“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,” Judge David Carter wrote Monday.
Carter’s reasoning is a startling acknowledgment by a federal court that Trump’s interest in overturning the election could be considered criminal.
“The illegality of the plan was obvious,” Carter wrote. “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.”
Neither the judge nor the House committee has the ability to prosecute Trump or his allies for the conspiracy being alleged. That decision falls to the Justice Department, which is facing pressure from the left to more aggressively go after those – like Trump and his inner circle dele – whose involvement in the January 6 insurrection went beyond physically breaching the Capitol.
Trump has not been charged with any crime nor has Eastman.
In his order, Carter made an unusually bold statement wishing for accountability so that history does not repeat itself.
“If the country does not commit to investigating and fearing accountability for those responsible, the Courts January 6 will repeat itself,” the judge wrote.
“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,” he wrote.
“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,” Carter added. “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.”
Dispute over Eastman’s emails
Carter was considering the arguments about potential criminality in the context of the records disclosure dispute.
The House committee had subpoenaed Chapman University, where Eastman was employed during the bid to overturn the election results, for emails he sent on his university email account. Eastman challenged the subpoena in court in the Central District of California.
Lawmakers pointed to the crime-fraud exception among several for why they said those documents should not be withheld from committee investigators. The crime-fraud exception allows the typical protections of attorney-client privilege to be pierced in instances where ongoing or future crimes are being discussed.
In his ruling Monday, Carter specifies that one document the committee can receive appears to be aiding Trump and Eastman’s alleged conspiracy to obstruct Congress: a draft memo written for another Trump attorney, Rudy Giuliani, recommending that Vice President Mike Pence reject some states’ electors during the January 6 congressional meeting.
“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,” Carter says.
This story is breaking and will be updated.