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.
Garland was introduced in January said that the department “remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law.”
Carter found that Trump was more likely to have committed federal crimes than not. 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.
An arrest in a criminal case requires probable cause to believe that a crime has occurred. The 7th Circuit U.S. Court of Appeals observed 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 Rejects Subpoenas by Using Attorney-Client Privilege
The Select Committee issued a subpoena on November 8, 2021 to Eastman for the production of relevant documents and communications. Eastman declined to produce any documents and asserted his Fifth Amendment rights against self-incrimination, 146 times.
Eastman filed a complaint on January 20, 2022 and applied for a temporary restraining or. 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 — whichshielded 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 was an attorney-client relationship to Trump and his campaign between January 4, 2021 and January 7, 2021. Eastman represented Trump in a Georgia lawsuit. He also attended closed door meetings with Trump (and on his behalf) where Eastman presented legal theories about the Electoral Count Act which outlines the process for counting the electoral vote.
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
If a client consults an lawyer to enable the commission or initiation of fraud or other crimes, the attorney-client privilege does not protect them from releasing client communications. Carter believed that Trump attempted to corruptly obstruct an official proceeding. He also believed that Eastman and Trump conspired for the purpose of defrauding the United States by disrupting its electoral count.
Federal crime of obstruction or attempted obstruction of an official proceeding(1) An individual must have obstructed or influenced or impeded (2) a U.S. official proceeding and (3) done so corruptly.
Carter found that Trump attempted obstruction of an official proceeding by initiating pressure campaigns to persuade Vice President Mike Pence on January 6 to disrupt the Joint Session. Trump hosted two meetings to persuade Pence that the Joint Session should be disrupted. Pence, his chief of staff and lawyer, and Trump hosted a meeting in Trump’s Oval Office. Eastman presented his plan for Pence, which was to either reject electors (or delay the vote count). Trump sent Eastman to meet Pence the next day to try and convince him, but Pence refused.
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.”
Federal crime of conspiracy to defraud the United StatesIt is required that (1) at most two people agree to obstruct the lawful function (2) by dishonesty or deceitful means and (3) that at least one member of the conspiracy commits at least one overt act to further 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 to Further Crime or Fraud
The crime-fraud exception will pierce the attorney-client privilege and require the attorney to disclose confidential 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 civil cases, the burden is on the party who seeks disclosure of the material pursuant to the crime-fraud exclusion. That standard of proof is “preponderance of the evidence, meaning more likely than not,” Carter noted.
The attorney-client privilege can be overcome by the crime-fraud exemption. It does not need to be committed. The client must only consult the attorney to resolve a crime.
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 found 10 documents to have been privileged, but he ordered Eastman for 101 documents to be disclosed to the Select Committee.
Garland’s Justice Department Should Indict Trump and Eastman
Rep. Adam Schiff (D.California). notedThe Select Committee does not have the sole responsibility for determining criminal liability. “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 over 775 arrestsIncluding a charge for seditious conspiracy against a head of a far-right militia group. More than 280 people were charged with obstruction of Congress’ duty to certify election results.
Garland speaks to reporters April 2, 2008. 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 obtained telephone logs from the White House showing a gap7 hours, 37 minutes, January 6, 2017, during which the mob stormed Capitol. Trump made at most one call to a White House phone, but it was not recorded on the call log.
President Richard Nixon was sacked because 18 minutes were missing from White House tapes concerning the Watergate scandal. Could Trump have committed a similar cover-up to his criminal activity? Will he be held accountable for his crimes finally? Keep checking.