Welcome to DU! The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards. Join the community: Create a free account Support DU (and get rid of ads!): Become a Star Member All Forums Issue Forums Culture Forums Alliance Forums Region Forums Support Forums Help & Search

Celerity

(42,666 posts)
Thu Mar 31, 2022, 08:52 AM Mar 2022

WaPo Op-Ed: A federal judge said Trump probably committed a crime. The DOJ can't ignore that.

“A coup in search of a legal theory.”

https://www.washingtonpost.com/opinions/2022/03/30/george-conway-trump-eastman-garland-investigate/



By George T. Conway III
Contributing columnist


That was the sober, and apt, assessment made this week of former president Donald Trump’s attempt to overturn the 2020 election — not by a partisan or pundit, but in an opinion by a federal judge. And although that ruling, by U.S. District Judge David O. Carter, did not decide a criminal case, it ought to presage one.

We don’t know whether the Justice Department has been considering criminal charges against Trump, or whether it will. We do know that Attorney General Merrick Garland, in a speech commemorating the one-year anniversary of the Capitol insurrection, vowed that the Justice Department was “committed to holding all Jan. 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” Carter’s conclusion makes clear that, for the attorney general’s commitment to be met, the Justice Department’s criminal investigation of Jan. 6 must focus closely on Trump.

The court’s ruling came in a lawsuit that one of Trump’s lawyers, John Eastman, brought against the select committee investigating the Jan. 6, 2021, attack on the Capitol. Eastman served as the legal architect of Trump’s effort to pressure then-Vice President Mike Pence to refuse to count numerous states’ electoral votes on Jan. 6. Eastman asserted his Fifth Amendment right against self-incrimination 146 times at his deposition before the select committee. His lawsuit argued that some of his emails should be kept from the committee because they were shielded by either attorney-client privilege or “work product” privilege, which protects confidential documents prepared for litigation.

The opinion by Carter, a former prosecutor nominated to the bench by President Bill Clinton, makes clear Eastman has good reason to worry about criminal consequences. The attorney-client and work-product privileges must give way if they involve communications that further the commission of a fraud or crime. And Carter found that at least one of the emails did just that.

snip
15 replies = new reply since forum marked as read
Highlight: NoneDon't highlight anything 5 newestHighlight 5 most recent replies

dem4decades

(11,244 posts)
1. Sad that we'd be better off with Mr Kelli Ann Conway as AG than what we have.
Thu Mar 31, 2022, 09:08 AM
Mar 2022

But it's great that DOJ is investigating Hunter's laptop, probably the most important threat to the country in the history of history.

dem4decades

(11,244 posts)
7. A Democratic board God damn furious that DOJ has announced an investigation into
Thu Mar 31, 2022, 10:41 AM
Mar 2022

Hunter Biden but there's not a whiff of an investigation into the Trump cabal. So yeah, i'm fucking fed up, right here on a Democratic board.

And look around, I'm not the only one. Some of those fed up are Democratic representatives on the January 6th committee.

AZSkiffyGeek

(10,813 posts)
10. Not a whiff except the announcement yesterday
Thu Mar 31, 2022, 11:32 AM
Mar 2022

That all the naysayers are conveniently ignoring or moving goalposts about.
But yeah keep suggesting we replace Democrats with Republicans because they’ll be better.

dem4decades

(11,244 posts)
11. The more pressure that is put on DOJ the better, I don't care who it comes from.
Thu Mar 31, 2022, 11:37 AM
Mar 2022

Do you think Jeffrey Clarke was the only scum at DOJ?

Has DOJ interviewed him yet?

comradebillyboy

(10,119 posts)
3. I'll believe it when I see it.
Thu Mar 31, 2022, 09:40 AM
Mar 2022

Why do I see so many stories about the DOJ investigating "Hunter's laptop" and none about the DOJ investigating the Trump corruption?

Waiting for Garland to act is a lot like waiting for Godot.

SoonerPride

(12,286 posts)
5. Wanna bet?
Thu Mar 31, 2022, 10:21 AM
Mar 2022

Their overriding legal theory at the DOJ is that presidents can't be charged with crimes.

It's too risky to charge a sitting or former president and a fair jury trial is impossible, so they won't bother to do it.

kairos12

(12,817 posts)
15. Chump has proven:
Fri Apr 1, 2022, 12:25 AM
Apr 2022

Can't get me while I'm running for President, while President, of after being President.

Framers done fuccccked Up.

Chainfire

(17,308 posts)
6. None of this circus will go anywhere.
Thu Mar 31, 2022, 10:26 AM
Mar 2022

It is hard for me to believe that rational adults are holding out hope that it will. This country has passed the justice point of no return.

The Party of law and order have destroyed both. Its our own damn fault.

Celerity

(42,666 posts)
13. from the ruling, a pretty damning case is made against Trump
Thu Mar 31, 2022, 11:44 AM
Mar 2022
https://storage.courtlistener.com/recap/gov.uscourts.cacd.841840/gov.uscourts.cacd.841840.260.0_4.pdf

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.

At that meeting, Dr. Eastman presented his plan to Vice President Pence,
focusing on either rejecting electors or delaying the count. 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.222 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.

Conspiracy to defraud the United States

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.

 

Hoyt

(54,770 posts)
14. Eastman might be in trouble. But it's not illegal to contest Electoral Votes. Check out Jan 6, 2017
Thu Mar 31, 2022, 12:17 PM
Mar 2022

where Reps Raskin, Jayapal, McGovern, Shelia Jackson Lee, Barbara Lee, Grijalva, and Waters forced Biden to shut them down trying to stop the election of trump. Of course, there was no storming of the Capitol in 2017, but there was an attempt to overturn Electoral votes. (Honestly, wish they had been successful in stopping trump.)

"Vice President Joe Biden presided over a joint session of Congress Friday, where members officially tallied electoral votes from the 2016 presidential election. President-elect Donald Trump’s 304 electoral votes weren’t counted without incident, however. During the course of the certification, House Democrats tried to object to electoral votes from multiples states, with Biden gaveling them down for failure to follow the rules."

https://www.cnn.com/2017/01/06/politics/electoral-college-vote-count-objections/index.html

LizBeth

(9,946 posts)
9. Did Garland say something the last couple days he was not going after Trump?
Thu Mar 31, 2022, 11:27 AM
Mar 2022

I am reading people saying he stated he is not? Not sure. I know the Democrats were asking strongly that AG do his job with Trump then after that I started hearing he said/implied/suggested he was not going after Trump but I have not read the actual information.

jalan48

(13,798 posts)
12. Trump knew he could get away with it. Our current leaders don't have the stomach to indict a former
Thu Mar 31, 2022, 11:37 AM
Mar 2022

President fearing the tables will get turned as soon as Republicans regain power. Unfortunately, Republican's have shown us they are not afraid to break traditions and laws.

Latest Discussions»General Discussion»WaPo Op-Ed: A federal jud...