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

Commentary 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 even older than the Constitution itself. Until recently, a consensus spanning the political spectrum protected these guarantees. But to the authoritarians of the new American left, nothing is sacred. Attacks on Rights Older Than the Constitution Last year, 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 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 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 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 last year’s Capitol incursion. The 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 lawyer, he or she cannot be compelled to disclose what you said in confidence. It also protects papers generated while your lawyer 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 citizens effective legal representation. If it were lost, many accused people would feel they couldn’t tell their lawyers the whole truth. This would undermine the quality of their legal representation. Moreover, if lawyers are compelled to reveal information about their own clients, many of those accused would stand defenseless against government prosecutors. Rep. 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 to his lawyer, professor John Eastman. John Eastman Eastman advised Trump during the latter part of 2020 and 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 law school for 20 years, and served as dean for four. He has an extraordinary record of scholarly research and public service. Several versions of his résumé are freely available online (pdf; see also here), 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, for example, we both attended a simulated convention of states. He served as a commissioner (delegate) and I 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 Eastm

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

Commentary

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 even older than the Constitution itself.

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

Attacks on Rights Older Than the Constitution

Last year, 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 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 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 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 last year’s Capitol incursion.

The 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 lawyer, he or she cannot be compelled to disclose what you said in confidence. It also protects papers generated while your lawyer 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 citizens effective legal representation. If it were lost, many accused people would feel they couldn’t tell their lawyers the whole truth. This would undermine the quality of their legal representation. Moreover, if lawyers are compelled to reveal information about their own clients, many of those accused would stand defenseless against government prosecutors.

Rep. 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 to his lawyer, professor John Eastman.

John Eastman

Eastman advised Trump during the latter part of 2020 and 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 law school for 20 years, and served as dean for four. He has an extraordinary record of scholarly research and public service. Several versions of his résumé are freely available online (pdf; see also here), 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, for example, we both attended a simulated convention of states. He served as a commissioner (delegate) and I 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. 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 have 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 Vice President 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 accuse 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 accepted the results.

We can see this in a Jan. 6, 2021, email that Eastman wrote to Vice President Pence’s lawyer. 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. Then he added:

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. 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 lawyer 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 have 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 a day—later reduced to 500—and, as to each document provide explanations as to why it should or should not 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 as warning to anyone who challenges “progressive” domination of America. 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 (1) cleaning house this November and (2) curbing federal power so as to reduce the ability of people like Thompson and his committee to abuse it.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.


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Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver.