“The illegality of the plan was obvious.” These words of Judge David O. Carter in the United States District Court for the Central District of California this week electrified commentators on the networks and on the Internet. Justice Carter was praised for his “simple clarity” in stating that “it is more likely than not that President Trump corruptly attempted to obstruct the joint session of Congress on January 6, 2021.” The court’s statements sparked a media frenzy and renewed calls for the former president to be prosecuted. However, some elements of the ruling are deeply concerning on issues ranging from free speech to solicitor-client privilege.
The Washington Post was quick to declare breathlessly that the time had finally come. . . again. Given the Posts’ long history of bringing criminal slam dunk charges against Trump to nothing, that’s hardly a surprise. However, Carter’s opinion was immediately described as ending all speculation. It now appears to be little more than an administrative matter before Trump is sent to the slammer.
Post columnist Jennifer Rubin said, “Carter made a clear invitation — almost a plea — for the Justice Department to press charges against Eastman and Trump. . . [Attorney General Merrick] Garland will have exceptional difficulty justifying a decision not to prosecute. »
If you read such columns, it’s hard to see why Trump hasn’t been charged after two years. After all, the media reported statements from DC Attorney General Racine that he was pursuing possible charges. Yet neither Racine nor the Biden administration has indicted Trump. Why?
The reason this did not happen is that Justice Carter’s “invitation” surprisingly lacks clear evidence of such criminal conduct.
Justice Carter was ruling on the release of documents claimed to be privileged by Eastman, who advised Trump after speaking at the January 6, 2021 rally near the White House. Eastman believed that Vice President Mike Pence could refuse to certify the election and return the electoral votes to the states. Carter ruled that such legal advice failed under the “crime/fraud exception” because the president knew there was no basis for such a challenge.
As legal experts celebrate Carter’s ruling as a major victory against Trump, it’s important to consider the implications for both free speech and attorney-client privilege. It’s not because I agree with Eastman’s claims; on the contrary, I criticized Trump’s speech as he delivered it and later called on Congress to censor it. me too backed Vice President Pence interpretation of federal law and disagreed with Eastman’s interpretation.
Also, as I have said many times, Congress has a legitimate interest in getting a full account of what happened on January 6th. However, none of this should blind us to the dangerous elements of this decision.
Justice Carter notes that Eastman still believes the law is unconstitutional as written. The court simply brushes that aside and says “ignorance of the law is no excuse” and “believing that the Voter Count Act was unconstitutional did not allow President Trump to violate it.”
More importantly, the court simply states that Trump knew the election had not been stolen and that “the illegality of the plan was therefore obvious.” Aside from the court’s speculation about what Trump secretly concluded in the election, a significant number of Americans still do not view Biden as legitimately elected. The court is not simply saying that they are wrong in that opinion, but because they are wrong, the legislative challenges amounted to criminal obstruction of Congress.
In 2005, it was the Democrats who alleged that a presidential election was stolen and challenged congressional certification of votes in Ohio. The claim was equally frivolous, but Democratic leaders praised the effort, including Speaker Nancy Pelosi who praised Senator Barbara Boxer’s challenge and insisted “this debate is fundamental to our democracy.” .
Democrats did not demand that Vice President Dick Cheney refuse to certify, however, an important distinction of course. January 6 was a desecration of our constitutional process and one of the most shameful days in our history.
However, the challenge’s lack of factual basis (cited repeatedly by Justice Carter in the Trump challenge) did not make it a criminal or fraudulent effort.
Some attorneys believed (and still believe) that it was possible for Pence to refuse to certify. Holding such a legal view is not a crime and sharing that view with the White House is not a conspiracy. Indeed, Eastman and others were publicly stating essentially the same thing. This sparked the debate, with many of us challenging their interpretation.
Yet Carter is conclusive and dismissive on this critical point stating that “President Trump and Dr. the plan was illegal”. Trump still insists he believes otherwise. The question is why discussing this point with Pence and others amounted to a criminal act. In the end, wiser minds prevailed, and the theory was not used by Pence.
There were crimes that day, of course. Some of the rally participants rioted and were charged largely with trespassing and unlawful entry. A handful of them have been charged with seditious conspiracy. The court cites no evidence that Trump directly advocated violence while noting that Trump told the crowd to come to the Hill peacefully.
Consider the implications of Carter’s opinion. There were riots during the election of President Trump while various Democratic leaders continued to argue that he was not the legitimately elected president, a view echoed by Hillary Clinton. Although they didn’t riot in Congress, they did commit other crimes.
According to Carter’s theory, baseless claims that Trump was not legitimately elected were used by the Trump administration to seize confidential legal documents given to leaders in 2005. After all, there was no solid factual basis for these claims and they knew it. They further fueled the crowd by making these claims in public.
What is particularly concerning is that none of this was necessary. Congress has every right, if not a duty, to investigate whether there has been a criminal conspiracy. Yet he is already familiar with the legal advice given by Eastman and other witnesses have testified to what he said in critical meetings.
In the Post column, Rubin reminds readers “this is a federal court, not an expert or a politician.” Yet, at times, it was hard to tell the difference. Judge Carter seemed determined to pass judgment on what he described as a “coup” rather than a riot: “Dr. Eastman and President Trump have launched a campaign to overturn a Democratic election. . . Their campaign was not limited to the ivory tower – it was a coup in search of legal theory.
This last comment was particularly interesting because it suggests that Eastman, who was dean and faculty member at Chapman Law School, might have written the same papers as a professor. However, when he took his academic views and applied them as a lawyer, it somehow became part of a criminal conspiracy and coup attempt.
This is what is so disturbing in Carter’s opinion. While I agree with many aspects of Justice Carter’s decision, there is no clear limiting principle as to when legal advice becomes a criminal conspiracy beyond the court’s predisposition as to significance of these facts.