John Eastman signs a hat won by a supporter during a live auction at the California Republican Assembly convention at the Knott's Berry Farm Hotel in Buena Park, California, on Saturday, March 19, 2022. Photo: Meghann M. Cuniff/ALM

Federal agents seized John Eastman's cellphone under a search warrant served outside a New Mexico restaurant last week, according to a motion Eastman's lawyers filed Sunday seeking its return.

The motion includes a copy of the six-page warrant that authorized the seizure of any electronic devices and all information on them during a search of "the person of John Eastman and the area within his immediate control." 

The warrant references a supporting affidavit, but none is included in the filing and Eastman's lawyers said he was not provided one. The warrant was signed June 17 by U.S. Magistrate Judge Laura Fashing, with the search and seizure authorized between 6 a.m. and 10 p.m. on or before July 1.

Eastman's motion says it was served "the evening of June 22″ as Eastman exited a restaurant. Agents first refused to show him the warrant when he asked, and they frisked him and seized his iPhone Pro 12, according to the motion, which also says Eastman "was forced to provide biometric data to open said phone." He was then given a copy of the warrant but not the affidavit, his lawyers said.

"The warrant mentions no crime at all, much less any specific crime, and even if the specifics necessary to support a finding of probable cause related to a specific crime are contained in the supporting affidavit, the affidavit was not attached to the warrant and therefore cannot serve to cure the warrant's facial defect on this score," according to Monday's 13-page emergency motion, signed by Charles Burnham of Burnham & Gorokhov in Washington, D.C., and Joseph Gribble of Crowley & Gribble in Albuquerque, New Mexico.

The motion wants a judge to order the return of Eastman's phone as well as "all information" in it, and to order the destruction of "all copies of any information that has already been retrieved or copied from the device." It also wants all access to the phone and its information to be halted "until he has a full and fair opportunity to assert and protect his Constitutional rights and the privileged communications of his numerous clients."

The motion is the first confirmation of a criminal investigation into Eastman, who was a lead lawyer for President Donald Trump's post-election legal challenges and been accused of likely criminal behavior by both the Jan. 6 Committee and U.S. District Judge David O. Carter of the Central District of California. 

With the Committee's pubic hearings now underway, Carter's finding about Eastman and Trump's "more likely than not" committing obstruction of an official proceeding and conspiracy to defraud the United States has drawn heightened attention, as has the judge's call for action in his March 28 order.

But Eastman's filing on Monday continues an aggressive stance he's taken against the committee's investigation and Carter's determination that the crime-fraud exception can be applied to otherwise privileged Eastman emails. It also invokes the privilege claims that led to Carter halting Chapman University—where Eastman was a law professor—from disclosing Eastman's emails to the committee in January.

While the judge ultimately made highly publicized rulings against Eastman, he also oversaw a nearly five-month review of the emails that resulted in many being withheld from the committee because of attorney-client or work product privileges. That incudes 10 that were reclassified following Carter's June 7 order after Eastman pointed out errors in the analysis.

And though he ruled the crime-fraud exception applied to two otherwise privileged documents, Carter repeatedly recognized Eastman's rights as an attorney during the litigation.

Now Eastman is citing that process in his new filing in the District of New Mexico, with his lawyers writing that the court "expressly determined that a number of movant's emails—emails which are accessible through movant's cell phone—are protected by the First Amendment's freedom of association, by attorney-client privilege, and/or by the work product doctrine."

"The California district court also found that hundreds of movant's emails—also accessible by the seized phone—are protected by attorney-client privilege and/or the work product doctrine," according to the motion.

The U.S. Department of Justice has not yet replied to the motion.