John Eastman’s Blank Documents
I wrote about the substance of Judge David Carter’s ruling that it was more likely than not that Trump obstructed the vote certification on January 6 here.
The opinion is as interesting for what it says about the documents John Eastman attempted to withhold from the January 6 Committee as his decision that Trump is more likely than not a criminal.
At issue were the 111 documents he had dated January 4 through 7 involving January 6 over which he claimed some kind of privilege. I’ve summarized Carter’s decision making process in this table.
Carter’s overall findings were that:
- None of John Eastman’s attorney-client privilege claims were valid because there was a third party email sender involved; those documents were assessed only for a work privilege assertion
- Carter treated the documents Eastman claimed work privilege assertions over fall in the following categories:
- Non-substantive (10 total)
- Electoral Count Act plan (22 total)
- State election related (19 total)
- Documents for Congress (17 total)
- Connecting third parties (20 total)
- News articles and press releases (9 total)
- Preparation by or for the client’s representative (15 total)
Only the last category — documents prepared in anticipation of legislation — were really considered for a privilege claim. Of those, two were issued by a state court, so were excluded from Carter’s review, and privilege over two had been waived (one was the Electoral Count Act plan Eastman had already published).
That left just 11 documents for review. Of those, nine actually were part of ongoing litigation, and one was sent during the riot (but not in furtherance of it). So while Judge Carter ruled that Eastman and Trump probably conspired to defraud the US, just one document was liberated by that decision. I’ll return to that document.
What I’m most struck by is the frivolity of some of the other documents Eastman went to court (and included in a privilege log) to try to protect. One category — connecting third parties — included a number of resumes of people offering to help. Another consisted of news releases (two of which reflect comment on coverage of the riot). Much of the Electoral Count Act involved academic discussion.
It’s this category, though, I’m most fascinated by:
To begin, the Court excludes ten of the 111 documents because they are entirely nonsubstantive.130 Seven of these documents are only images of logos attached to email signatures, including Facebook, LinkedIn, and Twitter.131 One document is a blank page132 and two are blank emails.133 These ten documents do not contain any information protected by the work product doctrine and the Court ORDERS that they must be disclosed.134
John Eastman took the January 6 Committee to court to withhold a blank page and two blank emails.
That might reflect the substance of his own scholarship.
Or it’s possible Eastman was triggering others by sending nothing.
The Department of Justice has a duty to act on this referral and others that we have sent,” said Rep. Adam Schiff (D-Calif.). “Without enforcement of congressional subpoenas, there is no oversight, and without oversight, no accountability — for the former president, or any other president, past, present, or future. Without enforcement of its lawful process, Congress ceases to be a co-equal branch of government.”
Schiff’s comments were echoed by several other members of the panel and reflected a veiled frustration about the department’s silence on Meadows, whom the House voted to hold in contempt in December. Rep. Liz Cheney (R-Wyo.) said the Justice Department should “not apply any doctrine of immunity that might block Congress from fully uncovering and addressing the causes of the January 6th attack.” Rep. Zoe Lofgren (D-Calif.) said that the select committee was doing its job and that “the Department of Justice needs to do theirs.”
“Attorney General Garland, do your job so we can do ours,” said Rep. Elaine Luria (D-Va.)
[Use the same username each time you comment. This name was missed because it looked like that of another user; you should have commented as “Semanticleo.” Sockpuppeting isn’t permitted here. /~Rayne]
“The Department of Justice has a duty to act on this referral and others that we have sent,” and there is no reason to suspect DOJ is not acting.
That the action has not been completed as soon as some internet denizens want is irrelevant. That does not mean they’re not “acting.”
Your body, the House of Representatives has a power known as inherent contempt. If the DOJ won’t do your bidding, use your own powers.
Lock ’em up.
Start with that slimy bastard Scabino.
Maybe those emails were white text on a white background? It happens, sometimes by accident, other times not. Makes you wonder if anyone bothered to click their mouse and drag their cursor over the white space. Although if viewed via some other method that reveals any content, perhaps it was obviously that there really was nothing there.
If they had the digital documents then it should be easy to tell if the text was encoded as white or in some other fashion encoded to be not visible.
If it was printed (and likley not copied) documents then it wouldn’t surprise me if white or otherwise hidden print (if printable) text could be discerned.
But this is Eastman we are talking about , so….
Everything that is done in MAGA-world has a purpose, so if the empty docs in question don’t have any reasonably obvious connection to J6, then I think it is likely a signal to someone else to bury some bones. However, it would seem Eastman’s problem as noted elsewhere in this investigation is that others had received the messages and in many cases the J6SC already has those messages. Thus, the phrase about the confirmation of documents the committee already has in its possession is included in many of the J6SC invitations and/or subpoenas.
Speaking of blanks, the WashPost ran a story (DKos summarized it since it’s behind a paywall) about how during almost the entire time of the J6 assault on the Capitol there are no Trump WH phone records handed over to the committee, yet even on J6 we knew of several calls personally placed by Individual-1 to various members of Congress and other individuals, as well as inbound appeals. So, as noted above the J6SC knows where to look for these.
FWIW re: paywalled articles, it can be worth checking whether there’s a copy at the Internet Archive. Here’s the Post article I assume you’re referring to: web.archive.org/web/20220329110155/https://washingtonpost.com/politics/2022/03/29/trump-white-house-logs/
The white-text documents were secret instructions on the use of burner phones.
Eastman sure looks the part of the troll, 😂. @teri___kanefied says it was an incredibly dumb move for him to sue to withhold the emails because of Carter’s rulings, but it seems you are saying in the related blog that Carter’s opinions will not be useful towards establishing felony obstruction in a criminal case?
Carter’s logic and evaluation of the evidence might be persuasive in the DC Circuit. But its judges have adopted different requirements than the 9th Circuit, and a higher standard of proof is required in a criminal proceeding. I would argue, though, that Carter creates a non-binding precedent that DC judges ought to consider, agree with or distinguish.
My work email strips out images and then it asks me if I want to download them with the message. I imagine something like this is going on (maybe associated with the resumes that were sent to Eastman), with the original messages broken into the text message and the associated image files? And Eastman tried to assert privilege over the original message and it made sense to do the same for the image files for ease of processing.
Speaking of blank documents, how about the news of an 8-hour gap in the Presidential phone logs on Jan. 6? Just a coinky-dink I’m sure. Trump handlers to Rosemary Woods: “hold my beer”.
Trump claims – not under oath – that he’s never heard of a burner phone. Why not? He borrows someone else’s phone all the time, without having to prepay the monthly fees, precisely to avoid making it easy to track his communications.
“burn her phone? why would I burn her phone?”
She has a picture of yer small crooked junk on her phone Don!
Not sure I could Steele myself for that…
Useful for peering around corners,
Who Trump talked to on the day of the Capitol riot
https://www.washingtonpost.com/politics/2022/03/29/who-trump-talked-day-capitol-riot/ Philip Bump 3/29/22
For those who are interested, there is a list of TRUMP 1/6/21 phone conversations from the above linked article at this comment: https://www.emptywheel.net/2022/03/25/clarence-thomas-would-also-have-hidden-the-missing-mark-meadows-texts/#comment-928685
If you look at the document released by the WaPo it’s blindingly obvious that there are simply pages missing from the WH call logs. And the obvious place to look for those missing pages is in that stack of boxes that went to Mar-a-Lago with Trump. If NARA doesn’t have those pages, I’m wondering how far away are we from the DOJ getting a search warrant.
I’m not a lawyer!. This might be a little to speculative to justify a search warrant. I just can think of more than few search warrants with flimsier justifications that were served, although not against a former POTUS.
screw the discretion: Book ’em, Dan-O!
No, not far off the mark. Don’t need a warrant though, just a GJ subpoena. That would suffice just fine and be a lot cleaner.
Having one or more pages of logged calls removed from the log would also explain why the call to Senators Lee/Tuberville doesn’t appear in the log, despite the call having originated from a WH phone that should have automatically logged the call: theguardian.com/us-news/2022/mar/30/trump-used-white-house-phone-call-capitol-attack-jan-6-not-official-log
What doesn’t make sense to me is that NARA would only get a paper copy of each day’s call log and no electronic copy. The calls to/from WH phones are automatically logged, and presumably any other calls that should be logged would be manually added to an electronic file that’s printed out. If during those 7+ hours, some calls were never logged — because they didn’t go through the WH switchboard and no one manually entered them — and the digital log was tampered with to delete one or more logged calls prior to the creation of the print-out, then you only have to explain why the time gap perfectly coincides with the end of one page, as you’d expect the next logged call to show up at the top of the next page. In that case, it’s not missing “pages” per se, as those pages never would have come into existence.
Hard to know without more info about the normal process for adding calls from non-WH phones to the log, what’s involved in deleting an automatically-entered call from the electronic log, whether NARA is also supposed to get an electronic copy, etc.
Things that make you go “Hmmm….”
10:50 PM TRUMP c/w Eric HERSCHMANN (6 min)
11:11PM Eric HERSCHMANN calls Richard Donoghue (6 min). Donoghue was Jeffrey Rosen’s right hand, i.e. Principal Associate Deputy Attorney General DOJ.
Yup! I’m in the process of trying to collate the various call logs we know about. Just finished transcribing info from:
If you get a chance, would you look at the entry for TRUMP’s 9:03 AM call with MEADOWS? There’s some different info there [that looks like they used an old mimeograph copier], in the cell with, and just under “COS Mark Meadows” Please tell me what you think that says. Thanks!
A listing of the DOJ call logs:
It appears to say:
Thru Ms Eliza [Something]
Maybe the last name is Thurman.
I’m guess an admin or operator of some sort.
Eliza Thurston. She was a Trump aide.
GSA doc embedded here, we [were/are] still paying her (interesting clique in and of itself for various keep-them-close reasons):
EXCLUSIVE: Documents reveal how Trump is spending taxpayer money on his postpresidential offices — from printer toner to Stephen Miller’s salary
May 17, 2021, 5:36 PM
That ^ payroll cut off on July 21, 2021.
Courtesy of “Citizens Against Government Waste” here is her title _during_ Trump admin effective July 20, 2020 via the cc:s on a letter addressed to The Honorable Mark Meadows / Dear Chief of Staff Meadows:
Also other indices in search that her role was then more associated with Meadows.
Interesting that one of those job-info sites (in an entry for a person with that name) lists a current (updated 1/25/2022) role as Scheduler at DHS, then skips back to 2017 and earlier — no immediately prior/WH-related entry.
Let’s add that to the list of items for which Congress needs to tighten legislation. There needs to be a limit on expenditures for an ex-presidents based on the historic burn rate of other presidents with increases parallel to a benchmark inflation rate.
There should also be a single account for public monies and all funds accounted for and transparent to the public.
You’re not kidding. I thought some of the expenditures detailed were grab-happy overboard but then rolled down to the reveal of who was redacted, to include Trump’s “personal aide”:
I’m just closing my eyes and pretending the “personal aide” merely kept him in Bronx Colors and Mickey D’s while the “coordinator” notified him whether Melanie would be speaking to him in a given week.
Surely it’s policy that someone put parental controls on the tvs ensure no shark documentaries could be tuned forevermore.
And Secret Service.
Oh yes. There’s no good reason why we can’t place a limit on coverage. Either live within that limit or FAFO as the kids say.
Thank you both so much!
I don’t think there’s anything nefarious about blank pages.
Tangentially: the J6 committee continues to tell us (and the contemptibles) bits of what it knows. The Navarro / Scavino resolution (though the ingenious “Documents on file with Select Committee” footnote) told us that the committee has:
– a bunch of messages from the Kremers and Katrina Pierson
– a bunch of messages from deadbeat dad Jason Miller
– a whole bunch of phone records tied to Crazy Pete and Caddy Dan’s private devices
– evidence that the “Navarro Report” was shared widely
– evidence that Navarro wanted people to call Roger Stone, and that he personally called Bannon multiple times on Jan 6.
It is not the blank pages that is curious, it is trying to hide the blank pages from the committee.
I think a lot of it is just sloppiness and contempt for authority not their own. He didn’t make the effort to see what he was claiming privilege for.. Just anything he wanted to assert because his word is “good”.
My impression is that they aren’t the brightest bulbs.. just the hottest ones. It was his email, so he asserted privilege only to control it. They are very big into control.
Only 111 documents were considered in this opinion. It seems improbable that the allegedly overworked fundamentalist activist Eastman intentionally fought disclosure of blank documents.
While Eastman and his cohort never concede or surrender, and always delay and counterattack, it seems more likely that he was attempting to achieve something substantive. Virtue signalling comes readily to mind, especially in the context of an alleged conspiracy that includes the painfully sensitive ego of TFG.
One method that is sometimes used to send messages between co-conspirators is to make give the credentials of an email account to two or more people. They can all log in to the same account and read any unsent emails there (stuff you save in the “draft” folder). After reading the email, they can delete the text, leaving a blank email, which any of the conspirators can then add to next time.
This avoids actually sending an email to anyone, so there’s only one copy, and it is constantly updated and then blanked.
And if I suspected this kind of foldering was going on, I’d be looking at logs of IP addresses accessing the email account.
I was also struck by the large “empty” email count during this critical time window and Eastman’s claims to shield them. I think that the committee should look into it. Were these emails from his draft folder and so never sent? OTH, were they emails actually received or sent by him (from/to whom)? When were these documents created and last time-stamped and how were they obtained (off a backup or live system – as of what date)? Did Eastman have privileges to alter them after the fact in any way before they were extracted for review? What metadata might be available from the email system besides what appears in the text message? Seems like a lot of conspiracy theories could erupt in the absence of more facts.
Altering after the fact would be a big, big no-no. I doubt Eastman would do something that stupid…but if he did, he’ll very likely get caught at it.
Any subject lines listed in the blank email?
A fair amount can be communicated in subject line.
So when you say trigger, are you suggesting a pre agreed upon signal of sending a blank email as part of triggering actions at certain times?
Or simply by the receipt of a blank email. Just depends on what the agreed upon signal might be…for instance, it might be tied to date stamp, not the subject text at all…plenty of other signaling variations too… for instance, if it comes from a specific email account instead of an alternate one, etc.
I have my doubts Eastman’s smart enough for this, but I wonder if sending an email was a trigger, not just a signal. I use IFTTT to automate different services, for example, like getting a weather alert or archiving social media content.
An IFTTT user can set up automation to tell Alexa to send an email to free a stuck WiFi-enabled iRobot, for example. Or send an email to trigger a text message to other recipients.
if no subject line you are going to be asked by Outlook if you want to send without a subject line, which means you are going to notice the blank space
Blank pages with signatures on the logos of “Facebook, LinkedIn, and Twitter”.
Whose signature? If Trump’s, was he going to nationalize those companies and direct the workers to shut down any stories he didn’t like?
LOL. You don’t really know how things work in the United States, do you?
A problem shared by one Donald Trump and an endless sea of grifters.
TV Lawyer of the Year – Ari Melber
Is spring ever going to get here?
excellent, fast work, as always. thanks!
just wanted to note “legislation” in first complete sentence of paragraph following bulleted list should be “litigation”: “anticipation of litigation.” think the sense is clear anyway.
While it’s easy to dismiss Eastman’s shenanigans as mere trolling; he exists in such like-minded esteemed company as Bannon and Stone, I tend to think his stonewalling is him having just too many ethically challenged endeavors in play that he’s not certain himself which ethically challenged endeavors should see less daylight than the next.
Sadly, that makes very good sense.
The adage that springs to mind is “never assume malice if it can easily be attributed to stupidity”. Eastman was so stupid, he tried to claim someone was co-counsel but never even mentioned to the court that this person was supposed to be counsel to Trump. So from my perspective it’s difficult to see the assertion over blank documents or logos as nefarious when he has demonstrated so much incompetence.
My explanation for the discrepancy (ie wild ass guess), is that Eastman viewed each email (and attachments) as a whole, and asserted privilege on the whole chain and everything within it, including logos and images in the signature block.
Judge Carter took each element (so specific pages and attachments) within the email chain as separate when evaluating whether privilege applied.
So what Eastman did was like removing a whole book, whereas what Carter did was more like redacting specific chapters or sentences.
A lawyer (which I am not) could comment on how plausible my guess is.
Perhaps they should check the blank pages for invisible watermarks.
you are going too deep. They knew what they were doing was wrong, but they did it anyway because they are entitled. I think he didn’t take the time to go through his email on what he was claiming. Some might be blank because they had attachments only. Sometimes you send a blank email to confirm someone else has a working email.. or whatever. There is enough of what we know they actually wrote and sent to send them to court and let the jury decide. We don’t need to wait for watermarks. Ask Arizona about watermarks.
NOT a “burner phone”
Revealed: Trump used White House phone for call on January 6 that was not on official log Trump’s call to Republican senator [2:26 PM LEE/TUBERVILLE] should have been reflected in presidential call log on day of Capitol attack but wasn’t
https://www.theguardian.com/us-news/2022/mar/30/trump-used-white-house-phone-call-capitol-attack-jan-6-not-official-log Hugo Lowell Wed 30 Mar 2022 14.16 EDT
He probably grabbed someone’s phone and made the call himself.