Law professor explains why a judge’s assertion that Trump ‘likely’ committed federal crimes is so damning

On Monday, March 28, U.S. District Judge David O. Carter ruled that former President Donald Trump and attorney John C. Eastman “likely” committed federal crimes in connection with the January 6, 2021 insurrection and the 2020 presidential election. University of Baltimore law professor Kimberly Wehle analyzes Carter’s assertions in an article published by the conservative website The Bulwark on April 1, explaining why they’re so damning of Trump and Eastman — one of the far-right attorneys who encouraged Trump’s efforts to overturn the election results.

Carter described those efforts as an attempted “coup in search of a legal theory.” Wehle notes that Eastman “wrote the infamous memos outlining a bogus constitutional justification for thwarting the certification of the Electoral College votes,” and Carter’s March 28 ruling “sprung from” Eastman’s “effort” to” block his former university from complying with a records request by” House Speaker Nancy Pelosi’s select committee on January 6.

Carter argued, “Litigation was never Dr. Eastman’s motivation for planning the events of January 6…. perhaps because, as he conceded, his legal theories would be rejected ‘9-0’ by the Supreme Court…. The true animating force behind these e-mails was advancing a political strategy: to persuade Vice President Pence to take unilateral action on January 6.”

The federal judge, according to Wehle, “brought down the hammer” when he got into the specific laws he believes were “likely” violated by Trump and Eastman.

“Even if materials are protected from disclosure,” Wehle explains, “that protection evaporates if they are part of the commission of a crime. Carter concluded that Eastman and Trump ‘likely committed three crimes: (1) President Trump and his lawyer likely attempted to obstruct Congress’ proceeding to count the electoral votes on January 6, in violation of 18 U.S.C. § 1512(c)(2). Recall that this is the charge Rep. Liz Cheney flagged from the House floor. (2) President Trump and his lawyer likely engaged in a conspiracy to defraud the United States by disrupting the electoral count, in violation of 18 U.S.C. § 371. (3) President Trump likely engaged in common law fraud.”

Wehle continues, “All three of these crimes require a showing of criminal intent, which can be hard to muster…. Carter was undeterred. He found that ‘President Trump 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.’ The first was on January 4, and included Pence, his counsel Greg Jacob, and his chief of staff Marc Short. Eastman presented a plan to reject electors or delay the count, and Vice President Pence’s counsel interpreted Dr. Eastman’s presentation as being on behalf of the President.’ Two days later, on the morning of January 6, “President Trump made several last-minute ‘revised appeal[s] to the Vice President’ to pressure him into carrying out the plan.”

Some Trump apologists have argued that if Trump sincerely believed the election was stolen from him through widespread voter fraud, he was acting in good faith on January 6, 2021. But Carter wrote that Trump “likely” wasn’t acting in good faith.

Wehle observes, “Most critically for purposes of making a criminal case against Trump, Carter wrote: ‘President Trump likely knew the justification [of election fraud] was baseless, and therefore that the entire plan was unlawful,’ as the House Jan. 6th Committee ‘points to numerous executive branch officials who…. privately stressed to President Trump’ as much. Moreover, ‘more than sixty courts dismissed cases’ brought by Trump and his allies, because ‘there is no evidence to support accusations of voter fraud.’”

Wehle adds, “In short, Judge Carter concluded, ‘this plan was a last-ditch attempt to secure the Presidency by any means.’ It violated the Constitution and, per Eastman’s own admission, ‘several provisions of statutory law.’ Eastman knew it. Trump knew it. And to this day, the world knows it.”

The law professor concludes her article by warning that unless Trump faces some type of indictment, democracy will continue to be assaulted in the United States.

“Our democracy survived the Trump coup: Pence drew the red line on January 6th, and Joe Biden, the duly elected president, was sworn in two weeks later,” Wehle writes. “But unless and until Attorney General Merrick Garland or some prosecutor within a state or municipal office musters the courage to indict Trump, and until Congress passes laws protecting the electoral process, the attack on American democracy will not yet have really ended.”