Saturday, September 23

Judge: Trump ‘more likely than not’ committed crime in trying to block Biden win

The determination from U.S. District Judge David O. Carter came in a ruling addressing scores of sensitive emails that Trump ally and conservative lawyer John Eastman had resisted turning over to the House select committee investigating the Jan. 6 riot and related efforts to overturn the 2020 presidential election result.

Eastman wrote key legal memos aimed at denying Democrat Joe Biden’s victory. The judge was assessing whether Eastman’s communications were protected by attorney-client privilege and was analyzing in part whether Eastman, Trump and others had consulted about the commission of a crime.

“Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021,” wrote Carter, who is based in California and has jurisdiction because that is where Eastman filed the case.

Trump spokesman Taylor Budowich called the ruling “absurd and baseless” and said it was an example of “how the left is weaponizing every branch of government against President Trump.”

Eastman’s legal team issued a statement saying that Eastman had a “duty” to raise attorney-client privilege claims to protect communications for those he represented, but that he “intends to comply with the court’s order” to turn over documents.

Carter based his assertions on a review of Eastman’s email communications — only one of which the judge determined might be evidence of the furthering of a crime — as well as publicly known facts about Trump’s actions in the run-up to the Jan. 6 riot.

His ruling does not mean Trump will be charged with a crime, or even investigated. But the opinion will increase pressure on the Justice Department to intensify its probe of the Jan. 6 riot, and potentially examine the conduct of Trump himself. While Attorney General Merrick Garland has vowed to hold accountable those responsible for the violent breach of the Capitol “at any level,” there have been scant signs that the Justice Department is directly investigating Trump’s conduct.

The ruling is also a win for the Jan. 6 committee, which has been moving aggressively to subpoena documents and call witnesses. The committee voted Monday night to recommend holding two former Trump aides — former trade and manufacturing director Peter Navarro and former communications chief Daniel Scavino Jr. — in criminal contempt of Congress for refusing to comply with its subpoenas. The House will vote soon on whether to refer the men to the Justice Department for possible prosecution.

The committee also plans to seek an interview with Virginia Thomas, a conservative activist and the wife of Supreme Court Justice Clarence Thomas, said a person familiar with the matter who spoke on the condition of anonymity to discuss internal committee plans. Virginia Thomas, who goes by Ginni, has drawn scrutiny for her text messages to then-White House Chief of Staff Mark Meadows, in which she repeatedly pressed Meadows to work aggressively to overturn the 2020 election and keep Trump in power.

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Committee Chairman Bennie G. Thompson (D-Miss.) and Vice Chair Liz Cheney (R-Wyo.) said in a statement that the judge’s ruling was “a victory for the rule of law,” noting it cleared the way for them to obtain materials important to their investigation.

On Monday, former U.S. attorney Barbara McQuade said Carter’s ruling was particularly significant because he had read “emails that are not yet known to the public, and his reaction is one of serious alarm.”

“While DOJ makes its own decisions about when to initiate an investigation, today’s ruling cannot be ignored,” McQuade said.

Former federal prosecutor Randall Eliason noted that although the ruling will not have any legal impact on what the Justice Department does, it marked the second time a federal judge has suggested that Trump might be culpable in a crime connected to Jan. 6. Last month, a federal judge in D.C. rejected Trump’s claim of immunity from lawsuits accusing him of inciting the riot, finding that there was evidence to plausibly suggest that he engaged in a conspiracy with organized groups to intimidate Congress.

“There’s starting to be a certain kind of momentum to that,” Eliason said.

In his ruling, Carter noted that he was assessing the legal arguments surrounding whether Eastman could be compelled to turn over documents to the Jan. 6 committee — not making a decision about how the legal system should respond to Trump’s actions. But he suggested that someone else should be holding Trump and his allies accountable.

“More than a year after the attack on our Capitol, the public is still searching for accountability. This case cannot provide it,” wrote Carter, who was appointed to the bench by President Bill Clinton in 1998. “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.”

Eastman’s legal team noted in its statement that the court’s findings “were not subject to the presumption of innocence, proof beyond a reasonable doubt, or any of the constitutional protections normally applicable to criminal proceedings.”

“Dr. Eastman has an unblemished record as an attorney and respectfully disagrees with the judge’s findings,” the legal team wrote.

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A spokesman for the Justice Department declined to comment.

Former U.S. attorney Joyce White Vance noted that, in assessing whether Trump had committed a crime, Carter had said only that a “preponderance of the evidence” demonstrated as much. That legal standard, used in civil cases, is less rigorous than what criminal prosecutors would have to show: that the evidence proved Trump guilty “beyond a reasonable doubt.”

“But,” Vance added, “the evidence is compelling.”

Carter’s 44-page opinion concludes that lawmakers are entitled to have 101 of the 111 documents the committee sought. The opinion assesses the materials in batches, examining whether the committee should be able to access them, or whether they should be shielded by attorney-client privilege.

Most significantly, the ruling assesses whether 11 of the documents should be turned over because of what is known as the “crime-fraud exception.” That exception allows the committee to get around the shield of attorney-client privilege if lawmakers can demonstrate the communications they are seeking were advancing a crime.

Just one of those 11 documents qualified, the judge ruled: “a chain forwarding to Dr. Eastman a draft memo written for President Trump’s attorney Rudy Giuliani.” Carter wrote that the memo recommended that Vice President Mike Pence reject electors from contested states on Jan. 6.

“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,” the ruling says. “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 memo is both intimately related to and clearly advanced the plan to obstruct the Joint Session of Congress on January 6, 2021.”

Nine of the 11 documents were “emails or attachments discussing active lawsuits in state and federal courts,” the judge wrote. The other was an email sent late on Jan. 6 that “responded to a request to participate in Dr. Eastman’s work on behalf of President Trump.”

“While the email discusses Vice President Pence’s refusal to reject or delay the electoral count, the email was not ‘itself in furtherance’ of the plan and thus does not fall within the crime-fraud exception,” the ruling says.

Carter was responding to a court filing earlier this month in which the committee’s lawyers alleged that Trump and key allies engaged in potential crimes during their effort to overturn the election. They specifically cited conspiring to defraud the United States and obstructing an official congressional proceeding — the counting of electoral votes.

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Carter broke down each potential charge, detailing at length Trump’s pressure to have Pence “single-handedly determine the results of the 2020 election.”

On Jan. 4, the judge wrote, Trump and Eastman hosted an Oval Office meeting with Pence and his advisers, and Eastman presented a plan “focusing on either rejecting electors or delaying the count.” When Pence was unpersuaded, the judge wrote, Trump sent Eastman to review the plan with Pence’s lawyer. In that meeting, the judge wrote, Eastman was blunt about his intentions, saying, “I’m here asking you to reject the electors.”

Police radio communications synchronized with hours of footage show how failures of planning and preparation left police at the Capitol severely disadvantaged. (Video: The Washington Post, Photo: The Washington Post)

On Jan. 6, the judge wrote, Trump posted messages on Twitter beseeching Pence to act and called Pence directly, urging him “‘to make the call’ and enact the plan.” Trump then gave a speech to a large crowd on the Ellipse. Trump 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 ended the speech by asking his supporters to walk down Pennsylvania Avenue to give Pence and Congress “the kind of pride and boldness that they need to take back our country,” the judge wrote.

“Together, these actions more likely than not constitute attempts to obstruct an official proceeding,” his ruling states.

Carter wrote that Eastman and Trump “justified the plan with allegations of election fraud — but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful.”

The judge noted, as the Jan. 6 committee had, that executive branch officials had “publicly stated and privately stressed to President Trump that there was no evidence of fraud,” and that by early January, “more than sixty courts dismissed cases alleging fraud due to lack of standing or lack of evidence.”

“Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history,” the judge concluded. “Their campaign was not confined to the ivory tower — it was a coup in search of a legal theory. 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.”

Jacqueline Alemany, Josh Dawsey and Amy B Wang contributed to this report.

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