If your giant middle finger to a congressional committee contains a footnote acknowledging that “certain public statements” made by your client may constitute a privilege waiver, you’re probably starting off a little behind the proverbial STFU Eight Ball.
And so attorney Charles Burnham has opted to go on offense with the January 6 Select Committee when announcing that his client John Eastman intends to assert his Fifth Amendment right against self-incrimination in response to a subpoena regarding his role in the Capitol riot. Because shutting up will be a novelty for the conservative law professor who authored the infamous Coups for Dummies memos explaining how the Vice President could overthrow democracy in five easy steps. Particularly since Eastman just went on Steve Bannon’s podcast yesterday to yell some more about how he’s done talking.
Burnham’s theory is similar to the wackassery put forth by former DOJ lawyer Jeffrey Clark, who argued that the Select Committee has no subpoena power because it lacks a Ranking Member. According to Burnham, subpoenas can only be issued “after consultation with the Ranking Member,” and no one on the Committee was appointed by Minority Leader Kevin McCarthy, ipso facto propter hoc, the subpoenas are illegal.
Burnham conveniently elides the fact that, of the five Committee members McCarthy proposed, Pelosi only blocked Reps. Jim Jordan and Jim Banks, after which the other three members refused to participate. Although he does CC all five of the nominees on his letter, because LOL, so crafty.
In fact, the Committee does have two Republicans: Vice Chair Liz Cheney and Rep. Adam Kinzinger. But they don’t count, according to Burnham and Eastman, because they weren’t anointed with holy oil by the GOP Conference.
Here on Planet Earth, that’s a political question, and the House can run itself any way it likes. But Burnham isn’t making a real legal argument here. He goes on to howl about a preservation letter sent to telecoms for January 6 communications “without a search warrant based on probable cause,” adding “The threat to First Amendment freedoms and Fourth Amendment rights inherent in such a demand is palpable.”
Okay, buddy, maybe switch to decaf.
And here’s his bizarre argument that the supposed lack of a Ranking Member is tantamount to a deprivation of due process in violation of the Fourth Amendment, since there’s no one to get overruled or outvoted when it comes to subpoenas and contempt referrals:
The Chair and the Committee thus serve as prosecutor, judge, and jury, contrary to the most basic requirements of due process. The only check on this inherently unfair process is that, under the rules, a “member of the committee” may “appeal the ruling of the chair.” Id. But without a single member of the Committee having been appointed “after consultation with the minority leader,” it doesn’t take a rocket scientist to realize that even that check is meaningless with this particular committee.
Also holding closed hearings and barring the witnesses from discussing their testimony is terrible because it allows House Members to selectively leak to favored news outlets … Burnham argues in a letter which was immediately turned over to Bannon’s co-host Raheem Kassam, who let wingnut media get a 24-hour head start on spinning it as “John Eastman’s Lawyers Just Destroyed the Jan 6 Committee and Its ‘Subpoenas’. You’re going to want to read this letter in full.” before Politico finally got its hands on a copy.
(Fun fact: Kassam is married to Kraken lawyer Emily Newman.)
“The foregoing discussion provides important background as to why Dr. Eastman, though innocent of wrongdoing, would choose the invoke the Fifth Amendment, to which we now turn,” Burnham says, eight pages into his ten-page nastygram.
And citing statements from Committee members suggesting that criminal prosecution might be in order for some members of the former president’s inner circle, he is further “declining on Fifth Amendment grounds to provide the requested privilege log.”
But Eastman isn’t claiming, as Clark did before him, a right not to appear at all. He’d clearly like to be spared the ignominy of spending four hours in a Committee hearing room getting dunked on over and over as he either tries to claim attorney-client privilege for a memo he forwarded to half of DC or says over and over “I decline to answer on the advice of counsel citing my right against self-incrimination.” But Steve Bannon tried that one and wound up in handcuffs.
Or, as he put it in his intro to Eastman’s appearance, yesterday, “I’m focused on destroying brick by brick this radical regime that is the Biden administration. And proud of it, so suck on that, Democrats, embrace the suck.”
Clark’s antics got him a criminal referral that will be sent to the wider House for a vote if he doesn’t show up in the mood to cooperate for scheduled testimony this weekend. So what are the odds that the Committee takes Burnham’s “piss off” letter and lets Eastman walk away clean?
LOL, lotsa luck.
Elizabeth Dye lives in Baltimore where she writes about law and politics.