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Judge urged to find Trump lawyer’s advice political, not legal

The widely watched hearing marked the latest in a case that has served as a platform for the House to discuss the charges it may level against former President Donald Trump over the Jan. 6 insurrection at the U.S. Capitol.

(CN) — Lawyers for Donald Trump adviser John Eastman and the House Committee to Investigate the January 6 Attack on the United States Capitol again traded arguments Tuesday over whether Eastman's Chapman University emails should be released to the committee.

Eastman has sought to block 111 emails from being released, claiming they fall under attorney-client privilege. Douglas Letter, the attorney for the Jan. 6 committee, gave a number of reasons why that wasn't the case, including the argument that Eastman's advice to then-President Donald Trump and his staff was more political than legal.

"You see there’s a substantial amount of campaign advice," Letter told U.S. District Judge David Carter at the hearing Tuesday. "That’s not covered by attorney-client privilege."

The hearing marked the latest in a case that has served as a platform for the House committee to air possible criminal charges it is considering against Trump for his role in the ransacking of the Capitol building on Jan. 6, 2021.

The House committee has called Eastman "a central player in the development of a legal strategy to justify a coup." Eastman wrote a memo pushing a legal theory that then-Vice President Mike Pence could throw out the vote of certain states, claiming they were disputed. The committee had subpoenaed emails from Chapman University, where Eastman was a tenured professor as well as the law school's former dean.

Chapman University sought to comply with the subpoena before Eastman filed a federal lawsuit seeking to block the emails from being released. Chapman attorney Fred Plevin said at Tuesday's hearing that Chapman's president had admonished Eastman for using university resources in support of a political campaign, and that the university had the right to access student and faculty emails.

"The policy that Chapman published on privacy, Chapman's policy says that Chapman has the ability and the right to access the emails," said Plevin. "Dr. Eastman was a dean of the law school. We assume he was aware of Chapman's long-standing policy on that." He added that a faculty member using Chapman's email server to work on a political campaign risked endangering the university's tax-exempt status as a nonprofit.

Eastman's lawyer, Charles Burnham, downplayed Chapman's claims, likening the House's effort to seize his client's emails to "asking the court to mediate an H.R. dispute."

The hearing, conducted over Zoom, lasted more than three hours and apparently drew a wide audience — one of the attorneys mentioned more than 200 people were listening or watching. That may in part be due to a court filing this past week which for the first time made the argument for a possible criminal case against Trump.

"The select committee also has a good-faith basis for concluding that the president and members of his campaign engaged in a criminal conspiracy to defraud the United States," the committee said in its filing, among other arguments.

In another court filing last week, House lawyers attached emails obtained by the committee between Eastman and an attorney working for Pence. On Jan. 6, just as an angry crown was gathering outside the Capitol, Jacob attacked Eastman for pushing the idea that Pence could overturn the election.

"I just don't in the end believe that there is a single Justice of the Unites States Supreme Court, or a single judge on any of our Courts of Appeal, who is as "broad minded" as you when comes to the irrelevance of statutes enacted by the United States Congress, and followed without exception for more than 130 years," Jacob wrote, adding: "And thanks to your bullshit, we are now under siege.

Two hours later, after Trump supporters had broken into the Capitol building, Eastman responded: "'My "bullshit' — seriously?" He added: "The 'siege' is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened."

Jacob apologized for his foul language but wrote that Eastman's advice had "functioned as a serpent in the ear of the President of the United States," and added that it was "gravely, gravely irresponsible for you to entice the President with an academic theory that had not legal viability, and that you well know we would lose before any judge who heard and decided the case."

The central issue in deciding whether Eastman's emails can be released is whether Eastman's advice to Trump was legal advice, as he claims, or was political advice as the Jan. 6 committee claims.

"What is the line between legal and political advice?" Judge Carter asked both lawyers.

Eastman's lawyer said the the advice would be political if it was "unrelated to litigation and the interpretation of laws."

Letter, the House attorney, argued the Judge needs to look at the "primary purpose" of the advice, whether it related to specific litigation or to a political motive. As an example, he cited the emails between Jacob and Eastman.

"Our view is the those are largely political," Letter said. "They're Dr. Eastman suggesting that the vice president violate the law. It’s hard to interpret that as legal advice."

The two other issues are whether Eastman was even technically Trump's lawyer, and whether the emails can be released under the "crime/fraud exception" to attorney-client privilege. The exception obviates the protection in cases when the client is in the process of committing a crime or fraudulent act, or communicating with his lawyer about covering up the crime or fraud.

Carter gave no indication of his thinking and ended the hearing abruptly, after giving all three attorneys time to make closing arguments. He may review the 111 disputed emails himself and then rule.

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