The Eastman Rules

Attorney John Eastman, in his now famous memo advising Donald Trump about what power the president of the Senate might exercise in the counting of electoral ballots, wrote in support of his more aggressive interpretation of the constitutionally questioned Electoral Count Act, “We’re no longer playing by Queensbury Rules.”  

For this turn of phrase, Eastman has received a good deal of criticism, some of it from “friends.”  

The “friendly fire” is to be expected, I suppose. What’s left of the conservative movement exists primarily to confront other conservatives, rather than its nominal adversary, the Left. 

Conservatism, Inc. exists to purge the Right, and does so like a ballerina at a pizza party. Alas, political battles are not won by bulimia. 

Two Republicans—the only two, hand-picked by House Speaker Nancy Pelosi (D-Calif.)—on the Select Committee on January 6, Representatives Liz Cheney (R-Wyo.) and Adam Kinzinger (R-Ill.), seek to vomit up (or vomit on, it is not clear which) members of their own party to have them prosecuted by the Department of Justice. 

Cheney is an attorney and dynasty politician, from the House of Forever War. Kinzinger, of no legal education or pedigree at all, is just . . . well, as Mark Twain put it, “Suppose you are a member of Congress. Now suppose you are an idiot. But I repeat myself.” The former would like to restore the dynastic rule of low taxes and endless foreign interventions. The latter would like someone to explain what’s going on, preferably in crayon. 

In any event, through the January 6 Committee, Cheney and Kinzinger are illustrating something important about the rhetorical flourishes of Eastman.    

Congress has subpoena power to gather information for a legislative purpose. To be clear, for the Kinzingers of the world, that means not for any other purpose

The executive has the power to enforce the law. In connection therewith, it has the power to search people’s persons, houses, papers, and effects for evidence for criminal prosecution. 

Ah, but there are limits to that. The Constitution contains a massive edifice of rights designed to shield Americans from politicized criminal justice. So massive is this edifice that it casts penumbras and emanations that are said to create a broad sphere of privacy. So broad, in fact, that as part of “ordered liberty” states haven’t been able to restrict the use of contraceptives since 1965. 

There are Queensbury Rules and there are Queensbury Rules plus. They’re called the Bill of Rights and the ever-expanding related case law full of concepts, fit for preschoolers, 88-year old Senators, hell, even Kinzinger, such as “super-duper” precedents about privacy. 

A foundational right of privacy that casts the shadow of all these other “super-duper” rights is found in the Fourth Amendment. It reads: 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

For the Justice Department to invade your things, it needs a warrant, supported by a showing of probable cause. Getting a warrant to search all of an attorney’s files in connection with advice given to a client is not so easy. The Justice Department has done it before, for example, in connection with Trump and his attorney Michael Cohen. That resulted in a good deal of bad press, and did not produce anything to get at their real target, Trump. 

But the January 6 Committee does not need a warrant, again because its subpoena power is limited by legislative needs.

The January 6 Committee did in fact subpoena all of Eastman’s emails and papers in the possession of his former employer Chapman University. Eastman argued that this was an end-run around the Fourth Amendment. Judge David Carter of the U.S. District Court for the Central District of California, however, found otherwise and ordered Chapman to furnish the subpoenaed documents, 90,000 pages in all. 

Eastman asserted that much of the subpoenaed documents are covered by attorney-client or work-product privilege and prepared what is known as a privilege log, a procedure by which all the privileged documents are logged and a description supporting the privilege is included. 

Unsatisfied with the privilege log, Judge Carter has determined to personally perform an in camera review of all 90,000 pages and prepare a report on privilege. 

Now, there is in the case of privilege a “crime-fraud” exception. 

One can’t help but wonder if this inquisitorial exercise (which involves an active bench, as opposed to adversarial exercise with a passive bench) will lead to some communication as a basis for invoking the “crime-fraud” exception. Much of the media has already determined that Eastman’s advice had to be a crime, or something like it (proceedings that could lead to disbarment are in the works). After all, there was a riot on January 6, 2021. 

Any basis for a crime-fraud exception would potentially force Eastman to hand over all of his writings to the January 6 Committee, which would then disclose any and all embarrassing details it can find, convict Eastman in the media, and make a criminal referral of the Eastman matter to the Justice Department.

Super-duper privacy rights and Fourth Amendment be damned.  

In the zeal of all three branches to do something to advance a political response to January 6—as opposed to substantively addressing the sincere concerns of the discontents—do they forget they are establishing rules for not just these political prosecutions but for a future of political prosecutions for whoever holds power?

Exactly whose rules are we, and will we be, playing by?

About Jay Whig

Jay Whig is an adjunct fellow of the Center for American Greatness. Whig practices law in New York and a resides in Connecticut, specializing in insolvency and restructuring. Opinions are his own.

Photo: iStock/Getty Images

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