Members Only | March 28, 2022 | Reading Time: 4 minutes

The J6 committee’s theory about Trump’s crimes passes first test

It’s hard to see anyone reading the judge’s scathing analysis and doubt whether a criminal investigation is necessary.

Trump and John Eastman.
Trump and John Eastman.

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In a big win for the J6 committee, a federal judge ordered Monday that lawyer John Eastman hand over emails in which he and former President Donald Trump plotted a procedural coup d’etat. 

The 101 emails contain valuable information, but Judge David O. Carter’s legal reasoning has momentous implications, too. 

Today’s order is the first test of the J6 committee’s theory of Donald Trump’s crimes.

The committee’s lawyers argued that Trump attempted to disrupt an official proceeding and schemed to defraud the United States when he colluded with Eastman to browbeat former Vice President Mike Pence into stealing the election during the certification ceremony. 

The judge agreed. 

In the words of Judge Carter, their scheme was “a coup in search of a legal theory,” a criminal enterprise that could have “permanently ended” the peaceful transition of power in the United States. 

In the words of Judge Carter, their scheme was “a coup in search of a legal theory,” a criminal enterprise that could have “permanently ended” the peaceful transition of power in the United States. 

Carter had to decide whether key Trump-Eastman emails were protected by work product privilege, a principle closely related to attorney-client privilege. If they were, Eastman would not have to hand them over to the J6 committee. 

Attorney-client privilege exists to allow clients to speak frankly with lawyers without fear of secrets being used against them by the government or anyone else. It’s important, because attorney-client privilege helps lawyers represent their clients effectively. Work product privilege exists to safeguard documents prepared for litigation.

Both types of privilege have limits, though.

The so-called “crime-fraud exception” basically says you can’t expect confidentiality when you hire a lawyer to commit a crime. 

The aforementioned privileges exist to give defendants the best legal representation possible, but not to shield crooked lawyers who use their expertise to subvert the law. That’s why the crime-fraud exception kills them both.

Carter found it “more likely than not” that the emails in question were part of an attempt to disrupt an official proceeding and a conspiracy to defraud the United States. 

Therefore, the judge reasoned, they are not covered by work product privilege. Eastman must hand them over. 

In the ruling, Carter lays out compelling evidence against Trump. 

The judge points to a couple of meetings Trump and Eastman held with Mike Pence during which they attempted to pressure him into disrupting the certification of the election. 

When Pence refused, Trump kept pressuring him on Twitter and in public statements, including his speech at the Ellipse where he said: “And 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.” 

“Together, these actions more likely than not constitute attempts to obstruct an official proceeding,” Judge Carter wrote.

Carter took pains to establish that Trump and Eastman knew what they were doing was illegal. 

Among other things, the judge seized on Trump’s remark to Georgia election officials as evidence the former president was using fraud allegations as a pretext to win. Hence Trump’s infamous words: 

“So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.” 

Carter also turned Eastman’s own words against him, noting, as I did earlier this month in the Editorial Board, that when Eastman described his plan as “BOLD” and outside of “Queensbury Rules,” he was admitting to giving extra-legal advice. 

Judge Carter took pains to establish that Trump and Eastman knew what they were doing was illegal. 

The judge noted that Eastman also admitted in a back-and-forth with Pence’s lawyer that his plan violated numerous laws, including parts of the Electoral Count Act. 

Eastman further admitted his proposed gambit had never been tried, and that if it were, it would have dire consequences for democracy: 

“You would just have the same party win continuously if [the] Vice President had the authority to just declare the winner of every State,” Eastman acknowledged.  

The court was not impressed with Eastman’s argument that his actions rested on a “good faith interpretation of the Constitution,” noting that ignorance of the law is no excuse, and observing that Trump believing the Electoral Count Act was unconstitutional wouldn’t entitle him to disregard it. 

“The illegality of the plan was obvious,” Carter concluded. 

Was there a conspiracy? 

Well, as the judge explained, when Trump and Eastman weren’t exchanging emails about how they were going to disrupt an official proceeding, they were huddling together in back rooms trying to convince the vice president to disrupt an official proceeding, so it seems likely there was indeed a conspiracy. 

Today’s order shows the J6 committee’s theory that Trump’s crimes can impress a federal judge and get results in court. 

Granted, this was not a criminal trial. Carter did not rule on Trump’s guilt. If these allegations were presented to a hypothetical criminal court, there’s no guarantee the judge would interpret the evidence the same way Judge Carter did. 

But a criminal trial would address many of the key questions Carter tackled in his opinion. 

The government would have to prove Trump’s guilt beyond a reasonable doubt to secure criminal convictions. 

But if Carter was able to make such a strong case for Trump’s guilt based on one cache of emails, imagine what a strong case the government could make with the totality of the evidence. 

Today’s opinion will bolster the J6 committee’s argument if it chooses to urge the US Department of Justice to pursue a criminal probe. 

I don’t know how anyone can read this scathing analysis and doubt such a probe is necessary. 

Lindsay Beyerstein covers legal affairs, health care and politics for the Editorial Board. An award-winning documentary filmmaker, she’s a judge for the Sidney Hillman Foundation. Find her @beyerstein.

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