Battle for Eastman’s emails: Scenes from the courtroom

History is being made -- quietly -- in District Judge David O. Carter's courtroom on the ninth floor of the gleaming Ronald Reagan Courthouse in Santa Ana.

I was one of just two civilians in the Southern Division of the U.S. District Court for the Central District of California on Tuesday as Carter quizzed attorneys for John Eastman, the renegade conservative law professor, and counsel for the House Select Committee investigating the January 6 riots (or insurrection, take your pick).

The courtroom is elegant and large, a generous jury box, reddish wood paneling, the Great Seal of the United State gilded in gold, affixed to limestone wall above the judge's chair.

Like other hearings Carter has conducted on this matter, it is via Zoom, but the courtroom is open to in-person visitors. In the moments before the session starts, the clerks are kibitzing about the numbers of viewers as they register on Zoom ("145...147 and counting...").

We are in Orange County because Eastman used an email account at Chapman University to conduct his legal representation of former President Donald Trump, and -- according to now-public emails -- to bully Vice President Mike Pence into stopping the counting of Electoral College votes on January 6, a move he described as "a minor violation" of law.

The Select Committee subpoenaed 11,000 Eastman emails; he and his lawyers have been stacking up legal arguments as to why they should remain private. Carter, in turn, has shaved away nearly all of their entreaties in a methodical, courteous, yet firm manner, eyeing the principal players on his computer while we few in the courtroom see them arrayed, Hollywood Squares style, on color big screen monitors. Now, just 111 emails remain at issue.

The Zoom atmosphere turns the room in an oddly subdued judicial microclimate, lawyers and their client reduced to little more than mug shots. Select Committee counsel Douglas Letter moves about, starting behind a lectern then sitting at his desk, the American flag authoritatively over his shoulder; Eastman attorney Charles Burnham is cloaked in a tan jacket. Eastman, politically correct in a red tie, watches intently, looking a little worried.

Carter presides in a low-key style, generous in assuring attorneys they will have all the time they need, but also careful to remind them he wants complete and well-thought-out answers. "This is an important question, take your time before answering" he says quietly. But Carter can be tough -- when the attorney for Chapman professes he has no knowledge of the school's procedure on an email policy, Carter turns firm. "Then find out, now," he says, a distinctive edge in his voice.

Carter has presided over some of the most contentious and high-profile federal cases in federal district court, including the trial of a Mexican Mafia don and the contremps between the late Anna Nicole Smith and the family of her aging (and rich) paramour. Most recently, Carter garnered praise as well as criticism by stepping squarely into the issue of how homeless people were being treated in the county and some of its cities, famously visiting homeless encampments on the Santa Ana River.

Carter's ascent to the federal bench began with work as a district attorney, then an appointment to the municipal and superior courts in Orange County and finally selection by President Bill Clinton in 1998. Now 77, Carter's long face is lined and he approaches the bench with a slight bend in his back. A former Marine, Carter still bears scars from combat in Vietnam, where he was awarded the Bronze Star and Purple Heart.

At the March 8 hearing, Carter adopted something of a Socratic approach as he parsed the issues related to privilege. For instance, the evidence indicates many of the communications Eastman is trying to protect were from a variety of people who had volunteered to provide advice, legal and otherwise. Carter asked each attorney if political or strategic advice included in a communication also containing legal advice should be protected by privilege. Then he asked, what is the line between political and legal advice. Eastman presented an unsigned, undated letter from the Trump campaign hiring him for legal work. Does such a letter qualify as a genuine retainer, Carter asked.

Carter also injected a bit of levity when he told Eastman he could see his lips moving as he spoke to his attorney, reminding him if "this were an NFL game you'd cover your mouth." Eastman attorney Burnham picked up on the joke when Carter turned to him for his next comment. "We're going to blitz on the third down, your honor," he said, drawing a smile from the bench.

But the battle over privilege is just the curtain that hides an immense and potentially historic drama on the stage behind it. Select Committee counsel Letter repeatedly portrayed the events of January 6 as a dagger poised to strike at the very heart of American democracy. For his part, Eastman attorney Burnham professes no fear of the committee's assertion that what happened on January 6 could justify a criminal indictment of Donald Trump and others. Conversely, a genuine review of all that Eastman and others were involved in related to advising Trump and hectoring Pence would show "a genuine belief in the righteousness of what they were doing," Burnham insisted.

Late in the afternoon on Wednesday, Carter issued a decision: He will read the emails and their attachments in camera, and then "determine for each document whether any privilege existed, whether that privilege was waived, and whether any exemptions apply. Ultimately, the Court will issue a written decision including its full analysis and its final determination of which, if any, documents must be disclosed to the Select Committee." 