Judge Describes Eastman’s Actions As Potentially Seditious

When Representation Becomes Sedition

John Eastman authored the “Eastman Memo” aimed at convincing Vice President Pence that he had the unilateral authority to throw out electoral college votes. Understandably, Eastman was subpoenaed by the 1/6 Committee. He appeared and asserted his 5th Amendment privilege 146 times.

Since Eastman is normally a professor at Chapman University, and his email is through the University, the 1/6 Committee subpoenaed the University to produce emails that were within the scope of their investigation. With search parameters worked out with the Committee 19,000 such emails were found. Eastman sued seeking a Temporary Restraining Order (TRO) against the University releasing the documents to the Committee.

The day before yesterday the judge heard oral arguments. It took Judge David Carter exactly one more day to render a decision, that he handed down last night. Judge Carter’s decision soundly rejected every argument advanced by Eastman, and even worse, described Eastman’s actions as potentially seditious. The judge also rather directly suggested that Eastman’s actions may have contributed to the violence on January 6th.

FACTS ACCEPTED BY THE COURT

While Eastman pled the 5th to the Committee his ability to do so is less when he is on the offensive and seeking a TRO. The court cited a number of “facts about Dr.Eastman’s actions” that “Eastman confirmed at argument that he took” in his representation of Trump. The facts include:

• Eastman “wrote two memoranda offering several scenarios for the Vice President to potentially change the outcome of the 2020 Presidential election.”
• On December 3, 2020, Dr. Eastman testified to “Georgia state senators regarding alleged voter fraud and reportedly shared a paper arguing that the state legislature could reject election results and directly appoint electors.”
• On January 2, 2021, Dr. Eastman participated in “a briefing for nearly 300 state legislators from several states regarding purported election fraud, during which [Eastman] told the group that it was ‘the duty of the legislatures to fix this, this egregious conduct, and make sure that we’re not putting in the White House some guy that didn’t get elected.’”
• On January 3, Dr. Eastman met with President Trump and Vice President Michael Pence to explain his theory that the Vice President had the authority to decide the results of the election regardless of the votes in each state.
• On January 5, Dr. Eastman was in “the Willard Hotel ‘war room’ with Steve Bannon and others . . . where the focus was on delaying or blocking the certification of the election.”
• Shortly after the attack on the Capitol, Dr. Eastman emailed the Vice President’s counsel that “the ‘siege’ is because YOU and your boss did not do what was necessary.”

I digress from the fact bullets to discuss this last one a bit. Think of the implications of Eastman blaming Pence for the violence because Pence didn’t play their illegal game of not counting electoral votes from states Biden won. This seems an admission that violence would be the consequence if Pence did not do as Trump demanded.

• On the evening of the 6th Eastman again told the Vice President’s counsel that “Pence should still not certify the results.”

SEDITION

Amongst Eastman’s argument was that the Committee has no legitimate legislative purpose because it amounted to a criminal investigation that is not within the scope of the legislative branch. However, the judge found that:

“there are numerous legislative measures that could relate to Dr. Eastman’s communications . . . Eastman’s actions clearly fall within the bounds of an investigation into the influencing factors that fomented such an attack on American representative democracy.”

Thus, the judge made clear that Eastman’s actions may have contributed to causing the violence.

It gets worse. The judge concluded that “there are numerous plausible legislative measures that could relate to Dr. Eastman’s communications” and that amongst these legislative measures was that Congress could “increase penalties for encouraging seditious actions relating to elections.” In these words the judge seems to be suggesting that Eastman’s communications were seditious.

The judge suggested another valid legislative purpose was that Congress could “prevent campaign fundraising based on knowing misrepresentations regarding election fraud.” Overall the judge found “The Select Committee’s subpoena is well within its legitimate legislative purpose.”

OTHER MATTERS

The judge also rejected Eastman’s 1st Amendment argument noting:

The public interest here is weighty and urgent. Congress seeks to understand the causes of a grave attack on our nation’s democracy and a near-successful attempt to subvert the will of the voters. Congressional action to “safeguard [a presidential] election” is “essential to preserve the departments and institutions of the general government from impairment or destruction, whether threatened by force or by corruption.” [cite to Supreme Court case of Burroughs v. United States]

The judge also rejected Eastman’s 4th Amendment argument that the subpoena was overly broad. The judge noted the limited scope in time for the subpoena from the date of election to the date of inauguration, and that the Committee had worked with the University to eliminate over a third of even those emails from the response.

Finally, the judge rejected Eastman’s claim of attorney/client privilege because it was overly broad as blanket assertions of privilege for all documents sought are not favored. Rather Eastman must specifically assert the privilege, and the basis for it, for each document. The court leaves him free to do so.

CONCLUSION

The battle to overturn the election has not gone well for those who fought for that cause. They faced universal defeat in the courts, sanctions from the courts, disciplinary action from their Bar Associations (Eastman’s is also pending) and potential criminal investigations.

The battle to resist the investigation of the movement to invalidate the election is also not going well. At least four (Alex Jones, Roger Stone, Jeff Clark, and Eastman) subpoenaed by the Committee have felt compelled to plead the 5th Amendment. One has been criminally indicted for refusing to honor a Committee subpoena and another has been criminally referred.

Last night a judge rejected Eastman’s attempt to quash a subpoena and while doing so suggested Eastman might be partially responsible for the violence on January 6th and that Eastman’s actions might amount to sedition. Going on the offense blew up in Eastman’s face.