Somewhere at Mar-a-Lago on Wednesday, perhaps in a gilded ballroom or conference room, Donald Trump likely experienced one of the more rotten days he’s had in a while.
Last week, he was ordered to sit for a deposition in author E. Jean Carroll’s defamation lawsuit — and according to The New York Times, it’s all happening in Palm Beach. Although a court order may prevent Carroll and her team from discussing what goes down, I expect Carroll’s lawyer (and frequent Trump nemesis) Roberta Kaplan to probe Trump’s various, allegedly defamatory statements about her client — that he doesn’t know Carroll; that her claim he sexually assaulted her in a Manhattan department store dressing room years ago is a lie; that she’s not even his type — as well as his alleged knowledge of their falsity.
What today’s ruling lacks vis-á-vis the volume of materials implicated, it more than makes up for in their significance.
But even if Trump didn’t realize it right away, his day went from bad to awful by late Wednesday afternoon. And that’s because a federal judge in Southern California ruled for the third time that documents that former Trump lawyer John Eastman sought to withhold from the House Jan. 6 committee on the basis of attorney-client privilege must instead be handed over to congressional investigators.
Today’s opinion by U.S. District Court Judge David O. Carter does not require Eastman to disclose all that many documents. Rather, of the more than 560 documents over which Eastman claimed privilege, he has been ordered to produce 33 to the committee — and only eight of those documents are attorney-client communications that the court nonetheless has ordered Eastman to turn over because they satisfy the “crime-fraud exception,” or put another way, they are evidence of criminal conduct by Trump.
But what today’s ruling lacks vis-á-vis the volume of materials implicated, it more than makes up for in their significance. Specifically, Judge Carter found that four communications Eastman sought to withhold are evidence of Trump’s attempt to obstruct the Jan. 6 certification while four more reflect his participation in a conspiracy to defraud the United States. And while Carter has divulged only snippets of these eight communications, what he has revealed about their content is both factually stunning and legally significant for both the Justice Department’s ongoing criminal investigation and that of Fani Willis, the district attorney of Fulton County, Georgia.
Note that in examining the materials at issue, it wasn’t enough for Judge Carter that Eastman’s emails be “related to disrupting” the Jan. 6 certification process. Instead, what caused him to say that four of the documents were evidence of obstruction is that they suggest “the primary goal” of filing lawsuits related to the election was “to delay or otherwise disrupt” the Jan. 6 vote. Carter wrote:
In one email, for example, President Trump’s attorneys state that ‘[m]erely having this case pending in the Supreme Court, not ruled on, might be enough to delay consideration of Georgia.’ This email, read in context with other documents in this review, make clear that President Trump filed certain lawsuits not to obtain legal relief, but to disrupt or delay the January 6 congressional proceedings through the courts.
And Carter’s description of the other four emails required to be produced under the crime-fraud exception is even more damning. As Trump and his lawyers pressed claims that Fulton County “improperly counted” thousands of votes, including precise numbers of votes cast by deceased people, felons and unregistered voters, Eastman explained in a Dec. 31, 2020, email that Trump was resistant to signing a new verification in federal court with “specific numbers … included” because Trump “has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate.”
Nonetheless, as Carter details, Trump’s lawyers not only filed a federal complaint “with the same inaccurate numbers without rectifying, clarifying or otherwise changing them,” but Trump personally also “signed a verification swearing under oath that the incorporated, inaccurate numbers ‘are true and correct’ or ‘believed to be true and correct’ to the best of his knowledge and belief.”
This is perhaps the clearest written proof that Trump was expressly told, including by his own lawyers, that specific assertions of fraud lacked merit. As such, Carter ruled that Eastman’s Dec. 31, 2020, email and three others must be produced to the Jan. 6 committee because they reflect a conspiracy to defraud both a federal court and the American public, aka the United States. Certainly, we have heard previously — including through the Jan. 6 committee’s own hearings — that Trump was advised by White House lawyers, campaign staff and DOJ leadership that various allegations of election fraud were baseless or demonstrably false. But this is perhaps the clearest written proof that Trump was expressly told, including by his own lawyers, that specific assertions of fraud lacked merit and that he continued to amplify and repeat them anyway, even under oath and before a federal court. That’s the kind of proof that not only should feature prominently in the Jan. 6 committee’s final report, but would be of great interest to at least two law enforcement investigations: those of the Justice Department and the Fulton County District Attorney’s Office. And the Fulton County folks should be especially interested given that in both categories of criminality — obstruction and conspiracy — the examples Judge Carter provided concern Georgia. Something tells me the to-do lists of Willis and lead Jan. 6 federal prosecutor Thomas Windom just got a little longer.
Lisa Rubin is MS NOW's senior legal reporter and a former litigator.
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