Thompson & Cheney Statement on Filing in Eastman Lawsuit

Washington—Chairman Bennie G. Thompson (D-MS) and Vice Chair Liz Cheney (R-WY) today issued the following statement regarding the Select Committee’s brief filed this evening in John Eastman’s lawsuit:

“The Select Committee’s brief refutes on numerous grounds the privilege claims Dr. Eastman has made to try to keep hidden records critical to our investigation. The Select Committee is not conducting a criminal investigation. But, as the judge noted at a previous hearing, Dr. Eastman’s privilege claims raise the question whether the crime-fraud exception to the attorney-client privilege applies in this situation. We believe evidence in our possession justifies review of these documents under this exception in camera. The facts we’ve gathered strongly suggest that Dr. Eastman’s emails may show that he helped Donald Trump advance a corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power.

“We look forward to the Court’s review of our filing as the Select Committee’s investigation moves forward.”

Background on the crime-fraud exception to the attorney-client privilege:

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).  This exception to the privilege applies even when the crime or fraud is ultimately unsuccessful.  In re Grand Jury Proceedings (Corporation), 87 F.3d 377, 382 (9th Cir. 1996). 

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).

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