By marshaling both private conversations and public writings about the plan to overturn the election’s lack of evidentiary basis, Carter shows that prosecutors have at their disposal a wide array of forms of evidence probative of the former President’s intent. Perhaps no one on earth has developed a lengthier evidentiary record than Trump — and prosecutors can unlock that record to hold him accountable. This effectively contradicts those who say intent will be hard to prove and is a useful signpost for the upcoming January 6 committee hearings and report — and for when the Justice Department receives the committee’s full evidence and any criminal referrals.
The possible implications for the rest of Trump’s enablers are obvious. Eastman is certainly not the only person alleged to have participated in calls or meetings relating to overturning the election. Tremors must have gone down the spines of former Trump lawyers Rudy Giuliani and Sidney Powell, former White House chief of staff Mark Meadows, former Justice Department official Jeffrey Clark and many more who were allegedly part of such conversations.
It is also worth noting that the judge ultimately ordered disclosure of only one document based on the “crime-fraud” exception to attorney-client privilege. That one document, however, is significant. It is an email chain that forwarded to Eastman a draft memo written for Giuliani. Carter notes that “this may have been the first time members of President Trump’s team transformed a legal interpretation … into a day-by-day plan of action.” By recognizing that Eastman’s theories weren’t just legal musings but the action plan for “a coup in search of a legal theory,” Carter knocks down one of the key phony arguments on which Eastman and Trump have relied.
This is obviously helpful to the committee in framing their hearings around this illicit conduct and in including strong criminal referrals to the Justice Department in its report. Because there is likely more evidence than what has already been disclosed, the committee should build on the judge’s opinion, and then it is for the Justice Department to evaluate and determine whether the cases can be proved beyond a reasonable doubt.
Of course, some caveats do apply. The California federal case was a civil proceeding, and so involved a lower standard of proof than the beyond-a-reasonable-doubt standard that will apply in a federal or state criminal case. Moreover, Eastman will undoubtedly appeal, which might delay matters. But his efforts are unlikely to be successful owing to the judge’s very searching review of the record.
Indeed, there is only one part of his opinion to which we take exception. At the close, Carter writes that “(m)ore than a year after the attack on our Capitol, the public is still searching for accountability. This case cannot provide it.” That is false modesty.
He might have said, “cannot directly provide it.” Carter knows the limited implications of his decision. But he has expertly tackled the key legal issues that the public needs to understand, and that will need to be addressed by the January 6 committee in making any criminal referrals and ultimately by federal and state prosecutors in their own efforts to hold Trump accountable.
Hopefully, all will use the road map the judge has provided and do something about the underlying offenses. That matters for the sake of holding Trump and his enablers accountable, for stopping the ongoing big lie crime spree of the MAGA faction of the GOP and for protecting our democracy itself.
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