Crime-Fraud Exception and Attorney-Client Privilege: Unveilling the Loopholes in the Jan. 6 Committee's Investigation

Lawyer John Eastman is refusing to turn over and claiming 37,000 pages of emails should be shielded from the Jan. 6 Committee, invoking the attorney-client privilege. However, as discussed in this article, the crime-fraud exception can negate such claims. This piece explores how this exception applies, detailing the legal context surrounding the Jan. 6 events and the application of the crime-fraud exception in such cases.

The Crime-Fraud Exception and Its Significance

In legal terms, the crime-fraud exception to the attorney-client privilege is a significant principle. This exception allows for non-privileged information to be disclosed if the client's communication to their attorney was tailored for criminal activity or fraud. The exception applies in two key scenarios:

A client consults an attorney for advice that serves to further the commission of a crime or fraud. The communications are sufficiently related to and made in furtherance of the crime or fraud.

Notably, the exception's applicability is not dependent on the attorney's awareness of the crime or the success of the scheme. Proving the crime-fraud exception requires a preponderance of evidence, meaning the evidence must be more likely true than not.

The Jan. 6 Committee's Investigation of John Eastman and President Trump

The Jan. 6 Committee has been diligently investigating the events leading up to and during the January 6, 2021, insurrection. Key individuals such as John Eastman and Donald Trump have been central to the investigation.

In John Eastman's case, the District Court extensively discussed the issue, elaborating on the crime-fraud exception. Key excerpts from the ruling highlight the relevance and application of this principle:

The crime-fraud exception applies when 1 a “client consults an attorney for advice that will serve [them] in the commission of a fraud or crime” and 2 the communications are “sufficiently related to” and were made “in furtherance of” the crime. It is irrelevant whether the attorney was aware of the illegal purpose or whether the scheme was ultimately successful.

President Trump's Actions on January 6, 2021

President Trump's actions on January 6, 2021, were unequivocally aimed at obstructing an official proceeding. Here’s a detailed account of the actions taken:

Consultation with Eastman: On January 4, President Trump and Dr. Eastman met with Vice President Pence, his counsel, and the Vice President’s staff in the Oval Office. They discussed the plan to reject electors or delay the count. Orientation was a critical point here, as Eastman presented this as a President-approved plan. Intensified Pressure: After Vice President Pence remained unswayed, President Trump contacted Dr. Eastman again on January 5 to review the plan more in-depth with Pence. Eastman's presentation to Pence’s counsel, interpreted as working on behalf of the President, furthered the obstructionist intent. Direct Communication: In the final hours before the Joint Session, President Trump made several last-minute appeals to Vice President Pence, urging him to disrupt the electoral count. His tweets and phone calls reflected his desperation to influence the outcome. Public Call to Action: On the morning of January 6, President Trump rallied a crowd on the Ellipse, explicitly calling for Pence to take action. His speech emphasized the urgency and repetition of his demands, laying bare his true intentions.

These actions more than likely constitute attempts to obstruct an official proceeding, aligning with the crime-fraud exception's requirements.

President Trump's Knowledge and Intentions

President Trump's mindset and knowledge are crucial in applying the crime-fraud exception. The evidence suggests that both Trump and Eastman justified the plan with false claims of election fraud. However, the preponderance of evidence indicates that Trump likely knew the plan had no factual basis:

False Justifications: Despite Eastman's references to alleged fraud, public statements and private communications from key officials repeatedly emphasized the absence of evidence supporting fraud. Electoral Dismissals: Over 60 courts dismissed cases alleging fraud, highlighting the lack of merit in these claims. Explicit Demands: Trump’s relentless pleas to Secretary Raffensperger, the Georgia Secretary of State, underscored his desire to win the election, not to investigate fraud.

Furthermore, the legality of the plan was blatant. Disregarding historical and constitutional principles, Trump sought to subvert the peaceful transition of power. This bold act violated fundamental democratic norms and violated the law.

Conclusion

The District Court's ruling underscores the application of the crime-fraud exception in this case. The evidence presented by the Jan. 6 Committee is compelling, indicating that both President Trump and Dr. Eastman engaged in illegal actions aimed at obstructing the Joint Session of Congress. As such, the attorney-client privilege cannot protect these communications under the crime-fraud exception.

By understanding the crime-fraud exception, this article highlights the crucial legal principles governing the Jan. 6 events and how they implicate key figures in the insurrection. The underlying message is clear: those who pursue criminal action cannot rely on attorney-client privilege to protect their communications.