“Were this Court to sustain the defendants’ claims, it may be the first formal finding of Presidential criminality by a federal court in United States history,” Eastman wrote.
Eastman said Carter, who sits in a California-based federal courthouse, should slow the process down and force the committee to disclose more of the evidence it has collected, particularly any that would be “exculpatory.” He demanded what he described as “Brady” and “Giglio” evidence, a reference to categories of evidence typically provided to criminal defendants — not those facing congressional investigations.
“In responding to these claims, [Eastman] is effectively forced into the position of acting as a pseudo-defense attorney for the former President,” writes his attorney Charles Burnham. “If the former President had himself been charged with these alleged crimes, it could easily be years before an ultimate decision was reached by a judge or jury. Yet plaintiff is now faced with responding to these claims in time for a decision by this Court on March 8.”
The results of the legal clash are of monumental significance to the select committee’s investigation. The panel is seeking to wind down its probe of the effort by Trump to overturn the election within the next few weeks and begin revealing its findings. Committee members say Eastman was instrumental in Trump’s effort and view his communications as an essential part of their case.
In a response brief filed Friday evening, the Jan. 6 select committee rejected Eastman’s call for a delay as a last-ditch bid to thwart the committee’s investigation.
“These procedures exist to safeguard the substantial liberty interests at stake in criminal proceedings,” House General Counsel Douglas Letter wrote. “But nothing here places Plaintiff’s (or anyone else’s) liberty in jeopardy. If this Court ultimately finds that the crime-fraud exception applies, Plaintiff will not be incarcerated, nor will he suffer civil sanctions.”
Letter noted, similarly, that Carter’s decision about whether to reject Eastman’s attorney-client privilege claim is based on a “preponderance of the evidence” not proof beyond a reasonable doubt, which is the higher standard required to prove guilt in criminal cases. The committee is asking Carter to approve a document-by-document review of Eastman’s records to determine whether they may reasonably constitute evidence of a potential crime — a determination that would effectively waive any claim of attorney-client privilege.
“The extent of potential wrongdoing and of Plaintiff’s personal involvement are the very things the Select Committee is seeking to better understand through its request for documents in this case,” Letter wrote.
Letter also argued that courts are prohibited from forcing Congress to turn over records collected as part of lawmakers’ legislative duties, saying the Constitution’s Speech or Debate clause “provides absolute immunity” from demands by any other branch of government.
Among the evidence Eastman says could be exculpatory: evidence of dissent within federal agencies assessing the security of the 2020 election and evidence of dissent within the Justice Department about its conclusion the election was secure. Eastman wants any evidence of Justice Department investigations into election-related problems and any details from state officials describing concerns about the election. Eastman also wants to include statements from Trump that would show he had “a genuine belief in election irregularities.”
“Luckily, the January 6 committee is well staffed to conduct an expeditious … review of evidence in its possession,” Eastman writes. “The committee’s senior staff is largely composed of experienced former federal prosecutors. These capable lawyers are well trained in identifying exculpatory evidence and could easily conduct such a review in this case.”
Eastman is asking Carter to delay a scheduled March 8 hearing at which the judge is expected to rule on whether to consider the select committee’s argument to obtain the emails Eastman is trying to shield.
“[T]he recent allegations by the defendants absolutely call for careful rather than rushed consideration,” Eastman’s attorney writes.
The select committee laid out its most detailed case yet this week that it believes Trump, along with Eastman, broke federal laws as they pushed states, Congress and then-Vice President Mike Pence to overturn the election. They say Trump, who had been repeatedly told by staff that he had been defeated, nevertheless enlisted Eastman and others to attempt to overturn the election, even if it required violating federal laws like the Electoral Count Act. They say the evidence would support a case against Trump for felony obstruction of an official proceeding — Congress’ Jan. 6 session.
To support its push, the committee released portions of a series of deposition transcripts with close aides to Trump and Pence. But Eastman said he wants to see more of those transcripts, and others, that would help bolster his defense.
“In support of their crime/fraud claim, the defendants have submitted highly incomplete transcripts which seemingly omit relevant information,” he writes.