The Washington Post was quick to breathlessly declare that the time had finally come . . . again. Given the Posts long record of running professed slam dunk criminal charges against Trump that amounted to nothing, that is hardly a surprise. However, Carter’s opinion was immediately portrayed as ending all speculation. It seems now like little more than an administrative matter before Trump is marched off to the slammer.
Post columnist Jennifer Rubin declared “Carter has issued a clear invitation — almost a plea — for the Justice Department to pursue charges against both Eastman and Trump . . . [Attorney General Merrick] Garland will have an exceptionally hard time justifying a decision not to prosecute.”
If you read such columns, it is difficult to see why Trump has not been charged after two years. After all, the media heralded the statements of D.C. Attorney General Racine that he was pursuing possible charges. Yet, neither Racine nor the Biden Administration have charged Trump. Why?
The reason that hasn’t happened is that Judge Carter’s “invitation” is strikingly short of clear evidence of such criminal conduct.
Judge Carter was ruling on the disclosure of material claimed as privileged by Eastman, who advised Trump after he spoke at the Jan. 6, 2021, rally near the White House. Eastman believed Vice President Mike Pence could refuse to certify the election and send the electoral votes back to the states. Carter ruled that such legal advice failed under the “crime/fraud exception” because the president knew there was no basis for such a challenge.
As legal experts celebrate Carter’s decision as a great victory against Trump, it is important to consider the implications for both free speech and attorney-client privilege. That is not because I agree with Eastman’s claims; to the contrary, I criticized Trump’s speech as he gave it and later called for Congress to censure him. I also supported Vice President Pence’s interpretation of federal law and disagreed with Eastman’s interpretation.
Moreover, as I have repeatedly stated, Congress has a legitimate interest in getting a full record of what occurred on Jan. 6th. However, none of that should blind us to the dangerous elements of this decision.
Judge Carter notes that Eastman still believes that the statute is unconstitutional as written. The court simply brushes that aside and states the “ignorance of the law is no excuse” and “believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it.”
More importantly, the court simply declares that Trump knew that the election was not stolen and thus “the illegality of the plan was obvious.” Putting aside the court’s assumption of what Trump secretly concluded on the election, a sizable number of Americans still do not view Biden as legitimately elected. The court is not simply saying that they are wrong in that view but, because they are wrong, legislative challenges amounted to criminal obstruction of Congress.
In 2005, it was Democrats who alleged that a presidential election was stolen and challenged the certification in Congress of the votes in Ohio. The claim was equally frivolous but Democratic leadership praised the effort, including Speaker Nancy Pelosi who praised Sen. Barbara Boxer’s challenge and insisted that “this debate is fundamental to our democracy.”
The Democrats did not, however, demand that Vice President Dick Cheney refuse to certify, an important distinction to be sure. Jan. 6th was a desecration of our constitutional process and one of the most disgraceful days in our history.
However, the lack of factual foundation for the challenge (cited repeatedly by Judge Carter in the Trump challenge) did not make this a criminal or fraudulent effort.
Some attorneys believed (and still believe) that it was possible for Pence to refuse to certify. Holding such a legal view is not a crime and sharing that view with the White House is not a conspiracy. Indeed, Eastman and others were publicly stating essentially the same thing. That is what triggered the debate with many of us challenging their interpretation.
Yet, Carter is conclusory and dismissive on this critical point in declaring “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.” Trump is still insisting that he believes the opposite. The question is why arguing that point with Pence and others amounted to a criminal act. In the end, wiser minds prevailed and the theory was not used by Pence.
There were crimes that day, of course. Some of those at the rally rioted and were charged largely with trespass and unlawful entry. A handful have been charged with seditious conspiracy. The court does not cite any evidence that Trump directly advocated violence while noting that Trump told the crowd to peacefully go to the Hill.
Consider the implications of Carter’s opinion. There was rioting when President Trump was elected while various Democratic leaders continued to claim that he was not the legitimately elected president, a view echoed by Hillary Clinton. While they did not riot in Congress, they committed other crimes.
Under Carter’s theory, the baseless claims that Trump was not legitimately elected could have been used by the Trump Administration to seize confidential legal material given to the 2005 leaders. After all, there was not a solid factual basis for these claims and they knew it. They further fueled the mob by making these claims in public.
What is particularly concerning is that none of this was necessary. The Congress has every right, indeed it has a duty, to investigate if there was a criminal conspiracy. Yet, it already knows the legal advice given by Eastman and other witnesses have testified as to what he said in critical meetings.
In the Post column, Rubin reminds readers “this is a federal court, not a pundit or politician.” Yet, at points it was hard to tell the difference. Judge Carter seemed intent on rendering judgment on what he described as a “coup” rather than a riot: “Dr. Eastman and President Trump launched a campaign to overturn a democratic election . . . Their campaign was not confined to the ivory tower — it was a coup in search of a legal theory.”
That last comment was particularly interesting because it suggests that Eastman, who was dean and on the faculty of Chapman Law School, could have made the same articles as a professor. However, when he took his academic views and applied them as counsel, it somehow became part of a criminal conspiracy and attempted coup.
That is what is so disturbing about Carter’s opinion. While I agree with many aspects of Judge Carter’s decision, there is no clear limiting principle of when a legal opinion becomes a criminal conspiracy beyond the court’s predisposition of the meaning of these facts.