A federal judge in California yesterday ruled that Donald Trump and one of his legal advisers, former Chapman University law professor John Eastman, probably committed federal felonies when they conspired to reverse the outcome of the 2020 presidential election by pressuring then–Vice President Mike Pence to block or delay congressional ratification of Joe Biden’s victory. U.S. District judge David O. Carter found it “more probable than not” that this scheme was in violation of 18 USC 1512 (which prohibits obstruction “of any official proceeding”) and 18 USC 371 (“defrauding the United States”)
Carter made this determination as he was adjudicating a dispute about emails sought by the House selected committee into the January 6, 2021 riot that occurred at the U.S. Capitol. It was started by Trump supporters who had accepted the stolen election dream and became angry at Pence because he refused to accept Eastman’s plan. The practical effect of Carter’s decision is very limited. However, the analysis does amount to an indictment not only of dishonesty and reckless conduct but also arguably of criminal behavior.
Carter states that Carter was able to see the obvious illegality in Carter’s plans. The peaceful transfer of power was the foundation of our nation, as demonstrated by George Washington’s willingness to give up his sword in order to allow for democratic elections. Trump persistently advocated that the Vice President determine the outcomes of the 2020 elections. Vice President Pence said that ‘no American Vice President has ever claimed such authority’. Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed….President Trump knowingly tried to subvert this fundamental principle.”
Eastman claimed that 111 documents requested by the Jan 6th committee were subject to attorney-client privilege. This applies to confidential legal information, and the “work product doctrine” applies to materials prepared for litigation. Invoking the “crime fraud exception,” which covers legal advice given “in support of” a crime, the select committee claimed that emails disputed were not covered.
Carter determined that thirteen documents were work products and the exception to crime-fraud applied only to one. This memo, which Rudy Giuliani prepared for Trump’s attorney Rudy Giuliani, recommending that Pence “reject voters from contested state on January 6.” Carter claims that this memo may have been the first to transform a legal interpretation under the Electoral Count Act in to a daily plan of action by Trump’s staff.
Carter points out that this plan was clearly illegal. Greg Jacob, Pence’s lawyer, confirmed that Eastman’s plan was in violation of the Electoral Count Act. Carter states that Eastman did not question the Constitutionality of the Act, but that it was better to address the matter in court than to ignore it unilaterally.
Eastman also acknowledged that it had been “100% consistent historical practice since time of Founding” for him to assume that Trump and Eastman wanted the vice president to act in accordance with their wishes. Eastman acknowledged that it was possible for the Supreme Court to agree.
Eastman wrote, however, a six page memo calling for Pence’s “BOLD” action to prevent Biden taking office on January 3, 2021. He stated that “the stakes could never be higher.” This Election was stolen by a strategy Democrat plan to systematically ignore existing electoral laws in order to gain partisan advantage. We’re not playing by Queensbury Rules any more.
Trump ordered Eastman to push his plan the next day in a meeting with Jacob, Pence and Marc Short. Short was also appointed as vice president’s chief staff officer. Carter says that during that meeting, Vice President Pence maintained that he was not authorized to execute Dr. Eastman’s suggestion. Jacob and Short met with Eastman again on January 5th, where he stated that he was asking for the rejection of electors. The argument that Jacob had against Eastman’s memo was the main focus of the meeting.
Carter said that despite being pushed back, Carter and Dr. Eastman urged Vice President Mike Pence to continue the plan despite receiving resistance.” Trump wrote that “if @Mike_Pence shows up for us, then we will win the Presidency,” at 1:01 AM January 6. He also stated that “Mike has the ability to send it back!” A second tweet from Trump was posted seven hours later. He stated that the “states” wanted to rectify their voting results and said “all Mike Pence needs to do is send them home to the States. AND, WE WIN!” Pence was urged to do so by Trump, because it is “a time of extreme courage!”
Trump relayed the same message during a call with Pence at 11:20 am that morning. The national security advisor to Pence, who was there during the conversation, said that Trump called Pence “not tough enough” to call. Trump and Eastman recited the same theme in their speeches at the Stop the Steal rally, which was held before the Capitol riot. Trump ended his speech encouraging his supporters to march on Capitol Hill in hopes of inspiring the “kind of pride and boldness that weak” Republicans such as Pence need “to take back the country”.
Pence, who publicly rejected Eastman and Trump at noon, stated, “It’s my considered judgement that my oath of support and defend Constitution restrains my ability to claim unilateral authority to decide which electoral votes ought to be counted or not.” Trump called Pence a traitor on Twitter after the riot. He said that Pence had not shown the courage necessary to act to safeguard his country and the Constitution. The States were given the chance to verify the correct facts. They weren’t asked before to confirm the incorrect or fraudulent ones. USA demands truth!
Jacob wrote an email to Eastman stating that Trump’s supporters stormed the Capitol while they were angry. Jacob also noted that the rioters believed with their hearts that Trump had sold them the idea of the power that could be legitimately exercised at Capitol.
We are currently under siege because of your bullshit,” as Pence stated. Eastman, still trying to get Pence to change his mind, had a different opinion: “The siege’ was because YOU (or your boss) did not allow it to be air publicly so that American citizens can see the truth.”
To be convicted of obstruction or attempted obstruction in an official proceeding, the prosecution must prove that the defendant “corruptly” acted. 9th Circuit precedent says that this element doesn’t require any “consciousness of wrongdoing.” Carter says that Trump in the present case “likely knew” the scheme to discredit the electoral vote was fraudulent.
Trump and Eastman claimed that the election was stolen by systematic fraud. However, cybersecurity experts and state officials from both sides, as well as the courts and many “numerous executives branch officials”, including William Barr, rejected that claim. Carter stated that Trump knew “likely” the justification for his actions was flawed, and therefore declared “the entire plan illegal”. This point is underlined by Eastman’s admissions regarding the legal doubtfulness of his “BOLD” plan.
A conviction for conspiracy to defraud the United States requires coordination, the use of “deceitful or dishonest means,” and at least one “overt act”—all aimed, in this case, at obstructing “a lawful government function.” Carter feels that Trump’s and Eastman’s behavior in blocking a congressional proceeding would also satisfy those elements.
Carter’s findings do not necessarily indicate that Trump or Eastman may be successful prosecuted for any of the crimes. The preponderance-of-the-evidence standard for applying the crime-fraud exception is much less demanding than the proof beyond a reasonable doubt required for a criminal conviction. Even if the Jan 6 Committee recommends criminal charges, it is possible for the Justice Department to decline to pursue those cases. Carter’s decision, in which Eastman is called “a coup to search for a legal theory,” highlights how absurd and unusual Trump’s response to the electoral loss.
“More that a year has passed since the attack on the Capitol, the public still searches for the missing pieces.”
accountability,” Carter writes. This case is unable to provide it. The Court’s task is to decide a dispute involving a small number of emails. This case is not an investigation into criminality; in fact, it’s not even a civil lawsuit. This case serves as a cautionary tale about the dangers associated with ‘legal theories gone wrong’, powerful abuse of public platforms and desperate attempts to win.