I caution against too excited about Federal District Court rulings. District Court judges issue surprising rulings all the time that are subsequently overturned by an Appeals Court or the Supreme Court. Still, it’s notable that David Carter, a Clinton-appointed judge from California, has ruled that “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.”
The remarkable ruling may be the first in history in which a federal judge determined a president, while in office, appeared to commit a crime. The decision has no direct role in whether Trump will be charged criminally but could increase pressure on the Justice Department and its chief, Attorney General Merrick Garland, to conduct an aggressive investigation that could lead to such charges.
The case involves John Eastman, a longtime associate of Sen. Ted Cruz of Texas. The two apparently conspired together to carry out a coup d’etat that would have disregarded the certified election results from 2020 and left President Trump in office for an illegitimate second term. Eastman is attempting to shield 101 emails from the House committee investigating the events of January 6, 2021. Judge Carter agreed that eleven of those emails are protected by attorney-client privilege but insisted the rest must be turned over because of the crime-fraud exception. In other words, a lawyer cannot engage in a criminal conspiracy with his client and then hide the evidence from investigators.
If Eastman appeals Carter’s ruling, it will go to the left-leaning Ninth District Court of Appeals. It’s highly unlikely to be reversed by that Court. Eastman will have better odds at the Supreme Court, but victory should still be considered a long shot. His argument will be that he considered existing law unconstitutional, but Judge Carter strongly rebutted this excuse.
Carter, who sits in Los Angeles and is an appointee of President Bill Clinton, acknowledged long-shot arguments by Eastman that the 1887 law governing the tallying and certification of electoral votes was at odds with the Constitution. However, the judge said that did not permit Trump the right to defy the statute or to seek to persuade [Vice-President Mike] Pence to circumvent it.
“Believing the Electoral Count Act was unconstitutional did not give President Trump 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. 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.”
However the Supreme Court rules, assuming they even hear the case, a marker has now been put down. Trump, more likely than not, committed a serious felonious crime. The Justice Department will definitely feel more pressure to press charges, but they’ll also have more confidence that they can win a conviction.
And if Trump and Eastman engaged in a criminal conspiracy, then Ted Cruz is also implicated.
On Jan. 2, 2021, Cruz unveiled his plan for states to start an “emergency 10-day audit,”backed by 10 other senators. The idea was met with ridicule even from some of Trump’s most vociferous supporters…
…Eastman, meanwhile, appeared at the Jan. 6 “Save America” rally at the Ellipse, where he in effect embraced the Cruz plan. “All we are demanding of Vice President Pence is this afternoon at one o’clock, he let the legislatures of the states look into this,” Eastman said.
Once it is established that this plot was criminal in nature, everyone involved in concocting it is vulnerable to prosecution. A District Court opinion is not the final say on that, but it definitely strengthens the hand of anyone seeking justice.
One reason not to get too excited about this ruling is precisely that Trump and Eastman have two more appeals to make, further stretching out the timeline and delaying (or blocking) a legal resolution to this case.
Marcy Wheeler is among those who would likely argue that DOJ *already* is in the midst of an aggressive investigation of Trump and his allies. Again, the wheels of legal justice grind slowly, especially when someone as skilled at throwing sands in the gears as Trump is, is involved.
What’s needed is for politicians who care about democracy (looking at you, House Select Committee) to get more aggressive in doing their jobs. Punishing a criminal former president isn’t just, or even primarily, a legal matter. It’s a political matter that needs skilled politicians to help make it happen.
Of course you got this right but I am something of a pessimist when it comes to bringing Trump or most of his henchmen to justice. He seems to have many more “friends” around him who can obstruct justice with endless challenges. Plus, I suspect the democrats will lose rather badly ( I do hope I am wrong) this year and in 2024 and this will all come to an abrupt end. So while Marcy may be right the pace of our DOJ is just not fast enough. Winning this year could change all that I would agree but Manchin and Sinema will,still be there.
I wouldn’t call myself an optimist either. Even if Dems lose Congress in November, DOJ can continue its investigations/prosecutions.
Which (imho) is all the more reason for the House Select Committee to hold a bunch of hearings as soon as possible…and to hold as many as possible. They’ll likely be shut down in January 2023, and in normal political reality, have at most 6 months to do their job and to make an impact.