Trump ‘likely’ committed crime trying to stay in power, judge says in records dispute

A federal judge found it was "more likely than not" that former President Donald Trump violated the law and "corruptly attempted to obstruct" Congress in his attempts to overturn the 2020 election results.

• By Tom Dreisbach/NPR

In a remarkable 44-page ruling, a federal judge found it was “more likely than not” that former President Donald Trump violated the law and “corruptly attempted to obstruct” Congress in his attempts to overturn the 2020 election results.

The court’s finding is narrowly focused on a set of documents sought by the congressional committee investigating the Jan. 6 attack on the U.S. Capitol, and does not have direct legal consequences for Trump himself. The finding could be rejected on appeal, or be contradicted by other judges hearing cases related to the Capitol riot. Still, the ruling is consistent with a legal theory advanced by the House Select Committee investigating Jan. 6 that Trump and others may have broken the law in their attempts to overturn the election.

“It’s enormously significant,” said Jonathan Shaub, an assistant professor at the University of Kentucky College of Law. “This is a thorough judicial analysis that, I think, it’s difficult to sort of just brush aside, and it will give the committee’s statements that there have been crimes some credibility.”

Shaub noted that the charge of obstruction of an official proceeding, which the judge found Trump “likely” committed, has been brought against many Jan. 6 riot defendants.

The ruling arose out of a dispute between the pro-Trump attorney John Eastman and the congressional committee. In the aftermath of the 2020 presidential election, Eastman put together legal strategies and advised the Trump team on how they might overturn President Joe Biden’s electoral victory, and met with Trump, then-Vice President Mike Pence, and others at the White House.

The Jan. 6 select committee in Congress has since sought documents and testimony from Eastman related to this work, including by issuing subpoenas. Eastman sued to block their release and claimed that some of his communications were shielded by attorney-client privilege.

The judge in the case, U.S. District Court Judge David O. Carter of California, largely rejected Eastman’s arguments and ordered that 101 of the disputed 111 documents be released to the committee.

In one instance, Carter, who was nominated to the bench by former President Bill Clinton, found that the attorney work-product protection (which is similar to the attorney-client privilege) did not protect a document from disclosure, due to what’s known as the “crime-fraud exception.” Under the law, that protection does not apply to communications made to further an ongoing or future crime or fraudulent activity – in this case, the alleged attempts to obstruct congress and overturn the election.

Carter described Trump and Eastman’s plan as “a coup in search of a legal theory,” which “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.”

Still, Carter made clear that his ruling would only directly affect these disputed documents.

“More than a year after the attack on our Capitol, the public is still searching for accountability. This case cannot provide it,” Carter wrote. “This is not a criminal prosecution; this is not even a civil liability suit.”

In a statement, an attorney for Eastman noted that the court’s findings on the crime-fraud exception “were not subject to the presumption of innocence, proof beyond a reasonable doubt, or any of the constitutional protections normally applicable to criminal proceedings.” Instead, the judge’s finding was on the basis of a “preponderance of evidence” – or, in layperson’s terms, “more likely than not.”

The statement added that Eastman “respectfully disagrees with the judge’s findings” and “asks all persons interested in this case to join him in calling upon the January 6th committee to release all the evidence so the courts and the public can reach accurate conclusions about the matters involved.”

Eastman “intends to comply with the court’s order,” the statement said.

Shaub, who also previously worked in the Department of Justice’s Office of Legal Counsel, said the ruling may put additional pressure on the Justice Department to bring charges against high-level officials involved with the efforts to overturn the election. “I think it’s harder to dismiss claims that there have been crimes committed, when you have a judicial finding that there is enough evidence to say that they were planning a crime,” said Shaub.

The judge’s ruling concluded with a warning that investigators should continue their examination of the Jan. 6 attack in order to protect the rule of law in the U.S.

“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,” Carter wrote. “If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”

A representative of former President Trump did not immediately respond to requests for comment.