John Eastman & the DOJ’s 2nd search warrant (it’s SOP) with “filter protocols” I see your attorney client privilege and raise you crime fraud exemption…

When a person and/or attorney relies upon attorney client privilege and work product, this requires the Court scrutinize. However I’d keep an eye on two SCOTUS cases…

As many of you might recall in March of 2022 a Federal Judge opined- and specifically articulated that Donald Trump and John Eastman;

…likely committed multiple felonies in his attempt to overturn the 2020 Election…

It’s under this previous legal framework that we can further discuss Eastman’s recent argument concerning the search and seizure warrants. The reason I’m pointing you to that long forgotten March 2022 article. As it serves as the foundational framework of the “crime-fraud exemption” that the Government will undoubtedly argue in the near future.

• March 28, 2022 —Judge Carter’s 44 page Order/Memorandum (again see ECF or see Scribd)

• Together, these actions more likely than not constitute attempts to obstruct an official proceeding…

• and further articulated: Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful

• John Eastman, FBI -search and seizure warrant. See Case No 1:22-mc-00023

John Eastman, the search and seizure warrants

As previously explained —Eastman’s endeavor of a Court ordering the Government to return his cell phone(s), and other electronic devices, which were seized by a lawful search and seizure warrant. Again it’s important to note that the Government obviously presented (some) evidence regarding the “probable cause” that the electronics would contain fruits of a crime. Upon said affidavit the court agreed “there was probable cause” and thusly approved the June 2022 Search and Seizure Warrant

Now what you might not know is when there are serious attorney-client privilege issues, typically prosecutors will first obtain a search and seizure warrant. This allows them to physically take custody of an electronic device. It doesn’t necessarily allow investigators to “review the materials on the seized devices”

Once the devices are (lawfully) recovered and are in the possession of the Government/Investigator. Typically the Government/Prosecutors will go back to Court and argue for the “search” part of the search and seizure warrant. Defendant/Target Eastman requested the Court order the Government to return the devices they (lawfully) seized or alternatively grant him a TRO. In the past I’ve explained the extraordinary relief when requesting a TRO, a Preliminary Injunction etc. Meaning Eastman is required to show;

• …immediate and irreparable injury, loss, or damage will result’ unless a court issues the order.”

  • (1) a likelihood of success on the merits;

  • (2) a likelihood that [he] will suffer irreparable harm if the injunction is not granted;

  • (3) the balance of equities is in [his] favor; and

  • (4) the preliminary injunction is in the public interest.”

See Fed. R. Civ. P. 65(b)

This is especially true when the target is an attorney and there could be numerous privilege issues at play. Moreover the Government then uses a filter/taint team (which is bifurcated from the actual prosecutors/investigators) because of Attorney-Client Privilege implications. In some circumstances, the Court might order the use of a special master to oversee the materials (remember Michael Cohen’s search & seizure warrant). Objectively this is simply following the black letter of the law and further protects the “targets” various constitutional rights. Which now brings us to the July 15, 2022. In which the Court issued the following…

• MEMORANDUM OPINION AND ORDER by Sr. District Judge Robert C. Brack denying without prejudice 6 Motion for TRO. See NMDC-ECF or see my Scribd Account

• Related document(s): 6 AMENDED MOTION for Return of Seized Property under Fed. R. Crim. P. 41(g) and Request for Injunctive and Other Relief against United States of America;

• IT IS FURTHER ORDERED that Eastman shall serve the Amended Motion and this Opinion of the Government no later than Wednesday, July 20, 2022;

• IT IS FURTHER ORDERED that the United States shall file a response to Eastman's Motion no later than Monday, August 8, 2022 and

• Eastman may file a reply brief no later than two weeks after the Government files a response brief.

• IT IS FURTHER ORDERED that this matter will come before the Court for a hearing on Tuesday, September 6, 2022

Again the footnote on page 3 is actually critical important, aside from the hilarious fact Eastman is trying to get multiple bites at the apple by preemptively (I’d actually argue prematurely) asking the Court to bar the Government to read any of the materials on the aforesaid electronic devices. John —I’m not an attorney but come on —did you forget ripeness?

In sum, on July 15, 2022 the Court largely rejected nearly all of John Eastman’s arguments. Especially his constitutional rights. The 12 page MEMORANDUM OPINION AND ORDER;

Although there is a possibility that Eastman may succeed on one of his constitutional claims, he fails to carry his burden to show the likelihood of success on the merits. Nor has he shown a clear and unequivocal right to relief from an immediate, irreparable harm. Consequently, the Court finds that the motion for TRO should be denied.

In response to the Court’s July 15th Memorandum Opinion and Order, the Government was required to file a notice concerning the second search & seizure warrant. See NMDC-ECF or see my Scribd account for the Government’s July 27, 2022 Notice.

I would now like to draw your attention to the second paragraph because right there in black and white —you can observe the connective tissue of Eastman and Jeffrey Clark —look at the text in bold —that’s the actual proof of connective tissue and I’m pretty sure Donald Trump is worried. And that absolute delights me, a lot.

…the possession of federal agents with the Department of Justice, Office of Inspector General. On July 12, 2022, a federal agent obtained a second federal search warrant from the U.S. District Court for the District of Columbia that authorizes review of the contents of Plaintiff’s cell phone and the manual screen capture. The warrant includes a filter protocol, which has been provided to Plaintiff’s counsel. (Emphasis Added)

Government’s July 27, 2022 Notice of Second Search Warrant

The reason for the disclosure of “filter protocols” typically isn’t fully explained, however I’d like to take a brief moment to help you understand;

• Attorney-Client Privilege has long been viewed (under common law practices) as the “crown jewel” in attorney client relationships.

• Many falsely assume Attorney-Client privilege is absolute. It is not.

  • crime-fraud exemption, knowingly and intent come into play

  • waiving of privilege (either directly or indirectly) see FRE

• Eastman has already argued Attorney Client privilege. Granted his past arguments, in my view are completely weak.

attorney-client privilege is defined as:

n. the requirement that an attorney may not reveal communications, conversations and letters between himself/herself andhis/her client, under the theory that a person should be able to speak freely and honestly with his/her attorney without fear of future revelation…

Another thing to keep in mind, by preemptively instituting a “filer protocol” the Government essentially knocks the wind out of Eastman’s sail and that’s just good old fashion: by the book and by the black letter of the law. That is the Government’s proactive actions means Eastman’s potential arguments might be unpersuasive. Mainly because I’m pretty sure later briefs from the Government will explicitly cite the one true exemption to attorney-client privilege;

The Crime-Fraud Exemption…

Rule 502-Attorney-Client Privilege (A/CP) & Work Product; Limitations on Waiver What most fail to understand and/or properly explain, the Judicial Conference weighed in. The determination was made, that a new law should be codified with the intended goal of reducing costly litigation surrounding A/CP. see Public Law 110–322 110th Congress An Act also Federal Rule of Evidence (FRE) 502, which resulted in limiting certain attorney-client privilege and work product. Specifically intended to reduce…the cost associated with protecting the A/CP.

…costs associated with electronic discovery and document production by reducing the risks associated with producing material protected by the attorney-client privilege or the work product doctrine.

In layman’s terms the “crime-fraud exemption” means if you as an attorney are giving your client advise and/or you are aware of your client committing a crime, then the assumed privilege is not absolute. Keep in mind that’s setting aside the attorneys professional rules and ethical conduct that they swore to when reciting the oath as an officer of the Court.

The issue that Eastman raises, none of his arguments ameliorate the Government’s (likely future arguments) concerning the Crime-Fraud Exemption. As the American Bar Association notes:

The attorney-client privilege is a bedrock legal principle of our free society that is important in both the civil and criminal contexts. The privilege enables both individual and organizational clients to communicate with their lawyers in confidence, which is essential to preserving all clients’ fundamental rights to effective counsel. The privilege also encourages clients to seek out and obtain guidance to conform their conduct to the law, facilitates self-investigation into past conduct to identify shortcomings and remedy problems, and enables lawyers to fulfill their ethical duties to their clients, all of which benefit society at large.

The two current Supreme Court cases;

On June 30, 2022, the US Supreme Court granted certiorari for two related cases: Percoco v. United States, 21-1158, and Ciminelli v. United States, 21-1170. See Order here

Current SCOTUS Cases -which could narrow current Federal Fraud Statutes, thereby having a direct impact on the long held “crime-fraud exemption” —given the current Supreme Court’s willingness to thumb their noses to not only our constitution but more specifically ArtIII.S1.5.1 Stare Decisis Doctrine -unquestionably I’d keep an eye on the following two cases:

• Percoco v. United States, Docket No: 21-1158

• Ciminelli v. United States, Docket No: 21-1170

Because the impacts could be far reaching and it’s clear the current makeup of the Justices —shows their willingness to not only upend decades of legal precedent but their willingness to put political beliefs ahead of the law. After overturning Roe v Wade —

Percoco v. United States, Case No: 21-1158:

The current question before the US Supreme Court in Joseph Percoco
v. United States (see SCOTUS full docket here)

…a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decisionmaking, owe [s] a fiduciary duty to the general public such that he can be convicted of honest-services fraud.”

Ciminelli v. United States Case No: 21-1170

The question before the US Supreme Court in Louis Ciminelli v United States (see SCOTUS full docket here)

Whether the U.S. Court of Appeals for the 2nd Circuit’s “right to control” theory of fraud — which treats the deprivation of complete and accurate information bearing on a person’s economic decision as a species of property fraud — states a valid basis for liability under the federal wire fraud statute

But given the US Supreme Court’s trajectory (see Kelly v. United States, 140 S. Ct. 1565 2020..” which overturned the conviction of two (former) Aides of then Governor Chris Christie in the infamous Bridgegate. I definitely think you should keep an eye on the aforementioned cases on the SCOTUS docket.

Summation of this article:

While I’m not expressly stating these cases will have a direct impact on Eastman, Clark and/or Trump. Hypothetically speaking and assuming arguendo that the Justice Department actually indicts Eastman, Clark and Trump —the potential impact of the future SCOTUS rulings, could (operative word) have a direct impact on Eastman, Clark and Trump. This is particularly important if said charges include “fraud…wire fraud”. —depending on how SCOTUS rules in the aforementioned cases, that could result in frustrating prosecutors, as it specifically relates to fraud and/or wire fraud (remember those communications traversed “wires”)

At the bottom John Eastman, Jeffrey Clark and Donald Trump are up to their eyeballs because “conspiracy to defraud the United States of America, conspiracy to obstruct an official government proceeding…” are some of the most grave crimes to commit in Trump’s ill-conceived plan to hold on to power that he was no longer entitled to. Additional and hypothetically speaking let’s say that Eastman and/or Clark are indicted before Trump. It stands to reason those two “attorneys” would likely flip on Trump whereas Trump is only loyal to: “me, myself and I” —for now it’s best to wait and see what the DOJ does.

Granted for a brief moment in time I may have started to question my decision to give the DOJ the benefit of the doubt but after the past week —I can unequivocally state that I absolutely trust the HSCJ6, Attorney General Garland and the countless men and women of the FBI and more broadly the DOJ… and so should you, because it’s clear they are investigating Trump.

Myths of Congressional Investigations, the DOJ & the HSCJ6: “release all the depositions NOW”

A while ago I casually mentioned that I rue the day President Ford pardoned Nixon. Stating in part:

I’d like to reiterate I rue the day that President Ford pardoned -disgraced- president Nixon. Had he not pardoned Nixon, I am absolutely confident that not only would there be actual binding precedence but largely the “fear” of Trump’s wrath that has astonishingly crippled most high profile Republicans into silence would not be a factor. Notwithstanding historically and factually speaking in Federalist 10 (see Library of Congress link, found here)

The point is to those saying “never before in our Country’s history has the Justice Department indicted a former President” —my retort is kind of simple:

…never before in our Country’s history has a president incited a deadly insurrection, attempted to overthrow the will of the people in a free and fair election…

Therefore your previous argument about “never before” is unpersuasive and there’s nothing you can argue that will ameliorate Trump’s dereliction of duty, betrayal of his oath of office and most offensively his unrepentant gas lighting. I never thought I’d advocate that a former president should be indicted. But then again I never thought an American President would act with reckless and complete disregard for our Country’s laws and constitution.

And lastly it’s hard to believe it’s been over 90days since my former boss died by suicide. To my readers who gently and persistently encourage me to seek a professional grief counselor. I can not thank you enough. While grief often feels like an endless stream of destructive rogue waves. It’s easy to become lost and at times the darkness feels all consuming. Having a grief counselor that has helped guide me out of the darkness has been instrumental in my dealing with his untimely death… so today’s daily saltwater therapy is my small act of showing my appreciation.

file411_dc

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…again I can not fully express my gratitude towards my readers who could see I was struggling. I can confidently say that I am much better than I was in April.

Now if you’ll excuse me I need to hop on a 2:15PM —Video Conference Call —because those damn bonbons have decided to triplicate and apparently people can’t read the “track changes” —So this requires me to hold their hands and explain the why and what of the documents changes. -La Sigh- ¯\_(ツ)_/¯