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Donald Trump and his lawyer, former Chapman law school dean John Eastman, launched “a coup in search of a legal theory,” U.S. District Court Judge David O. Carter recently wrote in his stunning 44-page opinion. Carter found it “more likely than not” that Trump committed two federal crimes to further his and Eastman’s “campaign to overturn a democratic election, an action unprecedented in American history.”
Carter’s opinion provides a road map for Attorney General Merrick Garland’s Department of Justice to bring criminal charges against Trump. Although the House of Representatives Select Committee to Investigate the January 6 Attack on the U.S. Capitol (“Select Committee”) can send a criminal referral to the Justice Department, only the department can file a criminal indictment.
In January, Garland said that the department “remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law.”
Carter found it was more likely than not that Trump committed federal crimes. Carter’s conclusions were tantamount to a finding of probable cause for Trump’s arrest, even though the judge was opining in a civil case about whether Eastman must turn over documents to the Select Committee.
Probable cause to believe a crime has been committed is required for an arrest in a criminal case. But, as the 7th Circuit U.S. Court of Appeals noted in the 2000 case of United States v. Sawyer, probable cause may require a lesser showing than “more likely than not.” The appeals court wrote, “Probable cause, however, does not require evidence sufficient to support a conviction, nor even evidence demonstrating that it is more likely than not that the suspect committed a crime.”
Eastman Asserts Attorney-Client Privilege and Work Product Doctrine to Resist Subpoena
On November 8, 2021, the Select Committee issued a subpoena to Eastman to produce relevant documents and communications. Eastman declined to produce any materials and asserted his Fifth Amendment privilege against self-incrimination 146 times.
On January 20, 2022, Eastman filed a complaint and application for a temporary restraining order. He asked the court to prevent his former employer, Chapman University, from complying with the Select Committee’s subpoena to produce documents between November 3, 2020, and January 20, 2021, that were stored on its servers and related to the 2020 election or the January 6 Joint Session of Congress, which convened to count the electoral votes for the 2020 presidential election victory of Joe Biden.
Eastman claimed that the attorney-client privilege and the work product doctrine shielded him from producing the documents and communications. He offered an unsigned, undated retainer agreement between him and candidate Trump as well as Trump’s campaign committee.
Carter found that Eastman had an attorney-client relationship with Trump and his campaign between January 4 and 7, 2021. Eastman appeared on behalf of Trump in a Georgia lawsuit on January 5. He also attended closed-door meetings with (and on behalf of) Trump, where Eastman presented his legal theories about the Electoral Count Act, which sets forth the process for counting the electoral votes.
Moreover, in Trump’s January 6 speech before the angry crowd of his supporters stormed the Capitol, he explicitly mentioned Eastman’s legal role in developing the plan to stop or delay the vote count.
Trump’s Criminal Activity Fits the Crime-Fraud Exception to the Attorney-Client Privilege and the Work Product Doctrine
The attorney-client privilege and the work product doctrine will not allow an attorney to conceal client communications if a client consults the attorney to enable the commission of a fraud or crime. Carter found it more likely than not that Trump corruptly attempted to obstruct an official proceeding, and that Trump and Eastman conspired to defraud the United States by disrupting the electoral count.
The federal crime of obstruction or attempted obstruction of an official proceeding requires that (1) the individual obstructed, influenced or impeded, or attempted to obstruct, influence or impede (2) an official proceeding of the U.S., and (3) did so corruptly.
Carter found that Trump attempted to obstruct an official proceeding by initiating a pressure campaign to convince Vice President Mike Pence to disrupt the Joint Session of Congress on January 6. Trump facilitated two meetings before January 6 to persuade Pence to disrupt the Joint Session. On January 4, Trump and Eastman hosted a meeting in the Oval Office with Pence and his lawyer and chief of staff. At that meeting, Eastman laid out his plan for Pence to either reject electors or delay the vote count. When Pence resisted, Trump sent Eastman to meet with Pence the following day to try to convince him.
In addition, Carter found that on the morning of January 6, Trump made several last-minute appeals to Pence to pressure him to carry out Eastman’s plan. Trump gave a speech to a large crowd where he warned, “Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not, I’m going to be very disappointed in you. I will tell you right now.” Trump exhorted his followers, “Let’s walk down Pennsylvania Avenue” to give Pence and Congress “the kind of pride and boldness that they need to take back our country.”
“The illegality of the plan was obvious,” Carter wrote. “President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election.”
Carter concluded it is “more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.”
The federal crime of conspiracy to defraud the United States requires that (1) at least two people agree to obstruct a lawful function of the government (2) by dishonest or deceitful means, and (3) that a member of the conspiracy commit at least one overt act in furtherance of the agreement.
Carter found “strong circumstantial evidence” of an agreement between Trump and Eastman to carry out Eastman’s plan, citing two meetings with high-ranking officials to advance the plan. Carter also quoted Trump’s praise for Eastman: “John is one of the most brilliant lawyers in the country, and he looked at this and he said, ‘What an absolute disgrace that this can be happening to our Constitution.’”
Moreover, Carter cited evidence that Trump knew the plan was illegal but continued to push for it despite its illegality, which constituted “dishonest” means. Carter also found that “Eastman himself repeatedly recognized that his plan had no legal support,” adding, “In his discussion with the Vice President’s counsel, Dr. Eastman ‘acknowledged’ the ‘100 percent consistent historical practice since the time of the Founding’ that the Vice President did not have the authority to act as the memo proposed.”
Carter noted that Eastman admitted on multiple occasions that “his proposal violate[d] several provisions of statutory law.” Thus, Carter concluded Eastman “likely acted deceitfully and dishonestly.”
Carter found that Trump and Eastman committed “numerous overt acts in furtherance of their shared plan.” The judge cited Trump’s “acts to strong-arm” Pence and “berating him in a speech to thousands outside the Capitol.” Carter also mentioned Eastman’s January 6 speech “demanding” that Pence “stand up” and carry out the plan.
Carter Found Actions in Furtherance of Crime or Fraud
The crime-fraud exception will pierce the attorney-client privilege and the work product doctrine and require the attorney to disclose client communications if the “communications for which production is sought are ‘sufficiently related to’ and were made ‘in furtherance of [the] intended, or present, continuing illegality,’” Carter wrote.
In a civil case, the burden of proof is on the party seeking disclosure of the material under the crime-fraud exception. That standard of proof is “preponderance of the evidence, meaning more likely than not,” Carter noted.
Carter ordered the disclosure of a memo that Eastman drafted for Trump’s attorney Rudy Giuliani, which recommended that Pence reject electors from contested states on January 6. Carter found that since “the memo likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States, it is subject to the crime-fraud exception.”
“The plan spurred violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process,” Carter wrote. “If Dr. Eastman and President Trump’s plan had worked,” the judge added, “it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution. If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”
Carter ordered Eastman to disclose 101 documents to the Select Committee.
Garland’s Justice Department Should Indict Trump and Eastman
As Rep. Adam Schiff (D-California) noted, the responsibility of determining criminal liability does not rest solely with the Select Committee. “I think when you have a federal judge state that the former president of the United States likely engaged in crime or fraud, and that he believes there’s sufficient evidence to justify that conclusion, it’s something that the Justice Department needs to pay very strong attention to,” Schiff said.
The Justice Department has made over 775 arrests, including a charge of seditious conspiracy against the head of a far right militia group. More than 280 people have been charged with obstructing Congress in its duty to certify the election results.
Speaking to reporters on April 2, Garland said he and his team of prosecutors felt only pressure “to do the right thing”; that is, to “follow the facts and the law wherever they may lead.”
Evidence of Trump’s crimes continues to mount. The Select Committee has received White House telephone logs showing a gap of seven hours and 37 minutes on January 6, during the time when the mob stormed the Capitol. Trump initiated at least one call on a White House phone that was not recorded on the call log.
The 18 minutes missing from the White House tapes about the Watergate scandal brought down President Richard Nixon. Could Trump have engaged in a similar cover-up of his criminal activity? Will he finally be held accountable for his crimes? Stay tuned.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory board of Veterans For Peace and the bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.