Judge rules Trump’s efforts to overturn election likely criminal

by Harper Neidig - 03/28/22 11:59 AM ET

Former President Trump and his legal adviser, John Eastman, likely committed multiple federal crimes in their effort to prevent Congress from certifying President Biden’s 2020 election victory, a federal judge ruled on Monday in a civil case involving subpoenas from the House select committee investigating the Jan. 6 Capitol insurrection.

In a 44-page decision about whether some of Eastman’s private communications should be shielded from the panel, U.S. District Judge David Carter said that he found it “more likely than not” that the two engaged in criminal conduct.

“The illegality of the plan was obvious,” Carter, who was appointed by former President Clinton, wrote. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election.”

Carter said there was enough evidence to find a likelihood that Trump committed at least two felonies: obstruction of an official proceeding, a serious charge that has been brought against hundreds of Capitol riot defendants, and conspiracy to defraud the United States.

However, the ruling has no direct bearing on whether Trump will face criminal charges over his efforts to undermine the 2020 results. Carter’s decision came in a dispute over a subset of documents that the select committee had demanded in its subpoena.

Charles Burnham, Eastman’s attorney, said Monday that his client would comply with the judge’s order, but added that Carter’s ruling “relied on evidence cherry picked by the committee, supplemented by news articles.”

“Dr. Eastman has an unblemished record as an attorney and respectfully disagrees with the judge’s findings,” Burnham said in a statement. “Dr. Eastman asks all persons interested in this case to join him in calling upon the January 6th committee to release all the evidence so the courts and the public can reach accurate conclusions about the matters involved.”

The leaders of the House Jan. 6 panel praised the Monday ruling as “a victory for the rule of law” in a statement.

“The Court found that the then-President of the United States more likely than not committed multiple federal crimes in his attempt to overturn the election. The Court’s opinion also includes a warning: that a failure to pursue accountability could set the stage for a repeat of January 6th,” committee Chairman Bennie Thompson (D-Miss.) and Vice-Chair Liz Cheney (R-Wyo.) said.

The dispute centers on whether the documents are protected under attorney-client privilege. The select committee had argued that even where privilege applies, the judge should examine whether the documents in question fall under the crime-fraud exception, which exempts records that were used to further a crime or civil fraud.

Carter found that just one document in the tranche could be considered privileged if not for the crime-fraud exception.

The judge characterized that document as a draft memo that was prepared for Trump attorney and adviser Rudy Giuliani and forwarded to Eastman. Carter said the memo called for then-Vice President Pence to intervene during Congress’s Jan. 6 certification to reject electors from states where the results had been contested by Trump and his allies.

“This may have been the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action,” Carter wrote. “The draft memo pushed a strategy that knowingly violated the Electoral Count Act, and Dr. Eastman’s later memos closely track its analysis and proposal.”

The judge ruled that ten of the documents in the subset were privileged and should be withheld, but ordered Eastman to turn over the other 101 records to congressional investigators.

But while the ruling was narrowly tailored and came in a civil dispute over Eastman’s legal challenge to a subpoena, Carter’s explosive findings mark the first time that a judge has found a reasonable likelihood that Trump broke the law in trying to remain in power.

Still, Carter acknowledged that the case before him is not positioned to address who should be assigned responsibility for last year’s attack on the Capitol.

“More than a year after the attack on our Capitol, the public is still searching for accountability,” the judge wrote. “This case cannot provide it. The Court is tasked only with deciding a dispute over a handful of emails. This is not a criminal prosecution; this is not even a civil liability suit. At most, this case is a warning about the dangers of ‘legal theories’ gone wrong, the powerful abusing public platforms, and desperation to win at all costs.”

“If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution,” Carter continued. “If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”

Updated at 7:04 p.m.