Federal Judge Once Again Notes Trump’s “Likely” Post-Election Crimes
In case you missed it, Judge David Carter, a federal district court judge for the Central District of California, has done it again—flat-out stated in a judicial opinion that Donald J. Trump likely committed multiple federal crimes in connection with the January 6th insurrection at the U.S. Capitol.
The case was brought by John Eastman, the former law school dean at Chapman University who infamously penned a lawless six-point plan for former Vice President Mike Pence to halt the counting of Electoral College certifications on January 6, 2021, a maneuver aimed at tossing out the election results and illegally installing Trump as president. The House January 6th Committee subpoenaed Eastman’s emails from Chapman, and Eastman sued in January 2021 to stop his former employer from complying. After the court denied Eastman’s initial request for a preliminary injunction stopping the whole thing, a tedious process of identifying which documents were arguably protected from disclosure ensued. It’s now been wrapped up.
Two legal issues were at issue here. First, attorney-client privilege: If a communication is confidential between an attorney and client and it involves legal advice, it is privileged and need not be turned over. (Although, as Judge Carter explains, “advice on political, strategic, or policy issues” is not protected.) Second, work product privilege: If a document is made in anticipation of litigation or trial, the team’s work product—especially any information regarding the attorneys’ litigation strategy—largely remains confidential.
But there’s an important, though rarely invoked, exception: Documents and communications made in furtherance of a crime are not protected. You can’t ask your lawyer for a good place to bury the body, for example, and then hide behind the attorney-client privilege or work product doctrine when the justice system seeks information about that exchange.
Back in March, Carter found that the crime-fraud exception did apply to some of Eastman’s emails, and named the crimes in which Eastman and Trump were “likely” implicated: obstruction of Congress’s proceeding to count the electoral votes, in violation of 18 U.S.C. § 1512(c)(2), and conspiracy to defraud the United States through disruption of the electoral count, in violation of 18 U.S.C. § 371.
This time around, there remained 562 documents in dispute between Eastman and the Jan. 6th Committee. Judge Carter writes that he personally reviewed “every document disputed by the parties, weighed and considered all evidence presented by the parties, and applied the appropriate standard of proof.” His ruling walks through how the various claims of privilege apply or fall short for each of the Eastman documents. He ultimately concludes that eight of the documents were “sufficiently related to” and made “in furtherance of” the obstruction and conspiracy crimes so as to destroy any protective privilege and enable the Jan. 6th Committee to have them. Carter breaks those documents up further into two categories: four relating to the obstruction crime, four relating the conspiracy crime.
As for obstruction, Carter writes that Trump’s post-election litigation—filing “dozens of lawsuits in states he lost, seeking to overturn the results”—“served other goals” than just legal redress, “like providing support to state electors trying to decertify electoral votes or persuading the public to question the integrity of the election.” In four of the documents, “Dr. Eastman and other attorneys suggest that—irrespective of the merits—the primary goal of filing [a lawsuit] is to delay or otherwise disrupt the January 6 vote.” Carter describes one email in which Trump’s attorneys state that “[m]erely having this case pending in the Supreme Court, not ruled on, might be enough to delay consideration of Georgia” in the congressional count of electoral votes.
Says Carter: “This email, read in context with other documents in this review, make clear that President Trump filed certain lawsuits not to obtain legal relief, but to disrupt or delay the January 6 congressional proceedings through the courts.”
In other words, filing bogus lawsuits to thwart a presidential election outcome is evidence of a crime.
And so, since “the crime-fraud exception applies” to these four emails, Carter ordered Eastman to hand them over to the Jan. 6th Committee.
Regarding the crime of conspiracy, Judge Carter focuses on the false information contained in papers that Trump signed in order to commence a lawsuit in a Georgia federal court. He explains: “On December 4, 2020, President Trump and his attorneys alleged in a Georgia state court action that Fulton County improperly counted a number of votes including 10,315 deceased people, 2,560 felons, and 2,423 unregistered voters.” Team Trump later decided to initiate an action in federal court, “and discussed incorporating by reference the voter fraud numbers alleged in the state petition.”
However, “on December 30, 2020, Dr. Eastman relayed ‘concerns’ from President Trump’s team ‘about including specific numbers in the paragraph dealing with felons, deceased, moved, etc.’” Eastman was apparently worried they would be lying to a federal court by citing fake voter-fraud numbers. Yet as Carter goes on to reveal, the “attorneys continued to discuss the President’s resistance to signing ‘when specific numbers were included.’”
According to the judge’s review of the emails, therefore, Trump knew the numbers filed in the state court lawsuit were false, Trump discussed the problem with submitting the fake data to a federal court with his lawyers, but he greenlighted—and signed—the fraudulent filing anyway. Carter even quotes from what appears to be an email drafted by Eastman “the next day”:
Although the President signed a verification for [the state court filing] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.
Carter reports: “President Trump and his attorneys ultimately filed the complaint with the same inaccurate numbers without rectifying, clarifying, or otherwise changing them.” And he “signed a verification swearing under oath that the incorporated, inaccurate numbers ‘are true and correct’ or ‘believed to be true and correct’ to the best of his knowledge and belief.”
In other words, filing papers in federal court containing false information in order to thwart a presidential election outcome is evidence of a crime.
Thus, Carter sums up: The four emails “are sufficiently related to and in furtherance of a conspiracy to defraud the United States,” and so they, too, must be turned over to the Jan. 6th Committee.
The fact that Judge Carter made these findings in a judicial opinion—rather than a jury rendering a verdict that Trump committed the underlying crimes beyond a reasonable doubt after a trial—is a distinction without a meaningful difference at this point. Every time a grand jury issues an indictment charging an individual with crimes, there exists no jury verdict that the person is guilty of those crimes beyond a reasonable doubt already in hand. What most prosecutors and grand juries charging individuals with crimes do not have, however, is two opinions by a federal judge outlining eight pieces of evidence of two separate crimes that Donald J. Trump and John Eastman “more likely than not committed.”
Once upon a time, this alone would have been the story of the century.