That’s important not only to look back, but also to look ahead, because perhaps his most infamous outrage — the big lie that he won the 2020 presidential election — hasn’t stopped. It continues to power hundreds of voter suppression and election sabotage laws and anti-democratic candidates across the country. And it has captured and corrupted a major faction of the Republican Party.
Fortunately, Judge David Carter’s decision Monday, which found Trump “more likely than not” to have committed crimes, outlines a roadmap for ultimately imposing consequences for the big lie. It does this by addressing the most thorny legal issues related to Trump, his enablers, and the events of and around January 6, 2021 — and showing how they can be addressed by prosecutors.
Perhaps the most daunting of these is the question of Trump’s criminal intent. How can a prosecutor prove what Trump was thinking when he publicly claimed to be in good faith but refused to testify, when his loved ones are also resisting or are hostile witnesses, and when he doesn’t use the prosecution’s best friend, the email?
The intention is that the Manhattan District Attorney’s financial case seemed like a bull’s eye. Whatever you think of the DA’s failure to prosecute financial crime, and we strongly disagree, Carter provided a powerful array of evidence on democracy crimes.
Carter applies precedent to show that “a person does not need to know that their actions are wrong to break the law”. Trump crossed this threshold because he likely knew that right-wing attorney John Eastman’s plan to throw out electoral votes was illegal. Carter cites the carefully curated evidence of the January 6 House Selection Committee that Trump was informed multiple times publicly and privately that there was absolutely no evidence of significant electoral fraud.
As the advisory notes, Trump’s phone calls to Georgian Secretary of State Brad Raffensperger famously asked the secretary to “give him a break” and “find 11,780 votes” (one vote more than Biden’s margin of victory in that state) the former president’s goal: not to conduct a legitimate investigation, but simply to undo the election. This is strong evidence of a “corrupt mentality”, and it leads Carter to an eminently simple conclusion: “The illegality of the plan was obvious.”
By pooling both private conversations and public writings about the plan to overcome the lack of evidence from the election, Carter shows prosecutors have a wide variety of evidence at their disposal that prove the former president’s intent. Perhaps no one on Earth has developed a longer probative record than Trump — and prosecutors can unlock that record to hold him accountable. This, in fact, contradicts those who say that intent will be difficult to prove and is a useful signpost for the upcoming Jan. 6 commission hearings and report — and for when the Justice Department will provide the commission’s full evidence and any criminal references. receives.
The judge’s analysis doesn’t stop at just tackling the tricky issue of intent. He goes on to address charges of obstruction of official proceedings in Congress. This can be difficult to prove (after one of us worked on this issue during Trump’s first impeachment, one of us knows this particularly well). But the judge’s opinion points the way.
Carter joins other federal judges in ruling that the counting of the congressional election is an “official proceeding,” and he rules that Trump likely tried to obstruct or hinder that official proceeding under Title 18 Section 1512 of the American Code. Summarizing evidence from Twitter, the president’s private schedule, comments during the Ellipse rally, and other sources, Carter traces Eastman and Trump’s activities in the days leading up to Jan. 6 and determines that these actions are “more likely than not.” form an obstacle.
The judge also mapped out another major potential crime: conspiracy to defraud the US under Title 18 Section 371. He did this in reference to Eastman and Trump, but in terms that could implicitly broadly apply to many others. in their circle. Here, the advisory notes that “(l) conducting small assemblies in the heart of the White House implies an agreement between the president and Dr. Eastman and a common purpose to advance the election plan.”
The potential implications for the rest of Trump’s enablers are clear. Eastman is certainly not the only person alleged to have participated in calls or meetings regarding the annulment of the election. The quakes should send former Trump attorneys Rudy Giuliani and Sidney Powell, former White House Chief of Staff Mark Meadows, former Justice Department official Jeffrey Clark and many more people allegedly part of such talks, about the have gone back.
It’s also worth noting that the judge ultimately ordered the disclosure of only one document based on the “crime fraud” exception to attorney-client privilege. That one document, however, is very telling. It’s an email chain that forwarded Eastman a draft memo written for Giuliani. Carter notes that “this may have been the first time members of President Trump’s team have turned a legal interpretation into a daily plan of action.” By acknowledging that Eastman’s theories were not just legal musings, but the plan of action for “a coup in search of a legal theory,” Carter discards one of the main false arguments that Eastman and Trump have relied on.
This is clearly helpful for the committee in drafting their hearings on this inappropriate behavior and in including strong criminal justice references to the Department of Justice in its report. Since there is likely to be more evidence than what has already been revealed, the commission must build on the judge’s opinion, and then it will be up to the Justice Department to evaluate and determine whether the cases can be proven beyond reasonable doubt.
In addition, neither we nor the commission should neglect the importance of all this to prosecutors like Georgia’s Fulton County District Attorney Fani Willis, who is investigating Trump’s alleged attempts to reverse the election in that state. She has to grapple with these issues of proving criminal intent, conspiracy and the like under Georgian law. And Willis has added a Georgia Racketeer Influenced and Corrupt Organizations Act (RICO) expert to her team to advise her in her investigation. The judge has made it all easier for her and the commission should also keep its investigation in mind as they build on his work in their hearings and in their report. (They are reportedly already in talks with her office, which is a promising sign.)
Of course, some caveats apply. The federal case in California was a civil action and thus included a lower standard of proof than the beyond questionable standard that will apply in a federal or state criminal case. In addition, Eastman will no doubt appeal, which could delay the case. But his efforts are unlikely to be successful due to the judge’s very in-depth review of the file.
There is indeed only one part of his opinion to which we object. At the end, Carter writes that “(more than a year after the attack on our Capitol, the public is still seeking accountability. This case cannot offer it.” That is false modesty.
He might have said, “can’t provide it directly.” Carter knows the limited implications of his decision. But he has expertly addressed key legal issues for the public to understand, which will need to be addressed by the Jan. 6 commission as they make any criminal references, and ultimately by federal and state prosecutors in their own efforts to hold Trump accountable.
Hopefully, all will use the roadmap the judge has provided and do something about the underlying violations. That’s important for holding Trump and his enablers accountable, for stopping the ongoing big-dealing crime of the GOP’s MAGA faction, and for protecting our democracy itself.