THE DARKEST READING OF TRUMP’S COUP EFFORT
A federal judge has issued an extraordinary rebuke of Donald Trump over his actions relating to the Jan. 6 mob attack on the Capitol, one with profound implications for Trump’s future and the future of our electoral system.
Trump defenders might argue that his Jan. 6 conduct was driven by a sincere belief that the election was being stolen from him, and he was only exploring legal options to undo that perceived wrong. Or they might argue that he didn’t really intend for the coup effort to work.
But the U.S. District Court judge in this case, David Carter, was having none of it. His ruling underscores a darker interpretation: That Trump fully understood he was trying to subvert a legitimate election outcome by illicit means — and fully intended for it to succeed.
The case concerns whether lawyer John Eastman, the author of the infamous coup memo outlining a plan for Trump’s vice president, Mike Pence, to overturn Trump’s loss, can shield documents from the House select committee examining Jan. 6. Carter ruled that 101 of the documents must be turned over.
What’s critically important is why. To withhold the documents, Eastman cited attorney-client privilege. But Carter denied Eastman’s request, siding with the committee’s invocation of the crime-fraud exception, which states that attorney-client privilege can’t shield communications if the attorney is helping his client commit a crime.
Which is what Judge Carter said Trump was likely doing. The judge wrote that Trump’s actions “more likely than not constitute attempts to obstruct an official proceeding” — that is, criminal obstruction of the count of presidential electoral votes in Congress. So they fall under the crimefraud exception and must be turned over.
Eastman’s strategy held that Pence could delay the count of electors because the law governing that count — the Electoral Count Act of 1887, or ECA — is unconstitutional. That theory is based on a wildly wrongheaded reading of early U.S. history and the Constitution.
The judge’s ruling noted as much, concluding that “The illegality of the plan was obvious,” and that “based on the evidence, the Court finds it more likely than not” that Trump “corruptly attempted to obstruct” the electoral count.
In ordering the release of one particular document — a draft memo that circulated among Trump advisers suggesting an action plan for overturning the election — Carter wrote that “the memo likely furthered the crimes of obstruction of an official proceeding.”
At this point, it’s hard to see how the Justice Department can tenably refrain from a full criminal investigation into whether Trump broke laws in connection with Jan. 6. To be clear, we don’t know whether the department is currently doing such an investigation.
But not doing the investigation at all would mean the legal system doesn’t even attempt to answer a fundamental question here — whether Trump’s extraordinarily corrupt effort to subvert our political order amounts to criminality — to the degree that’s obviously warranted.
“Given the enormous public concerns at stake, as outlined by the court, Garland should be asked to say whether the Justice Department has opened a full investigation of Trump,” New York University law professor Ryan Goodman told us.
“If Garland’s Justice Department refuses, after all this, even to open a full investigation into Trump, the department will be failing in its basic responsibilities to uphold the rule of law,” Goodman said.
All this makes Trump’s recent actions even more disturbing. If anything, he has dug in more adamantly behind the idea that his effort to overturn the election wasn’t just defensible; it was the right thing to do.
Does anyone doubt that a key reason for this disconnect is the lack of accountability Trump has faced over it thus far?