The filing is part of his bid to keep the House committee investigating the Jan. 6 riot at the Capitol from seeing hundreds of his emails.
Carter then sided with the committee’s argument that Eastman’s claims of attorney-client privilege can be overcome by allegations that he engaged in a criminal conspiracy with then- President Donald Trump to interfere with Congress’ certification of the 2020 presidential election.
In the new 50-page brief, filed late Thursday, Eastman pushed back, arguing that he actually made a good-faith effort to investigate election fraud allegations. Carter ruled that Eastman “more likely than not” sought to obstruct the certification of Joe Biden’s election as president.
“That prior holding makes the veracity of the select committee’s accusations all the more important, and a key issue underlying this dispute over privileged documents,” Eastman’s attorneys wrote in the brief.
“For if, as seemed clear to Dr. Eastman and his client at the time, there was illegality and fraud in the election of sufficient magnitude to have altered the outcome of the election, then far from `undermining’ democracy, Dr. Eastman’s actions and advice must be seen for what they were – a legitimate attempt to prevent a stolen election,” the attorneys wrote. “Perhaps Dr. Eastman was wrong about that. But even if he was, being wrong about factual claims is not and never had been criminal – indeed, it is constitutionally protected … unless the claims were known to be false when made.”
Eastman, according to Politico.com, also outlined his communications with Trump and his team in the filing, providing “the clearest insight yet into the blizzard of communications between Trump, his top aides, his campaign lawyers and (an) army of outside attorneys.”
In addition to the emails, two handwritten notes from Trump are among the documents Eastman wants to keep from the Jan. 6 committee, Politico noted. The notes, the filing said, contained “information that (Trump) thought might be useful for the anticipated litigation.”
Eastman’s attorneys also argued there is “mounting evidence about the scope of illegality and fraud in the 2020 election.”
Trump’s former U.S. Attorney William Barr, Homeland Security Director Christopher Krebs and FBI Director Christopher Wray, however, each have refuted claims of widespread election fraud.
“The select committee has accused Dr. Eastman and his client of acting to obstruct the joint session of Congress with corrupt intent, based on its claim that Dr. Eastman and his client (and others) engaged in the `big lie’ about election illegality and fraud,” the attorneys wrote. “But that claim, that premise, is itself false. One might even say that the assertion of a `big lie’ is itself the actual big lie.”
Eastman also said he did not attempt to have the certification of Biden’s election blocked. Rather, his attorneys argued, he was pushing for former Vice President Mike Pence to delay certification to investigate election fraud claims.
Eastman’s attorneys also go into detail about his work for Trump and his campaign, arguing that many of the emails being sought by the committee should not be turned over.
They said his representation with Trump as a candidate began two months before the Nov. 3, 2020, election when “he was invited by Cleta Mitchell to join an Election Integrity Working Group to begin preparing for anticipated litigation, and kicked into high gear when he was asked to meet with the campaign’s legal team in Philadelphia on Nov. 7, 2020, to assist with the preparation of an election challenge being prepared.”
Eastman advised Trump in his legal battles with Georgia election officials, where Biden won by a narrow margin. He also asserted attorney-client privilege in the lawsuit filed by Texas against Pennsylvania on the election results. He helped the filing of appeals to the Pennsylvania state Supreme Court, which rejected another challenge to election results in the state.
Eastman said he was also asserting the privilege for emails and legal drafts in the Trump campaign’s lawsuit challenging election results in Wisconsin.
He argues he should not have to turn over documents related to his communications with congressional representatives and state lawmakers during Jan. 4-7, 2021.
Eastman also sought to shield from the public emails with an “opinion editor at Newsweek,” who is “also a research fellow at the Edmund Burke Foundation and a former John Marshall Fellow at the Claremont Institute” based on the argument that the recipient of the correspondence served a “dual role” as attorney and media figure.
A dozen documents at issue, he said, include “communications” between Eastman and a radio talk show host, who is also an attorney, and former fellow at the Claremont Institute. Politico identifies one of his media contacts as Fox News host Mark Levin.
Eastman retired from Chapman in January as the university president responded to pressure regarding his association with Trump.
– City News Service and staff reports