(CN) — The House of Representatives Select Committee to Investigate the Jan. 6 Attack on the United States Capitol scored a small legal victory Wednesday when a federal judge agreed to review the emails of a former Trump lawyer to determine whether they should be released to the committee.
"The evidence suggests that communications from those days are essential to the Select Committee’s pressing investigation," U.S. District Judge David Carter wrote in his ruling. "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."
The committee was set up to investigate whether anyone should be held responsible for the unrest at the Capitol. Among other things, it is looking into whether then-President Donald Trump should face criminal charges for his role in inspiring the riot.
"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 wrote in a filing last week.
The committee sees law professor John Eastman as a central figure in the unrest at the Capitol, one of the chief architects of Trump's strategy to persuade Vice President Mike Pence to overturn the election and, perhaps, a window into the president's own actions. The committee had issued a subpoena to Chapman University, where Eastman was formerly a tenured law professor, in order to obtain Eastman's emails. The university was wiling to comply with the subpoena, but Eastman sued to block the release of the emails.
Through a series of hearings and negotiations, the number of disputed emails was whittled down to 111, all sent or received between Jan. 4 and 7, 2021. Eastman has submitted to the court "logs," or written summaries, of each email he wants kept secret, with descriptions like, "attorney" or "consultant." The committee had asked Carter to read the emails for himself and determine whether or not they're privileged.
Eastman claims he was engaged as Trump's lawyer, and therefore those communications should be kept private under attorney-client privilege. The committee has objected to that claim on a number of grounds. It has said that little evidence exists that Eastman actually represented Trump, pointing out there is no signed retainer agreement between the two of them. The committee argued that most of the emails sent between Eastman and other parties — for example, an attorney working for Mike Pence — shouldn't remain private because Eastman was not working for any of those people.
The committee also suggested that emails might be released under the "crime/fraud exception," which states that communication between attorney and client is not privileged if the client is in the middle of committing a crime. Carter said in his ruling that he will first determine whether the emails are privileged before getting into any exceptions.
Perhaps most pointedly, the committee claims that Eastman's work for Trump in the days before and after the Jan. 6 riot was political in nature rather than legal since Eastman's strategy, outlined in a memo, primarily centered on what Pence should do in Congress. Douglas Letter, the Jan. 6 committee's lawyer, has said that "legal advice" is advice about specific litigation.
In his written decision, Judge Carter appeared open to this argument, writing: "Dr. Eastman’s privilege logs do not indicate what litigation was anticipated; the log entries simply state that emails were made considering 'possible litigation' or 'contemplating litigation.' This evidence sufficiently supports a reasonable belief that the emails may reveal that they were not created in anticipation of litigation."
Carter also addressed the issue of third parties.
"The Select Committee argues that the inclusion of unrelated third parties on Dr. Eastman’s emails destroys confidentiality," Carter wrote. "At the hearing, the Select Committee noted that Dr. Eastman provided no retainer agreements or declarations to support these co-counsel or agent relationships. There is enough evidence to reasonably believe that the emails might reveal that the third parties had no privileged relationship with Dr. Eastman or President Trump."
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