A Federal judge ruled today that former President Trump and his lawyer John Eastman likely committed crimes against the United States of America. The ruling came in a dispute between Eastman and the January 6 Committee which sought Eastman’s email records from his Chapman University account where he was a law professor. You can read the ruling HERE.
Chapman resisted releasing the emails claiming attorney/client or attorney work product privilege. The judge individually reviewed the emails and determined most did not qualify for those privileges under the definitions for them. However, the judge did find one of those privileges did apply for a a handful of the documents.
That moved the analysis to whether the crime/fraud exception applied to any of these otherwise privileged documents. The judge starts this discussion on page 30 of the above linked document. As the judge explains:
The crime-fraud exception applies when (1) a “client consults an attorney for advice that will serve [them] in the commission of a fraud or crime,” and (2) the communications are “sufficiently related to” and were made “in furtherance of” the crime.
Thus, under that standard, Trump would have had to consult with Eastman seeking advice to further the commission of a crime. For the crime/fraud exception to apply it is not required that the attorney be aware of the criminal purpose behind the client’s seeking this advice.
The January 6 Committee urged the judge apply the crime/fraud exception asserting two potential crimes articulated by the United States Criminal Code:
(1) President Trump attempted to obstruct “Congress’s proceeding to count the electoral votes on January 6,” in violation of 18 U.S.C. § 1512(c)(2);
(2) “President Trump, Plaintiff [Dr. Eastman], and several others entered into an agreement to defraud the United States by interfering with the election certification process,” in violation of 18 U.S.C. § 371.
The judge rather directly states that: “The Court will now determine whether President Trump and Dr. Eastman likely committed these offenses.” For purposes of the crime/fraud exception the standard of proof is the preponderance of evidence, not the beyond reasonable doubt standard of a criminal trial. Hence the use of the word “likely” as the standard here is simply, “more likely than not.”
Attempt To Obstruct An Official Proceeding
The relevant statute statute at 18 U.S.C. § 1512(c)(2) establishes a felony, punishable by 20 years in prison, for anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” Those last words, including “attempts” (which do not have to be successful) are crucial.
The judge quickly concludes that: “President Trump attempted to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6.” The judge lays out the repeated examples of Trump pressuring Pence to stop the electoral college count, or refuse to count votes from certain states.
The judge refers to case law establishing that this attempted obstruction must be with “corrupt intent.” The judge concludes such corrupt intent can be inferred because there was no factual or legal basis for what Trump was demanding.
In the words of the judge:
The illegality of the plan was obvious. 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. 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,” President Trump knowingly tried to subvert this fundamental principle.
The judge then directly concludes that:
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.
Conspiracy To Defraud The United States
I have previously written extensively about the applicability of this statute, to include Eastman’s work with Trump. 18 U.S.C. § 371 establishes a felony, punishable for up to five years in prison, for any conspiracy “either to commit any offense against the United States, or to defraud the United States.” As I previously discussed, the courts have defined “conspiracy to defraud” very broadly and not requiring any financial element. Rather, the conspiracy need only be to interfere or impede any legitimate government function, like say for example, the counting of electoral college votes by Congress.
Of course the “defraud” end of it does require that the conspiracy include dishonest, deceitful, means. There the judge found that:
the evidence shows that President Trump likely knew that the electoral count plan was illegal. President Trump continuing to push that plan despite being aware of its illegality constituted obstruction by “dishonest” means under § 371 . . . The evidence shows that Dr. Eastman was aware that his plan violated the Electoral Count Act. Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.
The judge again rather directly concludes:
Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.
It should be noted that a fair number of the January 6 defendants are charged with conspiracy, under § 371 to obstruct or hinder the electoral college vote in violation of § 1512.
“A Coup In Search Of A Legal Theory”
Some of the judge’s concluding comments raised alarms at what happened on January 6th, and included the word “coup.”
“Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. 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.”
Merrick Garland, where are you?