Eastman’s emails could lead to criminal charges

Prominent Orange County attorney John Eastman's emails involving the 2020 election sent from his Chapman University account could impact not only the State Bar's investigation into his conduct, but lead to criminal charges.

"I think he is obviously in serious jeopardy," said Wylie Aitken, trial lawyer and founding partner of Aitken Aitken Cohn in Santa Ana.

In a defense memorandum filed on Wednesday in the Central District of California, Eastman was accused of obstruction, common law fraud and conspiracy to defraud the United States. John C. Eastman v. Bennie G. Thompson, 8:22-cv-00099-DOC-DFM (C.D. Cal., filed Feb. 22, 2022).

In a combined statement after the filing, U.S. Rep. Liz Cheney, R-WY, and U.S. Rep. Bennie G. Thompson D-MS, said their brief refutes on numerous grounds Eastman's privilege claim, and though they are not conducting a criminal investigation they do have questions of whether the crime-fraud exception to the attorney-client privilege applies.

"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," the defendants' statement said.

As part of its Jan. 6 investigation, the U.S. House Select Committee sought communications sent by Eastman to Trump, but Eastman has maintained that those communications are protected under attorney/client privilege doctrines.

Chapman University's counsel stated on Jan. 15 that its policy was clear and Eastman should not have expected privacy when sending emails through its system.

"The plaintiff's (Eastman's) representation of the president was improper and unauthorized, and the plaintiff's use of his Chapman account for such representation was like having contraband on our system," Chapman's counsel said, according to the memo.

The memo said the subpoena should be denied because Eastman failed to prove that emails sent to Trump were in anticipation of litigation, a document purporting to have established an attorney/client relationship was unsigned, and Eastman made statements about Trump and the election to the media on numerous occasions -- thereby waiving confidentiality.

"The evidence supports an inference that President Trump, the plaintiff, and several others entered into an agreement to defraud the United States by interfering with the election certification process, disseminating false information about election fraud, and pressuring state officials to alter state election results and federal officials to assist in that effort," the memo added.

Before Jan. 6, Eastman stated in a memo that his proposed options were "bold, certainly," but necessary because "this election was stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage, and advised that "we're no longer playing by Queensbury Rules." Queensbury Rules is a code of fair play that applies to any fight, and was developed to regulate boxing matches in Britain.

On the evening of Jan. 6, Eastman also sent an email to Vice President Mike Pence's lawyer, Greg Jacob, stating, "I implore you to consider one more relatively minor violation (of the Electoral Count Act) and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here."

The memo alleged that Eastman knew he was requesting Pence to violate the law, and more than 60 court cases had rejected legal claims alleging election fraud.

In another email released Wednesday, Jacob responded to Eastman that he was a "serpent in the ear" of Trump, and, "It was gravely, gravely irresponsible of you to entice the President with an academic theory that had no legal viability, and that you well know we would lose before any judge."

"As the filing indicates, John Eastman was not simply a lawyer for President Trump," said Erwin Chemerinsky, dean of the UC Berkeley School of Law on Thursday. "Eastman was the architect of a plot for a coup and urged it, including on the Capitol lawn on Jan. 6."

Eastman spoke at a "Save America" rally alongside Trump's personal attorney, Rudy Giuliani, on Jan. 6, hours before a mob stormed the Capitol. Eastman said in his speech that voting machines were rigged.

"He already has invoked the Fifth Amendment and refuses to answer questions," Chemerinsky added. "He should not be able to hide behind the attorney-client privilege for work that he did outside the role of being a lawyer for a client."

Chemerinsky added it is imperative the House Committee have access to all evidence in learning what happened with regard to the mob entry into the Capitol on Jan. 6.

On Tuesday, the State Bar of California announced it has been conducting an investigation of Eastman since September, specifically whether he engaged in conduct in violation of California law and ethics rules.

Eastman's lawyers could not be reached for comment on Thursday. But his attorney for the State Bar investigation, Randall Miller at Miller Law Associates APC in Los Angeles, provided the following statement on Tuesday: "Dr. Eastman, a nationally recognized constitutional attorney and scholar, represented former President Trump in several election challenges. As was his duty as an attorney, Dr. Eastman zealously represented his client, comprehensively exploring legal and constitutional means to advance his client's interests."

Aitken commented on Thursday, "He touts himself as a nationally recognized constitutional scholar, but if he is nationally recognized as he claims to be, then he had to know that the positions he had taken were totally false."

On Tuesday, Miller said, "Dr. Eastman expects the bar's investigation into these matters will fully exonerate him from any charges."

Aitken said, "My first reaction after reading the committee report is that it's a well thought out, in depth presentation. The committee has done a great deal of the groundwork, and made the responsibility and job of the State Bar much easier. I can't imagine that the State Bar could have a better road map."

The State Bar declined to comment on Thursday about the committee's memo, or its impact on their investigation.