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Trump appointee says Tuberville met with Trump family, advisers on eve of Capitol attack
Tuberville, through a spokeswoman, said he did not attend the meeting with Trump on the eve of the deadly attack.
by Eddie Burkhalter
Alabama Political Reporter
January 26, 2021
LAST UPDATED ON JANUARY 27, 2021, AT 08:39 AM


The entrance to the Trump International Hotel in Washington D.C. (VIA WIKIMEDIA COMMONS)

Here is the latest on the meeting among Trump allies on Jan. 5:

• Trump appointee Charles Herbster says Sen. Tommy Tuberville met with the Trump family, then-RAGA director and top Trump adviser on Jan. 5 at the Trump International Hotel.
• Photos and a separate social media post put Tuberville in Trump’s hotel on Jan. 5, despite Tuberville denying attending any meeting.
• Charles Herbster originally posted on Jan. 5 that the meeting took place at the White House and included Rudy Guiliani that evening, but the next morning he edited his post to say it happened at Trump’s hotel, and he removed Guiliani from the post altogether.
• David Bossie, former President Donald Trump’s deputy campaign manager, told APR that he didn’t attend the meeting in question, despite Herbster saying he was there.

Update: Sen. Tommy Tuberville, through a spokeswoman, denied attending the Jan. 5 meeting. Facebook and Instagram posts appear to tell a different story.

The night before the deadly attack on the U.S. Capitol, Alabama Republican Senator Tommy Tuberville and the then-director of the Republican Attorneys General Association met with then-President Donald Trump’s sons and close advisers, according to a social media post by a Nebraska Republican who at the time was a Trump administration appointee.

-- Republican attorneys general condemned over robocall that urged march to Capitol: Group distances itself from robocall sent by fundraising arm that encouraged Trump supporters to ‘call on Congress to stop the steal’, by Kenya Evelyn

-- Steve Marshall says he’ll investigate Republican AG group’s role in Washington march, by Mike Cason

Charles W. Herbster, who was then the national chairman of the Agriculture and Rural Advisory Committee in Trump’s administration, in a Facebook post at 8:33 p.m. on Jan. 5 said that he was standing “in the private residence of the President at Trump International with the following patriots who are joining me in a battle for justice and truth.”

Tuberville, through a spokeswoman Tuesday, told APR that he did not attend a Jan. 5 meeting at the Trump International Hotel in Washington.

Among the attendees, according to Herbster’s post, were Tuberville, former RAGA director Adam Piper, Donald Trump Jr., Eric Trump, Trump’s former National Security Advisor Michael Flynn, adviser Peter Navarro, Trump’s 2016 campaign manager Corey Lewandowski and 2016 deputy campaign manager David Bossie.

RAGA’s [Republican Attorneys General Association] dark-money fundraising arm, the Rule of Law Defense Fund, led by Alabama Attorney General Steve Marshall, paid for robocalls directing people to the March to Save America and rally, which took place just before the Capitol attack.

[January 5, 2020]

One of the groups supporting the March to Save America was the Rule of Law Defense Fund, the policy arm of the Republican Attorneys General Association. In a robocall sent out on Jan. 5, which was obtained by the watchdog group Documented, it promoted the next day’s events — and a march.

“The March to Save America is tomorrow in Washington, D.C., at the Ellipse in President’s Park between E St. and Constitution Avenue on the south side of the White House, with doors opening at 7:00 a.m,” the message read. “At 1:00 p.m., we will march to the Capitol building and call on Congress to stop the steal.”

-- When did the Jan. 6 rally become a march to the Capitol?, by Philip Bump, The Washington Post, February 10, 2021

Herbster attended the Jan. 6 rally, but said he left before the riot, according to the Omaha World-Herald. The newspaper also reported that Herbster “also met Tuesday in Trump’s private residence in his Washington, D.C., hotel with Trump’s sons, Donald Jr. and Eric, and other campaign advisers.”

“They discussed how to pressure more members of Congress to object to the Electoral College results that made Joe Biden the winner,” The Omaha World-Herald reported.

Flynn earlier on Jan. 5 spoke at a rally of pro-Trump supporters in support of Trump’s baseless claims of widespread election fraud.

“We stand at a crucible moment in United States history. This country is awake now,” Flynn told the crowd, according to numerous news outlets.

Congressman Mo Brooks, R-Alabama, spoke at the rally prior to the Capitol attack, telling the crowd: “Today is the day that American patriots start taking down names and kicking ass.” Right-wing political activist and an organizer of the Jan. 6 “Stop the Steal” rally, Ali Alexander, in videos posted on social media claimed that Brooks was involved in the planning of the rally that day, meant to pressure lawmakers inside the Capitol as they prepared to vote on certifying the Electoral College votes.

The Jan. 5 meeting, as discussed in the Facebook post, was first reported by journalist Seth Abramson on Tuesday. Abramson in his article states that it’s unclear if Trump himself attended the Jan. 5 meeting at his hotel.

“I’ve dedicated my life to promoting and preserving the American Dream. Tonight, as I look at our nation’s flag, I’m reminded of the battles and blood spilled to protect our way of life,” Herbster wrote in his post:

Charles W. Herbster is with Anna Cooper and 13 others.
January 5 at 9:33 PM

I've dedicated my life to promoting and preserving the American Dream. Tonight, as I look at our nation's flag, I'm reminded of the battles and blood spilled to protect our way of life.

For me, the white signifies purity and innocence; red, hardiness and valor; and the blue, especially today, signifies perseverance and justice. While so many have chosen the easy path, I will continue to fight for what is honest and true. Right now, I stand in the private residence of the President at Trump International with the following patriots who are joining me in a battle for justice and truth:

U. S. Senator Tommy Tuberville, Alabama; Mr. Donald Trump, Jr.; Mr. Peter Navarro, Assistant to President Donald J. Trump, Director of Trade and Manufacturing Policy, and the National Defense Production Act Policy Coordinator; Mr. Eric Trump; Mr. Adam Piper, Executive Director Republican Attorney General Association; Mr. David Bossie, President and Chairman of Citizens United and Deputy Campaign Manager of the 2016 Donald J. Trump Presidential Campaign; Mr. Corey Lewandowski, Manager of the 2016 Donald J. Trump Presidential Campaign; and General Michael Flynn, 25th United States National Security Advisor.

These faithful servants of freedom need our prayers as well as the U.S. Congress. Tomorrow on Capitol Hill, they open sealed electoral voting certificates from each state. This joint session is the last official chance for our members of Congress to object to the widespread voter fraud that happened on November 3.

God Bless America.

Charles W. Herbster, who was then the national chairman of the Agriculture and Rural Advisory Committee in Trump’s administration, in a Facebook post at 8:33 p.m. on Jan. 5 said that he was standing “in the private residence of the President at Trump International with the following patriots who are joining me in a battle for justice and truth.”

In numerous photos posted to his Facebook page in the months prior to the Jan. 5 meeting, Herbster can be seen posing with Trump and Trump’s sons and close advisors.

APR sent questions to a Tuberville spokesperson asking whether the senator had attended a Jan. 5 meeting with Trump, Piper and others at his hotel, and if so, why was he called to the meeting and what was discussed. The Tuberville spokeswoman replied in an email: “the answers to your questions are No and Not Applicable.” Attempts to contact Herbster on Tuesday were unsuccessful.

As pro-Trump supporters, far-right groups and militia members were breaking into the U.S. Capitol on Jan. 6, Trump and his attorney Rudy Giuliani both mistakenly called Republican Sen. Mike Lee of Utah while trying to call Tuberville, according to multiple news accounts, a recording of a voicemail message by Giuliani left for Tuberville and statements by Lee.

[Rudy Giuliani] Senator Tuberville, or I should say Coach Tuberville, this is Rudy Giuliani, the President's lawyer. I'm calling you because I want to discuss with you how they're trying to rush this hearing, and how we need you, our republican friends, to try to just slow it down so we can get these legislators to get more information to you. And, uh, I know that they're reconvening at eight tonight. But the only strategy we can follow is to object to numerous states, and raise issues so that we get ourselves into tomorrow, ideally until the end of tomorrow. I know McConnell is doing everything he can to rush it, which is kind of a kick in the head, because it's one thing to oppose us, it's another thing not to give us a fair opportunity to contest it. He wants to try to get it down to three only, three states that we can contest, whether there are ten states that we can contest, not three. So if if you could object to every state, and along with a congressman get a hearing for every state, I know we would delay you a lot, but it would give us the opportunity to get the legislators, who are very very close to pulling their votes, particularly after what McConnell did today, and it angered them because they have written letters asking that you guys adjourn and send them back the questionable ones, and they'll fix them up. So this phone number I'm available on all night, and it would be an honor to talk to you. Thank you.

-- Giuliani Voicemail from January 6, 2021

In the recorded voicemail message mistakenly left on Lee’s phone, first reported by The Dispatch, Giuliani asks Tuberville to stall the counting of electoral votes.

“I want to discuss with you how they’re trying to rush this hearing and how we need you, our Republican friends, to try to just slow it down so we can get these legislatures to get more information to you,” Giuliani said in a voicemail.

Piper resigned as director of RAGA [Republican Attorneys General Association] on Jan. 12 following much public scrutiny over robocalls paid for by the Rule of Law Defense Fund ["RLDF"].

“Every decision Adam made on behalf of RLDF [Rule of Law Defense Fund was with the best of intentions and with the organization’s best interests in mind,” Marshall said in a statement at the time. “Adam leaves a void that will be difficult to replace, but we wish Adam well as he pursues other opportunities that will allow him to spend more time with his family.”

Marshall has not publicly said why Piper resigned. Attempts to reach Piper for comment Tuesday were not successful.

RLDF [Rule of Law Defense Fund] was listed as a participating organization for the Jan. 6 “March to Save America” on the march’s website. The website is now down, but archived versions show RLDF as a participating group. Prior to the protest, RLDF [Rule of Law Defense Fund] sent out robocalls detailing when and where citizens should meet for the Jan. 6 rally, which was first reported by the watchdog investigative journalism group Documented.

“I’m calling for the Rule of Law Defense Fund with an important message,” the robocall stated, according to Documented. “The march to save America is tomorrow in Washington D.C. at the Ellipse in President’s Park between E St. and Constitution Avenue on the south side of the White House, with doors opening at 7:00 a.m. At 1:00 p.m., we will march to the Capitol building and call on Congress to stop the steal. We are hoping patriots like you will join us to continue to fight to protect the integrity of our elections. For more information, visit MarchtoSaveAmerica.com. This call is paid for and authorized by the Rule of Law Defense Fund, 202-796-5838.”

“Serving Republican attorneys general has been the honor of a lifetime and honestly a dream job,” Piper said in a statement on his resignation, according to the Associated Press.

In a statement to APR on Jan. 7, after APR’s story on the matter had published earlier that day, Piper said neither RAGA nor RLDF was involved with the planning of the rally and seemed to place the blame on staff.

“The Republican Attorneys General Association and Rule of Law Defense Fund had no involvement in the planning, sponsoring, or the organization of yesterday’s rally,” Piper said in the statement at the time. “No Republican AG authorized the staff’s decision to amplify a colleague speaking at the rally. Organizationally and individually, we strongly condemn and disavow the events which occurred. Yesterday was a dark day in American history and those involved in the violence and destruction of property must be prosecuted and held accountable.”

Marshall, in a statement to APR on Jan. 8, blamed unnamed RLDF staff and said he was not aware of his organization’s involvement:

“I was unaware of unauthorized decisions made by RLDF staff with regard to this week’s rally. Despite currently transitioning into my role as the newly elected chairman of RLDF, it is unacceptable that I was neither consulted about nor informed of those decisions. I have directed an internal review of this matter. As I said yesterday, I condemn, in the strongest possible terms, the actions of those who attempted to storm the U.S. Capitol, a place where passionate but peaceful protestors had gathered and lawmakers debated inside. Our country is built upon the foundation of the rule of law. American democracy guarantees the right of peaceful protest. Those who chose to engage in violence and anarchy should and will be held accountable under the law.”

Marshall, speaking to The Montgomery Advertiser on Jan. 12, after a press conference on human trafficking and before Piper’s resignation was announced, said the internal review was ongoing. Asked by the Advertiser whether he felt Trump bore any responsibility for the violence at the Capitol on Wednesday, and for comment on Trump’s potential impeachment, Marshall declined to comment.

“I didn’t see anything about the rally,” Marshall said, according to the newspaper. “I don’t know anything about his remarks.”

APR’s questions to Marshall’s office Tuesday about the status of Marshall’s investigation into the matter, and whether he has learned of Piper’s possible attendance at that Jan. 5 meeting, weren’t immediately answered.

************************************

AG’s office refuses to reveal Marshall’s whereabouts before or after Jan. 6: AG Steve Marshall’s office denied APR’s request for his calendar during the lead up to, and after, the Jan. 6 attack.
by Eddie Burkhalter
Published July 20, 2021
LAST UPDATED ON JULY 20, 2021, AT 07:23 PM


Alabama Attorney General Steve Marshall speaks during a press conference on COVID-19 with Gov. Kay Ivey in April 2020. (VIA GOVERNOR'S OFFICE)

Alabama Attorney General Steve Marshall won’t say where he was on the days leading up to and following the deadly Jan. 6 attack on the U.S. Capitol.

Marshall leads the Republican Attorneys General Association’s dark-money nonprofit Rule of Law Defense Fund, which paid for robocalls detailing when and where citizens should meet.

Then-Republican Attorneys General Association director Adam Piper attended a Jan. 5 meeting at the Trump International Hotel in Washington D.C., along with Sen. Tommy Tuberville, R-Alabama; Donald Trump Jr.; Eric Trump; Trump’s former National Security Advisor Michael Flynn; adviser Peter Navarro; Trump’s 2016 campaign manager Corey Lewandowski; and 2016 deputy campaign manager David Bossie, according to Charles W. Herbster, who was then the national chairman of the Agriculture and Rural Advisory Committee in Trump’s administration.

“They discussed how to pressure more members of Congress to object to the Electoral College results that made Joe Biden the winner,” Herbster told The Omaha World-Herald about that Jan. 5 meeting.

It’s unclear whether Marshall had any meetings with Trump, or Trump aides, in the days leading up to the failed insurrection. APR in a records request asked for Marshall’s scheduling records and calendars between Dec. 26, 2020, and Jan. 19.

“Consistent with long-standing policy, this Office has determined that disclosure of these records may pose a security risk and are therefore privileged. I regret that I am unable to honor your request at this time,” wrote Marshall in a letter, which was also signed by Ben Baxley, chief of the opinions division in Marshall’s office.

APR asked Mike Lewis, a spokesman with Marshall’s office, in a message how disclosing where Marshall had been several months ago could be considered a security concern, but Lewis hadn’t responded as of Tuesday morning.

APR wasn’t the first to request such records for Marshall. Daniel Tait, research and communication manager for the Energy and Policy Institute, in February asked Marshall’s office for his scheduling records from Dec. 26, 2020, through Jan. 12.

“I requested records because EPI was reporting and researching on the Rule of Law Defense Fund, utilities, and members of Congress who had voted to overturn the election,” Tait told APR on Saturday. “Alabama Power had donated to RLDF in 2019 and since Marshall was the chairman, I wanted to know who had his ear leading up to the events of Jan. 6.”

Tait received the same response, denying his request, and shared the letter on Twitter.

Piper resigned as director of the Republican Attorneys General Association on Jan. 12 following public scrutiny over those robocalls paid for by Marshall’s Rule of Law Defense Fund.

Marshall in a statement to APR on Jan. 8 said he was unaware staff at group were involved in the Jan. 6 rally and that he’d ordered an “internal review” of the matter. Several months later it was unclear whether Marshall’s internal review had been completed.

Tuberville through a spokesperson told APR he didn’t attend a Jan. 5 meeting with Trump’s sons and top aides, but after photos surfaced of Tuberville in the hotel that day, Tuberville later said he attended a Republican fundraiser at the hotel on Jan. 5.

In the weeks leading up to Jan. 6, Marshall made numerous public statements alleging fraudulent votes and calling into question the outcome of the 2020 presidential election.

“We obviously have concerns about some of the issues, specifically of irregularities and fraud in other places,” Marshall told Newsmax on Nov. 13. Marshall was speaking about his decision to add Alabama to a list of states challenging mail-in ballots in Pennsylvania.

“To the extent that Americans can have a belief and a trust in the election results on Election Day then it’s hard to have faith in those leaders that will take over,” Marshall said on The Lars Larson Show on Nov. 16. Marshall went on to say that there was a possibility that the courts could throw out enough Pennsylvania ballots to flip that state to former President Donald Trump.

Marshall on Nov. 20 spoke to another talk radio host about the Pennsylvania ballot challenge and said “when they change the rules midstream and we still don’t know the results, the people of America have a reason to question the validity and the authority of what’s taken place through this recent election.”

Marshall on Dec. 9, 2020, announced Alabama would join a Texas lawsuit asking the United States Supreme Court to overturn election results in four states, which the Supreme Court rejected.

Marshall joined several other Republican attorneys general at a meeting with Trump at the White House on Dec. 9.

“The lunch with the attorneys general in the Cabinet Room, which was closed to the media, came a day after Republican attorneys general from 17 states filed a friend-of-the-court brief supporting the Texas lawsuit,” NBC News reported.

Marshall on Dec. 11 tweeted a photo of himself standing alongside Trump in the White House.

“One of the things we hope, with 17 of our colleagues coming together is that the court understands the significant importance of this,” Marshall said Fox News’ “Fox and Friends” morning show on Dec. 10. “All we’ve asked is that only legal ballots be counted. Texas has presented a very compelling argument that compels the court to take this case moving forward, and we’re to support the fact that this needs to be considered.”

“As we have seen nationally, those seeking to undermine the integrity of our elections remain with passionate energy,” Marshall said during the Alabama Electoral College ceremony.

Marshall’s official Twitter and Facebook accounts show no posts from Dec. 31 until Jan. 6, when he tweeted a statement on the Jan. 6 attack on the U.S. Capitol.

“I condemn, in the strongest possible terms, the actions of those who today attempted to storm the Capitol, a place where passionate but peaceful protestors had gathered and lawmakers debated inside,” Marshall said in the statement.

There has been no evidence of widespread voter fraud in the 2020 presidential election, according to Trump’s own former Attorney General William Barr, U.S. election officials and numerous failed lawsuits alleging any number of election misdeeds. Trump and his allies still claim without proof, massive voter fraud.

Numerous Republican Attorneys General Association staffers resigned in the wake of the robocall matter, and after the association appointed as director Pete Bisbee, a man whom one outgoing staffer said was responsible for approving the robocalls.

On Monday the first person convicted of a felony connected with entering the U.S. Capitol on Jan. 6, Paul Hodgkins of Florida, was sentenced to eight months in prison.

Russell Dean Alford of Hokes Bluff was arrested in March, becoming the seventh Alabamian charged in connection with the U.S. Capitol attack that left five dead, including Capitol Police officer Brian Sicknick.

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Trump said he would walk with protesters to the Capitol, but drove off in his motorcade before the march devolved into a violent attack
by Mia Jankowicz
Business Insider
Jan 7, 2021, 5:35 AM

5. Negligence (Swalwell Count 9)

The last of Swalwell’s claims is negligence. Swalwell alleges that “[ i]n directing a crowd of thousands to march on the Capitol—particularly considering their violence-laden commands— the Defendants owed a duty of care to the Plaintiff and to everyone in the Capitol to exercise reasonable care in directing the mob’s actions.” Swalwell Compl. ¶ 255. He further contends that President Trump breached that duty by, among other things, urging rally-goers to “fight like hell.” Id. ¶ 257. Thus, under Swalwell’s negligence claim, the President’s lack of care with his words caused others to riot, resulting in his injuries. Importantly, such a theory is analytically distinct from the theory that underlies Swalwell’s § 1985(1) and aiding-and-abetting theories, which rest on the President’s intentional use of words to encourage violence or lawlessness. See Harris v. U.S. Dep’t of Veterans Affs., 776 F.3d 907, 916 (D.C. Cir. 2015) (observing that “intent and negligence are regarded as mutually exclusive grounds for liability” (alterations omitted) (quoting District of Columbia v. Chinn, 839 A.2d 701, 706 (D.C. 2003))).

When, as here, a plaintiff seeks to hold a defendant liable for negligence for injuries resulting from intervening criminal acts, “heightened foreseeability factors directly into the duty analysis because a defendant is only liable for the intervening criminal acts of another if the criminal act is so foreseeable that a duty arises to guard against it.” Bd. of Trustees of Univ. of D.C. v. DiSalvo, 974 A.2d 868, 871 (D.C. 2009) (internal quotation marks omitted). The crux of heightened foreseeability is a showing of the defendant’s “increased awareness of the danger of a particular criminal act.” Id. at 872 (emphasis added). “It is not sufficient to establish a general possibility that the crime would occur, because . . . the mere possibility of crime is easily envisioned and heightened foreseeability requires more precision.” Id. at 872–73. Such precision involves, “if not awareness of the precise risk, close similarity in nature or temporal and spatial proximity to the crime at issue.” Id. at 874. Thus, for example, in DiSalvo, the D.C. Court of Appeals said that, to establish a duty, the plaintiff “had to establish that [the university] had an increased awareness of the risk of a violent, armed assault in the parking garage.” Id. at 872. Similarly, in Sigmund v. Starwood Urban Retail VI, LLC, to establish a duty, the D.C. Circuit demanded proof of similar crimes in a case in which the plaintiff was injured by a pipe bomb in his building’s garage. 617 F.3d 512, 516 (D.C. Cir. 2010).

Accordingly, to establish that President Trump had a duty to Swalwell to take care of the words he used in the Rally Speech, Swalwell must plead facts establishing that the President had an increased awareness of a risk of a violent assault at the Capitol. Not surprisingly, he does not meet this demanding standard. He therefore cannot advance a theory of negligence liability based on the theory that the President’s lack of care in selecting his words caused his injuries.

-- Memorandum Opinion and Order, Bennie Thompson, et al., v. Donald J. Trump, USDC for the District of Columbia, by Judge Amit P. Mehta, February 18, 2022

President Donald Trump at a rally to contest the certification of the 2020 presidential election results on January 6, 2021. Jim Bourg/Reuters

• Trump assured supporters at the "Save America" rally Wednesday that he would join them on a march to the Capitol.
• He encouraged them to "show strength" and head to the Capitol, where Congress was in the process of certifying President-elect Joe Biden's victory.
• He then returned to the White House by car.
• Soon after, the assembled protesters grew violent, and broke into the Capitol building, with the president watching on TV.

President Donald Trump encouraged protesters to march on the Capitol on Wednesday with the assurance that he would join them — but instead drove away in his motorcade.

He spoke to supporters at the "Save America" rally in Washington DC, organized in protest at the certification of President-elect Joe Biden's election victory.

While Trump-loyalist members of Congress debated a postponement of the certification in the Capitol, Trump himself fired up his crowd.

"Now it is up to Congress to confront this egregious assault on our democracy," he said. "And after this, we're going to walk down — and I'll be there with you — we're going to walk down ... to the Capitol and we're going to cheer on our brave senators and congressmen and women."

Daily Caller
@DailyCaller
President Trump says that following his speech, he will lead his supporters in a march to the Capitol building to "cheer on our brave senators and congressmen and women."
10:24 AM Jan 6, 2021

Trump spoke from behind bulletproof glass, according to Bloomberg reporter Josh Wingrove.

The president's pledge to join the marchers was greeted with cheers. However, according to the press pool report sent following the rally, he actually went back to the White House in his motorcade.

Eugene Daniels
@EugeneDaniels2
Per the pool report: President Trump's motorcade just made it back to the White House despite him telling his supporters he was going to walk to the Capitol with them.
11:43 AM Jan 6, 2021

He then watched the ensuing violence unfold on cable news, as Insider's Charles Davis and Lauren Frias reported.

In his speech, Trump urged his followers to "fight like hell" to overturn the election he lost.

"You'll never take back our country with weakness," he said. "You have to show strength and you have to be strong."

Trump later changed tack, asking supporters to respect law enforcement and go home.

However, he continued to push the false narrative of a stolen election and praised the rioters as "great patriots" in a post that Twitter later deleted.

The White House did not immediately respond to Insider's request for comment.

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One (1) year after Jan. 6, House lawmakers tell of trauma, grief and resilience
They spoke with ABC News Congressional Correspondent Rachel Scott.
by Rachel Scott, Mariam Khan, and Benjamin Siegel
ABC News
January 6, 2022, 3:06 AM

3. Intentional and Negligent Infliction of Emotional Distress (Swalwell Counts 6 and 7)

Swalwell asserts a claim of intentional infliction of emotional distress (IIED) and an additional claim of negligence infliction of emotional distress (NIED). To state a claim for IIED, a plaintiff must allege “(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff [to suffer] severe emotional distress.” Ortberg v. Goldman Sachs Grp., 64 A.3d 158, 163 (D.C. 2013). To state a claim for NIED, a plaintiff must plead that (1) the defendant acted negligently, (2) the plaintiff suffered either a physical impact or was within the ‘zone of danger’ of the defendant’s actions, and (3) the plaintiff suffered emotional distress that was “serious and verifiable.” Wright v. United States, 963 F. Supp. 7, 18 (D.D.C. 1997) (quoting Jones v. Howard Univ., Inc., 589 A.2d 419, 424 (D.C. 1991)).38 President Trump argues that Swalwell’s pleading falls short on the first and third elements on both claims. Swalwell Trump Mot. at 36–37. The court agrees as to the third element of both claims.

“Severe emotional distress” for purposes of a IIED claim is a high bar. It “requires a showing beyond mere ‘mental anguish and stress’ and must be ‘of so acute a nature that harmful physical consequences are likely to result.’” Competitive Enterprise v. Mann, 150 A.3d 1213, 1261 (D.C. 2016). “Serious and verifiable” distress for an NIED claim is a lower bar, but it must manifest in some concrete way, such as “by an external condition or by symptoms clearly indicative of a resultant pathological, physiological, or mental state.” Jones v. Howard Univ., Inc., 589 A.2d 419, 424 (D.C. 1991) (emphasis omitted). Swalwell’s pleading meets neither of these standards. His pleading is largely conclusory. Swalwell Compl. ¶ 223 (alleging that “Defendants’ actions caused severe emotional distress”); id. ¶ 226 (alleging that “plaintiff suffered severe emotional distress”). Swalwell does, however, describe his thoughts and emotions when he was in the House chamber, heard rioters pounding on the door and smashing glass to enter, and saw Capitol police draw their weapons and barricade the entrances. Id. ¶ 224. He states that, during these events, he texted his wife, “I love you very much. And our babies.” Id. ¶ 225. The court does not minimize the trauma and shock Swalwell felt on January 6th, but his pleading simply does not meet the high bar for either an IIED or NIED claim. Those counts will be dismissed.

Before moving to the next claim, the court notes that the Blassingame Plaintiffs also brought an IIED claim (Count 3). They have voluntarily dismissed that claim. Blassingame Pls.’ Opp’n at 32 n.12. That count will be dismissed without prejudice.

-- Memorandum Opinion and Order, Bennie Thompson, et al., v. Donald J. Trump, USDC for the District of Columbia, by Judge Amit P. Mehta, February 18, 2022

Survivors of Jan. 6 riot open up about their trauma and healing 1 year later. ABC News congressional correspondent Rachel Scott speaks with lawmakers and staffers who were both witnesses and victims to the deadly insurrection. Drew Angerer/Getty Images, FILE

One year after the violent attack on Capitol Hill by a mob seeking to overturn the 2020 presidential election results, many House lawmakers are still struggling to wrap their heads around the brutality of that day.

"It's really hard to believe it because it still feels like it was just yesterday. All of the memories feel just as fresh and raw. The enormity of what we faced – our lives, our democracy, the fragility of all of that, it’s still hard to process," Rep. Pramila Jayapal, a Democrat from Washington state, told ABC News during a sit-down interview in late December.

The chaos and violence unfolded over the course of a few hours on that fateful day. But for many who were there, including lawmakers, legislative aides, members of the press, and Capitol Police officers -- the trauma still lingers.


Drew Angerer/Getty Images, FILE. A member of the U.S. Capitol police rushes Rep. Dan Meuser out of the House Chamber as protesters try to enter the House Chamber during a joint session of Congress in Washington, Jan. 06, 2021.

ABC News sat down for an in-depth interview with several House Democrats who were in the gallery of the House chamber last year on January 6, 2021. They experienced firsthand the terror as rioters attempted to breach the chamber.

"I never thought I would be in the Capitol of the United States of America and be attacked by other Americans," Rep. Mikie Sherrill, D-N.J., told ABC News.


PHOTO: Tear gas is fired at supporters of President Trump who stormed the United States Capitol building in Washington, Jan. 6, 2021. The Washington Post via Getty Images, FILE

The images and sounds of that day are unforgettable: the gunfire, shattered glass, a noose at the foot of the Capitol’s sprawling green lawn.

Trump supporters -- brandishing flags, poles, and other makeshift weapons, storming the venerated building, an American symbol of democracy.

On Jan. 6, ABC News Live will provide all-day coverage of events marking one year since the attack on the U.S. Capitol and the continuing fallout for American democracy.


PHOTO: People are seen in the House gallery wearing emergency gas masks as rioters try to break into the House chamber at the U.S. Capitol, Jan. 6, 2021, in Washington. Andrew Harnik/AP

The group of lawmakers, trapped above the House chamber in the gallery, were at one point instructed to reach for gas masks stored under their seats.

"Initially for me it was just, how do you get out? I wasn't even thinking fear. I mean, we didn't even know how to open the gas masks in the gallery," Rep. Lisa Blunt Rochester, D-Del., said.

Rep. Blunt Rochester said she knelt in prayer as the violence erupted just outside the chamber, which she said evoked a flood of emotions and imagery.

"When we prayed, that made me feel back to the word: faith. Like all in that balcony, in that gallery, I could just feel every ancestor. I could feel slavery, Jim Crow, everything, all of the bad things that have to wake you up to what the reality is," Blunt Rochester said.

Rep. Jason Crow, a former U.S. Army Ranger, took cover as his military training and instincts kicked in.

"I will admit that I still harbor feelings of anger and resentment," Crow, a Democrat from Colorado, said. "I never thought that I would be thrust back into that mindset again. But for a brief moment there, I snapped back in to that 'Jason Crow, Army Ranger' mindset and was preparing myself to potentially have to take life again, to protect us and get out. And that wasn't a great place to be in."

Jayapal admitted she has struggled to return to the place of such sorrow. She has not returned to the gallery where she was seated in the chamber that day.

"I think about it all the time. And every time I get an alert on my phone … I feel my heart starting to race a little bit more, more anxiety. I haven’t gone back to the gallery since that day. I haven’t. That night they told us to go back to the same place that we had been, and I was like, I'm not going back," Jayapal said.

"It was traumatic. It was returning to a place of trauma," Jayapal added.


PHOTO: Supporters of President Trump storm the United States Capitol building on Jan. 6, 2021. The Washington Post via Getty Images, FILE

Supporters of President Trump storm the United States Capitol building on Jan. 6, 2021.
The group of Democrats together in the gallery that day by chance, now bonded forever by the trauma.

"Nobody can go through an experience like that experience trauma, not having some impact," Crow said. "And getting help is not a sign of weakness. It's a sign of strength."

They have stayed in touch using a group text message to communicate their thoughts and feelings, and also holding group therapy sessions with a psychologist.

"It's been a blessing in a way, far beyond January 6. I know as a group, it’s made us more resolute, more compassionate, and stronger," Rep. Dean Phillips, D-Minn., said.

Phillips still has the gas mask he used one year ago.

"To bear witness," Phillips explained. "This is going to go with me wherever I end up as long as I am here in this job, on Earth, because this moment is seared into my memory and it’s my responsibility."

Lawmakers have said one of the most challenging aspects of their jobs following the riot is figuring out a way to work with some of their Republican colleagues who voted to overturn the presidential election results and downplay the violence and terror of that day.

"I’d say some of those colleagues of ours who want to pretend that it never happened. Here you had this incredibly vitriolic, traumatic experience and yet we serve with folks who want to pretend it was a tourist visit. And that's tough, that's a tough pill to swallow," Crow said.

The insurrection has only deepened the fraught partisan divides, eroding trust between members who were caught in the crosshairs of the violence.

Freshman Republican Troy Nehls came face to face with the mob and condemned the violent acts.

"The center doors started to shake violently … And then the glass shattered … I saw a young man and he was looking at me and I was looking at him and. And he said, 'You're from Texas, you should be with us,' … And I told him, this was un-American what you're doing,” Nehls told ABC News in an interview.


PHOTO: Pro-Trump protesters face a line of police officers after breaking through barriers onto the grounds of the Capitol Building, Jan. 6, 2021. Jon Cherry/Getty Images, FILE

Hours later, when lawmakers returned to the chamber to certify the election results, he was one of 147 Republicans who voted against it.

One year later, the feelings are still raw.

The pandemic, together with reverberations from the Capitol riot, have led more people on Capitol Hill to seek help.

In 2021, the Congressional Office of Employee Assistance handled 12,200 interactions with employees, managers, and members of the Hill - including 5,600 counseling sessions.

That's roughly four times the number of interactions the office handles in a given year, pre-pandemic.

The office has also conducted 40 trauma support briefings, according to a spokesman for the office.


PHOTO: A flash bang is fired at supporters of President Trump who stormed the United States Capitol building on Jan. 6, 2021. The Washington Post via Getty Images, FILE

Many who were on the Capitol that day are still shaken by the attack, struggling to cope with the trauma.

"I personally haven't gone through anything as traumatic as that – that has been my most traumatic experience," Leah Han, who works in House Speaker Nancy Pelosi’s office, told ABC News in an interview.

Leah Han, and her colleague Nathaniel Holmes, who also works in Pelosi’s office, were just steps from the House Chamber on Jan. 6 when the riot erupted.

"I never really dealt with anxiety before, but I now have anxiety," Holmes told ABC News.

"We started hearing people in the building. It was no longer just these chanting and shouts from outside. You could hear people in the hallways … It just seemed as if someone's capable of breaking in the Capitol building, what else are they capable of?" he said.

Pelosi staff members grabbed what they could and raced to the closest conference room, barricading themselves inside – no members of Pelosi’s security detail in sight.

Han said she struggles when imagining what could have happened had they not had a secure place to hide.

"I've thought about that a lot. What would they have done if they had found us? Were they going to kill us? Were they going to torture us? Were they going to rape me? I don't know. I just don't know. You were thinking about everything, all the possibilities. I mean, I couldn't help but try to prepare myself," Han said.

Han and Holmes said they starkly remember the mob pounding at the conference room door as rioters desperately searched for the speaker.

"Where are you, Nancy? Nancy, where are you? Oh, Nancy,” the rioters chanted as they rummaged through nearby offices.

Pelosi’s staff, including Holmes and Han, hid under a table inside the conference room where they were barricaded.

"I thought I was going to die. I mean, I just remember I kept thinking, 'This can't be happening. This can’t be happening to me,'" Holmes said.

Holmes said he still can’t "unhear" the sound of the rioters pounding on the door.

While the initial shock of the attack has worn off, an unanticipated grief remains that even time can’t seem to shake.

Yet, despite the trauma, they are resilient.

"I don’t think we can be the same. We are a collection, our building is a collection of all the things that happened to us, in us, and so … courage begets courage," Jayapal said.

"I don't know if I can ever be the same, but it doesn't necessarily have to always be defined by that," Holmes said. "I hope it's not defined by that … I don't know if it'll be the same, but hopefully it can be better."

**********************

For many Capitol Hill staffers, the trauma of Jan. 6 has never left: Toxic work environment affects not just members but their aides too
by Brad Korten
Rollcall.com
Posted January 6, 2022 at 6:00am

Let me first preface this by stating that I don’t speak for all congressional staffers. I am one of thousands of hard-working individuals who serve members of Congress and the Capitol daily. Yet I chose to write this piece to provide my perspective of how things have been in Congress one year after the Jan. 6 insurrection. In my over six years of working for Congress, nothing truly compares to the abnormality of this past year.

On Jan. 6th, 2021, I was working from my apartment in the Navy Yard neighborhood of Washington, approximately a mile away from the Capitol. Many congressional staffers were working from home due to the ongoing threat of COVID-19, but some were on the Hill to assist their bosses during the certification of the Electoral College vote. Four of my colleagues were in the office that day, as well as friends who worked for other members across the Capitol complex. As the violent mob attacked the Capitol, I watched on TV — in fear for my co-workers, my boss and my friends. I frankly didn’t know what to do and spent most of that afternoon calling and texting people to see if they were OK. I felt helpless to see the place where I work, the building that represents our nation’s democracy, invaded and destroyed by people spoon-fed lies by the outgoing president and his allies.

Jan. 6 was just the start of what became a very frustrating time to be a congressional staffer. Following the attack, the Capitol transformed from a freely accessible public building into a military base, as thousands of National Guard troops set up a perimeter and fortified the complex. At one point, there were more National Guard troops at the Capitol than soldiers in Afghanistan. These troops patrolled the grounds of the Capitol for the next four months. To me, the militarization of my workplace was heartbreaking to see. Before, constituents and advocates would walk the halls; now, it was armed troops.

Many of my friends and colleagues experienced trauma from that day, especially nonwhite staffers. Having a mostly white mob trying to “stop the steal” and “take their country back” was the accumulation of roughly five years of racist and toxic politics that came from the previous president’s actions. It was already hard for staffers of color to work on the Hill, but for many, this was the final straw. Over the following months, many left their jobs. People who pursued a path of public service wanting to serve their country and help make a difference were forced to leave due to an increasingly difficult working environment.

Even when the fences came down and the troops left, the insurrection still hovered over the Capitol. It wasn’t made easier knowing that some members of Congress continued to push the false conspiracy theories of the last presidential election, or even downplayed the seriousness of the attack itself. Dozens of people were seriously injured that day, and some were killed in the name of a lie. The mental scars are still felt by many who work here, made worse by some members’ hostile attacks on their fellow colleagues. The racist, xenophobic and hateful actions that have been reported this past year impacted not only the targeted members, but the staffers who work for them as well.

I remain hopeful that things can get better. I want to do my part to make a more positive environment for my fellow colleagues, but I fear that the toxicity that has plagued our workplace will only continue. I share my thoughts as one of many congressional staffers who do the work we do for the love of our country and for democracy.

Please consider that Congress is not just the elected members, but the staffers and others who don’t serve a political function but who work to ensure the smooth, everyday operation of our democracy. We will continue to do our jobs for the constituents we serve, but we too need support and a safe and healthy work environment.

Brad Korten is a senior policy adviser to a Democratic member of the House and has worked in Congress for the past six years.

****************************

Can images from Jan. 6 insurrection traumatize your child?
by Kristi King | kking@wtop.com
wtopnews.com
January 3, 2022, 9:10 AM

As the anniversary of the Jan. 6 attack on the U.S. Capitol arrives, some experts say children exposed to those events may react with what doctors call secondary trauma.

“If a child has experienced any type of trauma, or remembers the events of Jan. 6, either by witnessing them on TV or hearing about them consistently, there can be a reaction — or a secondary trauma that takes place,” said Dr. Asha Patton-Smith, a child and adolescent psychiatrist with Kaiser Permanente in Northern Virginia.

“As a parent, it’s important to be aware of that and to look for signs and symptoms of concern,” she said.

Trauma is a complicated condition to diagnose, but common symptoms can include anger, fear, guilt, anxiety, depression, issues with concentration and withdrawal from other people. Physical signs of trauma include muscle tension, headaches, chest pain and fatigue, not being able to sleep and nightmares.

“I think that, as we get closer to the event, there’ll be more talk about the event. And parents do need to check in with their kids to make sure they’re not being re-traumatized … or if these emotional events are triggering previous traumas in their life,” she said.

Last year after the insurrection, Patton-Smith said she observed frustration, anger, even confusion in some of her adolescent patients.

Something she says came up a lot with younger kids was fear: “Will this happen again? Will it be OK? Am I OK? Someone comes into my house, what’s going to happen?”

Patton-Smith said parents need to understand that a sense of safety is what is most important for children, because trauma robs that feeling of safety and makes people feel isolated.

Because children are like sponges, actively absorbing and trying to process what they see, Patton-Smith said parents may need to limit news and social media that could increase exposure to potentially disturbing content.

She also says it’s vital to talk to children about the things they are seeing.

“It really is important for a parent, if they’re talking about the events that happened on Jan. 6 — or any type of event — they talk about it very openly and in a non-biased, nonjudgmental way.”

She recommends parents instead ask younger children about their emotions and feelings.

“Not a judgment, not sharing as a parent what you feel, but just being very open and listening,” Patton-Smith said.

She says it’s also important to listen to older kids in a non-judgmental way, “so you can get a sense of where they are, which may be different from how you were looking at an event.”

Parents who have concerns about what their children may be experiencing shouldn’t hesitate to reach out for help.

“As always, talk to your child’s school counselor, any mental health professional at the school, obviously your child’s pediatrician or primary care provider and, if needed, a mental health professional,” Patton-Smith said.

For more advice on ways to deal with trauma and other mental health issues for kids, Patton-Smith recommends HealthyChildren.org, a parenting website sponsored by the American Academy of Pediatrics.

*************************

Trump’s Favorite Part of Jan. 6 Is Laughing at the Trauma: The former president’s callousness toward his real and perceived enemies is standard fare for Trump, who frequently revels in their pain and misfortune in public and in private.
by Asawin Suebsaeng, Senior Political Reporter
Will Sommer, Politics Reporter
Updated Jan. 06, 2022 9:20AM ET / Published Jan. 06, 2022 4:57AM ET

There are a number of things that make Donald Trump happy when he thinks of Jan. 6, and the long-term consequences of the riot. But it’s the anguish and trauma that has really sparked his joy.

In the full year since the deadly, Trump-inspired assault on the U.S. Capitol, several lawmakers, police officers, and reporters who were there have publicly opened up about the lingering distress they still feel stemming from the anti-democratic violence and body count of the day.

According to three people with direct knowledge of the matter, the twice-impeached former president has noticed the emotional accounts, particularly that from Democratic congresswoman Alexandria Ocasio-Cortez. Some he has found annoying. Others, however, have become targets of mockery and casual hilarity for him.

In several conversations with close allies over the past 12 months, Trump has repeatedly made fun of the idea that certain legislators, police, or journalists were traumatized by the violent events of the day, according to these sources. There are moments when the ex-president has speculated that his critics are “faking” their trauma and anxiety, for attention. Other times, he’s done poor, whining impersonations of perceived enemy lawmakers crying about the riot.

“I know your pain. I know you’re hurt,... We love you. You’re very special.”

-- President Donald Trump, Tweet, January 6, 2020

Trump’s callousness toward his real and perceived enemies, no matter the level of trauma inflicted, is standard fare for Trump: a man who built much of his political legacy and appeal by demagoguing and viciously smearing those who speak out against him. For example, despite his frequent claims about “backing the blue,” Trump privately referred to some of the police officers who were at the Capitol that day as “pussies, The Daily Beast previously reported.

He spent the past year hardening and broadening his lies about that day. Through press releases, rallies and interviews with allies, he’s excused and lionized the violent rioters, called for further election and voting-rights crackdowns across the nation, and in doing so cemented far-right Jan. 6 revisionism and “the Big Lie” as pillars of modern conservative orthodoxy.

And both in policy and in messaging, virtually every corner of the American right that matters has been willing to go along with it.

For a few hours after rioters stormed the Capitol on Jan. 6 last year, it looked like at least a segment of the Republican Party just might turn away from then-President Trump. A handful of Republicans in the Senate reversed their plans to vote against certifying Joe Biden’s win, though 147 Republican lawmakers in both chambers still voted against certification. Several top Trump officials, including two Cabinet secretaries, resigned from the administration in the wake of the riot.

“Yesterday was the worst day for the Republican Party since Lincoln’s assassination,” Joe Grogan, who had served as Trump’s top White House domestic policy adviser, told The Daily Beast the day after the attack in Washington, D.C. “It was a disgrace and a tragedy…[Trump] had plenty of opportunities to off-ramp before this.”

A year later, though, Trump’s hold on the party is almost as strong as it was when he was president. His social media access is gone, but Republican lawmakers still live in fear of Trump endorsing a primary challenger.

Reps. Adam Kinzinger (IL) and Liz Cheney (WY), the two Republican members of Congress most vocally opposed to Trump, are unlikely to have futures in the Trump-controlled party. Kinzinger announced his retirement in October, while Cheney faces a Trump-backed challenger in her primary.

And many of those who spoke out in the immediate aftermath have either reversed course, like House Minority Leader “My Kevin” McCarthy, or stopped talking about the events all together.

For instance, when asked about his feelings about the one-year anniversary of the riot, Grogan simply declined to comment further on the topic. His comments from a year ago became wildly out of step with where the mainstream GOP had landed right around the time President Biden was inaugurated.

If anything, with the passage of a calendar year, the Republican Party has only gotten more extreme. The Jan. 6 defendants have been recast in right-wing media as political prisoners. QAnon, the conspiracy theory that animated many of the rioters, has made new inroads into the GOP. In May, Allen West, then the head of the Texas Republican Party, joined Rep. Louie Gohmert (R-TX) at a QAnon conference in Dallas. Appearing at the same event, former three-star general and Trump national security adviser Michael Flynn endorsed the idea of a Myanmar-style coup taking place in the United States.

Right-wing media outlets have spent the past year laying the groundwork for a contradictory counter-narrative about Jan. 6. Their storyline at once portrays the riot as a nonviolent tourist march through the Capitol and a nefarious plot hatched by the FBI and left-wing antifascists to embarrass Trump that day by committing violence in his name. At Fox News, the center of the conservative media, primetime host Tucker Carlson steamrolled past internal objections to air a faux-documentary suggesting the riot was a false flag carried out by the forces of the “deep state.”

Furthermore, Republican consultants and longtime party strategists—many of whom claimed a sense of (short-lived) squeamishness on the day of the historic, bloody riot—feel emboldened by what they see as general disinterest from much of the public in the January 6 committee’s investigations, especially headed into the critical 2022 midterm elections.

Republicans’ post-riot efforts to minimize the violence and causes of the Jan. 6 attack has helped create a partisan divide over how it’s viewed. In a Washington Post-University of Maryland poll taken in mid-December, 92 percent of Democrats and 57 percent of independents polled said Trump deserved a significant amount of responsibility for the riot, while just 27 percent of Republicans felt the same. Republicans are also more willing to ignore the violence committed during the riot, with 26 percent of Republicans polled describing the rioters as “mostly violent,” in comparison to 78 percent of Democrats and 55 percent of independents who said the same.

Jan. 6 also didn’t inspire Republicans to ditch false claims about the 2020 election. Figures like MyPillow CEO Mike Lindell and Trumpist lawyer Sidney Powell have become stars among the party’s grassroots for carrying on the “Big Lie” even after the insurrection. Trump supporters flock to events around the country where Lindell, Powell, and their compatriots speak about their plans to overturn the election. Elected Republicans at the state level, meanwhile, have seized on false claims about Biden’s win to pass laws restricting voting and win over conservative activists by carrying out bogus ballot audits.

Over the past year, Trump has grown so emboldened by the undying support of conservative voters, right-wing media, and GOP heavy-hitters that he’s already started planning for a second term, whether he gets one or not.

Earlier this year, according to two people familiar with the situation, the former president began asking friends and golfing buddies who they thought he should choose for senior administration posts and cabinet positions, should he re-ascend to 1600 Pennsylvania Ave after the 2024 election.

Some of the potential choices that have floated around Trump’s brain are particularly Trump-y. One of the possible picks he asked some confidants about last year is former Fox Business star Lou Dobbs, another Trumpist dead-ender who has for years acted as a top informal adviser. The two sources said that Trump has pondered aloud putting “Lou” in his cabinet, should he get the opportunity.

Thanks to the Republican Party’s continued protection and promotion of Trump, and the party’s sustained efforts to whitewash Jan. 6, he might just get the chance.

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Rep. Pressley’s Statement on Anniversary of January 6th Insurrection
by Congresswoman Ayanna Pressley
January 6, 2022

“We must remain uncomfortable with what happened that day and the trauma it caused. We cannot grow complacent, and we must move with the urgency this moment demands.”

BOSTON, MA – Today, Congresswoman Ayanna Pressley (MA-07) issued the following statement on the anniversary of the January 6th insurrection.

“One year ago, the nation watched in absolute horror as a violent, white supremacist mob—incited by Donald Trump and Republican lawmakers’ hateful rhetoric and dangerous lies—attacked our seat of government. The attack was a blatant attempt to silence the will of the people, particularly the record number of Black and brown voters who made their voices heard in the 2020 election. Today, one thing remains painfully clear: white supremacy continues to threaten our democracy, our communities and everyone who calls America home.

“The January 6th insurrection was traumatic for everyone involved, from custodial and food service workers, journalists, Capitol police officers, to Congressional staff and members of Congress alike. As a Black woman in America—to experience the ancestral trauma of a violent white supremacist mob seizing the building, brandishing Confederate flags and erecting a noose on the capitol grounds was all too familiar—and tragically, the threat remains today. The same white supremacist threat fuels efforts by our Republican colleagues—many of whom supported and incited this attempted coup—to continue spewing lies and misinformation about the 2020 election results. It fuels the coordinated assault on our sacred right to vote. None of this is by happenstance.

“In this moment, we do not have the luxury of simply turning the page on this ugly and painful chapter in our nation’s history. To heal our collective trauma, to protect our communities, defend our democracy and ensure an attack like this never happens again, there must be accountability. I am grateful for the work done by Chairman Thompson and the January 6th Committee. The American people deserve to know exactly what happened that day and the Biden Administration must use the full weight of the presidency to investigate, prosecute and hold everyone involved accountable—including those in the previous Administration and sitting Members of Congress. And we must abolish the Jim Crow filibuster and pass meaningful voting rights legislation to protect our democracy and keep power in the hands of the people.

“Our work to root out white supremacy in all of its forms, safeguard our democracy, and protect the wellbeing of our communities is far from finished. We must remain uncomfortable with what happened that day and the trauma it caused. We cannot grow complacent and we must move with the urgency this moment demands.”

**************************

Congressman Dan Kildee full interview discussing video captured during Capitol riot
Feb 11, 2021
WXYZ-TV Detroit | Channel 7

Michigan Congressman Dan Kildee (D-Flint), was one of many politicians trapped inside of the U.S. Capitol building during the insurrection on Jan. 6. He captured jarring video of the riot, which was used during the impeachment trial.



did you see that video when the vice
president was ushered out had you seen
that
no i hadn't seen any of the video that
came from the security cameras that was
actually the first time any of it was
shown
and uh to be candid
i watched a lot of the video coverage
right after the attack like
for the first couple of days after it
but
since then i've been avoiding it a
little bit only because
you know just to be honest and i think
it's good to be um you know i've i've
been dealing with a lot of post
traumatic stress as a result of all of
this
and just watching that video triggers a
lot of anxiety and i've got a lot of
work to do
and i'm working through that i'm you
know dealing with somebody a
professional
a mental health professional to help me
through it because
you know the experience that those of us
that were in the gallery had that
41 minutes that we were left behind
when it was clear that you know we were
pretty close to being in real danger
that um
that's a you know that's an experience
that is really hard to get through
you know what i i cannot tell you that i
understand what you went through that
day
but you know what at one time i was on a
flight
where they thought there was fire in the
engine and i literally thought we were
going down so i was
afraid that i was going to die yeah and
it took me
it took me literally four years before i
would even get on another plane so
you know it was so frightening not
really and i'm not saying this is
how you feel but um i was more concerned
about my kids being without me
you know and so many things go through
your mind i have no idea what was going
through your mind for 41 minutes i could
i could only
you know imagine yeah well it was a
similar thing i
was just you know when i was laying
there on the floor in the gallery
protecting myself from these
from this mob that clearly was intent
uh on killing us you know i i called my
wife
i asked her to call my mom
to make sure to let our kids know you
know that i was okay even though i knew
i wasn't
i wanted you know for some reason i
wanted to tell them look i'm all right
i'm safe i'm in a safe spot
even though that safe place was behind a
two-foot wall
separating me from this mob
that you know had clearly its intent
to get a hold of us and to kill as many
of us as they could
and in the greater likelihood is that
they would have succeeded
if it weren't for some very courageous
capital police officers who like most
police officers do the right thing
you know i i'm very critical of the
capitol police leadership
who have had all sorts of problems
regarding you know
race and culture and all sorts of issues
that i think
clearly had been uh a problem
but those capital police officers saved
my life and
i'll i talk to those folks every day and
i'll be forever grateful for them
i bet i bet um tell me this
congressman what what video did you take
were you able to pull out your own
phone and take a little bit of video
explain to me what you
what you have i did um i shot a couple
of
you know segments of video when i was
sheltering and it was this almost
instinctive thing
to capture this moment partly because
this was like two things going on at
once partly because i knew it was a
moment of history
that was important and it was important
to have an accurate record of it i want
to get that record but also
i didn't know you know what was going to
happen to me
and i wanted that video to be there
so the one little snippet of video that
i
that i captured that was used in the
trial
today includes the moment where the
capitol police officer
fired the shot that killed one of the
mob
in so my video captures
the sound of the gunshot and
a very candid reaction on my part
to that sound of that gunshot i used
language that my mom would probably not
approve of
maybe except in this instance
and it's also true that that moment
was a critical moment because if that
officer had not taken that courageous
action
uh that mob would have gotten in to the
gallery
into the to the uh house floor and
the fate of those of us that were
trapped there
uh would have been much worse than it is
wow so when that shot went
off what did the mob do at that point
could you tell
they backed up enough
such that a tactical unit then could
move in to support
the capitol police that are there it was
that tactical unit that was actually
able
to seal off a hallway a back hallway
behind
where um several members of congress and
i
were taking cover and it was through
that back hallway that they were able to
secure for about a minute
that we were able to escape wow i didn't
know that
i didn't know that wow yeah it was a
tough it was a tough
uh thing you know watching the trial
i mean i'm sort of in between committee
hearings and having the trial on so i
haven't been able to watch it as closely
as i'd like but
watching it uh even this evening um
i want to see it but i will tell you
it's not the easiest thing to watch
it brings up a lot of a lot of stress a
lot of anxiety
let me ask you a question so when you
escaped at what point were you and i i
don't know what you did but i would
imagine that
you were almost ready to break down in
tears but at what point did you feel
um that you could breathe a sigh of
relief at least that you knew you
wouldn't be killed
it was a it was a few hours because when
we
were able to escape we actually were
able to escape to an area
that the rest of the members of congress
had already gotten to
and it's a safe room that i can't
describe
because i don't want to uh explain where
it is it kind of
would defeat the purpose but there's a
there's some space that's there
that is able to be sealed off that i was
able to get to
that we stayed in for about four and a
half hours
it was after that
period when we were able to return to
the capitol
to finish the job then it kind of all
hit me
you know i think that's true of all of
us not just me but it kind of hit
us what was going on but
there was another wave of it and it's
because we were in the middle of all
this
we didn't see what was going on outside
i mean i was there
in the gallery in the chamber of the
house
preparing to lead the defense of the
michigan electoral vote
which was going to be challenged so i
wasn't paying i mean i was getting
you know text messages and updates on my
phone about the security
of the capital but we didn't have all
that images i wasn't watching the
television
and so in the in the hours that followed
the attack being able to actually see
what was going on
and then especially to be able to see
the mob that was on the other side of
the
door that our you know officers were
protecting us from
i had no idea how many people it was i
mean i i thought maybe
by the sound of it it was a few dozen
people there might have been a thousand
people
so the the the reaction that i had at
that point
was oh my god we were we were in
bad trouble much worse than i thought we
were
even when i was taking cover i knew i
was in trouble but i didn't know it was
that bad
until i saw the video so
you know i don't want to get real
political here however
when you think about this impeachment
trial and you think about
the big divide and you think about
especially after seeing that video play
today and
knowing that people were literally
within
58 steps of reaching
members of congress and yet some people
i don't know find it in their heart not
to convict or not to think that this
is an impeachable offense um what's your
reaction to that
it frightens me because it tells me the
extent to which
people are willing to go to ignore
the lessons of history because what we
saw this president
do president trump and those who have
enabled him is the same thing that we as
a nation have been fighting against in
other parts of the world for the entire
history of this country
this was an attempt to use mob rule
and thuggery and an authoritarian
approach to undo a democratic election
in order for somebody in power to remain
in power
we've been fighting against this for the
entire history of our country
and so it frightens me that there are
some people who are so
focused on their own interests their own
political interests their own
team and this is really not democrats
and republicans this is
trump and everyone else because a lot of
republicans feel the same way i do
the idea that they would be so obsessed
by their loyalty to
one dude as senator sass would stay
would say that ought to scare everyone
and it says to me that we have failed as
a country
in educating our population on the
basics of history
and of civics because anybody who has
studied either of those subjects would
see this for what it is
a really dangerous um a really dangerous
departure
from the principles that this country is
founded upon
so uh one last question or a couple of
last questions
um so i already know you don't
so you don't really feel safe yet
no not at all no because what the
what the president has unleashed
president trump of course
uh and continues to you know in in any
way he can to support it's this idea
that this election was stolen
which is just malarkey i mean anybody
who's studied any of this knows
that that's just a preposterous notion
but there are people out there who
believe it
and who believe that their obligation is
to attack
those who they think have taken
something from them
and so even though the initial attack is
over
the u.s capitol is still an armed camp
and
many of us have had to take pretty
significant security measures just to
protect ourselves
wherever we are and yeah this is
this is not good this is not good for
our country
uh so where do you i mean i don't know
like uh i'm trying to get i want you to
have the final word
um like is there any hope you know
for michigan residents listening to you
like is there a hopeful word that you
can give tonight
or yeah there's hope because
you know at the end of the day as
difficult as it was we prevailed
we finished the job that night it was
five in the morning when we finished
four o'clock in the morning i guess
when we actually certified the election
and even though it was less than a
majority of republicans
more than 70 republicans rejected
what the president then president trump
was trying to get them to do
and they voted to uphold the election
and in the senate it was an even bigger
number
what's frightening of course is that
there are still people who don't believe
that and see those people
as traitors now but i think if we want
to take some
some solace from all of this it's that
there were
republican members of congress
who had courage and were willing to
stand up for the constitution
and they deserve
you know more than more than i think
anyone they deserve
a real a real gratitude
uh from all of us you know and these are
people that i have big disagreements
with on other issues but when you get
right down to the most fundamental
question
are we going to uphold the constitution
um you know there were at least in our
case in michigan four of the michigan
republicans who stood up and did the
right thing
and i'll always be grateful to them for
that
and then one last thing i heard someone
say today it might have been a historian
who said it doesn't matter whether he's
convicted or not
you still have to take the steps you
still have to go through with this
impeachment trial for it to be on
record no matter what it's going to do
the job that is necessary
is that true i agree with that 100
um you know i think it will be a
political and historical question
that many people will have to answer as
to how they voted on this
but the verdict will be established by
the
by the american people and by the long
view
of history and what's happening right
now with this trial
is that the facts are being placed
essentially on the permanent record
so i was grateful as painful as it is
that some of what i said and did was
introduced into that record today
to be a part of the long-term record
of what took place that will be you know
part of american history and hopefully a
lesson for the future
absolutely anything else you want to add
no not really i mean just just that you
know
i do want to say how grateful i am to
all the people who've reached out
and especially how grateful i am to the
vast majority of the people in law
enforcement
uh like those capitol police officers
who despite poor leadership
did the right thing and defended us yeah
well we're so glad you're still here and
that you weren't hurt
and uh that you can fight on for
michigan as you
you've been doing and i i see your
interviews on cnn and everywhere else so
you represent us well so so i appreciate
your service too
well thank you i appreciate that yes you
have a nice night
all right you too

********************

Marjorie Taylor Greene And Boebert Heckling Biden Was ‘Disgusting’ Says Rep. Gomez
by Lawrence O'Donnell
Mar 2, 2022



California Democratic Rep. Jimmy Gomez, who has introduced a resolution to expel Marjorie Taylor Greene from Congress, joined MSNBC’s Lawrence O’Donnell to discuss the heckling she and Rep. Lauren Boebert did during the State of the Union. Rep. Gomez also discusses the ‘triggering’ feeling he had returning to the House gallery for the first time since the January 6 attack on the Capitol.

[admin]

Part 1 of 9

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.

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Part 2 of 9

A. Plaintiff Failed To Meet His Burden To Invoke The Work Product Doctrine

Plaintiff has failed to meet his burden to establish that these materials were prepared in anticipation of litigation, as opposed to primarily for another purpose. Numerous documents make no reference to any pending litigation and or anticipated litigation for which these materials were prepared.67 Indeed, Plaintiff emphasized “[t]he main thing here is that Pence should do this without asking for permission—either from a vote of the joint session or from the Court.”68 (emphasis added).

Even if litigation was of some concern, Plaintiff does not prove that these materials were created “because of ” the prospect of litigation—Plaintiff does not and cannot establish that these documents “would not have been created in substantially similar form but for the prospect of . . . litigation.” Am. C.L. Union of N. California v. United States Dep’t of Just., 880 F.3d 473, 485-86 (9th Cir. 2018); United States v. Richey, 632 F.3d 559, 568 (9th Cir. 2011). Congressional Defendants believe that many (if not the vast majority) of the communications at issue involved efforts to interfere with the counting of the electoral votes on January 6 in violation of the Electoral Count Act. See 20-24, supra. There is no reason to believe that such communications would not have been “created in substantially similar form” absent the possibility that litigation would somehow ensue. Plaintiff’s repeated and unsupported assertions that the documents were prepared “in anticipation of litigation” do not make it so.

Furthermore, it would pervert the purpose of the work-product doctrine to allow Plaintiff to claim protection for his advice aimed at—to put it bluntly—overturning a democratic election. Because the purpose of the work-product doctrine “is to protect the integrity of the adversary process[,] ... it would be improper to allow an attorney to exploit the privilege for ends that are antithetical to that process.” United States v. Christensen, 828 F.3d 970, 1010 (9th Cir. 2015) (quoting Parrott v. Wilson, 707 F.2d 1262, 1271 (11th Cir. 1983)); see also 38-53, infra (discussing the crime-fraud doctrine). Conduct that is “merely unethical, as opposed to illegal” is “enough to vitiate the work product doctrine” here. Id. As noted above, see n.8 supra, Plaintiff is currently the subject of a California State Bar ethics investigation.

Second, Plaintiff fails to establish that all the documents over which he asserts work-product protection were “prepared by or for another party or by or for that other party’s representative.” Richey, 632 F.3d at 567. In numerous documents, Plaintiff has asserted privileges over communications with like-minded lawyers, pundits, and “scholar advisors” that purportedly contain work product prepared on behalf of President Trump. 69 Plaintiff’s overreach here is twofold. First, the paltry descriptions in his privilege claims can scarcely support a claim that his own communications were work product for a client, rather than mere discussions about the election with like-minded correspondents. See, e.g., 023956 (describing a communication “re legal perspectives on the election and possible litigation”). Second, Plaintiff’s correspondents themselves are often not lawyers, e.g., 005338; even when they are—and even when they are lawyers working on election-related matters—he has not met his burden to demonstrate that they were generating work product on behalf of President Trump. Indeed, Plaintiff has presented no evidence that he had an agent relationship with any of these people, despite this Court’s order instructing 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. In his declaration (Ex. 1 Eastman Decl. ¶ 29), he claims to have communicated extensively with “statistical and other experts,” but makes no attempt to show that these people—or any of the others on his logs—had agent or attorney-client relationships. Plaintiff cannot retrospectively designate communications with ideological or political confreres as deserving work-product protection absent establishing that those people were representatives of his client.

Finally, Plaintiff waived any claim to work product protection when he shared these materials with “potential adversaries.” Sanmina, 968 F.3d at 1121. See, e.g., 004494 (journalists); 005489 (“advisor[s]”); 005283 (“scholar advisors”); 024795 (“legislative allies”). Not only is Plaintiff’s disclosure “inconsistent with the maintenance of secrecy,” id., Plaintiff acted with complete disregard of the maintenance of secrecy against someone with interests that were potentially adverse to his or those of his client, especially Congress. See United States v. Caldwell, 7 F.4th 191, 207 (4th Cir. 2021) (“[W]hen an attorney freely and voluntarily discloses the contents of otherwise protected work product to someone with interests adverse to his or those of the client, . . . he may be deemed to have waived work product protection.”) (quoting In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981)).70

For example, in 004494-95 and 004496-538, Plaintiff lists as “W/P” an email exchange with [DELETED]. Plaintiff cannot claim work product protection over an email with a journalist, who could well have published the exchange.71 Plaintiff’s

voluntary disclosure of his alleged work product to present or potential adversaries, in this instance, constituted a waiver of the work product privilege. It was [Plaintiff’s] self-interested decision to disclose information to [the Vice President, his staff, and state officials] so as to [facilitate reversal of the election result]. Yet, [Plaintiff] now seeks work product protection for those same disclosures and documents against different adversaries in suits revolving around the same matters disclosed[.]

Loustalet v. Refco, Inc., 154 F.R.D. 243, 248 (C.D. Cal. 1993). The work-product doctrine does not stretch that far.

Further, whether Plaintiff “intended that result or not,” work-product protection should cease here because fairness requires it. Sanmina, 968 F.3d at 1122. When assessing the fairness principle underlying waivers, “the overriding concern in the workproduct context is not the confidentiality of a communication, but the protection of the adversary process.” Id. at 1124. Here, Plaintiff’s selective disclosure of information he now contends is work product weighs heavily against applying the protection.72 Plaintiff “cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.” Weil v. Inv./Indicators, Rsch. & Mgmt., Inc., 647 F.2d 18, 24 (9th Cir. 1981).

“[U]nder the totality of the circumstances, [Plaintiff] acted in such a way that is inconsistent with the maintenance of secrecy” against the Select Committee regarding the contested documents. Sanmina, 968 F.3d at 1124.

B. The Select Committee Has A Substantial Need For The Documents And Cannot Obtain The Substantial Equivalent Of The Documents Without Undue Hardship

Even had Plaintiff sufficiently invoked the work product doctrine, the Select Committee has a substantial need for the documents and cannot, without undue hardship, obtain their substantial equivalent by other means. See Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Arizona, 881 F.2d 1486, 1494 (9th Cir. 1989) (“work-product materials nonetheless may be ordered produced upon an adverse party’s demonstration of substantial need or inability to obtain the equivalent without undue hardship”). “The undue hardship prong examines the burden obtaining the information from an alternate source would impose on the party requesting discovery.” Fletcher v. Union Pac. R.R. Co., 194 F.R.D. 666, 671 (S.D. Cal. 2000).

Here, the Select Committee has already sought the materials from an alternate source: Chapman University. This case involves Plaintiff’s attempt to impede the Select Committee from obtaining the documents from that alternate source. Even if some third source were available for the requested documents, Plaintiff would likely attempt to prevent disclosure in that circumstance as well. Because the disputed documents are pivotal to the Select Committee’s investigation and it would be nearly impossible to access these communications otherwise, the work product doctrine does not apply. See U.S. v. McGraw-Hill Companies, Inc., 2014 WL 8662657, at *6-7 (C.D. Cal.) (party established entitlement to opinion work product by showing (1) it would be nearly impossible to get these communications otherwise; (2) the work product was pertinent to the party’s “most salient defense”; and (3) the attorney’s mental impressions were a pivotal issue).

Plaintiff was a central figure in the effort to encourage the former Vice President to reject the electors from several states and in the strategy to facilitate different slates of electors. He may also have played other important roles in the events under investigation. Plaintiff’s “strategy, mental impressions and opinion” concerning these efforts “are directly at issue” in the Select Committee’s investigation. Reavis v. Metro. Prop. & Liab. Ins. Co., 117 F.R.D. 160, 164 (S.D. Cal. 1987). The Select Committee, therefore, has a substantial need for these materials.73

Plaintiff claims that Congressional Defendants have “offered no argument or evidence of the Select Committee’s need for any of these particular documents in pursuit of any valid legislative purpose, much lass [sic] a need that would qualify as substantial or compelling in support of a legislative purpose.” Br. 16. Congressional Defendants cannot specifically address documents they have not seen, many of which are scantly described in the privilege logs. See, e.g., 004707 (“[c]omm with co-counsel”); 004494 (“[c]omm re statistical evidence”); 004708 (“[c]omm with co-counsel re legal advice”); 004720 (“comm with co-counsel re legal strategy”); 005874 (“comm re fact information”); 004964 (“[a]ttachment”). But as this Court has noted, Plaintiff’s “actions clearly fall within the bounds of an investigation into ‘the influencing factors that fomented such an attack on American representative democracy,’” ECF No. 43 at 9 (Jan. 25, 2022) (quoting H.R. Res. 503 § 3(1)) and “there are numerous plausible legislative measures that could relate to Dr. Eastman’s communications,” id. at 10. The pressing need to complete a full investigation into an unprecedented attack on American democracy by reviewing documents involving a key participant is both substantial and compelling.74

III. The Court Should Review the Documents In Camera Under the Crime Fraud Exception

Communications in which a “client consults an attorney for advice that will serve him in the commission of a fraud or crime” are not privileged from disclosure. In re Grand Jury Investigation, 810 F.3d 1110, 1113 (9th Cir. 2016) (internal quotations omitted). This exception to the attorney-client privilege applies where (1) “the client was engaged in or planning a criminal or fraudulent scheme when it sought the advice of counsel to further the scheme,” and (2) the attorney-client communications for which production is sought are “sufficiently related to” and were made “in furtherance of [the] intended, or present, continuing illegality.” Id. at 381-83 (internal quotation marks omitted).

It bears emphasizing that this is true even if “the attorney is unaware that his advice may further an illegal purpose.” United States v. Laurins, 857 F.2d 529, 540 (9th Cir. 1988), cert. denied, 492 U.S. 906 (1989). And it is likewise true where the crime or fraud is ultimately unsuccessful. In re Grand Jury Proceedings (Corporation), 87 F.3d 377, 382 (9th Cir. 1996).

Critically for this case, an in camera review of the documents is warranted when the party seeking production has provided “a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.” United States v. Zolin, 491 U.S. 554, 572 (1989) (citation omitted). That standard has plainly been met here. As discussed in the Background section above, evidence and information available to the Committee establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts, and that Plaintiff’s legal assistance was used in furtherance of those activities. Accordingly, this Court should conduct an in camera review of the documents to determine whether the crime-fraud exception applies.

A. Obstruction of an Official Proceeding

The evidence detailed above provides, at minimum, a good-faith basis for concluding that President Trump has violated section 18 U.S.C. § 1512(c)(2). The elements of the offense under 1512(c)(2) are: (1) the defendant obstructed, influenced or impeded, or attempted to obstruct, influence or impede, (2) an official proceeding of the United States, and (3) that the defendant did so corruptly. Id. (emphasis added). To date, six judges from the United States District Court for the District of Columbia have addressed the applicability of section 1512(c) to defendants criminally charged in connection with the January 6th attack on the Capitol. Each has concluded that Congress’s proceeding to count the electoral votes on January 6th was an “official proceeding” for purposes of this section, and each has refused to dismiss charges against defendants under that section.75

Section 1512(c) requires a nexus between the obstructive conduct and a “specific official proceeding” that was either “pending or was reasonably foreseeable[.]” United States v. Lonich, 2022 U.S. App. LEXIS 623*, at *49-*50 (9th Cir. 2022). The statutory definition of “official proceeding” includes proceedings of various kinds, one of which (as noted above) is “a proceeding before the Congress[.]” 18 U.S.C. § 1515(a)(1)(B). Although the Ninth Circuit has not defined “corruptly,” as used in Section 1512(c), it has held that the mens rea component of Section 1512(c) is, if anything, more than satisfied simply by proving that a person acted with “consciousness of wrongdoing.” Lonich, 2022 U.S. App. LEXIS 623*, at *52-*53; see also United States v. Watters 717 F.3d 733, 735 (9th Cir. 2013) (upholding district court’s jury instructions). Section 1512(c) does not require proof that the accused acted “with an evil or wicked purpose.” Id. at 735-36 (distinguishing Arthur Andersen LLP v. United States, 544 U.S. 696 (2005)).

Congressional proceedings to count electoral votes are governed by the Twelfth Amendment to the U.S. Constitution and by the Electoral Count Act. The Twelfth Amendment requires presidential electors to meet in their respective States and certify their State’s votes for President and Vice President. U.S. Const., amend. XII. The Twelfth Amendment’s text regarding the counting of votes is clear and unequivocal in this context: “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.” Id. Although some have theorized that there may be ambiguity about which slate to count if a state submits two slates officially certified by the state’s Governor, no such ambiguity was present on January 6, 2021. Each state submitted only one officially-certified electoral slate. Also, the specific text of the Twelfth Amendment makes clear that the presiding officer cannot delay the count in this context, by instructing that the presiding officer shall “open all the certificates and the votes shall then be counted . . .” It is not permissible to wait 10 days or any other extended period before counting certified electoral votes.

The Electoral Count Act of 1887 provides for objections by House and Senate members, and a process to resolve such objections through votes in each separate chamber. 3 U.S.C. §§ 5, 6, 15. Nothing in the Twelfth Amendment or the Electoral Count Act provides a basis for the presiding officer of the Senate to unilaterally refuse to count electoral votes—for any reason. Any such effort by the presiding officer would violate the law. This is exactly what the Vice President’s counsel explained at length to Plaintiff and President Trump before January 6.76 Plaintiff acknowledged that the Supreme Court would reject such an effort 9-0.77 And the Vice President made this crystal clear in writing on January 6: any attempt by the Vice President to take the course of action the President insisted he take would have been illegal.78

Nevertheless, pursuant to Plaintiff’s plan, the President repeatedly asked the Vice President to exercise unilateral authority illegally, as presiding officer of the Joint Session of Congress, to refuse to count electoral votes. See supra at 11-13. In service of this effort, he and Plaintiff met with the Vice President and his staff several times to advocate that he unilaterally reject and refuse to count or prevent the counting of certified electoral votes, and both also engaged in a public campaign to pressure the Vice President. See supra at 3-17.

The President and Plaintiff also took steps to alter the certification of electors from various States. See supra at 18. For example, the President called and met with state officials, met numerous times with officials in the Department of Justice, tweeted and spoke about these issues publicly, and engaged in a personal campaign to persuade the public that the election had been tainted by widespread fraud.

As indicated, there can be no legitimate question that the Joint Session of Congress held on January 6th pursuant to the Twelfth Amendment and the Electoral Count Act constitutes an “official proceeding” under Section 1512(c).79

The evidence supports an inference that President Trump and members of his campaign knew he had not won enough legitimate state electoral votes to be declared the winner of the 2020 Presidential election during the January 6 Joint Session of Congress, but the President nevertheless sought to use the Vice President to manipulate the results in his favor. By December 14, 2020, the Electoral College had voted to send 306 certified electoral votes for Biden and 232 certified electoral votes for Trump.80 No state legislature had certified an alternate slate between that time and January 6, 2021. Moreover, no court had endorsed the Trump campaign’s numerous attempts to challenge state election results in the wake of the election.81 Thus, even if the Vice President had authority to reject certified electoral certificates (and he did not), there was no valid lawful basis to do so. See supra at 3-17.

Nevertheless, as shown above (see supra at 11-13), the President and Plaintiff engaged in an extensive public and private campaign to convince the Vice President to reject certain Biden electors or delay the proceedings, without basis, so that the President and his associates would have additional time to manipulate the results. Had this effort succeeded, the electoral count would have been obstructed, impeded, influenced, and (at the very least) delayed, all without any genuine legal justification and based on the false pretense that the election had been stolen. There is no genuine question that the President and Plaintiff attempted to accomplish this specific illegal result.

The evidence is also more than sufficient to establish a good faith belief that Plaintiff’s advice was used to further these ends. Plaintiff was the architect of the strategies proposed to the Vice President both directly and through his staff. His memos provided the basis for arguments made to the Vice President by both the President and Plaintiff himself. Plaintiff was likewise personally involved in persuading state legislators that they had authority to reject the election results and submit alternate slates of electors to Congress.82 And he was even involved in the effort to spread false allegations of election fraud to the public.83

B. Conspiracy to Defraud the United States

The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States in violation of 18 U.S.C. § 371.

An individual “defrauds” the government for purposes of Section 371 if he “interfere[s] with or obstruct[s] one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.” Hammerschmidt v. United States, 265 U.S. 182, 188 (1924). The conspiracy need not aim to deprive the government of property. See Haas v. Henkel, 216 U.S. 462, 479 (1910). It need not involve any detrimental reliance by the government. See Dennis v. United States, 384 U.S. 855, 861- 62 (1966). And “[n]either the conspiracy’s goal nor the means used to achieve it need to be independently illegal.” United States v. Boone, 951 F.2d 1526, 1559 (9th Cir.1991).

To establish a violation Section 371’s “defraud” clause, “the government need only show” that (1) the defendant entered into an agreement (2) to obstruct a lawful function of the government (3) by deceitful or dishonest means, and (4) that a member of the conspiracy engaged in at least one overt act in furtherance of the conspiracy. United States v. Meredith, 685 F.3d 814, 822 (9th Cir. 2012) (citation omitted). The “agreement” need not be express and can be inferred from the conspirators’ conduct in furtherance of their common objectives. Ianelli v. United States, 420 U.S. 770, 777 & n.10 (1975); see also United States v. Renzi, 769 F.3d 731 (9th Cir. 2014).

“This is a very broad provision, which subjects a wide range of activity to potential criminal penalties.” United States v. Caldwell, 989 F.2d 1056, 1059 (9th Cir. 1993), partially overruled on unrelated grounds as recognized by United States v. Conti, 804 F.3d 977, 980 (9th Cir. 2015).

The evidence supports an inference that President Trump, Plaintiff, and several others entered into an agreement to defraud the United States by interfering with the election certification process, disseminating false information about election fraud, and pressuring state officials to alter state election results and federal officials to assist in that effort. As noted above, in particular, the President and Plaintiff worked jointly to attempt to persuade the Vice President to use his position on January 6, 2021, to reject certified electoral slates submitted by certain States and/or to delay the proceedings by sending the count back to the States. See supra at 11-13. Plaintiff first crafted a “plan” to justify this course of action.84 Plaintiff and the President then met and spoke with the Vice President and members of his staff on several occasions on January 4-6 in an attempt to execute Plaintiff’s plan.85 Plaintiff continued these efforts to persuade the Vice President via ongoing conversations with the Vice President’s staff, and the President employed numerous public statements to exert additional pressure on Pence.86 The evidence developed to date indicates that these actions were all part of a concerted effort to achieve a common goal: to prevent or delay the certification of the 2020 presidential election results.

In addition to the legal effort to delay the certification, there is also evidence that the conspiracy extended to the rioters engaged in acts of violence at the Capitol. In a civil case filed against the President and others by several members of Congress, Judge Amit Mehta in the District of Columbia specifically found that it was plausible to believe that the President entered into a conspiracy with the rioters on January 6, 2021, “to disrupt the Certification of the Electoral College vote through force, intimidation, or threats.” Thompson v. Trump, No. 21-cv-00400 (APM), --- F.3d ---, 2022 WL 503384, at *33. (D.D.C. Feb. 18, 2022). Judge Mehta’s opinion demonstrates the breadth of conspiratorial conduct and further supports the existence of common law fraud.

As part of the effort described above, the conspirators also obstructed a lawful governmental function by pressuring the Vice President to violate his duty to count the electoral certificates presented from certain States. As an alternative, they urged the Vice President to delay the count to allow state legislatures to convene and select alternate electors. The apparent objective of these efforts was to overturn the results of the 2020 presidential election and declare Donald Trump the winner. In this way, the conspiracy aimed to obstruct and interfere with the proper functioning of the United States government.

As summarized supra at 11-13, the President and Plaintiff engaged in an extensive campaign to persuade the public, state officials, members of Congress, and Vice President Pence that the 2020 election had been unlawfully “stolen” by Joseph Biden. The President continued this effort despite repeated assurances from countless sources that there was no evidence of widespread election fraud. See supra at 6. On November 12, 2020, CISA issued a joint statement of election security agencies stating: “There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” 87 At around the same time, researchers working for the President’s campaign concluded that several the claims of fraud relating to Dominion voting machines were false.88

In December, Attorney General Barr publicly announced that there was no widespread election fraud.89 By January 6, more than 60 court cases had rejected legal claims alleging election fraud.90 The New York court that suspended Giuliani’s law license said that certain of his allegations lacked a “scintilla of evidence.”91 On multiple occasions, acting Attorney General Rosen and acting Deputy Attorney General Donoghue told the President personally that the Department of Justice and Federal Bureau of Investigations had found no evidence to substantiate claims being raised by the President.92 Georgia Secretary of State Brad Raffensperger likewise rebutted many of the President’s allegations of fraud in Georgia.93 Despite these refutations and the absence of any evidence to support the allegations he was making, the President and his associates continued to publicly advance the narrative that the election had been tainted by widespread fraud.94

As noted above, the President called and met with state officials regarding the election results, met numerous times with officials in the Department of Justice, tweeted and spoke about these issues publicly, and engaged in a personal campaign to persuade the Vice President to alter the certification results. See supra at 11-13. For his part, Plaintiff drafted legal memoranda outlining several possible ways to ensure that Donald Trump would be named the winner of the 2020 election, met with the Vice President and his staff to press this plan, and spoke publicly on these issues in advance of the attack on the Capitol. See supra at 12.

A review of the documents at issue is likely to reveal that the President engaged Plaintiff’s counsel in furtherance of these conspiratorial ends.

C. Common Law Fraud

There is also evidence to support a good-faith, reasonable belief that in camera review of the materials may reveal that the President and members of his Campaign engaged in common law fraud in connection with their efforts to overturn the 2020 election results.

The District of Columbia, where these events occurred, defines common law fraud as: (1) a false representation; (2) in reference to material fact; (3) made with knowledge of its falsity; (4) with the intent to deceive; and (5) action is taken in reliance upon the representation. Atraqchi v. GUMC Unified Billing Servs., 788 A.2d 559, 560 (D.C. 2002).95

As described above, the evidence shows that the President made numerous false statements regarding election fraud, both personally and through his associates, to the public at-large and to various state and federal officials. See supra at 6-7. These statements referred to material facts regarding the validity of state and federal election results. See supra at 7-8. And the evidence supports a good-faith inference that the President did so with knowledge of the falsity of these statements and an intent to deceive his listeners in hopes they would take steps in reliance thereon.

In addition to the numerous refutations of fraud mentioned above, see supra at 7-8, a specific example helps illustrate the point: On December 3, 2020, Trump’s YouTube channel posted an edited video clip, purporting to show Georgia officials pulling suitcases of ballots from under a table after poll workers had left for the day.96 The next morning, a Georgia official responded to the allegation on Twitter, indicating that the video “was watched in its entirety (hours) by @GaSecofState investigators” and “[s]how[ed] normal ballot processing.97 That same day, a local news outlet ran a factchecking segment debunking the President’s claims.98 After the broadcast, the Georgia official tweeted: “You can watch the @wsbtv report to show that the President’s team is intentionally misleading the public about what happened at State Farm Arena on election night. They had the whole video too and ignored the truth.”99

The next day, the Georgia Secretary of State’s office released the full video to local news outlets, which thoroughly debunked the President’s claims.100 On December 6, 2020, the Chief Investigator in the Georgia Secretary of State’s Office issued a sworn declaration affirming that “there were no mystery ballots that were brought in from an unknown location and hidden under tables as has been reported by some” and explaining the context of the video clip.101 The following day, Georgia election officials addressed the issue yet again in a public press conference, stating that “what you saw, the secret suitcases with magic ballots, were actually ballots that had been packed into those absentee ballot carriers by the workers in plain view of the monitors and the press.”102

Nevertheless, on December 11, 2020, and December 23, 2020, the Trump campaign ran two advertisements on Facebook with the same selectively edited footage and the same claim that the video showed “suitcases of ballots added in secret in Georgia.”103 On December 27 and 31, 2020, Acting Deputy Attorney General Donoghue again debunked this claim directly to the President.104

Undeterred, the Trump campaign continued to run the ads on Facebook. And the President continued to rely on this allegation in his efforts to overturn the results of the election. During a January 2, 2021, telephone conversation with Georgia Secretary of State Brad Raffensperger, the President suggested that suitcases of illicit ballots explained a “minimum” of 18,000 votes for President Biden, ultimately asking Raffensperger to “find 11,780 votes” for him in Georgia.105 During this call, Raffensperger explained to the President that the video in question had been selectively edited, and that Raffensperger’s office had reviewed the full tape and found no evidence of fraud.106 Raffensperger also offered to provide the President a link to the full video, to which the President responded: “I don’t care about the link. I don’t need it.”107 The following day, the President tweeted: “I spoke to Secretary of State Brad Raffensperger yesterday about Fulton County and voter fraud in Georgia. He was unwilling, or unable, to answer questions such as the ‘ballots under table’ scam, ballot destruction, out of state ‘voters’, dead voters, and more. He has no clue!”108 On January 6th, Trump once again reiterated the claim that Georgia “election officials [had] pull[ed] boxes . . . and suitcases of ballots out from under a table” in his speech just before rioters attacked the Capitol.109

The evidence also shows that many members of the public acted in reliance on the President’s statements. See infra at 52-53. Several defendants in pending criminal cases identified the President’s allegations about the “stolen election” as a motivation for their activities at the Capitol. And a number specifically cited the President’s tweets asking his supporters to come to Washington, D.C. on January 6. For example, one defendant who later pled guilty to threatening Nancy Pelosi texted a family member on January 6 to say: “[Trump] wants heads and I’m going to deliver.”110 Another defendant released a statement through his attorney, stating: “I was in Washington, D.C. on January 6, 2021, because I believed I was following the instructions of former President Trump and he was my president and the commander-in-chief. His statements also had me believing the election was stolen from him.”111 There are many other examples of this kind.112 Indeed, even today, polling suggests that “[m]ore than 40% of Americans still do not believe that Joe Biden legitimately won the 2020 presidential election despite no evidence of widespread voter fraud.”113

As explained at length above, it appears that President Trump’s false statements to his supporters and government officials were informed by Dr. Eastman’s extensive advice that the election was stolen and that Congress or the Vice President could change the outcome of the election on January 6.114

IV. The Select Committee Has Not Waived Its Arguments That Plaintiff Is Not Entitled To Attorney-client Or Work-Product Protections Over The Documents At Issue

Plaintiff contends that the Select Committee has “waived” its right to object to privilege based on Plaintiff’s public statements, the “particulars” of the Chapman University email system, or “any other ‘generalized’ waiver argument.” Br. at 22. That contention is obviously wrong.

Plaintiff reasons that the Select Committee “necessarily conceded the possibility that at least some privileged content exists in the Chapman materials” because it “conced[ed] that a privilege log is appropriate.” Br. at 22. The Select Committee made no such concessions. As reflected in the statement quoted in Plaintiff’s brief, counsel for the Select Committee stated at the hearing, “if this [a privilege review] is considered something that is important to do now, we would certainly entertain it.” Id. That is, if this Court believed that an initial privilege review and log were appropriate, the Select Committee would not object to such a process. In no way did counsel’s statement concede that any of the documents at issue may ultimately be withheld because of privilege.

Indeed, as Plaintiff recognizes, Br. at 22, the Select Committee argued in its brief in opposition to a temporary restraining order that Plaintiff could not claim attorneyclient privilege or work product protection over any of the documents at issue (see ECF No. 23-1 at 17-23), and the Select Committee never abandoned that argument. To the contrary, in each of the notices the Select Committee has filed with its privilege log objections, it has explicitly “preserve[d] its ability to argue in subsequent briefing on Plaintiff’s privilege claims that, as a general matter, none of the documents contained in the Chapman University production set can be withheld on the basis of attorney-client or work product privilege.” See, e.g., ECF No. 71 at 2. Plaintiff cites no case law supporting his view of waiver, and the Select Committee is aware of none.

V. This Court Should Not Revisit Its Ruling Rejecting Plaintiff’s First and Fourth Amendment Claims

Plaintiff asks this Court to “revisit” its holding denying a preliminary injunction based on Plaintiff’s First and Fourth Amendment claims. Br. at 31-37. That request is procedurally improper. This Court directed Plaintiff to “file briefing … supporting his assertions of privilege for each document between January 4 and January 7, 2021.” ECF No. 104. Inserting into such briefing a request for reconsideration of the Court’s ruling on Plaintiff’s First and Fourth Amendment claims—which are not relevant to the privilege claims—is entirely inappropriate.

Local Rule 7-18 describes the proper procedure for seeking the Court’s reconsideration of a previous ruling, and the grounds on which such a request may be made. Barring a showing of good cause, the rule requires that a motion be made no later than 14 days after the Order at issue was entered. In this case, the relevant Order was entered on January 25, almost one month before Plaintiff filed this brief. See ECF No. 43. Thus, Plaintiff both failed to submit his request in the proper format of a motion for reconsideration and failed to file it in a timely manner.

Moreover, under Local Rule 7-18, a motion for reconsideration may only be made on the following grounds:

(a) a material difference in fact or law from that presented to the Court that, in the exercise of reasonable diligence, could not have been known to the party moving for reconsideration at the time the Order was entered, or (b) the emergence of new material facts or a change of law occurring after the Order was entered, or (c) a manifest showing of a failure to consider material facts presented to the Court before the Order was entered.

Consistent with this rule, “the Federal Rules of Civil Procedure provide that a motion for reconsideration ‘should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.’” Zhur v. Neufeld, No. 17-9203, 2018 WL 4191325, *1 (C.D. Cal. Aug. 29, 2018) (citing Fed. R. Civ. P. 59(e)); see also Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

Contrary to Plaintiff’s assertion that his First and Fourth Amendment claims were not fully briefed (Br. at 31), the claims were first raised in Plaintiff’s Complaint, the Select Committee responded to these claims in their opposition, ECF No. 23-1 at 24-25, and Plaintiff addressed the First and Fourth Amendments claims in his reply, ECF No. 27 at 23). Following briefing and oral argument, this Court denied Plaintiff’s request for a temporary restraining order or preliminary injunction, specifically rejecting his First and Fourth Amendment claims. See ECF No. 43 at 12-14. For the reasons stated in the Select Committee’s opposition and this Court’s Order, that ruling was correct.

Instead of relying on new evidence or intervening case law, Plaintiff simply reargues the merits, relying on precedents addressed in both the Select Committee’s opposition and the Court’s Order. With respect to the First Amendment claim, Plaintiff discusses “at some length” the Supreme Court’s decision in Watkins v. United States, 354 U.S. 178 (1957), a decision that this Court correctly applied in its Order. See Br. at 32; ECF No. 43, at 12. Similarly, in reraising his Fourth Amendment claim, Plaintiff unpersuasively attempts to distinguish two “historic” Supreme Court decisions (cited in his Complaint), on which this Court correctly relied in denying a preliminary injunction. See Compl. ¶¶ 95, 98; ECF No. 43, at 13; Br. at 36 (citing Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 209 (1946); McPhaul v. United States, 364 U.S. 372, 382 (1960)). Plaintiff offers no explanation as to how his argument raises “a material difference in fact or law from that presented to the Court” previously or “the emergence of new material facts or a change of law.” Local Rule 7-18. It does not.

In addition, Plaintiff has not shown that this Court committed clear error. The Court appropriately analyzed the interests at stake in rejecting Plaintiff’s First Amendment claim. To determine whether the First Amendment bars the Select Committee’s access to information it seeks through a duly-authorized subpoena depends on a balancing of “the competing private and public interests at stake in the particular circumstances shown.” Barenblatt v. United States, 360 U.S. 109, 126 (1959). The Court considered the competing interests at stake and found that “[t]he public interest here is weighty and urgent,” ECF No. 43, at 12, and that Plaintiff identified no “specific associational interest threatened by” or “any particular harm likely to result from” production of the materials sought by the Select Committee. Id. at 12-13.

Plaintiff’s brief fails to address the substantial public interest in the Select Committee’s investigation, instead arguing that “the Select Committee’s resolution poses the same First Amendment risks of unrestrained congressional power that the Supreme Court identified in Watkins.” Br. at 34. But, again, Plaintiff has not identified any specific associational interest threatened by production of his Chapman communications or any particular harm likely to result from their production. See ECF No. 43, at 12-13. His vague reference to communications that “reveal much” about third-parties’ “identities, associational choices, political beliefs and other protected First Amendment interests”—and the notion that “having disfavored views on the 2020 election” can be “personally damaging”—is insufficient. Br. at 35-36. The Court’s rejection of Plaintiff’s First Amendment claim was thus unquestionably correct, and Plaintiff provides no persuasive reason for the Court to reconsider it now.

The Court also appropriately rejected Plaintiff’s Fourth Amendment claim, finding that the subpoena is not “overbroad or indefinite given its context.” ECF No. 43, at 14. A subpoena is not impermissibly overbroad so as to violate the Fourth Amendment as long as its call for documents or testimony are within the scope of the Congressional inquiry at issue. See McPhaul, 364 U.S. at 382. The requests at issue are well within the scope of the Select Committee’s inquiry. See ECF No. 23-1 at 25. And Plaintiff’s belated attempt to distinguish McPhaul and Oklahoma Press is unavailing. Relying on recent Supreme Court decisions in distinct Fourth Amendment contexts, the most Plaintiff can say is that “if McPhaul and Oklahoma Press were to be decided today they would be likely to come out quite differently.” Br. 36-37. Even if that doubtful proposition were correct, Plaintiff does not (and cannot) argue that this Court is free to disregard those Supreme Court rulings.

CONCLUSION

For the reasons set forth above, Plaintiff’s claims of privilege should be rejected, leaving Chapman University free to comply with the House subpoena at issue here as it has stated it wishes to do.

Respectfully submitted,

/s/ Douglas N. Letter
DOUGLAS N. LETTER
General Counsel
TODD B. TATELMAN
Principal Deputy General Counsel
ERIC R. COLUMBUS
Special Litigation Counsel
MICHELLE S. KALLEN
Special Litigation Counsel
STACIE M. FAHSEL
Associate General Counsel
OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF
REPRESENTATIVES
5140 O’Neill House Office Building
Washington, D.C. 20515
(202) 225-9700
Douglas.Letter@mail.house.gov
-and-
SHER TREMONTE LLP
Justin M. Sher
Michael Tremonte
Noam Biale
Maya Brodziak
Kathryn E. Ghotbi
90 Broad Street, 23rd Floor
New York, New York 10004
(212) 202-2600
JSher@shertremonte.com
MTremonte@shertremonte.com
NBiale@shertremonte.com
MBrodziak@shertremonte.com
KGhotbi@shertremonte.com
-and-
ARNOLD & PORTER
John A. Freedman
Paul Fishman
Amy Jeffress
601 Massachusetts Ave, NW
Washington, D.C. 20001
(202) 942-5000
John.Freedman@arnoldporter.com
Paul.Fishman@arnoldporter.com
Amy.Jeffress@arnoldporter.com
Dated: March 2, 2022

CERTIFICATE OF SERVICE
WASHINGTON, DISTRICT OF COLUMBIA

I am employed in the aforesaid county, District of Columbia; I am over the age of 18 years and not a party to the within action; my business address is:

OFFICE OF GENERAL COUNSEL
U.S. HOUSE OF REPRESENTATIVES
5140 O’Neill House Office Building
Washington, D.C. 20515

On March 2, 2022, I served the CONGRESSIONAL DEFENDANTS’ BRIEF IN OPPOSITION TO PLAINTIFF’S PRIVILEGE ASSERTIONS on the interested parties in this action:

Anthony T. Caso
Constitutional Counsel Group
174 W Lincoln Ave #620
Anaheim, CA 92805-2901
atcaso@ccg1776.com
Charles Burnham
Burnham & Gorokhov PLLC
1424 K Street NW, Suite 500
Washington, DC 20005
charles@burnhamgorokhov.com
Attorneys for Plaintiff John C. Eastman
(BY E-MAIL OR ELECTRONIC TRANSMISSION)

The document was served on the following via The United States District Court – Central District’s CM/ECF electronic transfer system which generates a Notice of Electronic Filing upon the parties, the assigned judge, and any registered user in the case:

(FEDERAL) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed at the office of a member of the bar of this Court at whose direction the service was made.

Executed on March 2, 2022 here, at Bethesda, Maryland.

/s/ Douglas N. Letter

_______________

[admin]

Part 3 of 9

Notes:

1 Ex. A, Eastman Deposition.

2 Infra at 37-39

3 See Scheduling Conference Tr. 6, ECF No. 113.

4 The Select Committee is in the midst of its investigation, but has already developed  many thousands of pages of evidence. A full recitation of that evidence—with attached  exhibits—would be overwhelmingly lengthy, so the Select Committee here briefly  summarizes key points relevant to the documents at issue. The Select Committee stands  ready to make further submissions on specific relevant topics of interest to the Court  (under seal, if appropriate). Order re: Prod. and Priv. Log (Jan. 26, 2022), ECF No. 50, at  3. Several other federal courts have already summarized the events of January 6, 2021.  See, e.g., Trump v. Thompson, No. 21-5254, 2021 U.S. App. LEXIS 36315 (D.C. Cir.  Dec. 9, 2021), stay denied, 142 S. Ct. 680 (2022); United States v. Nordean, No. 21-175,  (D.D.C.) Mem. Op. (Dec. 28, 2021) (ECF No. 263).

5 Kevin Liptak, A List of the Times Trump Has Said He Won’t Accept the Election  Results or Leave Office if He Loses, CNN (September 24, 2020), https://www.cnn.com/2020/09/24/politics ... ingoffice/ index.html.

6 President Trump Remarks on Election Status, C-SPAN (November 4, 2020),  https://www.c-span.org/video/?477710-1/president-trump-remarks-election-status (“This  is a fraud on the American public. This is an embarrassment to our country. We were  getting ready to win this election. Frankly, we did win this election.”).

7 William Cummings, Joey Garrison and Jim Sergent, By the numbers: President Donald Trump’s failed efforts to overturn the election, USA Today (Jan. 6, 2021), https://www.usatoday.com/in-depth/news/ ... edefforts-  overturn-election-numbers/4130307001/. For relevant examples of decisions addressing President Trump’s claims of fraud and irregularities, see, e.g., Donald J.  Trump for President, Inc. v. Boockvar, 502 F. Supp. 3d 899, 906 (M.D. Pa. 2020)  (“[T]his Court has been presented with strained legal arguments without merit and  speculative accusations, unpled in the operative complaint and unsupported by  evidence.”); Ward v. Jackson, No. CV-20-0343-AP/EL, 2020 Ariz. LEXIS 313, at *2, 6-  7 (Dec. 8, 2020) (plaintiff failed “to present any evidence of ‘misconduct,’ ‘illegal votes’  or that the Biden Electors ‘did not in fact receive the highest number of votes for office,’  let alone establish any degree of fraud or a sufficient error rate that would undermine the  certainty of the election results”); Trump v. Wis. Elections Comm’n, 506 F. Supp. 3d 620  (E.D. Wis. 2020); Trump v. Wis. Elections Comm’n, 983 F.3d 919, 927 (7th Cir. 2020);  Wood v. Raffensperger, 501 F. Supp. 3d 1310, 1331 (N.D. Ga. 2020); Wood v.  Raffensperger, 981 F.3d 1307, 1310 (11th Cir. 2020).

8 State Bar of California, State Bar Announces John Eastman Ethics Investigation (Mar.  1, 2022), https://www.calbar.ca.gov/About-Us/News ... announces-  john-eastman-ethics-investigation. Disciplinary investigations are launched if  a complainant “sufficiently alleges misconduct,” including a potential interview of complainants, and a review of open-sourced and legal documents. California State Bar,  2020 Annual Discipline Report, at C-2 (Apr. 27, 2021), https://www.calbar.ca.gov/Portals/0/doc ... iscipline- Report.pdf. While Plaintiff is entitled to a presumption of innocence in that process, the Bar’s Chief Trial Counsel has determined that the public announcement was “warranted  for protection of the public.” State Bar of California, State Bar Announces John Eastman  Ethics Investigation (Mar. 1, 2022), https://www.calbar.ca.gov/About-Us/News/News- Releases/state-bar-announces-john-eastman-ethics-investigation (citing Cal. Bus. And  Prof. Code, s. 6086.1(b)(2); State Bar Rule of Procedure 2302(d)(1).)

9 President Trump’s January 30, 2022 public statement acknowledges that he was attempting to “overturn” the election on January 6, 2021. See Statement by Donald J.  Trump, 45th President of the United States of America, SAVE AMERICA (Jan. 30, 2022), https://www.donaldjtrump.com/news/news-hktthafwz61481.

10 Ex. D, Jason Miller Deposition 90-91.

11 CISA, Joint Statement from Elections Infrastructure Government Coordinating  Council & The Election Infrastructure Sector Coordinating Executive Committees  (November 12, 2020), https://www.cisa.gov/news/2020/11/12/jo ... structure- government-coordinating-council-election (concluding that “[t]he November 3rd election was the most secure in American history,” and “[t]here [wa]s no  evidence that any voting system deleted or lost votes, changed votes, or was in any way  compromised”).

12 Michael Balsamo, Disputing Trump, Barr says no widespread election fraud,  ASSOCIATED PRESS (December 1, 2020); AG Barr says he won't appoint a special  counsel to investigate voter fraud, YAHOO NEWS (December 21, 2020). In a new book,  Mr. Barr reportedly blames the President for the events of January 6, stating that Trump  had “lost his grip” and that “[t]he absurd lengths to which [the President] took his ‘stolen  election’ claim led to the rioting on Capitol Hill.” Sadie Gurman, Ex-Attorney General  William Barr Urges GOP to Move On From Trump, WALL. ST. J. (Feb. 27, 2022),  https://www.wsj.com/articles/ex-attorney-general-william-barr-urges-gop-to-move-onfrom-  trump-11645959600.

13 Ex. D, Miller Tr. 118-19.

14 See Interview of Jeffrey Rosen (Aug. 7, 2021), United States Senate Committee on the Judiciary, at 30, https://www.judiciary.senate.gov/rosen- ... ipt-final; see also Ex. B, Donoghue Tr. 59–62 (discussing specific allegations that Donoghue and Rosen  discredited to the President, including a 68% error rate in Michigan; a truck driver who  had allegedly driven ballots from New York to Pennsylvania; suitcases of fraudulent  ballots allegedly counted in Georgia; and the repeated scanning of ballots, among many  others).

15 Interview of Jeffrey Rosen (Aug. 7, 2021), United States Senate Committee on the Judiciary, at 30, https://www.judiciary.senate.gov/rosen-transcript-final.

16 Id. at 59-60; see also id. at 61-62 (reflecting Donoghue’s notes of a phone call, which state, “Told [the President] flat out that much of the information he’s getting is false  and/or just not supported by the evidence. We look[ed] at the allegations but they don’t  pan out.”). See also Interview of Richard Donoghue (Aug. 6, 2021), United States  Senate Committee on the Judiciary, at 59, 156, https://www.judiciary.senate.gov/richarddonoghue- transcript.

17 See Alex Wayne, Mario Parker, and Mark Niquette, Trump Campaign to Run Ads  Promoting Effort to Overturn Election, Bloomberg (Dec. 11, 2020), https://www.bloomberg.com/news/articles ... promoting-  effort-to-overturn-election; Donald J. Trump, The evidence is overwhelming – FRAUD!, FACEBOOK,  https://www.facebook.com/DonaldTrump/videos/1803802073100806/; Donald J. Trump,  Stop the Steal, FACEBOOK, https://www.facebook.com/officialteamtr ... 792881749/.

18 The Select Committee has interviewed a number of state officials, and their accounts  are consistent with the press reports cited in the paragraph that accompanies this footnote.  Plaintiff has claimed privilege over several communications with state legislators  referring to potential legislative action. See, e.g., 024762 (“Comm with agent of potential  client re statistical report in anticipation of legislative action or litigation.”); 024778  (“Comm with co-counsel re possible legislative action in support of pending litigation”).

19 M. Leahy, President Trump Joins Call Urging State Legislators to Review Evidence  and Consider Decertifying ‘Unlawful’ Election Results, BREITBART (Jan. 3, 2021),  https://www.breitbart.com/politics/2021/01/03/president-trump-joins-call-urging-statelegislators-  to-review-evidence-and-consider-decertifying-unlawful-election-results/; see  also J. Alemany, Ahead of Jan. 6, Willard Hotel in Downtown DC was a Trump Team  ‘Command Center’ for Effort To Deny Trump the Presidency, WASHINGTON POST (Oct.  23, 2021), https://www.washingtonpost.com/investig ... ngiuliani-  bannon/2021/10/23/c45bd2d4-3281-11ec-9241-aad8e48f01ff_story.html.

20 J. Alemany, Ahead of Jan. 6, Willard Hotel in Downtown DC was a Trump Team  ‘Command Center’ for Effort To Deny Trump the Presidency, WASHINGTON POST (Oct.  23, 2021), https://www.washingtonpost.com/investig ... ngiuliani- bannon/2021/10/23/c45bd2d4-3281-11ec-9241-aad8e48f01ff_story.html.

21 Id.

22 A. Gardner, Here’s the full transcript and audio of the call between Trump and Raffensperger, Washington Post (Jan. 5, 2021), https://www.washingtonpost.com/politics ... orgiavote/ 2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356_story.html.
 
23 See Ex. B, Donoghue Tr. 77-81, 123-24 (discussing the proposed letter to states and  Oval Office meeting).

24 Ex. C, Rosen Tr. at 105-106, 118; Ex. B, Donoghue Tr. 125-27.

25 MAGA confession: Trump lawyer admits fraudulent electors plot, MSNBC (Jan. 21,  2022), https://www.msnbc.com/the-beat-with-ari ... yeradmits- fraudulent-electors-plot-131436613579.

26 Five of the seven certificates submitted to federal officials on behalf of Trump-Pence electors in the States falsely claimed to be “the duly elected and qualified Electors for President and Vice President of the United States of America from the State of [Arizona, Georgia, Michigan, Nevada, Wisconsin].” Ex. E, NARA Unofficial Certificates. The  certificate submitted on behalf of the Trump-Pence electors in two other States included  language indicating that the undersigned electors “might later be determined [to be]”  (Pennsylvania) or may “ultimately [be] recognized as” (New Mexico) the duly elected  and qualified electors. Ex. E, NARA production 37941, 37944, 37945, 37946, 37947,  38948, 37949.
 
27 See Ex. F, Jacob Tr. 89-96. Plaintiff’s proposals, in the form of two memoranda, are  now in the public domain. See READ Trump lawyer’s memo on six-step plan for Pence  to overturn the election, CNN (September 21, 2021),  https://www.cnn.com/2021/09/21/politics/read-eastman-memo/index.html and Jan. 3  Memo on Jan. 6 Scenario, CNN, http://cdn.cnn.com/cnn/2021/images/09/2 ... dential.-- .jan.3.memo.on.jan.6.scenario.pdf (provided by Plaintiff to CNN per CNN reporting, see Tweet by @jeremyherb, Sept. 21, 2021 at 5:46PM, https://twitter.com/jeremyherb/status/1 ... 7263922185).

28 See, e.g., Ex. F, Jacob Tr. 105-11, 127-28.

29 Id. The Marquess of Queensberry rules are “a code of fair play presumed to apply in  any fight” and were developed to regulate boxing matches. Marquis of Queensberry  Rules, Merriam-Webster, https://www.merriamwebster. com/dictionary/Marquis%20of%20Queensberry%20rules.

30 Ex. F, Jacob Tr. 109-11, 117 (“[Plaintiff] had acknowledged that he would lose 9-0 at  the Supreme Court.”).

31 Ex. F at 82, 95.

32 Id. at 92.

33 Twitter, @realdonaldtrump ”Donald J. Trump” Jan. 6, 2021 1:00:50 AM EST, https://web.archive.org/web/20210106060 ... mp/status/  1346698217304584192.

34 Twitter, @realdonaldtrump “Donald J. Trump” Jan. 6, 2021 8:17:22 AM EST, https://web.archive.org/web/20210106131 ... mp/status/  1346808075626426371.

35 Ex. I, Short Tr. 12.

36 Ex. H, Private Schedule, P-R000285 (handwritten notes on President’s private  schedule indicate call with VPOTUS at 11:20 AM)]; see also Ex. I, Short Tr. at 16; Ex.  F, Jacob Tr. 168.
 
37 Ex. G, Kellogg Tr. 87, 90-92.

38 Donald J. Trump Speech on January 6, 2021. The speech transcript can be found at https://wehco.media.clients.ellingtoncm ... rump_Jan._ 6_speech.pdf.

39 See, e.g., Ex. I, Short Tr. 26-27.

40 John Eastman at January 6 Rally, C-SPAN, https://www.cspan.  org/video/?c4953961/user-clip-john-eastman-january-6-rally.  Rudy Giuliani likewise described this plan in his January 6, 2021 rally speech. See Rudy  Giuliani Speech, March for Trump, (Jan. 6, 2021) (“[Vice President Pence] can decide on  the validity of these crooked ballots, or he can send it back to the legislators, give them  five to 10 days to finally finish the work.”), https://www.rev.com/blog/transcripts/rudygiuliani-  speech-transcript-at-trumps-washington-d-c-rally-wants-trial-by-combat.

41 Tweet by @realDonaldTrump “Donald J. Trump” Jan. 6, 2021 2:24:22PM ET, https://web.archive.org/web/20210106192 ... mp/status/  1346900434540240897.

42 See, e.g., Ex. J, Williamson Tr. 60-65.

43 See United States of America v. Derrick Evans, https://www.justice.gov/usaodc/ pressrelease/file/1351946/download (“They’re making an announcement right now  saying if Pence betrayed us you better get your mind right because we’re storming that  building.”); United States of America v. Marhsall Neefe and Charles Bradford Smith,  https://www.justice.gov/usaodc/case-multi-defendant/file/1432686/download (“Then we  heard the news on [P]ence . . . And lost it . . . So we stormed.”); United States of America  v. Joshua Matthew Black, https://www.justice.gov/opa/page/file/1354806/download  (“Once we found Pence turned on us and that they had stolen the election, like officially,  the crowd went crazy. I mean, it became a mob. We crossed the gate.”).
 
44 A. Parker, How the rioters who stormed the Capitol came dangerously close to Pence,  Washington Post (Jan. 15, 2021), https://www.washingtonpost.com/politics/pencerioters-  capitol-attack/2021/01/15/ab62e434-567c-11eb-a08b-f1381ef3d207_story.html.

45 Ex. L (005379, Email from John Eastman (via his Chapman University email account)  to Gregory Jacob on January 6, 2021, 12:25 p.m. MST).

46 Exs. L, M (005479, Email from John Eastman (via his Chapman University email  account) to Gregory Jacob on January 6, 2021, 9:44 p.m. MST).

47 See Pence slams Trump for 'un-American' bid to overturn vote, BBC News (Feb. 4,  2022), https://www.bbc.com/news/av/world-us-canada-60268412.

48 Tweets by @judgeluttig, Sept. 21, 2021 at 11:50 PM,  https://twitter.com/judgeluttig/status/1440523766920933389.

49 Ex. F, Jacob Tr. 117.

50 Exs. L, M [Chapman005235, Chapman005236, Chapman005479].

51 See Grand Jury Indictment, United States v. Crowl et al., No. 21-cr-28-APM (Jan 12, 2022), available at: https://www.justice.gov/opa/press-relea ... 6/download  (“Rhodes and certain regional leaders of the Oath Keepers began recruiting others to  travel to Washington, D.C., to participate in operations aimed at stopping the transfer of  presidential power. They coordinated travel across the country to enter Washington,  D.C., equipped themselves with a variety of weapons, donned combat and tactical gear,  and were prepared to answer Rhodes’s call to take up arms at Rhodes’s direction. Some  also amassed firearms on the outskirts of Washington, D.C., distributed them among  ‘quick reaction force’ (‘QRF’) teams, and planned to use the firearms in support of their  plot to stop the lawful transfer of presidential power.”).

52 See United States v. Chrestman, No. 1:21-mj-00218 (DDC), https://www.justice.gov/usao-dc/defenda ... n-william; K. Polantz, , Sobbing  Capitol rioter described his assault of police Officer Michael Fanone: 'My God. What  did I just do?', CNN (December 1, 2021) (rioter charged with assaulting Metropolitan  Police Department Officer Michael Fanone on January 6 with an “electroshock weapon”  told investigators: “Trump called us. Trump called us to D.C. . . . If he’s the commander  in chief and the leader of our country, and he’s calling for help—I thought he was calling for help”); United States v. Grayson, No. 1:21-mj-00163 (DDC),  https://www.justice.gov/opa/page/file/1360506/download; United States v. Cua, No. 21-  CR-107 (DDC), https://www.justice.gov/usao-dc/case-multidefendant/ file/1365571/download; Sergeant Aquilino Gonell Testimony, House Select  Committee to Investigate the January 6th Attack on the United States Capitol, The Law  Enforcement Experience on January 6th (July 27, 2021) (Capitol Police Sergeant  Aquilino Gonell testifying that during hand-to-hand combat with rioters “all of them, all  of them, were telling us ‘Trump sent us.’”). A number of defendants in pending criminal  cases have identified President Trump’s allegations about the “stolen election” as a  motivation for their activities at the Capitol; several also specifically cite President  Trump’s tweets asking that supporters come to Washington, D.C. on January 6. See, e.g.,  United States v. Sandlin, https://www.justice.gov/opa/page/file/1362396/download: (“I’m  going to be there to show support for our president and to do my part to stop the steal and  stand behind Trump when he decides to cross the rubicon.”); United States v. Neefe et al., https://www.justice.gov/usao-dc/case-mu ... 6/download (“Trump is literally calling people to DC in a show of force. Militias will be there and if there’s  enough people they may fucking storm the buildings and take out the trash right there.’”).

53 President Trump Video Statement on Capitol Protesters, C-Span (Jan. 6, 2021), https://www.c-span.org/video/?507774-1/ ... rotesters-  leave-capitol.

54 Tweet by @realDonaldTrump “Donald J. Trump” Jan. 6, 2021 6:01:04 PM ET, https://web.archive.org/web/20210106230 ... mp/status/  1346954970910707712
 
55 Available at https://perma.cc/ZV8J-P2QS.

56 Plaintiff emphasizes his appearances in a number of cases, but simply naming these  cases does not meet Plaintiff’s burden to show that the disputed communications related  to any of those cases. One of the cases had already concluded before the time at issue  here, see State of Texas v. Commonwealth of Pennsylvania, et al., No. 22O155 (motion  for leave to file a bill of complaint denied on December 11, 2020), and nowhere do  Plaintiff’s privilege logs identify communications linked to either of the other cases.

57 Plaintiff had the burden to establish the elements of the privilege in his opening brief. 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.”).
 
58 See also Sec. & Exch. Comm’n v. Aequitas Mgmt., LLC, No. 16-CV-438, 2017 WL  6329716, at *3 (D. Or. July 7, 2017), objections overruled, 2017 WL 6328150 (D. Or.  Dec. 11, 2017) (common interest privilege “only applies when clients are represented by  separate counsel”); Swortwood v. Tenedora de Empresas, S.A. de C.V., No. 13CV362,  2014 WL 895456, at *4 (S.D. Cal. Mar. 6, 2014), clarified on denial of reconsideration  sub nom. Swortwood v. Empresas, No. 13CV362, 2014 WL 12026069 (S.D. Cal. Apr.  18, 2014) (“Since Mr. Diez Barroso was not individually represented by counsel,  Defendant can not establish the applicability of the common interest doctrine.”); Finisar  Corp. v. U.S. Bank Tr. Nat. Ass’n, No. C 07-04052, 2008 WL 2622864, at *4 (N.D. Cal.  June 30, 2008) (“Under the strict confines of the common interest doctrine, the lack of  representation for the remaining parties vitiates any claim to a privilege.”) (quoting  Cavallaro v. United States, 153 F. Supp. 2d 52, 61 (D. Mass. 2001), aff’d, 284 F.3d 236  (1st Cir. 2002)); OTR Wheel Eng’g, Inc. v. W. Worldwide Servs., Inc., No. CV-14-085,  2015 WL 11117150, at *2 (E.D. Wash. June 1, 2015) (for common interest to apply, “[t]he communications, however, must be shared by attorneys for the separate parties”).

59 “It is appropriate that the proponent of the privilege has the burden of proving that a third party was present to further the interest of the proponent because, in this situation, where the privilege turns on the nature of the relationship and content of communications with the third party in question, the proponent is in the better posture to come forward with specific evidence explaining why confidentiality was not broken.” Sony Computer  Ent. Am., Inc., 229 F.R.D. at 634 n.1.
 
60 Plaintiff’s assertion that the Congressional Defendants waived this argument, Br. 22-  23, is addressed at 53-57, infra.
 
61 See, e.g., UCLA Policy 410: Nonconsensual Access to Electronic Communications  Records (effective on Aug. 16, 2010) (requiring the consent of the user before accessing  electronic communications records except in exceptional circumstances),  https://perma.cc/3CP4-QSYD; Stanford Administrative Guide, Privacy and Access to  Electronic Information 6.1.1 (last updated on Oct. 4, 2016) (acknowledging the  importance of users’ right to privacy and requiring the consent of the user before  accessing electronic communications except in exceptional circumstances),  https://perma.cc/E4C5-Z37P; see generally American Bar Association, Standing  Committee on Ethics and Professional Responsibility, Formal Opinion 11-459 (2011)  https://perma.cc/VF5N-VFFB; State Bar of California, Standing Committee on Professional Responsibility and Conduct, Formal Opinion 2010-179 §3(a)(iii) (2010), https://perma.cc/6737-D8NV; G. Sisk & N. Halbur, A Ticking Time Bomb? University  Data Privacy Policies and Attorney-Client Confidentiality in Law School Settings, 2010  Utah L. Rev. 1277 (2010).
 
62 READ Trump lawyer’s memo on six-step plan for Pence to overturn the election, CNN (Sept. 21, 2021), https://perma.cc/LP48-JRAF; Jan. 3 Memo on Jan. 6 Scenario, CNN, https://perma.cc/B8XQ-4T3Z (provided by John Eastman to CNN per CNN reporting,  see Jeremy Herb (@jeremyherb), Twitter (Sept. 21, 2021, 5:46 PM),  https://perma.cc/GX4R-MK9B.

63 Another Way: Discussing the John Eastman Memo with Eastman, Equal Citizens  (Sept. 27, 2021), https://perma.cc/A2RZ-MFWP.

64 See, e.g., M. Schmidt , The Lawyer Behind the Memo on How Trump Could Stay in  Office, N.Y. Times (Oct. 2, 2021),https://perma.cc/9BQQ-5Y39; John McCormack, John Eastman vs. the Eastman Memo, Nat’l Rev. (Oct. 22, 2021), https://perma.cc/VD6NR9Q9;  John C. Eastman, John Eastman: Here’s the Advice I Actually Gave Vice  President Pence on the 2020 Election, Sacramento Bee (Oct. 7, 2021),  https://www.sacbee.com/opinion/op-ed/ai1icle2548 l 2552.html.

65 Peter Boyles Show: Peter Boyles May 5 8am, 710KNUS News/Talk (May 5, 2021), https://perma.cc/Q6YE-KD5F.

66 Plaintiff relies on Weil, 647 F.2d at 25, which is inapposite. Whereas Weil involved a company’s inadvertent disclosure, Plaintiff’s disclosure was both intentional and  repeated.
 
67 See 004494; 004496; 004547; 004553; 004707; 004708; 004713; 004720; 004721;  004722; 004723; 004744; 004745; 004766; 004767; 004788; 004789; 004790; 004791;  004792; 004793; 004794; 004827; 004828; 004833; 004834; 004835; 004839; 004841;  004963; 004964; 004976; 004977; 004979; 004990; 004992; 005011; 005012; 005014;  005017; 005018; 005023; 005024; 005045; 005046; 005061; 005064; 005066; 005067;  005068; 005091; 005094; 005096; 005097; 005101; 005113; 005114; 005130; 005131;  005134; 005135; 005154; 005155; 005156; 005157; 005158; 005159; 005160; 005161;  005248; 005249; 005251; 005252; 005261; 005268; 005283; 005299; 005300; 005329;  005338; 005412; 005423; 005424; 005433; 005484; 005488; 005489; 005490; 005491;  005492; 005498; 005510; 005515; 005519; 005547; 005551; 005578; 005667; 005668;  005672; 005676; 005677; 005678; 005680; 005704; 005874; 005876; 006023; 006024; 006028; 006032; 006035; 006039; 006041; 006591; 006592; 006601.

68 See supra n.27.

69 See 004494; 004496; 004547; 004707; 004722; 004723; 004744; 004745; 004766;  004767; 004788; 004789; 004790; 004791; 004792; 004793; 004794; 004833; 004834;  004835; 004839; 004841; 004963; 004964; 004976; 004977; 004979; 004990; 004992;  005011; 005012; 005014; 005023; 005024; 005061; 005130; 005131; 005134; 005135;  005248; 005249; 005251; 005252; 005261; 005268; 005283; 005299; 005300; 005329;  005338; 005423; 005424; 005433; 005484; 005488; 005489; 005490; 005491; 005492;  005498; 005510; 005515; 005519; 005547; 005551; 005578; 005668; 005672; 005676;  005677; 005678; 005680; 005874; 005876; 006023; 006024; 006028; 006032; 006035;  006039; 006041; 006591; 006592; 006601.

70 To the extent the work product doctrine can apply to legislative subpoenas, the term “potential adversaries” should be read broadly. Plaintiff cannot have it both ways: He cannot apply a litigation privilege to a legislative subpoena but at the same time restrict  waiver of that privilege to litigation adversaries.

71 See Flaherty v. Seroussi, 209 F.R.D. 300, 307 (N.D.N.Y. 2002) (“dissemination of  materials prepared by plaintiff’s counsel to the media is conceptually inconsistent with  his claim that those documents provide an indication of his closely guarded trial strategy,  and should therefore be shielded from disclosure”); Anderson v. SeaWorld Parks & Ent.,  Inc., 329 F.R.D. 628, 637 (N.D. Cal. 2019) (“Work product protection does not attach to  an attorney’s work directing a public relations campaign, nor is there any expectation of  confidentiality where [attorney] directed the consultants to share the list with a  journalist.”); Montesa v. Schwartz, No. 12CIV6057, 2016 WL 3476431, at *9 (S.D.N.Y.  June 20, 2016) (“Plaintiffs cannot argue that their adversaries in this litigation were not  substantially more likely to obtain this information by virtue of its disclosure to a  journalist, who very well could have published this entire e-mail exchange.”)
 
72 It also indicates that these documents were created for political or strategic  purposes and not “because of” anticipated litigation. Am. C.L. Union of N.  California, 880 F.3d at 485-86.
 
73 Plaintiff’s privilege log does little to reveal whether the materials he seeks to withhold  are ordinary work product or opinion work product. The Select Committee, however,  meets either test: It has both a “substantial need” and a “compelling need” for the  materials sought. Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th  Cir. 1992) (“opinion work product may be discovered and admitted when mental  impressions are at issue in a case and the need for the material is compelling”).

74 Congress has consistently taken the view that its investigative committees are not  bound by judicial common law privileges such as the attorney-client privilege or the  work product doctrine. See generally, Congressional Research Service, Congressional  Oversight Manual 61-62 (March 21, 2021). This aspect of Congress’s investigative  authority is rooted in the separation of powers inherent in the Constitution’s  structure. Id. Congress and its committees make decisions regarding such common law  privileges by balancing the important institutional, constitutional, and individual interests  at stake on a case-by-case basis. Here, Congressional Defendants have determined,  consistent with their prerogatives, not to submit an argument on this point. This is not,  however, intended to indicate, in any way, that Congress or its investigative committees  will decline to assert this institutional authority in other proceedings.

75 United States v. DeCarlo, No. 21-73, (D.D.C.) Minute Entry (Jan. 21, 2022) (rejecting  motion to dismiss for “the reasons stated on the record,” after deciding to rule orally  “rather than adding a sixth written opinion to those already excellent opinions written by  my colleagues”); United States v. Nordean, No. 21-175, (D.D.C.) Mem. Op., at 9-12 (Dec. 28, 2021) (ECF No. 263); United States v. Montgomery, No. 21-46 (D.D.C.), Mem.  Op. and Order, at 8-21 (Dec. 28, 2021) (ECF No. 87); United States v. Mostofsky, No.  21-138 (D.D.C.), Mem. Op., at 21-24 (Dec. 21, 2021) (ECF No. 88); United States v.  Caldwell, No. 21-28 (D.D.C.) Mem. Op. and Order, at 8-16 (Dec. 20, 2021) (ECF No.  558); United States v. Sandlin, No. 21-88, (D.D.C.) Mem. Op., at 5-9 (Dec. 10, 2021)  (ECF No. 63).)

76 See, e.g., Ex. F, Jacob Tr. 82, 96-97, 107-10 (“[Plaintiff] had acknowledged that he  would lose 9-0 at the Supreme Court.”); Ex. N, Email Exchange Between John Eastman  and Gregory Jacob (“Respectfully, it was gravely, gravely irresponsible for you to entice  the President with an academic theory that had no legal viability, and that you well know  we would lose before any judge who heard and decided the case.”).

77 Ex. N, Email Exchange Between John Eastman and Gregory Jacob.

78 Public Letter from Michael R. Pence to Congress (Jan. 6, 2021), https://int.nyt.com/data/documenttools/ ... oralvotes/ 9d6f117b6b98d66f/full.pdf. See also Ex. N. Ex. N, Email Exchange Between John  Eastman and Gregory Jacob.

79 See supra at 40 n.75 (citing cases).

80 M. Sherman, Electoral College makes it official: Biden won, Trump lost, Associated  Press (Dec. 14, 2020), https://apnews.com/article/joe-biden-27 ... 384dc7cc1e.

81 See supra at 3-5. In the single case the President won, his campaign challenged a stateordered  deadline extension in Pennsylvania for the submission of personal identification  for mailed ballots, affecting a small number of votes. See Order, Trump v. Boockvar, No.  602 M.D. 2020 (Pa. Commonwealth Ct. Nov. 12, 2020), https://www.pacourts.us/Storage/media/p ... -10440.pdf.

82 See supra at 8, 11.

83 See supra at 13 n.40.
 
84 READ Trump lawyer’s memo on six-step plan for Pence to overturn the election, CNN (Sept. 21, 2021),https://www.cnn.com/2021/09/21/politics/read-eastmanmemo/ index.html; Jan. 3 Memo on Jan. 6 Scenario, CNN, http://cdn.cnn.com/cnn/2021/images/09/2 ... dential.-- .jan.3.memo.on.jan.6.scenario.pdf (provided by John Eastman to CNN per CNN  reporting, see Tweet by @jeremyherb, Sept. 21, 2021 at 5:46PM, https://twitter.com/jeremyherb/status/1 ... 7263922185).

85 See supra at 11.

86 See supra at 11-13.
 
87 Department of Homeland Security Cybersecurity and Infrastructure Security Agency,  Joint Statement from Elections Infrastructure Government Coordinating Council & The  Election Infrastructure Sector Coordinating Executive Committees (November 12, 2020), https://www.cisa.gov/news/2020/11/12/jo ... overnment-  coordinating-council-election; see also Christopher Krebs, Opinion: Trump  fired me for saying this, but I’ll say it again: The election wasn’t rigged, WASHINGTON  POST (Dec. 1, 2020), https://www.washingtonpost.com/opinions ... rebstrump-  election-wasnt-hacked/2020/12/01/88da94a0-340f-11eb-8d38- 6aea1adb3839_story.html.

88 Read the Trump campaign’s internal memo, N.Y. Times (Sept. 21, 2021),  https://www.nytimes.com/interactive/2021/09/21/us/trump-campaign-memo.html.

89 Michael Balsamo, Disputing Trump, Barr says no widespread election fraud,  ASSOCIATED PRESS (December 1, 2020); AG Barr says he won't appoint a special  counsel to investigate voter fraud, YAHOO NEWS (December 21, 2020).

90 William Cummings, Joey Garrison and Jim Sergent, By the numbers: President  Donald Trump's failed efforts to overturn the election, USA Today (Jan. 6, 2021),  https://www.usatoday.com/in-depth/news/politics/elections/2021/01/06/trumps-failedefforts-  overturn-election-numbers/4130307001/.

91 In re Rudolph W. Giuliani, 2021 Slip Op. 04086 (N.Y. 1st Dept. June 24, 2021); see  also In re Rudolph W. Giuliani, Order, App. D.C., No. 21-BG-423 (July 7, 2021).

92 Senate Judiciary Committee Staff Report, Subverting Justice, How the Former  President and His Allies Pressured DOJ to Overturn the 2020 Election, at 5, 14-16, 19,  27-28, https://www.judiciary.senate.gov/imo/me ... rt%20FINAL  .pdf; see also Interview of Richard Donoghue (Aug. 6, 2021), United States Senate  Committee on the Judiciary, at 59, 156, https://www.judiciary.senate.gov/richarddonoghue-  transcript; Interview of Jeffrey Rosen (Aug. 7, 2021), United States Senate  Committee on the Judiciary, at 30, https://www.judiciary.senate.gov/rosen-transcriptfinal;

93 Amy Gardner & Paulina Firozi, Here’s the full transcript and audio of the call between Trump and Raffensperger, Washington Post (Jan. 5, 2021), https://www.washingtonpost.com/politics ... orgiavote/ 2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356_story.html.

94 See, e.g., Donald Trump Rally Speech Transcript Dalton, Georgia: Senate Runoff  Election, The Rev (Jan. 4, 2021), https://www.rev.com/blog/transcripts/do ... llyspeech- transcript-dalton-georgia-senate-runoff-election (reiterating numerous allegations of  election fraud before crowd in Dalton, Georgia on January 4th).
 
95 The definition of fraudulent deceit under California law largely tracks these elements. See Small v. Fritz Cos., Inc., 65 P.3d 1255, 1258 (Cal. 2003) (requiring 1) a  misrepresentation; 2) knowledge of falsity (or scienter); 3) intent to defraud, i.e., to  induce reliance; 4) justifiable reliance; and 5) resulting damage).

96 Donald J. Trump, Video from GA shows suitcases filled with ballots pulled from under  a table AFTER poll workers left, YOUTUBE,  https://www.youtube.com/watch?v=nVP_60Hm4P8.

97 Gabriel Sterling, Twitter (6:41 A.M., Dec. 4, 2020), https://twitter.com/gabrielsterling/sta ... 3610633217.

98 Stephen Fowler, Fact Checking Rudy Giuliani’s Grandiose Georgia Election Fraud  Claim, GPB (Dec. 4, 2020), https://www.gpb.org/news/2020/12/04/fac ... giulianis- grandiose-georgia-election-fraud-claim.

99 Gabriel Sterling, Twitter (2:58 P.M., Dec. 4, 2020), https://twitter.com/gabrielsterling/sta ... 2526884873.

100 Georgia election officials shows frame-by-frame of State Farm Arenda Election Night video,” WSB-TV (Dec. 5, 2020), available at: https://www.youtube.com/watch?v=h- 9jFuieH_U.

101 Coreco Ja’Qan Pearson, et al. v. Brian Kemp, et al., 1:20-cv-4809 (N.D. Ga.) (Docket  No. 72-1), available at: https://www.documentcloud.org/documents ... ceswatson- affidavit.

102 Transcript, Press Conference: Georgia Election Officials Briefing Transcript  December 7: Will Recertify Election Results Today (Dec. 7, 2020), available at: https://www.rev.com/blog/transcripts/ge ... tdecember-  7-will-recertify-election-results-today.

103 Donald J. Trump, The evidence is overwhelming – FRAUD!, FACEBOOK,  https://www.facebook.com/DonaldTrump/videos/1803802073100806/; Donald J. Trump,  Stop the Steal, FACEBOOK,  https://www.facebook.com/officialteamtrump/videos/711114792881749/.

104 [Cite Donoghue TI at 43] (informing President Trump that the “allegations about  ballots being smuggled in a suitcase and run through the machines several times, it was  not true, that we had looked at it, we looked at the video, we interviewed the witnesses,  and it was not true”).

105 Amy Gardner & Paulina Firozi, Here’s the full transcript and audio of the call  between Trump and Raffensperger, Washington Post (Jan. 5, 2021), https://www.washingtonpost.com/politics ... orgiavote/ 2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356_story.html.

106 Id.

107 Id.

108 Jason Braverman, Trump asks Georgia election officials to ‘find’ votes during call  with Sec. of State, 11Alive,  https://www.11alive.com/article/news/politics/elections/trump-tweets-about-fultoncounty-  brad-raffensperger-brian-kemp/85-a503efec-df8a-42ee-a92f-70271eac840f  (original tweet link broken https://twitter.com/realDonaldTrump/sta ... 3861659650).

109 Brian Naylor, Read Trump's Jan. 6 Speech, A Key Part Of Impeachment Trial, NPR  (Feb. 10, 2021) (“Then election officials pull boxes, Democrats, and suitcases of ballots  out from under a table. You all saw it on television, totally fraudulent. And illegally  scanned them for nearly two hours, totally unsupervised. Tens of thousands of votes. This  act coincided with a mysterious vote dump of up to 100,000 votes for Joe Biden, almost  none for Trump. Oh, that sounds fair. That was at 1:34 a.m.”),  https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-ofimpeachment-  trial.

110 Jordan Fischer et al., Georgia man who wanted to ‘remove some craniums’ on  January 6 sentenced to more than 2 years in prison, WUSA9 (Dec. 14, 2021),  https://www.wusa9.com/article/news/national/capitol-riots/georgia-man-clevelandmeredith-  jr-who-wanted-to-remove-some-craniums-on-january-6-sentenced-to-morethan-  2-years-in-prison-trump-noggin-pelosi-bowser/65-e3e4de7e-cf5e-4c62-af1f-  53fb214576f0.

111 Dan Mangan, Capitol rioter Garret Miller says he was following Trump’s orders, apologizes to AOC for threat, CNBC (Jan. 25, 2021).

112 See, e.g., United States v. Sandlin, https://www.justice.gov/opa/page/file/1362396/download (“I’m going to be there to show support for our president and to do my part to stop the steal and stand behind Trump when he decides to cross the rubicon.”); United States v. Neefe et al.,https://www.justice.gov/usao-dc/case-multi-defendant/file/1432686/download (“Trump is literally calling people to DC in a show of force. Militias will be there and if there’s enough people they may fucking storm the buildings and take out the trash right there.”);  United States v. Caldwell et al., https://www.justice.gov/usao-dc/case-multidefendant/ file/1369071/download (“Trump said It’s gonna be wild!!!!!!! It’s gonna be  wild!!!!!!! He wants us to make it WILD that's what he's saying. He called us all to the  Capitol and wants us to make it wild!! ! Sir Yes Sir!!! Gentlemen we are heading to DC  pack your shit!!”).

113 Maya Yang, More than 40% in US do not believe Biden legitimately won election –  poll, GUARDIAN (Jan. 5, 2022), https://www.theguardian.com/usnews/  2022/jan/05/america-biden-election-2020-poll-victory.

114 This does not represent the entirety of the evidence obtained by the Select Committee with respect to these issues. In addition, the Select Committee is receiving new evidence  on a regular basis as part of its ongoing investigation. The Select Committee can make additional evidence available to the Court as requested.

[admin]

Part 4 of 9

EXHIBIT "1"

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

DECLARATION OF DOUGLAS N. LETTER IN SUPPORT OF CONGRESSIONAL DEFENDANTS’ OPPOSITION TO PLAINTIFF’S PRIVILEGE ASSERTIONS

Date: March 8, 2022
Time: 9:00 a.m.
Location: Courtroom 9D

I, Douglas N. Letter, declare as follows:

1. I am the General Counsel, of the U.S. House of Representatives and counsel for the Congressional Defendants in this action.

2. I make this declaration in support of the Congressional Defendants’ Opposition to Plaintiff’s Privilege Assertions.

3. Attached hereto as Exhibit 1 are true and accurate copies of email messages between myself and Plaintiff’s counsel, Charles Burnham, that occurred on Monday, January 31, 2022 at 4:06p EST, Thursday, February 3, 2022 at 7:13p EST, and Tuesday, February 8, 2022 at 3:05p EST.

I declare under penalty of perjury that the foregoing is true and correct, to the best of my knowledge.

Executed on March 2, 2022, in Bethesda, Maryland.

/s/ Douglas N. Letter
Douglas N. Letter

***

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

Exhibit 1

From: Letter, Douglas
Sent: Monday, January 31, 2022 4:06 PM
To: Charles Burnham
Cc: Tatelman, Todd; Fahsel, Stacie; Columbus, Eric
Subject: RE: US v. Eastman

Charles:

The Select Committee will agree to exclusion of mass mailing type emails from your review, but only after the Select Committee has an opportunity to review and approve the list of sender email addresses that you propose excluding.

In response to your request to exclude documents that “on their face” are not responsive to the Select Committee’s subpoena, we do not read Judge Carter’s orders as giving your client the ability to remove from the population of documents that Chapman has produced in response to the subpoena those documents that you determine are not responsive. However, we recognize that there may be personal communications within the set and are willing to agree to include the email addresses of Dr. Eastman’s immediate family on the exclusion list along with mass email sender email addresses. The Select Committee is also amenable to you including on your log any documents you determine should not be produced based on your determination that they are not responsive.

We are also amenable to some redactions of personally identifiable information, though the Select Committee reserves the right to request the production of information redacted from specific documents based on the Committee’s investigative needs. Specifically, we agree to Dr. Eastman redacting social security numbers, home addresses, and all but the last 4 digits of phone numbers. We do not agree to the redaction of email addresses.

In response to your request that we agree to a pace of review and production lower than 1,500 pages per day, we understand your concern. What is your proposal as to the appropriate number of pages to be reviewed each day? We are happy to agree to a reasonable accommodation on the number of pages per day, as long as you make the reciprocal accommodation of prioritizing the review first of emails sent or received on January 6 and 7, 2021 and then those emails sent or received on January 4 and 5, 2021. We had stated this proposal previously, but did not receive an answer on it.

We note that the initial privilege log you provided does not contain information sufficient to conclude whether each recipient other than the author (and other than Dr. Eastman) is an attorney, nor the affiliation of any individual. We request that you include email addresses in the “Email From,” “Email CC,” and “Email BCC” fields along with an asterisk to denote which sender(s) or recipient(s) is/are attorneys.

Finally, now that we know that you do not intend to use the Select Committee’s vendor, please provide us with the cost of the electronic review service you are using for this review.

All the best ‐‐

***

From: Charles Burnham <charles@burnhamgorokhov.com>
Sent: Monday, January 31, 2022 1:39 PM
To: Letter, Douglas <Douglas.Letter@mail.house.gov>
Cc: Tatelman, Todd <Todd.Tatelman@mail.house.gov>; Fahsel, Stacie <Stacie.Fahsel@mail.house.gov>; Columbus, Eric <Eric.Columbus@mail.house.gov>
Subject: Re: US v. Eastman

Douglas,

Your vendor was not able to get us set up in the system in time for Friday's deadline so we went with an alternate vendor (as I alluded to in my status report). However, our vendor should be able to eliminate mass emails. Per your quest, we will not produce "mass mailings, list serves, or possible spam accounts" even if they are technically responsive to your subpoena. We may not be able to accomplish this in time for today's production but will start tomorrow.

More generally, will you agree we do not have to produce documents which, on their face, are not responsive to the subpoena even if those documents were generated in response to the search terms provided to Chapman?

With respect to the remaining documents, once mass emails and such are removed many of the documents left for production will contain personal identifying information such as phone numbers and addresses. Do you have an objection to our redacting this info?

Finally, if the production is narrowed down largely to substantive emails to and from Dr. Eastman personally, we will be unable to maintain the 1500 a day pace. Even if the review and privilege analysis of substantive emails takes an average of 1 minute per page (which is unlikely), that works out to 25 hours per day. Will you agree to a reasonable reduction in the daily production quota?

Please give me a call if you would like to discuss.

***

On Mon, Jan 31, 2022 at 11:46 AM Letter, Douglas <Douglas.Letter@mail.house.gov> wrote:

Charles:

We have reviewed the initial production of not privileged documents that you produced to the Select Committee on Friday, January 28, and noted that the overwhelming majority of the emails were from mass mailing lists, listservs, or possible spam accounts. (Of the 537 emails produced it appears that as few as 5 were emails written directly to or from Dr. Eastman).

While they contain relevant search terms, the Select Committee is not interested in these mass mailing type documents and believes that eliminating them from the review population would significantly reduce the review population, thus streamlining the production and privilege log process. The vendor the Select Committee has made available to Dr. Eastman (Driven) can perform an analysis of all the emails in the population to identify specific senders that can be excluded from the review population. (For a few examples from the initial production: National Review, Blabber Buzz Alerts, Newsmax.com, and Big League Politics).

Please let us know as soon as possible if you are open to utilizing the vendor’s expertise on this issue and we can arrange a call to discuss the logistics.

We look forward to hearing from you.

Douglas N. Letter
General Counsel
Office of General Counsel
U.S. House of Representatives
5140 O’Neill House Office Building
Washington, DC 20515
Douglas.Letter@mail.house.gov
202‐225‐9700

Charles Burnham
Burnham & Gorokhov PLLC
1424 K St. NW
Washington, DC 20005
phone 202‐386‐6920
fax 202‐765‐2173
http://www.burnhamgorokhov.com
https://www.facebook.com/BurnhamGorokhov

***

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

DECLARATION OF JOHN WOOD IN SUPPORT OF CONGRESSIONAL DEFENDANTS’ OPPOSITION TO PLAINTIFF’S PRIVILEGE ASSERTIONS

Date: March 8, 2022
Time: 9:00 a.m.
Location: Courtroom 9D

I, John Wood declare as follows:

1. I am Senior Investigative Counsel and Of Counsel to the Vice Chair, Select Committee to Investigate the January 6th Attack on the U.S. Capitol, U.S. House of Representatives.

2. I make this declaration in support of Congressional Defendants’ Brief in Opposition to Plaintiff’s Privilege Assertions.

3. Attached hereto as Exhibit A is a true and accurate copy of the transcript of the deposition of John Eastman by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on December 9, 2021.

4. Attached hereto as Exhibit B is a true and accurate copy of certain pages from the interview of Richard Peter Donoghue by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on October 1, 2021.

5. Attached hereto as Exhibit C is a true and accurate copy of certain pages from the interview of Jeffrey A. Rosen by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on October 13, 2021.

6. Attached hereto as Exhibit D is a true and accurate copy of certain pages from the deposition of Jason Miller by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on February 3, 2022.

7. Attached hereto as Exhibit E are true and accurate copies of certain documents produced by the National Archives and Records Administration (“NARA”) to the Select Committee to Investigate the January 6th Attack on the U.S. Capitol.

8. Attached hereto as Exhibit F is a true and accurate copy of certain pages from the deposition of Greg Jacob by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on February 1, 2022.

9. Attached hereto as Exhibit G is a true and accurate copy of certain pages from the deposition of Keith Kellogg, Jr. by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on December 14, 2021.

10. Attached hereto as Exhibit H is a true and accurate copy of a document produced by NARA to the Select Committee to Investigate the January 6th Attack on the U.S. Capitol.

11. Attached hereto as Exhibit I is a true and accurate copy of certain pages from the deposition of Marc Short by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on January 26, 2022.

12. Attached hereto as Exhibit J is a true and accurate copy of certain pages from the deposition of Benjamin Williamson by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on January 25, 2022.

13. Attached hereto as Exhibit K is a true and accurate copy of an email from John Eastman (via his Chapman University email account) to Gregory Jacob on January 5, 2021, 7:29 PM MST, along with the attachment thereto, produced to the Select Committee to Investigate the January 6th Attack on the U.S. Capitol as Chapman005235 and Chapman005236.

14. Attached hereto as Exhibit L is a true and accurate copy of an email from John Eastman (via his Chapman University email account) to Gregory Jacob on January 6, 2021, 12:25 PM MST, produced to the Select Committee to Investigate the January 6th Attack on the U.S. Capitol as Chapman005379.

15. Attached hereto as Exhibit M is a true and accurate copy of an email from John Eastman (via his Chapman University email account) to Gregory Jacob on January 6, 2021, 4:45 PM MST, produced to the Select Committee to Investigate the January 6th Attack on the U.S. Capitol as Chapman005442.

16. Attached hereto as Exhibit N is a true and accurate copy of an email from John Eastman (via his Chapman University email account) to Gregory Jacob on January 6, 2021, 9:44 PM MST, produced to the Select Committee to Investigate the January 6th Attack on the U.S. Capitol as Chapman005479.

I declare under penalty of perjury that the foregoing is true and correct, to the best of my knowledge.

Executed on March 2, 2022, in Washington, DC.

/s/ John F. Wood
John F. Wood

***

[EXHIBIT "A": Attached hereto as Exhibit A is a true and accurate copy of the transcript of the deposition of John Eastman by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on December 9, 2021.]

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

Exhibit A

5 SELECT COMMITTEE TO INVESTIGATE THE
6 JANUARY 6TH ATTACK ON THE U.S. CAPITOL,
7 U.S. HOUSE OF REPRESENTATIVES,
8 WASHINGTON, D.C.

12 DEPOSITION O F: JOHN EASTMAN

16 Thursday, December 9, 2021

18 Washington, D.C.

21 The interview in the above matter was held in Room 1309, Longworth House
22 Office Building, commencing at 12:57 p.m.
23 Present: Representatives Lofgren, Raskin, Cheney, and Kinzinger.

2 Appearances:

5 For the SELECT COMMITTEE TO INVESTIGATE
6 THE JANUARY 6TH ATTACK ON THE U.S. CAPITOL:

8 JOHN WOOD, SENIOR INVESTIGATIVE COUNSEL
9 AND OF CHAIR TO THE VICE CHAIR
10 CASEY LUCIER, INVESTIGATIVE COUNSEL
11 JOE MAHER, DETAILEE
12 DAN GEORGE, SENIOR INVESTIGATIVE COUNSEL
13 JENNA HOPKINS, PROFESSIONAL STAFF
14 EVAN MAULDIN, CHIEF CLERK

17 For JOHN EASTMAN:

19 CHARLES BURNHAM

3 Mr. Wood. Good afternoon.
4 This is a deposition of Dr. John Eastman conducted by the House Select
5 Committee to Investigate the January 6th Attack on the U.S. Capitol.
6 My name is John Wood. I'm a senior investigative counsel for the committee,
7 and I'm also of counsel to the vice chair of the committee, Representative Liz Cheney.
8 And I'll let everybody introduce themselves.
9 Mr. Maher. Joe Maher, senior counsel to the vice chair.
10 Ms. Lucier. Casey Lucier, investigative counsel to the select committee.
11 Mr. George. Dan George, senior investigative counsel to the committee.
12 Ms. Hopkins. Jenna Hopkins, professional staff member.
13 Mr. Burnham. Charles Burnham, counsel for Dr. John Eastman.
14 The Witness. Dr. John Eastman.
15 Mr. Wood. And just to let you know, there may be members of the committee
16 that will either come in person or participate by video. We will keep an eye on that to
17 try to let you know and say on the record when members join.
18 We probably won't say on the record when they leave just because if they're by
19 video, they can just hit exit and we won't necessarily notice when they leave. So the
20 record might not always show when the members leave.
21 The questions will be led by staff, but we will occasionally pause and see if any of
22 the members want to ask any questions before we move on.
23 As you know, there is a court reporter here.
24 And why don't we go ahead and administer the oath?
25 The Reporter. Please raise your right hand.
1 Do you solemnly declare and affirm under 1 the penalty of perjury that the
2 testimony you are about to give will be the truth, the whole truth, and nothing but the
3 truth?
4 The Witness. I do.
5 Mr. Wood. So, Dr. Eastman, as you know, there is a court reporter here who will
6 be making a verbatim transcript of the interview. You will be given an opportunity -- or
7 your counsel -- to review the transcript, probably here in the House office buildings, and
8 to identify any errors you identify. The committee can take those into consideration
9 before finalizing the transcript. Also, as we said, there's a video as well as audio
10 recording.
11 As far as logistics, if at any time you want to take a break, we'd be happy to allow
12 that. Just s ay so. If the witness needs to speak with counsel privately, we can take a
13 break for that to occur.
14 Dr. Eastman, I want to make sure you understand that you're appearing pursuant
15 to the subpoena dated November 8th, 2021, which is exhibit 1 in the binder that you've
16 been provided.
17 I want to make sure you also understand that you're under oath, so any knowing
18 false statements could constitute perjury or violation of other Federal laws, such as 18
19 U.S.C. 1001, so it's important that you always tell the truth.
20 If you either don't hear a question or don't understand a question, please say so,
21 so that we can either repeat it or try to clarify it. Also, if you don't recall or don't know
22 the answer, feel free to say so.
23 With that said, I'll turn to Mr. Burnham, who I understand wants to make a
24 statement for the record.
25 Mr. Burnham. Thank you, Mr. Wood.
1 First, on December 1st, I sent a letter to Chairman Thompson raising 1 our objection
2 to the subpoena you referred to, and I'd like to ask if that could be made a part of the
3 official record of today's deposition.
4 Mr. Wood. Yes. And I believe that is in the binder as exhibit 2. And so that
5 will be in the record.
6 Mr. Burnham. Okay.
7 And then just -- I hadn't planned to say this, but you mentioned earlier that
8 committee members might be joining here and there. To the extent possible, can you
9 let us know who's here and who's coming?
10 Mr. Wood. Yes. So we will try to keep an eye on the video screen. It should
11 pop up with their names on it. Sometimes it's only a first name or a last name, but we
12 will try to notice it when we do, between questions, pause, and note for the record that
13 they've joined.
14 Mr. Burnham. And I can watch it. They'll show up on this big TV here?
15 Mr. Wood. Yes.
16 Mr. Burnham. All right. So I can watch as well. Thank you.
17 With that said, short statement on behalf of my client.
18 We wish to preserve the objections in full noted in the letter I referred to a
19 moment ago, but need not elaborate on them further here, with one exception.
20 I wish to emphasize to the committee the importance of the Fifth Amendment to
21 the United States Constitution, which I have counseled my client to invoke.
22 This right is fundamental to our system of justice. As I stated in my letter, our
23 Supreme Court has called the Fifth Amendment a safeguard against heedless, unfounded,
24 or tyrannical prosecution to protect the innocent, as well as the guilty.
25 Invoking the Fifth Amendment is not an admission of guilt and no one should
1 describe it as such. We make no apologies for seeking Fifth Amendment protection as
2 so many law-abiding Americans have done throughout history.
3 In asserting this privilege on my client's behalf, I cannot reveal information
4 protected by the attorney-client privilege. Doing so would violate my duty as a lawyer,
5 the importance of which I need not explain to a committee with distinguished lawyers
6 among its members and staff.
7 But, in fact, there is no need to reveal privileged information to establish Dr.
8 Eastman's basis for Fifth Amendment protection. One need only look to the public
9 record to understand why claiming the Fifth Amendment is a necessity forced upon Dr.
10 Eastman.
11 I have detailed on pages 8 and 9 of my letter, which is now a part of the record,
12 examples of statements from committee members and other voices of influence which
13 made clear that Dr. Eastman has a legitimate fear of criminal prosecution.
14 I could offer many additional examples beyond those in my letter, but out of
15 respect for this committee's time, I will limit myself to two further examples beyond what
16 I've already put in the letter.
17 The first one: According to news reports, on December 1st a United States
18 district judge, who herself has a background in Federal prosecution, stated during the
19 criminal sentencing of a defendant charged with committing crimes on January 6th that
20 the President, former President Trump, and others who spoke at the rally on the Ellipse
21 that day, quote, "bear greater responsibility and should be held accountable," unquote.
22 This from a judge in the very courthouse where over 600 people were criminally charged
23 in connection with January 6th.
24 My second example, second and final example, is there is an active bar complaint
25 against Dr. Eastman in California bearing on the exact subject matter of this deposition.
1 The bar complaint alleges that Dr. Eastman may have assisted former President Donald
2 Trump in criminal conduct in connection with the 2020 election and January 6th.
3 In other words, there is currently pending today against Dr. Eastman formal legal
4 process specifically alleging criminal activity in connection with the very event described
5 in the cover letter to this committee's subpoena.
6 I submit that based on these facts, Dr. Eastman has a clear case, as clear a case for
7 Fifth Amendment protection as this committee -- or indeed any committee -- is ever likely
8 to encounter.
9 In closing, I wish to emphasis that Dr. Eastman's purpose here is simply to do his
10 duty as a citizen. Dr. Eastman is a distinguished lawyer and scholar of the law. He
11 recognizes his legitimate responsibilities to the United States Congress.
12 The law is clear that invocation of the Fifth Amendment must, if Congress
13 requested, be offered on a question-by-question basis. This committee has made such a
14 request and Dr. Eastman has come here today from far out of town, at his own expense,
15 to comply.
16 And with that, the committee may inquire. Thank you.
17 Mr. Wood. Great. Thank you, Mr. Burnham, for your statement. Both your
18 statement, which you've just provided to the committee, as well as your letter of
19 December 1st, are in the record.
20 And I would note for the record, I believe two members of the committee have
21 joined us, Vice Chair Cheney and Mr. Raskin. The way it's set right now, unfortunately,
22 we can't see both of them, but we will try to get it switched to grid view so that we can
23 keep track of who's joining.
24 I am going to just very quickly, in order to save time, go over a little bit of the
25 witness' professional background.
1 EXAMINATION
2 BY MR. WOOD:
3 Q Dr. Eastman, you are a lawyer, correct?
4 A Correct.
5 Q And are you a graduate of the University of Chicago Law School?
6 A Yes.
7 Q And I know of your very distinguished clerkships. Can you tell us who you
8 clerked for after law school?
9 A Judge Michael Luttig and Justice Clarence Thomas -- like you, John.
10 Q Yes. And then did you practice at a law firm following your clerkships?
11 A I did, at Kirkland & Ellis.
12 Q For how long?
13 A Two years.
14 Q And following that --
15 A Not including time as summer associate.
16 Q I understand. And what did you do after leaving Kirkland & Ellis?
17 A I went into teaching and founded a public interest law firm called the Center
18 for Constitutional Jurisprudence at the Claremont Institute.
19 Q And do I understand that you both have taught in an academic setting and
20 also represented clients as well?
21 A That's correct.
22 Q If nobody has any questions about the background of the witness, I'll just
23 start getting into the more substantive questions.
24 Dr. Eastman, in an interview with Larry Lessig and Matt Seligman on the "Another
25 Way" podcast, September 27th, 2021, you were asked about the memoranda that you
1 wrote regarding the role of the Vice President in counting the electoral college votes on
2 January 6th, and you said, quote, "Although I did have a client in this, the client, the
3 President, the former President of the United States, has authorized me to talk about
4 these things. I want to make that clear upfront," close quote.
5 Did President Trump authorize you to talk publicly about the memoranda that you
6 wrote?
7 Mr. Burnham. I beg the committee's indulgence.
8 The Witness. On the advice of counsel, I hereby assert my Fifth Amendment
9 right against being compelled to be a witness against myself. And with the committee's
10 permission, I will invoke this right as necessary in response to further questions by simply
11 stating "The Fifth."
12 BY MR. WOOD:
13 Q So is it your position that you can discuss those memoranda in public
14 settings, but will not discuss those memoranda with the committee pursuant to a
15 subpoena?
16 A Fifth.
17 Q On May 5th, 2021, in an interview with -- of the "Peter Boyle Show," you
18 said, "I met with the President and the Vice President on January 4th in the Oval Office
19 and the President had been advised, based on law review articles that were done after
20 the 2000 election, that, in fact, maybe the Vice President had unilateral authority to
21 determine the validity of contested electoral votes."
22 You said later in the interview that, quote, "I would normally not talk about a
23 private conversation I had with a client, but I have express authorization from my client,
24 the President of the United States, at that time to describe what occurred, to truthfully
25 describe what occurred in that conversation," close quote.
1 Did President Trump authorize you to discuss publicly your January 4th, 2021,
2 conversation with him?
3 A Fifth.[/i][/b]
4 Q So is it your position that you can discuss in the media direct conversations
5 you had with the President of the United States, but you will not discuss those same
6 conversations with this committee?
7 A Fifth.
8 Mr. Burnham. And, committee's indulgence, just to be clear, I advised my client
9 not only to take the Fifth, but we're not in a position to go into the basis of the Fifth
10 without defeating the position itself, which is likely to be answers to -- similar answers
11 will be offered to questions such as the one just asked, if that helps.
12 BY MR. WOOD:
13 Q Dr. Eastman, you've not produced any documents in response to the
14 subpoena, which is in exhibit 1. Why have you not produced any documents to the
15 committee?
16 A Fifth.
17 Q Just so I understand, is it your position that the act of producing documents,
18 as opposed to the content of the documents themselves, could tend to incriminate you?
19 A Fifth.
20 Q Dr. Eastman, did you use a Chapman University email account for any
21 communications related to the 2020 election?
22 A Fifth.
23 Q Dr. Eastman, did you use a Gmail account for any communications related to
24 the 2020 election?
25 A Fifth.
1 Q Dr. Eastman, did you use any other email account for communication related
2 to the 2020 election?
3 A Fifth.
4 Q Did you send or receive any text messages related to the 2020 election using
5 your personal cell phone?
6 A Fifth.
7 Q Do you have any documents regarding the 2020 election on your personal
8 computer?
9 A Fifth.
10 Q Do you have any documents regarding the 2020 election on any server?
11 A Fifth.
12 Q Dr. Eastman, were you in Philadelphia in connection with your participation
13 in a panel on federalism and separation of powers at the Federalist Society National
14 Lawyers Conference that took place in November 2020?
15 A Fifth.
16 Q While you were in Philadelphia, did you meet with Corey Lewandowski?
17 A Fifth.
18 Q Dr. Eastman, did you represent President Trump or his campaign in
19 challenging the results of the 2020 election?
20 A Fifth.
21 Q Dr. Eastman, do you have an engagement letter or other document
22 memorializing your relationship with President Trump or his campaign?
23 A Fifth.
24 Q Dr. Eastman, did you receive any legal fees for your work on behalf of
25 President Trump or his campaign?
1 A Fifth.
2 Q During a Georgia State Senate Judiciary Committee hearing dated
3 December 3rd, 2020, Mayor Rudy Giuliani stated that the legislators were provided with
4 copies of a 7-page paper that you authored.
5 Will you produce to the committee this document that was previously shared with
6 Georgia legislators?
7 A Fifth.
8 Q Okay. Dr. Eastman, did you reach out to State legislators after the 2020
9 Presidential election?
10 A Fifth.
11 Q Okay. Just so I understand, we've been trying to save -- allow you to save
12 some time by saying "Fifth," but I just want to make sure that with regard to the question
13 of whether you reached out to State legislators after the 2020 Presidential election,
14 you're invoking your Fifth Amendment right on the grounds that answering the question
15 could potentially incriminate you?
16 Mr. Burnham. That's correct.
17 Mr. Wood. I think I need the witness to say it.
18 The Witness. I'm claiming the Fifth.
19 BY MR. WOOD:
20 Q Dr. Eastman, did you contact any State legislative leadership in Arizona?
21 A Fifth.
22 Q Dr. Eastman, did you contact the office of Arizona House Speaker Rusty
23 Bowers in mid-December?
24 A Fifth.
25 Q Dr. Eastman, are you going to take -- invoke your Fifth Amendment right
1 against self-incrimination with regard to any other questions that I would ask regarding
2 whether you reached out to State legislators regarding the 2020 election?
3 Mr. Burnham. If I may, Dr. Eastman will probably assert the Fifth in response to
4 that question, but from my perspective as counsel the answer is yes.
5 Mr. Wood. Okay. And Ms. Lofgren, I believe, has joined us. And we're going
6 to need to take just a very short break, and we'll go off the record.
7 [Discussion off the record.]
8 Mr. George. I think we just need to hear from Dr. Eastman the invocation of the
9 Fifth that counsel just made.
10 The Witness. Yes. I'm taking advice of counsel and invoking the Fifth.
11 Mr. Wood. Okay. We'll take a 5-minute break and then we'll come back on the
12 record. And I'll just remind you that the camera is still rolling. If you want to talk
13 privately, you can use that room. I think we need to speak amongst each other also.
14 So 5 minutes.
15 [Recess.]
16 Mr. Wood. Okay. We'll go back on the record.
17 I believe Mr. Kinzinger has joined us. So I believe we have Vice Chair Cheney, Mr.
18 Raskin, Ms. Lofgren, and Mr. Kinzinger on.
19 BY MR. WOOD:
20 Q Dr. Eastman, if you could turn your attention to exhibit 7 in your binder,
21 which has a cover memo dated December 14th, 2020. If you turn to the next page, it's a
22 document entitled, "Certificate of the votes of the 2020 electors from Arizona."
23 Dr. Eastman, have you seen that document before?
24 A Fifth.
25 Q Dr. Eastman, did you have any role in drafting that document?
1 A Fifth.
2 Q Dr. Eastman, do you know who drafted that document?
3 A Fifth.
4 Q Dr. Eastman, did you draft any certificates of electoral votes for any other
5 States?
6 A Fifth.
7 Mr. Wood. Okay. I think Mr. Raskin may have a question.
8 Mr. Raskin. Yes. Thank you.
9 I wanted to ask Dr. Eastman whether he's asserting the Fifth just with respect to
10 the actions he took on January 6th and days leading up or whether he is asserting the
11 Fifth with respect to the ideas that he has promoted about the electoral college.
12 Mr. Burnham. I beg the Congressman's pardon. As I mentioned to Mr. Wood a
13 moment ago, I've instructed my client that he should claim the Fifth not only in response
14 to questions about the subject matter of the subpoena, but also as to questions about the
15 basis for the Fifth Amendment, as doing so would defeat the protection of the Fifth
16 Amendment itself.
17 But to help, as best as I can, I suspect that most of the questions asked under the
18 heading of the general subject matters that were just offered would probably result in an
19 invocation.
20 I hope that's helpful.
21 Mr. Raskin. I appreciate that. But I'm not asking with respect to the basis for
22 his invocation of the Fifth. I'm asking for which questions he will answer and which not.
23 Will he answer questions with respect to the substantive content of his ideas
24 about the Vice President and the electoral college?
25 Mr. Burnham. I've advised him not to answer such questions on Fifth
1 Amendment grounds.
2 Mr. Raskin. Well, then, if he's going to assert it, would he assert it so I can hear
3 that?
4 Mr. Burnham. Certainly.
5 The Witness. Yes. On advice of counsel, I'm asserting the Fifth.
6 Mr. Raskin. Okay. So to be clear, you're asserting the Fifth Amendment as to
7 whether or not you were answering -- you're asserting the Fifth as to whether or not
8 you're refusing to answer questions just about all of your actions or also about the ideas
9 that you have about the electoral college. Is that right?
10 The Witness. And on advice of counsel, yes, I'm asserting the Fifth.
11 Mr. Raskin. Thank you. I yield back.
12 Mr. Wood. Do any other members have questions?
13 BY MR. WOOD:
14 Q Dr. Eastman, if you could turn your attention to exhibit 10 in your binder,
15 which has a -- the first page is an email from Jeffrey Clark at the Department of Justice
16 dated December 28th, 2020, and then the next several pages are a draft of a letter to
17 Governor Brian Kemp, Speaker of the House David Ralston, President Pro Tem of the
18 Senate Butch Miller, all of the State of Georgia.
19 Have you seen this letter before?
20 A Fifth.
21 Q Dr. Eastman, did you have any role in drafting this letter?
22 A Fifth.
23 Q Dr. Eastman, did you speak to Jeffrey Clark about this letter?
24 A Fifth.
25 Q Dr. Eastman, did you speak with anyone else at the Department of Justice
1 regarding efforts to overturn the results of the 2020 Presidential election?
2 A Fifth.
3 Q Dr. Eastman, regarding the 2020 election, did you speak with Representative
4 Scott Perry?
5 A Fifth.
6 Q Dr. Eastman, with regard to the 2020 election and any efforts to change the
7 outcome of the election, did you speak with Senator Josh Hawley?
8 A Fifth.
9 Q And just so I understand, Dr. Eastman, with regard to whether you had any
10 conversations with Senator Josh Hawley about efforts to overturn the results of the 2020
11 election, you're taking the Fifth Amendment on the grounds that your answer could tend
12 to incriminate you?
13 A Fifth.
14 Q Is that a yes?
15 Mr. Burnham. That was an invocation of the Fifth in response to your question
16 about his basis for taking the Fifth, but I think it could be taken as a yes.
17 Mr. Wood. Okay. Just to be clear, I wasn't trying to ask about the basis for
18 taking the Fifth, I just wanted to clarify that he was taking the Fifth on the grounds that it
19 could incriminate him, not anything about the factual basis or legal basis underlying that.
20 BY MR. WOOD:
21 Q Dr. Eastman, did you clerk with now Senator Ted Cruz.
22 A Yes.
23 Q Dr. Eastman, did you have any communications with Senator Ted Cruz
24 regarding efforts to change the outcome of the 2020 election?
25 A Fifth.

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Part 5 of 9

1 Q Dr. Eastman, did you have any conversations with any other Members of
2 Congress regarding the efforts to overturn the outcome of the 2020 election?
3 A Fifth.
4 Q Dr. Eastman, it's been publicly reported that on or about December 31st,
5 2020, a member of the Trump legal team reached out to you while you were on vacation
6 with your family in Texas.
7 Dr. Eastman, who contacted you from the Trump legal team?
8 A Fifth.
9 Q Did that person ask you to do anything?
10 A Fifth.
11 Q Did the Trump legal team ask you to prepare a memorandum regarding the
12 Vice President's role in the counting of electoral votes at the joint session of Congress on
13 January 6th, 2021?
14 A Fifth.
15 Q Dr. Eastman, did you have a conversation with Senator Mike Lee?
16 A Fifth.
17 Q Dr. Eastman, when asked about a call with Senator Mike Lee by the National
18 Review, you stated to the National Review that you had a conversation with Senator Lee
19 and that, quote, "We were working on broader things," close quote.
20 Dr. Eastman, what were those broader things on which you were working with
21 Senator Mike Lee?
22 A Fifth.
23 Mr. Wood. Okay. I'll pause. Anybody have any questions?
24 Do any members have any questions at this time?
25 Mr. Raskin. I'd like to ask one further question if I could.
1 Mr. Wood. Yes, of course.
2 Mr. Raskin. I'd like to ask Dr. Eastman whether the Vice President has ever
3 exercised unilateral authority to reject electoral college votes coming from a particular
4 State before in American history?
5 The Witness. Fifth.
6 Mr. Raskin. I yield back.
7 BY MR. WOOD:
8 Q Just so I understand, in response to Mr. Raskin's question about a historical
9 fact, not about your conduct, you are invoking your Fifth Amendment right against
10 self-incrimination?
11 A I claim the Fifth.
12 Q Dr. Eastman, on January 2nd, 2021, you appeared on Steve Bannon's "War
13 Room" podcast. I'm going to read you some brief excerpts there.
14 Mr. Bannon said, quote, "Are we to assume that this is going to be a climactic
15 battle?" close quote.
16 Dr. Eastman, you said, quote, "Well, I think a lot of that depends on the courage
17 and the spine of the individuals involved," close quote.
18 Dr. Eastman, what did you understand Mr. Bannon to mean when he said on this
19 podcast asking whether there could be a climactic battle?
20 A Fifth.
21 Q Dr. Eastman, at the time that you engaged in the podcast on January 2nd,
22 2021, with Mr. Bannon, had you heard that there would be protests on January 6th?
23 A Counsel, can you clarify the date of the "War Room" podcast in your last
24 question? I thought you had said January 21st.
25 Q I certainly didn't mean to. If I did, I apologize. The date of the podcast
1 was January 2nd, 2021. So I'm happy to repeat the question.
2 A If you would, please.
3 Q When you were on the January 2nd, 2021, podcast with Steve Bannon called
4 the "War Room," had you heard that there would be protests on January 6th?
5 A Fifth.
6 Q When you were on the podcast with Mr. Bannon, had anyone mentioned to
7 you the possibility that protests on January 6th could turn violent?
8 A Fifth.
9 Q So on that podcast, after you said, "Well, I think a lot of that depends on the
10 courage and the spine of the individuals involved," Mr. Bannon said, quote, "When you
11 just said the courage and the spine, are you talking on the other side of the football?
12 Would you be -- would you be -- that'd be a nice way to say a guy named Mike, Vice
13 President Mike Pence," close quote.
14 Your answer: "Yes."
15 What did you mean when you stated that a lot of that would depend on the
16 courage and spine of Vice President Mike Pence?
17 A Fifth.
18 Q On that same podcast, you also told Mr. Bannon that Mayor Rudy Giuliani
19 was working in the Senate to stop the election certification. What work was Mayor
20 Giuliani doing in the Senate to stop the certification?
21 A Fifth.
22 Q Dr. Eastman, did you speak with any United States Senators about stopping
23 the certification on January 6th?
24 A Fifth.
25 Q Dr. Eastman, will you answer any of my questions regarding your public
1 appearance on Steve Bannon's "War Room" podcast on January 2nd, 2021?
2 A No. Fifth.
3 Mr. Wood. I'll move on.
4 Any members have any questions at this point?
5 Okay.
6 Dr. Eastman, I'm going to ask you some questions about your involvement in a
7 so-called "war room" at the Trump -- I'm sorry. No.
8 First, I'm going to ask you about some meetings at both the Trump Hotel and the
9 Willard, the latter of which meaning the Willard, we understand, had a war room.
10 Did you stay at the Willard Hotel between January 3rd and January 8th, 2021?
11 Mr. Burnham. Can I interpose a point of order?
12 Mr. Wood. Yes.
13 Mr. Burnham. It just occurred to me that on several occasions both the
14 Congressman and yourself have asked questions along the lines of, Dr. Eastman, will you
15 answer any questions about some category of topics, like the podcast, and he said no.
16 Mr. Wood. Uh-huh.
17 Mr. Burnham. I just want to make clear that that's not meant to be a blanket
18 assertion. If any of the members of the committee or yourself want to ask however
19 many questions as you want about any subject, we're happy to answer them.
20 Mr. Wood. Okay. Answer them or invoke privileges?
21 Mr. Burnham. Most likely the latter.
22 Mr. Wood. Okay. I understand that and I appreciate it. I'm also trying to save
23 some time. So if on any of these topics if I ask a question whether or not he'd be willing
24 to answer, I'm asking would he be willing to answer any of them without invoking the
25 Fifth Amendment. If for any of them he is willing, then I would have a much longer list
1 of questions.
2 Mr. Burnham. I understand.
3 Mr. Wood. Okay. So are you comfortable with me asking that type of question
4 or do you prefer that I go through question by question?
5 Mr. Burnham. Perfectly comfortable with that type of question.
6 Mr. Wood. Okay.
7 Mr. Burnham. I just wanted to make clear we weren't trying to do an improper
8 blanket assertion.
9 Mr. Wood. No, I understand.
10 Mr. Burnham. I appreciate the question.
11 Mr. Wood. Yeah. Thank you for that clarification.
12 BY MR. WOOD:
13 Q Dr. Eastman, did you stay at the Willard Hotel between January 3rd and
14 January 8th, 2021?
15 A Fifth.
16 Q With whom did you meet at the Willard Hotel between January 3rd and
17 January 8th, 2021?
18 A Fifth.
19 Q Dr. Eastman, did you participate in a so-called "war room" at the Willard
20 Hotel between January 3rd and January 8th, 2021?
21 A Fifth.
22 Q Dr. Eastman, what was the purpose of this war room?
23 A Fifth.
24 Q Dr. Eastman, while you were at the war room between January 3rd and
25 January 8th, 2021, did you have any conversations with President Donald Trump?
1 A Fifth.
2 Q Just so I understand, Dr. Eastman, with regard to the question of whether
3 you had any conversations with President Donald Trump while at the Willard Hotel war
4 room, you're invoking the Fifth Amendment right against self-incrimination?
5 A Fifth Amendment right not to be compelled to be a witness against myself.
6 Mr. Wood. All right. Before I move on to some of the legal memoranda you
7 wrote, I'll pause to see if anybody has any other questions.
8 Nope?
9 Okay.
10 BY MR. WOOD:
11 Q Dr. Eastman, I'm going to ask you about a couple of legal memoranda that, I
12 believe, don't have your name on them, but have been in public reports attributed to you.
13 If you could look at exhibit 14 in your binder. There is a two-page memorandum.
14 And just for ease of reference, I may refer to this as the two-page memorandum to
15 distinguish it from another memorandum that I believe you wrote later.
16 Dr. Eastman, did you write this two-page memorandum?
17 A Fifth.
18 Q Just so I understand, Dr. Eastman, you're invoking your Fifth Amendment
19 right against self-incrimination with regard to whether you are the author of this legal
20 memorandum?
21 A I'm invoking my Fifth Amendment right not to be compelled to be a witness
22 against myself.
23 Q Dr. Eastman, did anyone ask you to write this memorandum?
24 A Fifth.
25 Q Dr. Eastman, did you discuss this memo with Jenna Ellis?
1 A Fifth.
2 Q Dr. Eastman, to whom did you give this memo?
3 A Fifth.
4 Q Dr. Eastman, the first sentence of the memo starts off by saying, "7 States
5 have transmitted dual slates of electors to the President of the Senate."
6 Is that statement in this memo true?
7 A Fifth.
8 Q Dr. Eastman, at the bottom of page 1 this memorandum states, "So here's
9 the scenario we propose."
10 Dr. Eastman, who is the "we" you were -- who is the "we" that the author of this
11 memo referred to?
12 A Fifth.
13 Q Dr. Eastman, on the next page there are six numbered paragraphs. The
14 one that starts with third reads, quote, "At the end, he announces that because of the
15 ongoing dispute in the 7 States, there are no electors that can be deemed validly
16 appointed in those States," close quote, and so President Trump would have a majority of
17 the electors counted, and, quote, "Pence then gavels President Trump as re-elected,"
18 close quote.
19 Dr. Eastman, did you advise the President of the United States that the Vice
20 President could reject electors from seven States and declare that the President had been
21 re-elected?
22 A Fifth.
23 Q In the paragraph starting with -- paragraph No. 4, it starts with, "Howls, of
24 course" -- you describe that the Vice President could declare that no candidate received a
25 majority of the electoral votes and, therefore, the election would go to the House of
1 Representatives, where Republicans control the majority of State delegations and
2 President Trump is re-elected there as well.
3 Dr. Eastman, did you advise the President of the United States that the Vice
4 President could reject electors from seven States and cause the selection of the President
5 of the United States to be made by the U.S. House of Representatives?
6 A Fifth.
7 Q Dr. Eastman, in the paragraph No. 5 that starts with, "One last piece," the
8 memo states -- and I'm not quoting here, but summarizing -- when the Vice President got
9 to the electoral votes for Arizona and Members of Congress objected, someone in the
10 Senate should filibuster in order to create more time for States to send alternate slates of
11 electors.
12 Dr. Eastman, did you advise the President of the United States that he should have
13 Members of Congress object to the electors from several States in order to create more
14 time for States to send alternate slates of electors?
15 A Fifth.
16 Q And, again, are you invoking your Fifth Amendment right against
17 self-incrimination with regard to that question?
18 A I'm invoking the Fifth Amendment right not to be compelled to be a witness
19 against myself.
20 Q Dr. Eastman, did the President of the United States encourage Members of
21 Congress to object to electors from several States in order to create more time for States
22 to send alternate slates of electors?
23 A Fifth.
24 Q Dr. Eastman, did you discuss with any Members of Congress your plan to
25 have Members of Congress object to State electors in order to prevent certification of the
1 electoral votes on January 6th, 2021?
2 A Fifth.
3 Q If you look at exhibit 16 -- I'm staying on the topic of that two-page
4 memo -- but exhibit 16 is an opinion and commentary under the heading "Viewpoints"
5 published in The Sacramento Bee. It indicates that it was authored by you.
6 In that commentary, you describe your two-page memo, which I believe is the one
7 we just went over, as, quote, "a preliminary and incomplete one, a draft of a more
8 complete memo that outlined all the scenarios that had become topics of discussion
9 following the November 2020 election," close quote.
10 Do you know whether your two-page memo, despite being preliminary and
11 incomplete, was provided to the President of the United States?
12 A Fifth.
13 Q Do you know whether that memo was provided to any advisers of the
14 President of the United States?
15 A Fifth.
16 Q Dr. Eastman, did you write the opinion piece that's in tab 16?
17 A Fifth.
18 Q Okay. Just so I understand, Dr. Eastman, you're invoking your Fifth
19 Amendment right against self-incrimination to question whether this opinion and
20 commentary piece with the byline John C. Eastman, you're invoking the Fifth Amendment
21 right to not answer that question?
22 A On advice of counsel, I'm invoking the Fifth.
23 Mr. Wood. Okay. I'm going to pause there to see if any members have any
24 questions. And we're still on the first memo, so we haven't yet gotten to the longer
25 version of the memo.
1 Does anybody have any questions about the two-page memo?
2 Mr. Raskin. Yeah, I do have a question about that.
3 In this commentary, Dr. Eastman takes exception to Dean Chemerinsky's
4 statements that he was involved in trying to overthrow the government or stage a coup.
5 Why did you take exception to those statements?
6 The Witness. Fifth.
7 Mr. Wood. Anything else?
8 Mr. Raskin. I'm sorry. Did he assert the Fifth Amendment about that?
9 Mr. Wood. He did.
10 Mr. Raskin. Okay. I just wanted to go back to something that was asked
11 before.
12 Did you -- were you acting as a lawyer for Donald Trump during the events leading
13 up to January 6th?
14 The Witness. Fifth.
15 Mr. Raskin. Are you asserting the Fifth Amendment in your capacity as a lawyer
16 and a citizen or just as a citizen?
17 The Witness. Fifth.
18 Mr. Raskin. Okay. I yield back.
19 Mr. Wood. Any other members have questions?
20 Any other staff have questions?
21 Go ahead.
22 BY MR. GEORGE:
23 Q Along those lines, Mr. Eastman, if you could turn to exhibit No. 5. And this
24 is a filing in the Supreme Court of the United States that is titled, "A Motion of Donald J.
25 Trump, President of the United States, to Intervene in His Personal Capacity as Candidate
1 for Re-Election, Proposed Bill of Complaint in Intervention, and Brief in Support of Motion
2 to Intervene."
3 And you are listed, John C. Eastman, as counsel of record, from One University
4 Drive in Orange, California, with an email address at Chapman University.
5 Are you the person that's listed on that Supreme Court filing at exhibit No. 5?
6 A Fifth.
7 Q Could you please turn to exhibit No. 8? That is another filing in the
8 Supreme Court of the United States that is titled, "Motion for Expedited Consideration,"
9 where, again, John C. Eastman, Esq., is listed as counsel for petitioner, which is Donald J.
10 Trump for President, Inc.
11 Are you the person that's listed there as counsel of record in exhibit No. 8?
12 A On advice of counsel, I'm asserting the Fifth.
13 Q If you could turn to exhibit No. 9. That is a filing in the Supreme Court of
14 the United States that's titled, "Reply to Secretary Boockvar's Response in Opposition to
15 the Motion for Expedited Consideration of the Petition for a Writ of Certiorari."
16 And that is Donald J. Trump for President, Inc. as petitioner, with Kathy Boockvar,
17 Secretary of the Commonwealth of Pennsylvania, as respondent, with John C. Eastman
18 listed as counsel of record for the petitioner.
19 Is that you who is listed on that filing in the United States Supreme Court?
20 A On advice of counsel, I'm asserting the Fifth.
21 Q And just to be clear, are you asserting the Fifth Amendment because a
22 truthful answer might tend to incriminate you --
23 A I'm asserting --
24 Q -- on this question?
25 A I'm asserting the Fifth.
1 BY MR. WOOD:
2 Q Okay. While we're on those documents, tab 9 has a John C. Eastman, and
3 then at the bottom there has a Gmail account. And I'm not going to read the address in
4 case you still use that email account.
5 Do you still have access to the emails in the Gmail account referenced in the
6 bottom of that page?
7 A Fifth.
8 Q And going back to tab 5, similarly, there's a John C. Eastman, counsel of
9 record. At the bottom, there is a Chapman.edu email address.
10 Do you still have access to the emails in the Chapman email account?
11 A Fifth.
12 Q Okay. Going back to exhibit 16, on the fourth page, sort of in the middle of
13 the page, with regard -- and the context is the Vice President's authority to reject
14 electors.
15 The John C. Eastman who wrote this article, whether that's you or not, wrote, "But
16 as The New York Times confirmed through thorough investigation and reporting on this
17 critical issue, I did not advise Pence to exercise such authority."
18 You further wrote, quote, "It would be foolish to exercise it" -- meaning that
19 authority -- "in the absence of certifications of alternate Trump electors from the
20 contested States' legislatures," close quote.
21 Dr. Eastman, do you acknowledge that there were no alternate electors sent from
22 contested States?
23 A Fifth.
24 Q Dr. Eastman, if, in fact, there were no alternate electors from contested
25 States, why did you write in the first sentence of the two-page memo that, quote, "7
1 States have transmitted dual slates of electors to the President of 1 the Senate," close
2 quote?
3 A Fifth.
4 Q Dr. Eastman, the passage that I read to you from The Sacramento Bee found,
5 at tab 16, where it says, "I did not advise Pence to exercise such authority," why did you
6 write the two-page memorandum stating, "Here's the scenario we propose," if, in fact,
7 you were not proposing that scenario?
8 A Fifth.
9 Q Dr. Eastman, did your views change regarding the Vice President's authority
10 after you wrote the two-page memo?
11 A Fifth.
12 Q Dr. Eastman, do you now disagree with the scenario you proposed in the
13 two-page memo?
14 A Fifth.
15 Mr. Wood. Okay. I will pause there before I turn to the longer six-page memo.
16 Do any members have any questions?
17 Staff?
18 Okay.
19 BY MR. WOOD:
20 Q Dr. Eastman, if you turn to tab 15, this is another memorandum, which for
21 ease of reference and to distinguish it from the other memo that we went over, I'll refer
22 to the memo in tab 15 as being the six-page memo.
23 Dr. Eastman, did you write this memo?
24 A Fifth.
25 Q Dr. Eastman, did anyone ask you to write this memo?
1 A Fifth.
2 Q Dr. Eastman, was anyone else involved in writing this memo?
3 A Fifth.
4 Q Okay. Going back to exhibit 16, again, the Sacramento Bee article, you
5 wrote, quote, "Neither version of the memo reflects the advice I gave to then-Vice
6 President Pence, paren, (though, to be precise, the final scenario laid out in the complete
7 memo does), close paren," close quotes.
8 Was this six-page memo, which you say does not reflect the advice you gave to
9 the Vice President, nonetheless given to President Donald Trump?
10 A Fifth.
11 Q Dr. Eastman, was the six-page memo given to any advisers of the President?
12 A Fifth.
13 Q Dr. Eastman, did you write a memo that did not reflect your actual advice?
14 A Fifth.
15 Q Dr. Eastman, did your view regarding the Vice President's role change after
16 you wrote the six-page memo?
17 A Fifth.
18 Q Turning to the memo itself, the memo then, quote, "war games," close
19 quote, several scenarios, including scenarios in which the Vice President rejects ballots
20 from certain States and President Trump is elected.
21 Dr. Eastman, on the bottom of page 4 of your memo, did you advise the President
22 of the United States that if State legislatures in contested States certified the Trump
23 electors, the Vice President could count those electors and, quote, "Trump wins," close
24 quote?
25 A Fifth.
1 Q And, again, just so I understand, you're invoking your Fifth Amendment right
2 against self-incrimination in refusing to answer the question of whether you advised the
3 President of the United States that if State legislatures from contested States certified the
4 Trump electors, the Vice President could count those electors and Trump wins.
5 A I'm invoking my Fifth Amendment, which specifically says in its text not to be
6 a witness -- compelled to be a witness against myself.
7 Q On the bottom of page 4, did you advise the President of the United States
8 that even if the seven States did not send alternate slates of electors, Vice President
9 Pence, nonetheless, could still refuse to count electors from those States and declare that
10 Trump wins?
11 A Fifth.
12 Q And, again, you're invoking your Fifth Amendment right against
13 self-incrimination. Is that correct?
14 A The language of the Fifth Amendment is I shall not be compelled to be a
15 witness against myself, and that's what I'm invoking.
16 Q On page 5 of the memo, did you advise the President of the United States
17 that Vice President Pence could refuse to count electors from seven States because of
18 ongoing election disputes and that, therefore, the U.S. House of Representatives would
19 pick the next President, and that under that scenario Trump wins?
20 A Fifth.
21 Q On page 5, did you advise the President of the United States that Vice
22 President Pence could adjourn the joint session of Congress and allow State legislatures
23 to convene and certify alternate slates of electors, allowing President Trump to be
24 re-elected?
25 A Fifth.
1 Q Dr. Eastman, did you discuss this six-page memo with the President of the
2 United States?
3 A Fifth.
4 Mr. Wood. Okay. Next, I'm going to ask you about a January 4th, 2021,
5 meeting with President Trump and the Vice President of the United States, but before I
6 do that, I'm going to pause to see if any members have questions on the six-page memo.
7 Ms. Lofgren. I have a question really related to a prior comment made by our
8 witness.
9 No person shall be held to answer for a capital, or otherwise infamous crime,
10 unless on a presentment or indictment of a grand jury, except in cases arising in the land
11 or naval forces, or in the militia, when in actual service in time of war or public danger;
12 nor shall any person be subject for the same offense to be put twice in jeopardy of life or
13 property; nor shall be compelled in any criminal case to be a witness against himself.
14 Is that in the Fifth Amendment, Dr. Eastman?
15 Mr. Burnham. Madam Congresswoman, I've instructed my client, as I've
16 discussed with your colleagues, I think, before you may have joined, that I've counseled
17 him not to discuss the basis for his invoking the Fifth. I would offer only an --
18 Ms. Lofgren. I'm not asking the basis. I'm just asking, is that what the Fifth
19 Amendment says?
20 Mr. Burnham. I expect he'll invoke his Fifth in response to that question. As far
21 as I could tell, it was quoted correctly, and I would just refer this body to cases such as
22 Watkins from the Supreme Court that hold that the Fifth applies in congressional
23 proceedings, and we're invoking it on that basis today.
24 Ms. Lofgren. I yield back.
25 Mr. Raskin. Could I just follow up on that for a moment?
1 Counsel invoked the bar proceeding which is taking place against Dr. Eastman in
2 California. Is it the bar proceeding that is troubling Dr. Eastman with respect to
3 answering these questions or is it something else, Dr. Eastman?
4 Mr. Burnham. If I could respond to the question. The bar proceeding is just
5 one of many, many bases that led us to take the -- make the invocation we're making
6 here today.
7 Mr. Raskin. Okay. But, Dr. Eastman, you understand that a bar proceeding is
8 civil in nature, do you not?
9 The Witness. Yes.
10 Mr. Raskin. Okay. So when you're asserting the Fifth Amendment, it is with
11 respect to other potential criminal prosecutions. Is that right?
12 The Witness. Fifth.
13 Mr. Raskin. Okay. I yield back.
14 Mr. Wood. Okay. Do any other members have questions?
15 And I think we've noted the members as they have joined. As you can see, Vice
16 Chair Cheney and Mr. Raskin are still on. Ms. Lofgren was on, but may have left. And I
17 believe Mr. Kinzinger might still be on. Nope, Ms. Lofgren and Mr. Kinzinger are both
18 still on.
19 BY MR. WOOD:
20 Q So, Dr. Eastman, I'm now going to ask you some questions about the
21 January 4th, 2021, meeting with President Donald Trump and others in the Oval Office.
22 Dr. Eastman, did you meet with the President of the United States on January 4th,
23 2021, to provide advice regarding the Vice President's role in counting the electoral votes
24 on January 6th?
25 A Fifth.
1 Q Dr. Eastman, if I could turn your attention to exhibit 117. This is a National
2 Review article dated October 22nd, 2021, by John McCormack. The title is, "John
3 Eastman vs. The Eastman Memo."
4 And the bottom of page 7 says, "A source close to Pence tells National Review that
5 the position of Trump and some of his advisers was initially to pressure Pence to reject
6 outright the count of the electoral college votes in decisive States."
7 Dr. Eastman, did President Trump pressure Vice President Pence to reject outright
8 the electors from contested States?
9 A Fifth.
10 Q And, Dr. Eastman, I want to be clear here. I'm not asking about anything
11 you did. I'm asking whether or not President Donald Trump pressured Vice President
12 Pence to reject outright the electors from contested States?
13 A Fifth.
14 Q That same article on page 9 states, "According to the source close to Pence,
15 quote" -- and now it's quoting a source -- "'In the last 24 hours or so [before January 6th],
16 it became crystal clear finally -- even though the Vice President had been telling them this
17 for three weeks -- it's finally sunk in he wasn't going to do that. So, then their position
18 moved to: Well, would you delay it and send it back [to the State legislatures]?'" close
19 quote.
20 And I'll note there were some brackets in there.
21 Dr. Eastman, did President Donald Trump change his position from pressuring the
22 Vice President to reject electors to instead pressuring Vice President Pence to delay
23 certification and send the election back to State legislatures?
24 A Fifth.
25 Q And again, Dr. Eastman, I'm not asking here about your conduct. I'm asking
1 whether President Donald Trump changed his position from pressuring Vice President
2 Pence to reject electors to instead pressuring Vice President Pence to delay certification
3 and send the election back to State legislatures.
4 A Fifth.
5 Q Dr. Eastman, did your position change from the position in your first memo,
6 what I referred to as the two-page memo, that the Vice President could reject electors, to
7 the position that the Vice President should instead delay certification beyond January 6th
8 to give States more time to send alternate slates of electors?
9 A Fifth.
10 Q Dr. Eastman, regarding your position that the certification of the election
11 should be delayed beyond January 6th, isn't that exactly what the rioters who attacked
12 the Capitol were trying to accomplish on January 6th?
13 A Fifth.
14 Mr. Wood. I'll pause there to see if there are other questions regarding that
15 meeting with the President in the Oval Office.
16 No members?
17 Any staff?
18 Okay.
19 Dr. Eastman, I'm now going to ask you about a meeting that we understand you
20 had with the staff to Vice President Pence the next day, so January 5th, 2021.
21 Dr. Eastman, did you meet with Marc Short, chief of staff for the Vice President,
22 and Greg Jacob, counsel to the Vice President, in the Eisenhower Executive Office Building
23 on January 5th, 2021?
24 The Witness. Fifth.
1
2 [1:57 p.m.]
3 BY MR. WOOD:
4 Q Dr. Eastman, what did you discuss with Vice President Pence's staffers?
5 A Fifth.
6 Q Dr. Eastman, if you look at exhibit 13, there's a Washington Post article
7 dated October 29th, 2021. It says, "Read: Pence aide Greg Jacob's draft opinion article
8 denouncing Trump's outside lawyers."
9 Just to make clear on the record, what this appears to be is The Washington Post
10 reprinting something written by Greg Jacob who previously had been counsel to Vice
11 President Pence.
12 In that piece, Mr. Jacob writes that, quote, "One of the President's key outside
13 lawyers agreed with me the day before the events at the Capitol that not a single
14 member of the Supreme Court would support his position," close quote.
15 Dr. Eastman, when Mr. Jacob refers to one of the President's key outside lawyers,
16 was he referring to you?
17 A Fifth.
18 Q Dr. Eastman, did you, in fact, agree with Mr. Jacob that not a single member
19 of the Supreme Court would support your position?
20 A Fifth.
21 Q And, Dr. Eastman, which position was that that Mr. Jacobs said not a single
22 member of the Supreme Court would support?
23 A Fifth.
24 Q Mr. Jacob then writes that this outside lawyer, quote, "acknowledged that
25 230 years of historical practices were firmly against it, and that no reasonable person
1 would create a rule that invested a single individual with unilateral authority to determine
2 the validity of disputed electoral votes for President of the United States," close quote.
3 Did Mr. Jacob accurately describe what you said to him on January 5th?
4 A Fifth.
5 Q Dr. Eastman, Mr. Jacob then writes that a fallback plan of this lawyer he
6 refers to was that the Vice President could instead stop the electoral vote count and refer
7 it out to the States.
8 Of this fallback plan, Mr. Jacob writes, quote, "That suggestion violated several
9 provisions of the Electoral Count Act, had no historical analog, and would deprive
10 Congress of its historical and statutory role in vote counting decisions," close quote.
11 Dr. Eastman, how do you respond to Mr. Jacob's description of the legal advice
12 you gave the President and Vice President of the United States?
13 A Fifth.
14 Q Dr. Eastman, at the beginning of the meeting on January 5th, 2021, with
15 Marc Short and Greg Jacob, did you, on behalf of the President of the United States, ask
16 that the Vice President reject electors from contested States on January 6th, 2021?
17 A Fifth.
18 Q And just so I understand it, in response to the last question, you're invoking
19 your Fifth Amendment right not to be a witness against yourself?
20 A Yes.
21 Mr. Wood. Okay. Do any members have any questions?
22 Mr. Raskin. I have a question. I'd like to ask Dr. Eastman about the judicial
23 authority going up to January 6th.
24 More than 60 Federal and State courts have rejected every claim of electoral fraud
25 and corruption advanced by the Trump campaign.
1 Did you have any reason then, or do you have any reason today, to believe that
2 there was electoral fraud and corruption in the States that materially affected the
3 outcome of the Presidential election?
4 Mr. Burnham. If I could have the committee's indulgence.
5 [Discussion off the record.]
6 The Witness. I claim the Fifth.
7 Mr. Raskin. Attorney General Bill Barr famously called Donald Trump's claims of
8 electoral fraud and corruption "bullshit." Do you disagree with that conclusion?
9 The Witness. Fifth.
10 Mr. Raskin. I yield back.
11 Mr. Wood. Do any other members have questions? Okay.
12 Dr. Eastman, I've asked you a series of questions about the January 5th meeting
13 with Greg Jacob and Marc Short.
14 Dr. Eastman, did Greg Jacob on January 6th send you an email summarizing your
15 conversation?
16 The Witness. Fifth.
17 Mr. Wood. Dr. Eastman, would you provide to the select committee the email
18 that Greg Jacob sent you on January 6th summarizing your January 5th conversation?
19 Mr. Burnham. I beg your pardon. Could you repeat the last question?
20 Mr. Wood. Yes.
21 BY MR. WOOD:
22 Q I was asking Dr. Eastman, would he provide to the select committee the
23 January 6th email from Greg Jacob to Dr. Eastman that summarized their January 5th
24 conversation?
25 A Fifth.
1 Q And is it your position that the mere act of producing such email could tend
2 to incriminate you?
3 A On advice of counsel, I invoke the Fifth.
4 Q Okay. I'm now going to ask you some questions about the January 6th,
5 2021, speech at the so-called "Stop the Steal" rally.
6 Dr. Eastman, did you speak at the White House Ellipse before a large crowd on
7 January 6th, 2021?
8 A Fifth.
9 Q Okay. Dr. Eastman, if I could turn your attention to tab 12. This is a
10 transcript of speeches given at the Ellipse on January 6th, 2021.
11 At the bottom of page 1, Mayor Rudy Giuliani -- I recognize this is Mayor Giuliani,
12 not you -- but Mayor Giuliani says, "Last night one of the experts that has examined these
13 crooked Dominion machines has absolutely what he believes is conclusive proof that in
14 the last 10 percent, 15 percent of the vote counted, the votes were deliberately changed.
15 By the same algorithm that was used in cheating President Trump and Vice President
16 Pence. Same algorithm, same system, same thing was done with the same machines."
17 Dr. Eastman, do you have any evidence to support Mayor Giuliani's allegations
18 that the Dominion voting machine algorithm switched votes from President Trump to
19 Vice President Biden?
20 A Fifth.
21 Q Dr. Eastman, in the middle of the second page of that transcript -- and now
22 it's quoting you -- it says, "We know there was fraud, traditional fraud that occurred.
23 We know that dead people voted. But we now know, because we caught it live last time
24 in real time, how the machines contributed to that fraud," close quote.
25 Dr. Eastman, what evidence do you have to support your statement that there
1 was traditional fraud?
2 A Fifth.
3 Q Dr. Eastman, what evidence do you have that dead people voted?
4 A Fifth.
5 Q Dr. Eastman, are you aware that the secretary of state of Georgia conducted
6 a review of this allegation and found that only four votes were cast in the name of dead
7 people?
8 A Fifth.
9 Q Dr. Eastman, when you said, quote, "how the machines contributed to that
10 fraud," close quote, do you have evidence that Dominion voting machines changed votes
11 from President Donald Trump to Vice President Biden?
12 A Fifth.
13 Q Dr. Eastman, you made that statement in front of tens of thousands of
14 people and many, many television cameras. It's now your position that you will not
15 answer the select committee's question regarding the factual basis for alleging that
16 machines contributed to fraud?
17 A Fifth.
18 Q Dr. Eastman, what factual research did you do regarding the voting machines
19 before telling tens of thousands of angry people that the machines contributed to fraud?
20 A Fifth.
21 Q Okay. Dr. Eastman, at the bottom of page 2 of the transcript you state, and
22 this is a fairly lengthy quote, "And let me, as simply as I can, explain it. You know the old
23 way was to have a bunch of ballots sitting in a box under the floor, and when you needed
24 more, you pulled them out in the dark of night. They put those ballots in a secret folder
25 in the machines, sitting there waiting until they know how many they need. And then
1 the machine, after the close of polls, we now know who's voted, and we know who
2 hasn't. And I can now in that machine match those unvoted ballots with the unvoted
3 voter and put them together in the machine.
4 "And how do we know that happened last night in real time? You saw when it
5 got to 99 percent of the vote total, and then it stopped. The percentage stopped, but
6 the votes didn't stop.
7 "What happened, and you don't see this on FOX or any of the other stations, but
8 the data shows that the denominator, how many ballots remain to be counted, how else
9 do you figure out the percentage that you have, how many remain to be counted, that
10 number started moving up. That means they were unloading the ballots from that
11 secret folder, matching them to the unvoted voter, and, voila, we have enough votes to
12 barely get over the finish line," close quote.
13 Dr. Eastman, what evidence do you have to support your allegation that there
14 were secret folders of ballots that were matched against the names of people who had
15 not voted and then loaded into the machines?
16 A Fifth.
17 Q Dr. Eastman, what factual research did you do regarding this allegation of
18 secret folders of ballots before tens of thousands -- before you made it before tens of
19 thousands of angry people on January 6th?
20 A Fifth.
21 Q On page 3 of the transcript you state, quote, "And all we are demanding of
22 Vice President Pence is this afternoon at 1 o'clock he let the legislators of the State look
23 into this so we get to the bottom of it, and the American people know whether we have
24 control of the direction of our government or not," close quote.
25 Dr. Eastman, did you call upon Vice President Pence to delay certification so State
1 legislators could have more time to send alternate slates of electors?
2 A Fifth.
3 Q Dr. Eastman, what did you think would happen next if State legislators sent
4 alternate slates of electors?
5 A Fifth.
6 Q Dr. Eastman, who asked you to speak at the Ellipse on January 6th?
7 A Fifth.
8 Q Dr. Eastman, were you told in advance that you would be speaking at the
9 Ellipse on January 6th?
10 A Fifth.
11 Q Dr. Eastman, did you have time to prepare your remarks before you were
12 asked to speak on the Ellipse on January 6th?
13 A Fifth.
14 Q Dr. Eastman, do you know whether Senators Hawley and Cruz were invited
15 to speak on the Ellipse on January 6th?
16 A Fifth.
17 Q Dr. Eastman, do you know why Senators Hawley and Cruz did not, in fact,
18 speak on the Ellipse on January 6th?
19 A Fifth.
20 Mr. Wood. Okay. I'm going to pause here and see if any members have
21 questions about the speeches on the Ellipse.
22 No?
23 Staff?
24 Okay.
1
2 BY MR. WOOD:
3 Q Dr. Eastman, I'm going to turn your attention back to exhibit 13, which again
4 is the Washington Post publication of Greg Jacob's draft opinion article dated October
5 29th, 2021.
6 In that piece, Mr. Jacob writes that one of the President's lawyers emailed him
7 during the assault on the Capitol, quote, "The 'siege' is because YOU and your boss did
8 not do what was necessary to allow this to be aired in a public way so that the American
9 people can see for themselves what happened," close quote.
10 Dr. Eastman, are you the person who emailed the Vice President's counsel on
11 January 6th to say that the siege was because of him and his boss -- meaning the Vice
12 President of the United States -- for not doing what was necessary to allow this to be
13 aired in a public way so that the American people can see for themselves what
14 happened?
15 A Fifth.
16 Q Dr. Eastman, do you dispute the accuracy of the quote that Greg Jacob
17 provided to The Washington Post?
18 A Fifth.
19 Q Dr. Eastman, did you email Greg Jacob on January 6th, after the riot had
20 ended, to say that the Vice President still should send the election back to the States
21 rather than certifying it?
22 A Fifth.
23 Mr. Wood. Anybody else have anything?
24 Okay. I'm at the end of my prepared questions. Do any members of the
25 committee have questions on that or anything else for Dr. Eastman?
1 Yes. Mr. Raskin.
2 Mr. Raskin. Thank you.
3 Going back to the short memorandum, after recommending that the electoral
4 votes from six or seven States be returned and rejected by Congress, you wrote in that
5 memorandum, Dr. Eastman, "Pence should do this without asking permission -- either
6 from a vote of the joint session or from the Court." And you concluded, "The fact is that
7 the Constitution assigns this power to the Vice President as the ultimate arbiter."
8 What was your basis for writing that?
9 The Witness. Fifth.
10 Mr. Raskin. You write in the longer 6-page memorandum that, "This election
11 was stolen by a strategic Democrat plan to systematically flout existing election laws for
12 partisan advantage."
13 What is your basis for having written that?
14 The Witness. Fifth.
15 Mr. Raskin. Okay. Your client, President Trump, has said, "The mob takes the
16 Fifth. If you're innocent, why are you taking the Fifth Amendment?"
17 Do you agree with that?
18 The Witness. Fifth.
19 Mr. Raskin. Because I do not.
20 Okay. All right. I yield back.
21 Mr. Wood. Do any other members have questions?
22 Okay. Why don't we take just another 5-minute break, and -- oh. Do you have
23 something to ask.
24 Mr. George. A quick followup. Just a couple questions.
25 In exhibit 14, which is the shorter memorandum that Mr. Raskin was just
1 mentioning, it says at the top that seven States had transmitted dual slates of electors to
2 the President of the Senate.
3 And then in exhibit 15, which is the longer one, on page 2 it says that the Trump
4 electors in the above six States, plus New Mexico -- meaning Georgia, Pennsylvania,
5 Wisconsin, Michigan, Arizona, Nevada, and New Mexico -- met on December 14th to cast
6 their electoral votes and transmitted those votes to the President of the Senate -- in
7 parentheses -- (Vice President Pence).
8 Do you know whether Trump electors met in any of those States to send those
9 elector -- alternate electoral votes?
10 The Witness. Fifth.
11 Mr. Wood. Dr. Eastman, do you believe that the Electoral Count Act is
12 constitutional?
13 The Witness. Fifth.
14 Mr. Wood. Dr. Eastman, do you have any recommendations to the select
15 committee on how it can help prevent the horrific events of January 6th from ever
16 happening again?
17 The Witness. Fifth.
18 Mr. Wood. Okay. Why don't we take a 5-minute break to see if there are any --
19 Ms. Cheney. [Inaudible.]
20 Mr. Wood. Yes. Go ahead, Representative Cheney.
21 Ms. Cheney. I have a quick question.
22 Dr. Eastman, do you believe that the violence on January 6th was justified?
23 The Witness. Fifth.
24 Ms. Cheney. I yield back.
25 Mr. Wood. Okay. We'll take a 5-minute break just to see if there's anything we
1 want to cover before we leave for the day, and we'll go off the record now.
2 [Recess.]
3 Mr. Wood. Okay. We're back, and we'll go back on the record.
4 We have just a couple of topics that my colleague, Dan George, wanted to ask
5 about, and then at least one member had some questions to wrap up.
6 BY MR. GEORGE:
7 Q Dr. Eastman, were you in attendance at a December 21st meeting at the
8 White House with Members of Congress and the President?
9 A Fifth.
10 Q On January 2nd, 2021, it's been reported that you participated in a briefing
11 with members of State legislatures as well as others, including officials from the campaign
12 and the President.
13 Were you a participant to that Zoom meeting or call?
14 A Fifth.
15 Q On that call you reportedly stated, quote, "The duty of the legislature is to fix
16 this, this egregious conduct, and make sure that we're not putting in the White House
17 some guy that didn't get elected."
18 Is that an accurate quote from your statements during this briefing?
19 A Fifth.
20 Q Did you speak with any of the State legislators who participated in that call
21 afterwards?
22 A Fifth.
23 Mr. Wood. Okay. Mr. Raskin has some questions.
24 Mr. Raskin. Thank you.
25 Dr. Eastman, the effort to force Vice President Pence to reject electoral college
1 votes was surrounded, as you know, by a lot of violence.
2 Do you believe that violence was necessary to succeed in the plan of prevailing in
3 the electoral college for Donald Trump?
4 The Witness. Fifth.
5 Mr. Raskin. Did you participate in any conversations about the demonstrations
6 that became a violent riot?
7 The Witness. Fifth.
8 Mr. Raskin. Okay. I yield back.
9 Mr. Wood. Do any other members have questions? Okay.
10 Dr. Eastman, is there anything else that you think that the select committee
11 should know.
12 Mr. Burnham. No, thank you. We're done.
13 Mr. Wood. Okay. So with that, we will recess the deposition subject to the call
14 of the chair. And we'll go off the record now.
15 [Whereupon, at 2:24 p.m., the deposition was concluded.]

1 Certificate of Deponent/1 Interviewee

4 I have read the foregoing ____ pages, which contain the correct transcript of the
5 answers made by me to the questions therein recorded.

9 _____________________________
10 Witness Name

13 _____________________________

[admin]

Part 6 of 9

[EXHIBIT "B": Attached hereto as Exhibit B is a true and accurate copy of certain pages from the interview of Richard Peter Donoghue by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on October 1, 2021.
]

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

Exhibit B

4 SELECT COMMITTEE TO INVESTIGATE THE
5 JANUARY 6TH ATTACK ON THE U.S. CAPITOL,
6 U.S. HOUSE OF REPRESENTATIVES,
7 WASHINGTON, D.C.
12 INTERVIEW OF: RICHARD PETER DONOGHUE
15 Friday, October 1, 2021
17 Washington, D.C.
20 The interview in the above matter was held via Webex, commencing at 10:02 a.m.
21 Present: Representatives Schiff, Lofgren, Murphy, Raskin, and Cheney.

1 Appearances:
5 For the SELECT COMMITTEE TO INVESTIGATE
6 THE JANUARY 6TH ATTACK ON THE U.S. CAPITOL:

8 TIM HEAPHY, CHIEF INVESTIGATIVE COUNSEL
9 MARC HARRIS, SENIOR INVESTIGATIVE COUNSEL
10 SOUMYA DAYANANDA, SENIOR INVESTIGATIVE COUNSEL
11 JOE MAHER, DETAILEE
12 DAN GEORGE, SENIOR INVESTIGATIVE COUNSEL
13 JACOB NELSON, RESEARCHER
14 JENNA HOPKINS, PROFESSIONAL STAFF
15 EVAN MAULDIN, CHIEF CLERK
16 KRISTIN AMERLING, DEPUTY STAFF DIRECTOR
17 SAMANTHA STILES, CHIEF ADMINISTRATIVE OFFICER

19 For the DEPARTMENT OF JUSTICE:
21 KIRA ANTELL, OFFICE OF LEGISLATIVE AFFAIRS
22 BRAD WEINSHEIMER, OFFICE OF THE DEPUTY ATTORNEY GENERAL
2 For RICHARD PETER DONOGHUE:
4 GREG ANDRES
5 CHARLES KLUG
6 KATHERINE SWAN
7 BROOK JACKLING
8 Davis Polk
9 901 15th Street, NW
10 Washington, D.C. 20005

Page 43

1 that they came up in subsequent conversations with the President. And DAG Rosen and
2 I essentially told him, "We looked into that, and it's just not true."
3 Ms. Cheney. Okay. So he was informed?
4 Mr. Donoghue I told the President myself that several times, in several
5 conversations, that these allegations about ballots being smuggled in in a suitcase and
6 run through the machines several times, it was not true, that we had looked at it, we
7 looked at the video, we interviewed the witnesses, and it was not true.
8 Ms. Cheney. And that timeframe of those -- when you informed the President,
9 do you have a sense of the dates when that would've occurred?
10 Mr. Donoghue. I believe it was in the phone call on December 27th. It was also
11 in a meeting in the Oval Office on December 31st. I believe I mentioned that specifically
12 both times.
13 Ms. Cheney. Okay.
14 Okay. And then do we have a date for the briefing that you mentioned with AG
15 Barr, Rosen, Wray? I think this would've been the briefing with CISA about the Antrim
16 County.
17 Mr. Donoghue. I don't remember specifically. It may be on a calendar
18 someplace. But we did that somewhere between December 14th and December 18th.
19 Because --
20 Ms. Cheney. Okay.
21 Mr. Donoghue. -- the email from Ken Cuccinelli on December 18th was pursuant
22 to that briefing and the discussion we had at the briefing.
23 Ms. Cheney. Okay.
24 And then, just to note for the record -- and, Tim, you might have done this,
25 but -- the exhibit 3, that email that we received, the subject line here is "From POTUS." I
59
1 corrupt, that he's asking, essentially, not for you to resolve all of these specific
2 allegations, but just say that the election was corrupt, leave the rest to this political
3 strategy?
4 A Right. So the Department had zero involvement in anyone's political
5 strategy. I think he understood that, right?
6 Q Uh-huh.
7 A So he wanted us to say it was corrupt, you know, for whatever reason. I'll
8 leave that to him or others to explain or determine. But he wanted us to say that it was
9 corrupt.
10 And this was consistent with some things he said at other points about, the
11 Department should publicly say that the election is corrupt or suspect or not reliable. At
12 one point, he mentioned the possibility of having a press conference. We told him we
13 were not going to do that.
14 Q Yeah.
15 A So this was something that was brought up more than once.
16 Q Yeah. So, again, there was a focus on public statements that something
17 was corrupt, as opposed to trying specifically to get to the bottom of the individual
18 allegations.
19 A Right.
20 Q All right. You at this point start talking. Is that right? You
21 directly -- "RPD" I assume, Mr. Donoghue, refers to statements that you now made on the
22 call.
23 A Yes. So I tried to, again, put this in perspective and to try to put it in very
24 clear terms to the President. And I said something to the effect of, "Sir, we've done
25 dozens of investigations, hundreds of interviews. The major allegations are not
1 supported by the evidence developed."
2 We've looked in "Georgia, Pennsylvania, Michigan, Nevada."
3 "We are doing our job. Much of the info you're getting is false." And then I
4 went into, "For instance, this thing from Michigan, this report about 68 percent error
5 rate -- reality is, it was only 0.0063 percent error rate, less than 1 in 15,000."
6 So the President accepted that. He said, "Okay, fine. But what about the
7 others?"
8 And, again, this gets back to the point that there were so many of these
9 allegations that, when you gave him a very direct answer on one of them, he wouldn't
10 fight us on it, but he would move to another allegation.
11 So then I talked a little bit about the Pennsylvania truck driver. This is another
12 allegation that had come up. And this claim was by a truck driver who believed, perhaps
13 honestly, that he had transported an entire tractor-trailer truck full of ballots from New
14 York to Pennsylvania. And this was, again, out there in the public and discussed.
15 And I essentially said, look, we looked at that allegation, we looked "at both ends,"
16 both the people who load the truck and the people who unload the truck, and that that
17 allegation was not supported by the evidence.
18 Again, he said, "Okay." And then he said, "Note, I didn't mention that one.
19 What about the others?"
20 And I said, okay, well, with regard to Georgia, we "looked at the tape, we
21 interviewed the witnesses. There is no suitcase." The President kept fixating on this
22 suitcase that supposedly had fraudulent ballots and that the suitcase was rolled out from
23 under the table. And I said, no, sir, there is no suitcase. You can watch that video over
24 and over; there is no suitcase. There is a wheeled bin where they carry the ballots, and
25 that's just how they move ballots around that facility. There's nothing suspicious about
1 that at all.
2 I told him that there was "no multiple scanning of the ballots." One part of that
3 allegation was that they were taking one ballot and scanning it through three or four or
4 five times to rack up votes presumably for Vice President Biden. I told him that the
5 video did not support that.
6 Then he went off on "double voting," at the top of the next page. He said "dead
7 people" are voting, "Indians are getting paid" to vote. He meant people on Native
8 American reservations. He said, there's "lots of fraud" going on here.
9 Then he said, in Arizona, "I only lost by 9,000 votes. There's clearly more fraud
10 than that" just in Arizona alone.
11 Then he got into these civil cases that were being brought around the country,
12 and he says -- and I think this was in response to DAG Rosen saying, look, the Department
13 has nothing to do with many of these allegations. To the extent you want to challenge
14 the way that the election was conducted in various States -- we understood that there
15 were complaints about the rules being changed by certain State officials after the fact and
16 that it was not done pursuant to State legislatures' power.
17 DAG Rosen tried to say, we, the Department, have nothing to do with that.
18 You're free to bring lawsuits. Your campaign can bring lawsuits. That can be litigated
19 before judges. But we, the Department, don't do that. We do, essentially, criminal
20 investigations and civil-rights matters.
21 And so the President's response was, well, the "judges keep saying, where's the
22 DOJ? Why is the DOJ not filing these cases?" And we both responded, "we," the
23 Department, "are not in a position based on the evidence. We can only act on the
24 actual evidence developed."
25 My next note says, "Told him flat out that much of the information he's getting is
1 false and/or just not supported by the evidence. We look at the allegations but they
2 don't pan out."
3 The President was getting very frustrated. He said, "This is electioneering fraud."
4 And then, again, I have a quote from him: "We have an obligation to tell people
5 that this was an illegal, corrupt election."
6 Then he said, "People tell me Jeff Clark is great" and that "I should put him in.
7 People want me to replace DOJ leadership."
8 At which point I responded, sir, that's fine, you should have the leadership you
9 want, but understand, changing the leadership in the Department won't change anything.
10 The --
11 Q All right. Let me stop you there.
12 A -- Department operates --
13 Q Let me stop you there, Mr. Donoghue. Just two things.
14 So, going back to, "We have an obligation to tell people that this was an illegal,
15 corrupt election," is it fair to say that what he was asking you to do, primarily, was tell
16 people, in some form, a press conference or otherwise, that there was corruption so that
17 some other political strategy could unfold? Was it your impression that the precise ask
18 from the President was more about a public statement than actually the day-to-day
19 investigative work?
20 A I think he probably cared about both of them, but -- I don't want to
21 speculate about what was in his mind, but this is what he said. And I think what you
22 take away from that, logically, is that he wanted the Department to say something
23 publicly.
24 Q Right. So there's pressure on you and Mr. Rosen, to which you push back,
25 to say something publicly, to say something publicly without basis, that there is an illegal,

Page 77

1 But we weren't reporting back to the White House simply because the President
2 mentioned some allegations.
3 Q I see. It wouldn't be consistent with protocol for you to go back to the
4 President every time something that comes up in a discussion is investigated or resolved?
5 A He didn't instruct us to do that, and we weren't going to do it. So.
6 Q Yeah. All right. I want to turn your attention, if you can now to
7 exhibit 10, which we get back into Mr. Clark. The next day, December 28th, you and Mr.
8 Rosen get an email from Mr. Clark, and he is asking for two urgent action items. Tell us
9 about this email, the two actions that he requested, and what your response was.
10 A Right. So DAG Rosen and I spoke, I think, probably several times on the
11 27th and certainly the 28th because that was a Monday. DAG Rosen and Jeff Clark had
12 a long personal and professional relationship. They had known each other for decades.
13 They had worked at the same law firm together. He knew Jeff Clark much better than I
14 did. And, you know, we discussed why Jeff Clark's name was coming up, why it was
15 coming from the President, why it was coming from this Congressman. And Jeff Rosen
16 said: Well, look, I am going to talk to Jeff Clark to find out what's going on here. We
17 got to get to the bottom of this.
18 So I think he had conversations with Jeff Clark earlier on the 28th. They
19 preceded this email, which came fairly late in the day. I did not talk to Jeff Clark before
20 this.
21 So, at 4:40, I received this email from Jeff Clark. I read it. I read the
22 attachment. I had to read it more than once to make sure I really understood what he
23 was proposing. And then I drafted a response. I don't know where Jeff Rosen was at
24 this point, but I went to his office, and he wasn't there. So I didn't get to discuss my
25 response with him before I sent it. But I sent it out. And then I saw him shortly
1 afterward, and he was very upset by Jeff Clark's request. And he said that he had
2 instructed one of his administrative support personnel to get Jeff Clark in his conference
3 room. He was -- he was a little angry. And he said: I want him down here. We
4 need to talk to this guy and find out what's going on.
5 So I think there's some emails that show up.
6 Q Yeah. And I don't want to jump ahead too much, Mr. Donoghue, because I
7 want to get to that conversation. But let's go back to Mr. Clark's email. The first thing
8 he asks of you is: I would like to have your authorization -- "you" meaning you and Mr.
9 Rosen -- to get a classified briefing tomorrow from ODNI [Office of the Director of National Intelligence] led by DNI Ratcliffe on foreign
10 election interference issues. And he mentions activating the IEEPA and 2018 EO powers
11 about the Dominion machine access to the internet through a smart thermostat with a
12 net connection trail leading back to China. He is essentially asking if you can get a
13 briefing about this allegation of Chinese control of Dominion machines through a
14 thermostat. Did that strike you as odd, and what was your reaction to that specific
15 request?
16 A Yes, it struck me as odd. I won't go into details, but we received briefing
17 about what the IC, the intelligence community, knew about the election in advance.
18 This was inconsistent with what we had been told. And I had not heard anything about
19 smart thermostats and internet connections leading back to China and things like that.
20 So the whole thing struck me as very odd.
21 Q Yeah, and that Mr. Clark, the head -- acting head of the Civil Division is asking
22 for a classified briefing with the Director of National Intelligence about this allegation.
23 That also procedurally was odd?
24 A Yes.
25 Q Okay. He also then -- the second ask is this draft letter, which I believe is
1 attached to the email that he sends you and Mr. Rosen. And that letter is a draft letter
2 that you and Mr. Rosen and he, Mr. Clark, would sign to the Governor, the Speaker of the
3 House, and the president pro tempore of the Georgia legislature, essentially asking them
4 to stand down and not certify the results of their election. How did that request strike
5 you, and what did you do about it?
6 A It struck me as very strange and somewhat alarming. And, as I said, I had
7 to read it more than once to make sure I understood what he was proposing here. It
8 was completely inconsistent with the Department's role, generally. And it was
9 inconsistent with what our investigations, to date, had revealed. And so I think I made
10 my views known in the email response I sent to him.
11 Q Yeah, which we'll get to. To be clear, he asks that -- a version of this letter
12 be sent to each relevant State. So was his request to send this letter, drafted for
13 Georgia, not just to Georgia officials but to officials in other States where there had been
14 allegations of election fraud?
15 A Yes. That was my understanding of his proposal.
16 Q All right. He writes that he put it together quickly -- "it" being the
17 letter -- but other messages suggest that it may have been drafted by Ken Klukowski.
18 Do you know Ken Klukowski and what his role may have been within the Department's
19 Civil Division at that time?
20 A No. I don't.
21 Q Okay. Did you know whether or not Mr. Clark was talking to anyone else in
22 the Department about this letter or other election issues?
23 A No. I had no reason to think that.
24 Q All right. So you respond, Mr. Donoghue. We get to your response, which
25 is tab 11. You drafted a pretty comprehensive, specific response reflecting your
1 frustration on the 28th, just about a little over an hour later, at 5:50. I won't ask you to
2 read it to us, but just summarize for us your overall reaction and what's reflected in the
3 email.
4 A I tried to make it clear to him that this is not the Department's role. Again,
5 we don't do quality control for State elections. The States run the elections. We
6 investigate crimes, and we look at civil rights matters. So I tried to make it clear to him
7 that this is simply not our role, to recommend to the States what they do and, secondly,
8 that we have conducted investigations and that the factual claim he was making here was
9 simply not accurate. And so I reminded him that AG Barr had made public statements
10 on this point, less than a week prior, or, I guess, exactly a week prior was the last time he
11 had made some public statements, and that this was just completely unacceptable and
12 not anything that I would ever sign. And I know Jeff Clark -- or Jeff Rosen, rather, had
13 the same response.
14 Q You say in the first paragraph: There's no chance that I would sign this
15 letter or anything remotely like this. You sort of lead with the conclusion. You then, in
16 the first paragraph, challenge his factual assumptions. You said: The investigations
17 that I am aware of relate to suspicions of misconduct that are of such a small scale that it
18 would simply not impact the outcome of the election. AG Barr made that clear to the
19 public only last week, and I am not aware of intervening developments that would change
20 that conclusion.
21 So, setting aside whether it would be appropriate for the Department to tell a
22 State what to do, you're challenging -- is it fair to say you're challenging the factual basis
23 included in his letter to the State official?
24 A That's right. And he himself, Jeff Clark, would have no way of knowing
25 what investigations we had conducted or not because he was not involved in election
1 matters.
2 Q Right. You then, in the second paragraph, Mr. Donoghue, you say: I
3 cannot imagine a scenario in which the Department would recommend that a State
4 would assemble its legislature to determine whether already certified election results
5 should somehow be overridden by legislative action. This would be a grave step for the
6 Department to take and could have tremendous constitutional, political, and social
7 ramifications for the country.
8 Is that your sort of procedural response here that this is just not the Department's
9 role to be quality control for State elections and tell a State legislature what to do?
10 A Yes. That's the point I was making. Yes.
11 Q All right. So, when you and Mr. Rosen get this letter, you compose the
12 response. You indicated previously that Mr. Rosen essentially summons Mr. Clark up to
13 the 5th floor for a face-to-face meeting. Does that meeting then occur?
14 A Yes. He is on the 4th floor. But, yes, in the DAG conference on the 4th
15 floor.
16 Q Okay. So you are personally present, Mr. Donoghue, for that meeting
17 between Clark and Rosen?
18 A Yes. It was the three of us.
19 Q Tell us about the conversation there with Mr. Clark.
20 A Mr. Clark explained that he had been looking at some of these allegations on
21 his own, that he had information, that he had concerns about the reliability of the
22 outcome of the election. He mentioned this smart thermostat thing. It was clear that
23 he had been reading some affidavits that were attached to some of the civil filings in
24 some of the cases that were pending or already dismissed around the country. He had
25 various theories that seemed to be derived from the internet about why the outcome of

Page 123

1 so when you joined at the President's invitation?
2 A That's right.
3 Q All right. And who was inside the meeting when you got there?
4 A When I entered the Oval Office, the President was behind the desk, and it
5 was Pat Cipollone, Pat Philbin, a White House lawyer named Eric Herschmann, Jeff Clark,
6 Jeff Rosen, Steve Engel, and then me.
7 Q Are you sure Mr. Herschmann was a White House lawyer?
8 A He was a lawyer who worked at the White House. I'm not -- initially I
9 thought he worked in the White House Counsel's Office, but I think later someone told
10 me that wasn't the case. I don't remember. His role was never clear to me. I know
11 he was a lawyer from New York. I know he had been a prosecutor at some point. But I
12 don't know what his title exactly was. I'd seen him in some meetings previously, but I
13 didn't know exactly what his role was.
14 Q Okay.
15 All right. And, again, no notes of this meeting. Is that right? You don't take
16 notes -- you were inside the Oval Office and, you indicated before, didn't take notes when
17 you were in discussions inside that office.
18 A No.
19 Q All right. Well, tell us what you remember, then, about the conversation.
20 What was the topic when you arrived, and how did it evolve from there?
21 A The meeting took about another 2-1/2 hours from the time I entered. It
22 was entirely focused on whether there should be a DOJ leadership change. So the
23 election allegations played into this, but they were more background than anything else.
24 And the President was basically trying to make a decision and letting everyone
25 speak their minds. And it was a very blunt, intense conversation that took several
1 hours. And Jeff Clark certainly was advocating for change in leadership that would put
2 him at the top of the Department, and everyone else in the room was advocating against
3 that and talking about what a disaster this would be.
4 Q What were Clark's purported bases for why it was in the President's interest
5 for him to step in? What would he do, how would things change, according to Mr. Clark
6 in the meeting?
7 A He repeatedly said to the President that, if he was put in the seat, he would
8 conduct real investigations that would, in his view, uncover widespread fraud; he would
9 send out the letter that he had drafted; and that this was a last opportunity to sort of set
10 things straight with this defective election, and that he could do it, and he had the
11 intelligence and the will and the desire to pursue these matters in the way that the
12 President thought most appropriate.
13 Q You said everyone else in the room was against this. That's Mr. Cipollone,
14 Mr. Philbin, Mr. Herschmann, you, and Mr. Rosen. What were the arguments that you
15 put forth as to why it would be a bad idea for him to replace Rosen with Clark?
16 A So, at one point early on, the President said something to the effect of,
17 "What do I have to lose? If I do this, what do I have to lose?" And I said,
18 "Mr. President, you have a great deal to lose. Is this really how you want your
19 administration to end? You're going hurt the country, you're going to hurt the
20 Department, you're going to hurt yourself, with people grasping at straws on these
21 desperate theories about election fraud, and is this really in anyone's best interest?"
22 And then other people began chiming in, and that's kind of the way the
23 conversation went. People would talk about the downsides of doing this.
24 And then -- and I said something to the effect of, "You're going to have a huge
25 personnel blowout within hours, because you're going to have all kinds of problems with
1 resignations and other issues, and that's not going to be in anyone's interest."
2 And so the President said, "Well, suppose I do this" -- I was sitting directly in front
3 of the President. Jeff Rosen was to my right; Jeff Clark was to my left. The President
4 said, "Suppose I do this, suppose I replace him," Jeff Rosen, "with him," Jeff Clark, "what
5 do you do?" And I said, "Sir, I would resign immediately. There is no way I'm serving
6 1 minute under this guy," Jeff Clark.
7 And then the President turned to Steve Engel, and he said, "Steve, you wouldn't
8 resign, would you?" And Steve said, "Absolutely I would, Mr. President. You'd leave
9 me no choice."
10 And I said, "And we're not the only ones. You should understand that your
11 entire Department leadership will resign. Every AAG will resign." I didn't tell him
12 about the call or anything, but I made it clear that I knew what they were going to do.
13 And I said, "Mr. President, these aren't bureaucratic leftovers from another
14 administration. You picked them. This is your leadership team. You sent every one
15 of them to the Senate; you got them confirmed. What is that going to say about you,
16 when we all walk out at the same time? And I don't even know what that's going to do
17 to the U.S. attorney community. You could have mass resignations amongst your
18 U.S. attorneys. And then it will trickle down from there; you could have resignations
19 across the Department. And what happens if, within 48 hours, we have hundreds of
20 resignations from your Justice Department because of your actions? What does that say
21 about your leadership?"
22 So we had that part of the conversation. Steve Engel, I remember, made the
23 point that Jeff Clark would be leading what he called a graveyard; there would be no one
24 left. How is he going to do anything if there's no leadership really left to carry out any of
25 these ideas?
1 I made the point that Jeff Clark is not even competent to serve as the Attorney
2 General. He's never been a criminal attorney. He's never conducted a criminal
3 investigation in his life. He's never been in front of a grand jury, much less a trial jury.
4 And he kind of retorted by saying, "Well, I've done a lot of very complicated
5 appeals and civil litigation, environmental litigation, and things like that." And I said,
6 "That's right. You're an environmental lawyer. How about you go back to your office,
7 and we'll call you when there's an oil spill."
8 And so it got very confrontational at points.
9 And Pat Cipollone weighed in at one point, I remember, saying, you know, "That
10 letter that this guy wants to send, that letter is a murder-suicide pact. It's going to
11 damage everyone who touches it. And we should have nothing to do with that letter.
12 I don't ever want to see that letter again." And so we went along those lines.
13 I remember Eric Herschmann chimed in several times, saying that, whatever Jeff
14 Clark wanted to do or thought he could do, there was no reason to think he could really
15 do it.
16 I remember saying at some point that, you know, Jeff wouldn't even know how to
17 find his way to Chris Wray's office, much less march in there and direct the FBI what to
18 do, and that, if you walked into Chris Wray's office, he wouldn't even know who you are.
19 So we had these conversations that went around and around and were very blunt
20 and direct. And that went on for 2-1/2 hours.
21 Q At one point, did the President disparage Mr. Rosen or talk about
22 Mr. Rosen's inaction or unwillingness to do anything about the election?
23 A He did say several times, "You two," pointing at Mr. Rosen and me, "You two
24 haven't done anything. You two don't care. You haven't taken appropriate actions.
25 Everyone tells me I should fire you," and things of that nature.
1 He came back to that at the very end when he decided against a leadership
2 change. And he announced that, and then he came back to that point and he said, "And
3 I know that these two here, they're not going to do anything. They're not going to fix
4 this. But that's the way it is, and I'm going to let it go anyway."
5 Q Did Mr. Cipollone say anything about what he would do with respect to a
6 potential resignation if the President made this change?
7 A He did at some point. I guess that was on the heels of us talking about how
8 there would be resignations in the Department. And I think Pat Cipollone said, "Well,
9 I'm not going to stand for this, I'm not going to be here if this happens either."
10 Q So he said he would resign or not stand for it, would not be here, if the
11 President made this change.
12 A Right.
13 Q Who, Mr. Donoghue, was, sort of, the primary advocate or voice against the
14 leadership change? Was it you personally, or was it sort of a consensus and everyone
15 was sort of equally chiming in? Or just give me a better sense as to, sort of, who was
16 doing most of the talking and was the most strenuous advocate.
17 A It was definitely a consensus. We were all on the same page except for Jeff
18 Clark. But we played different roles.
19 For one thing, Jeff Rosen was in a bad position because he was defending his own
20 job. So anything he said, obviously, was very self-interested. And so he wasn't in the
21 best position to make some of these arguments. And by demeanor, he just has a
22 different demeanor, as does Pat Cipollone, as does Steve Engel. So everyone played
23 their own role. My demeanor is more aggressive and more blunt, and so I played that
24 role.
25 And so everyone was on the same page, advocating for the same thing in very

***

[admin]

Part 7 of 9

["EXHIBIT "C": Attached hereto as Exhibit C is a true and accurate copy of certain pages from the interview of Jeffrey A. Rosen by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on October 13, 2021.

]

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

Exhibit C

SELECT COMMITTEE TO INVESTIGATE THE
JANUARY 6TH ATTACK ON THE U.S. CAPITOL,
U.S. HOUSE OF REPRESENTATIVES,
WASHINGTON, D.C.

INTERVIEW OF: JEFFREY A. ROSEN

Wednesday, October 13, 2021
Washington, D.C.

The interview in the above matter was held in Room 4480, O'Neill House Office Building, commencing at 10:00 a.m.

Present: Representatives Murphy, Luria, and Cheney.

Appearances:

For the SELECT COMMITTEE TO INVESTIGATE
THE JANUARY 6TH ATTACK ON THE U.S. CAPITOL:
TIM HEAPHY, CHIEF INVESTIGATIVE COUNSEL
SOUMYA DAYANANDA, SENIOR INVESTIGATIVE COUNSEL
EVAN MAULDIN, CHIEF CLERK
SAMANTHA STILES, CHIEF ADMINISTRATIVE OFFICER
JOHN WOOD, SENIOR INVESTIGATIVE COUNSEL
DAN GEORGE, SENIOR INVESTIGATIVE COUNSEL
MARC HARRIS, SENIOR INVESTIGATIVE COUNSEL
JOE MAHER, DETAILEE
CASEY LUCIER, INVESTIGATIVE COUNSEL
JENNA HOPKINS, PROFESSIONAL STAFF
DAMON MARKS, RESEARCHER

For the DEPARTMENT OF JUSTICE:
KIRA ANTELL
BRAD WEINSHEIMER
EMILY LOEB

For JEFFREY A. ROSEN:
MEREDITH POHL
REGINALD BROWN
JOHN BYRNES
Kirkland & Ellis LLP
1301 Pennsylvania Avenue, N.W.
Washington, D.C. 20004

Page 105

He also defended his own credentials against some of the attacks that were being made. He argued that the rest of the room were being self-defeating, you know, that, if you don't try it, you don't know what's going to happen, I think was the nature of that. Let me think. This was a very, very long meeting.

Q Yeah.

A And everybody spoke at one time or another. Some people spoke repeatedly. The President interjected some places. There were a few places he spoke at greater length, but a lot of the meeting, he let other people talk.

Q Uh-huh.

A And so I'm trying to remember the different places that Jeff Clark spoke. Because he spoke more than once. And I have more the image, that he would get in a debate, you know, that Rich Donoghue and he would have back-and-forth, and Steve Engel and he would have back-and-forth, and Eric Herschmann and he would have back-and-forth --

Q Yeah.

A -- that that occurred numerous times.

But the overall substance was, different people in the room were saying, this is not legally well-founded, this is not the Department's role, this letter is inappropriate. They challenged Jeff Clark's qualifications to even be making these arguments. They challenged both whether he was qualified to be Attorney General but also is he even qualified to address election fraud, you know, even from his current position, let's say.

Q Uh-huh.

A And so there's this range of issues.

Now, at more than one juncture, a number of people do raise that, if this goes ahead, there are going to be resignations. And I think lots of people raised that. I let other people speak to that, for obvious reasons, that they were speaking in support of me, so it wasn't my place to speak to. Jeff Clark didn't speak to that, but I think almost everybody else did. I remember Pat Cipollone spoke to it, Rich Donoghue.

There was one moment where I remember Steve Engel, and Steve was explaining why he thought it was inappropriate for the Department of Justice to be sending a letter to Georgia and that he had multiple reasons for that. And he commented that, if it went, that there would be resignations. And, again, this is in substance. I don't remember the exact words.

And then Steve Engel, when he was saying that, the President said to him, "Well, Steve, you've been at Justice the whole time. You wouldn't resign." And Steve -- I remember this because it was very vivid -- said, "No, Mr. President. If you replace Jeff Rosen with Jeff Clark and send this letter, I would have no choice. I would have to resign."

And the President looked to me, startled, and said, "Steve, you wouldn't resign." And Engel repeated it. He said, "Mr. President, I would have no choice. I would have to resign."

So that was highly corroborative of what had been said by other folks.

Q Uh-huh.

So the only substantive election-related action that was discussed was the sending of the letter? Was there also a discussion of the special counsel or the press conference or the Supreme Court brief, the litany of possible things that had been considered that you mentioned in your opening statement?

A I don't remember them being discussed in individual -- you know, what about the Supreme Court brief --

Q Yeah.

Page 118

Mr. Flynn, but Sidney Powell, Mike Lindell -- there were media accounts of these going on.

I wasn't present at them, and I didn't have anybody reporting to me what happened at them, but I had a just general awareness from media accounts that that has happened.

Ms. Cheney. And did Pat Cipollone ever tell you what he thought about the President's claims about election fraud?

Mr. Rosen. So the way you've stated that, I'm not sure. Because the way the conversations with him went more was that he was supportive of the Department's position, you know, that "the Department should do what you think is right," "I agree the Department should proceed the way you think best."

I would be surprised if he didn't agree on the Department's posture that there had not been widespread fraud, but I don't know if I can specifically remember that or not. But I have more of this big-picture recollection that he was very supportive of the Department and me. And I maybe -- I'm not sure if I assumed he agreed or he said he agreed.

Ms. Cheney. And then my last question: In the meeting on the 3rd, did he speak out and say, I also will resign?

Mr. Rosen. Yes.

Ms. Cheney. And did Pat Philbin as well?

Mr. Rosen. He may have. I think Pat Cipollone recited that lots of people were going to resign and that it would include him. And while I don't have a specific, you know, again, word-for-word kind of recollection, if he did that the way I remember it, I'm sure he would've included Pat Philbin, because they were very closely aligned.

So Pat Cipollone was one of the people who said that there would be lots of

***

["EXHIBIT "D": Attached hereto as Exhibit D is a true and accurate copy of certain pages from the deposition of Jason Miller by the Select Committee to Investigate the January 6th Attack on the U.S. Capitol on February 3, 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

Exhibit D

4 SELECT COMMITTEE TO INVESTIGATE THE
5 JANUARY 6TH ATTACK ON THE U.S. CAPITOL,
6 U.S. HOUSE OF REPRESENTATIVES,
7 WASHINGTON, D.C.

11 DEPOSITION OF: JASON MILLER

15 Thursday, February 3, 2022

17 Washington, D.C.

20 The deposition in the above matter was held via Webex, commencing at 10:04
21 a.m.

22 Present: Representatives Aguilar, Lofgren, Murphy, Cheney, and Kinzinger.

1 Appearances:

3 For the SELECT COMMITTEE TO INVESTIGATE
4 THE JANUARY 6TH ATTACK ON THE U.S. CAPITOL:

6 KATIE ABRAMS, STAFF ASSOCIATE
7 ALEJANDRA APECECHEA, INVESTIGATIVE COUNSEL
8 MAGGIE EMAMZADEH, STAFF ASSOCIATE
9 SADALLAH A. FARAH, RESEARCHER
10 DANIEL A. GEORGE, SENIOR INVESTIGATIVE COUNSEL
11 TIMOTHY HEAPHY, CHIEF INVESTIGATIVE COUNSEL
12 CASEY LUCIER, INVESTIGATIVE COUNSEL
13 JOE MAHER, DETAILEE, DEPARTMENT OF HOMELAND SECURITY
14 EVAN B. MAULDIN, CHIEF CLERK
15 DENVER LEE RIGGLEMAN, SENIOR TECHNICAL ADVISOR
16 GRANT SAUNDERS, STAFF ASSOCIATE

18 For THE WITNESS:
20 NATHAN MUYSKENS
21 MICHAEL PUSATERI
22 Greenberg Traurig, LLP
23 101 L Street, N.W.
24 Suite 1000
25 Washington, D .C. 20037

Page 90

1 Mr. Heaphy. Yeah.
2 BY MR. HEAPHY:
3 Q Mr. Miller, I appreciate your answers to Mr. George's questions.
4 One other subject matter, did anyone in the meeting raise the campaign's internal
5 polling data and whether it was consistent with the result as called by the networks?
6 A I don't remember any polling data being discussed. I mean, especially 5
7 days or so after an election, I think at that point pre-election data probably would have
8 been relatively worthless. For sure we would have discussed the -- again, the piece of
9 information that we had that were forming are decisionmaking was essentially was that
10 we didn't see where the ballots would ultimately come from to deliver victory.
11 Q Okay. So the campaign didn't -- was not in any way or you in this meeting
12 were not relying in any way on sort of internal exit or other polling data to compare to
13 the results? That wasn't part of the calculus?
14 A I don't remember it being a numbers-heavy conversation.
15 Q Okay. Do you know if anyone in the meeting conveyed to the President,
16 separate from the legal strategy, that crunching of the numbers, evaluation of the actual
17 results made it unlikely that he would win or essentially confirming that he had lost?
18 Again, not the litigation, but: Hey, we've looked at the numbers. We've evaluated the
19 results, and the numbers aren't there. You've lost, or, you know, this is correct.
20 Something along those lines?
21 A That conversation I believe happened the day before with the data team or
22 at least the lead of data team joining by phone.
23 Q Okay. The day before this conversation with the President, there was a
24 discussion about the -- sort of the numbers and what they showed?
25 A Yes.
1 Q Okay. Tell us more about that. Who was present for that conversation?
2 A I don't remember who all was present in person. I was in the Oval Office.
3 And at some point in the conversation Matt Oczkowski, who was the lead data person,
4 was brought on, and I remember he delivered to the President in pretty blunt terms that
5 he was going to lose.
6 Q And that was based, Mr. Miller, on Matt and the data team's assessment of
7 this sort of county-by-county, State-by-State results as reported?
8 A Correct.
9 Q Okay. And what was the President's reaction then when Matt said to him,
10 "Hey, we've looked at the numbers, you're going to lose"?
11 A I think it's safe to say he disagreed with Matt's analysis.
12 Q On what basis? Did he give a basis?
13 A He believed that Matt was not looking at the prospect of legal challenges
14 going our way and that Matt was looking at purely from what those numbers were
15 showing as opposed to broader things to include legality and election integrity issues
16 which, as a data guy, he may not have been monitoring.
17 Q I see. Okay. Who else, Mr. Miller, was present that you recall in the Oval
18 Office for that meeting that was more focused on the numbers and the data?
19 A I believe we had -- I -- to the best of my memory, I think it was Jared
20 Kushner, Bill Stepien, and Justin Clark. But again, that's -- that's the best of my memory.
21 The Oval Office meetings were frequently people coming in and out at various times.
22 And so it is tough to say who was definitely in a meeting or not.
23 Q Yeah. And I appreciate that. I know where you're going on memory here.
24 So you were present, along with Matt. And you mentioned Mr. Kushner, Mr. Stepien,
25 Mr. Clark, Justin Clark, and the President? Those are the folks you remember being  
Page 118

1 A Meaning the post-press-conference coverage was not positive, even by FOX
2 News, for example.
3 Q Why did that upset him?
4 A Because this was supposed to be a press conference where a number of
5 these details were going to be laid out, these irrefutable details, and they weren't.
6 Q Did he know that some of the claims that she was making were not true?
7 A I can't speak to what necessarily he knew or didn't know specific to
8 Ms. Powell's claims.
9 Q Did you ever tell the -- we just spoke about dead people voting and your
10 team's analysis of that. Did you ever communicate your team's findings to the
11 President, that there were some instances that you thought there might be dead people
12 voting but there wasn't widespread -- a proof of widespread dead people voting?
13 A Well, I said that, from what we had been able to determine -- but keep in
14 mind, my team -- when I say "my team," meaning the remnants of the campaign team
15 that were still around -- were relying on evidence that had been pulled by outside people.
16 So it's not as though the inside campaign team was out doing the original research.
17 They were just verifying the results.
18 Q Okay. But did you communicate those findings? Understanding they may
19 be kind of from a limited set here, but did you communicate that to the President?
20 A I don't remember if I specifically talked about the numbers that we had from
21 the limited findings. I just don't remember.
22 Q Do you remember ever telling him -- well, let me back up.
23 In early December, I believe, Attorney General Barr made a public statement that
24 DOJ had looked into issues and he had not seen widespread fraud that would change the
25 outcome of the election.
1 A, is that consistent with your understanding about the allegations of fraud in the
2 election?
3 A My understanding is that I think there are still very valid questions and
4 concerns with the rules that were changed under the guise of COVID, but, specific to
5 election day fraud and irregularities, there were not enough to overturn the election.
6 Q And did you give your opinion on that to the President?
7 A Yes.
8 Q What was his reaction when you told him that?
9 A "You haven't seen or heard" -- I'm paraphrasing, but -- "you haven't seen or
10 heard all the different concerns and questions that have been raised."
11 Q How many times did you have this conversation with the President?
12 A Several. I couldn't put a specific number on it, though.
13 Q But more than one?
14 A Correct.
15 Q Did he say what the types of things he was seeing were?
16 A Sometimes, although I didn't commit to memory what specific examples he
17 was hinging on, for example, as there were so many different issues being raised during
18 that stretch, it was tough to keep track of all of them.
19 Q Did you do anything or have your team do anything to look into any of the
20 allegations he was raising?
21 A Again, by that point, most of the investigative-type work would've been
22 done by Rudy and his legal team as opposed to anyone in-house, or if there was
23 quasi-still-in-house.
24 Q All right.
25 So Mr. Kerik has publicly stated through his attorney that, as investigator for