John Eastman, the nebbishy law professor who somehow masterminded a coup plot, slid into the PACER DMs again last night with yet another lawsuit against the federal government. This time he’s suing in New Mexico after the FBI showed up outside a restaurant in Santa Fe on June 22 with a warrant to seize his phone.
June 22 is also the day when the feds showed up at former Justice Department lawyer Jeffrey Clark’s house with a warrant for his electronics. Like Eastman, Clark was the subject of a recent congressional hearing on his efforts to overturn President Biden’s electoral win by substituting slates of fake electors. And like Clark, Eastman made a beeline for Fox News to tell Tucker Carlson his tale of woe, simultaneously confirming that the Justice Department’s investigation of their plot is proceeding apace.
“They haven’t charged you with a crime. They haven’t given you evidence that they’re going to charge you with a crime. But they treat you like a drug kingpin or a rapist and seize your phone,” fumed Carlson. “Is this legal?”
“No, I don’t think so,” Eastman replied, adding that he had “an ethical obligation to do everything I can to protect the privileged communications with my clients.”
Yes, about that …
In his motion to get the device back and force the government to delete any data taken from it, Eastman made sure to put as much information on the public record as possible, including the warrant itself, which reads, in part:
The investigative team will not review the contents of the device(s) until further order of a court of competent jurisdiction. If a forensic extraction or manual screen capture of the contents of the device(s) occurs during the execution of the search warrant, the contents will not be reviewed by the investigative team until further order of a court of competent jurisdiction.
So despite his howling on TV and in his motion, the government is not pawing through his privileged communications.
Eastman refers to the “intense, five-month privilege dispute” with the January 6 Select Committee over his emails, although he neglects to mention that US District Judge David Carter found that at least one of those emails was likely evidence of a crime related to obstructing a congressional proceeding. Instead, Eastman huffs that “That litigation has received extensive media attention, so it is hard to imagine that the Department of Justice, which apparently submitted the application for the warrant at issue here, was not aware of it.”
In point of fact, the government was clearly aware of the privilege issue, and made specific provision to seize the device and its contents, without intruding on privileged communications — or indeed any communications at all — absent judicial review.
Eastman’s motion is a grab bag of Fourth Amendment complaints, pled with varying degrees of chutzpah. For instance, he argues that the warrant is overbroad because it “provides no allegation that Movant owned, possessed, or had control over any electronic devices.”
“True, many people now own cellular phones,” he concedes, “But this warrant provides ‘no indication otherwise of [movant’s] ownership of a cell phone at any time.’” Which is ridiculous, not least because Eastman is suing the January 6 Select Committee to stop them getting metadata for his cellphone. And not for nothing, but the entire world has seen his emails with the signature line saying “Sent from my mobile device. Please excuse any typos or brevity.”
Eastman is pissed that the affidavit wasn’t attached to the warrant; that the agents confiscated the phone before showing him the warrant; that the warrant authorized the government to unlock the phone using biometric data, but not to compel him to unlock it if a passcode was required; that he was dumb enough, despite being smack in the middle of multiple federal investigations, to enable the FBI to unlock it simply by holding it up to his face; that the device is being transmitted to the DOJ’s Office of the Inspector General’s forensic lab, and he says he’s outside the legal purview of the DOJ’s IG, having never worked there.
In short, he’s pissed that he was treated like every other suspect, minus the danger that he’d get shot for resisting arrest. How very dare the government treat him as if he has no more Fourth Amendment rights than a rapist or a drug kingpin! Which is more than a little ironic coming from a guy who clerked for Justice Clarence Thomas and never showed any particular concern for the privacy rights of suspects. Maybe if he wasn’t so busy kibbitzing with Ginny Thomas, he’d have time to write a law review article on the grievous threat to the Fourth Amendment posed by government agents being able to intrude on our digital lives by taking advantage of ubiquitous technology.
TL, DR? This is the day that the Federalist Society overlords hath made, let us rejoice and be glad in it.
Eastman v. US [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.