“the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States”

The words of the title for this article appear in quotation marks because they are a direct quote from a filing in Federal court by the January 6 Committee. The more full version of this quote is:

“The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States in violation of 18 U.S.C. § 371.”

The maximum punishment for that offense is five years.

The Committee similarly stated much the same for another statute, for obstruction of an official proceeding:

The evidence detailed above provides, at minimum, a good-faith basis for concluding that President Trump has violated section 18 U.S.C. § 1512(c)(2).

For the record, the maximum punishment for that offense is 20 years. It should be noted that the two are closely intertwined. In effect, the conspiracy to defraud the United States was the conspiracy to obstruct an official proceeding. I have previously explained how these two statutes can interact and how a conspiracy to defraud can apply to any deceptive effort to obstruct the ends of government and does not require financial gain. Notably, many Oath Keeper and Proud Boys defendants are charged exactly in this manner. They are charged with conspiracy to defraud the United States where the “purpose of the conspiracy was to stop, delay, and hinder the Certification of the Electoral College vote.” Several have already pled guilty to this and are convicted for it.

The story of how we got to a judicial filing where a Congressional Committee directly accuses a former President of committing felony crimes against this nation while President is a story of lawyerly incompetence and flat foolishness. The lawyer is John Eastman and concerns the advice he gave Trump on how to steal the 2020 election.

Eastman is the author of the “Eastman Memo” aimed at convincing Vice President Pence that Pence had the unilateral authority to throw out electoral college votes and effectively hand the election to Trump. Trump and Eastman acted on that memo repeatedly attempting to convince, cajole, bully and intimidate Pence into refusing to count electoral college votes from states Biden won.

Obviously the January 6 Committee sought to interview Eastman and subpoenaed him. Eastman showed up and proceeded to invoke the 5th Amendment 146 times to avoid testifying.

The Committee also sought emails from Eastman but he refused to provide them claiming attorney/client privilege. The Committee then brilliantly shifted gears. It turns out Eastman was also a professor at Chapman University and all the emails were through his university account and email address. The Committee subpoenaed, not Eastman, but rather the University for the emails. Eastman sued, he’s actually the plaintiff in this case, seeking to block the University from releasing the emails, once again asserting attorney/client privilege.

On January 25th the judge issued a blistering decision soundly rejecting claims Eastman advanced under the First and Fourth amendments. In so doing the judge even suggested that Eastman’s communications might rise to the level of sedition. The judge ordered production of the emails but allowed that Eastman could identify specific documents he asserted were attorney/client privileged along with the rationale for that assertion.

Eastman then claimed thousands of the documents were privileged leading to the current filing.

The Committee gave the judge many reasons to find the emails not privileged. These include:

• There was never legally an attorney/client relationship between Trump and Eastman. An engagement letter, that explicitly said it became operative once signed, was never signed.
• Eastman’s advice was not legal, or in anticipation of litigation, but was rather political advice not protected by the privilege.
• Because Eastman used the Chapman University account he had no legitimate expectation of confidentiality, a requirement for the privilege. University policy, of which Eastman was made specifically and individually aware, explicitly made clear that any such emails were not confidential. Further, the policy required that emails used on the account be for educational purposes, not legal ones, and certainly not for the purposes of overturning a free election. A representative for the University testified Eastman’s use of the system for legal representation would be like “having contraband on our system.”
• Because the emails were part of criminal schemes by Eastman, Trump, and other members of his campaign, the emails are subject to the crime/fraud exception to attorney/client privilege. When lawyers engage in criminal activities with their clients their communications related to such activity are not privileged.

It was that last one that produced the assertions above that Trump and Eastman violated those statutes. Notably, the standard for invoking the crime/fraud exception is very low. The party seeking production need only provide “a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.”

In camera review means the judge reviews the documents privately and decides if they do provide evidence justifying the crime/fraud exception.

The question is whether that review will happen. The judge could rule against Eastman, and order blanket release of the documents, for one or more of the other reasons advanced by The Committee. However, there is a real chance the judge will conduct such a review and if he releases any documents from that review that’s a bombshell. A judge would have determined there is evidence the former President conspired to criminally obstruct the electoral vote count.

Or is that a “bombshell”? In another case a Federal judge has determined that plaintiffs plausibly alleged that Trump conspired with people charged with sedition to violently assault the Capitol. The judge also found plaintiffs plausibly alleged that Trump aided and abetted in the beatings of police officers on January 6th.

And Trump remains the Republicans leading candidate for President in 2024.