Lawyers for the House panel investigating the Jan. 6, 2021 attack on the Capitol said in a court filing Wednesday that former president Donald Trump and key allies engaged in potential crimes during their effort to overturn the election: conspiring to defraud the United States and obstructing an official congressional proceeding — the counting of electoral votes.
The alleged criminal acts were raised by the committee in a California federal court filing challenging conservative lawyer John Eastman’s refusal to turn over thousands of emails the panel has requested related to his role in trying to persuade Vice President Mike Pence to reject electors from states won by Joe Biden. Eastman has cited attorney-client privilege as a shield against turning over the documents because he has said he was representing Trump at the time.
The committee argued in its filing that Eastman’s claim of privilege was potentially voided by the “crime/fraud exception” to the confidentiality usually accorded attorneys and their clients, which holds that communications need not be kept confidential if an attorney is found to be assisting their client in the commission of a crime. They asked the judge deciding whether to release Eastman’s emails to privately review evidence the committee has so far gathered to see if he believes it establishes that Eastman was assisting Trump in criminal acts.
“The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States,” according to the filing.
The court filing is the strongest assertion yet from the committee that it believes Trump and some of his allies potentially committed crimes during the effort to overturn Biden’s victory and by falsely stating repeatedly that the election was stolen.
“The facts we’ve gathered strongly suggest that Dr. Eastman’s emails may show that he helped Donald Trump advance a corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power,” the committee’s chairman, Rep. Bennie G. Thompson (D-Miss.), and vice chair, Rep. Liz Cheney (R-Wyo.), said in a statement.
The committee has no authority to initiate criminal proceedings, and the fact that potential criminal law violations were mentioned in a court filing by the panel does not provide any indication that the Justice Department will consider any prosecutions. Nor does it mean that the lawyer-client protection asserted by Eastman will not be upheld.
But it underscores the committee’s aggressive approach and effort to hold Trump and his allies accountable for both their actions before Jan. 6, 2021, and on that day, which the panel’s members have charged were an assault on American democracy.
Lawyers for the committee argued that the evidence it has gathered so far led to a “good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts” and that Eastman was “used in furtherance of those activities.”
Former federal prosecutor Randall Eliason called the filing “a major development” but noted that “this is only a civil proceeding concerning attorney-client privilege. To prove the actual crimes beyond a reasonable doubt, prosecutors would have to meet a much higher burden.”
Still, Eliason said the significance of the filing “is that the evidence being uncovered points clearly in the direction of possible criminal conduct by Trump himself in connection with the efforts to overturn the election. We can be sure that the Department of Justice is in contact with the committee and is watching closely.”
The filing is intended to challenge Eastman’s claim that he should not be required to turn over thousands of emails the committee has requested — and it attempts to show that Eastman directly encouraged people in the government to not follow the Electoral Count Act, the 1887 law governing the congressional certification process.
Eastman has so far submitted roughly 8,000 pages of emails to committee investigators but is withholding about 11,000 documents, citing attorney-client privilege. Last month, a U.S. district judge in California ordered an expedited schedule to review Eastman’s bid to shield emails sent between Jan. 4 and Jan. 7.
The committee’s deposition showed that Eastman declined repeatedly to answer questions when interviewed by the panel, pleading the Fifth Amendment.
“Like all attorneys Dr. John Eastman has a responsibility to protect client confidences, even at great personal risk and expense. The Select Committee has responded to Dr. Eastman’s efforts to discharge this responsibility by accusing him of criminal activity,” Eastman’s lawyer Charles Burnham said in a statement. “Because this is a civil matter, Dr. Eastman will not have the benefit of the Constitutional protections normally afforded to those accused by their government of criminal conduct. Nonetheless, we look forward to responding in due course.”
The argument by Eastman and some other Trump allies ahead of Jan. 6 was that Pence could choose not to recognize the slate of electors from some states that Biden won and instead decide to recognize an alternate slate of electors who would support Trump for president. Many legal scholars said this was a gross misreading of the law. Pence and his staff said publicly ahead of the certification process that they had studied the argument pushed by Eastman and rejected his premise that the vice president had the power to reject electors, infuriating Trump and his allies.
The brief not only makes the case against Eastman’s claim of lawyer-client privilege, but it also provides a review of the committee’s findings to date, including the panel’s belief that Trump and his advisers may have been involved in a criminal conspiracy to overturn the results of the 2020 election.
“As the courts were overwhelmingly ruling against President Trump’s claims of election misconduct, he and his associates began to plan extra-judicial efforts to overturn the results of the election and prevent the President-elect from assuming office,” the brief said. “At the heart of these efforts was an aggressive public misinformation campaign to persuade millions of Americans that the election had in fact been stolen. The President and his associates persisted in making ‘stolen election’ claims even after the President’s own appointees at the Department of Justice and the Department of Homeland Security, along with his own campaign staff, had informed the President that his claims were wrong.”
On Thursday, Trump issued a lengthy statement attacking the committee’s filing and repeating many of his false claim of election fraud.
“The Unselect Committee’s sole goal is to try to prevent President Trump, who is leading by large margins in every poll, from running again for president, if I so choose. By so doing they are destroying democracy as we know it,” he said in the statement. “Their lies and Marxist tactics against political opponents will not stop the truth, or the biggest political movement, Make America Great Again/America First, in the history of our Country.”
The filing claims that documents may show that Eastman “provided advice to advance an agreement to impede the transfer of power to the President elect and the Vice President elect.” In addition, the filing says that the documents “may show that Plaintiff provided advice to advance efforts to obstruct, impede, or influence the counting of electoral college ballots before a Joint Session of Congress.” It also suggests that Trump and others “may have been involved in common law fraud in connections with their efforts to overturn the 2020 election results.”
Despite being told that the allegations of fraud were not supported by evidence, the brief notes that Trump continued to push the stolen election thesis publicly.
“The President nevertheless continued to insist falsely through January that he had ‘won the election in a landslide,’” the brief said. “And despite being repeatedly told that his allegations of campaign fraud were false, the President continued to feature those same false allegations in ads seen by millions of Americans. (The Select Committee will address these issues in detail in hearings later this year.)”
To help make their case, lawyers for the committee attached to their brief excerpts of depositions from several key Justice Department officials and Pence aides who have been interviewed by the committee.
Richard P. Donoghue, the former acting deputy attorney general, described repeated — and unsuccessful — efforts to inform Trump that his allegations of election fraud were “not supported by the evidence developed.”
“I told the President myself that several times, in several conversations, that these allegations about ballots being smuggled in in a suitcase and run through the machines several times, it was not true, that we had looked at it, we looked at the video, we interviewed the witnesses, and it was not true,” Donoghue told investigators, according to the excerpt of his deposition released by the committee.
“This gets back to the point that there were so many of these allegations that, when you gave him a very direct answer on one of them, he wouldn’t fight us on it, but he would move to another allegation,” he added.
Jason Miller, a senior adviser to Trump, echoed those sentiments, according to the brief: “According to the President’s senior campaign advisor, soon after the election, a campaign data expert told the President ‘in pretty blunt terms’ that he was going to lose.” Miller told the committee that Trump disagreed with that conclusion because he thought he could win in court.
Marc Short, the vice president’s chief of staff, testified under oath that Pence repeatedly told Trump his position that he could not overturn the election before Trump went to the Ellipse on Jan. 6 to deliver a speech to his supporters in which he suggested he did not know what Pence would do, according to the filing. That speech came just before the ransacking of the Capitol.
The committee also released copies of emails exchanged between Eastman and Greg Jacob, an aide to Pence, as the siege unfolded. The Washington Post had previously reported that the two men exchanged tense missives as the attack was underway and that Eastman continued to ask Jacob for the vice president to delay the counting of electoral votes, even after rioters were cleared from the building and Congress reconvened that evening.
But the newly released emails provide fresh details of the dramatic exchange on Jan. 6.
At 12:14 p.m., Jacob blamed Eastman, in an email that was sent as the rioters stormed the Capitol, for “bulls---” that led to the vice president and his team being “under siege” and called his position “essentially entirely made up.” He said that Eastman would never support such a position if it was made by Democrats.
Eastman wrote back blaming Pence and his team, saying, “you and your boss did not do what was necessary.”
At 1:05 p.m. — as the pro-Trump mob was descending on the Capitol — Jacob wrote Eastman that “the advice provided has, whether intended to or not, functioned as a serpent in the ear of the President of the United States.”
He continued: “Respectfully, it was gravely, gravely irresponsible for you to entice the President with an academic theory that had no legal viability, and that you well knew we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets.”
At 4:45 p.m., Eastman wrote Jacob insisting that he had indeed counseled Trump that the vice president could not unilaterally determine the outcome of the electoral college vote. “But you know him,” Eastman wrote, referring to Trump. “Once he gets something in his head, it is hard to get him to change course.”
Even so, the emails show that at 9:44 p.m. — after the mob had been cleared from the Capitol and Congress returned to work, Eastman wrote to Jacob to ask once more that Pence stop the certification of Biden’s victory. He wrote that he believed Congress was not following the exact procedure defined under the law that governs the counting of the electoral votes.
“So now that the precedent has been set that the Electoral Count Act is not quite so sacrosanct as was previously claimed, I implore you to consider one more relatively minor violation and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here.”
The assertion would seem to provide evidence Eastman knew he was asking Pence to violate the law that dates to 1887.
Excerpts of depositions included in the brief also featured testimony from Ben Williamson, a top aide to then-White House Chief of Staff Mark Meadows, who told investigators that he sent Meadows a text at 2:02 p.m. recommending that Trump “put out a tweet about respecting the police over at the Capitol — getting a little hairy over there.”
Williamson testified that after sending the text, he visited Meadows in his office to follow up on the message, and Meadows “immediately” indicated he was going to deliver the same message to Trump.
Asked by investigators if he ever saw Trump in the Oval Office or the dining room that afternoon as the violence was unfolding, Williamson replied that he did not.