Trump ‘more likely than not’ committed a crime in trying to block congressional confirmation of Biden’s win, federal judge says

The determination from US District Court Judge David O. Carter came in a ruling addressing scores of sensitive emails that Trump ally and conservative lawyer John Eastman had resisted turning over to the House select committee investigating the Jan. 6 riot and related efforts to overturn the 2020 presidential election result.

Eastman wrote key cool memos aimed at denying Democrat Joe Biden’s victory. The judge was assessing whether Eastman’s communications were protected by attorney-client privilege, and was analyzing in part whether Eastman and Trump had consulted on the commission of a crime.

“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,” Carter wrote.

The Trump representative did not immediately respond to a request for comment. Neither Eastman nor his lawyers returned messages seeking comment.

The ruling by Carter, who was appointed to bench in 1998 by President Bill Clinton, does not mean Trump will be charged with, or even investigated for, a crime. But it will increase pressure on the Justice Department to intensify its probe of the Jan. 6 riot, and potentially examine the conduct of Trump himself.

In his ruling, Carter noted that he was assessing the legal arguments surrounding whether Eastman could be compelled to turn over documents to the Jan. 6 committee — not making a decision about how the legal system should respond to Trump’s actions. But he suggested that someone else should be holding Trump and his allies accountable.

“More than a year after the attack on our Capitol, the public is still searching for accountability. This case cannot provide it,” Carter wrote. “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.”

A spokesman for the Justice Department declined to comment.

Former US Attorney Joyce White Vance noted that, in assessing whether Trump had committed a crime, Carter had said only that a “preponderance of the evidence” demonstrated as much. That legal standard in civil cases, she said, is less rigorous than what criminal prosecutors would have to show: that the evidence proved Trump guilty “beyond a reasonable doubt.”

“But,” Vance added, “the evidence is compelling.”

Carter’s 44-page opinion offers a careful analysis of 111 documents the committee sought, ultimately concluding that lawmakers are entitled to have 101 of them. It assesses the emails in different batches, examining whether the committee should be able to access them, or whether they should be shielded by attorney-client privilege.

Most significantly, the ruling assesses whether 11 of the documents should be turned over because of what is known as the “crime-fraud exception.” That exception allows the committee to get around the shield of attorney-client privilege if lawmakers can demonstrate the communications they are seeking were advancing a crime.

The committee’s lawyers had earlier this month alleged that Trump and key allies engaged in potential crimes during their effort to overturn the election. They specifically cited conspiring to defraud the United States and obstructing an official congressional proceeding — the counting of electoral votes. Those efforts, they argued, should invalidate Eastman’s claim that his documents were protected by attorney-client privilege.

Carter broke down each potential charge, analyzing the actions taken by Trump and others in the run-up to Jan. 6. He detailed at length Trump’s pressure to have Vice President Pencesingle-handedly determine the results of the 2020 election.”

On Jan. 4, the judge wrote, Trump and Eastman hosted an Oval Office meeting with Pence and his advisers, and Eastman presented a plan “focusing on either rejecting electors or delaying the count.” When Pence was unpersuaded, the judge wrote, Trump sent Eastman to review the plan with Pence’s lawyer. In that meeting, the judge wrote, Eastman was blunt about his intentions, saying, “I’m here asking you to reject the electors.”

On Jan. 6, the judge wrote, Trump posted messages on Twitter beseeching Pence to act and called Pence directly, urging him to “’to make the call’ and enact the plan.” Trump then gave a speech to a large crowd on the Ellipse warning, “…Mike Pence, I hope you’re going to stand up for the good of our Constitution and for the good of our country. And if you’re not , I’m going to be very disappointed in you. I will tell you right now.”

Trump ended the speech by asking his supporters to walk down Pennsylvania Avenue to give Pence and Congress “the kind of pride and boldness that they need to take back our country,” the judge wrote.

“Together, these actions are more likely than not to constitute attempts to obstruct an official proceeding,” his ruling states.

Carter wrote that Eastman and Trump “justified the plan with allegations of election fraud—but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful.”

The judge noted, as the Jan. 6 committee had, that executive branch officials had “publicly stated and privately stressed to President Trump that there was no evidence of fraud,” and by early January, “more than sixty courts dismissed cases alleging fraud due to lack of standing or lack of evidence of fraud .”

“Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history,” the judge concluded. “Their campaign was not confined to the ivory tower — it was a coup in search of a legal theory. The plan spurred violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process.”

House Minority Leader Kevin McCarthy (R-Calif.) and former president Donald Trump have expanded in recent months on what they said during their Jan. 6 call. (Video: JM Rieger/The Washington Post, Photo: Jabin Botsford/The Washington Post)

The judge ultimately determined that lawmakers could access just one of the eleven documents he analyzed to see whether they qualified for the crime-fraud exception. That document was “a chain forwarding to Dr. Eastman a draft memo written for President Trump’s attorney Rudy Giuliani.”

Carter wrote that the memo recommended that Vice President Mike Pence reject voters from contested states on Jan. 6.

“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,” the judge wrote. “The draft memo pushed a strategy that knowingly violated the Electoral Count Act, and Dr. Eastman’s later memos closely track its analysis and proposal. The memo is both intimately related to and clearly advanced the plan to obstruct the Joint Session of Congress on January 6, 2021.”

Nine of the eleven documents were “emails or attachments discussing active lawsuits in state and federal courts,” the judge wrote. The other was an email sent late on Jan. 6, when Congress was resuming its work after the attack on the Capitol, which “responded to a request to participate in Dr. Eastman’s work on behalf of President Trump,” the judge wrote.

“While the email discusses Vice President Pence’s refusal to reject or delay the electoral count, the email was not ‘itself in furtherance’ of the plan and thus does not fall within the crime-fraud exception,” the judge wrote.

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