Two Big Stories Just Broke Over January 6. And Donald Trump Can’t Be Happy About Either.

Audra Melton for The New York Times

There are two major developments in the investigation of the attack on the Capitol on January 6, 2021. Both are bad news for the former president and his aides. The stories are connected in the larger sense, but it’s worth unpacking them separately.

A federal court ruled that Trump likely committed felonies.

The first bombshell came from a federal judge overseeing the dispute over claims of privileged documents between one-time Trump attorney John Eastman and the January 6 Committee. As reported by The New York Times, Judge David Carter handed the Committee a strong win by ordering most of the withheld documents produced. Importantly, he found that former president Trump more likely than not committed the crimes of obstruction of the work of Congress and conspiracy to defraud the United States.

This is the first time in history that a judge has determined that a U.S. president likely has broken the law. Judge Carter made the ruling in the context of a civil matter for which he was required to assess whether the “crime-fraud” exception to attorney-client privilege applied—that is, whether a preponderance (i.e. more than fifty percent) of the evidence showed that the former president was engaged in illegal behavior that undid the normal protection of attorney-client privilege between himself and counsel.

“The illegality of the plan was obvious,” wrote Judge Carter. “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.” The actions by Trump and Eastman, he observed, were “a coup in search of a legal theory.”

The ruling itself is not a finding that carries any criminal liability for Trump or Eastman. But it is weighty nonetheless. Importantly, the facts as laid out by the Committee in support of applying the crime-fraud exception were not substantially denied by the Trump White House—nor really could they be, given how well-documented they are. While Judge Carter need only have found here that it was “likely” that former President Trump committed felonies, a jury faced with the same evidence might well conclude that the crimes were committed was “beyond a reasonable doubt,” particularly since the evidence of what the Trump team actually did is not in serious dispute.

For example, Judge Carter noted that the Trump White House had 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.” At the first meeting, Eastman “presented his plan to Vice President Pence, focusing on either rejecting electors or delaying the count.” In the second meeting, which took place on January 5, Eastman tried again to persuade the Vice President’s top aide, Greg Jacob, to go along with the illegal scheme. 

After that, Trump then continued to urge Pence to “make the call” and “enact the plan” and even tweeted out to his millions of followers, as they marched on the Capitol and the Vice President was being evacuated from the building, that Mike Pence had not done as asked and was a “coward” for it.

Judge Carter opined that the only legal course of action for the former president and his team would have been to file suit in court to attempt to stop the electoral count—which they well knew given the over sixty cases they had already filed and lost. Taking matters into their own hands to declare the Electoral Count Act unconstitutional unilaterally was an illegal act, the culmination of “a campaign to overturn a democratic election, an action unprecedented in American history,” Judge Carter wrote.

The ruling will place more pressure upon the Justice Department to launch a full investigation of the Trump White House around January 6 (if it is not already doing so) and to take any criminal referrals by the January 6 Committee more seriously. The ruling by a judge that it was “likely” that the former president committed felonies simply stands in a much different light, farther away from allegations of partisanship that would plague anything coming out of the Committee. 

Trump’s White House Call Logs Show a 7-Hour Gap on Jan. 6.

The second story out today comes via The Washington Post courtesy of veteran reporters Bob Woodward and Robert Costa, who reported that internal White House records turned over to the January 6 Committee show a glaring gap of seven hours and 37 minutes, which overlaps the time period when the Capitol was under assault. Tellingly, the call logs show plenty of activity and communications before and after that gap, but nothing between 11:17 a.m. and 6:54 p.m. This gap is particularly noteworthy because there are numerous public reports that Trump was on the phone with others during this time—there is just no record of it.

Call logs for communications routed through the White House switchboard typically show who was speaking and for how long. Indeed, there are 11 pages of diary and call log entries showing that Trump spoke with eight people that morning and 11 people that evening. But the logs do not show his calls to allies in Congress that were reported that day while the assault was ongoing.

This raises some important questions. If the former president wasn’t using his own phone or the White House switchboard phone system, whose phone or phones was he using? The Committee is now investigating whether he elected to use his aides’ phones, go through backchannels, or even use so-called “burner” phones to communicate that day. That gap in the logs and the use of alternative phones could have been part of a deliberate effort by the White House to mask the conversations and erase any record that they occurred, which in turn raises two related points: 1) Was there a cover-up ordered and if so by whom, and 2) does the behavior of going dark on the call logs itself show consciousness of guilt?

Trump has been known to use various phones when making calls from the White House, some of which don’t show up as a White House number for the recipient. A spokeswoman said that former President Trump had no involvement with the records and had assumed any and all of his phone calls were recorded and preserved. And in a statement Monday night, Trump said, “I have no idea what a burner phone is, to the best of my knowledge I have never even heard the term.” (Rolling Stone earlier reported, however, that an organizer of the January 6 rally at the Ellipse told the January 6 Committee that he had purchased burner phones in Cathedral City, California to be used by rally organizers when speaking to White House aides such as Mark Meadows, a purchase confirmed by the Committee’s investigators.)

The apparently deliberate switch to unlogged phones during the hours of the insurrection itself has drawn the intense interest of the Committee, which at least one lawmaker in the group described as “a possible coverup.” The missing logs call to mind the 18½ minute gap in the White House tapes discovered during the Watergate investigation and scandal. Nixon’s secretary claimed back then that she accidentally had overwritten a taped conversation between former President Nixon and H.R. Haldeman, which took place just three days after the Watergate Hotel break-in. To do so, however, would have required quite the literal stretch for her, because she would have had to reach over her shoulder to answer the phone while keeping her foot on the transcription machine. 

It was the ludicrous “Rose Mary Stretch” that many credit as having tipped the opinion of much of the American public around Watergate. In January 1974, experts who examined the tape reported that were actually four or five separate erasures, not just one, belying the notion that there was a simple operator error. When Nixon tried to quash a subpoena for the tapes, the Supreme Court ruled against him, 8-0. The tapes ultimately contained a “smoking gun” of a conversation to cook up a scheme to stop the investigation on “national security grounds,” and Nixon wound up resigning not long after.

Today, we have something like the reverse order. The coup plot already has its many smoking guns, including the Eastman memo itself and the brazen, well-documented efforts by Trump to pressure Vice President Pence to illegally overturn the election results. The fact that the White House also may have covered it up by avoiding the normal call log channels adds to the sense that Trump knew what he was doing was illegal. It will be up to the Committee in public hearings later this year to connect the dots for the American public. This is by no means a simple task: A good portion of the electorate still falsely believes the election was stolen and that what Trump and Eastman did was in service of our democracy, and not to undermine it utterly.

Ultimately, the rule of law and the idea that the president cannot unilaterally act to stay in power, no matter what he might personally believe or espouse about election fraud, must win out. Those who acted illegally, including the former president himself, must be held to account. Judge Carter made his concerns clear should that not occur. “If the country does not commit to investigating and pursuing accountability for those responsible,” he wrote, “the Court fears January 6 will repeat itself.”