some form or another, is coming.
Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why” (February 2022). Follow her on Twitter: @kimwehle