DOJ Takes Action Against John Eastman To Retain Seized Phone

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John Eastman, the prominent, Trump-tied attorney who helped spearhead the push for then-VP Mike Pence to take legally baseless action meant to stop the Congressional certification of the 2020 presidential election outcome, wants his phone returned from the Justice Department and records obtained from it by the department to be destroyed.

The department isn’t buying it. FBI agents originally seized Eastman’s phone in June. Among other arguments from Eastman, he complained in a court push for the reclamation of his phone that he didn’t see the warrant authorizing the seizure until after agents took the device, which prosecutors working on the case say is a legally baseless argument. “No rule requires agents to serve warrants before executing them,” a filing from prosecutors bluntly states. “In the movant’s professorial view, he should have been provided a copy of the warrant prior to its execution, and then apparently given time (minutes? hours?) to read and analyze it… all while agents stood in a parking lot, in an open-carry state, knowing that the movant was authorized to carry a concealed weapon,” federal prosecutors noted. “Setting aside the practical absurdity of such a position, the movant admits that the law does not support his view.”

“Movant” refers to Eastman. The attorney evidently tried to use isolated instances of potential legal precedent to counter the portions of federal legal standards he noted contradicted his position on the matter of the timing of presenting the warrant, but prosecutors contested that such applied. “But still, the movant soldiers on, relying on Ninth Circuit cases that set forth procedures that appear to be in question in even that Circuit and are not precedential here,” as prosecutors summarized their take. “In sum, the movant seeks special treatment not required by statute, rule, or caselaw, and not accorded to others faced with federal search warrants.” Eastman also complained the the seizure of his phone originates with investigative efforts by the inspector general overseeing the Justice Department, whose jurisdiction he argued is limited to department staff — but prosecutors said that characterization of the official’s reach is inaccurate.

Authorities obtained two separate warrants dealing with Eastman’s phone; the first provided for the initial seizure, while the second allowed a search of the device’s contents. The search procedures established by the second warrant were accompanied by a process by which investigators would be avoiding an examination of items covered by privilege, per a federal filing. The details of that process weren’t immediately available, although the info was provided to Eastman’s attorneys.

It doesn’t appear as though authorities have, however, confirmed the specific, potential crimes driving their investigation of Eastman. One of the arguments noted in the new filing from prosecutors is that Eastman “laments” he wasn’t provided with the affidavit showing underlying reasonings for the warrant along with the warrant itself. “But the law only, and properly, requires a neutral magistrate judge to find probable cause to search for and seize any electronic devices on his person; it does not require that the person searched know the basis for the warrant,” the filing says.

Arguments Eastman pushed in the aftermath of the last election hinged on the usage of so-called alternate slates of electors from key states Biden won, but the preparation of these essentially faked electoral votes carried no legal foundation. The Justice Department is investigating other elements of the fake electoral votes scheme: individuals from Georgia to Arizona who were part of it were served with grand jury subpoenas, and Jeffrey Clark, a then-Justice Department official who wanted the department to urge Georgia legislators to get behind the fake electoral vote effort, saw his Virginia residence searched.