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Opinion A federal judge finally says it: Trump probably committed crimes related to Jan. 6

John Eastman, former attorney for Donald Trump, testifies on Capitol Hill in June 2013. (Jacquelyn Martin/AP)

On its face, the ruling that California District Court Judge David O. Carter issued on Monday might appear unexceptional: He rejected Donald Trump lawyer John Eastman’s claims of attorney-client privilege, requiring him to provide documents to the House select committee investigating the Jan. 6 insurrection.

But the ruling is so much more than that. It represents the first time a federal court has found that the defeated former president likely committed multiple felonies.

In his opinion, Carter recites the events surrounding the armed insurgency, reaffirming that Trump knew that the election was not stolen. As he writes, “Numerous credible sources — from the President’s inner circle to agency leadership to statisticians — informed President Trump and Dr. Eastman that there was no evidence of election fraud.” The judge then explains he reviewed batches of documents to determine whether any of the material falls within the crime-fraud exception of attorney-client privilege. On this, he finds 11 documents that the Jan. 6 committee should be able to view.

And this is where Trump gets a rude awakening: “The Court first analyzes whether President Trump and Dr. Eastman likely committed any of the crimes alleged by the Select Committee, and then whether the eleven remaining documents relate to and further those crimes,” he begins. He bluntly concludes, “President Trump attempted to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6.” These efforts included two meetings to persuade Mike Pence to disrupt the electoral count process, some tweets sent on Jan. 6 and Trump’s speech at the “Stop the Steal" rally ahead of the insurrection. “These actions more likely than not constitute attempts to obstruct an official proceeding,” the judge finds.

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Note that in a criminal proceeding, the prosecution would need to prove guilt beyond a reasonable doubt. But in such a case, the prosecution could supply witnesses and documents demonstrating that long before Jan. 6, Trump had set out to stop Joe Biden from taking office.

On the critical issue of intent, Carter writes, “Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting ‘corruptly’. . . . President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful.”

Again, the standard in a criminal trial would be beyond a reasonable doubt, but Carter’s argument is compelling:

The plan not only lacked factual basis but also legal justification. Dr. Eastman’s memo . . . declared Dr. Eastman’s intent to step outside the bounds of normal legal practice: “we’re no longer playing by Queensbury Rules.” In addition, Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states. . . .
Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump knew how to pursue election claims in court — after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.
The illegality of the plan was obvious. 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. . . . Every American — and certainly the President of the United States — knows that in a democracy, leaders are elected, not installed. With a plan this “BOLD,” President Trump knowingly tried to subvert this fundamental principle.

It’s easy to imagine a jury agreeing with Carter’s contention that Trump must have known his scheme was wrong and illegal.

Carter also goes through charges for conspiracy to obstruct an official proceeding and conspiracy to commit fraud. Here, again, there was plainly an agreement between Trump and Eastman to upset the election and an understanding that this was not supported by any precedent or law.

Carter also delivers some bad news to Eastman: “The evidence also demonstrates that Dr. Eastman likely knew that the plan was unlawful. Dr. Eastman heard from numerous mentors and like-minded colleagues that his plan had no basis in history or precedent." Moreover, “Dr. Eastman himself repeatedly recognized that his plan had no legal support. The evidence shows that Dr. Eastman was aware that his plan violated the Electoral Count Act.” He added, "Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.”

While guilt beyond a reasonable doubt is never easy to prove, Eastman appears to be in extreme legal peril. This is exactly the sort of position that might compel someone to turn over evidence to protect themselves from liability.

Carter wraps up with this damning conclusion:

Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower—it was a coup in search of a legal theory. . . .
More than a year after the attack on our Capitol, the public is still searching for accountability. 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. If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.

This is a federal court, not a pundit or politician. Carter has issued a clear invitation — almost a plea — for the Justice Department to pursue charges against both Eastman and Trump. Attorney General Merrick Garland has already said he will follow the facts, but the Jan. 6 committee and now Carter are not only laying out the facts but also connecting the dots. Garland will have an exceptionally hard time justifying a decision not to prosecute.

The facts and law are there. All Garland needs do now is apply them to the case at hand.