Select committee says Eastman improperly shielded emails from investigators

A week before the Jan. 6 attack on the Capitol, attorneys spearheading Donald Trump’s last-ditch bid to remain in power — emailed with a disparaging jokes about their client.

“A shame you are not in DC and could contribute to violation of the emoluments clause,” Trump lawyer Bruce Marks wrote in the Dec. 30 email to attorney Kenneth Chesebro, a reference to allegations that Trump was improperly receiving foreign payments through his D.C.-based hotel.

Chesebro replied, in an email with formatting issues “I[’]m stay[i]ng at Trump Int [i]n DC from Jan 3 to at [l]east the 8th. Do[i]ng my part to curry favor w[i]th the Pres[i]dent by [li]n[i]ng h[i]s (empty) pockets! [emoji].”).

The exchange was part of a batch of emails that Eastman had shielded for months from the Jan. 6 select committee, claiming it was covered by attorney-client privilege or attorney work-product privilege. The select committee cited it Monday as evidence that Eastman has been improperly shielding documents from investigators as they attempt to determine the causes of the Jan. 6 attack on the Capitol — and unlock new details of Trump’s bid to remain in power.

In a late Monday court filing, the select committee urged U.S. District Court Judge David Carter to review 562 still-unproduced documents that they say may contain material that should have been turned over to the Jan. 6 select committee months ago.

Eastman turned over a small batch of additional emails last week, as the select committee prepared to demand additional documents contained in a trove of emails he sent while working at California’s Chapman University, during the same period he was helping Trump’s effort to subvert the election. Eastman’s primary tactic was to convince state legislatures to adopt alternate slates of pro-Trump electors and then use the controversy to convince then-Vice President Mike Pence to decline to count some of Joe Biden’s electors on Jan. 6, when Congress met to count electoral votes.

Among the newly disclosed emails was another Eastman attempted to shield by citing its connection to litigation: a photo of a rally crowd signed by Trump with the message “TIMES 50 SUCH EVENTS – NO WAY THIS LOSES.” Eastman similarly withheld an email delivering the photo to Eastman from Trump’s White House administrative assistant Molly Michael, citing attorney work product.

The committee is asking that Carter comb through this final tranche of undisclosed emails to determine whether any of the privilege claims Eastman made were simply an effort to shield significant evidence.

Asked about the exchange in which the attorney discussed Trump's wealth, Marks described the banter as "tongue-in-cheek" — and said it was released by the committee to embarrass Trump's lawyers rather than advance their probe.

“At the time of the emails on December 30 and 31, 2020, Professor Eastman, Ken Chesebro, and I were representing President Trump in litigating a U.S. Supreme Court petition filed on December 23," Marks said. "These emails were part of a privileged exchange. Regardless of whether specific tongue in cheek emails were protected by the attorney-client privilege, they were clearly protected by First Amendment rights of political association and free speech."

Citing long-settled limits on Congress' power to "expose for the sake of exposure," Marks added, "The January 6 Committee deliberately attempting to embarrass and intimidate President Trump’s attorneys is no less Un-American than the [Joseph] McCarthy inspired tactics of the House Un-American Activities Committee ... The mid-term elections cannot come soon enough to sweep the Democrats out of power in Congress.”

The effort by the select committee to obtain more of Eastman's emails is a bid to round out its investigation ahead of the end of the current Congress. Eastman’s emails from Chapman University and University of Colorado Boulder became some of the committee’s most potent data points about Trump’s effort to remain in power.

He pressed top Pence aides to continue to overturn the election even amid the chaos on Jan. 6, and his emails show correspondence with other Trump attorneys, including Rudy Giuliani, discussing plans to avoid court fights in an attempt to keep Trump in power without judicial review.

Carter has previously ruled that Eastman and Trump likely conspired to commit felony obstruction of Congress, citing that determination as a basis to invalidate some of Eastman’s previous claims of attorney-client privilege.