Attorney-client privilege does not apply if John Eastman and Donald Trump committed crimes
John Eastman (CBS Denver/screen grab)

We learned this week the J6 committee is investigating former President Donald Trump and his advisor John Eastman for the same offense many foot soldiers of the insurrection are charged with.

The committee suspects Trump and Eastman obstructed an official proceeding, a felony punishable by up to 20 years in prison.

So many J6 insurgents are charged with this crime that Buzzfeed ran a trend piece on the phenomenon. Some insurgents already pleaded guilty and others failed in their attempts to get the charge thrown out.

A charge of disrupting an official proceeding would be a straightforward way to bridge the gap between the shock troops at the United States Capitol and the orchestrators of the insurrection.

If ordinary goons are guilty of disrupting an official proceeding by rushing the seat of government, then arguably the ringleaders who incited them to do so are guilty as well.

This charge might also be a way to fit the procedural coup into the framework of the criminal law. However, we’re still a long way from seeing Trump and Eastman stand trial.

The J6 committee tipped its hand in a brief filed in federal court in California on Wednesday. This is a civil case where the committee is asking a judge to review the 11,000 documents Eastman is withholding in the name of attorney-client privilege.

These documents can be expected to deepen the committee’s understanding of the well-established Trump-Eastman plot to disrupt the certification of the 2020 election by enlisting Mike Pence to abort the ceremony on legally specious grounds in order to send the vote “back to the states” on an equally flimsy pretext.

Eastman is a lawyer, at least for now, but it’s not clear he was acting as Trump’s attorney when he schemed with the former president.

In any case, attorney-client privilege doesn’t apply to advising clients on how to commit crimes, let alone to coms about crimes a client and a lawyer do together.

So the J6 committee’s lawyers listed all the crimes they have good reason to think Trump and Eastman committed together.

The committee doesn’t have to prove Eastman and Trump are guilty. So far, it’s just asking the judge to look over Eastman’s supposedly privileged trove of documents in private to see if they contain any evidence of these alleged crimes.

If so, the argument goes, those documents aren’t really privileged and Eastman must hand them over.

To prove that Eastman and Trump committed the crimes they are alleged to have committed, a hypothetical prosecutor would have to show they knew they were breaking the law, and possibly also that they knew claims of massive election fraud, the ones that formed the pretext for the procedural coup, were false.

If Mike Pence had aborted the certification ceremony on their orders, it would certainly have interrupted an official proceeding. But did Trump and Eastman know they were committing a crime when they badgered Pence to do so, as opposed to pursuing a dubious legal/political strategy?

The ignoble fiction running through this whole saga is that Eastman was simply giving Trump advice on how to legally send the election “back to the states.” In this case, the line between crankery and criminality is blurry.

However, in one of his infamous memos, Eastman acknowledges that his plan is legally questionable at best. He falsely asserts that because Joe Biden stole the election, the team Trump is entitled to ignore “Queensbury Rules,” i.e., the rules against fighting dirty.

The fact that Eastman invoked the Fifth Amendment 146 times in his testimony to the J6 committee means the former law professor believes discussing his actions, in this case, would incriminate him.

The brief makes a compelling argument that Trump knew, or should have known, that his claims of massive election fraud were false.

After all, he was informed by everyone from his campaign data analyst to his senior appointees at the Department of Justice and the Department of Homeland Security, to state-level elections investigators – everyone said he lost fair and square.

The J6 committee has no authority to charge anyone with a crime on its own, but depending on what their investigation reveals, the committee may ultimately make a criminal referral to the DOJ.

It can’t force it to open a criminal investigation on Trump or anyone else, but such a referral would put significant pressure on US Attorney General Merrick Garland to launch a criminal probe.

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