Merrick Garland has more than enough evidence to indict Donald Trump

Merrick Garland has more than enough evidence to indict Donald Trump
President Donald J. Trump and First Lady Melania Trump disembark Marine One on the South Lawn of the White House Thursday, Dec. 31, 2020, concluding their trip to Palm Beach, Fla. (Official White House Photo by Andrea Hanks)

I know you've heard this before--that accountability is coming for Donald Trump and his cronies for triggering the Jan. 6th insurrection--but this time, something new and different has happened. On March 28, Federal District Court Judge David O. Carter ruled that Trump and former Chapman University law professor John Eastman "more likely than not" committed two felonies in their efforts to overturn the results of the 2020 presidential election: obstruction of an official proceeding of Congress, and conspiracy to defraud the United States.

Carter's ruling runs 44 pages and is meticulously detailed. Among other events, it chronicles Eastman's role in drafting two memos for the Trump campaign that set forth a plan to nullify the Electoral College votes in seven swing states when Congress met in joint session on Jan 6, 2021 to certify Joe Biden's victory. The ruling also summarizes Eastman's meetings with Trump, Vice President Mike Pence and other White House officials to execute the plan, as well as Trump's infamous phone call to Georgia Secretary of State Brad Raffensperger.

Subject to further appeals, the ruling ends a lawsuit Eastman filed to prevent the House Select Committee investigating the insurrection from obtaining 111 emails he had sent or received on his Chapman email account between November 3, 2020 and January 20, 2021. Eastman argued the emails are protected from disclosure under the attorney-client privilege. The committee argued the emails fall within the "crime-fraud exception," which holds that the privilege does not cover communications made with the intent to further or conceal a crime. Carter ordered Eastman to turn over 101 of the emails, finding the crime-fraud exception applied.

Although Carter's decision only affects Eastman directly, it has profound implications for both Trump and Attorney General Merrick Garland, the nation's top law-enforcement officer. In words that surely will get Garland's attention, Carter wrote:

The illegality of the plan [to overturn the election] was obvious. 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. As Vice President Pence stated [at the time], 'no Vice President in American history has ever asserted such authority.' Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed. With a plan this 'BOLD,' President Trump knowingly tried to subvert this fundamental principle.

Carter's ruling marks the first time a sitting judge has found that that Trump likely violated federal criminal law. And while the likelihood finding falls well below the reasonable-doubt standard that must be met to secure a criminal conviction, it is more exacting than the probable-cause standard Department of Justice lawyers use to decide when to recommend or commence prosecutions. The probable-cause test is also used by federal grand juries use to decide whether to return indictments.

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