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‘Legal Equivalent of Flop Sweat’: Lawyers Savage John Eastman Lawsuit Against Verizon Over Phone Records Related to Jan. 6

Colin KalmbacherDec 15th, 2021, 1:08 pm
 
John Eastman

Former law prrofessor John Eastman speaking at the pro-Trump “Stop the Stea” rally immediately before the Capitol was stormed.

John Eastman, a former law professor who authored an infamous legal memo which said then-Vice President Mike Pence had the power to ignore the results of the 2020 presidential election on behalf of then-President Donald Trump, is suing telecommunications company Verizon, as well as the U.S. House Select Committee on the January 6 Attack and the committee chair, in an effort to stop congressional investigators from obtaining his cellular phone records.

Filed in the U.S. District Court for the District of Columbia on Monday, the lawsuit seeks an injunction by arguing the committee’s subpoena was issued “in furtherance of law enforcement rather than legislative purposes ” and is therefore “invalid and unenforceable.” The filing also raises attorney-client privilege and constitutional claims.

“Without prior notice to Dr. Eastman, the J6 Committee issued a subpoena to Verizon requesting records for Dr. Eastman’s personal cell phone,” the lawsuit says, arguing the lack of such notice violates a federal law regarding the required disclosure of customer data.

Subpoenas were recently issued to at least 10 people considered members of the former president’s inner circle for information related to the Jan. 6 attack on the national seat of legislative government.

Separate subpoenas were issued to Verizon seeking several categories of data related to certain phone numbers believed to be relevant to the ongoing congressional inquiry. Eastman’s number appeared in that collection of numbers along with phone numbers for several organizers of the Jan. 6 rally. Four of those organizers filed their own lawsuit against Verizon on Monday seeking to stop the company from complying with the government’s request.

Eastman’s lawsuit mainly aims to keep congressional investigators from obtaining all “call, message (SMS & MMS), Internet Protocol (IP), and data-connection detail records” associated with his phone number “including all phone numbers, IP addresses, or devices that communicated with [his number] via delivered and undelivered inbound, outbound, and routed calls, messages, voicemail, and data connections” over a three-month period.

Multiple lawyers, legal experts and members of the general commentariat immediately criticized several aspects of the Eastman filing.

“This complaint is the legal equivalent of flop sweat – dude is *terrified*, and I look forward to the country finding out exactly why,” tweeted commercial litigation attorney Akiva Cohen.

Notably, there’s a typo in the very first paragraph.

“The November 3, 2021 [sic] presidential election was one of the most controversial in American history,” the lawsuit begins–immediately getting the date wrong. “A significant portion of the population came to believe the election was tainted by fraud, disregard of state election law, misconduct by election officials and other factors.”

The lawsuit is actually referring to the November 3, 2020 election between Trump and now-President Joe Biden.

Election expert and University of Florida Political Science Professor Michael McDonald promptly took note of that false start:

But there are also some factual concerns that can’t be chalked up to a simple numerical oversight or lack of diligence.

“On January 6, 2021, approximately ½ million people gathered for a ‘Save America’ rally outside the White House to exercise their First Amendment freedoms of speech and assembly and the right to petition their government for redress of grievances,” the lawsuit claims–increasing Trump’s crowd size exponentially. “Unfortunately, two miles away at the United States Capitol, several hundred protestors entered the Capitol building. Some of the individuals who entered the Capitol committed criminal acts, including assault and property damage.”

University of Missouri Law Professor Frank Bowman took stock of those issues contained in the second and third paragraphs:

That incorrect recitation of facts was also noted by Liz Dye writing for the legal website Above the Law. In her analysis, Dye also notes that the “non-content” nature of the Verizon subpoena is likely to avail congressional interests in the end (i.e., there’s a difference between requesting call logs and seeking the actual content of said calls).

Eastman’s lawsuit additionally attacks the validity of the Verizon subpoena based on the committee’s “own authorizing resolution.”

“[T]he Committee’s lack of validly appointed minority members or a validly appointed ‘ranking minority member’ makes such compliance impossible,” the filing by attorney Charles Burnham argues. “A subpoena issued in violation of applicable House Rules is invalid.”

Cohen criticized this legal argument in a lengthy Twitter thread.

The lawsuit also claims that Eastman “is a law professor.” He famously “resigned” (or “retired“) from Chapman University after his participation in the rally that preceded the Capitol Hill attack–and a public dustup with university administration over his relationship with Trump.

Law&Crime reached out to Burnham to ask where, if anywhere, Eastman was currently employed as a professor but no response was immediately forthcoming at the time of publication.

[image via YouTube screengrab]

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