The Washington PostDemocracy Dies in Darkness

Here’s how a federal judge believes Trump probably broke the law

It centers heavily on one critically important quote from Trump

President Donald Trump arrives to speak at a rally in Washington on Jan. 6, 2021. (Jacquelyn Martin/AP)

They are astonishing words to read just above the signature of a federal judge.

“Dr. [John] Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history,” U.S. District Judge David O. Carter wrote in an opinion published Monday. “Their campaign was not confined to the ivory tower — it was a coup in search of a legal theory.”

Eastman, you’ll recall, is the legal scholar who advocated that Vice President Mike Pence simply reject electoral votes submitted by a number of states as Congress convened to finalize the 2020 election on Jan. 6, 2021. Carter’s summary of Eastman’s efforts — championed eagerly by President Donald Trump — was that it was not sincere advocacy of a novel theory of allocating power but, instead, a contrived rationale aimed at the goal of preserving Trump’s presidency.

This is not particularly surprising, even if it is stark. What’s more important is what precedes those words in Carter’s opinion: a detailed argument, hinging at one critical point on Trump’s own words, explaining why it’s likely that Trump broke federal law in trying to retain power.

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Carter’s ruling is part of a legal fight over documents in Eastman’s possession that focus on the effort to reject the outcome of the 2020 election. The House select committee investigating the Jan. 6 attack subpoenaed material from Eastman related to the effort, and he withheld it, citing attorney-client privilege. Carter was asked to determine if that privilege should apply to the material. In the end, he found that it overwhelmingly did not. But not because he thought Eastman was mostly not acting as counsel to Trump or Trump’s campaign and not solely because he thought most of the material was not related to litigation.

The judge was also asked by the House committee to evaluate if the material might need to be turned over because it was not protected by privilege due to the “crime-fraud” exception. In other words, if an attorney is discussing the commission of a crime with a client, that material may not be subject to being withheld under privilege. And earlier this month that’s precisely what the committee alleged: Trump and Eastman were engaged in an effort to violate more than one federal law and, therefore, communication related to that effort should not be privileged.

Carter agreed. The standard in a civil case is that a “preponderance of the evidence” shows that a crime was probably committed, meaning the evidence needed to show that it was “more likely than not.” And when considering the components of two crimes identified by the committee, Carter felt such a preponderance existed.

The first allegation was that Trump had tried to obstruct an official proceeding. For such a crime to be committed, Carter wrote, it needs to be shown that three things happened:

  1. “the person obstructed, influenced or impeded, or attempted to obstruct, influence or impede”
  2. “an official proceeding of the United States, and”
  3. “did so corruptly.”

The second allegation — that there was a conspiracy to defraud the United States — has similar requirements: that “at least two people entered into an agreement to obstruct a lawful function of the government ... by deceitful or dishonest means, and ... that a member of the conspiracy engaged in at least one overt act in furtherance of the agreement.”

In each case, two of the three stipulations are easy to meet. Trump’s effort to obstruct (No. 1) an official proceeding (No. 2) — the counting of electoral votes — is obvious, though Carter outlines the specific path by which that occurred. Similarly, the first and third components of the conspiracy allegation are fairly trivial to identify: Trump and Eastman worked to twist Pence’s arm and called on the crowd outside the White House to march to the Capitol and pressure Congress, among other things. Again, the full filing makes each case explicitly.

As I noted when the committee first alleged the violation of these laws (as it sought to apply the crime-fraud exception to Eastman’s privilege claims), the more challenging aspect of each allegation lies in the intent. Did Trump try to obstruct the electoral-vote count corruptly; that is, knowing that it was dishonest to do so? Did the conspiracy to obstruct the function of government occur thanks to “deceitful or dishonest means” — or did Trump perhaps sincerely believe that the election had been stolen?

The House committee, arguing for the former, pointed to the various officials and experts who’d rejected the idea that the election had been stolen as evidence that Trump must have known it hadn’t been. But Eastman, replying to that filing, argued that just as many advisers to Trump were insisting that the opposite was true, that there was rampant fraud that demanded the election results be reconsidered. That perhaps Trump existed in some liminal space between truth and falsehood making his objections sincere.

That’s why Carter’s isolation of Trump’s comments in his phone call with Georgia’s secretary of state on Jan. 2, 2021, is so important.

You probably remember that call. Trump phoned the man in charge of Georgia’s elections, Brad Raffensperger, and repeatedly tried to cajole him into identifying enough “fraudulent” votes that Trump could win the state. In short order, the audio of the call was obtained by The Washington Post and published.

During the conversation, Trump repeatedly tried to claim that various buckets of votes were questionable and Raffensperger repeatedly indicated that the claims were unfounded or unproven. Then Trump, who lost the state by fewer than 12,000 votes, laid his cards on the table, telling Raffensperger, “I just want to find 11,780 votes, which is one more than we have because we won the state.”

“President Trump’s repeated pleas for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election,” Carter wrote in his opinion. He quoted Trump: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”

“Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification,” Carter continued.

In other words, Trump let the veil drop. He wasn’t concerned that fraud might have occurred and that the will of the voters was lost. He was simply worried about getting those votes he needed — and wanted the Republican secretary of state to play ball. This is a corrupt intent. This is dishonest.

“The illegality of the plan was obvious,” Carter wrote of the obstruction allegation. “... President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Vice President Pence stated, ‘no Vice President in American history has ever asserted such authority.’ 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’” — quoting Eastman — “President Trump knowingly tried to subvert this fundamental principle.”

There were legal implications from the ruling for the House committee and for Eastman. But, particularly when coupled with the finding last month that Trump probably entered into a civil conspiracy with extremist groups similarly aimed at blocking the 2020 election, Carter’s assertion that a preponderance of evidence suggested that Trump violated the law is historic and enormously significant.

A crime was likely committed by the sitting president to retain power.