A Judge Called Donald Trump's Postelection Efforts "A Coup In Search Of A Legal Theory"

The judge concluded the Jan. 6 committee had shown at this stage that Trump and lawyer John Eastman “more likely than not” committed crimes.

WASHINGTON — A federal judge on Monday denounced efforts by former president Donald Trump and his allies to undermine the 2020 election, describing them as “a coup in search of a legal theory” and finding there was evidence that Trump “more likely than not” committed felony crimes.

US District Judge David Carter’s analysis of Trump’s potential criminal exposure was part of an order about whether the congressional committee investigating the Jan. 6 attack on the US Capitol could pry loose emails sent and received by conservative attorney John Eastman. Eastman had worked with Trump and his legal team in crafting a strategy to fight election results both in court and in Congress. Carter found the committee presented enough evidence at this stage that Trump and Eastman conspired to obstruct Congress to overcome a legal privilege that normally might shield Eastman’s communications.

Carter’s order and his assessment of the committee’s case against Trump doesn’t require the Justice Department to take action. The burden of proof that the Jan. 6 committee had to meet to win this type of fight over access to potentially privileged materials — showing “by a preponderance of the evidence” that Trump and Eastman “more likely than not” committed crimes — is generally lower than the bar that prosecutors have to meet to win a conviction in court, proving their case “beyond a reasonable doubt.”

But his decision ramps up the pressure already facing Attorney General Merrick Garland and DOJ officials managing the prosecution effort to address Trump’s responsibility for the insurrection head-on. At a minimum, it represented a judicial stamp of approval to the work of the congressional committee, which has the option of making a criminal referral to the Justice Department.

The judge concluded that one document — a memo sent to Eastman laying out a plan to convince former vice president Mike Pence to reject electors in key states that President Joe Biden had won — was covered by the “crime-fraud exception” to a lawyer’s privilege over their records. That memo was directly related to the alleged criminal scheme that the committee had laid out, Carter held. He held that the committee was entitled to an additional 100 documents that weren’t privileged, and sided with Eastman when it came to 10 records.

“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,” the judge wrote.

Eastman’s lawyer Charles Burnham said in a written statement that Eastman had a "duty" to raise the privilege challenges on behalf of clients and intended to comply with the judge's order. Burnham also pushed back on Carter's description of Eastman's conduct, writing that Eastman "has an unblemished record as an attorney and respectfully disagrees with the judge’s findings."

"As an attorney, Dr. John Eastman has the responsibility to protect the confidences of his clients to the fullest extent of the law. Dr. Eastman's case against the January 6 committee seeks to fulfill this responsibility. It is not an attempt to 'hide' documents or 'obstruct' congressional investigations, as the January 6th committee falsely claims," the statement read.

A spokesperson for the Jan. 6 committee did not immediately return a request for comment.

“More than a year after the attack on our Capitol, the public is still searching for accountability. This case cannot provide it,” Carter wrote. “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.”

Eastman had been a central figure in the legal strategizing around how to contest election results in battleground states that Biden had won. He’d written a two-page memo that outlined a legally debunked scenario where Pence would reject electors from seven states, triggering a variety of potential outcomes where Trump is reelected based on a declaration from Pence or a vote by Republican-majority state delegations, or leads to a stalemate that gives state legislatures time to approve “alternate” slates of electors.

He refused to turn over documents in response to a subpoena from the congressional committee, claiming his Fifth Amendment right against self-incrimination. Eastman had been a professor and served as the dean of the law school at Chapman University in California, and the committee issued a separate subpoena to the school for any emails to or from Eastman that were on its server. Eastman filed a lawsuit in federal court in Santa Ana, California, to try to stop the university from complying with the subpoena, and the judge ordered him to review thousands of emails that Chapman had identified and note any specific privilege claims.

The fight came down to 111 documents. Eastman claimed that attorney-client privilege protected nine of those documents, and that all of them were covered by what’s known as work product privilege, which applies to records that lawyers use to prepare for litigation. Although the judge found Eastman did have some kind of attorney-client relationship with Trump, that privilege didn’t apply to the nine documents Eastman identified because they were sent from a third party, and Eastman failed to show that person had a privileged relationship with Trump.

The bulk of the ruling dealt with Eastman’s broader claim of work product privilege. The judge first found that 10 of the 111 documents were either blank or featured pictures of logos from email signatures, so there was no privilege there and they could go to the committee.

Out of the remaining 101 documents, the judge identified 10 that were privileged and that the committee would not be allowed to get, but ordered the remaining 91 to be turned over.

Carter concluded that most of the documents weren’t related to litigation so they weren’t covered by a work product privilege, including messages strategizing about how to convince Pence to reject Electoral College results; descriptions of purported election fraud at the state level by state lawmakers and resolutions passed by state legislatures; technical analysis of voting machines; memos specifically created to be passed around to members of Congress; requests for contact information of Eastman, Trump, or other people or outside offers to help Eastman; and news reports and press releases.

The judge then focused on 13 documents where he agreed with Eastman that they would normally be protected because they were “clearly” related to litigation and were prepared by or for representatives of Trump or his campaign, including other attorneys who were working with Trump or involved in pending state court cases at the time. Two of those documents were no longer protected because they’d become public, including a Nov. 18, 2020, memo that laid out a strategy for preparing an alternate slate of pro-Trump electors in Wisconsin.

That left 11 documents on the table. The Jan. 6 committee had argued that Eastman’s emails couldn’t be privileged because they fell under what’s known as the “crime-fraud exception,” meaning that a client had asked for a lawyer’s advice that would help them commit a crime or the messages generally were “in furtherance of” criminal activity. To apply that exception, courts apply a lower burden of proof than the one prosecutors have to meet to win a conviction in court — the Jan. 6 committee had to show Trump and Eastman “more likely than not” committed crimes by a “preponderance of the evidence,” as opposed to having to prove a case “beyond a reasonable doubt.”

Carter found that the committee had cleared the bar for showing Trump likely tried to obstruct an official proceeding — a felony crime that hundreds of people are charged with who descended on the Capitol on Jan. 6 — and that Trump, Eastman, and others conspired to defraud the United States by interfering with the election certification, also a felony carrying up to five years in prison. The judge focused on Trump’s “pressure campaign” to convince Pence to take steps to block the certification of Biden’s win.

Trump likely knew that his claims of widespread voter fraud were bogus given the evidence of public and private pushback he encountered from various advisers, plus the dozens of losses in court to legal challenges raised by Trump and others, the judge wrote. He noted Trump’s widely reported call to Georgia Secretary of State Brad Raffensperger focused on what Trump identified as the roughly 11,000 votes he believed he needed to win the state, not concerns about fraud. Trump was entitled to argue about the law in court, Carter wrote, but his efforts with Eastman to undermine the federal Electoral Count Act went beyond that.

“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,” Carter wrote.

Ultimately, the judge identified one document out of the remaining 11 that related to the crimes the committee had identified and that Eastman would have to turn over: a draft memo that had been written for Trump attorney Rudy Giuliani and forwarded to Eastman that laid out the case for Pence rejecting electors from states where Trump was contesting Biden’s wins.

“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,” Carter wrote.

As for the remaining 10 documents, the judge found that they would remain privileged and out of the committee’s hands. He wrote that nine of them were related to the legal efforts in court to contest election results, and that while they may have featured some of the baseless voter fraud claims, pursuing challenges in court wasn’t part of the alleged criminal scheme at issue. The final message was an email sent by someone after Congress had resumed certifying the election results on the night of Jan. 6, so the judge held it couldn’t be considered part of any ongoing criminal effort at that point to convince Pence to reject certification.

UPDATE

Updated with comment from John Eastman's lawyer Charles Burnham.