Robbins: John Eastman and attorney-client privilege
Last week, the House select committee investigating the Jan. 6 attack said its evidence has shown that then-President Donald Trump and his campaign tried to illegally obstruct Congress’ counting of electoral votes and “engaged in a criminal conspiracy to defraud the United States.”
In a filing with the U.S. District Court in the Central District of California, the Committee said, “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.” Among the persons named was John Eastman, a Trump attorney who was a key player in what the Committee alleges was Trump’s strategy to subvert the 2020 election. The move, some suspect, was intended — at least in part — to encourage Eastman to produce crucial emails the Committee has been seeking which it believes might tie together the loose strings of the alleged scheme.
The Committee has suggested Trump, along with a cadre of his allies, may have committed three criminal offenses: obstruction of an official proceeding; defrauding the United States by interfering in certification of the election; and spreading false information about the results.
Eastman, who was previously deposed by the Committee invoked his Fifth Amendment right against self-incrimination a head-spinning nearly 150 times, is now claiming that he is shielded by attorney-client privilege.
Charles Burnham, Eastman’s attorney, offered that, “Like all attorneys, Dr. John Eastman (beside his law degree, Eastman holds a Doctor of Philosophy degree) has a responsibility to protect client confidences, even at great personal risk and expense. The Select Committee has responded to Dr. Eastman’s efforts to discharge this responsibility by accusing him of criminal activity. Because this is a civil matter, Dr. Eastman will not have the benefit of the Constitutional protections normally afforded to those accused by their government of criminal conduct. Nonetheless, we look forward to responding in due course.”
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So, is it so? Should or may Eastman remain mum?
Um … no.
Despite the merits or demerits of what is claimed, the shield behind which Eastman is hiding is paper thin.
Attorney-client is well recognized at law. What you whisper in my ear if you are a client must remain locked up in my hippocampus and may not be dislodged … except in certain circumstances.
The short of attorney-client privilege is that it is not unlimited. While the privilege exists to assure candor between a client and his or her lawyer in order for the client to receive unfiltered legal advice, the privilege can be pierced. Among other reasons an asserted privilege can be overcome is if the lawyer is believed to have participated with his client in the commission of a crime or if the lawyer — while the holder of a law degree — isn’t acting as a lawyer.
Say, for example, you and I go off to bike together and have not established a relationship as client and attorney. When you are hypoxic, you reveal to me where the bodies are buried. The fact that I’m a lawyer won’t protect you. Fair warning — especially if it is bodies we are dealing with — more than likely, I will have to spill the beans on you.
But notice the first part of the preceding paragraph as well; the privilege does not apply if the lawyer is believed to have participated with his client in the commission of a crime. And that’s the nut of why the trial balloon floated out by Eastman and his lawyer will likely not gain altitude.
Not only is it questionable that Eastman was actually acting as an attorney rather than a political operative (by the way, his Ph.D. is in the philosophy of government), but perhaps more germane, as alleged by the select committee, Eastman was a co-conspirator with Trump. If true, attorney-client privilege is, well … trumped.
The privileged exists to shield confidences between attorneys and their clients, not one to hide behind to facilitate a crime. It that were in fact permitted, it would undermine attorney professionalism and ethics, would tempt the ill-intended to enlist attorneys in their schemes (or else educate their children to be lawyers), and undermine the underpinnings of our judicial system.
Whether Trump or Eastman or anyone else will ultimately be indicted for crimes against the nation remains to be seen. And whether anyone so indicted might be convicted is yet another hurdle. What seems clear, however, is that Dr. Eastman is hiding behind a slender reed, one that is unlikely to protect him if legal push comes to judicial shove.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com — and coming soon, “Why I Walk So Slow.”