Congressional Defendants' Brief in Opposition to Plaintiff's Privilege Assertions
John Eastman vs. Bennie G. Thompson, et al., Case No. 8:22-cv-00099-DOC-DFM
March 2, 2022
OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
5140 O’Neill House Office Building
Washington, D.C. 20515
SHER TREMONTE LLP
90 Broad Street, 23rd Floor
New York, New York 10004
ARNOLD & PORTER
601 Massachusetts Ave, NW
Washington, D.C. 20001
Counsel for the Congressional Defendants
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
JOHN C. EASTMAN
Plaintiff,
vs.
BENNIE G. THOMPSON, et al.,
Defendants.
Case No. 8:22-cv-00099-DOC-DFM
CONGRESSIONAL DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFF’S PRIVILEGE ASSERTIONS
Date: March 8, 2022
Time: 9:00 a.m.
Location: Courtroom 9D
DEFENDANTS’ MEMORANDUM OF LAW
INTRODUCTION
The Select Committee is investigating the violent attack on our Capitol on January 6, 2021, and an effort by the former President of the United States to remain in office by obstructing Congress’ count of the electoral votes. Plaintiff John Eastman purports to have been the former President’s lawyer in connection with that effort. But Plaintiff’s role was not simply as an advisor; he spoke at the rally on the morning of January 6, spreading proven falsehoods to the tens of thousands of people attending that rally, and appears to have a broader role in many of the specific issues the Select Committee is investigating. The Select Committee requires a detailed understanding of all of Plaintiff’s activities in order to inform Congress’ legislative judgments and to help ensure that no President can threaten the peaceful transition of power ever again.
Plaintiff has already invoked his Fifth Amendment right against self-incrimination in response to 146 separate questions posed by the Select Committee.1 Now he is attempting to conceal a range of relevant documents behind claims of attorney-client privilege and work-product protection. Below, the Select Committee focuses on Plaintiff’s (and apparently Mr. Trump’s) claims for documents dated January 4-7, 2021, and respectfully urges the Court to reject every such claim.
First, to the extent attorney-client privilege applies in the context of a Congressional subpoena,2 “[a] party asserting [privilege] has the burden of establishing the relationship and the privileged nature of the communication.” United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (internal quotation omitted). Plaintiff here fails to carry his burden of establishing the existence of a legitimate attorney-client relationship with former President Donald Trump during the period at issue. And even if Plaintiff could make such a showing, many of the communications during this period included individuals outside of any attorney-client or confidential relationship—and Plaintiff has not demonstrated the necessary common interest arrangement with these third parties to preserve the privilege. And even if Plaintiff could establish an attorney-client relationship and some broad common interest agreement, Plaintiff chose to distribute these communications over an unprotected university server even after he was expressly admonished by the University President and reminded that he was not free to use University email and computers in support of a political candidate. Finally, Plaintiff admitted that President Trump authorized him to discuss their communications in public, apparently in an effort to establish some form of defense for President Trump’s conduct. Any privilege over these subjects was, therefore, waived.
Second, as to work product, Plaintiff falls far short of meeting his burden to establish that the documents are prepared by party, or a party’s representative, in anticipation of litigation. Even had Plaintiff met that burden, the work product doctrine provides nothing close to absolute protection from disclosure. Courts have already held that former President Trump’s interests in secrecy of certain materials ordinarily shielded by executive privilege are outweighed by the Select Committee’s interests. Trump v. Thompson, No. 21-5254, 2021 U.S. App. LEXIS 36315, at *60 (D.C. Cir. Dec. 9, 2021), stay denied, 142 S. Ct. 680 (2022) (holding that any such privilege was overcome by the Select Committee’s “uniquely compelling need,” the sitting President’s judgment that release was in the country’s best interest, and the careful compromise negotiated between the two branches of government). Here, Mr. Trump’s (or Plaintiff’s) interests in protecting work product are outweighed by the Select Committee’s substantial need; the Select Committee cannot, without undue hardship, obtain their substantial equivalent by other means.
Third, Plaintiff’s documents should be reviewed in camera by this Court for application of the crime/fraud exception. The Court inquired about that exception, and the Select Committee has seriously considered that issue.3 Although the investigation is continuing and will provide substantial further relevant information, sufficient information already exists to justify in camera review and likely rejection of those privileges.
Finally, this Court should deny Plaintiff’s effort to shoehorn into this current briefing on privilege issues a motion to reconsider this Court’s prior constitutional holdings.
SUMMARY OF BACKGROUND4
Before the 2020 election even took place, President Trump and his supporters began to lay the groundwork to cast doubt on the results.5 On election night, Mr. Trump began falsely asserting, without basis, that he had prevailed and called on States to stop counting mail-in and absentee votes.6 In the six weeks that followed, President Trump’s legal team and his supporters took their allegations to the courts, ultimately litigating and losing more than 60 challenges to the election results in seven States.7 State Bars of both New York and Washington, D.C. suspended the law license of one of President Trump’s lead attorneys, Rudolph Giuliani. In re Rudolph W. Giuliani, 2021 Slip Op. 04086 (N.Y. 1st Dept. June 24, 2021) (explaining that Giuliani had “communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer” and emphasizing that “[t]he seriousness of [Giuliani’s] uncontroverted misconduct cannot be overstated”); see also In re Rudolph W. Giuliani, Order, App. D.C., No. 21-BG-423 (July 7, 2021). Other counsel in litigation challenging the election have also faced sanctions. See King v. Whitmer, 20-cv-13134, 2021 WL 3771875, at *1 (E.D. Mich. 2021). (sanctioning Lin Wood, Sidney Powell, and seven others and explaining, “[i]t is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here”). On March 1, 2022, the State Bar of California’s Chief Trial Counsel announced an investigation into Plaintiff’s actions “following and in relation to the November 2020 presidential election.”8
As the courts were overwhelmingly ruling against President Trump’s claims of election misconduct, he and his associates began to plan extra-judicial efforts to overturn the results of the election and prevent the President-elect from assuming office.9 At the heart of these efforts was an aggressive public misinformation campaign to persuade millions of Americans that the election had in fact been stolen. The President and his associates persisted in making “stolen election” claims even after the President’s own appointees at the Department of Justice and the Department of Homeland Security, along with his own campaign staff, had informed the President that his claims were wrong.
According to the President’s senior campaign advisor, soon after the election, a campaign data expert told the President “in pretty blunt terms” that he was going to lose.10 On November 12, 2020, the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) issued a public statement noting “unfounded claims and opportunities for misinformation” about the election, and affirming that “[t]here is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”11 The following month, Attorney General William Barr stated publicly that the “U.S. Justice Department ha[d] uncovered no evidence of widespread voter fraud that could change the outcome of the 2020 election,” a position he reiterated on December 21 when rejecting calls to appoint a special prosecutor to investigate election fraud.12 A senior advisor to the President’s campaign agreed with Barr’s analysis and said that to the President on multiple occasions.13
Evidence obtained by the Select Committee reveals that Acting Attorney General Jeffrey Rosen and Acting Deputy Attorney General Richard Donoghue discussed allegations of voter fraud with President Trump on multiple occasions in December of 2020—and informed him, both as to specific allegations and more generally, that the President’s claims of massive fraud sufficient to overturn the election were not supported by the evidence.14 According to Rosen, at a December 15, 2020 meeting at the White House that included Rosen, Donoghue, Ken Cuccinelli (Department of Homeland Security), Pat Cipollone (White House Counsel), and Mark Meadows (White House Chief of Staff), participants told the President that “people are telling you things that are not right.”15 According to Donoghue, he personally informed the President on a December 27, 2020 phone call “in very clear terms” that the Department of Justice had done “dozens of investigations, hundreds of interviews,” had looked at “Georgia, Pennsylvania, Michigan, Nevada” and concluded that “the major allegations are not supported by the evidence developed.”16
The President nevertheless continued to insist falsely through January that he had “won the election in a landslide.” And despite being repeatedly told that his allegations of campaign fraud were false, the President continued to feature those same false allegations in ads seen by millions of Americans.17 (The Select Committee will address these issues in detail in hearings later this year.)
As the President and his associates propagated dangerous misinformation to the public, Plaintiff was a leader in a related effort to persuade state officials to alter their election results based on these same fraudulent claims.
President Trump, Plaintiff, and several other associates of the President reached out directly to state officials to communicate unsubstantiated allegations of election fraud and request that state legislatures disregard popular election results.18 On January 2, 2021, the President and Plaintiff convened a video conference with hundreds of state legislators from swing states won by candidate Biden.19 The Trump team reportedly urged the legislators to “decertify” the election results in their States.20 According to Michigan State Senator Ed McBroom, this call focused (without any valid legal or factual basis) on the purported power of state legislators to reject the rulings of federal and state courts and overturn already certified election results.21 That same day, President Trump spoke with Georgia Secretary of State Brad Raffensperger, pressing false and unsubstantiated claims of election fraud, and ultimately asking Raffensperger to “find 11,780 votes” for Trump in the State.22
President Trump also took steps that would have corrupted the Department of Justice; he offered the role of Acting Attorney General to another Justice Department political appointee, Jeffrey Clark, knowing that Mr. Clark was pressing to issue official letters to multiple state legislatures falsely alerting them that the election may have been stolen and urging them to reconsider certified election results.23 The Department’s senior leadership and President Trump’s White House Counsel threatened to resign if President Trump elevated Clark and fired those who were resisting Clark’s requests.24
Mr. Trump’s team also mounted an effort to obtain false election certificates purporting to demonstrate that the electors of seven States were committed to President Trump rather than President Biden. (The Select Committee has deposed several signers of these false certificates, and plans to interview others.) Michigan Republican Co-Chair, Meshawn Maddock publicly stated, for example, that she “fought to seat the electors” because “the Trump campaign asked us to do that.”25 The certificates included false statements that they were official.26
When the Electoral College met on December 14, 2020, and confirmed the certified results of the election, the results of the election should have been final. But Plaintiff advised President Trump to press an unconstitutional plan to disregard those results on January 6.27 The text of the Twelfth Amendment to the Constitution clearly describes Congress’s obligation to count certified electoral votes: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; the person having the greatest Number of votes for President, shall be the President.” U.S. Const., amend. XII. Nothing in the Constitution permits Congress or the presiding officer (the President of the Senate, Michael R. Pence) to refuse to count certified electoral votes in this context, yet that is precisely what Plaintiff suggested. Plaintiff’s proposal was the subject of heated discussions in the White House in the days before January 6, including with the Vice President’s legal counsel and others who told Plaintiff that what he was proposing was illegal.28
This did not deter either Plaintiff or President Trump. Describing his own proposals in a now-public memorandum, Plaintiff characterized his proposed options as “BOLD, Certainly,” but necessary because “this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage,” advising that “we’re no longer playing by Queensbury Rules.”29
Following this advice from Plaintiff—advice that Plaintiff admitted no member of the Supreme Court would accept30—President Trump repeatedly attempted to instruct, direct, or pressure the Vice President, in his capacity as President as of the Senate, to refuse to count the votes from six States. For example, on January 4, 2021, President Trump and Plaintiff met with Vice President Pence and his staff. In that meeting, according to one participant, Plaintiff tried to persuade the Vice President to take action on the electors.31 Again the next day, Plaintiff tried to persuade the Vice President and his staff that the Vice President should reject certain electors.32
The pressure continued on January 6. At 1:00 a.m., President Trump tweeted, “If Vice President @Mike_Pence comes through for us, we will win the Presidency . . . Mike can send it back!”33 At 8:17 a.m., the President tweeted, “States want to correct their votes . . . All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for extreme courage!” 34 Shortly after this tweet, President Trump placed a phone call to Vice President Pence.35 He later connected with the Vice President by phone around 11:20 a.m.36 General Keith Kellogg and others were with President Trump during that call, and General Kellogg described the pressure that Trump put on Pence:
Q: It’s also been reported that the President said to the Vice President that something to the effect of, “You don’t have the courage to make a hard decision.” And maybe not those exact words, but something like that. Do you remember anything like that?
A: Words—and I don’t remember exactly either, but something like that, yeah. Like you’re not tough enough to make the call.37
In his speech to the crowd and television crews that came to the capital on January 6, President Trump explicitly identified the advice given by Plaintiff Eastman when imploring Vice President Pence:
John [Eastman] is one of the most brilliant lawyers in the country and he looked at this, and he said what an absolute disgrace that this could be happening to our Constitution, and he looked at Mike Pence, and I hope Mike is going to do the right thing. I hope so. I hope so because if Mike Pence does the right thing, we win the election. . . . And Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you.38
Vice President Pence had repeatedly made clear that he would not unilaterally reject electors or return them to the states.39 Nevertheless, just before President Trump spoke, Plaintiff falsely alleged widespread manipulation and fraud with voting machines, purportedly altering the election outcome, and then delivered this message to the crowd:
And all we are demanding of Vice President Pence is this afternoon at 1:00 he let the legislators of the state look into this so we get to the bottom of it, and the American people know whether we have control of the direction of our government, or not. We no longer live in a self-governing republic if we can’t get the answer to this question. This is bigger than President Trump. It is a very essence of our republican form of government, and it has to be done.
And anybody that is not willing to stand up to do it, does not deserve to be in the office. It is that simple.40
Shortly thereafter—with the assault on the United States Capitol already underway—Trump tweeted at 2:24 p.m., “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”41 The evidence obtained by the Select Committee indicates that President Trump was aware that the violent crowd had breached security and was assaulting the Capitol when Mr. Trump tweeted.42 The evidence will show that rioters reacted to this tweet, resulting in further violence at the Capitol.43 Indeed, rioters at the Capitol were shouting for the Vice President to be hanged.44 A minute after President Trump’s tweet, Plaintiff sent an email to Vice President Pence’s lawyer stating: “The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.”45
Later that evening, Plaintiff made a final plea to the Vice President’s lawyer: “I implore you to consider one more relatively minor violation [of the Electoral Count Act] and adjourn for 10 days to allow the 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.”46 Plaintiff knew what he was proposing would violate the law, but he nonetheless urged the Vice President to take those actions.
The Vice President rejected Plaintiff’s pleas that he violate the law, and has since indicated that what the President and Plaintiff were insisting he do was “Un-American.”47 Former Fourth Circuit Judge Michael Luttig—for whom Plaintiff had previously worked as a law clerk—described Plaintiff’s view of the Vice President’s authority as “incorrect at every turn.”48 Evidence obtained by the Select Committee to date indicates that President Trump’s White House Counsel confronted Plaintiff before the rally, and rejected Plaintiff’s advice to Mr. Trump. And Plaintiff admitted that not a single Justice of the Supreme Court would agree with his view that the Vice President could refuse to count certain electoral votes.49
As documents now available to the Select Committee demonstrate, Plaintiff used his Chapman University email account to email Greg Jacob, Counsel to the Vice President, on January 5 and 6 urging the Vice President to take illegal action and refuse to count electoral votes.50
* * *
The Select Committee’s investigation is continuing to gather evidence on the planning for the violent assault, communications between those who participated, and communications by the Trump team from the Willard war room and elsewhere. Various individuals planned for violence that day, including with the placement of pipe bombs, the accumulation of weaponry for potential use on January 6 across the river in Virginia, and the use of tactical gear and other weaponry.51 Evidence also indicates that the violent rioters who attacked police, breached the Capitol, and obstructed and impeded the electoral vote were provoked by President Trump’s fraudulent campaign to persuade the American people that the election was in fact stolen.52 Indeed, the President’s rhetoric persuaded thousands of Americans to travel to Washington for January 6, some of whom marched on the Capitol, breached security, and took other illegal actions. The Select Committee’s hearings will address those issues in detail.
Ultimately, President Trump issued a video and a tweet urging the rioters to leave the Capitol, stressing “[w]e love you, you’re very special. You’ve seen what happens, you see the way others are treated that are so bad and so evil. I know how you feel.”53 At 6:00 p.m., the President tweeted: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”54
The January 6 attack resulted in multiple deaths, physical harm to more than 140 law enforcement officers, and trauma among government employees, press, and Members of Congress. See H. Res. 503, Preamble. Law enforcement eventually cleared the rioters, and the electoral count successfully resumed at 8:06 p.m. in the Senate after a nearly six-hour delay.
PROCEDURAL HISTORY
In furtherance of its duty to investigate the facts, circumstances, and causes of the attack on January 6, the Select Committee has issued subpoenas to various government agencies, private companies, and numerous individuals, including Plaintiff and his former employer, Chapman University. In a cover letter accompanying the subpoena at issue here, Chairman Thompson explained that the Select Committee had “credible evidence” that Plaintiff knew about, and “may have participated in, attempts to encourage the Vice President of the United States to reject the electors from several states or, at the very least, to delay the electoral college results to give states more time to submit different slates of electors.” Nov. 8, 2021 Select Committee Cover Letter to Eastman at 1.55 Chairman Thompson noted that Plaintiff wrote “two memoranda offering several scenarios for the Vice President to potentially change the outcome of the 2020 Presidential election.” Id. Chairman Thompson also explained that Plaintiff had “participated in a briefing for nearly 300 state legislators from several states regarding purported election fraud,” “testified to Georgia state senators regarding alleged voter fraud and reportedly shared a paper that argued that the state legislature could reject election results and directly appoint electors,” was “at the Willard Hotel ‘war room’ with Steve Bannon and others on the days leading up to January 6 where the focus was on delaying or blocking the certification of the election,” and on January 6, “spoke at the rally at the White House Ellipse.” Id. at 2.
After Plaintiff refused to produce any documents responsive to a subpoena issued to him directly (which is not before this Court), and invoked the Fifth Amendment privilege against forced self-incrimination repeatedly during his deposition, the Select Committee issued a separate subpoena to Chapman for certain documents in its possession “attributable to Dr. John Eastman, that are related in any way to the 2020 election or the January 6, 2021 Joint Session of Congress.” Compl. Ex. B at 4, ECF No. 1-2. That subpoena requested documents from November 3, 2020 to January 20, 2021. Id. The deadline to produce the subpoenaed documents was January 21, 2022. Id. at 3.
The day before the subpoena’s deadline, Plaintiff initiated this action and sought to enjoin Chapman from producing responsive records. In his application for emergency injunctive relief, Plaintiff made broad assertions of attorney-client privilege without identifying individual communications to which these privileges applied. This Court granted Plaintiff’s request for a four-day ex parte temporary restraining order until the parties appeared for a January 24 hearing to discuss Plaintiff’s request for a temporary restraining order. See Civil Minutes, Jan. 20, 2022, ECF No. 12.
At the January 24 hearing, the parties agreed that Plaintiff would expeditiously produce a privilege log with particularized assertions of privilege. The Court denied Plaintiff’s application to maintain the temporary restraining order, rejected his First Amendment, Fourth Amendment, and Congressional authority claims, and ordered Plaintiff to produce all non-privileged, responsive documents to the Select Committee on a rolling basis. The Court also denied Plaintiff’s blanket attorney-client privilege and attorney work product protection claims with the proviso that Plaintiff retained the right to raise these claims as to specific documents during production. See Order, Jan. 25, 2020, ECF No. 43.
Although Plaintiff produced the requested logs, those logs failed to provide sufficient information to allow the Select Committee to assess the privilege assertions’ validity. After several efforts to secure adequate information from Plaintiff, Congressional Defendants asked this Court to establish a briefing schedule to address Plaintiff’s outstanding privilege assertions and the insufficiency of the information provided on his daily logs. See Notice, Feb. 11, 2022, ECF No. 101. This Court granted that request as to the privilege assertions on Plaintiff’s January 4-7 document logs and set a hearing to address these issues. See Civil Minutes, Feb. 14, 2022, ECF No. 104. At Congressional Defendants’ request, the Court also ordered Plaintiff to produce “evidence of all attorney-client and agent relationships asserted in the privilege log,” including “evidence documenting any attorney-client relationships that existed with his clients.” Id. The Court’s order did not address motions for reconsideration.
STANDARD OF REVIEW
“As with all evidentiary privileges, the burden of proving that the attorney-client privilege applies rests not with the party contesting the privilege, but with the party asserting it.” Weil v. Inv./Indicators, Rsch. & Mgmt., Inc., 647 F.2d 18, 25 (9th Cir. 1981) (citations omitted); United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011). The same is true of the work product doctrine. United States v. City of Torrance, 163 F.R.D. 590, 593 (C.D. Cal. 1995); Cameron v. City of El Segundo, No. 20-CV-04689, 2021 WL 3466324, at *12 (C.D. Cal. Apr. 30, 2021). “Evidentiary privileges in litigation” like those at issue here “are not favored.” Herbert v. Lando, 441 U.S. 153, 175 (1979).
“[A] party asserting the attorney-client privilege has the burden of establishing the relationship and the privileged nature of the communication.” United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (internal quotation omitted). “Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed.” United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002), as amended on denial of reh’g (Mar. 13, 2002) (internal quotation omitted).
ARGUMENT
“[T]he power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” McGrain v. Daugherty, 273 U.S. 135, 174 (1927). Inherent in this investigative authority, Congress can compel production of documents and testimony through legislative subpoenas. It should now be beyond dispute that the Select Committee is operating properly with an appropriate legislative purpose. Order, Dkt. No. 43 at 10 (holding that “the issues surrounding the 2020 election and the January 6th attacks” are “clearly ‘subjects on which legislation could be had”); see also Thompson, No. 21-5254, 2021 U.S. App. LEXIS 36315, at *6 (describing “Congress’s uniquely vital interest in studying the January 6th attack on itself to formulate remedial legislation and to safeguard its constitutional and legislative operations).
I. Plaintiff Has Not Met His Burden to Establish Application of the Common Law Attorney-Client Privilege
A. Plaintiff Has Neither Met His Burden to Establish the Attorney-Client Relationship Nor Has He Sufficiently Established the Privileged Nature of the Communications
Plaintiff claims that “[t]he attorney-client relationship between Dr. Eastman and President Trump should be beyond dispute,” Br. at 11, and declares that he filed briefs on behalf of the Trump campaign in state litigation in December 2020. Pl.’s Ex. 1, Eastman Decl. ¶ 20. But Plaintiff does not even attempt in his declaration to claim attorney-client privilege over the relevant matters and the relevant time at issue here.
Over the past months, the Congressional Defendants repeatedly asked Plaintiff to disclose the engagement letters that show the identity of his client and the period of the representation. Ex. 1, Email Exchange Between Douglas Letter and Charles Burnham. Appended to his declaration, Plaintiff finally revealed what he purports is an engagement letter. That letter identifies the client as “Donald J. Trump for President, Inc.” Ex. A to Ex. 1 at 1. But—despite a clearly delineated signature page with lines for the client and attorney to sign—that letter is unsigned. Ex. A to Ex. 1 at 4. See In re W/B Assocs., 307 B.R. 476, 483 (Bankr. W.D. Pa. 2004), aff’d sub nom. Est. Partners, Ltd. v. Leckey, No. 04CV1404, 2005 WL 4659380 (W.D. Pa. Aug. 31, 2005), aff’d sub nom. In re W/B Assocs., 196 F. App’x 105 (3d Cir. 2006) (“An unsigned agreement, in and of itself, raises material questions as to its validity and applicability.”); Solis v. Taco Maker, Inc., No. 1:09-CV-3293, 2013 WL 4541912, at *5 (N.D. Ga. Aug. 27, 2013) (unsigned engagement letter insufficient to establish attorney client relationship).56 And Plaintiff provided no declaration from his client regarding the scope of his representation.
The lack of signatures is critical because the letter itself states that it becomes operative “[u]pon the proper signatures by all parties hereto.” Ex. A to Ex. 1 at 1. By the terms of the letter, therefore, the absence of signatures suggests the letter was not operative. Plaintiff’s declaration, moreover, does not authenticate this unsigned letter, nor does Plaintiff include the cover email by which the engagement letter was “transmitted.” Ex. 1, Eastman Decl. ¶ 23.57 Although Plaintiff had the burden to establish the elements of the privilege in his opening brief, this unsigned and unauthenticated engagement letter is insufficient to establish an attorney-client relationship during the period at issue (January 4 through 7) as to either President Trump the individual or President Trump’s campaign. Any belated effort to cure this defect in his reply by appending a signed engagement letter or the cover email to the letter should not be permitted. See U.S. ex rel. Giles v. Sardie, 191 F. Supp. 2d 1117, 1127 (C.D. Cal. 2000) (“It is improper for a moving party to introduce new facts or different legal arguments in the reply brief than those presented in the moving papers.”).
Nor can Plaintiff meet his burden by noting his involvement prior to the election in a so-called “Election Integrity Working Group.” Ex. 1, Eastman Decl. ¶ 25. No documentation accompanies this assertion, which in any event provides no indication that Plaintiff had a relevant attorney-client relationship during January 4 through January 7. “[T]he burden of establishing the existence of the relationship rests on the claimant of the privilege against disclosure. That burden is not, of course, discharged by mere conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed.” In re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965). Nor does Plaintiff provide any basis to conclude that the “Working Group” was providing legal advice at the client’s request.
Furthermore, 004722, 004723, 004744, 004745, 004766, 004767, and 004788 were received by various third parties, and Plaintiff fails to meet his burden to show that such disclosure did not destroy the privilege. “[V]oluntarily disclosing privileged documents to third parties will generally destroy the privilege.” In re Pac. Pictures Corp., 679 F.3d 1121, 1126–27 (9th Cir. 2012); see also Reiserer v. United States, 479 F.3d 1160, 1165 (9th Cir. 2007) (“there is no confidentiality where a third party . . . either receives or generates the documents”). “Because the attorney-client privilege applies only where the communication between attorney and client is confidential, there is no privilege protecting the documents the [Select Committee] seeks in the present action.” Reiserer, 479 F.3d at 1165.
“The mere presence of a third party at an attorney-client meeting does not necessarily destroy the privilege,” United States v. Landof, 591 F.2d 36, 39 (9th Cir. 1978) because “[t]he attorney-client privilege may extend to communications with third parties who have been engaged to assist the attorney in providing legal advice,” Richey, 632 F.3d at 566. But “a shared desire to see the same outcome in a legal matter is insufficient to bring a communication between two parties within this [common interest] exception.” In re Pac. Pictures Corp., 679 F.3d at 1129. To invoke the common interest exception, “the parties must make the communication in pursuit of a joint strategy in accordance with some form of agreement—whether written or unwritten.” Id. Moreover, “[a] person who is not represented by a lawyer and who is not himself or herself a lawyer cannot participate in a common-interest arrangement.” Restatement (Third) of the Law Governing Lawyers § 76 (2000); In re Teleglobe Commc’ns Corp., 493 F.3d 345, 365 (3d Cir. 2007), as amended (Oct. 12, 2007) (common interest privilege “only applies when clients are represented by separate counsel”).58
Plaintiff makes no effort to meet his burden of establishing that the third-party recipients of his emails were retained to assist Plaintiff in providing legal advice, nor does he even try to establish that Plaintiff and these parties had “some form of agreement” to pursue a joint legal strategy. In re Pac. Pictures Corp., 679 F.3d at 1129. This Court instructed Plaintiff to “file with the Court and the Select Committee evidence of all attorney-client and agent relationships asserted in the privilege log.” Order, ECF No. 104. ¶ 2. Plaintiff did not identify a single common interest agreement. Plaintiff’s self-serving assertion of a common interest “on information and belief” and conclusory claims about a general common interest—as opposed to an actual agreement—do not satisfy his burden to show that these third parties were brought within the ambit of the privilege such that inclusion of these third parties did not destroy any privilege. Br. 17- 21; see also, e.g., Sony Computer Ent. Am., Inc. v. Great Am. Ins. Co., 229 F.R.D. 632, 634 (N.D. Cal. 2005) (“Where a third party is present, no presumption of confidentiality obtains, and the usual allocation of burden of proof, resting with the proponent of the privilege, applies in determining whether confidentiality was preserved under [the relevant privilege statute].”); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1427 (3d Cir. 1991) (voluntary disclosure to third party waives attorney-client privilege even if third party agrees not to further disclose communication).59
Ninth Circuit precedent is clear: “A party claiming the privilege must identify specific communications and the grounds supporting the privilege as to each piece of evidence over which privilege is asserted.” Martin, 278 F.3d at 1000. Plaintiff’s privilege log and brief instead summarily label a multitude of documents as privileged without properly identifying a client, establishing the advice as legal (as opposed to political or strategic), or showing that the third parties included on the communication were agents of the client. Such “[ b]lanket assertions [of privilege] are ‘extremely disfavored.’” Id. (quoting Clarke v. Am. Com. Nat’l Bank, 974 F.2d 127, 129 (9th Cir.1992)). Accordingly, Plaintiff’s attorney-client claims must be rejected.
In addition, to the extent that the Court finds that Plaintiff was providing advice on political or campaign strategy rather than law, the communications are not privileged, because “advice on political, strategic, or policy issues . . . would not be shielded from disclosure by the attorney-client privilege.” In re Lindsey, 148 F.3d 1100, 1106 (D.C. Cir. 1998); Md. Restorative Just. Initiative v. Hogan, No. 16-01021, 2017 WL 4280779, at *3 (D. Md. Sept. 27, 2017) (“A claim of attorney-client privilege is only legitimate where the client has sought the giving of legal, not political, advice.”).
B. Plaintiff Cannot Invoke Attorney-Client Privilege Over Documents on Chapman’s Server60
“Confidentiality is an aspect of a communication that must be shown to exist to bring the communication within the attorney-client communication privilege. When the confidentiality element is not shown to exist, the assertion of the attorney-client privilege to safeguard a communication from disclosure, is improper.” Long v. Marubeni Am. Corp., No. 05CIV.639, 2006 WL 2998671, at *3 (S.D.N.Y. Oct. 19, 2006) (use of employer email or internet not privileged when policy disclaimed any right to personal privacy and company retained right to monitor data flowing through its systems).
As the Supreme Court explained, an employee’s expectation of privacy “may be reduced by virtue of actual office practices and procedures, or by legitimate regulation.” O’Connor v. Ortega, 480 U.S. 709, 717 (1987). In the context of email communication over an employer’s email system, “the question of privilege comes down to whether the intent to communicate in confidence was objectively reasonable.” Doe 1 v. George Washington Univ., 480 F. Supp. 3d 224, 226 (D.D.C. 2020), reconsideration denied, — F. Supp. 3d —, 2021 WL 5416631 (D.D.C. Nov. 19, 2021) (quoting Convertino v. U.S. Dep’t of Just., 674 F. Supp. 2d 97, 110 (D.D.C. 2009)); see also In re Asia Glob. Crossing, Ltd., 322 B.R. 247, 258 (Bankr. S.D.N.Y. 2005).
Courts confronting the issue have applied four factors: “(1) does the corporation maintain a policy banning personal or other objectionable use, (2) does the company monitor the use of the employee’s computer or e-mail, (3) do third parties have a right of access to the computer or e-mails, and (4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?” George Washington Univ., 480 F. Supp. 3d at 226 (quoting In re Asia Glob. Crossing, Ltd., 322 B.R. at 257). These factors point to the conclusion that any intent Plaintiff may have had to communicate confidentially over the Chapman server was not objectively reasonable.
Chapman’s Computer and Network Policy directly undermines any purported expectation of confidentiality. That policy is clear: “Users should not expect privacy in the contents of University-owned computers or e-mail messages.” Policies and Procedures: Computer and Network Acceptable Use Policy, Chapman University, https://perma.cc/7ZUA-ZALN (last visited Mar. 2, 2022) (emphasis added).
The policy also expressly bans personal use on its network and computing systems. Id. (all university computing and network systems and services are a “University-owned resource and business tool to be used only by authorized persons for educational purposes or to carry out the legitimate business of the University”). And through its policy, Chapman reserves “the right to retrieve the contents of University-owned computers and e-mail messages for legitimate reasons.” Id.
Chapman’s policy is notable in that, in response to the known risks to privilege posed by university email policies, many other universities have in the past decade developed policies that are more protective of user privacy.61 The use of “bare-bonesno- privacy policies” like Chapman’s, in which users are warned “that they do not have an expectation of privacy,” is followed by only a “small minority” of universities. Sisk & Halbur, supra at n.61, at 1297, 1301; Policies and Procedures: Computer and Network Acceptable Use Policy, Chapman University (“Users should not expect privacy in the contents of University-owned computers or e-mail messages”).
Plaintiff was notified of Chapman’s relatively stringent policy and can be presumed to be aware of the it. Plaintiff served on the Chapman faculty for over twenty years and was previously the Dean of Chapman’s law school. According to the University, whenever Plaintiff logged on to Chapman’s network during the relevant period he received a “splash screen” message stating: “Use of this computer system constitutes your consent that your activities on, or information you store in, any part of the system is subject to monitoring and recording by Chapman University or its agents, consistent with the Computer and Acceptable Use Policy without further notice.” Decl. of Janine DuMontelle ¶ 6, ECF No. 17-1.
Moreover, in reference to Plaintiff’s representation of President Trump in Supreme Court litigation, Chapman’s President publicly emphasized the university’s “clear policies in place regarding outside activity,” explaining that “acting privately, Chapman faculty and staff are not free to use Chapman University’s email address, physical address or telephone number in connection with the support of a political candidate.” Dawn Bonker, President Struppa’s Message on Supreme Court Case, Chapman University (Dec. 10, 2020), https://perma.cc/3CTG-4DBN.
At this Court’s hearing on January 15, Chapman’s counsel emphasized that President Trump “was not a clinic client, nor would he have been eligible to be a clinic client of Chapman,” that Plaintiff’s representation of the President was “improper” and “unauthorized,” and that Plaintiff’s use of his Chapman account for such representation was like “having contraband on our system.” Hearing Tr. Re: Pl.’s App. for TRO at 29.
Putting all of this together, Plaintiff certainly had no legitimate expectation of confidentiality during the dates at issue here—January 4-7, 2021—nearly one month after the University President’s public statement.
Plaintiff insists that this Court should disregard Chapman’s policy because Plaintiff is a professor, not a student. The information provided by the university to this Court provides no indication that this makes any difference. To the contrary, less than a month before the period at issue here, Chapman’s President admonished Plaintiff’s use of the Chapman server and email address for the very purpose used here, and was crystal clear that the policy applied to “faculty and staff.” See Bonker, supra (emphasis added).
Plaintiff’s reliance on Convertino v. U.S. Dep’t of Just. is misplaced. Convertino, like the cases the Congressional Defendants cite above, holds that “for documents sent through e-mail to be protected by the attorney-client privilege there must be a subjective expectation of confidentiality that is found to be objectively reasonable.” 674 F. Supp. 2d at 110. “Because his expectations were reasonable,” the District Court for the District of Columbia held in that situation that “[the official’s] private e-mails will remain protected by the attorney-client privilege.” Id. Here, by contrast, Plaintiff had no reasonable expectation that his documents would remain protected. Not only was the University’s policy clear, but any expectation of confidentiality was manifestly unreasonable following the admonishment by Chapman’s President. See Bonker, supra.
For the same reason, United States v. Long, 64 M.J. 57 (C.A.A.F. 2006) is inapposite. See Br. at 28 (relying on Long). Applying a clearly erroneous standard, the Court of Appeals for the Armed Forces concluded there that the lower court did not err in finding a subjective expectation of privacy because “the agency [had a] practice of recognizing the privacy interest of users in their e-mail.” Long, 64 M.J. at 63. By contrast, here, as we have highlighted, the University President (in specific reference to Plaintiff and his political work for President Trump) emphasized that Plaintiff and other faculty had staff had no privacy interest. This fact is also fatal to Plaintiff’s reliance on his prior practices violating Chapman’s policy. See Br. 29-30.
Likewise, Plaintiff’s suggestion that his unauthorized use of Chapman’s system is “irrelevant” because “[t]he privilege is held by the client,” Br. 30, makes little legal difference. As the Ninth Circuit has recognized, “[t]here are several instances in which an attorney’s behavior may waive the privilege, even without an explicit act by the client.” In re Pac. Pictures Corp., 679 F.3d at 1130. Plaintiff’s decision to continue using a server and email account in an unauthorized way after being specifically admonished by the University President against doing so is precisely such an instance where, as the attorney, Plaintiff’s actions defeated application of the privilege.
C. President Trump Waived Privilege By Expressly Asking for Disclosure to Third Parties
“[A] fundamental prerequisite to assertion of the privilege” is “confidentiality both at the time of the communication and maintained since.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980). “Voluntary disclosure of privileged communications constitutes waiver of the privilege for all other communications on the same subject.” Richey, 632 F.3d at 566 (citation omitted); see also United States v. Sanmina Corp., 968 F.3d 1107, 1116 (9th Cir. 2020).
Plaintiff has stated publicly that President Trump authorized Plaintiff’s discussion of advice relating to the election and the events leading up to January 6. Two memoranda that Plaintiff wrote outlining how former Vice President Pence could overturn the results of the Presidential election are already in the public domain and have been provided to the media, and discussed, by Plaintiff.62
Plaintiff discussed the advice in his legal memo at length on a podcast, noting that Plaintiff himself provided the memorandum to author Bob Woodward, and saying at the outset that Mr. Trump had “authorized” him “to talk about these things.”63 Plaintiff has also made extensive public remarks regarding the events of January 6 and his advice to President Trump on numerous other occasions.64 These “[v]oluntary disclosure[s] . . . constitute[] waiver of the privilege for all other communications on the same subject” of the events surrounding the January 6, 2021 joint session of Congress. United States v. Richey, 632 F.3d at 566.
Plaintiff asserts that “[t]he statements about President Trump attributed to Dr. Eastman by the defendants make no reference to privilege,” Br. 24, but nowhere does he cite authority that waiver must make explicit reference to privilege. And, undermining Plaintiff’s representation, Plaintiff indeed recognized the privileged nature of attorneyclient relationships. On May 5, 2021, Plaintiff appeared on the Peter Boyles Show and stated that “I would normally not talk about a private conversation I have with a client, but I have express authorization from my client, the President of the United States at the time, to describe what occurred—to truthfully describe what occurred in that conversation.”65
Plaintiff states the unremarkable proposition that “[c]ourts have long recognized that disclosure of privileged information on a particular subject does not necessarily imply a complete waiver of the privilege.” Br. 25.66 But no one here has asserted a “complete waiver of the privilege.” At issue is former President Trump’s waiver of the subject matter of issues the events of January 6 and Plaintiff’s advice about the effort to interfere with the counting of the electoral votes on January 6 in violation of the Electoral Count Act.
Plaintiff insists that this statement does not waive privilege because his “statements in the very same interview that the conversation in question occurred in the presence of three non-clients in addition to the President.” Br. 24. Waiver, however, does not attach to individual “conversations;” instead, it applies to “all other communications on the same subject.” Richey, 632 F.3d at 566 (emphasis added and citation omitted). President Trump—presumably for strategic and political gain—approved of Plaintiff’s public disclosures of his advice on the subject of the effort to interfere with the counting of the electoral votes on January 6 in violation of the Electoral Count Act. He cannot now come back and reclaim privilege over communications “on the same subject.” Richey, 632 F.3d at 566. Neither former President Trump nor Plaintiff can use attorney-client privilege “both as a sword and a shield.” Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162 (9th Cir. 1992) (citation omitted); In re EchoStar Commc’ns Corp., 448 F.3d 1294, 1301-02 (Fed. Cir. 2006).
II. The Documents Sought from Chapman Are Not Protected by the Common Law Attorney Work-Product Doctrine
“The work-product doctrine is a qualified privilege that protects from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.” Sanmina Corp., 968 F.3d at 1119 (internal quotation marks and citation omitted). To qualify for work-product protection, documents must: “(1) be prepared in anticipation of litigation or for trial and (2) be prepared by or for another party or by or for that other party’s representative.” Richey, 632 F.3d at 567 (internal quotation marks and citation omitted).
“The party claiming work product immunity has the burden of proving the applicability of the doctrine.” Verizon California Inc. v. Ronald A. Katz Tech. Licensing, L.P., 266 F. Supp. 2d 1144, 1147 (C.D. Cal. 2003) (citations omitted). The work product doctrine does not protect against disclosure if the party seeking the discovery “has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(ii). Plaintiff fails both steps of the test. First, he fails to satisfy his burden to invoke the work product doctrine because he cannot show that the disputed materials were prepared in anticipation of litigation (as opposed to political purposes). Second, Plaintiff fails to undercut the Select Committee’s substantial need for the documents.