The prospect that former President Trump could face criminal charges for his efforts to stay in office, including his role in encouraging the violent attack on the Capitol last year, has gained new impetus as a result of the work of the January 6 investigating committee.
It was only a first step, but lawyers for the House of Representatives special committee told a federal judge on Wednesday that the probe has gathered evidence of crimes by Trump in pursuing his claims that the election was stolen from him.
In a filing in a federal trial court in Santa Ana, CA, the committee’s legal team for the first time spelled out its “good-faith belief” that Trump and others “may have engaged in criminal and/or fraudulent acts.” It spelled out three possible crimes:
First, “obstruction of a legal proceeding,” a federal crime, based on information that the so-called “stop the steal” campaign was designed to prevent the House and Senate from counting the electoral votes showing that President Biden had won and that Trump had lost the 2020 election.
Second, “criminal conspiracy to defraud the United States,” another federal crime, based on evidence that Trump and his associates intentionally engaged in “deceit, craft or trickery” to persuade his followers and state officials to join in the effort to interfere with the electoral vote count.
And, third, “common law fraud,” a state-level crime, based on indications that Trump intentionally “made numerous false statements regarding election fraud,” with the “intent to deceive his listeners in hopes” that they would take action to help keep him in office by undermining the election outcome.
At no point did the 60-page document claim that the evidence the committee has would meet the strict standard of proof to actually convict Trump – that is, “proof beyond a reasonable doubt.” Nor did it make any suggestion that the committee, at this stage, is ready to ask the Justice Department to prosecute Trump for those or other possible crimes. The House itself and its committees have no authority to carry out such a prosecution.
Still, the document and the evidence underlying its claims could provide the basis for a future criminal case against the former President, if the Justice Department became willing to take on the historic, unprecedented and deeply controversial task of prosecuting a President.
If and when the Justice Department did prosecute, the evidence outlined in the court document suggests a firm basis for proving that Trump intended to violate the law, because it shows that he was repeatedly warned by close advisers that what he was doing was illegal, but he was not dissuaded.
The committee’s specific task in making the court filing was not to promote a criminal case, but rather to convince U.S. District Judge David O. Carter of Santa Ana to order a former Chapman University law professor – John C. Eastman – to turn over hundreds of pages of his on-line messaging on the university’s server so that the committee can learn what his exact role was in advising Trump during the challenge to the election outcome.
Months ago, it was revealed that Eastman had prepared a 12-step plan that Trump’s Vice President, Mike Pence, along with sympathetic members of Congress, could follow to stop the congressional counting of the electoral votes, or at least to delay the counting until Republican-led state legislatures could send in alternate electoral votes to show that Trump had actually won in seven key states in 2020, to flip the outcome.
Pence actually resisted all of those pressures, and presided over the actual count that confirmed Biden as President. The count was interrupted for hours while the mob ransacked the Capitol and violently fought police officers.
Eastman, who has met with committee staff but who refused to answer 146 questions, has tried to block the panel’s access to his university system account. He claims that the confidentiality of his files is protected by two legal “privileges” that insulate communication between a lawyer and a client: the attorney-client privilege and the attorney work-product privilege. (The university has said it is prepared to hand over the messages if the court requires it to do so.)
Judge Carter, who is considering Eastman’s challenge, held a hearing on February 14 and at that time he asked whether those claims of privilege could be overcome by what is technically called the “crime/fraud exception” to attorney-client privacy.
The confidentiality does not exist, under that exception, if a client consults an attorney for help in carrying out a crime, such as criminal fraud. The exception requires proof that the lawyer gave advice to further the client’s plan to commit a crime.
In its filing on Wednesday, the House committee’s legal team said that it had gathered enough evidence to this point to suggest that Judge Carter hold a closed-door hearing to go over a log of the messages the committee wants to obtain. Eastman’s lawyers filed that log to describe in a summary way what is in each document. The confidentiality privilege has to be claimed, and accepted, document by document.
The court filing argued that Eastman’s claims of each privilege are flawed since, among other reasons, Eastman had widely shared his plan (including with various media contacts) and had been told by Trump to share it – gestures that the committee lawyers said would end the confidential shield for the contents. It also said the university had told its faculty that postings on the server were not private.
But, the filing argued, even if the judge found the privilege claims might have some validity, they were completely overcome by the crime/fraud exception. Judge Carter is expected to discuss next steps in the case at a conference with lawyers next Tuesday morning.
Aside from the ominous implications of the document for Trump personally, it had the same for Eastman personally. Page after page contains highly detailed evidence of how he allegedly promoted and spread his 12-point plan, including his attempts to influence state government officials and state legislatures in going along with that plan.
While the discussion of potential crimes was the most vivid part of the new filing, it also amounted to the most comprehensive public display of how sweeping the January 6 committee’s probe has been, and how closely the investigation is coming to the actions of Trump personally. It reflects a deep inquiry that touches the highest levels of the Trump government and of the former President’s reelection campaign apparatus.
Although sweeping in its scope, the document also noted that the investigation is ongoing, and it promised the court to provide further information as it is developed. It also indicated that, in coming weeks, the committee will take its investigation into public hearings, no doubt broadcast to a huge audience.
Aside from the possibility that it could lead to criminal prosecution, the committee’s work may pave the way for sweeping new legislation, especially on how future presidential elections are to be conducted, and how the votes are to be counted and the outcome determined.