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A Federal Judge Found That Trump “Likely” Committed Serious Crimes—Now What?

“A coup in search of a legal theory.”
April 1, 2022
A Federal Judge Found That Trump “Likely” Committed Serious Crimes—Now What?
(Photo by Oliver Contreras/For The Washington Post via Getty Images)

According to an order issued on Monday by a federal judge, Donald Trump “likely” committed multiple crimes in connection with the 2020 presidential election and the January 6, 2021 insurrection at the Capitol. The ruling has been widely quoted this week, because of what it reveals about what the House Jan. 6th Committee has learned regarding Trump’s involvement and because of the judge’s ringing criticism of Trump. It’s also an urgent call for the Department of Justice to take action. Yet for anyone hoping for a shred of legal accountability to attach to the former president, this is no moment to celebrate.

U.S. District Judge David O. Carter’s decision sprung from an effort by John C. Eastman—the law professor who wrote the infamous memos outlining a bogus constitutional justification for thwarting the certification of the Electoral College votes—to block his former university from complying with a records request by the Select Committee. Eastman claimed the documents are protected from disclosure under attorney-client privilege and the work-product doctrine. Carter’s opinion dealt only with those discrete legal concepts, which operate to keep certain information from opposing counsel in the context of civil or criminal litigation. As the judge explained, “Eastman claims attorney-client privilege over only nine documents: five emails and four attachments.” He claimed work-product protection for 111 documents, including the nine purportedly privileged ones. So by any stretch, this is hardly a sweeping ruling.

On the attorney-client privilege front, Eastman scored a few points. Carter ruled that Eastman and Trump were in fact in an attorney-client relationship, and that Eastman’s “potentially unauthorized use” of his university email address for that work “did not destroy attorney-client privilege.”

As for the work-product doctrine, which shields documents reflecting legal strategy in anticipation of litigation, Carter was less sparing. “Seven of these documents are only images of logos attached to email signatures, including Facebook, LinkedIn, and Twitter,” he wrote. “One document is a blank page and two are blank emails.” Carter painstakingly worked through various subcategories of the remaining records to determine which involved litigation and which did not. “Litigation was never Dr. Eastman’s motivation for planning the events of January 6,” Carter concluded, “perhaps because, as he conceded, his legal theories would be rejected ‘9-0’ by the Supreme Court.” Rather, “the true animating force behind these emails was advancing a political strategy: to persuade Vice President Pence to take unilateral action on January 6.”

Carter then brought down the hammer.

Even if materials are protected from disclosure, that protection evaporates if they are part of the commission of a crime. Carter concluded that Eastman and Trump “likely committed” three crimes:

(1) President Trump and his lawyer likely attempted to obstruct Congress’s proceeding to count the electoral votes on January 6, in violation of 18 U.S.C. § 1512(c)(2). (Recall that this is the charge Rep. Liz Cheney flagged from the House floor.)

(2) President Trump and his lawyer likely engaged in a conspiracy to defraud the United States by disrupting the electoral count, in violation of 18 U.S.C. § 371.

(3) President Trump likely engaged in common law fraud.

All three of these crimes require a showing of criminal intent, which can be hard to muster. (For example, in Robert Mueller’s report of Russian interference in the 2016 presidential election, intent is what distinguished collusion from conspiracy, the latter of which Mueller apparently couldn’t establish.) Carter was undeterred.

He found that “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.” The first was on January 4, and included Pence, his counsel Greg Jacob, and his chief of staff Marc Short. Eastman presented a plan to reject electors or delay the count, and “Vice President Pence’s counsel interpreted Dr. Eastman’s presentation as being on behalf of the President.” Two days later, 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.” They included tweets, a call from Trump to Pence, and the infamous speech on the Ellipse warning, “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.”

Most critically for purposes of making a criminal case against Trump, Carter wrote: “President Trump likely knew the justification [of election fraud] was baseless, and therefore that the entire plan was unlawful,” as the House Jan. 6th Committee “points to numerous executive branch officials who . . . privately stressed to President Trump” as much. Moreover, “more than sixty courts dismissed cases” brought by Trump and his allies, because “there is no evidence to support accusations of voter fraud.”

In short, Judge Carter concluded, “this plan was a last-ditch attempt to secure the Presidency by any means.” It violated the Constitution and, per Eastman’s own admission, “several provisions of statutory law.” Eastman knew it. Trump knew it. And to this day, the world knows it.

Carter’s conclusions should come as no surprise. Anyone with a passing familiarity with the events leading up to Jan. 6th (aside from dogged adherents to the Big Lie) is aware of the fact that Trump knowingly, deliberately, and methodically sought to steal the election from the valid winner, Joe Biden, using all of the massive powers of the presidency he could muster. The widespread complacency with these truths—from politicians, prosecutors, and citizens across the political spectrum—clearly galls Judge Carter. The outrage virtually leaps off the page.

But Judge Carter emphasizes the limitations on what his ruling means:

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.

Our democracy survived the Trump coup: Pence drew the red line on Jan. 6th, and Joe Biden, the duly elected president, was sworn in two weeks later. But unless and until Attorney General Merrick Garland or some prosecutor within a state or municipal office musters the courage to indict Trump, and until Congress passes laws protecting the electoral process, the attack on American democracy will not yet have really ended.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.