... THE LAWSUIT HE SO ERRONEOUSLY FILED.
John Eastman, Esquire was served with a subpoena to give testimony to the U.S. House Select Committee to Investigate the January 6 Attack on the Capitol. Mr. Eastman not only refused to testify, he sued the Committee along with others including the Committee Chair, in California. See Eastman v. Thompson, (C.D. Cal. No. 8:22-cv-00099 (DOC/DFM)).
(Perhaps taking a cue from ordinary civil litigation, Mr. Eastman may have thought that filing suit in California would be a burden on the defendants, who work in Washington, D.C., if they had to defend a lawsuit in California. If Eastman and his lawyers did think that, then they overlooked the fact that they were suing a Committee of the United States House of Representatives and the Chair of that Committee, a United States Representative.)
Mr. Eastman sued to quash the Committee's subpoena duly served upon him, once the process server found him. If Eastman had simply refused to testify, that would have forced the Committee to vote to hold Eastman in contempt of Congress, then obtain a vote of the entire House holding Eastman in contempt, and then make a referral to the Justice Department. So far, there is only one other time that the Justice Department has acted on a contempt of Congress referral from the Select Committee, and that is in the case of Mr. Steven Bannon. The judge set trial in that case for July.
Instead, Mr. Eastman's case is coming to a Hearing much sooner than that, and frankly his prospects look dismal. If he had only waited, perhaps he could have dragged things out for a very long time before a judge ever ruled on Mr. Eastman's objection. Mr. Eastman objects to the subpoena because he claims attorney-client privilege. His reasoning appears to be that he is an attorney and so everything that he has to say is privileged.
A problem here is that Mr. Eastman did not have a client leading up to the January 6 Attack on the Capitol. Only a client can claim the attorney-client privilege. If there is no client, there is no attorney-client privilege. You need more than an attorney, which Mr. Eastman is, an attorney. He still needs a client to raise the attorney-client privilege.
Even if you get past that obstacle, there is also the further matter of at least one exception to the attorney-client privilege even when it applies: the crime-fraud exception. We will address that more fully in another article, but suffice it to say here that the Select Committee filed papers with the Court in California that events leading up to the January 6 Attack and afterward may subject the former guy's campaign to criminal liability or liability for a fraud, and that Mr. Eastman allegedly knew this, and that Mr. Eastman allegedly participated in this plan.
In other words, Mr. Eastman's advice would have been given in connection with committing a crime or perpetrating a fraud, and in that case Mr. Eastman could not claim the attorney-client privilege even if an attorney could claim that privilege (which only a client can claim, and Mr. Eastman does not appear to contend that he was his own client in this matter).
There does not appear to be a good reason why Mr. Eastman filed this lawsuit in the first place. I just reviewed the electronic docket of Mr. Eastman's case on PACER (Public Access to [Federal] Court Electronic Records) and I did not find a Counterclaim filed by the Defendants. Without giving legal advice, I highly recommend based upon experience in civil litigation that the Defendants file a Counterclaim immediately. That should prevent Mr. Eastman from unilaterally filing a Notice of Voluntary Dismissal and getting the entire lawsuit dismissed.
That is, filing a Notice of Voluntary Dismissal if he comes to his senses.
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