Attorney-client privilege

John Eastman declines to elaborate on Trump world discussions about Grassley presiding on Jan. 6

He asserted attorney-client privilege when asked to discuss evidence that Trump’s allies considered the Iowa senator playing a role to keep Trump in power.

By KYLE CHENEY

John Eastman, testifying at his own disbarment trial, sidestepped a question Wednesday about whether he and others in former President Donald Trump’s orbit discussed the possibility that Sen. Chuck Grassley (R-Iowa) — rather than Mike Pence — would preside over the Jan. 6, 2021, session of Congress.

During several hours of sworn testimony in a California disbarment proceeding, Eastman said discussions on that topic were protected by attorney-client privilege. When pressed about which client of his he was referring to, Eastman replied: “President Trump.”

It was a notable exchange in an extraordinary day of testimony from Eastman, who is seeking to defend his license to practice law in California even as he faces criminal charges in Georgia, where he is one of Trump’s 18 codefendants in an alleged conspiracy to subvert the 2020 election. Despite his criminal risk, Eastman fielded dozens of questions for hours on Wednesday, declining to assert his Fifth Amendment rights and only occasionally asserting attorney-client privilege.

Grassley’s role generated significant intrigue in the weeks leading up to Jan. 6. The Constitution requires the vice president — who also serves as the president of the Senate — to preside over the counting of electoral votes to certify the presidential election. Historically, however, this job has at times fallen to the “Senate president pro tempore,” typically the most senior senator in the majority. In 2021, Grassley held that position.

California state bar attorney Duncan Carling also pressed Eastman to respond to some of the allegations against him in the Georgia indictment. For example, they grilled him on his contacts with attorney Robert Cheeley, one of the other codefendants in the Georgia case, about efforts to put Eastman in touch with Georgia legislative leaders. (Eastman said those contacts were attorney-client privileged as well).

And Carling probed his relationship with attorney Kenneth Chesebro, another Trump codefendant who was an architect of the last-ditch legal strategy Trump deployed to attempt to remain in power. Chesebro wrote memos that helped drive Trump’s efforts to assemble false slates of pro-Trump presidential electors in seven states won by Joe Biden, and said it was crucial that those “contingent” electors gather and vote on Dec. 14, 2020, on the same day that Biden’s state-certified electors cast their own ballots.

Eastman indicated that he had a minimal relationship with Chesebro until late December, even as he, too, pushed for the pro-Trump “alternate” electors to meet. “I didn’t directly deal with Mr. Chesebro at that time,” Eastman said.

Rather, he said others in Trump’s orbit forwarded him some of Chesebro’s memos. And Eastman suggested that he never saw one key memo — a Dec. 6, 2020, document recently unearthed by the New York Times — until bar attorneys showed it to him this week.

Eastman’s limited contact with Chesebro changed later in December, Eastman said, when he directly sought Chesebro’s input on a now-infamous two-page memo he authored that laid out a set of options for Pence on Jan. 6. Eastman said Wednesday that Chesebro “added a paragraph and changed some words” in that memo. A Dec. 23, 2020 email unearthed by the Jan. 6 select committee hinted at Chesebro’s role in that memo.

“I’m fine with all of Ken’s edits,” Eastman wrote in the message to Trump adviser Boris Epshteyn, with an attachment titled “PRIVILEGED AND CONFIDENTIAL — Dec. 23 memo on Jan. 6 scenario.”

It was that same email in which Eastman also hinted that he thought Grassley might play a role on Jan. 6. In the message, Eastman told Epshteyn that he hoped members of Congress would avoid taking any actions that might “constrain Pence (or Grassley)” from asserting the power to block Biden’s election.

Carling asked Eastman whether the email suggested there had been discussions about Grassley filling in for Pence. After Eastman indicated the matter was privileged, Carling moved on to another topic.

A Grassley spokesperson said the senator had “no such indication” that Trump and his aides were discussing the prospect of him presiding over the Jan. 6 joint session.

“Every expectation was that Pence would attend and preside,” the spokesperson said.

Grassley has also previously indicated that he had no knowledge of Eastman’s strategy to use the Jan. 6 session to block Biden’s election.

But the exchange underscores that there are still significant unknown details about the behind-the-scenes planning by Trump and his allies ahead of Jan. 6.

Grassley started a furor on Jan. 5, 2021, when he told reporters of Pence “we don’t expect him to be there, I will be presiding over the Senate.” His comments prompted an urgent rush by Pence’s staff to correct the record, eventually resulting in a statement from Grassley’s office indicating the senator had been “misinterpreted” and was merely saying he might fill in for Pence during some portions of the proceedings that day.

Eastman wasn’t the only one who had mentioned the possibility of Grassley presiding. Chesebro also mused in a Dec. 13, 2021, email that Pence could voluntarily step aside from his Jan. 6 role and allow it to fall to “Chuck Grassley or another senior Republican.”

Eastman has taken the stand on at least four different days in a disbarment trial that began in June but was postponed for two months amid scheduling constraints. The Georgia indictment unveiled last month threatened to upend the California proceedings; Eastman unsuccessfully pleaded with his California judge to delay his disbarment trial until after the Georgia case had ended. After losing that effort, Eastman opted to retake the stand and has taken a barrage of questions about his efforts and intentions ahead of Jan. 6.

Aides to Trump and an attorney for Chesebro didn’t immediately respond to requests for comment.