Hinted at some time ago by Rep. Liz Cheney (R-Wyo.), the Jan. 6 Committee laid out the makings of a possible criminal case against Donald Trump on Wednesday night. The roadmap came in a filing in their litigation with so-called “coup memo” author and lawyer John Eastman, who was apparently castigated by Mike Pence’s counsel for peddling “bullshit” responsible for the attack on the U.S. Capitol.
The committee, chaired by Rep. Bennie Thompson (D-Miss.), outlined the three serious charges that they claim could form the basis to apply the crime-fraud exception to overcome Eastman’s assertion of privilege in his lawsuit: obstruction of an official proceeding, conspiracy to defraud the United States, and common law fraud.
“We’re Now Under Siege”
An eyebrow-raising email exchange between Eastman and Pence’s counsel Gregory Jacob helps make that case.
“[T]hanks to your bullshit, we’re now under siege,” Jacob fired off in a blistering email on Jan. 6 at 12:14 p.m.
By that time, Trump’s rally was underway, but protesters would not overcome police until more than an hour later at 1:30 p.m. Secret Service whisked Pence away from the floor of the joint session shortly after 2 p.m.
Eastman replied to the missive at 2:25 p.m., incredulously.
“My ‘bullshit’ — seriously?” he wrote. “You think you can’t adjourn session because the ECA says no adjournment, while the compelling evidence that the election was stolen continues to build and is already overwhelming.”
In a filing totaling 221 pages with exhibits, the House Committee to Investigate the Jan. 6 Attack on the U.S. Capitol released that email to persuade a judge that Eastman knew his actions were illegal.
Eastman sued the committee in January over its subpoena of Eastman’s former employer, Chapman University, for emails and other documents created by Eastman relating to the 2020 election. Eastman is the conservative lawyer behind the push to convince then-Vice President Mike Pence that he had the ability to unilaterally reject the electoral votes from states that didn’t go for Trump in the election.
The committee’s filing Wednesday outlined its theory that Trump’s refusal to accept the results of the 2020 election may have violated federal law.
“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),” the filing says, referring to the obstruction statute.
“Numerous False Statements”
In December, Rep. Cheney hinted at this when she asked, somewhat rhetorically: “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceeding to count electoral votes?”
The Committee alleges that efforts by Trump, Eastman, and others to perpetuate what has become known as the “Big Lie” — baseless and disproven claims that widespread voter fraud led to Joe Biden’s win in the 2020 presidential election — amount to criminal fraud.
“The evidence supports an inference that President Trump, Plaintiff, and several others entered into an agreement to defraud the United States by interfering with the election certification process, disseminating false information about election fraud, and pressuring state officials to alter state election results and federal officials to assist in that effort,” the filing said.
“The Committee’s newest filing is the clearest demonstration to date regarding how the efforts of Mr. Trump and Mr. Eastman crossed the criminal line,” national security attorney Bradley Moss told Law&Crime. “They knew their actions were corrupt, they conspired to engage in them anyway, and they took overt steps as part of that conspiracy.”
Moss said the filing may indicate the committee’s next steps.
“They appear well on their way to public hearings in the next six weeks, with several criminal referrals,” Moss said.
A number of exhibits attached to the filing shed light on some of the behind-the-scenes efforts that were underway as the siege on the Capitol grew increasingly dangerous.
Eastman’s lawyer, Charles Burnham, maintained that the issue is one of attorney-client confidentiality, even though the judge overseeing Eastman’s case, U.S. District Judge David Carter, has so far rejected this claim.
“Like all attorneys, Dr. John Eastman has a responsibility to protect client confidences, even at great personal risk and expense,” Burnham said in a statement to Politico. “The Select Committee has responded to Dr. Eastman’s efforts to discharge this responsibility by accusing him of criminal activity. Because this is a civil matter, Dr. Eastman will not have the benefit of the Constitutional protections normally afforded to those accused by their government of criminal conduct. Nonetheless, we look forward to responding in due course.”
The House committee said that the crime-fraud exception to the attorney-client privilege applies, and Eastman’s communications are therefore not protected.
The State Bar of California announced Monday that it has launched an investigation into Eastman for his role in trying to overturn the election results.
“The investigation is focused on whether Eastman engaged in conduct in violation of California law and ethics rules governing attorneys following and in relation to the November 2020 presidential election,” the announcement said.
The filing says that the committee has evidence that shows that Trump made “numerous false statements regarding election fraud … with knowledge of the falsity of these statements and an intent to deceive his listeners in hopes they would take steps in reliance thereon.”
The Million-Dollar Question
Indeed, several Jan. 6 defendants have insisted they stormed the Capitol because they thought that’s what Trump wanted them to do.
Thompson also links Trump to the Jan. 6 defendants by alleging that Trump violated the same federal obstruction statute used more than 175 times in the 700+ prosecutions.
Thompson specifically says that evidence collected so far “provides, at a minimum, a good-faith basis for concluding” that Trump obstructed an official proceeding of Congress in violation of the same federal obstruction statute that has been charged more than 175 times in the Department of Justice’s prosecution of those who participated in the Jan. 6 siege.
While multiple defendants have sought to have that charge dismissed, at least seven federal judges overseeing Jan. 6 cases have allowed prosecutors to proceed with the charge.
The committee’s filing is notable for a few reasons, according to CNN legal analyst and former federal prosecutor Jennifer Rodgers.
“It’s important to understand what this brief is and is not—it’s not an indictment, or even a criminal referral … yet,” Rodgers said in an email to Law&Crime. She noted that she believes that the committee has made a strong enough argument to at least get the judge to review Eastman’s emails before deciding whether they should be handed over to the House committee.
“But whether or not the committee gets these emails, this suggests to me that they are likely when their report is issued to allege criminal conduct by Trump, and to make a criminal referral to DOJ. Then the million-dollar question will be what DOJ does with that referral,” Rodgers said, later adding: “[I]f I’m certain of anything it’s that DOJ will do its own evaluation of the evidence and will not be heavily influenced by what Congress wants to happen.”
Rodgers thinks there has been “more than enough evidence released to date that DOJ already should be conducting a criminal investigation into Trump and others, but we don’t know whether that is happening or not.”
She also believes that public opinion may “somewhat” affect whether the Justice Department ultimately decides to charge Trump.
“DOJ must follow the law, of course, and if there isn’t enough evidence, there will be no criminal case,” Rodgers said. “But if there is adequate evidence, DOJ will have to decide whether it is in the nation’s best interest to charge the former President. I do think that the more evidence that is released and the more powerful the arguments are that charges are necessary here, the more likely it is that DOJ will go forward. So to that extent, Congress’s work is quite important, to shape the public’s perception and keep the pressure on DOJ.”
Read Thompson’s filing, below.
[Images via YouTube screengrab/Chip Somodevilla/Getty Images.]
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