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Judge: Trump ‘more likely than not’ committed crimes related to Jan. 6 attack

Trump attorney John Eastman ordered to disclose documents

John Eastman, who advised President Donald Trump about a path to rejecting the electoral counts from states as part of a plan to overturn the 2020 presidential election, speaks in Colorado in April 2021.
John Eastman, who advised President Donald Trump about a path to rejecting the electoral counts from states as part of a plan to overturn the 2020 presidential election, speaks in Colorado in April 2021. (Andy Cross/MediaNews Group/The Denver Post/Getty Images file photo)

A federal judge in California ordered lawyer John Eastman to turn over documents to the House select committee investigating the Jan. 6, 2021, attack on the Capitol, in a ruling that concludes that former President Donald Trump “more likely than not” committed crimes in attempting to obstruct the counting of electoral votes.

Eastman reportedly advised Trump that Vice President Mike Pence could reject electors in particular states to impede Joe Biden’s path to an Electoral College win and wrote memos outlining options in which Pence could change the outcome of the 2020 presidential election.

Judge David O. Carter in the U.S. District Court for the Central District of California issued a ruling Monday that ordered Eastman to disclose 101 documents from Jan. 4-7, 2021. As part of a legal dispute over some of those records, the committee had argued that the records should be disclosed because they were related to a fraud or crime.

“This is not a criminal prosecution; this is not even a civil liability suit,” Carter wrote. “At most, this case is a warning about the dangers of ‘legal theories’ gone wrong, the powerful abusing public platforms, and desperation to win at all costs.”

In that limited way, Carter’s opinion steps through the elements needed to prove whether Trump and Eastman “likely committed any of the crimes alleged by the Select Committee,” which were obstruction or attempted obstruction of an official proceeding and conspiracy to interfere with the election certification process.

“Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021,” Carter concluded.

Carter pointed to three actions: Trump and Eastman hosted a Jan. 4 meeting where Eastman presented his plan to Pence; Eastman reviewed the plan with Pence’s counsel on Jan. 5; and Trump tweeted at Pence and mentioned Pence in his speech at the Ellipse near the White House, where Eastman also spoke, before the attack on Jan. 6.

Trump’s mindset exceeds the legal threshold for acting “corruptly” under that criminal statute, Carter wrote, because Trump “likely knew that the plan to disrupt the electoral count was wrongful.”

“President Trump and Dr. Eastman justified the plan with allegations of election fraud — but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful,” Carter wrote.

Even if Trump believed the federal law that governs how Congress tallies presidential elections was unconstitutional, that did not give him license to violate it, Carter wrote.

“Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process,” Carter wrote. “And President Trump knew how to pursue election claims in court — after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.”

And Carter wrote there is “strong circumstantial evidence” to show there was likely an agreement between Trump and Eastman to enact the Pence plan, and he found it “more likely than not” that Trump and Eastman conspired to obstruct Congress.

Carter also explicitly ordered one document that includes a draft memo written for Trump attorney Rudy Giuliani, sent to Eastman, that “may have been the first time that members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action.”

Carter ordered it disclosed because “the memo likely furthered the crimes of obstruction of an official proceeding and conspiracy to defraud the United States,” and that makes it subject to an exemption to the attorney-client privilege that often keeps documents out of court.

“If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution,” Carter wrote. “If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”

Days before the insurrection, Eastman also briefed hundreds of state legislators from various states on election fraud and told them it was “the duty of the legislatures to fix this, this egregious conduct, and make sure that we’re not putting in the White House some guy that didn’t get elected.”

Eastman, who was a law professor at Chapman University in California, sued the committee to shield emails sent or received by him on his Chapman University email account between Nov. 3, 2020, and Jan. 20, 2021.

Carter previously ordered Eastman and the panel to start with documents from Jan. 4-7, 2021. And Carter said Trump and Eastman tried to overturn a democratic election, a plan that had grave consequences.

“Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history,” Carter wrote. “Their campaign was not confined to the ivory tower — it was a coup in search of a legal theory. The plan spurred violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process.”

Select committee Chairman Bennie Thompson, D-Miss., and ranking member Liz Cheney, R-Wyo., said in a joint statement that Carter’s ruling was “a victory for the rule of law” and the judge’s opinion “includes a warning: that a failure to pursue accountability could set the stage for a repeat of January 6th. America must not allow what happened on that day to be minimized and cannot accept as normal these threats to our democracy.”

According to a statement from Eastman’s legal team, the law firm of Burnham & Gorokhov, he will comply with the order: “To be sure, the district court disagreed with many of Dr. Eastman’s privilege assertions on the grounds that the materials were not sufficiently tied to potential litigation under current precedent. As stated above, it was Dr. Eastman’s duty to raise these claims on behalf of his clients. He intends to comply with the court’s order.”

Chris Marquette contributed to this report.