On March 2, the Jan. 6 Committee alleged that former President Donald Trump and his allies may have engaged in a criminal conspiracy to block Congress from certifying the election of President Joe Biden. The committee also alleged they may be guilty of a narrower charge — obstruction of an official proceeding (the proceeding to count the electoral votes), which hundreds of Jan. 6 insurgents have been charged with, and 10 judges have approved — as well as a broader one: common law fraud.
“The evidence supports an inference that President Trump, plaintiff, and several others entered into an agreement to defraud the United States by interfering with the election certification process, disseminating false information about election fraud, and pressuring state officials to alter state election results and federal officials to assist in that effort,” the committee said, in a memorandum seeking to obtain emails between Trump and John Eastman, a lawyer whose outlandish arguments were used to justify the last-ditch efforts to derail the certification — either by having former Vice President Mike Pence throw out electoral votes for Joe Biden or by having him halt the procedure for 10 days, so that state legislatures might engage in further mischief.
Pence’s refusal to go along with Eastman’s scheme — and Trump’s tweeting about his refusal — was the reason that insurgents were chanting, “Hang Mike Pence.” Eastman also spoke at the pre-insurrection rally where Rudy Giuliani called for “trial by combat.”
“Thanks to your bullshit, we are now under siege,” Pence’s top lawyer, Greg Jacob, emailed Eastman at the time.
“It was gravely, gravely irresponsible of you to entice the President with an academic theory that had no legal viability, and that you well know we would lose before any judge,” Jacob wrote. “The knowing amplification of that theory through numerous surrogates, whipping large numbers of people into a frenzy over something with no chance of ever attaining legal force through actual process of law, has led us to where we are.”
Eastman, who then taught at Chapman University’s Fowler School of Law, in Orange, California, was quickly forced to resign for his role in fomenting the insurrection.
“[E]vidence and information available to the Committee establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts, and that Plaintiff’s [Eastman’s] legal assistance was used in furtherance of those activities,” the committee said. If so, Eastman’s communications with Trump would not be protected by attorney-client privilege, due to what’s known as the “crime/fraud exception” — statements meant to further or conceal a crime or civil tort (fraud) are not protected. They asked the judge (David O. Carter of the United States District Court for the Central District of California ) to examine the email communications himself to determine their proper status.
There were other grounds to challenge the privilege, such as the lack of an attorney-client contract, and the sharing of communications with third parties. But the crime/fraud exception argument put the charge of Trump’s criminal conduct squarely before the public for the first time since the Jan. 6 investigation began.
On March 8, Judge Carter said in an order that he would review emails as requested: “Ultimately, the court will issue a written decision including its full analysis and its final determination of which, if any, documents must be disclosed to the Select Committee.”
Ethics Investigation Launched
The memorandum was filed one day after the California Bar Association announced that it had opened an ethics investigation into whether Eastman had violated laws while involved in the same activity.
“A number of individuals and entities have brought to the State Bar’s attention press reports, court filings, and other public documents detailing Mr. Eastman’s conduct,” said the State Bar’s chief trial counsel, George Cardona, in a statement that revealed the investigation had begun in September.
When asked if the Jan. 6 committee memorandum would impact the investigation, Cardona told Random Lengths, “By statute, we cannot comment on details of an active investigation. Speaking generally, however, we can consider facts developed in other investigations in assessing whether there is evidence sufficient to indicate that charges are warranted.”
The memorandum took note of the California Bar’s investigation, along with other Trump lawyers who’ve already been sanctioned. “State Bars of both New York and Washington, D.C. suspended the law license of one of President Trump’s lead attorneys, Rudolph Giuliani,” and “Other counsel in litigation challenging the election have also faced sanctions,” including “Lin Wood, Sidney Powell, and seven others,” it noted.
While the other attorneys cited specialized in wild factual claims — making public statements about fraud and far-reaching conspiracies that were never argued in any of the 60 court filings — Eastman specialized in wild theoretical ones, that virtually everyone else rejected, including retired federal judge J. Michael Luttig, whom Eastman clerked for.
“I was honored to advise Vice President Pence that he had no choice on January 6, 2021, but to accept and count the Electoral College votes as they had been cast and properly certified by the states.” Luttig tweeted last September. “I believe(d) that Professor Eastman was incorrect at every turn of the analysis in his January 6 memorandum.” [Emphasis added.]
Chapman Faculty— “We’ve Had Enough”
A month before the insurrection, on Dec. 9, 2020, Eastman filed a brief on Trump’s behalf at the Supreme Court, which a CNN fact-check called “falsehood-filled.” In response, 159 Chapman faculty members signed a statement titled, “We are Chapman’s faculty, and we’ve had enough,” which read:
“John Eastman’s brief asking the Supreme Court to overturn the 2020 election in multiple states is a disgraceful attack on American democracy and must be regarded as such. This filing of errors and outright falsehoods — in which Eastman has used his Chapman email and phone number — is contrary to the core values of this university and should be regarded as an embarrassment. This is not who we are.”
This wasn’t the first time such a sentiment had been expressed. Four months earlier, on Aug. 12, after Kamala Harris was announced as Joe Biden’s running mate, Newsweek published an op-ed in which Eastman questioned her eligibility for the vice presidency given her parents’ citizenship status when she was born. Newsweek initially defended the piece, saying it had “nothing to do with racist birtherism,” but two days later apologized for “being used by some as a tool to perpetuate racism and xenophobia.”
Three days later, Lisa Leitz, a sociology professor with an endowed chair in Peace Studies, organized a petition signed by well over 200 of Chapman’s 542 faculty members, describing Eastman’s op-ed as “poorly argued, inaccurate, and racist” and calling for the university administration to “reiterate its commitment to an environment that welcomes all students.”
This was followed by a flurry of other responses to Eastman’s op-ed and broader criticisms of Chapman’s commitment to diversity. A notable response, published in the Orange County Register, came from Tom Campbell, a retired five-term Republican congressman and former dean of Chapman’s Fowler School of Law. His assessment of Eastman’s argument was harsh: “He is wrong, and he has damaged our country at a time of already great division.”
So Eastman’s first attempt to help Trump overturn the election reopened still-fresh wounds. ’
But after the insurrection, something more was called for. A letter drafted by Leitz, history professor Robert Slayton and three trustees (including former U.S. Rep. Loretta Sanchez) and signed by another 141 faculty members called for Eastman’s dismissal, saying that “his actions Wednesday that helped incite a riot against the U.S. government … should disqualify him from the privilege of teaching law to Chapman students and strip him of the honor of an endowed chair.”
The letter was published in the LA Times on Jan. 9. That same day, Chapman University President Daniele Struppa issued what was dubbed the “emperor” statement, saying, “I am not the Emperor of Chapman University” and that Eastman could only be fired if found guilty of a felony or disbarred. But just four days later, Struppa announced an agreement had been reached for Eastman’s retirement. And now, more than a year later, it’s become more likely that Eastman could be found guilty of a felony and/or be disbarred as well.
The Still-Murky Question of Charging Trump
But what of Donald Trump? While the committee’s filing has been seen as nudging the Department of Justice [DOJ] to charge Trump, that’s not how the DOJ works — they build major cases from the bottom up, and the way they’ve framed their argument regarding obstruction of an official proceeding doesn’t align with how judges have ruled in the 10 cases ruled on so far, as noted by legal/national security blogger Marcy Wheeler on March 4.
In fact, their memorandum only referred to six judges, which “suggests they’ve been insufficiently attentive to what the rulings actually say,” Wheeler wrote. This is particularly important when it comes to establishing corrupt intent, which different judges have interpreted somewhat differently. Wheeler identified two key questions:
- Whether “corrupt” intent requires otherwise illegal action.
- Whether such corruption would be transitive (an attempt to get someone else to act improperly) or intransitive (whether it would require only corruption of oneself).
“On both these issues, the Jan. 6 Committee’s argument is a bit muddled,” Wheeler warned. It probably won’t matter in the short run since Judge Carter is already reviewing the emails in question. As for the long run, Wheeler wrote, “I’m convinced not just that Trump could be prosecuted for obstruction, but that the DOJ has been working towards that for some time. But I’m not convinced the current January 6 Committee theory would survive.”
But there’s also the two fraud charges — conspiracy to defraud the U.S. government and common law fraud — which haven’t been tested in other Jan. 6 cases. The former does not require an illegal act, the committee said in its memorandum.
Rather, “the government need only show” that (1) the defendant 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.” What’s more, “The ‘agreement’ need not be expressed and can be inferred from the conspirators’ conduct in furtherance of their common objectives.”
The common law fraud case seems even more straightforward, as the memorandum notes:
The District of Columbia, where these events occurred, defines common law fraud as: (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.
Not only does the evidence show that Trump made numerous false statements about election fraud, it also “supports a good-faith inference” that he did so knowingly since he repeated false statements after he’d been told that they were false.
In short, the exact contents of this memorandum may not translate directly into an indictment. But they do broadly outline how such an indictment might look.