By Timothy L. O’Brien / Bloomberg Opinion
A federal judge thinks that former President Donald Trump likely committed fraud — and probably knew it — when he and one of his lawyers, John Eastman, plotted to block Congress’ certification of the 2020 presidential election so Trump could hold on to power.
So how much longer will it take Attorney General Merrick Garland to draw the same conclusion about that attempted coup?
Perhaps Garland has already gone down that path. But there are no outward signs that he is investigating Trump with an eye toward a possible criminal prosecution. He has every reason to be circumspect, of course, but he has no reason to ignore the mounting evidence of Trump’s crimes. The latest reminder of what’s at stake came in Monday’s ruling from David Carter, a U.S. District Court judge in California.
“Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history,” Judge Carter noted in his Monday ruling. “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.”
While ordering Eastman to turn over relevant email correspondence with Trump to the bipartisan House committee investigating the Jan. 6 insurrection at the U.S. Capitol, Carter was also clear-eyed about the scope of his and the committee’s powers.
“This is not a criminal prosecution; this is not even a civil liability suit,” he 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.”
The Jan. 6 committee is an investigative body, not a civil or criminal court. It only intersects with the court to adjudicate disputes over information or testimony it needs to complete its work. The committee can also make criminal referrals to Garland, but Garland doesn’t need their push to start his own investigation. He can do that if he thinks evidence supports it. Besides, the committee said in a court filing earlier this month that it thought Trump and Eastman committed crimes by plotting to obstruct congressional ballot counting and block the transfer of presidential powers after the 2020 election.
Carter’s intersection with the committee involved a relatively narrow issue. Eastman contended his emails to Trump about events surrounding the insurrection were protected by attorney-client privilege; Carter said the privilege was voided because Eastman and Trump had hatched a criminal conspiracy. But the judge, a veteran prosecutor and jurist who received a Purple Heart and Bronze Star for valor while serving as a Marine in the Vietnam War, also used his ruling to highlight the broader significance of the committee’s work.
“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,” he wrote. “If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.”
Indeed, the likelihood of a repeat performance of Jan. 6 — at least in the guise of a violent and unlawful attempt to dismantle the electoral process — has only increased since Trump left the White House. The most aggressive proponents of the myth that Joe Biden stole the White House from Trump haven’t tempered their outrage or lunacy, and they’ve found enablers on Fox News and in the Republican Party. If law enforcement authorities lack the steel needed to do their jobs, that won’t be lost on any of the Trumpistas; or others in the future who are like-minded.
That peril, and the need to address it, informed Carter’s ruling. “The illegality of [Trump’s] plan was obvious,” he wrote. It was “a last-ditch attempt to secure the Presidency by any means.” Trump’s vice president told him there was no legal path to stop Biden from entering the White House. More than five dozen court cases that Trump’s team filed to overturn the election results were tossed out. Yet Trump pressed on. Because Trump did so, and “likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting ‘corruptly,’” Carter noted.
Carter’s certitude isn’t bias; he understands what’s right in front of him. Garland should do the same.
Timothy L. O’Brien is a senior columnist for Bloomberg Opinion.