Jan. 6 panel: Lawyer behind Trump election memos invoked 5th Amendment 146 times
Michael Isikoff, Chief Investigative Correspondent – January 25, 2022
John Eastman, the conservative law professor who authored memos outlining how President Donald Trump could overturn the results of the 2020 election, invoked his Fifth Amendment rights 146 times when he was questioned by the Jan. 6 committee last month, a lawyer for the panel revealed late Monday.
The disclosure came in a court hearing before U.S. District Judge David Carter in Santa Ana, Calif., on Eastman’s lawsuit to block a subpoena from the committee directing Chapman University — where he previously worked as a professor — to turn over more than 19,000 emails relating to his work for Trump in the months following the Nov. 3, 2020, election.
The Eastman emails are considered crucial evidence by the committee because, in its view, the law professor’s memos laid out a road map for a constitutional coup: They argued that Vice President Mike Pence could refuse to accept the certified results of the Electoral College vote declaring President-elect Joe Biden the winner. Pence publicly rejected Eastman’s advice, agreeing with the vast majority of legal experts who said he did not have the power to reverse the voters.
But Trump backed Eastman’s legal views and lashed out at Pence on Jan. 6, 2021, calling on his vice president to show “extreme courage” during the vote certification. At the “Stop the Steal” rally that day in Washington, where Eastman also spoke, Trump urged his fans to “fight like hell” in support of his false claims that the election had been stolen. Many of those supporters then stormed the U.S. Capitol, assaulted Capitol Police officers and even chanted, “Hang Mike Pence!”
Eastman was questioned by the committee in a Dec. 9 deposition, but he refused to answer any questions on the grounds that it could violate his Fifth Amendment rights against self-incrimination for potential criminal activity, the House lawyer, Doug Letter, disclosed. Just days after the deposition, Eastman sued the committee to protect his emails from disclosure, arguing that they were protected by attorney-client privilege covering his communications with then-President Trump and his legal team. In response to pointed questioning from the judge on Monday, Eastman’s lawyer said his client has not even produced a “privilege log” identifying which of the emails are covered by the privilege because to do so would risk disclosing the existence of emails that could undercut his assertion of Fifth Amendment rights.
But Eastman’s argument suffered a blow when the lawyer for Chapman University, whose computer hosts the emails, told the judge that the professor had no right to use the university email system for his representation of Trump because it was partisan work on behalf of a political candidate — a violation of the university’s status as a nonprofit.
Any use by Eastman of Chapman emails on behalf of Trump was “improper” and “unauthorized,” said Fred Plevin, a lawyer for Chapman. “I liken [it] to contraband,” he added.
Once a law clerk for Supreme Court Justice Clarence Thomas, Eastman appears to have played a central role in developing strategies for Trump to cling to office even though state electoral boards had affirmed Biden’s victory in the election. In addition to speaking at the Jan. 6 “Stop the Steal” rally along with Trump, Rudy Giuliani and Alabama Rep. Mo Brooks, Eastman testified before a Georgia legislative committee urging it to reject Biden’s win in that state.
Eastman’s lawyer, Charles Burnham, argued to Carter that Chapman’s dean was well aware of his client’s legal work for Trump — and raised no objections. But Carter seemed most focused on why there had been no “privilege log” developed so that the law professor could specifically identify which of his communications he believed are covered by attorney-client privilege. He demanded that Eastman be provided with the emails by Chapman, review them and — after consulting with the Jan. 6 committee lawyers — come up with a plan for who should resolve any disputes: the judge or a so-called taint team of lawyers who would review the emails on their own. Carter said he wanted a status report on the matter next Monday.