Trump lawyer John Eastman‘s California disciplinary trial resumes Aug. 24 amid a tangle of legal issues including attorney-client privilege and his Fifth Amendment right against self-incrimination, an issue that’s become more acute since his indictment by a Georgia grand jury last week.
Eastman, Trump, and 17 other people were indicted Aug. 14 on racketeering charges relating to a scheme to help Donald Trump prevail in the 2020 presidential election by disrupting the Jan. 6, 2021, counting of the Electoral College votes that would confirm President Joe Biden’s victory.
State Bar Court Judge Yvette D. Roland late Monday issued a minute order, saying she was “willing to make certain changes in this week’s trial schedule in order to accommodate Dr. Eastman’s surrender in Fulton County,” scheduled for Wednesday, Aug. 23. Tuesday and Wednesday trial dates were vacated with testimony to resume Aug. 24 and 25. The Sept. 5-8 and 12-15 trial dates remain calendared.
Roland has yet to rule on Eastman’s request to put the proceedings on hold. The trial, with Eastman’s law license on the line, has been on hiatus since June.
The conservative legal scholar, who on Monday agreed to post a $100,000 bond in the Georgia criminal case, on Aug. 4 asked the California State Bar Court to indefinitely postpone his disciplinary trial pending resolution of the federal election interference probe of the former president, or grant at least a three-month stay, allowing the defense to assess the gravity of that case. Eastman is widely believed to be the unnamed co-conspirator 2 in Special Counsel Jack Smith’s Aug. 1 indictment.
The trial concerns charges that Eastman violated 11 ethical and statutory obligations in his post-election role that culminated in the Jan. 6 raid on the US Capitol.
The one-time Chapman University law dean wrote memos advancing theories that Vice President Mike Pence—who as Senate president had the role of counting the Electoral College votes—could declare Trump the victor by rejecting slates of electors for Biden, recognizing unofficial slates of electors for Trump, or delaying certification of the results and potentially throwing the election to Congress.
Attorney-Client Privilege
Eastman argued attorney-client privilege prevents him from telling the California State Bar Court the names of individuals he may have communicated with about the issue of gathering contingent electors in case the election results were invalidated.
While the Trump campaign has waived privilege, Trump hasn’t.
Eastman contends even identifying nonclients with whom he may have had conversations triggers the privilege under California Business and Professions Code Section 6068(e)(1), which requires lawyers to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”
The attorney hasn’t submitted an in-camera list of potential individuals for whom he is asserting privilege. Questions remain including whether those he talked to think there was an attorney-client relationship. And, Roland has acknowledged that a federal judge in California previously found that Eastman and Trump “more likely than not” had illegally conspired to obstruct Congress, vitiating their attorney client privilege.
“The one thing we all seem to agree upon is generally that the identity of a client is not covered by the attorney-client privilege, and then there’s a narrow exception, and we seem to disagree on how narrow that is,” bar prosecutor Duncan Carling said at an Aug. 17 status conference.
Fifth Amendment
Eastman hasn’t waived his Fifth Amendment right, he said in an Aug. 16 supplemental filing in support of his postponement bid.
“In terms of Fifth Amendment implications, everything placed at issue in this disciplinary proceeding is now concurrently at issue in Georgia – detonating the issue raised in Respondent’s abatement motion that his testimony in California will be used to criminally prosecute him in Georgia,” his attorneys wrote, using the bold type for emphasis.
When Eastman testified during the June hearing, “he was not facing an imminent threat of criminal prosecution by the Georgia District Attorney’s office and an increased likelihood of federal prosecution,” his attorneys said. “It would be neither fair nor reasonable to find that Respondent waived his Fifth Amendment right by testifying in this proceeding before actual criminal charges materialized by way of the Georgia Indictment and before he was included as a co-conspirator in the DOJ Indictment.”
Another issue involves scheduling. The Fulton County court ordered the defendants to surrender by Aug. 25, at the same time as one of the State Bar Court hearing dates.
Eastman’s attorney Harvey Silverglate in a statement called the indictment “a legal cluster-bomb that leaves unexploded ordinances for lawyers to navigate in perpetuity.”
The Office of Chief Trial Counsel represents the bar. Miller Law Associates represents Eastman.
The case is In the Matter of John Charles Eastman, Cal. State Bar, No. SBC-23-O-30029, hearing 8/22/23.
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