The Jan. 6 Committee Just Showed Its Hand on a Criminal Referral for Trump.

Photos by Tom Williams, Caroline Brehman/CQ Roll Call

It was just a court filing, a legal memorandum filed in opposition to a plaintiff’s privilege assertions. But within it, deep in Section 3 of the argument, the January 6 Committee let some serious flak fly about what it believes and knows regarding possible criminal violations by Donald Trump around January 6. Legal and political observers took note. “No overstatement to say tonight was one of the most important investigative moments for the Jan. 6 committee—revealing they had evidence Trump obstructed Congress and conspired to defraud the United States,” said Hugo Lowell, a Congressional reporter with The Guardian who has often been the first to break stories relating to January 6.

Background 

Before we dive into what laws were apparently broken and what evidence the Committee says it has, a bit of context first. The legal memorandum is part of an ongoing dispute the Committee has with one of the key figures in the January 6 coup attempt, lawyer John Eastman, who was the author of an infamous internal White House legal memo. That memo argued, without basis, that Vice President Mike Pence had the authority unilaterally to declare former President Trump the winner of the 2020 election by disregarding the votes of seven swing states on the grounds that their electoral votes were contested (they were not). Eastman was instrumental in attempting to persuade Pence that he should do as the president wanted, but ultimately Pence resisted and refused to go along with the scheme. 

The January 6 Committee wants to obtain Eastman’s communications, notes and memos relating to these efforts to overturn the election, and Eastman is claiming attorney-client and work product privilege over thousands of otherwise responsive documents. The matter is before a federal judge now to determine whether the claims of privilege have any merit.

There are a few ways that claims of attorney-client privilege or work product privilege can be overcome here, including arguments that Eastman wasn’t acting as an attorney, that he had put the documents on a public server at his university, that he had waived the privilege by speaking about his plans publicly, and—importantly for our purposes here—that he was a participant in a crime or fraud perpetrated by his client, Donald Trump. That last argument is called the “crime-fraud” exception to attorney client privilege, and the January 6 Committee is leaning hard into it. They are arguing that the judge should review the documents in camera (meaning, in his chambers, away from the parties) to make a determination if the exception applies in this case.

To buttress its argument that the crime-fraud exception to attorney-client privilege ought to apply here, the Committee needs to show a factual basis for a “good faith belief” that an in camera review would reveal evidence that establishes the exception. In other words, they need to demonstrate to the judge that 1) Donald Trump was engaged in or planning a criminal or fraudulent scheme when he sought the advice of Eastman, and 2) that the communications over which Eastman asserts the privilege are “sufficiently related” and “made in furtherance of the intended or present, continuing illegality.” Notably, the crime doesn’t have to have been successful, and the lawyer doesn’t have to have even known it was occurring for the exception to apply.

That’s why this document is so interesting. To penetrate the privilege claim by Eastman, the Committee is required (for the first time in its investigation) to show its cards and tell the judge—and the world—what it has in terms of crime or fraud committed by Trump.

And it turns out, it’s a lot. The Committee is alleging that Trump committed at least two federal crimes as well as what’s called “common law fraud,” meaning a fraud that is recognized by state case law (rather than by statute) as a violation. Let’s unpack these.

Obstruction of an Official Proceeding

As I wrote in an earlier piece, Rep. Liz Cheney (R-WY), the vice-chair of the Committee and its ranking Republican, had noted back in December of 2021 that the investigation had raised the question of whether Donald Trump, through action or inaction, had corruptly obstructed Congress in the electoral count. That set off alarm bells across Trumpland because it seemed to track the language of a federal statute with a hefty prison sentence of up to 20 years.

Yesterday, the Committee made it official by citing 18 U.S.C. Sec. 1512(c)(2) in its brief and setting out its elements, namely:

(1) the defendant obstructed, influenced or impeded, or attempted to obstruct, influence or impede, 

(2) an official proceeding of the United States, and 

(3) that the defendant did so corruptly. 

What arguments and evidence did the Committee reveal in its legal memorandum that supports a violation of 18 U.S.C. Section 1512(c)(2)?

The Committee reminded the court that Pence’s own counsel had explained at length to Eastman and Trump, prior to January 6, that nothing in the 12th Amendment or the Electoral Count Act permitted Pence to make a unilateral proclamation as Trump had requested, and that doing so would violate the law. Pence also made this clear in his public memo on January 6 saying that going down that road as requested would be illegal. The Committee backed this up with two Exhibits cited in its brief: 

Exhibit F: Transcript of testimony by the Vice President’s counsel Greg Jacob acknowledging that Eastman “would lose 9–0 at the Supreme Court.”

Exhibit N: Email exchange between Eastman and VP’s counsel criticizing Eastman for “enticing the President with an academic theory that had no legal viability, and that you well know we would lose before any judge who heard and decided the case.”

Until now, no part of the Jacob testimony has been made public, but it is clear, and rather extraordinary, that there is much there relating to what Pence was told and how he responded. The Committee writes that the Eastman memos themselves were the subject of “heated discussions in the White House in the days before January 6, including with the Vice President’s legal counsel and others who told Plaintiff that what he was proposing was illegal.” (Emphasis mine.) The Committee cites in its footnotes pages 105-11 and 127-29 of the Jacobs transcript.

The Committee also revealed that earlier interviews with Department of Justice officials Jeffrey Rosen and Richard Donoghue confirmed they had discussed allegations of voter fraud with Trump on multiple occasions in December of 2020 and “informed him, both as to specific allegations and more generally, that the President’s claims of massive fraud sufficient to overturn the election were not supported by the evidence.”

There are specifics now to this. According to Rosen, multiple participants in a meeting on December 15, 2020 told Trump that “people are telling you things that are not right.” Donoghue also informed Trump “in very clear terms” that the DoJ had done “dozens of investigations, hundreds of interviews,” had looked at “Georgia, Pennsylvania, Michigan, Nevada” and concluded that “the major allegations are not supported by the evidence developed.”

The Committee noted that Trump and Eastman nevertheless still took affirmative steps to alter the certifications from electors from swing states in order to give Pence a pretext to declare a conflict among slates of electors, calling and meeting with state officials and Justice Department officials, and launching a massive public campaign to persuade the electorate that the election had been tainted by fraud when his own advisors insisted it had not.

This evidence matters because one of the key elements of the obstruction statute is Trump’s corrupt state of mind. The evidence shows there was no sound basis for Trump to continue to spread his lie about a stolen election, and there was no sound legal basis for him to assert that Vice President Pence could act unilaterally. Many others in the White House knew this and actively told him and Eastman so. For Trump to proceed with the scheme in light of what was known and communicated to him and Eastman leads to a very strong inference of corrupt intent. 

Conspiracy to Defraud the United States

The Committee lobbed a second shot across Trump’s bow with the charge that it had a good faith basis for believing he had conspired to defraud the United States in violation of 18 U.S.C. Section 371. An individual “defrauds” the government under this section if he “interfere[s] with or obstruct[s] one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.” It carries a possible prison sentence of up to five years.

The conspiracy doesn’t have to involve property, and the government does not have to have relied to its detriment on the fraud. Nor do the goal or means to achieve it have to be independently illegal. The government need only show that the defendant: 

(1) entered into an agreement 

(2) to obstruct a lawful function of the government

(3) by deceitful or dishonest means, and 

(4) that a member of the conspiracy engaged in at least one overt act in furtherance of the conspiracy.

An agreement in violation of this statute doesn’t have to be written out expressly. It can be inferred by the conduct of the conspirators as they seek to achieve their common objectives. 

Here, the plan crafted by Eastman likely will be the lynchpin for this charge of conspiracy. Based upon the idea, handily written down in a six-point plan by Eastman, that the vice president could unilaterally overturn the results of the election, Trump and others set out to convince Pence, privately and publicly, to do just that.

Much of the same evidence surrounding Trump’s corrupt intent will be applicable to the question of his use of deceit or dishonest means to achieve the conspiracy’s goal, i.e. to get Pence to overturn the election. The funnel here is quite wide with evidence of what Trump knew about his false election claims, including Trump’s 60+ court case losses, the suspension of his lawyer Rudy Giuliani’s state bar license because his allegations lacked “a scintilla of evidence” of fraud, and the multiple times his own Justice Department told him his theories were unsupported.

Common Law Fraud

The allegation that Trump engaged in a fraud of the public seems designed to provide a third nail in the coffin over Eastman’s privilege claims, though it’s unlikely to have much legal effect beyond the instant question. More broadly, however, it is clear the January 6 Committee intends to reveal, in public hearings later this spring, the extent to which the Big Lie was perpetrated and how Trump knew it was all false. 

Common law fraud has five elements in the District of Columbia:

(1) a false representation

(2) in reference to material fact,

(3) made with knowledge of its falsity

(4) with the intent to deceive; and 

(5) action is taken in reliance upon the representation.

The most interesting example the Committee gave, one that fits these elements neatly, was of Trump’s YouTube channel, which posted an edited video clip purportedly showing Georgia election officials pulling suitcases of ballots from under a table after poll workers had left for the day. A state official responded later that the entire video had been watched by state investigators and that it showed “normal ballot processing.” The official tweeted, “the President’s team is intentionally misleading the public about what happened at State Farm Arena on election night. They had the whole video too and ignored the truth.”

Georgia’s Chief investigator issued a sworn declaration affirming that “there were no mystery ballots that were brought in from an unknown location and hidden under tables as has been reported by some” and that “what you saw, the secret suitcases with magic ballots, were actually ballots that had been packed into those absentee ballot carriers by the workers in plain view of the monitors and the press.”

But Trump ignored these statements and the debunking, and on December 11 and December 23 of 2020, his campaign ran two advertisements on Facebook with the same selectively edited footage and the same claim that the video showed “suitcases of ballots added in secret in Georgia.”

Trump also told his millions of followers in a tweet that Secretary of State Brad Raffensperger, who had explained the whole video to the president on the infamous “find me 11,700 votes” call and even offered to provide him a link to the entire video, was now “unwilling or unable to answer questions such as the ‘ballots under table’ scam.” This was a lie, as the transcript of the call later showed. The Georgia suitcase conspiracy continues to be a false flag believed by millions of Americans.

Final Thoughts

The legal memorandum opposing Eastman’s privilege claims is likely just a small taste of what the Committee intends to reveal through public hearings this spring, but it is a very strong indication that it believes a criminal referral to the Justice Department is warranted. Many wonder why Attorney General Merrick Garland doesn’t act now based on what is already known, but the best move by Justice would be to permit the Committee to complete its investigation, hearings, and report before deciding whether to take any action. An announcement now would upstage and derail the Committee’s work, and it would send potential witnesses scurrying for legal cover.

Moreover, it will be the Committee’s job to turn the tide of public opinion as well as convince whatever principled members of the GOP remain that they should not stand by their corrupt former president. That work will take time, especially where, as here, the narrative is so sprawling and involves so many bad actors.

One thing is very clear, however: The January 6 Committee has been thorough, methodical, and it has multiple layers of evidence to present. If the rest of it is anything like what was laid out in yesterday’s legal memo, Trump and his enablers should be very concerned.