By Catherine Yang
Kenneth Chesebro, who served as an attorney for the Trump Campaign during the then-president’s challenge of the 2020 elections, is arguing that the Fulton County District Attorney’s office is violating attorney-client privilege in its pursuit of a case against him, former President Donald Trump, and 17 other defendants.
In Thursday filings, Mr. Chesebro moved to quash the charges against him in Fulton County, arguing that they were based on emails covered by attorney-client privilege, and have any such illegally obtained evidence thrown out.
The 19 co-defendants were charged with violating Georgia’s Racketeer Influenced and Corrupt Organizations Act, as well as 40 other charges, for their actions in the contesting of the 2020 election results.
Mr. Chesebro had consulted the Trump Campaign on the use of alternate slates of electors in states where they where challenging the results. The prosecutors have alleged that Mr. Chesebro and others involved committed fraud, while Mr. Chesebro and several others argue that none of the actions listed in the indictment show fraud or allege the other crimes they were charged with. All 19 defendants have pleaded not guilty.
“The State has made absolutely no showing of any activity by Mr. Chesebro that was outside the bounds of his role as a lawyer for the Trump Campaign, much less in furtherance of criminal or fraudulent activity,” his Thursday filing reads.
Leaked and Privileged Emails
According to the motions filed, the prosecutors intend to introduce five emails between Mr. Chesebro and the Trump Campaign as evidence and four of those were mentioned in the 98-page indictment that describes Mr. Chesebro’s communications with the campaign as overt actions to further a conspiracy, and the fifth one was earlier leaked to the press.
“They are privileged communications between lawyers representing a client, addressing matters bearing strategy relating to litigation which was then pending or was anticipated,” the filing reads, adding that neither Mr. Chesebro nor the Trump Campaign have agreed to waive attorney-client privilege.
The emails detail a plan to challenge election results in court, mapping out various plans should the challenges need to be appealed all the way to the Supreme Court, as well as the involvement of then Vice President Mike Pence in counting the electoral votes in Congress.
“They sketch possible strategies for maximizing the time available for the Trump Campaign to prevail in litigation,” the filing reads.
The crime-fraud exception to attorney-client privilege requires the prosecution to demonstrate that there is a factual basis showing a crime was already committed and the correspondence furthered the fraud or crime. Mr. Chesebro argues the only evidence submitted was the actual content of the leaked email, which was still privileged.
In Georgia law, the exception cannot be made “merely by making a charge of fraud.”
“The court based its holding on the content of the e-mail itself,” the filing reads. “Evidently, the court was of the view that it constituted a crime or fraud for an attorney to suggest that aspects of the Act which scholars had concluded are unconstitutional … should be disregarded by the President of the Senate on January 6, for the purpose of triggering a test case by which the Supreme Court could resolve the issue … on which the Biden Campaign was relying heavily in its own strategy.”
The prosecution had characterized the potential legal challenge as a “knowing” violation of the Electoral Count Act.
The leaked email became evidence in a separate, unrelated trial: John Eastman, also a lawyer for President Trump during the 2020 challenge of the election results, is facing disbarment in California over several actions including his work with the Trump Campaign. Mr. Eastman is also one of the 19 co-defendants in the Fulton County case.
Mr. Chesebro pointed out that the leaked email, which had been forwarded to Mr. Eastman, was brought up in California federal court, which deemed it privileged, but that the protection was waived when it was leaked to the media.
“Mr. Chesebro’s legal analysis was premised on the undisputed truth that there was ongoing litigation,” the filing reads. “And that the deployment of alternate or contingent electors was essential to preventing the pending litigation from becoming moot on December 14, 2020, and to preserve the ability of the States to have their electoral votes accurately counted in Congress, based on the final outcome of litigation, on January 6, 2021.”
Mr. Chesebro is requesting that all legal memos be excluded from evidence in the Fulton County case, while also filing a motion to quash evidence obtained in search warrants that violated Georgia law. In July, before Mr. Chesebro was indicted, a judge had signed a search warrant to obtain a copy of Mr. Chesebro’s MSN email account, which included emails Mr. Chesebro sent to the Trump Campaign and other attorneys.
“These communications are the exact type of communications that the statute is meant to protect,” he wrote, arguing that the prosecution is well aware of this and “backdoored its way into protected communications, and then used those same protected communications as a means to obtain further protected documents.”
Mr. Chesebro’s attorneys were not given the opportunity to review the material obtained by the search warrant, and argue such evidence is “illegal.”
