“There’s no point in having Professor Eastman produce the most relevant materials four months from now,” Letter told Carter during a videoconference. “That’s useless. … It completely defeats the subpoena.”
However, both Carter and Eastman lawyer Charles Burnham noted that the subpoena from the House Committee included no clear prioritization, but said the records should be produced sequentially.
“The subpoena did not specify a prioritization order,” Carter said. He also asked whether trying to impose one might violate the separation of powers between the judicial branch and Congress.
Letter said it wouldn’t be an issue, and he observed that no prioritization seemed necessary at the time of the subpoena because Chapman was prepared to turn the emails over en masse, until Eastman sued arguing that many of the messages are covered by attorney-client privilege or other legal protections.
“Chapman made clear they were going to give us everything within three days,” the House lawyer said.
Letter’s description of document disclosures in May or June as “useless” to the committee dovetails with comments from select committee investigators about the timeline for the panel’s work. While they have avoided any specific deadline, officials have repeatedly said they hope to begin revealing some findings and holding public hearings in the spring before issuing a preliminary report by mid-2022.
Carter issued an order earlier this month requiring Eastman to review the messages at a rate of 1,500 pages per business day and to give the committee the nonprivileged portions on a rolling basis along with a log of what was held back and why.
The judge considered increasing that rate, but decided on Monday to stick with it for now. “As we go along, I may need to adjust,” the judge said.
At the hearing, Carter declined to address the prioritization issue, but shortly after the session concluded he issued a written order requiring Eastman to move now to process the documents from Jan. 4 to Jan. 7 of last year.
“The Select Committee’s request is reasonable in light of the unexpectedly large volume of documents produced and the critical relevance of the time period to the investigation,” the judge wrote.
Carter said it wasn’t clear how Eastman would be harmed by first addressing the emails closest in time to Jan. 6. “He has failed to point to any prejudice to him that would result from reviewing the documents in this order,” the judge said.
Letter also revealed at the hearing that the initial batch of emails Eastman sent to the committee on Friday contained only news stories and similar materials.
“All of the pages that were produced to us were things like news articles,” the House attorney said. “That’s basically useless.”
Letter said that in order to speed up the process, the House panel was willing to agree not to receive news articles and communications with Eastman’s family members. Both sides ultimately agreed to that.
However, Burnham said it would be a struggle for Eastman to review 1,500 pages per day, especially when things like newspaper stories were weeded out. Eastman’s lawyer also said it was unfair to compare the task they face with the offer by Eastman’s former employer to turn the records over within three days.
“Chapman was simply going to hand it all over,” Burnham said. “We are constrained. We can’t do that. We simply can’t. … That absolutely makes it an apples-and-oranges comparison.”