Judge questions Eastman's work for Trump amid House committee's allegation

A federal judge on Tuesday questioned John Eastman's work on behalf of former President Trump surrounding the 2020 election following the House Jan. 6 select committee's allegation that the lawyer helped his client break the law in an attempt to overturn the election results.

During a three-hour virtual court hearing, U.S. District Judge David Carter gave little indication about how he might decide Eastman's lawsuit to block the committee's subpoena for his private communications.

The judge did, however, probe both parties on their various legal arguments about whether those records are protected by attorney-client privilege.

Carter, who was appointed by former President Clinton, followed up on the committee's explosive allegation last week and whether there was enough evidence to show that Eastman's conduct forfeited the privilege.

"If a client or attorney believes that a law is unconstitutional, does that excuse a violation of that law?" Carter asked, referring to communications indicating that Eastman lobbied for former Vice President Mike Pence to conduct a questionable procedural maneuver to obstruct Congress's certification of the Electoral College votes.

Eastman's attorney Charles Burnham responded that it depends on the circumstances and argued that his client was advocating the position that the Electoral Count Act of 1887, which governs Congress's role in certifying presidential election results, was unconstitutional and that defying it could have laid the groundwork for a legal challenge.

"In those specific circumstances, that was the position Dr. Eastman advocated, and your honor does not have to agree with it or disagree with it. That's not before your honor today," Burnham said.

In court filings submitted last week, the Jan. 6 select committee made its first allegation against Trump of criminal wrongdoing, saying that he and Eastman had conspired to violate two federal laws in their effort to overturn the election results and prevent President Biden from taking office.

The panel asked Carter to review the subpoenaed communications himself, privately, in order to assess whether they fall under an exception to the attorney-client privilege concerning criminal or fraudulent conduct.

During the hearing on Tuesday, Douglas Letter, the House's general counsel, pushed back on the idea that Eastman's efforts to overturn the election could be considered as legitimate legal work.

"We don't think that there is any way that a legal scholar with Dr. Eastman's abilities could possibly think that it was consistent with the Constitution for the vice president to overturn the electoral count," Letter said. "Let's suppose, for example, the vice president was a candidate for president - that the Vice President could say, 'I just declared myself the winner.' There is no possible way that that could be constitutional."

It's unclear how Carter might rule in the case or how much of a factor the crime-fraud exception will play in such a ruling.

The committee has argued several reasons Eastman failed to show that his communications are protected by the attorney-client privilege, including that the nature of his advice to Trump appeared to be largely political in nature as opposed to legal.

The committee's allegations have no direct bearing on whether Trump will face criminal charges, and the threshold they must overcome to successfully challenge Eastman's attorney-client privilege claims is much lower than the burden of proof in a criminal prosecution.