Presidential Crimes
Context: The House Select Committee on January 6 was seeking documents from attorney John Eastman, then a professor at Chapman University School of Law, now a fellow at the Claremont Institute. The documents were texts and e-mails sent from his account at Chapman University to the President and the Trump campaign trying to overthrow the election of President Biden. Eastman sued the Committee to get an order keeping his Chapman account private from the Committee’s inquiry.
Background: Chapman University had told all of its professors and students that their Chapman accounts were not for private use and could not be used for political activity. Eastman was specifically warned by the President of Chapman University for his conduct. After the events in question, he was let go by Chapman. Previously he had been the dean of the Chapman School of Law.
Eastman was telling the President and anyone else who would listen to him that the Vice President could and should rule that the Presidential election results from 6 states were invalid and could not be counted for Joe Biden who had been been certified the winner in these six states’ elections. Eastman claimed that his communications with the President and the Trump campaign about this were protected by attorney client privilege.
The Committee responded: 1) you had no written attorney client representation agreement with the President or his campaign; 2) if you had had one, you and the President waived it by telling everyone in the world your position and advice that Vice President Pence had the power to overrule the state’s election certifications and should exercise it to invalidate the results in six states, and 3) you cannot use the attorney client relationship to commit a crime.
What were the crimes? 1) Obstruction of an official proceeding; 2) Conspiracy to defraud the US, and 3) Common law fraud.
Obstruction of an official proceeding occurs when you corruptly obstruct or attempt to obstruct an official proceeding. The proceeding was the counting of the electoral votes for the Presidency of the United States. The actions of Eastman and the President were pressuring VP Pence to reject the electoral votes of six states, pressuring Georgia officials to alter their vote totals, pressuring state legislators and officials to over-ride their state’s elections, and pressuring the Department of Justice to find that the election was fraudulent.
Conspiracy to defraud the US occurs when the President and Eastman and others enter into an agreement to obstruct a lawful function of government by deceitful or dishonest means and take action to effectuate their conspiracy. Their actions included interfering with Congress’ Presidential election certification process, spreading false information about election fraud, pressuring state officials to alter election results and pressuring federal officials (including the Attorney General and the Vice President) to assist in these efforts. Eastman concocted the plan to override the election results; he was told by multiple government attorneys for the Vice President and the Office of the President that the VP had no authority to override certified state election results. Trump was told by Homeland Security, by his own campaign researchers, by Attorney General Barr, by Georgia election officials among others that there was no evidence to support his claims of widespread election fraud. Trump, Eastman and his campaign spread this false information (that Trump had won the election and been cheated by election fraud) far and wide and continued to do so.
Common law fraud is a knowingly false representation about a material fact with intent to deceive, and action is taken in reliance on the false representation. For example, the Trump campaign ran a selectively edited video clip of election ballot handling in Georgia on election night. The Georgia Secretary of State, local TV stations immediately rebutted it running the entire recording and saying “you can watch the entire report to show that the President’s team is intentionally misleading the public… They had the whole video and ignored the truth.” The chief Investigator for the Georgia Secretary of State affirmed “there were no mystery ballots brought in from an unknown location and hidden under tables”. The acting Deputy Attorney General debunked the Trump campaigns claims directly to the President. The Georgia Secretary of State told the President that the video had been selectively edited, that the President’s claims had fully investigated and there was no evidence of fraud. Nevertheless, Trump and the Trump campaign officials continued to spread the lie of “election fraud” in Georgia, all the way up to and including his speech to his assembled followers on January 6. In their guilty pleas, the insurrectionists/rioters of January 6 stated that they had relied on Trump’s lies in coming to the Capitol and taking over the US Capitol. Forty percent of persons polled still believe Trump’s lies.
These are not criminal charges against either Professor Eastman or the President; criminal charges would be brought by the Department of Justice. Nor are these referrals to the Department recommending a criminal prosecution. This is simply the evidence summarized in the Committee’s brief in a case in which they are seeking Eastman’s texts and e-mails to the President and his campaign to assist in the Committee’s investigation of the events of January 6. But it is damning, and there is a lot more of it.
It is important to remember that any criminal defendant is presumed innocent, and that to convict the evidence must be convincing beyond a reasonable doubt to a unanimous 12 person jury.