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'Completely damning' video of Trump ally emerges
04:05 - Source: CNN
CNN  — 

A federal judge said Wednesday that he will review emails about the 2020 presidential election between right-wing lawyer John Eastman, former President Donald Trump and others before determining if they are protected by attorney-client privilege or should be turned over to the House select committee investigating January 6, 2021.

The judge, David O. Carter of the Central District of California, did not weigh in at this time on the House committee’s accusation that Eastman and Trump engaged in a “criminal conspiracy” to overturn the 2020 vote.

For now, Carter said he would look at the 111 documents in dispute from Eastman’s Chapman University email account between January 4 and 7, 2021. Until now, those emails had been the subject of litigation but not disclosed – even to the judge.

Carter is positioned now to ultimately decide whether the House panel gets access to the emails – and he could also wade into the meatier questions of the significance of what the committee has found in its investigation so far.

“As the Court has previously noted, the evidence suggests that communications from those days are essential to the Select Committee’s pressing investigation,” the judge wrote on Wednesday.

The decision is a small step forward in the fast-moving lawsuit in which the House panel is seeking access to Eastman’s emails from Chapman University, his former employer, and Eastman is trying to protect his discussions about or with Trump and his presidential campaign.

Eastman, in fighting back against the House panel’s theories, said that if the judge agreed with the committee’s view, “it may be the first formal finding of Presidential criminality by a federal court in United States history.”

Neither he nor Trump is charged with any crime.

Democratic Rep. Bennie Thompson of Mississippi, the chairman of the select committee, told reporters Wednesday that he views the committee’s legal response to Eastman’s effort to block the panel’s access to his emails through attorney-client privilege as a test run for some of their findings so far.

“The judge, as you know, raised the issue of whether Eastman was legitimately or legally hired,” Thompson said. “He raised the question about attorney-client privilege, raising questions about a lot of other things. It was a good thing for us to test out a lot of information that we have gathered as a committee.”

While the committee argued in court that Eastman and Trump may have committed a crime, members were quick to point out after the fact that they are still not conducting a criminal investigation. They maintained that if a crime had been committed it would be up to the Justice Department to investigate.

“I don’t think the purpose of our document was to allege a crime. It is not. That is not the purpose of our committee, to allege a crime. We were responding to the fact that he’s claiming privilege. However, one cannot claim attorney-client privilege, essentially, in the case where they could be involved in criminal activity,” Democratic Rep. Elaine Luria of Virginia, who serves on the panel, said last week.

But while the committee is cautious about maintaining distance between its work and any potential criminal probe, other members made it clear that the growing pool of evidence could compel the Justice Department to take action, potentially even before the committee’s work is done.

“From my perspective as a former prosecutor with the Department of Justice, the department shouldn’t be waiting on our committee for any referral,” said Rep. Adam Schiff, a California Democrat who’s a member of the committee. “If the Justice Department believes there is evidence of crime, involving anyone, including the former President, they should be investigating.”

Why Carter wants to read the emails

In his ruling Wednesday, Carter cited two reasons he should review Eastman’s emails for himself, privately, to decide whether they should stay protected: because it’s not clear if Eastman’s emails included people outside his attorney-client relationship with Trump, and it’s possible Eastman’s discussions about derailing the Electoral College vote weren’t part of a litigation plan.

With the judge looking at those questions, it’s possible that he never wades into deciding whether the emails were part of what the House committee says was a crime being planned.

The House panel has argued that Eastman was acting more as a political adviser, not a lawyer, for Trump in January 2021 and that his emails shouldn’t be protected because they were sent to attorneys and consultants he wasn’t working alongside as a lawyer.

“There is enough evidence to reasonably believe that the emails might reveal that the third parties had no privileged relationship with Dr. Eastman or President Trump,” the judge wrote.

“The Select Committee also suggests that these emails could relate to Dr. Eastman’s non-litigation activities on behalf of President Trump, such as meeting with state legislators about certifying electors. Dr. Eastman’s privilege logs do not indicate what litigation was anticipated; the log entries simply state that emails were made considering ‘possible litigation’ or ‘contemplating litigation,’ ” Carter noted. “This evidence sufficiently supports a reasonable belief that the emails may reveal that they were not created in anticipation of litigation.”

This story has been updated with additional details.