Americans are witnessing attacks by the “progressive” left on some of our oldest and most treasured rights. These include not only constitutional rights, such as free speech and freedom of religion, but some that are even older than the Constitution itself.
Attacks on Rights Older Than the ConstitutionIn 2021, Rep. Bennie Thompson (D-Miss.), chairman of the powerful House Homeland Security Committee, made a stunning suggestion. It pertained to members of Congress who, during the Jan. 6, 2021, electoral vote count, favored investigating the election results. Thompson suggested that they should be placed on the national terrorist “no-fly” list.
Another guarantee older than the Constitution is the right of those accused of a crime to a speedy trial. Codified by the Sixth Amendment, it's traceable to Magna Carta (1215). Yet the right to a speedy trial apparently has been denied to some of the defendants detained in regard to the 2021 Capitol incursion.
The concept of attorney-client privilege also antedates the Constitution. It was firmly established in England no later than the reign of Queen Elizabeth I (1558–1603). The privilege guarantees that if you confide in your attorney, he or she can't be compelled to disclose what you said in confidence. It also protects papers generated while your attorney is working for you.
Like other treasured “privileges”—such as habeas corpus and trial by jury—attorney-client confidentiality is central to our legal system. It helps assure that citizens receive effective legal representation. If it were lost, many accused people would feel that they couldn't tell their attorneys the whole truth. This would undermine the quality of their legal representation. Moreover, if attorneys are compelled to reveal information about their own clients, many of those accused would stand defenseless against government prosecutors.
John EastmanEastman advised Trump during the latter part of 2020 and in early 2021. He also helped develop strategy for addressing contested election results.
I’ve met Eastman personally perhaps three or four times. In 2016, we both attended a simulated convention of states. He served as a commissioner (delegate), and I served as a constitutional adviser. His fellow commissioners—mostly legislators from all 50 states—elected him vice president of that convention. However, we had no contact during the election controversy and none pertaining to this essay.
Eastman and I have had our disagreements as well. Among them, I disagreed with his opinion that Vice President Mike Pence could have unilaterally delayed the electoral vote count. But since when do law professors always agree?
Enter Thompson’s Jan. 6 CommitteeThompson’s committee is a congressional fishing expedition. The key to a congressional fishing expedition is this: Instead of doing the investigative work yourself, get someone else to do it, so you can take the credit and still have plenty of time left to raise campaign money.
Thompson and his committee want Eastman to do their work for them. So they've demanded that he produce tens of thousands of emails and other documents stemming from his legal representation of Trump.
The committee offers several excuses for this extraordinary demand. First, it claims that Eastman may not have had a professional relationship with Trump. This is nonsense. Late in 2020, Eastman wrote and filed a Supreme Court brief on Trump’s behalf.
The committee also claims an exception to the attorney-client privilege for planning future criminal or fraudulent acts. But there's no evidence that Eastman did anything more serious than plead the case to Pence for postponing the electoral count. If trying to persuade a politician were a crime, then every lobbyist in the country would be in jail.
"I implore you to consider one more relatively minor violation and adjourn for 10 days to allow the [state] legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here," Eastman wrote. "If none of that moves the needle, at least a good portion of the 75 million people who supported President Trump will have seen a process that allowed the illegality to be aired."
The CostPossibly because committee members fear a Republican sweep in the November congressional elections, they've ramped up the pressure to get Eastman to prove their case for them. A Democratically appointed federal district judge has sided in large part with the committee. The judge ordered Eastman to review 1,500 pages of legal documents per day—later reduced to 500—and provide explanations as to why each document should or shouldn't be subject to attorney-client privilege. That prevents Eastman (who no longer has an academic salary) from working for other clients during this high-pressure schedule.
The persecution of Eastman is probably intended to be a warning to anyone who challenges “progressive” domination of the United States. It shows that even the oldest and most firmly established personal guarantees are no longer safe from zealots on the political left. It's an additional reason for both cleaning house this November and curbing federal power so as to reduce the ability of people such as Thompson and his committee to abuse it.