Federal Judge Ruling That Trump Is ‘Likely’ Guilty of Multiple Felonies

https://portside.org/2022-04-01/federal-judge-ruling-trump-likely-guilty-multiple-felonies
Portside Date:
Author: David Carter
Date of source:
US Central District of California Court

[Federal Judge David Carter (Central District of California) has ruled that texts and emails of John Eastman with Donald Trump must be disclosed to the January 6 Select Committee of the House of Representatives. As the factual foundation of his ruling, Judge Carter examines the evidence and concludes that Donald Trump 'likely' committed three criminal offenses. Key parts of the ruling are below. References and footnotes have been omitted for readability. -- moderator]

Potential crimes or fraud  

The Select Committee alleges that the crime-fraud exception applies based on three offenses:  

(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; and  

(3) “President [Trump] and members of his Campaign engaged in common law fraud  in connection with their efforts to overturn the 2020 election results.”

The Court will now determine whether President Trump and Dr. Eastman likely committed  these offenses.  

The Select Committee alleges that President Trump violated 18 U.S.C. § 1512(c)(2),  which criminalizes obstruction or attempted obstruction of an official proceeding.207 It requires  three elements: (1) the person obstructed, influenced or impeded, or attempted to obstruct,  influence or impede (2) an official proceeding of the United States, and (3) did so corruptly. 

Attempts to obstruct  

Section 1512(c)(2) requires that the obstructive conduct have a “nexus . . . to a specific  official proceeding” that was “either pending or was reasonably foreseeable to [the person]  when he engaged in the conduct.” 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.  

President Trump facilitated two meetings in the days before January 6 that were  explicitly tied to persuading Vice President Pence to disrupt the Joint Session of Congress. On  January 4, President Trump and Dr. Eastman hosted a meeting in the Oval Office with Vice  President Pence, the Vice President’s counsel Greg Jacob, and the Vice President’s Chief of  Staff Marc Short.209 At that meeting, Dr. Eastman presented his plan to Vice President Pence,  focusing on either rejecting electors or delaying the count.210 When Vice President Pence was  unpersuaded, President Trump sent Dr. Eastman to review the plan in depth with the Vice  President’s counsel on January 5. Vice President Pence’s counsel interpreted Dr. Eastman’s  presentation as being on behalf of the President.

On the morning of January 6, President Trump made several last-minute “revised  appeal[s] to the Vice President” to pressure him into carrying out the plan. At 1:00 am,  President Trump tweeted: “If Vice President @Mike_Pence comes through for us, we will win  the Presidency . . . Mike can send it back!”At 8:17 am, President Trump tweeted: “All Mike Pence has to do is send them back to the States, AND WE WIN. Do it Mike, this is a time for  extreme courage!”Shortly after, President Trump rang Vice President Pence and once again  urged him “to make the call” and enact the plan. Just before the Joint Session of Congress began, President Trump gave a speech to a large crowd on the Ellipse in which he warned,  “[a]nd 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.” President Trump ended his speech by galvanizing the crowd to join him in  enacting the plan: “[L]et’s walk down Pennsylvania Avenue” to give Vice President Pence and  Congress “the kind of pride and boldness that they need to take back our country.”

Together, these actions more likely than not constitute attempts to obstruct an official proceeding.  

Official proceeding  

The Court next analyzes whether the Joint Session of Congress to count electoral votes on January 6, 2021, constituted an “official proceeding” under the obstruction statute. The United States Code defines “official proceeding” to include “a proceeding before the Congress.” The Twelfth Amendment outlines the steps to elect the President, culminating in the President of the Senate opening state votes “in the presence of the Senate and House of Representatives.” Dr. Eastman does not dispute that the Joint Session is an “official proceeding.” While there is no binding authority interpreting “proceeding before the Congress,”  ten colleagues from the District of Columbia have concluded that the 2021 electoral count was an “official proceeding” within the meaning of section 1512(c)(2), and the Court joins those  well-reasoned opinions.  

Corrupt intent  

A person violates § 1512(c) when they obstruct an official proceeding with a corrupt mindset. The Ninth Circuit has not defined “corruptly” for purposes of this statute. However,  the court has made clear that the threshold for acting “corruptly” is lower than “consciousness of wrongdoing,” meaning a person does not need to know their actions are wrong to break the law. Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly” under § 1512(c). 

President Trump and Dr. Eastman justified the plan with allegations of election fraud— but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful. Although Dr. Eastman argues that President Trump was advised several state elections were fraudulent, the Select Committee points to numerous executive branch officials who publicly stated and privately stressed to President Trump that there was no evidence of fraud. By early January, more than sixty courts dismissed cases alleging fraud due to lack of standing or lack of evidence, noting that they made “strained legal arguments without merit and speculative accusations” and that “there is no evidence to support accusations of voter fraud.” President Trump’s repeated pleas for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “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.” Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.

The plan not only lacked factual basis but also legal justification. Dr. Eastman’s memo noted that the plan was “BOLD, Certainly.” The memo declared Dr. Eastman’s intent to step outside the bounds of normal legal practice: “we’re no longer playing by Queensbury Rules.”

In addition, Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states. In the meeting in the Oval Office two days before January 6, Vice President Pence  stressed his “immediate instinct [] that there is no way that one person could be entrusted by the Framers to exercise that authority.” 

Dr. Eastman argues that the plan was legally justified as it “was grounded on a good faith interpretation of the Constitution.” But “ignorance of the law is no excuse,” and believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it. Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump knew how to pursue election claims in court—after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.  

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.  

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.

The Select Committee also alleges that President Trump, Dr. Eastman, and others conspired to defraud the United States by disrupting the electoral count, in violation of 18 U.S.C. § 371. That crime requires that (1) at least two people entered into an agreement to obstruct a lawful function of the government (2) by deceitful or dishonest means, and (3) that a member of the conspiracy engaged in at least one overt act in furtherance of the agreement.

Agreement to obstruct a lawful government function  

As the Court discussed at length above, the evidence demonstrates that President Trump likely attempted to obstruct the Joint Session of Congress on January 6, 2021. While the Court earlier analyzed those actions as attempts to obstruct an “official proceeding,” Congress convening to count electoral votes is also a “lawful function of government” within the meaning of 18 U.S.C. § 371, which Dr. Eastman does not dispute.  

An “agreement” between co-conspirators need not be express and can be inferred from the conspirators’ conduct. There is strong circumstantial evidence to show that there was likely an agreement between President Trump and Dr. Eastman to enact the plan articulated in Dr. Eastman’s memo. In the days leading up to January 6, Dr. Eastman and President Trump had two meetings with high-ranking officials to advance the plan. On January 4, President Trump and Dr. Eastman hosted a meeting in the Oval Office to persuade Vice President Pence to carry out the plan. The next day, President Trump sent Dr. Eastman to continue discussions with the Vice President’s staff, in which Vice President Pence’s counsel perceived Dr. Eastman as the President’s representative. Leading small meetings in the heart of the White House implies an agreement between the President and Dr. Eastman and a shared goal of advancing the electoral count plan. The strength of this agreement was evident from President Trump’s praise for Dr. Eastman and his plan in his January 6 speech on the Ellipse: “John is one of the most brilliant lawyers in the country, and he looked at this and he said, ‘What an absolute disgrace that this can be happening to our Constitution.’”

Based on these repeated meetings and statements, the evidence shows that an agreement to enact the electoral count plan likely existed between President Trump and Dr. Eastman. 

Deceitful or dishonest means  

Obstruction of a lawful government function violates § 371 when it is carried out “by deceit, craft or trickery, or at least by means that are dishonest.”While acting on a “good faith misunderstanding” of the law is not dishonest, “merely disagreeing with the law does not constitute a good faith misunderstanding . . . because all persons have a duty to obey the law whether or not they agree with it.”

The Court discussed above how 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 also demonstrates that Dr. Eastman likely knew that the plan was unlawful. Dr. Eastman heard from numerous mentors and like-minded colleagues that his plan had no basis in history or precedent. Fourth Circuit Judge Luttig, for whom Dr. Eastman clerked, publicly stated that the plan’s analysis was “incorrect at every turn.” Vice President Pence’s legal counsel spent hours refuting each part of the plan to Dr. Eastman, including noting there had never been a departure from the Electoral Count Act and that not “a single one of [the] Framers would agree with [his] position.”

Dr. Eastman himself repeatedly recognized that his plan had no legal support. In his discussion with the Vice President’s counsel, Dr. Eastman “acknowledged” the “100 percent consistent historical practice since the time of the Founding” that the Vice President did not have the authority to act as the memo proposed. More importantly, Dr. Eastman admitted more than once that “his proposal violate[d] several provisions of statutory law,” including explicitly characterizing the plan as “one more relatively minor violation” of the Electoral Count Act. In addition, on January 5, Dr. Eastman conceded that the Supreme Court would unanimously reject his plan for the Vice President to reject electoral votes. Later that day,  Dr. Eastman admitted that his “more palatable” idea to have the Vice President delay, rather than reject counting electors, rested on “the same basic legal theory” that he knew would not survive judicial scrutiny.

Dr. Eastman’s views on the Electoral Count Act are not, as he argues, a “good faith interpretation” of the law; they are a partisan distortion of the democratic process. His plan was driven not by preserving the Constitution, but by winning the 2020 election: 

[Dr. Eastman] acknowledged that he didn’t think Kamala Harris should have that authority in 2024; he  didn’t think Al Gore should have had it in 2000; and he acknowledged that no small government  conservative should think that that was the case. 

Dr. Eastman also understood the gravity of his plan for democracy—he acknowledged “[y]ou would just have the same party win continuously if [the] Vice President had the authority to just declare the winner of every State.”

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. 

Overt acts in furtherance of the conspiracy  

President Trump and Dr. Eastman participated in numerous overt acts in furtherance of their shared plan. As detailed at length above, President Trump’s acts to strong-arm Vice President Pence into following the plan included meeting with and calling the Vice President and berating him in a speech to thousands outside the Capitol. Dr. Eastman joined for one of those meetings, spent hours attempting to convince the Vice President’s counsel to support the plan, and gave his own speech at the Ellipse “demanding” the Vice President “stand up” and enact his plan.

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.  

As the Court discusses below, review of the eleven remaining documents reveals that none further efforts to spread false claims of election fraud. Accordingly, the Court does not reach whether President Trump likely engaged in common law fraud.  

Actions in furtherance of crime or fraud  

The Court now determines whether any of the remaining eleven documents were in furtherance of the two crimes the Court found evidence of above, obstruction of an official proceeding and conspiracy to defraud the United States by attempting to persuade Vice President Pence to reject or delay electoral votes on January 6, 2021.  

The crime-fraud exception applies when the “communications for which production is sought are ‘sufficiently related to’ and were made ‘in furtherance of [the] intended, or present, continuing illegality.’” In a civil case, the burden of proof for the party seeking disclosure under the crime-fraud exception is preponderance of the evidence, meaning more likely than not.

“[T]he crime-fraud exception does not require a completed crime or fraud but only that the client have consulted the attorney in an effort to complete one.” The exception applies even if the attorney does not participate in the criminal activity, and “and even [if] the communication turns out not to help (and perhaps even to hinder) the client’s completion of a crime.” An attorney’s wrongdoing alone may pierce the privilege, regardless of the client’s awareness or innocence.

… 

The eleventh document is a chain forwarding to Dr. Eastman a draft memo written for President Trump’s attorney Rudy Giuliani. The memo recommended that Vice President Pence reject electors from contested states on January 6. This may have been the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action. The draft memo pushed a strategy that knowingly violated the Electoral Count Act, and Dr. Eastman’s later memos closely track its analysis and proposal. 

The memo is both intimately related to and clearly advanced the plan to obstruct the Joint Session of Congress on January 6, 2021. Because the memo likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States, it is subject to the crime-fraud exception and the Court ORDERS it to be disclosed.  

DISPOSITION  

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.  

More than a year after the attack on our Capitol, the public is still searching for accountability. This case cannot provide it. The Court is tasked only with deciding a dispute over a handful of emails. This is not a criminal prosecution; this is not even a civil liability suit. 

At most, this case is a warning about the dangers of “legal theories” gone wrong, the powerful abusing public platforms, and desperation to win at all costs. If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution. If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.  


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