Crime-fraud exception permits release of 8 law prof emails; some indicate Trump certified false court claims, judge rules

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A federal judge in California has ruled that the crime-fraud exception allows disclosure of eight otherwise-privileged emails to the House committee investigating the Jan. 6, 2021, U.S. Capitol riot.

U.S. District Judge David O. Carter of the Central District of California ruled Wednesday that four of the disputed emails should be disclosed because they indicate that former President Donald Trump knew that he was certifying false vote-fraud numbers to a court in Georgia.

Four other emails should be disclosed because Trump lawyers suggested that the primary goal of litigation in battleground states was to delay or disrupt the Jan. 6, 2021, vote to certify the 2020 election results, Carter said.

The emails at issue were received or sent by former Chapman University law professor John Eastman, a Trump supporter who had told then-Vice President Mike Pence in a legal memo that he could refuse to certify the election results as the “ultimate arbiter” of the vote count.

The crime-fraud exception allows disclosure of emails that are otherwise protected from disclosure because they contain attorney work-product or confidential attorney-client communications regarding legal advice.

The crime-fraud exception applies when a client consults an attorney for advice that will serve in the commission of a crime, and the communications are sufficiently related to and made in furtherance of the crime.

Carter said the eight emails satisfied the test.

One of the emails shows that Trump was aware of false numbers provided to a Georgia court, Carter said.

In that litigation, Trump had signed a verification in December 2020 claiming that Fulton County, Georgia, improperly counted the votes of 10,315 deceased people, 2,560 felons and 2,423 unregistered voters.

Eastman said in a December 2020 email that Trump was since made aware that some of the allegations and proffered evidence were inaccurate. For Trump to sign a new verification “would not be accurate,” Eastman said.

Trump and his lawyers nonetheless filed the complaint with inaccurate numbers. And Trump also signed a new verification swearing under oath that the numbers were true and correct or thought to be true and correct to the best of his knowledge and belief.

“The emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public,” Carter wrote. “The court finds that these emails are sufficiently related to and in furtherance of a conspiracy to defraud the United States.”

Carter also found evidence of a crime in four emails showing that Trump “filed certain lawsuits not to obtain legal relief but to disrupt or delay the Jan. 6 congressional proceedings through the courts.”

In one of the emails, for example, Trump’s lawyers wrote that “merely having this case pending in the Supreme Court, not ruled on, might be enough to delay consideration of Georgia.”

Carter is the judge who previously ruled that it was “more likely than not” that Eastman “dishonestly conspired” with Trump to delay the certification vote. He had ordered the release of 159 out of 599 disputed documents in June.

The Jan. 6 committee, however, sought the release of 562 additional documents. In the new opinion, Carter allowed the release of 33 more documents, including the eight documents released under the crime-fraud exception.

Carter said the documents should be released by to the House committee by 2 p.m. Pacific Time on Oct. 28.

Hat tip to Politico, which had coverage of Carter’s order.

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