Clarence Thomas in Spotlight as Supreme Court Delivers Blow to Trump Ally

The U.S. Supreme Court on Monday rejected an appeal by conservative lawyer John Eastman in which he attempted to shield a number of emails from congressional investigators pertaining to the results of the 2020 election and the January 6, 2021, riot at the U.S. Capitol.

Eastman is one of 19 individuals, including former President Donald Trump, indicted in August in Fulton County, Georgia, for allegedly interfering in the state's election in order to overturn results in Trump's favor. Eastman, Trump and others have defended their actions and maintained their innocence.

Justice Clarence Thomas recused himself from participating in the ruling; Eastman is his former law clerk.

"The ruling itself, I'm not surprised," former federal prosecutor Neama Rahmani told Newsweek. "The Supreme Court usually rejects all sorts of appeals, and it was a bit of a longshot. Thomas recusing himself is surprising because he rarely recuses himself."

The justice has been scrutinized in part due to the actions of his wife, Virginia "Ginni" Thomas, who allegedly supported a fake electoral plot to alter the 2020 election results. She has been speculated to be among the six co-conspirators in Trump's federal indictment for allegedly attempting to overturn his election defeat.

"It should not be big news that Justice Clarence Thomas recused himself from participating in a case involving John Eastman, his former law clerk," wrote former federal prosecutor Joyce Vance on X, formerly Twitter, on Monday. "But in this day & age & for this Justice, it is. Also, Eastman lost. His emails are fair game."

The Court's justices declined to listen to Eastman's appeal stemming from a lower court ruling that backed up a federal judge's determination that his 10 emails could be turned over to a committee within the House of Representatives due to an exception to attorney-client privilege between Eastman and Trump.

In June 2022, U.S. District Judge David O. Carter issued a 26-page order instructing Eastman to hand over 159 documents to the January 6 committee.

Carter made scathing remarks following a review of five of Eastman's emails to determine whether they might be exempt from attorney-client privilege due to the fact they contain evidence of fraud or crime. Not one was covered by privilege.

"Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021," Carter wrote.

The release of the 10 emails to the committee included three meetings in December 2020 that included a "high-profile" leader discussing strategies to overturn the election.

"The Select Committee has a substantial interest in these three meetings because the presentations furthered a critical objective of the January 6 plan: to have contested states certify alternate slates of electors for President Trump," Carter wrote last year.

"Dr. Eastman's actions in these few weeks indicate that his and President Trump's pressure campaign to stop the electoral count did not end with Vice President Pence—it targeted every tier of federal and state elected officials.

"Convincing state legislatures to certify competing electors was essential to stop the count and ensure President Trump's reelection."

Eastman's appeal argued that while the district court in question ruled that some emails fell within the scope of the attorney-client or work product privileges, they were subject to the "crime-fraud" exception.

"That ruling created a stigma for both Petitioner and his client, the former President of the United States and current candidate for the presidency," the appeal stated.

"We're disappointed, of course, that the Court did not accept our request to correct this clear violation of its Munsingwear doctrine, which requires vacating lower court decisions that have become moot, through no fault of the party exercising his right to an appeal," Anthony Caso, a member of Eastman's legal counsel, told Newsweek.

"But we also acknowledge that the Supreme Court is not a Court of mere error correction. The Munsingwear doctrine is clearly established, and we remain of the view that the Ninth Circuit errored in refusing to vacate the erroneous district court decision."

Munsingwear addresses the course of action with a court of appeals decision when the case becomes moot while it is pending review by a higher court, be it the Supreme Court or a court of appeals.

The defendants in the Ninth Circuit case were Representative Bennie Thompson, who chaired the House Select Committee to Investigate the January 6 Attack on the United States Capitol, and Chapman University.

A lawyer can advise clients and represent them, "but you cannot give them advice on how to commit a crime," Rahmani said, adding that Carter's order was "pretty damning."

"Knowledge and intent are critical in the Trump case because the defense will say Trump legitimately thought he won the [2020] election and audited the election and followed his lawyers' advice," he said. "[Special Counsel Jack] Smith and the [Department of Justice], on the other hand, need to show Trump knew he lost and engaged in these tactics anyways to steal the election."

Update 10/02/23, 11:46 a.m. ET: This story was updated with comment from Neama Rahmani, comment from Anthony Caso and additional information.