“[T]“The concern was about developing a political strategy that should be used in Congress, not the judiciary,” Willis argued. “Specifically, the January email begins with the premise that the justice system has failed to enable the Trump campaign to achieve its goals. The memo expressly refrains from pursuing any legal action to pursue a political strategy in Congress.”
The argument represents a crucial decision for Judge Scott McAfee, with potential implications for Trump and other lawyers like Rudy Giuliani and John Eastman who worked closely with the former president to undermine the 2020 election results. Chesebro argues that the memos should be excluded from his upcoming trial – scheduled for Oct. 23 – because they constitute privileged work on behalf of his client, the Trump campaign.
Willis’ argument followed closely the rulings of a federal judge in California, who found that many of Eastman’s emails after the 2020 election were not subject to attorney-client privilege because of their political nature – or because they were shared with non-attorneys and lost their confidentiality. That judge, U.S. District Judge David Carter, also concluded that some of Eastman’s emails would be turned over to the House Select Committee on Jan. 6 because they constituted evidence of a likely conspiracy between Eastman and Trump. Eastman is among those charged in Georgia, along with Trump and Chesebro.
Chesebro’s series of memos began in November 2020 by admonishing the Trump campaign to call presidential election slates in several swing states where Biden defeated Trump, claiming they would be a backstop if Trump prevailed in the ongoing litigation should.
But Chesebro’s memos took a turn in early December when he noted that Trump could use voter strategy to win in the 2020 election even if his lawsuits failed – by using Trump-backed voters to block congressional proceedings on January 6th 2021 to disrupt the day on which federal law required valid Electoral College votes to be counted.
Willis’ argument appears to be in some tension with how federal prosecutors are approaching cases related to the Jan. 6 Capitol insurrection. The vote-counting meeting resembled a trial.
Many defense attorneys have challenged that conclusion, but federal judges have generally sided with prosecutors on this point.
However, Willis has other arguments to invalidate Chesebro’s privilege claims. She notes that he shared his memos with people far removed from the Trump campaign’s legal team, effectively waiving privileges. And they have all now been made public, she noted. Additionally, Chesebro has provided no evidence of his attorney-client relationship with the Trump campaign or with Trump himself, casting further doubt on whether the contacts would be privileged.
Finally, Willis contended that all of the memos could be disclosed under the “criminal fraud” exception to the attorney-client privilege. She noted that a grand jury indicted Chesebro based on evidence related to the memos and concluded that Eastman joined the alleged extortion conspiracy based on some of the advice he gave to the Trump team have.