The Left’s Attack on Attorney-Client Confidentiality: The Case of Trump Adviser John Eastman

The Left’s Attack on Attorney-Client Confidentiality: The Case of Trump Adviser John Eastman
Professor John Eastman at the Ellipse, near the White House on Jan. 6, 2021. (Brendan Smialowski/AFP via Getty Images)
Rob Natelson

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.

Until recently, a consensus spanning the political spectrum protected these guaranteed rights. But to the authoritarians of the new American left, nothing is sacred.

Attacks on Rights Older Than the Constitution

In 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.
Thompson either didn’t know or didn’t care about the Constitution’s speech and debate clause (Article I, Section 6, Clause 1). Based on a provision in the 1689 English Bill of Rights, the speech and debate clause protects lawmakers from persecution or retaliation from other branches of the government because of what they say or how they vote (pdf).
Other “progressives” demanded that congressmen who voted the “wrong way” during the electoral vote count be formally disqualified from office under the Constitution’s 14th Amendment.

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.

Thompson appears to have no more regard for the attorney-client privilege than for the Constitution’s speech and debate clause. The “Select Committee to Investigate the January 6th Attack on the United States Capitol,” which he chairs, is trying to deny the attorney-client privilege to former President Donald Trump and his attorney, professor John Eastman.

John Eastman

Eastman advised Trump during the latter part of 2020 and in early 2021. He also helped develop strategy for addressing contested election results.
The mainstream media have gone to unconscionable lengths to abuse Eastman. One of their gentler tactics is to label him with epithets such as “right-wing lawyer” (pdf). Calling Eastman a “right-wing lawyer” is like calling Winston Churchill “an English cigar-smoker”: It omits everything you really need to know about the man.
Eastman is one of the nation’s most respected constitutional scholars. After a stellar student record at a top law school, he clerked for Supreme Court Justice Clarence Thomas. Eastman practiced law for several years, then became a law professor. He served on the faculty of Chapman University School of Law for 20 years and served as its dean for four years. He has an extraordinary record of scholarly research and public service. Several versions of his résumé are freely available online (pdf) (pdf), which the mainstream media have chosen to ignore.
Eastman inspired some of my own scholarly work. In the early 2000s, I attended a national law professors’ convention at which he was a panelist. His presentation discussed the Supreme Court’s interpretation of the Constitution’s general welfare clause (Article I, Section 8, Clause 1). I was sufficiently intrigued to research the subject myself. The results included two major scholarly articles (pdf) (pdf).

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?

In view of Eastman’s reputation and expertise, Trump was fortunate to get him as legal counsel. And of course, most Americans would concur that there are few gigs more honorable than advising a president of the United States—whether they like the particular president or not.

Enter Thompson’s Jan. 6 Committee

Thompson’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.

In fact, despite all the anti-Trump prosecutors out there—including those in Eastman’s home state of California—not one has charged him with a crime. His law-abiding record contrasts sharply with the criminal street violence so common among the political allies of the Democrats who are accusing him.
During the time leading up to the Jan. 6, 2021, electoral vote count, Eastman tried to buy enough time so that claims of election irregularities (some of which since have been proven or partially substantiated) could be investigated. His obvious goals were, first, to ensure that the president sworn in on Inauguration Day was the person who actually won the election, and second, if nothing came of the investigation, to assure that Trump supporters could accept the results.
We can see this in a Jan. 6, 2021, email that Eastman wrote to Pence’s attorney. In the email, Eastman first referred to how Congress had violated the Electoral Count Act, a statute not binding on Congress because it's constitutionally defective.

"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."

This is what the committee and the mainstream media persist in labeling as an effort to “overturn the election,” “subvert the election,” and “justify a coup.” Whether or not Eastman’s request to Pence’s attorney was legally sound, it clearly was patriotic rather than insurrectionary.

The Cost

Possibly 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.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). He is a contributor to The Heritage Foundation’s “Heritage Guide to the Constitution.”
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