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
_______________