House Panel on Jan. 6 Insurrection Argues in Court – Finally – that Trump and Allies Conspired to Defraud the US and Obstruct Official Proceedings

When in law school years ago, we were taught in a Legal Ethics class that the attorney-client privilege was very strong. Yet, the privilege would not stand up if it was being used to hide criminal activity. That rule is well-accepted. Attorney-client communications cannot be used to conceal crimes by the client.

And that is exactly what lawyers for the House panel investigating the January 6, 2021 attack on the Capitol argued in a federal court filing Wednesday. Former president Donald Trump and key allies were involved in potential crimes. Therefore, Trump lawyer John Eastman’s claim of privilege is voided by the “crime/fraud exception” to the confidentiality usually accorded attorneys and their clients.

What were the potential crimes?

Trump and his cohorts tried to overturn the election; specifically, conspiring to defraud the United States and obstructing an official congressional proceeding — the counting of electoral votes. The filing asserts:

“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.”

Further, the filing states:

“As the courts were overwhelmingly ruling against President Trump’s claims of election misconduct, he and his associates began to plan extra-judicial efforts to overturn the results of the election and prevent the President-elect from assuming office.

At the heart of these efforts was an aggressive public misinformation campaign to persuade millions of Americans that the election had in fact been stolen. The President and his associates persisted in making ‘stolen election’ claims even after the President’s own appointees at the Department of Justice and the Department of Homeland Security, along with his own campaign staff, had informed the President that his claims were wrong.”

According to the Washington Post:

The filing is intended to challenge Eastman’s claim that he should not be required to turn over thousands of emails the committee has requested — and it attempts to show that Eastman directly encouraged people in the government to not follow the Electoral Count Act, the 1887 law governing the congressional certification process.

Eastman has so far submitted roughly 8,000 pages of emails to committee investigators but is withholding about 11,000 documents, citing attorney-client privilege. Last month, a U.S. district judge in California ordered an expedited schedule to review Eastman’s bid to shield emails sent between Jan. 4 and Jan. 7.

The committee’s deposition showed that Eastman declined repeatedly to answer questions when interviewed by the panel, pleading the Fifth Amendment.

The Panel’s lawyers argued that documents will demonstrate that lawyer Eastman “provided advice to advance an agreement to impede the transfer of power to the President elect and the Vice President elect.”

They will show Eastman “provided advice to advance efforts to obstruct, impede, or influence the counting of electoral college ballots before a Joint Session of Congress.” The former president and others “may have been involved in common law fraud in connections with their efforts to overturn the 2020 election results.”

Even though Trump was repeatedly told that his claims of election fraud were not supported by evidence, Trump continued to push the stolen election thesis publicly.

“The President nevertheless continued to insist falsely through January that he had ‘won the election in a landslide.’ And despite being repeatedly told that his allegations of campaign fraud were false, the President continued to feature those same false allegations in ads seen by millions of Americans.”

The panel’s chair, Rep. Bennie G. Thompson (D-Miss.), and vice chair, Rep. Liz Cheney (R-Wyo.), issued a joint statement:

“The facts we’ve gathered strongly suggest that Dr. Eastman’s emails may show that he helped Donald Trump advance a corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power.”

This filing is a head-turner, for at last, government lawyers are in court arguing – based on the panel’s findings – that Trump and some of his allies potentially committed crimes during the effort to overturn Biden’s victory and by falsely stating repeatedly that the election was stolen.

Now, this particular legal skirmish is not the big one. It only will decide whether Eastman has to turn over thousands of documents he claimed were protected by the attorney-client privilege. And from my law school days, it should be a slam-dunk. Let’s get on with actually charging Trump with conspiracy and crimes.