John Eastman appears on screen during the fourth hearing by the Jan. 6 Committee on June 21, 2022, in Washington, DC. (Photo by MANDEL NGAN/AFP via Getty Images)
Lawyers for the Jan. 6 Committee say John Eastman “seeks a flagrantly unconstitutional remedy” from the 9th Circuit U.S. Court of Appeals over a California federal judge’s email disclosure order regarding Georgia voter fraud.
A brief filed late Tuesday blames Eastman’s “own litigation missteps” for the committee accessing eight emails that Eastman wants the 9th Circuit to declare off limits for the Congressional investigation of the Jan. 6, 2021, attack on the U.S. Capitol.
“This emergency request arises now solely because Dr. Eastman waited until the last minute—and beyond—to seek relief from this Court,” according to the brief signed by Douglas Letter, general counsel for the U.S. House of Representatives.
“The Constitutional separation of powers does not allow the judiciary to restrain Congress in this manner, and we are not aware of any court ever issuing such an order against Congress,” the brief reads. And even if Eastman’s requested relief weren’t unconstitutional “he provides no reason why the district court’s disclosure order here was incorrect.”
The 29-page filing responds to Eastman’s 10-page motion on Friday asking for the 9th Circuit to halt him from having to disclose eight emails from his Chapman University account that U.S. District Judge David O. Carter determined are privileged but still should be given to the committee because they were written in furtherance of a criminal effort to obstruct election proceedings and defraud the United States. Carter said the emails show Trump knowingly pushed false voter fraud information to the public and in a U.S. District Court lawsuit challenging the Georgia election results.
Eastman’s bid to block the committee from reviewing them took a twist when he supplemented his 9th Circuit stay request on Sunday explaining that the committee already obtained the emails through a link he’d requested not be accessed until the 9th Circuit rules on his request to stay Carter’s order. Now he wants the committee barred from using the emails in its investigation, and he’s appealing Carter’s ruling that the emails were written in furtherance of a criminal effort to obstruct election proceedings and defraud the United States.
The emails were publicly available for viewing through the DropBox link that Eastman’s counsel sent the Jan. 6 Committee, which is available in the court filings. Some have since been deleted, but Politico has uploaded them to Documentcloud.org. They include Eastman and Kenneth Chesebro discussing ways to convince Republican congressional members to object to the electoral certification, with Chesebro writing on Dec. 31, 2020, “Realistically, our only chance to get a favorable judicial opinion by Jan. 6, which might hold up the Georgia count in Congress, is from Thomas — do you agree, Prof. Eastman?”
Eastman’s lawyers Charles Burnham and Alexander Cato have said their appeal will challenge Carter’s previous orders applying the crime-fraud exception to privileged documents, one in March and one in June. The orders have repeatedly been cited by committee members, particularly Carter’s March finding that called Eastman and Trump’s plan “a coup in search of a legal theory.” Carter’s last order on Oct. 19 went much further on the crime-fraud exception, ordering the eight privileged emails disclosed, including two the judge had called “a close call” in June but determined didn’t need to be disclosed. He changed his mind after reviewing additional emails that provided more context, according to the Oct. 19 order.
Carter ordered Eastman to disclose the eight emails, as well as 25 emails determined to be non-privileged, to the committee by Friday at 2 p.m. Pacific time. Eastman filed a motion to reconsider on Thursday, and his lawyers emailed 9th Circuit Judge Sandra Segal Ikuta on Friday at 11:48 a.m. “purporting to file an Emergency Motion for Stay with a single circuit judge pursuant to” the Federal Rules of Appellate Procedure.
Eastman didn’t file the document with the 9th Circuit through the electronic docketing system, but he filed a motion 31 minutes before disclosure deadline asking Carter for an extra week.
“Dr. Eastman provided no explanation to the district court as to why the nine days between the district court’s order and its deadline for production had been insufficient for him to have obtained this Court’s review of a stay motion,” according to the brief. “Nor did he mention in his district court papers his earlier email to Judge Ikuta.”
Carter rejected the reconsideration motion at 1:48 p.m., then denied motion for a deadline extension two minutes later. At 1:53 p.m., committee lawyers received an email from Eastman’s lawyers with a link to the eight emails Carter ordered disclosed, including the eight still in dispute.
Tuesday night’s brief cites seven reasons for committee lawyer’s ignoring the email’s stated request that they not review them until the 9th Circuit rules, including that Eastman had not yet filed a stay motion with the 9th Circuit.
It also says other cases have cited the U.S. Constitution’s Speech or Debate Clause when rejecting requests similar to Eastman’s, with the D.C. Circuit repeatedly finding “that the Speech or Debate Clause and the separation of powers prevent federal courts from ordering a Congressional committee to return, or to refrain from using, materials in its possession.”
“The D.C. Circuit reached the same conclusion even where—unlike here—the plaintiff alleged that Members of Congress acquired documents illegally,” according to the brief, citing the court’s 1995 ruling in Brown & Williamson Tobacco Corp.
The brief also said Eastman “submitted the substance of his merits arguments ex parte, thereby depriving Congressional Defendants of a meaningful opportunity to respond.” But the documents they have seen don’t cast doubt on Carters rulings.
“To the contrary, these documents do little more than attach and confirm the filing of President Trump’s Georgia verification that the district court described as incorporating ‘specific numbers of voter fraud’ ‘that President Trump knew … were wrong’ but nevertheless ‘continued to tout … both in court and to the public.'”
The brief also argues that public interest “strongly” favors the committee, saying the “completion of this investigation in a thorough fashion is of immense public interest.”
“As the district court concluded, Dr. Eastman’s legal advice was related to and in furtherance of the likely commission of at least two federal felonies intended to thwart the peaceful transfer of Presidential power,” according to the brief. “These matters are of significant interest to the Select Committee and the Congress as a whole. Indeed, they form the foundation of the Select Committee’s efforts to fashion legislative remedies so that an attack of this kind never happens again.”
It ends by saying the 9th Circuit “should not alter the status quo and order a Congressional committee to return and disregard material that it received due to compliance with a court order.”
“Besides the grave Constitutional concerns, such an order is simply not warranted to save Dr. Eastman from his own litigation missteps,” according to the brief.
Eastman has until the end of Wednesday to file an optional reply.