Eastman v. Thompson
| Decision Date | 28 March 2022 |
| Docket Number | Case No. 8:22-cv-00099-DOC-DFM |
| Citation | 594 F.Supp.3d 1156 |
| Parties | John C. EASTMAN, Plaintiff, v. Bennie G. THOMPSON, Select Committee to Investigate the January 6 Attack on the US Capitol, and Chapman University, Defendants. |
| Court | U.S. District Court — Central District of California |
Anthony T. Caso, Constitutional Counsel Group, Anaheim, CA, Charles Burnham, Pro Hac Vice, Burnham and Gorokhov, PLLC, Washington, DC, for Plaintiff.
Douglas N. Letter, Todd B. Tatelman, Office of General Counsel US House of Representatives, Washington, DC, Fred M. Plevin, Paul Plevin Sullivan and Connaughton, San Diego, CA, for Defendants.
Plaintiff Dr. John Eastman ("Dr. Eastman"), a former law school dean at Chapman University, is a "political conservative who supported former President [Donald] Trump" and a self-described "activist law professor."1 While he was a professor at Chapman, Dr. Eastman worked with President Trump and his campaign on legal and political strategy regarding the results of the November 3, 2020 election.
This case concerns the House of Representatives Select Committee to Investigate the January 6 Attack on the US Capitol's ("Select Committee") attempt to obtain emails sent or received by Dr. Eastman on his Chapman email account between November 3, 2020 and January 20, 2021. The parties disagree on whether the documents are privileged or if they should be disclosed.
The Court previously ordered the parties to begin with documents from January 4-7, 2021. Dr. Eastman reviewed each document and claimed privilege over some, and the Select Committee objected to a number of his claims. At this point, the parties disagree on whether 111 documents from those dates are privileged. The parties submitted briefing, and the Court held a hearing on the privilege claims on March 8, 2022. The Court then personally reviewed the 111 challenged documents, which were provided by Dr. Eastman.
Dr. Eastman claims that the 2020 presidential election was "one of the most controversial in American history."3 Despite the lack of evidence of election tampering, "a significant portion of the population came to believe the election was tainted by fraud, disregard of state election law, misconduct by election officials and other factors."4
In the months after the election, President Trump and Dr. Eastman helped foster those public beliefs and encouraged state legislators to question the election results. Dr. Eastman testified before and met with "state legislators[ ] to advise them of their constitutional authority ... to direct the ‘manner’ of choosing presidential electors."5 Relying on public interviews with attendees, the Select Committee states that on January 2, 2021, President Trump and Dr. Eastman hosted a briefing urging several hundred state legislators from states won by President Biden to "decertify" electors.6
President Trump also made personal appeals to state officials. On January 2, he called Georgia Secretary of State Brad Raffensperger to discuss allegations of election fraud.7 During the call, President Trump repeatedly claimed it was impossible for him to have lost the popular vote in Georgia,8 and repeatedly mentioned his "current margin [of] only 11,779" votes.9 He explained to Secretary Raffensperger that he did not care about specific fraud numbers as long as he won, "[b]ecause what's the difference between winning the election by two votes and winning it by half a million votes[?]"10 When Secretary Raffensperger pushed back against these requests, the President warned of public anger and threatened criminal consequences.11 The President interspersed the conversation with specific fraud claims—dead people voting, absentee ballot forgeries, trucks ferrying illegal ballots, and machines stuffed with "unvoted" ballots.12 Mr. Raffensperger debunked the allegations "point by point" and explained that "the data you have is wrong;" however, President Trump still told him, "I just want to find 11,780 votes."13
The next day, President Trump attempted to elevate Jeffrey Clark to Acting Attorney General, based on Mr. Clark's statements that he would write a letter to contested states saying that the election may have been stolen and urging them to decertify electors.14 The White House Counsel described Mr. Clark's proposed letter as a "murder-suicide pact" that would "damage everyone who touches it" and commented "we should have nothing to do with that letter."15 President Trump eventually did not promote Mr. Clark after multiple high-ranking members of the Department of Justice threatened mass resignations that would leave the Department a "graveyard."16
In the months following the election, numerous credible sources–from the President's inner circle to agency leadership to statisticians–informed President Trump and Dr. Eastman that there was no evidence of election fraud. One week after the election, the Cybersecurity and Infrastructure Security Agency declared "[t]he November 3rd election [ ] the most secure in American history" and found "no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised."17 An internal Trump Campaign memo concluded in November that fraud claims related to Dominion voting machines were baseless.18 In early December, Attorney General Barr publicly stated there was no evidence of fraud, and on December 27, Deputy Attorney General Donoghue privately told President Trump that after "dozens of investigations, hundreds of interviews," the Department of Justice had concluded that "the major allegations [of election fraud] are not supported by the evidence developed."19 Still, President Trump repeatedly urged that "the Department [of Justice] should publicly say that the election is corrupt or suspect or not reliable."20
By early January, more than sixty court cases alleging fraud had been dismissed for lack of evidence or lack of standing.21
In response to alleged fraud, Dr. Eastman researched and planned a strategy for President Trump to win the election. Just after Christmas, Dr. Eastman wrote a now-public two-page memo proposing that Vice President Pence refuse to count certified electoral votes from states contested by the Trump campaign: Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin.22 The memo outlines the two ways in which Dr. Eastman's plan ensures "President Trump is re-elected."23 If Vice President Pence refused to count electoral votes from all seven contested states, President Trump would win 232 votes to 222.24 Alternatively, if Congress claimed that a candidate could not win without reaching 270 votes, Vice President Pence could send the election to the Republican-majority House of Representatives, which would then elect President Trump.25 The memo emphasizes that "[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."26
On January 3, 2021, Dr. Eastman drafted a six-page memo expanding on his plan and analysis,27 which he later disclosed to the media.28 This memo "war gam[ed]" four potential scenarios for January 6, only some of which would lead to President Trump winning re-election.29 Claiming that "[t]he stakes could not be higher," Dr. Eastman concludes his memo stating that his plan is 30
On January 4, President Trump and Dr. Eastman invited Vice President Pence, the Vice President's counsel Greg Jacob, and the Vice President's Chief of Staff Marc Short to the Oval Office to discuss Dr. Eastman's memo.31 Dr. Eastman presented only two courses of action for the Vice President on January 6: to reject electors or delay the count.32 During that meeting, Vice President Pence consistently held that he did not possess the authority to carry out Dr. Eastman's proposal.33
The Vice President's counsel and chief of staff were then directed to meet separately with Dr. Eastman the next day to review materials in support of his plan. Dr. Eastman opened the meeting on January 5 bluntly: "I'm here asking you to reject the electors."34 Vice President's counsel Greg Jacob and Dr. Eastman spent the majority of the meeting in a Socratic debate on the merits of the memo's legal arguments.35 Over the course of their discussion, Dr. Eastman's focus pivoted from requesting Vice President Pence reject the electors to asking him to delay the count, which he presented as more "palatable."36 Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice,37 would likely be unanimously rejected by the Supreme Court,38 and violated the Electoral Count Act on four separate grounds.39
Despite receiving pushback, President Trump and Dr. Eastman continued to urge Vice President Pence to carry out the plan. At 1:00 am on January 6, President Trump tweeted, "If Vice President @Mike_Pence comes through for us, we will win the Presidency ... Mike can send it back!"40 At 8:17...
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